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

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CAMBRIDGE
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
1

Vll X 1

Introduction
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
J.G.A. POCOCK

25

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
JAMES TULLY

36

4

Beyond Regret: Mabo's Implications for Australian Constitutionalism
JEREMY WEBBER

60

5

Engaging with Indigeneity: T i n o Rangatiratanga in Aotearoa
ROGER MAAKA AND AUGIE FLERAS

89

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

113

v

vi 7 8

CONTENTS

(De) Constructing the Politics of Indigeneity
MANUHUIA BARCHAM

137

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

152

9

O n the Plurality of Interests: Aboriginal Self-government and L a n d Rights
JOHN BERN AND SUSAN DODDS

163

Part III Democracy 10 T h e Liberal Image of the Nation
WILLIAM E . CONNOLLY

183

11

Minority Claims u n d e r Two Conceptions of Democracy
PHILIP PETTIT

199

12

American Multiculturalism a n d the 'Nations Within'
WILL KYMLICKA

216

13

Hybrid Democracy: Iroquois Federalism a n d the Postcolonial Project
IRIS MARION YOUNG

237

Notes Bibliography Index

259 282 305

Te Arawa a n d Ngati T u w h a r e t o a Iwi of New Zealand. 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. 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. 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. Australian National University. H e r work is primarily within the . H e is a m e m b e r of the Ngati K a h u n g u n u .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. 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. 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. 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'. particularly in the analysis of notions of indigeneity a n d social change. 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. 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). 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. 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.

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. ethnic a n d aboriginal relations. The Rights of Minor­ ity Cultures (1995). Multicultural Citizenship (1995). H e is the a u t h o r of Deleuze and the Political (2000). Ethnicity and Group Rights (NYU. 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. property rights. H e is currently working with Roger Maaka on a host of issues per­ taining to Maori-Crown relations. 1992). 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. JOHN POCOCK is Professor Emeritus of History at the J o h n s Hopkins Uni­ versity. 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. 1997) a n d Citizen­ ship in Diverse Societies (2000). H e is the a u t h o r of four books published by Oxford Uni­ versity Press: Liberalism. reproductive technology. H e has long-standing interests in race. including The Common Mind: An Essay on Psychology. 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. 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. Fauna a n d Intellectual Property Rights claim. a n d has pub­ lished several articles o n the implications of native title in Australia.viii CONTRIBUTORS areas of moral a n d political philosophy. 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 has published several studies on Maori society. and Finding Our Way: RethinkingEthnocultural Relations in Canada (1998). personal autonomy a n d research ethics. PAUL PATTON is Associate Professor in Philosophy at the University of Syd­ ney. AUGIE FLERAS is Associate Professor in sociology at the University of Waterloo in Canada. Society and Politics (1993) a n d Republicanism: A Theory of Freedom and Government (1997). Contemporary Political Philosophy (1990). where h e taught from 1974-94. with particular emphasis o n policy a n d poli­ tics. 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. Community. including indigenous justice a n d citizenship. and Culture (1989). She has published papers on a r a n g e of topics. H e has held posts as Professor . 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 editor of Justice in Political Philosophy (Elgar.

a n d as editor. including Intersecting Voices: Dilemmas of Gen­ der. Until 1998. a n d Bar­ barism and Religion I: The Enlightenment of Edward Gibbon. revised 1999). . British Columbia. including housing. JAMES TuLLYis Professor of Political Science at the University of Victoria. WILL SANDERS has b e e n . Commerce and History (1985). St Louis. indigenous rights. constitutional law a n d legal theory. federalism. She is a Kahnawake Mohawk. Culture. narrativity a n d n a t i o n h o o d . Politics. health. h e was o n the Faculty of Law of McGill University. His publications include Strange Multiplic­ ity: Constitutionalism in an Age of Diversity (1995. since 1993. H e is the a u t h o r of Reimagining Canada: Language.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. 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 . She is a u t h o r of several books. Victoria. 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. The Maori and New Zealand Politics (1969). The Machi­ avellian Moment (1975). McGill University. H e has worked o n several areas of Australian public policy relating to indigenous Australians. His publications include The Ancient Constitution and the Feudal Law (1957). Virtue. i n c o m e support. where she teaches political theory a n d feminist theory. 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. 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). nationalism. Community and the Canadian Constitution (1994) a n d of o t h e r works on cultural differ­ e n c e . a Research Fellow at the Australian National University's C e n t r e for Aboriginal Economic Policy Research. Struggles for Recognition in Multinational Societies (forthcoming). IRIS MARION YOUNG is Professor of Political Science at t h e University of Chicago. JEREMY WEBBER is Dean a n d Professor of Law at the University of Sydney. H e r doctoral research examines the relationship between discourse. local g o v e r n m e n t a n d inter-govern­ mental relations. employ­ m e n t . Political Philosophy and Policy (1990). II: Narratives of Civil Government (1999). AUDRA SIMPSON is a P h D candidate in the D e p a r t m e n t of Anthropology. Language and Time (1971). 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.

W i t h o u t the backing of the H R C this book. a n d the Associate Director. 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 . T h e HRC graciously allowed us to offer visiting fellowships to many of o u r contributors. In particular. We are especially grateful to the Humanities Research Centre at the ANU. 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. 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 . a n d especially to the Director. 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. would simply not have occurred. in various capacities. we would like to t h a n k L e e n a Messina. 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. Ben Penny. we would like. Julie Gorrell. at the Australian National University in C a n b e r r a . for their unstinting support of o u r efforts. G r a e m e Clarke. enabling t h e m to c o m e to C a n b e r r a for various lengths of time. Stephanie Stockdill. 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.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. Lia Szokalski a n d Misty Cook. a n d the various seminars a n d colloquia organised a r o u n d it. T h e administrative staff at the HRC were wonderfully sup­ portive as well. We would also like to acknowledge the support of o u r efforts by the Research School of Social Sciences at the ANU. 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. first of all. lain McCalman. 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 are especially grateful to Philip Pettit. we are very grateful. a n d to Robert Goodin a n d Barry Hindess for their h e l p in this regard.ACKNOWLEDGEMENTS xi contributors to C a n b e r r a . Roy Perrett. Additional support for the project was provided by the Nuffield F o u n d a t i o n . 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. Danny Celermajer. Finally. Garth N e t t h e i m a n d Margaret Wilson. Melissa McMahon provided excellent help in readying the man­ uscript for publication. To all these institutions a n d organisations. Frank B r e n n a n . 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 . we would like to thank the following for their h e l p in realising this project: Mick Dodson. We are also grateful to Peter Cook for help in p r e p a r i n g the index. 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. Sidney Haring. H e n r y Reynolds. Russell Barsh. Director of the G r o u p . J o h n Wunder. .

.

CHAPTER 1 Introduction D u n c a n Ivison. Ulti­ mately. 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. T h e chapters in this book address the legal. 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. Canada. 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. They are n o t issues of m e r e academic interest. namely. different strands of western political t h o u g h t have n o t only b e e n 1 . 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. Generally speaking. they c o n c e r n the very survival of indigenous peoples. 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. 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. 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. 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. A o t e a r o a / N e w Zealand and the U n i t e d States of America. T h e d e m a n d s of indigenous peoples for justice pre­ sent far-reaching challenges. since they touch u p o n historically e n t r e n c h e d injustice a n d social disadvantage. at various points of his­ tory. 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. 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.

a n d between theorists occupying different vantage points 1 2 . legal a n d social theory developed by E u r o p e a n . 1995). has emphasised universal h u m a n rights. egalitarian political theory has often e n d e d u p justifying explicitly inegalitarian institutions and prac­ tices. as well as historians of early m o d e r n political t h o u g h t . education a n d training as well as u p o n the sanctions a n d limits of political power (Tully 1993. in fact. 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. S A N D E R S complicit with. especially in its liberal a n d social democratic vari­ ants. discipline. but h e l p e d to justify.2 D . the careful work of historians a n d legal historians of set­ tler societies a n d Empire. 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. it has also explicitly d e n i e d such enti­ tlements to indigenous peoples. 'western political t h o u g h t ' refers broadly to that body of political. I V I S O N . As a result. This history of western. 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. P A T T O N A N D W. ways of life. 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. have b e e n of particular i m p o r t a n c e in this regard. As we u n d e r s t a n d it. As m u c h as mod­ e r n political theory. equality before the law a n d individual a n d collective freedom. the preservation of culture. 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 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. peoples or populations are governed. social a n d political institutions. a n d the right as well as the m e a n s to exercise effective self-government. 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. 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. T h e e m e r g e n c e of 'postcolonial' theory in English a n d Cultural Studies. 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. a n d especially liberal. Typically. these have included claims for the r e t u r n of traditional lands. American. colonial expansion a n d imperial control over indigenous peoples a n d their territories. a n d ways of organising property. 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 . 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. 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. value systems. P.

INTRODUCTION 3 within the same general ' l a n g u a g e ' of western political thought. 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. Moreover. 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 ' . 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. those to d o with property or bod­ ily integrity. As m u c h as it is t r u e that. How might the narratives of n a t i o n h o o d be retold. as well as to contribute to new thinking a b o u t the best m e a n s to address such claims. However. 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. 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. at various points. b e e n victims of state-sponsored discrimination or assimilation. how can it be d o n e . 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 . even if it began in an illegitimate fash­ ion. a n d the n a t u r e of c o m m u n i t y a n d identity. the issue is n o t simply a matter of how a state came to be. 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. 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. Scots a n d Quebecois have all. 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. historically speaking. which in t u r n r e q u i r e institutional expression. 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 according to what criteria? This question leads us into issues of cultural difference. They are also e m b o d i e d a n d expressed in distinctive conceptions a n d idioms of law. in others. Basques. universalism a n d particularism. the terms of treaties are n o t always observed. Some states rely o n the now discredited doctrine of terra nulliusr. but of how it can b e c o m e 'morally rehabilitated'. 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. Bretons. Rights are generally conceived of as securing or protecting funda­ mental h u m a n interests. for example. T h e recognition a n d . lib­ eral democracies have tried to assimilate indigenous peoples and deny t h e m any group-specific forms of recognition.

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. whatever else might be said about the character of indigenous rights. I V I S O N . individual rights a n d obligations and that. 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. What are the necessary conditions for such dialogue? O n the o n e h a n d . 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. they are 'mediated rights': the recognition of indige­ n o u s interests in land as legal or political rights inevitably transforms those interests. Moody-Adams 1997). then. including indigenous ones? And would this n o t raise the spectre of cultural relativism? Are we. As J e r e m y W e b b e r points out. 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. autonomy. we are in d a n g e r of simply replaying such prejudices.4 D . 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. with the additional b u r d e n of doing so in the context of an imposed non-indigenous legal framework. 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 . P A T T O N A N D W. O n the o t h e r h a n d . P. 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. 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. 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. 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. 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. 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 . freedom. 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. Conversely. W h e n we invoke a mysterious 'oth­ erness' or radical difference in referring to indigenous cultures. as a result. 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. At the same time.

in each case. Accordingly. T h e third argues that the poverty of both previous responses suggests . identity a n d democratic theory . 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. 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. A u d r a Simpson. 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 .sovereignty. and ensure that the rights a n d protections it cherishes effectively be e x t e n d e d to indigenous peoples.i n d i g e n o u s perspective has b e c o m e . philosophically speak­ ing. 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. 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 what they have taken to be the consequences of these claims. 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. others focus on o n e or a c o m b i n a t i o n of them. in what ways has western political theory contributed to the coloni­ sation. In r e c e n t years. with an eye to the fundamental issue of justicefor colonised indigenous peoples. 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. 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. but instead should hold fast to its individualist a n d non-interventionist credentials. 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. 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. 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. 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 .INTRODUCTION 5 a n d i m p o r t practices a n d beliefs from outside of themselves. Liberal political philosophy looms large. but only to the extent of the limits given by liberal conceptions of equality a n d a u t o n o ­ my. 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. this book addresses two general questions. Some of the chapters touch on all t h r e e themes. 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 . First. T h e chap­ ters by M a n u h u i a Barcham. most developed.

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'. 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 y can also place b u r d e n s . Cultural m e m b e r s h i p may contribute to indi­ vidual wellbeing. 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. if they so choose. 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. 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. Individual a n d not g r o u p rights are what need to be secured. religion. Groups are not h o m o g e n o u s but dynamic. 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. So. I V I S O N .6 D . Hardin 1995. This m e a n s avoiding e n t r e n c h i n g g r o u p rights.u p o n majority populations (that is. 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. liberal theorists should be wary of the social ontology of cultures a n d groups. subsidising alternative legal systems. 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'.) that can g e n e r a t e r e s e n t m e n t a n d 'backlash'. this first approach has b e e n seen as deeply problematic on normative g r o u n d s . 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. 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. het­ e r o g e n o u s historical associations of individuals (Kukathas 1992. In o t h e r words. T h e state has n o business inter­ fering with their choice. H e n c e . In particular.mate­ rial a n d otherwise . 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 ' . o u t of the 'associations' in which they grew u p in or choose to live. 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. it is argued. they see it as a n o t h e r form of assimila­ tion. language programs. Post forthcoming). 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. separate schools etc. P. 1997b). individ­ uals should be e m p o w e r e d to move a r o u n d within and. m o v e m e n t a n d the like. 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 . P A T T O N A N D W. association.

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 . given how often liberals are castigated on all these fronts by various critics. 1995: 4 9 . Pettit a n d Tully). This is an impressive achievement. 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 . In his chapter. b u t potentially harmful. 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.7 4 ) . to a lesser extent. 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 . 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. u p to a n d including self-government. 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). international law (1989: 206-19. 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. T h e value of cul­ tural m e m b e r s h i p . as Kymlicka himself emphasises. is fixed relative to a conception of justice in which the value of autonomy is central. a n d it preserves a fluid a n d dynamic account of culture that avoids romanticising or 'freezing' cultural practices in time. it represents at least an a t t e m p t to formulate a distinctly lib­ eral response to indigenous claims. it addresses the claims of cultural. 1995. 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. 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 . 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. 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. T h u s g r o u p rights. 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. Moreover. 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. 1998a). including in this case a particular relation to land. Justice involves c o m p e n s a t i n g for arbitrary a n d unfair social disad­ vantages. An alternative response. still from within the liberal tradition. to the context in which individual freedom is r e n d e r e d meaningful.7 2 ) .INTRODUCTION 7 rests the legitimacy of democratic authority (see the chapters by Kymlicka. 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.

P A T T O N A N D W. Offe 1997). I V I S O N . 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 . 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).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 . insofar as this contrast is employed inter­ nationally to p r o m o t e 'the American m o d e l . 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. In particular. 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. 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. 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'. fluid a n d voluntary nature of American multiculturalism with the closed. in addition to the basic rights of expression. Kymlicka's a r g u m e n t has nevertheless b e e n subject to extensive criti­ cism. 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 . 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 . 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. 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. Laitin 1998. O n the o n e h a n d . 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'.then Kymlicka risks e n d o r s i n g a form of cultural relativism. O n the o t h e r h a n d . In response to such objections. Moreover. S A N D E R S n o u s peoples a n d o t h e r 'nations within'. 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 . conscience a n d association usually p r o m o t e d by lib­ erals (Kukathas 1992. P. 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. 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.8 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. h e argues that the tendency to contrast the apparently o p e n . T h e phrase 'nations within' shows the persistence of this p r o b l e m . As a result. Doppelt 1998). More seri­ ously.

However. But indigenous claims appeal to ' i n h e r e n t ' . n o t temporary. 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. 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.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. sovereignty. to the history of their relations with set­ tlers. 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. 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. More decentralised a n d 'culturally appro­ priate' forms of judicial review. Similarly. and thus there is a remedial case for distinguishing their claims from others (Anaya 1996). 1998b). are arguably m o r e justifiable. First. 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 . 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. 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.INTRODUCTION 9 a n d aspirations' (144). 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. J e r e m y Waldron has a r g u e d that the recog- . the greater the scope for self-gov­ e r n m e n t Kymlicka is willing to grant to indigenous peoples. T h e r e are two difficulties with this a r g u m e n t . This tension between cultural difference a n d liberal values leads to the third response to indigenous claims. or even international forums. T h e relevance of the history of relations between indigenous a n d n o n . W h a t is it a b o u t the claims of indigenous peoples that is missed by liberal responses. 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. But linking self-government rights to degrees of suffering is problematic. 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. a n d therefore what should actually be recognised or ' r e t u r n e d ' to indigenous peoples. 1996. 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.

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 1992.10 D . But the distinctiveness of indigenous claims. 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- . a n d were only ever integrated by force.the historical legacy of colonialism. 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. 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. is lost or r e n d e r e d o p a q u e in discussions of distribu­ tive justice. as well as the construction of notions of fairness. I V I S O N . indigenous peoples' claims are distinctive because of the nature of their culture a n d especially their relation to the land. the dispossession of their lands a n d the destruc­ tion of their cultural practices. in his chapter. 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. Justice is about the impartial distribution of goods. 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. since the parties might just as well be reasonably well-off. If it were the historical n a t u r e of the entitlements that mat­ tered most. b u t to a particularised share (Simmons 1995: 174). O n this approach. which affects the partic­ ular history of their interactions with various settler states. as 'certain cultural self-conceptions. Waldron's aim is precisely to acknowledge this point. will misunderstand n o t only the particular value of culture or land being a p p e a l e d to. these other peoples were able to con­ verge along with the majority nation o n what Kymlicka has put. in the processes of state-building. 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. Sim­ m o n s 1995). Moreover. 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. or at least n o t suffering from any serious disadvantages. a n d to share certain eco­ nomic a n d social needs a n d influences'. is sufficiendy different n o t to be readily assimilated. P. on the most charitable reading of his a r g u m e n t . then it wouldn't b e clear what the restoration of lands or resources h a d to d o with distributive justice. H e n c e their way of life. Of course indigenous peoples d o currently suffer from appalling social disadvantages. Some would argue that this is unavoidable. although not incommensurable from that of o t h e r cultures in liberal democracies. b u t also the n a t u r e of the moral wrongs u p o n which the claims are based . 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. Indigenous peoples r e m a i n e d apart from such convergences. T h e way we dis­ tinguish between indigenous peoples a n d other 'stateless' nations is that. P A T T O N A N D W.

This is particularly t r u e in t h r e e areas: the n a t u r e of 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. 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. 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. Consider first the spectre of sovereignty that dominates contem­ porary political theories of the state. 7 Reshaping Sovereignty. 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. rather than according to assumptions elaborated within various western a n t h r o p o ­ logical. If anything. these are doctrines of which indigenous peoples might avail themselves.INTRODUCTION 11 tures. 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. 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. questions of political a n d cultural identity and difference (both individual a n d collec­ tive) . 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. Canada. 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. But this touches on a n o t h e r problem for the difference approach. . Royal Commission on Aboriginal Peoples 1996a. needless to say. 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. political or legal doctrines. 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. 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'. Kymlicka 1996). which should n o t be either romanticised or demonised. 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. 1996b). Although.

The idea is ethnocentric and racist. 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. a n d in the absence of any declared alternative. P. And that proposition can only survive if underpinned by nineteenth-century ideas about 'primitive' people. (Asch 1999: 441) . 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). However. O n what basis did white settler systems acquire sovereignty over the land a n d its inhabitants. PATTON A N D W. since Mabo (1992).no recognisable political or legal organisation at all . . T h e first relies exclusively u p o n the doctrine of discovery. . and the court has chosen either to ignore it in the Calder era. a direct holdover from the colonial era . and to uphold it in order to explain State sovereignty is not only contradictory.before 1788. 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. 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. Yet the State has derived n o thesis to supplant it. 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. SANDERS Roger Maaka a n d Augie Fleras highlight the issue of the legitimacy of the colonial states in their chapter.12 D. the government has chosen not to address it. IVISON. 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). 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. 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. Nevertheless. h e suggests. or to define it away in Van der Peet. 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. discovery is only a sufficient basis for the acqui­ sition of sovereignty if t h e r e were n o original inhabitants. However. The doc­ trine of the settled colony only works if there literally was no sovereignty . is: the fundamental problem at the heart of Australian jurisprudence. (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. it is also repugnant to contemporary values.

Pocock a n d J a m e s Tully p o i n t out.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. recourse to treaties presupposes that the indige­ n o u s peoples involved are sovereign. Moreover. or. 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. Pearson 1993: 15. 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. 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. namely the con­ clusion of treaties with local indigenous populations. or at least consent to share their land a n d resources with the newcomers. Underlying this p r o b l e m are the complex issues of crosscultural translation. as both J. only to states. 109-10). 8 . 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. few coun­ tries are p r e p a r e d to rely u p o n the claim of conquest alone. What the chiefs consented to transfer to the Crown was kawanatanga. 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. Kawharu 1989. which may be translated as full a n d c o m p l e t e chieftainship or authority (Sharp 1997. as Iris Young suggests. which some argue should be translated as ' g o v e r n o r s h i p ' .A. More c o m m o n is recourse to the third justification. 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. In the English version of the Treaty of Waitangi signed in 1840 by representatives of the British Crown and some 500 Maori chiefs. 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. However. as Pocock a n d Tully sug­ gest. 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. 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. 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. Alfred 1999a: 53-69. What they retained was te tino rangatiratanga. but it is n o t evident how this concept should be aligned with the terms used in the Maori version. M c H u g h 1991.G. O r a n g e 1987).

PATTON A N D W. 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. she points to the sense in which. 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- . Caney 1999).14 D. 1995). 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. 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 . they constitute a form of internal limit to the sovereign power of colonial states. 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. Like several o t h e r contributors. 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. D e m a n d s for the reshaping of sovereignty lead directly to questions of political a n d cultural identity. 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. 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. 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. 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. I V I S O N . Moreover. as several of the chapters in this book point out. 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. However. 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. P. 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. 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. Philpott 1995. 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. SANDERS Over a n d above these issues of intercultural translation.

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. . Royal Commission o n Aboriginal Peoples 1996a. But since all political a n d cultural identities are historically a n d socially dynamic. for example. Manuhuia Barcham. Webber also draws attention to the tendency to exaggerate the extent to which national identities require a single. H e n c e 'urban Maori' are set against 'traditional Maori'. T h u s . 1996b). . As Connolly points out in his piece. 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. a n d d e n i e d access to the resources a n d benefits .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. as a kind of 'confederacy of shape-changers'. 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. c o h e r e n t national story. This general p o i n t about the relations between identity a n d difference has consequences for thinking about indigenous identities. . for example. 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. an issue not limited to that country alone (see. T h e institutional forms through which indigenous cultures manifest themselves should also remain o p e n to change.such as they are . 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. 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 ' . as Pocock sug­ gests. 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. individually a n d institutionally speaking.reserved for ' g e n u i n e ' indige­ nous people. or if sovereignty is to be stable. But the nation is also an imagination of unity or wholeness that has never been actualised. Canada. u r b a n Maori represent a significant proportion of the general population of Maori. 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. And yet. 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 ' . the model of a postcolonial state may be envisaged. but in relation to institutional a n d practical frameworks. 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 .

SANDERS T h e chapters by J o h n Bern a n d Susan Dodds. 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. 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'. 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 . 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 . a n d to unavoidable articulation of indigenous interests with the governmental apparatus of the state.as it does with control over territory and resources. Sonia Smallacombe. PATTON A N D W. Bern and Dodds show how legislative a n d policy regimes shape not only indigenous inter­ ests in land. 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 .16 D. like any o t h e r g r o u p in a liberal democratic state. 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.a point similarly emphasised by Barcham. with the result that. In sharp contrast to the assimilationist views that have d o m i n a t e d policy towards Australia's indigenous peoples. 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).of peoples. . 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. 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. Smallacombe a n d Webber. Smallacombe a n d Simpson. P. b u t also those who are said to have authority to represent those interests . may be under­ stood as a m o v e m e n t toward a clearing'. she argues. like t h o u g h t in Heidegger's formulation. glimpses of what she refers to as the 'interior frontiers of Mohawk n a t i o n h o o d ' . Simpson's narratives of different strands of Kahnawake n a t i o n h o o d . IVISON. T h e focus on the dynamics of experience in Jackson's a p p r o a c h . D o d d s a n d Bern. themselves a n d their aspirations'. ' " n a t i o n h o o d " . cultures a n d institutions . 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). In c o m m o n with Bar­ c h a m . Using the example of the Aus­ tralian N o r t h e r n Territory's Aboriginal Land Rights Act. Drawing on a critical use of Michael Jackson's conception of 'radical empiricism'. I n d i g e n o u s peoples. . 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.

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. Arguably. 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. sharing and mutual responsibility (Canada. Royal Commission o n Aboriginal Peoples. t h e r e are further difficulties with the conditions u n d e r which democratic consensus or legitimacy is arrived at . 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. national or inter­ national. 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. 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. 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. 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. 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 . Finally. 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 ) .INTRODUCTION 17 cultures a n d secure self-determination. 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. 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. 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. which must occur u n d e r conditions that are accept­ able to b o t h parties. W h e t h e r local. T h e dynamic effects of such assumptions. mutual respect. However. Rights. especially with regard to 'internal minorities' or the 'con­ stitutional stability' of a state. 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. 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. 1996a: 676-97). Disavowing colonialism involves m o r e than assertions a n d counter-assertions of rights. has p r o p o s e d that these relations be based o n principles of mutual recognition.

the greater the n e e d for such contestatory mechanisms. specific . b u t is never a sufficient condition for under­ standing relations of power since it is often a result of such relations. 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. IVISON. SANDERS by the parties involved. 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. They a p p e a r to c o m e u p o n democracy from the outside. 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'. H e n c e the n e e d for a richer account of democracy. However. Philip Pettit argues that o n a thin 'electoral' conception of democracy.minority rights present just such a mechanism. 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. PATTON A N D W. claims by indigenous people a n d o t h e r minority groups will n o t fare very well. Political settlements are thus much closer to a kind of modus vivendi. Public discourse is always characterised by relations of power as m u c h as it is by reason. then it should b e organised so as to give stand­ ing to all possible c o m m o n interests. P. 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 . For this reason. Even if we think general counter-majoritarian measures such as a Bill of Rights are essential for the possibility of democracy itself. 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. Ivison 2000). 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. 'Special' . T h e justification for t h e m is tied to t h e value of equal standing. Consensus is important. as opposed to a d e e p e r 'overlapping consensus' on constitutional n o r m s (Rawls 1993: 146-72. 'special minority rights' are n o t similarlyjustifiable.18 D. T h e m o r e multicultural a state. 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 . 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. 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.or p e r h a p s m o r e accurately. which in turn is tied to the value of democratic rule. 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.

INTRODUCTION 19 nature a n d limits of state power. However. But these are goods shared by b o t h indigenous a n d nonindigenous conceptions of justice. For others. 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 . 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 . 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 . including Tully. Mason 1999). For some. Many migrant g r o u p s were unjustly incorporated into 'settler' states. 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. 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. Moreover. how it cor­ r e s p o n d s to the form of recognition indigenous peoples actually seek. the 'currency' of egalitarian justice is o n e of rights a n d resources impartially distributed between individuals a n d groups. 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. These disadvantages stem not from the choices indigenous peoples make but from the way they find themselves relative to the rest of the population. O n Kymlicka's a r g u m e n t . Pocock. including the ways in which Aboriginal a n d non-Aboriginal peoples have acted together in the past. albeit developed in their own ways.their lands a n d their cultural practices . Simpson a n d Kymlicka in this volume.to the political decisions of the majority society. H e n c e they are a legiti­ m a t e basis for d e m a n d s for justice. 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. 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. self-gov­ e r n m e n t is clearly a value central to western conceptions of justice. 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 . Generally speaking. such as Young a n d Fleuras a n d Maaka. 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. 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. self-government is justified by virtue of the disadvantages indigenous peoples suffer in view of the vulnerability of their cultural structure .

20 D. 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.are to be distributed. 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. 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. 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. PATTON A N D W. 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. 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. 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. But even apparently just a r r a n g e m e n t s can be imposed unjustly. 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.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 . this is entirely correct. precisely the p r o b l e m indigenous peoples are argu­ ing n e e d s to be addressed. P.the currency of egalitarian justice . then o n c e again. as have many of o u r contributors. This is a strong precondition. 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. 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. 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 . IVISON. For some. It teaches us . 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. 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. arguably. dynamic thing rather than a m u s e u m piece.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 . This a r g u m e n t may be effective. 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.

democ­ racy a n d sovereignty. 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. This is not an easy task. 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. 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. . 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 . 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 . identity.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. universalism a n d particularism would n o t be conceived as irreconcilable moral vantage points between which we are forced to choose. 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.

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PARTI Sovereign ty .

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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.a t e r m conveying some of the meanings of 'aboriginal' ( O r a n g e 1987). 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' . New Zealand (in Maori. whose establishment was in t u r n p r e c e d e d by the Treaty of Waitangi in 1840. 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 . Australian Aborigines were party to n o such treaties.t h o u g h its signatories were able to envisage .G. C a n a d a a n d the US are continental confederations.CHAPTER 2 Waitangi as Mystery of State: Consequences of the Ascription of Federative Capacity to the Maori J. Aotearoa) is a uni­ tary state established by the Crown's sovereignty. Irish a n d o t h e r E u r o p e a n colonists known as 25 . Australia. Within this g r o u p .the massive settlement of New Zealand by the British. u n i q u e position. Distinct from these cases. 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. T h e r e is also the case of the Native Hawaiians.A.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 . 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'). a n d it is doubtful w h e t h e r they could or should seek o n e now. 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. to all appearances. This Treaty was drawn u p a n d signed before .

1 Glenelg was an Evangelical. 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. now a majority of the p e o p l e who democratically exercise the sov­ ereignty of the crown.to use an older terminology . it therefore furnishes a basis o n which Maori may make claims against that sovereignty. in having consciously exposed its sovereignty to legal. 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. in the sense that it precedes and establishes the national sovereignty. political a n d philosophical challenges. having fixed Abodes. 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. and with some rude approaches to a regular System of inter­ nal Government. T h e initial decision received the following theoretical s u p p o r t from Lord Glenelg.a discourse u p o n history r a t h e r t h a n a history. Both sets of understandings are traceable to the Treaty itself. P O C O C K pakeha. 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. T h e Treaty of Waitangi is now considered fundamental. 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. 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. 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.26 J. 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. M c H u g h 1991. 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 . This c h a p t e r will be . because a situation has arisen that constitutes New Zealand's uniqueness. then Colonial Sec­ retary. Kawharu 1989). 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). 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. All arise from the prob­ lem of indigenous rights. a n d may be so in a m u c h larger conceptual category.G. T h e Treaty is not used to delegitimise sovereignty. but Tribes who have apportioned the country between them. sovereignty a n d history differ sharply from those of the Crown and the majority (Sharp 1997. with an acknowledged Prop­ erty in the Soil.A. 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.

from which New Zealand a n d Australian history begins to b e c o m e as profoundly different. In E u r o p e a n t h o u g h t . However. to which the word 'savage' (sauvage. 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. or were i g n o r a n t of. ( E u r o p e a n s ignored.) 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.g a t h e r e r condition.but n o t in the land over which they travelled in its pursuit (Locke 1988: 289). H e was saying that the Maori h a d left the h u n t e r . forester. 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. political philos­ ophy a n d anthropology. 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'. 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. a n d it is possible to view Glenelg's words in the context of settler-Aboriginal history in Australia (Reynolds 1996). we must refine the distinctions being m a d e . At this point. however. u n a p p r o p r i a t e d by agriculture.' t h e d e e r is that Indian's that h a t h killed it' . 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. Terra nullius has the effect of denying Aborigines the capacity to make treaties. therefore. It is tempting. 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. rights. the Latin word for 'treaty'. In saying that they were ' n o t Savages living by the Chase'. a n d to find in this distinction the source of the decision that the land over which they passed was terra nullius. 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 . In Lockean theory. . selvaggio. derived from foedus. 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 . 1998). 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. the federative capacity. b u s h m a n ) was in theory restricted. h u n t e r . as in many ways they are. T h e effect of Glenelg's words is to justify e n t e r i n g into treaty with Maori. Glenelg t h o u g h t of t h e m as 'the New Zealanders'.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 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. 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. A m o n g these points of contact were Tasmania a n d Victoria. 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. pursuing songlines in search of sustenance. the 'they' of the o p e n i n g statement are.WAITANGI AS MYSTERY OF STATE 27 in various parts of the s o u t h e r n oceans. in the first instance.

while retaining for themselves the rights they empower g o v e r n m e n t to enforce. where the Maori signatories recognise the Crown as endowed with kdwanatanga . 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 ' . 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. as p a r t of the historical record.as it has that Maori are entitled to claim that the Crown is b o u n d to maintain ran­ gatiratanga. a word m o r e authentically Maori. by extension then and since. 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.G. Maori in the late twentieth cen2 3 4 .28 J. a threat sufficient to maintain the b i n d i n g force of the Crown's obligation. 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. 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 ' . 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 ' .is to move from the c o n c e p t of treaty towards that of contract of government. the entire fabric of Maori culture a n d self-possession.A. 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. transferring to a sovereign authority the right of enforcing these rights a n d legislation con­ c e r n i n g them. that failure to d o so is a breach of the contract of govern­ m e n t . which is a phonetic equivalent of the word ' g o v e r n m e n t ' . but as yet of n o civil g o v e r n m e n t . 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. In classical theory.a neologism in te reo Maori (the Maori lan­ guage as cultural i n s t r u m e n t ) . A n o t h e r . P O C O C K disputes a n d m e a n s of resolving t h e m . may compact to set u p such a government. 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 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. O n e is to intensify. 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. 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.while the Crown guarantees t h e m the continued posses­ sion of rangatiratanga. b u t h e is saying that they have n o t developed a sovereign authority or state. officers a n d subjects. It would follow . 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. property in land and. people possessed of rights a n d civil society. whose meanings include chiefly authority. A compact of this sort may be held to have o c c u r r e d at Waitangi.to use terms compatible with the vocabulary of classical pakeha political philosophy . Faced with this a r g u m e n t . At a culminating p o i n t in the ceremonies at Waitangi.

If the Crown did not become the m e r e instru­ m e n t of the settlement companies. or the extent to which the Crown would further that process in the act of exer­ cising sovereignty over it. as it might. 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 . It was the Crown's intention to establish its sovereignty before settlement began in order to retain sovereignty over the process. b u t it does n o t follow.is not envisaged at Waitangi or spoken of in the Treaty. but did not make clear to t h e m either the impact that settlement would have on their rangatiratanga. H e r e we revert to Glenelg. with the Maori. the former is n o t the only threat the latter faces. h e r e recognised as a n c i e n t a n d aboriginal. or con­ tract of government. to develop a civil society of the kind they are used to. It was.WAITANGI AS MYSTERY OF STATE 29 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. however. Hobson's words at Waitangi n e e d not be read . T h e Crown knew this. It did so by means of a treaty. and h a d its own intentions regarding it.as m e a n i n g that Maori a n d pakeha 'are now o n e people'. 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. rooted in the customs of an indigenous p e o p l e . T h e capacity to hold property. This is crucial to any claim that may subse­ quently b e m a d e that rangatiratanga antedates. 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.intensive colonisation by British setders intending to appropriate land in their own way. 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. a n d accusations of bad faith against the Crown in its dealings at Waitangi begin here. 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 . However. with the precise effect of using such r e m i n d e r s to revive the binding force of the Treaty. that the Treaty is simply the outward or originatory form of a contract of civil gov­ e r n m e n t . 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. it came close. beginning to occur. His language ascribes to pre-Treaty and pre-contact Maori a capacity to create property in l a n d . 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. conditions a n d obliges the establishment of sovereignty at Waitangi. Property is a right. 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. T h e rea­ son is that massive pakeha presence .though they often have been .

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. J u r i s p r u d e n tially. Maori. 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. c o m p o s e d of ancestral a n d cosmic images. o n c e their existence a n d origin have b e e n p o i n t e d out. justice a n d revenge (the word for the latter two is utu). found themselves living in a process of shifting patterns.a n d were o p e r a t e d by pakeha in 1840 so that they should imply .e n d e d n e s s of history.30 J. 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. a n d the kupapa sometimes found their lands con­ fiscated. Historically. at the price of uncertainty. 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 . a process of commodification in which all goods b e c a m e mobile a n d homo became mercator. 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. This is life in the o p e n . As goods b e c a m e commodities. as a specie of right.the latter often quite deliberate .a capacity to alienate property with which Maori were n o t familiar a n d which might be hostile to their governing values. Philosophically. freedom could . 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 p e r h a p s in the first historical process they are obliged to recognise as such. 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. T h e future b e c a m e o p e n . a n d therefore a b o u t being free.take their origin. n o t that h e was parting with it for money. 1989. Maori w h o resisted land sales. But the wars could not check the flood of pakeha immigration. e x c h a n g e transformed their use a n d character. 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. however. Property. 1996: 229-46). unknowable in a closed Maori cosmos that taught n o response to t h e m . this is the point from which many confusions a n d injus­ tices . required n o organisation of time beyond inheritance a n d custom. accustomed to living in a cosmos of reciprocity. We now see. 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. and kupapa. n o t h i n g was quite what it seemed.G. P O C O C K c o n c e p t of rangatiratanga.A. 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. T h e time structure of the Maori world was mythic. 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. Maori who had decided to e n g a g e in a n d control them. that they implied . like those of the Kingitanga (Belich 1986. c o m m i t t e d to exchange. a n d that o n c e the sailors had arrived.

oratory and reason of state (Colden 1747: v. in Lockean terms. 265-80). they could resolve to make wars. 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. 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. 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. justly or unjustly. 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. It constituted the universes of jus gentium a n d 'reason of state'.Glenelg's 'Savages living by the Chase' . the intellectual universes governing the relations of sovereigns with o n e 8 . 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. p r e c e d e it by alliances. 135. just or unjust. 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. 150-51. T h e capacity to engage in war. provide. xiii. 106. b u t the knowledge of their former wholeness. 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 . It could be applied to the historical con­ dition of Maori at the time of contact. 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. T h e r e may b e ways of relating Glenelg a n d the Treaty to this process. 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.if n o t identical with . it was never­ theless available to pakeha e n g a g e d in this discourse. 178-79. a n d t h e r e had taken shape an elaborate image of the capacity of Mohawk. 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. their powers of political speech exceeded their powers to c o m m a n d a state's resources.WAITANGI AS MYSTERY OF STATE 7 31 only be h a d by living in a history like . Ferguson 1995). a n d may be intro­ duced into t h e history as a m e a n s of enlarging its philosophical significance. a n d behave wisely or unwisely. viii.theirs. This may well be. 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. 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. who h a d 'advanced' (as a progress-based discourse would p u t it) beyond 'living by the chase'. 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 . treaties a n d alliances.who should in theory lack all these capacities. that the federative capacity here p r e c e d e d the legislative). Nevertheless. t e r m i n a t e it by treaties. Iroquois a n d H u r o n leaders for war.

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. o c c u r r e d in a universe of jus gentium. 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). the a r g u m e n t does p e r m i t the contention that. 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. a n d since it is unlikely that history can be written with finality. and did not prevent Maori suffering mani­ fold injustices within that universe. wars a n d treaties recognisably occurred. T h e rewriting of New Zealand/Aotearoa history in this way appears to have become estab­ lished. In precontact Aotearoa. 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 m u c h more gen­ eral position. in b o t h Maori a n d pakeha senses. This a r g u m e n t in several ways entails ideal simplifications. Against this b a c k g r o u n d . P O C O C K a n o t h e r . 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 .elements to which appeals are now b e i n g m a d e . these wars were n o t t e r m i n a t e d by treaties. 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 . T h e r e was a Treaty at the foundation of sovereignty a n d partly in consequence of its imperfections. whereas the effect of terra nullius has b e e n the refusal of such a presence to Aboriginal peoples. This is a remarkable characteristic of that polity as it now finds itself. to which the state itself appears to subscribe. 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.32 J.A. as Aboriginal/ Australian history p e r h a p s has not. it must continue to be practised. to seek their remedies in the uni­ verse of jus naturale. w h e r e wars a n d treaties are recognised c o m p o n e n t s of history. which has n o history. even today.G. 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. A o t e a r o a / N e w Zealand history has. and to h a p p e n . as well as be rewritten. in virtue of Waitangi. 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. T h e admission of Maori to jus gentium was imperfect a n d often denied. a n d thus obliging t h e m . 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. 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. However. 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 their relegation to a history of dispossession. b u t . 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.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. 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. 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. 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 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. Because it is seen as unful­ filled. 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 . first by Maori and by pakeha themselves. the history of their dispossession of rangati­ ratanga contrary to the promises of the Treaty. Unless their response is o n e of c o m p l e t e denial. 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. 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. that the offer was insulting. 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. (The circumstance that all these concepts are becoming debatable a m o n g Maori themselves is important to the politics of history. 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 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. At issue is n o t rights a n d justice alone.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. survival a n d recovery. but the identity a n d history they define. More pertinently.e n d e d .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 point out that the Treaty was m a d e by the Crown before t h e r e was a pakeha people. so that they b e c o m e the history that the nego­ tiants now have in c o m m o n . 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. pakeha r e s p o n d that they recognise the history that calls for remedial justice. 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 . 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. Oliver 1997: 135-45).

may quite 10 11 .34 J.the o p e r a t i o n of social. b u t also between pakeha a n d pakeha .a n d between t h e m a n d the land (in Maori.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 . but has b e e n m a d e by Maori interacting with Maori. the dis­ p u t a n t s c o n d u c t their history by maintaining its ambivalence. T h e Treaty as history c a n n o t a n n u l . n o t exercising sover­ eignty so m u c h as advising it of its perpetually disputable character.G. T h e Treaty of Waitangi r e n d e r s New Zealand sovereignty perpetually debatable. 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 o u g h only Maori can write it.defining their own history by its own contestations . Maori a n d pakeha qualified to engage in it. since every p e o p l e should possess alternative histories of itself. T h e r e are signs that such a historio­ graphy is taking shape. 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 ) . They acknowledge the central unfairness of colonial history. It will not diminish the i m p o r t a n c e of the Treaty in providing an alternative to it. a n d the others will include themselves.A. English a n d Maori. that colonisers h a d a better chance of making their own history than the colonised. 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. cultural a n d e c o n o m i c forces . Like a written or an unwritten constitution. but for the o t h e r it is not. This d e b a t e will be with Maori centrally. 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. for o n e p e o p l e . the exis­ tential imbalance that. pakeha a n d whenua. b u t the Treaty is only a part of that history. b u t the Treaty remains unfulfilled. it is the place . a n d if sovereignty is n o t mana. 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. they reply that they have always known that. a spiritual and histori­ cal essence a n d identity. the d e b a t e going o n (as in the two texts. 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. te whenua) they now inhabit. 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. b u t recasts sovereignty as a perpetual debate between Crown. of sovereignty. if n o t exactly the loca­ tion. This is an idealist a n d historicist a c c o u n t of a situation that actual his­ tory . retention a n d recovery of its mana. In c o n d u c t i n g this debate. is about the loss. It has b e e n m a d e a d e b a t e over the exercise a n d character. Meanwhile. P O C O C K Maori. which is why it is paradoxically theirs. 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 a his­ tory to b e possessed differently. O n e g r o u p may have its own mana a n d history. although it can act u p o n . Sovereignty rests on the Treaty. but with Maori a m o n g others.in Maori the marae.

that inhabitants of the c o u n t r y might cease dividing themselves into tangata whenua (people of the land. however. in the evident belief that to negotiate these things is to negotiate t h e m away .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. t h e r e may develop transitive. a series of ad hoc a g r e e m e n t s negotiated between separate identities. I o n c e suggested. But if we discover histories that we must d e b a t e with o n e another. 17-29). T h u s the Haida Gwaai canoe. It might c o n t i n u e forever to p r o d u c e contested yet sovereign decisions. which the m o u t h of the steersman (gubernator) will enact. U n d e r such condi­ tions. O n e recalls the Hunting of the Snark. in the great sculpture by the late Bill Reid chosen by J a m e s Tully to illustrate his Strange Multi­ plicity. which is why the reconstitution of New Zealand as Treaty is interesting. a step towards the recovery of sovereignty a n d . o n the g r o u n d s that b o t h were tangata waka. Suppose. 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 .in however strange a multiplicity . 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. or Maori) a n d tau iwi (strangers.of mana.into whose h a n d s . Perhaps the world market requires us to be n o m o r e than shape-changers that may be directed. we are n o t usually told. at a c o n f e r e n c e of the New Zealand Histori­ cal Association. a r o u n d which two peoples should crystallise as participants. unaware of any history save the fluidity of the global market. 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. T h e Treaty process. languages that we speak to 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 .WAITANGI AS MYSTERY OF STATE 35 possibly b r i n g to an e n d . it is reasonable to i n q u i r e what it is that sovereignty can d o . or everybody else). however. a n d wonders if they will ever arrive at a collective decision. 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. 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. O n e may even identify some forces o p e r a t i n g to d o so. if ambivalent. peoples of the s h i p . It might be d o n e . 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. 12 . 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. 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.

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. 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. a language of interpretation and critical reflection on the practices of these societies in the institutions of law. western political thought. T h e motley language of western political t h o u g h t has two well-known characteristics. Western political theory h e r e is used broadly to refer to the political. western. and partly given rise to. for lack of better terms. 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 . even t h o u g h they are constrained to use it. These theo­ ries make u p part of the complex. and they have been raised in. policy a n d academia. 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. Indige­ n o u s p e o p l e have. In short. noni n d i g e n o u s political thought. North a n d South Ameri­ can.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. the com­ plex language (or multiplicity of languages) of m o d e r n . 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. in a slightly m o r e technical a n d abstract key. legal a n d social practices of these societies a n d . indigenous political theories a n d a complex a n d contested shared indigenous language of political 36 . legal a n d social theories. 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. It is a language woven into the everyday political. shared a n d continuously contested languages of m o d e r n . 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 .

. 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. a n d also over time. 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 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. 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. 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. 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. 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. 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. 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 . T h e s e two languages are n o t closed. first. where colonisation is the lived reality. Despite wide variation. This p r o b l e m a t i c relation takes different forms in C a n a d a . 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. 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. the US.T H E STRUGGLES FOR AND OF FREEDOM 37 thought. when noticed at all. 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. 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. b u t massively u n e q u a l in their effective discursive power in the present. New Zealand a n d Australia. as a m a t t e r of fact. the o t h e r a subaltern language which. 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. as the massive dis­ play of force at K a h n e s a t a k e / O k a . York & P i n d e r a 1991). 1 Internal Colonisation and Arts of Resistance I n t e r n a l colonisation refers.) To address t h e m effectively. 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 . (These questions arise m u c h m o r e frequently in i n d i g e n o u s societies. 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 . Q u e b e c in 1990 was d e s i g n e d to show (MacLaine & Baxendale 1991. varying widely within each of these societies in relation to different i n d i g e n o u s societies.

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. 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. 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. aboriginal peoples or First Nations of C a n a d a a n d so o n . T h i r d . 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. directly a n d indirectly. 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. 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. they encoun­ tered free. 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. 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. 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.38 JAMES TULLY domestic. 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. 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). a n d r e s p o n d i n g to the resistance of indigenous peoples. or indirectly. 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 . d e p e n d e n t nations. 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. within the stable structures of incorporation. a n d vice versa. the newcomers gradually displaced the rapidly 2 3 . either directly. British a n d then Canadian and American g o v e r n m e n t s . 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 . wars a n d the destruction of indigenous societies. 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.5 million in Canada a n d the US). T h e r e have b e e n four major dimensions to these processes. 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 r o u g h the spread of E u r o p e a n diseases. Second. t h r o u g h various techniques of assimilation. First. vibrant. Second.

unresolved con­ tradiction a n d constant provocation at the foundation of internal . or depopulation (genocide). the US. peoples. forestry.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. In external colonisation. as Canada. 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). Australia a n d New Zealand have d o n e in relation to the former British Empire. T h e problematic. a n d now colonised. high levels of substance abuse. 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. high rates of death at birth. With inter­ nal colonisation. or even the appropriation of self-government (usurpation). 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. resources a n d jurisdiction of the indigenous peoples. where indigenous resistance has b e e n effective. a n d pre­ dictably. 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. b u t for the territorial foundation of the d o m i n a n t society itself. Fourth. incarcer­ ation a n d suicide for native peoples. 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. is not the appropriation of labour (as in slavery). mining a n d o t h e r forms of resource extraction). T h e essence of internal colonisation. This has modified the processes to some extent a n d created rela­ tions of cooperation. n o t only for the sake of resettlement a n d exploita­ tion (which is also true in external colonisation). sub­ standard housing. Rather. high levels of u n e m p l o y m e n t . 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. 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. therefore. for indigenous populations have increased threefold in this century. diet. low life expectancy. a p p r o p r i a t e d their terri­ tories by effectively exercising exclusive jurisdiction over them. 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. this is n o t possible. colonies a n d the imperial society coexist on different territories. in the early stages a n d again in the pre­ sent. fishing. for this has b e e n peripheral. education a n d health facilities. 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. inter-generational welfare dependency. although they comply a n d adapt (are de facto colonised). 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.

or to try to d e m o n s t r a t e . that they d o n o t have such rights. the discovery doctrine. o n c e a n d for all. 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. 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 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. T h e first type of strategy is that indigenous peoples could b e c o m e extinct. 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. 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 . 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. 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). 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 third a n d 4 . a n d the primitive or less-developed thesis are examples of discursive techniques employed. 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. the disappearance of the indigenous peoples as free peoples with the right to their territories a n d governments. 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. T h e p r e s u m p t i o n of Crown sovereignty. a n d is commonly over­ looked in the theoretical a n d policy literatures. 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 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. the assertion of sovereignty a n d the doc­ trine of discontinuity. either in fact. therefore.40 JAMES TULLY colonisation. They unsurprisingly would prefer to resolve it by regaining their freedom as self-governing peoples. 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 second strategy is to extinguish indigenous rights either uni­ laterally ( t h r o u g h conquest. since the beginning. It is the irresolution. or in deed. 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. However. It is n o t as obvious from the side of the colonising society. terra nullius.

the Statement of the Government of Canada o n Indian Policy of 1969. T h e first is assimilation. residential schools. a range of aboriginal g r o u p rights. the policy of the Reform Party of Canada. From the side of the ruling peoples.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. municipal-style self-government are examples of this approach. Difference-blind lib­ eralism. or at least claimants to. a n d fostering a co-opted native colonial elite to administer the system. 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 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. 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. dis­ possession. adop­ tion. In the latter case. 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. 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 . 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. the US. 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. O n c e o n e or m o r e of these strategies of extinguishment is presumed to be successful. dissolve the contradiction a n d legitimise the settlement (see section 2). T h e r e are two major c o m p e t i n g strategies of incorporation in Canada today. 5 6 . T h e m e a n s to this e n d are twofold: the o n g o i n g usurpation. where indigenous persons are treated like any o t h e r m e m b e r of the settler society. Australia a n d New Zealand. 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. exchanging native status for voting rights. and various forms of delegated. 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. this Goliath-versus-David rela­ tion is a political system that underlies a n d provides the foundation for the constitutional democracies of Canada. p r o g r a m s of de-indigenisation a n d westernisation. commonly called reconciliation.

polit­ ical a n d academic centres of the d o m i n a n t societies over the last 30 . indigenous peoples have devel­ o p e d a vast repertoire of infra-political resistance to survive a n d revitalise their cultures. First. a n d within it. Over the centuries. 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. health care. indigenous peoples c a n n o t confront t h e m directly in liberation struggles to overthrow occupying imperial powers. 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 ) .that are o p e n in response.42 JAMES TULLY F r o m the side of indigenous peoples. 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. education and territorial control. Given the overwhelming power of the d o m i n a n t societies. they exercise their freedom of manoeuvre within the system. there is always a range of possible c o m p o r t m e n t s . to keep indigenous ways of being in the world alive a n d well for the next generations. as decolonisation has standardly unfolded in the m o d e r n period. 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. to adapt these ways a n d stories to the present strategic situation. nations a n d federations. 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. to regain degrees of self-rule a n d control over their territories when possible. 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. indigenous peoples' struggle for freedom as peoples in resisting the colonial systems as a whole. 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). individually a n d collectively. in each country a n d t h r o u g h o u t the world of 250 million indigenous people. 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. a n d so to seek to transform internal colonisation obliquely from within (Alfred 1999a. Never­ theless. Scott 1990). to comply with a n d partici­ pate in the d o m i n a n t institutions while refusing to surrender.ways of thinking a n d acting . Second.

it is possible to consider how west­ e r n political theory contributes to the colonisation of indigenous peo­ ples. these theories serve either to legitimise or delegitimise the colonisation of indigenous peoples a n d their territories. 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. Briefly. W h e n they delegitimise the system in o n e way or another. 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. 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. legislative a n d constitutional c h a n g e . With a few notable exceptions. or serving as the language of governance and administration of the system a n d its conflicts. as the indigenous population was r e d u c e d and marginalised a n d internal colonisation firmly secured. 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 . 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. defending. 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. 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 . W h e n they legitimise internal colonisation by justifying. o n the o n e h a n d . 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. political theories are a discursive t e c h n i q u e in a practice of resistance.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. unilateral action by domestic a n d transnational resource c o m p a n i e s . 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. In late nineteenth-century Canada. Written within the larger language of political self-understanding a n d self-reflection of western societies in general. With this practical context in view. T h e reign­ ing ideology of the superiority of European-derived societies a n d the 8 . 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. treaty-making a n d o t h e r forms of political negotiations. western political theory has played the role of legiti­ mation in the past a n d continues to d o so today. the n e e d for further legitimation was correspondingly diminished.

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 . .44 JAMES TULLY inferiority of indigenous societies served as the taken-for-granted justifi­ cation for the removal of indigenous populations. Calder (1973). 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. reorganise and fight for their rights d u r i n g the first half of the twentieth century. C u l h a n e 1998: 37-72. 1996a: 148-200. who were seen as obstacles to the progressive exploitation of their lands. their activities did n o t make a significant impact on the public agenda until the 1970s. Royal Commission 1995a: 1-59. 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. Incredibly. Williams 1990. 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. Yet. Tobias 1991). 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 . 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. Pagden 1995. 1994). Tully 1993: 5 8 . 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. 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. as well as the c o n t i n u i n g colonisation a n d resistance. 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. 1996b: 9-64. U n d e r the cover of public complacency. T h e prior existence a n d sovereignty. 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. Although indigenous communities began to rebuild.9 9 . In the oft-repeated phrase of Mr Justice J u d s o n . 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.

So. 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. Smith 1995). Sparrow (1990) to Delgamuukw v. 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. This is what Indian tide m e a n s .T H E S T R U G G L E S FOR A N D O F FREEDOM 45 'when the settlers came. it reaffirms t h e system of internal colonisation. b u t serve to legidmise it. the c o n t i n u i n g colonisation of indigenous peoples a n d their ter­ ritories. 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. the lower courts. 1999). 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. 249-55. 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. 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. 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. Although t h e Nisga'a lost their appeal. ' 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. In a series of decisions from R v. 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. 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 C o u r t does n o t acknowledge that indigenous peoples possess any rights that pre-exist 9 . 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. 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. In so doing. organized in societies and occupying the land as their forefathers h a d d o n e for centuries. let alone chal­ lenge. First. the Indians were there. t h e federal Conservative Party when it was in office. 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. 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. espe­ cially when polling questions are posed in general terms (Warry 1998: 20-30. 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. a n d t h e o t h e r half of the general public. T h e Court advances four main steps to define these constitutional rights.

However. there was from the outset never any doubt that sovereignty and legislative power. 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. such as the freedom a n d equality of peoples. is that such rights derive exclusively from the distinctiveness of Aboriginal p e o p l e s as aboriginals. and indeed the underlying title. systems of laws a n d the occupation a n d use of their territories since time immemorial. . institutions a n d practices. self-governing nations. Because it does not make sense to speak of a burden on the underlying title before that title existed. Aboriginal title is a burden on the Crown's underlying title. 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. 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. a n d as constitutional rights thereafter. the Crown did not gain this [underlying] title until it asserted sovereignty over the land in question. .46 JAMES TULLY the assertion of sovereignty by the Crown in 1846 (in British Columbia) over the territory now called Canada. They d o n o t derive from any universal principles. the sovereignty of long­ standing. 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. which are the uni­ versal criteria of sovereignty a n d self-determination. to such lands vested in the Crown . a propo­ sition to which the Royal Proclamation of 1763 bears witness. As the Court explains with respect to Aboriginal title (the aboriginal right to l a n d ) : from a theoretical standpoint. 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. 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. aboriginal title crystallized at the time sovereignty was asserted. 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. or the jurisdiction of a p e o p l e over the 12 . 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. 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. 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. these activities. without their consent. 11 T h u s . Nev­ ertheless. 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.

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. 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 . Rather. For an indigenous people to possess a n d be able to exercise title to their land. and held communally. 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 ) . McNeil 1998: 2 . Following from the first two steps. customs a n d traditions they engaged in at the time of contact. ceremonial a n d economic rights. when administradve intervention in their internal affairs began in earnest. who are p r e s u m e d n o t to actually possess aboriginal title. T h e C o u r t has shown that a wide r a n g e of cultural.6 ) . yet similar to fee simple.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 . 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. It is a right to the land a n d its exclusive use. Nevertheless. T h e land may b e used for a variety of purposes. alienable only to the Crown. which d o n o t n e e d to b e distinctive to the Aboriginal community. the b u r d e n of proof is m a d e to rest with indige­ nous peoples. pre­ cisely the appeal that would call into question the basis of internal colonisation. including rights to the land. the onus of proof is not o n Canada to prove that it has the underlying title to all indigenous territories. b u t to b e making a claim to it before the Court. A limited right of self-government within the Canadian constitutional structure may also b e derived from aboriginal distinctiveness in future cases. 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. such as resource extraction. Aboriginal title is a dis­ tinctive or sui generis proprietary right. 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. 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. 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. a n d that the occu­ pation was exclusive (Delgamuukw 1997: 140-59. 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: 7-8). 13 14 .

political and economic community. distinctive aboriginal societies exist within. . the tide has still to be reconciled with the sovereignty of the Crown. 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 principle. and are part of.48 JAMES TULLY N o such proof has b e e n made. infringe the right accordingly. T h a t is. As in the n i n e t e e n t h century. . pro­ tection of the environment or endangered species. 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 . and the building of infra­ structure and the settlement of foreign populations to support those aims. 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. T h e sorts of objectives that justify infringement are: the development of agriculture. mining and hydro-electric power. there are circumstances in which. 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. can justify the infringement of aboriginal title. In summary. in order to pursue objectives of compelling and substantive importance to that community as a whole (taking . 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. a broader social. a n d presuming the land a n d resources have not been developed in the interim. the Crown must take into account the justifiable objectives of the larger Canadian society that conflict with an Aboriginal land right. 166-69. the general economic development of the interior of British Columbia. and compensate the aboriginal people for the infringement. (Delgamuukw 1997: 165. T h e fourth a n d final step is that once a claim to Aboriginal title is proven. Even if such a proof is successful in the future. are the kinds of objectives that are consistent with this purpose and. 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. 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. 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. forestry. over which the Crown is sovereign.

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. some limitation of those rights will be justifiable. 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 . which shows fairly clearly what can be expected from the p r e s e n t treaty process. guided by the framework the C o u r t sets out. Twenty years of negotiations led to the Nisga'a Final Agreement in 1998. equally a necessary part of that reconciliation. They are an Aborigi­ nal p e o p l e or a first nation of C a n a d a . Aboriginal rights are a nec­ essary part of the reconciliation of aboriginal societies with the broader political community of which they are a part. 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. 16 T h a t is to say. 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 . the Nisga'a Nation negotiated an Aboriginal right of limited. western-style self-government. 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. 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 . 17 . the internal colonisation of indigenous peoples itself provides the ultimate justification for the infringement of the rights they have within Canadian society. the provincial g o v e r n m e n t of British Columbia.b u t to achieve reconcilia­ tion by negotiation r a t h e r t h a n litigation. where the objectives furthered by those limits are of sufficient impor­ tance to the broader community as a whole. wildlife a n d migratory birds out­ side Nisga'a lands. the Nisga'a voluntarily gave u p to the Crown in the negotiations 93 per cent of their traditional territory. F u r t h e r m o r e . Unlike the Court. after 1990. 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. r a t h e r than r e t u r n i n g to an expensive retrial.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). a n d approximately $200 million in compensation. Like the a p p r o a c h of the S u p r e m e C o u r t . they are allotted Aboriginal title in the form of an estate in fee simple proprietary right u n d e r the constitution. limits placed on those rights are. 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 . Over the r e m a i n i n g 7 per cent (approxi­ mately 2000 square kilometres). some rights with respect to trap lines.to reconcile the prior presence of Aboriginal peoples and the assertion of sovereignty by the Crown . 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. In Delgamuukw.

First. 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.50 JAMES TULLY with m o r e powers than a municipality yet less than a province. as we have seen. As far as I am aware. or at least 61 p e r cent of its eligible voters. but any rights they may have or c o m e to have as indigenous peoples from any o t h e r source. Second. has voluntarily s u r r e n d e r e d their rights as indigenous peoples. a n d accepted their status as a distinctive minority with g r o u p rights within Canada. Nevertheless. In this case the recourse to d e e d . 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 .a direct confronta­ tion in a revolution to overthrow the colonial system . this is the first time in the history of Great Turtle Island that an indigenous people. which does not acknowledge such rights. 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 . 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. they struggle against the structure of domination as a whole a n d for the sake of their freedom as peoples. 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. the legal effect is the same. A p e o p l e can struggle directly against colonisation in two ways: by words a n d deeds. 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. the treaty stipulates that the rights set out are the full and final settlement of the Aboriginal rights of the Nisga'a. 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. For greater clarity. 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 . n o t only u n d e r section 35. unlike the Court. to delegitimise t h e m a n d to test the claims of indigenous peoples for a n d of freedom.is next to impos­ sible. . they struggle within the structure of d o m i n a t i o n vis a vis techniques of government. 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.1 ) . Therefore. not to mention surrendering over 90 per cent of their territory. Although the t e r m is 'release' rather than the traditional 'extinguish­ m e n t ' .

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. 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. 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. each with exclusive jurisdiction over its territory. f o r t h c o m i n g ) . 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 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. firmly held in place by the day-to-day activities that r e p r o d u c e these societies. 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. 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. monological a p p r o a c h is to . 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 . 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. 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. By lis­ tening to a n d r e s p o n d i n g to these presentations in critical discussions. it is possible to struggle in words by confronting a n d seek­ ing to invalidate the two legitimating hinge propositions. serve to legitimise the system of internal colonisation. two underlying p r e s u m p t i o n s . Given the m o d e r n system of i n d e p e n d e n t nation states. • to test the alleged validity of various legitimations of their incorpora­ tion. Although it is impractical to struggle for freedom in d e e d by direct confrontation. A second-best. T h e s e intercultural dialogues are the best a n d most effective way. These two presumptions reinforce each other. 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.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.

a n d so were equal in status to E u r o p e a n nations. To show that indigenous peoples are self-determining peoples with jurisdiction over their territories entails that the standard legitimations of their colonisation are false. have not given their consent. T h e question is. that is. This second step is fundamental to legitimation. this step has n o effect o n the indigenous nations of the territories over which sovereignty is asserted because these nations. they met the criteria of free peoples a n d sovereign nations in the law of nations. occupying a n d exercising juris­ diction over their territories. As a c o n s e q u e n c e . 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.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. 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. the three critical exercises g o together. 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 . However. employed by indigenous a n d noni n d i g e n o u s scholars over the last forty years. America was i n h a b i t e d by indigenous peoples. some settlement. for it follows from the basic principle of western law. To legitimise their exercise of sovereignty on Great Turtle Island. and the third exer­ cise t h e n follows. divided into separate stateless nations. since these legitimations pre­ suppose that indigenous populations are n o t peoples. 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. 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. how can the Euro­ p e a n s legitimately settle a n d establish their sovereignty. First discovery. 22 23 . who governed themselves by their own laws and ways. unlike the other European nations. In the second-best a p p r o a c h . 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 . the E u r o p e a n nations had next to gain the consent of indigenous peoples. 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. 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.

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. 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. a n d incorporates and subordi­ nates t h e m without justification. but. Third. prior a n d c o n t i n u i n g sovereignty' does n o t refer to state sovereignty. subject to review a n d renegotiation when necessary. indigenous peoples agree to share jurisdiction with the newcomers over the remaining. lawsuits. 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. protests. con­ sequently. self-governing. Instead. the prevailing legitimations of exclusive Crown sovereignty are indefensible. First. international treaties. T h e indigenous nation in question thus has the right to appeal not only to domestic courts for redress of infringement. Such a stance constitutes a g e n u i n e resolution of the problem of inter­ nal colonisation. then it fails to recognise the status of indigenous peoples. If the Crown p r e t e n d s that the treaty negotiations take place within its overriding jurisdiction. that this status has not been legitimately s u r r e n d e r e d . rather. 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. 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 . and coexisting entities. and. a n d the treaties that follow from a g r e e m e n t on both sides are. In summary.THE STRUGGLES FOR A N D OF FREEDOM 53 To gain the consent of indigenous peoples. Second. by definition. r e n d e r i n g the negotiation illegitimate. T h e negotiations are nation to nation. overlapping territories so that o n e party to a treaty does not extinguish its rights a n d subordinate itself to the other. if this fails. a n d to deal multilaterally rather than unilaterally with the legitimate objectives of the larger soci­ ety. a stateless. negotiations a n d uncertainty. as circumstances change a n d differences a r i s e . 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. popular sovereignty on the territo­ ries they reserve for themselves a n d the newcomers are n o t to interfere. but. they treat each o t h e r as equal. 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. to inter­ national law. 24 25 . U n d e r these circumstances. like any o t h e r n a t i o n . that the indigenous peoples con­ tinue to exercise their own stateless.

54 JAMES TULLY self-governing a n d a u t o n o m o u s p e o p l e . 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. In an advisory o p i n i o n of the International C o u r t of Justice. Australia a n d New Z e a l a n d . such as the right of self-determina­ tion. H e n c e . equal in status. but not in form. and eo ipso. indigenous peoples are n o t recognised as colonised peoples to w h o m the principle of self-deter­ mination applies. 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 . to the Canadian state. 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. Moreover. 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. 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 . the US. T h e relevant consideration is if they have social and political organisations. 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 reason for this is that international law. 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. 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 extensive research a n d reasoning that s u p p o r t their prior a n d coexisting sovereignty also. 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. Notwithstanding the availability a n d legitimacy of this resolution. the UN 26 27 28 29 3 . 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. with a willingness to negotiate shared jurisdiction of land a n d r e s o u r c e s . In addition. " Despite such occasional glimmers of h o p e . 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 . Western Sahara. 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. including those of Canada.

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. shown t h e m to be dubious. 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. 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. 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. T h e r e are two cogent responses to this argument. without introducing a biased criterion that the ICJ has said to be inadmissible. First. 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. the legitimacy of the present territorial integrity of existing nation states. 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 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 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. 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. 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 . Even so. it presupposes what is in question: namely. a n d defended the application of the principle to indigenous peoples. indigenous a n d non-indigenous scholars have criti­ cally e x a m i n e d these rationalisations. 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. 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 . As in the domestic case. a n d thus the principle of self-determination enunciated in the Declaration applies to t h e m .

information. 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. 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. This kind of post-Westphalian. 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. multiple a n d overlapping governance a n d jurisdiction is said to be the general tendency of global politics in many spheres. the exercise of self-determination consists of decolonisation a n d the recognition of indigenous peoples as free. only the tenacity by which existing states hold on to their exclusive jurisdiction.s/iarafjurisdiction over lands a n d resources on the basis of mutual c o n s e n t . with . Given t h e dispossession. 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 . 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. education. 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 . they are n o t colonised b u t internally self-determining. equal a n d self-governing peoples u n d e r international law. 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 . religion. environ­ m e n t a l practices a n d m e m b e r s h i p . 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. inherited from an earlier period in which state sovereignty ruled s u p r e m e . 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.56 JAMES TULLY lonisation a n d the establishment of sovereign nation states with exclusive jurisdiction over their territories. Since societies with systems of internal colonisation 35 36 37 38 39 . T h i s c o m e s in two varieties. 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 . welfare. If a people exercise such a right. 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 . Even so. housing. e c o n o m i c activity. including culture. health. it is b e n e a t h c o n t e m p t . free themselves from the d o m i n a n t society a n d set u p their own nation state. land a n d resource m a n a g e m e n t . 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 e r e . For indigenous peoples. 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.

T h e principle o r right of self-determination is. 138-63). 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. It is a form of indirect colo­ nial rule. which functions as a structure of domina­ tion. 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. therefore. 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 . 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. 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 . 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. A people are said to govern themselves. 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. is imposed over indigenous peoples a n d their territories without their con­ sent a n d to which they are subject. is n o t a form of self-determination or freedom. I n d i g e n o u s peoples are not recognised as peoples u n d e r international law. Rather. 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.t h e very reason they t u r n e d to international law. 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. either exclusively or shared. T h e condition of consent holds for legislation a n d even m o r e funda­ mentally for t h e constitution. 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. As a result. which 40 41 . Finally. An alien constitution. their jurisdiction over their territories is n o t recog­ nised. n o t unlike earlier forms of British indirect colonial rule. 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. b u t as peoples u n d e r domestic law. a n d thus to b e a free p e o p l e . Internal self-determination. Yet. on any plausible account of its contested criteria. 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 . the constitution of s u r r o u n d i n g nation state.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. 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. then they are neither self-governing n o r self-determining. Their internal self-determination exists within the constitution. when the laws by which they are governed rest on their consent o r the consent of their representatives. thereby eliding t h e resolution indigenous people offer. Also.

they d o so obliquely. Americans. 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. Scott 1990). which is i m p o r t a n t in itself. A n o t h e r is that propositions which play the h i n g e role in a society . Zerilli 1998). 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 . 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 . 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. and i n n u m e r ­ able o t h e r arts of resistance . 343. 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. not the river (Wittgenstein 1974: 341. O n e reason for this inertia is the overwhelming power and interest of the existing nation states with internal indigenous colonies. If such hinge propositions a n d the social system they legitimise c h a n g e over time. These arts of words a n d deeds have b e e n practised since the beginning of colonisation. of c o n n e c t i n g reserve and off-reserve native people.of working with a n d against.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 .58 JAMES TULLY Canadians. 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.constitute a vast field of h u m a n freedom. n o t unlike any o t h e r colonial system. Conse­ quently. of indigenising the d e g r e e of self-government a n d land use recov­ ered.are relatively i m m u n e from direct criticism. male colonial elite. In addition to the .the riverbed. as East T i m o r tragically illustrates. 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. 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. of complying and a d a p t i n g while resisting the allure of the co-opted native. 655. n o t objects of criticism . for reasons that d o n o t withstand public scrutiny. 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 . Yet. 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 irresolution thus remains in theory a n d practice.

8 . indigenous languages a n d political ways. they are mostly quotidian acts of protecting. the revitalisation of justice circles. T h e persistence of traditional medicine. gathering together. recovering. 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. 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. a n d it is the big. Simpson. teaching a n d a d a p t i n g entire forms of indigenous life that were nearly destroyed. healing a n d child-rearing practices.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. 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 . this volume). revitalising. 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 . keeping. . abstract questions of normative legitimation that tend to capture the attention of most of the field.

evaluated those reasons in the light of developments in Australian law a n d society. Queensland (No.' Wik Peoples v. that is implied in the recognition of indigenous title . Queensland (per Gummow J) 2 In Mabov. to e x a m i n e the significance of Mabo's. 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. of mediated sovereignty. They have a marked s 4 60 .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. It explores the shift in Australia's constitutional foundations to which G u m m o w J adverted in Wik. It describes the sense of m e d i a t e d n a t i o n h o o d . recognition of indigenous title for i n d i g e n o u s / n o n . It explored the reasons for the denial of indigenous title.a n d quite properly . Queensland (No. a n d suggested how the law should be reconceived. Like many j u d g m e n t s . 2)] away from what had been understood at federation.i n d i g e n o u s relations over the c o m i n g decades. but their effects are not confined to a realm of ideological abstraction. 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 .for indigenous peoples a n d for Australia as a whole. there was a perceptible shift in that foundation [in the decision of Mabo v.backward-looking. This c h a p t e r is therefore about the impact of Mabo on Australian con­ stitutionalism. in the passage q u o t e d above. By that. I d o not mean its effect on specific rules of con­ stitutional law. My p u r p o s e h e r e is to look forward. 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. Mabo was primarily .

it mischaracterises the very nature of indigenous title as a legal doctrine. 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 . T h a t doctrine does n o t merely acknowledge what is.that can go forward in parallel. a novel form of title. Mabo is a b o u t the restructuring of that relationship. b u t because it misunderstands what the recognition of indigenous title necessarily involves. a n d then enforcing the r e m a i n i n g inter­ est. placing it ( o n e hopes) o n a m o r e positive. In emphasising the transformative potential of that c h a n g e . not just because a m o r e ambitious interpretation should be preferred as a matter of policy. 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. b u t they remain relatively confined. T h a t view of indigenous title is. 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. however. T h e suggestion that Mabo has implications for Australian constitu­ tionalism n e e d s defending.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. 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. Rather. O n that view. for o n e often hears a m u c h narrower inter­ pretation of its significance. 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. Mabo does n o t p u r p o r t to describe the incidents of that relationship in detail. what new constellation that recognition has i n t r o d u c e d into Australian constitu­ tionalism. m o r e acceptable foundation. Indeed. Mabo attempts to c h a n g e the basis o n which that interac­ tion occurs. its implica­ tions may b e important. altogether too limited. slipped into the structure of Australian property law. governmental practice a n d institutional reform. Perhaps it is n o t quite accurate to say that Mabo initiates the process of adjustment. 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. since a measure of mutual interaction has always characterised Aus­ tralian history. 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. 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. in which o n e h o p e s that there will be 5 .o n e indigenous. 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. to Australian law. Mabo is n o t a b o u t the recognition of two utterly sepa­ rate spheres . the o t h e r non-indigenous . 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). T h o s e incidents c a n n o t b e described in advance.

this is patent in the j u d g m e n t s . 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. a n d particularly at the doctrine of native title elaborated in those cases. the recogni­ tion of indigenous title a n d the mediation of sovereignty that it entails have a h a r d institutional edge.) Thus. 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. Mabo certainly does recognise a form of land title. 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. Native title d o e s involve the acknowledgement of a u n i q u e set of rights to the land. 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. In o n e sense. 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.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. I will then move to a m o r e general plane . but in which relative autonomy will be com­ b i n e d with a measure of interaction a n d mutual influence. Finally. a very general plane . so that the title is recognised but not created by the c o m m o n law. ( O n e hopes that the influence will i n d e e d be mutual. the law of indigenous title recognises n o t just a set of rights a n d obligations with respect to land. 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. I begin by looking at the principal decisions of the High Court of Aus­ tralia. 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 attempt to bring those reflections down to institutional specifics: how should Aus­ tralia go on.to explore what I take to be the broad implications for Australians' sense of their country. m u c h like any o t h e r common-law title. 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. 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. T h e nature and incidents of native title must be ascertained as a matter of fact by reference to those laws and customs. and not entirely a matter of non-indigenous pressure o n indigenous traditions.indeed. 6 . 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.

in the very act of recognising indigenous title. Brennan J acknowledges in Mabo that indigenous orders were n o t frozen at the m o m e n t of contact. indigenous societies may lack 'sov­ ereignty' . It acknowledges. however. T h e capacity for c h a n g e suggests a degree of political autonomy (at least de facto). T h e recognition. It is this c o n t e m p o r a r y . that indigenous societies form auto­ n o m o u s legal orders. t h o u g h real. n o t merely the possession of a static set of rights . 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 . 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. 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. In that sense. 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 recognition of indigenous title necessarily involves an acceptance. until obliterated. the courts simultaneously extinguished its vitality. T h e a u t o n o m y may exist o n sufferance. but then must be utterly displaced to the courts.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. This suggests something very different from indigenous title as a con­ fined set of rights. It would b e bitterly ironic if. a n d moreover. 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 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 .including the capacity for change. which is simply absorbed into the c o m m o n law. at least implicitly. O n e must be careful not to overstate this implicit recognition of politi­ cal autonomy.MABO AND AUSTRALIAN CONSTITUTIONALISM 63 T h e action of these legal orders is n o t confined to the past. a n d it is n o w o n d e r that that position was rejected in Mabo. b u t if that p o i n t is chosen. of that autonomy.certainly exists. 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. liable to erosion or obliteration. that those orders c h a n g e over time. at least provisional. But in any case. If this seems implausible . a measure of nor­ mative a u t o n o m y . n o t the pre-contact. 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. indigenous custom that pro­ vides the c o n t e n t of native title.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 .

o n c e subjected to threat. 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). " Before colonisation. Why would they? T h a t latter right only makes sense within the context of an overarching colo­ nial sovereignty.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 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. 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. for example. in that sense.64 JEREMY WEBBER to land. 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. Rather. To begin. It is not at all unfamiliar to see fundamental interests recognised as rights. 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. 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. the need to express indigenous interests as 'rights' may only arise o n c e indigenous societies are confronted with colonisation.p e r h a p s in distinctively indige­ n o u s conceptions of law. T h e whole law of fiduciary obligation. indigenous societies cer­ tainly were a u t o n o m o u s a n d governed themselves. the interests may well still exist . 'sovereign'. 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. 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 most obvious in the case of rights to a measure of governmen­ tal autonomy. T h a t progression lies at the origin of virtually all common-law a n d equitable rights. But it is questionable w h e t h e r they would have con­ ceived themselves as having a 'right' to self-government. 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. 10 . 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. 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 ) . 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. This is true not just in the cata­ clysmic sense that some indigenous rights have been extinguished. Before t h e n . for example. 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. the Delawares a n d certain o t h e r peoples did with respect to the Iroquois (Jennings 1987: 75). perhaps merely as the way things are . They were.

Even t h o u g h native title does protect entitlements that existed pre-contact. T h a t context inevitably shapes the rights in a myriad ways. Rather. Perhaps the most fundamental is tied u p with the very idea of law in the western legal tradition.7 3 ) . T h e fact that the right emerges only in response to challenge does not diminish its force in the slightest. like native title. 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 . B e r n d t et al. 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 .that rights are fashioned in o r d e r to protect fundamental interests from chal­ lenge. to identify a distinctive category of 'law' apart from m e t h o d s of 12 13 . the existence of rights requires precisely the web of social recognition that exists only u p o n the formation of society. Myers 1986: 103-58. O n the contrary. 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. 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. a n d ultimately a fully elaborated set of property rights (Locke 1986: 327ff). Those theories often claim that rights exist in the state of nature. a n d especially within a superimposed legal sys­ tem. T h e challenge generates the n e e d for a system of obliga­ tion. This is also t r u e of rights which. o n e enforced by specialised tribunals. which individuals in the state of n a t u r e simply act u p o n . T h a t was manifestly n o t the case. in the state of n a t u r e . it does so within a pro­ foundly c h a n g e d context. But t h e r e is a n o t h e r way of think­ ing about those allegories. t h e r e may be less emphasis o n rules. a n d their particular form is shaped by the specific context a n d nature of that challenge. in which the rights themselves d o not exist. 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. 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. It may b e difficult. T h u s . Maddock 1984. the n e e d to appropriate exists in the state of nature as a compelling interest . 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 . 1993: 5 8 . as rights. 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. in Locke. for example. there may n o t be the same emphasis o n the posited quality of law. before the formation of society. Rather. then. 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.a fundamental prerequisite of survival.MABO AND AUSTRALIAN CONSTITUTIONALISM 65 I n d e e d . 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. in which 'law' is generally considered to capture only a subset of social n o r m s .

Creating an Aboriginal Land Council.indeed is of its essence . n o t the protection of the pre-contact interests themselves.66 JEREMY WEBBER social o r d e r i n g generally. a n d results from the fact that o n e is nec­ essarily faced with better or worse accommodations. It is especially acute in Canada. 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. where the rights enjoy constitutional protection. 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. C. But the r e m a i n i n g ambivalence is real. often conferring a measure of authority on individuals who are not themselves traditional owners of the relevant land. 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. But there is nevertheless a mea­ sure of translation a n d adjustment in the very act of recognition. comprising many peoples (as is the case with Land Councils). This inevitably affects the enjoyment a n d control of the interest. 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. 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. As H.a n d d o n o t share the view that indigenous interests can b e respected in a pristine. 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. in indigenous societies. What is o n e respecting? All social practices? All those that have. pre-contact form (neither does C o o m b s ) . 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 . 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. This is especially true when the bodies charged with hold­ ing or administering the title are umbrella groupings. an obligatory character? Only those that are analogous to property rights. t h r o u g h which the inter­ ests are henceforth regulated a n d exercised. o n e often e n c o u n t e r s ambivalence about statutory regimes. Indigenous rights are mediated rights (Rose 1996: 35). 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 . For that reason. 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. Inevitably. 14 15 16 . This is p a t e n t in legislative regimes for the recognition and adminis­ tration of native title. and this process may well be u n e q u a l .

the development of new indigenous institutions goes h a n d in h a n d with the recognition of indigenous title. the extensive political structures of the 19 . Lockhart J. T h e Native Title Act 1993 (Cth) allowed for the recognition a n d funding of 'repre­ sentative Aboriginal/Torres Strait Islander bodies'. In the year following Mabo. 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 . 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.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. but have e m e r g e d out of the process of advocacy for a n d litigation of indigenous claims. Very frequently. . these structures have not simply been imposed by legislation. Thus. 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. 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. Similarly in the Canadian context. 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. speaking for the Full Court. . 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). This is clear in specialised regimes.which led to the adop­ tion of the Aboriginal Land Rights (Northern Territory) Act 1976. 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. 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. The Land Rights Act was created to reflect the rights and obliga­ tions that arise from traditional t i t l e . 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. 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. a n d have taken that into account in their adjudi­ cation of native title. which could facilitate the preparation of claims a n d represent claimants in proceedings. 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. 18 Indeed.

Second. T h e claimants themselves must decide w h o should bring the action. 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 . in the n a m e of the people .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. the court may ultimately have to d e t e r m i n e who holds the title. LaRusic 1979. 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. the negotiating structure was transformed into the regulatory agency {James Bay 1976: section 24. 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 recognition of i n d i g e n o u s title is simultaneously a recognition of that political capacity. attention to political organisation a n d the d e v e l o p m e n t of institutions. if the action is successful. 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.is the successor of a subcommittee created to deal with wildlife issues during the negotiation of that Agreement. held by a collectivity. They are mediated. Finally. Fishing and Trapping Coordinating Committee . for the g o o d reason that despite their fundamental character. I n d i g e n o u s societies are. first. T h u s . surviving from the period before contact. as in Wik. T h e court can be drawn into these issues if the form of the action or the entitlement to sue is chal­ lenged. the principal regulatory agency u n d e r the James Bay and Northern Quebec Agreement of 1975 . This is true. by the very doctrine of indige­ n o u s title itself. I n d e e d . T h e recognition of native title involves. 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). translated into forms susceptible to protection within a non-indigenous legal system. 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. the indigenous interests are not simply absorbed into the gen­ eral law in their pre-contact form. which have their own legal orders and their own continuing capacity for legal change. Especially when o n e is dealing with a c o m m u n a l title. 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. Native title is m o r e a b o u t adjustment a n d adaptation than the conventional view of 20 . It is intrinsically b o u n d u p with issues of political organi­ sation a n d self-government. a n d how that entity can act to avail itself of the interest. Sometimes entitlements are created for the first time in the act of recog­ nition.' They have to decide how decisions with respect to the litigation are to be taken. L a n d m a n n 1988: 15). Moreover.the H u n t i n g . as a necessary concomitant.as a whole?).clan? lan­ guage group? . these questions may involve difficult issues of political organisation a n d control.

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'. T h e recasting of land law is unlikely to h a p p e n in such a thorough-going fashion. at some historical m o m e n t . 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. 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. 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 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. 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 .a form of t e n u r e . Nevertheless. 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.MABO AND AUSTRALIAN CONSTITUTIONALISM 69 native title . 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 n d originally developed without any t h o u g h t for its possible interaction with indigenous title. Mabo involved a reconsideration of the feudal foundations of Australian land law. 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. 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. 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. T h e majority held that that was neither required n o r appro­ priate. in the pre-contact legal orders of the indigenous peoples. 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. extensively used in Australia. 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. held by the Crown. based on statute. Shortly after the decision in Mabo. a n d therefore declined to d o s o . T h a t m u c h is uncontroversial.as simply a n o t h e r property interest incorporated within non-indigenous land law . 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. i n h e r e n t in the c o m m o n law conception of a lease. a n d having incidents that are in some ways materially different from c o m m o n law leases. by the Crown.presumes. g r a n t e d o u t of Crown lands subject to indigenous title. 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. this would have excluded native title. If so. This n e e d for adjustment is also t r u e o n the non-indigenous side.

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. adaptive and. if the j u d g m e n t is retro­ spective. between specific individuals or groups a n d specific tracts of land. 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. b u t the ini­ tiation of a longer process of interaction. the prohibition o n the alienation of indigenous lands except to the Crown). each with its own system of law. In o t h e r words. good or ill. a n d they would then enforce these specific entitlements. 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.70 JEREMY WEBBER property. 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. should have b e e n ) dealt with before non-indigenous settle­ m e n t of those lands. T h e reason is simple: that is n o t the .' T h u s . e m a n c i p a t i n g itself from its feudal roots. mutual adaptation a n d incite­ m e n t to reflection a n d reform. (Slattery 1987) This p o i n t bears emphasis. in an incremental and lawyerly fashion. Because of the chal­ lenges of adjustment . Instead. u n d e r the various indigenous systems of law. 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. Native title is about the co-existence of partially a u t o n o m o u s societies. • the proposition that that title should be (or. relate to o n e another.because of the sometimes profound differences of context a n d forms of social o r d e r i n g . non-indigenous system of land law. the courts would seek to d e t e r m i n e precisely the relationship. especially in N o r t h America where it originated. 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. And decisions such as Wik may sug­ gest that Australian land law is. a n d • regulation of the m o d e of acquisition (for example. But in fact. that must in some fashion. 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.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. even in non-indigenous law. 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. in a b r o a d sense. 24 Judicial Strategy This intersocietal. 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.

or you will be in violation of those rights. T h a t is true of the Meriam Islanders. 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. 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 internal administration of indigenous title is. 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. this o n c e m e a n t the detailed regulation of the mechanism of land acquisition across the cultural boundaries. 6 5 1 . title to land is n o t collective if by that is m e a n t that land is. 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 L . 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 . It does not absorb them.MABO A N D AUSTRALIAN CONSTITUTIONALISM 71 purpose of the law of indigenous title. 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. whose rights were the subject of the action in Mabo (Mabo 1992: 87. Sharp 1996: 132-35). in very large mea­ sure. but this is probably too tidy. n o t private par­ ties. left to the indigenous communities themselves. a n d indeed of many o t h e r North American societies (Tanner 1979: 182ff). according to the law of the particular community. 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). between non-indigenous a n d indigenous occupation. This explains why indigenous title is often said to be 'collective' or ' c o m m u n a l ' . for example. 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 . T h e r e are many indigenous societies in which land is held by individuals or by families.5 5 ) .a n d viewed from the outside. 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 . with n o overarching proprietary right in the community. 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. I n d e e d . o n e could say that the recognition of o n e was the premise for the other. Deal with t h e m before encroaching. In the North American context. It effectively says: ' T h e indigenous peoples have rights to this land. the societies d o hold their land 'collectively'. It requires respect for indigenous systems of land law. Frequently. It views those societies from the outside . for the internal distribution of rights a n d responsibilities is left to the commu­ nities themselves. 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. any inter­ nal allocation is left to the c o m m u n i t y . In o n e sense. held in c o m m o n .

Let's face it. Even in the most r e c e n t a n d far-reaching of those decisions. reinforced by the judgments of this Court. not re-tried: 26 27 Ultimately. W h e n o n e thinks of the great Canadian decisions o n indigenous title or related rights . 35(1) [of the Constitution Act 1982 (Canada). British Columbia. But it has d o n e so with reluc­ tance. what the S u p r e m e Court has d o n e over time. n o t the definition a n d e n f o r c e m e n t of specific interests {Calder\. O n e could argue that the courts have already.to ensure that indigenous title is taken seriously as a material interest in the land .Calder.72 JEREMY WEBBER Even when indigenous title has c o m e before the Canadian courts. 29 . b e e n d o i n g just that. not least in Delgamuukw itself. Sparrow 1990. . 28 If negotiations are n o t successful. 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 courts' consistent strategy has been to rule u p o n the framework of indigenous title . T h a t is left to negotiation. 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. Delgamuukw . we are all here to stay. in effect. tacitly. Instead. 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. It has by stages defined m o r e of the c o n t e n t of indigenous rights.those decisions o p e r a t e almost entirely at the level of gen­ eral principle. the S u p r e m e Court of Canada did n o t rule in detail on the claims. 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 . 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 . the courts may be compelled to i n t e r v e n e m o r e vigorously. that we will achieve what I stated . Sparrow. Delgamuukw 1997). This is. 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. with good faith and give and take on all sides. 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. which protects Aboriginal and treaty rights] .'the recon­ ciliation of the pre-existence of aboriginal societies with the sovereignty of the Crown'. This is p a t e n t in a n u m b e r of the recent decisions. . Delgamuukw v.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 . to be a basic purpose of s. it is through negotiated settlements. although invited to d o so on the basis of the most extensive evidentiary record ever presented. 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. the courts have t e n d e d to see themselves as simply policing the boundary. 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. AG BC [1973] SCR 313.

they will. T h e constitutional dimensions of indigenous title are just as present. Ward v. In the most extensive judicial discussion of native title in Aus­ tralia to date. 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 . very like those in Canada. finding instead that the c o m m u n a l title was held collectively by all 30 31 . T h e court declined to d o so. Western Australia. 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 . 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 . 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. n o r decided conflicts between m e m b e r s of a single indigenous p e o p l e . they have not engaged in the detailed specification of the content of the title. 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.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. 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. 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. implicitly. 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. Faced with these questions of fundamental constitutional relationship. 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. 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 . 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.i n d i g e n o u s boundary. As 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. t h e n . 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 ' ) .MABO AND AUSTRALIAN CONSTITUTIONALISM 73 In Canada. by that very act.

Also in Ward. 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 . I d o n o t m e a n to suggest that it is ideal. 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. Moreover. 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. 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 . dispute settlement mechanisms. or that it occurs in a spirit of generosity or even respect.74 JEREMY WEBBER m e m b e r s of the community. the proceedings u n d e r the Native Title Act have moved increasingly towards mediation a n d negotiation. a l t h o u g h relations of power are n o t the whole story. the reconciliation of indigenous land use with non-indigenous interests a n d public authorities. Arguments of justice. within a broad framework d e t e r m i n e d by the courts a n d the Native Title Act. T h e courts retain a crucial role in maintaining fundamental elements of principle. T h e r e will always be r o o m for criticism of negotiating stances. always cause for ambivalence like that of C o o m b s ' .that indigenous title operates at a broader level of generality a n d is vested in the entire community rather than in subgroups. a n d outcomes. o n occasion. 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 . and. the structuring of institutions to administer indigenous title. In that decision. with respect to the exis­ tence a n d scope of indigenous title. This reliance u p o n a c c o m m o d a t i o n may b e worrying. 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 . the resolution of conflicts a m o n g indigenous parties. 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 . 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. suggesting that the parties should resolve those questions by n e g o t i a t i o n . consistency of principle and moral appeal remain important ( t h o u g h by n o m e a n s determinative). 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. cited previously. b u t also with respect to the coalesc­ ing of indigenous groups in o r d e r to bring the claims.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 .

In these situations. as o n e confronts a diversity of circum­ stances to which the principle applies. in the belief that a continual. Third. for the High Court's decisions have been subjected to fierce criticism from some quarters because of their allegedly 'political' character. b u t o n e does not expect to be able to give a full. Stevenson.although p e r h a p s the latter word carries too m u c h baggage that suggests an amoral. 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. T h e principles r e m a i n at a high level of abstraction.a n d context-dependent. c o n t e x t . This p h e n o m e n o n takes a variety of forms. First. certain a n d detailed account of the law in the early stages. t h e r e are areas . 'Bilateral deliberation' 36 .the 'best interests of the child' . T h e objection. many of the most familiar legal concepts began with the recog­ nition of an abstract principle. however. a n d compensation for p u r e e c o n o m i c loss. from the first recognition of a general tort of negligence in Donoghuev.d e p e n d e n t process of adjustment. o n e trusts that o n e will be able to develop m o r e detailed principles over time.m u c h rarer than the two already discussed .MABO AND AUSTRALIAN CONSTITUTIONALISM 75 presence. cautious incrementalism is m o r e likely to capture the full complexity of the interests in play. the liability of public authorities. the con­ tent is best filled out t h r o u g h processes of political deliberation or by negotiation . T h e principal criterion for child custody decisions . t h o u g h nonetheless operative. 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. 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.in which law again operates at a b r o a d level of generality. 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. the precise details of which are left to be worked o u t over time. 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. Indeed. often t h r o u g h a complex. It has a material impact u p o n virtually all custody decisions. there are concepts that play a role similar to that of indigenous title: a fundamental but relatively inchoate claim is recognised. Even within m u c h m o r e conventional a n d familiar areas of the law. 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.is a g o o d example. Instead. But second. 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 . normless compromise. 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 misconceived. sometimes found to be implicit in a pre­ vious body of law. t h r o u g h negligent misstatement. simply because the complexity of circumstances makes generali­ sations very difficult. 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.

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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
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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
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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
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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

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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
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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

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. although imperfectly acknowledged. 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. Macdonald 1997). 1988. a n d in the process. T h e post-Mate relationship is in part. This will undoubtedly involve respect for autonomy. I n d e e d . C o o m b s 1994: 9 3 . Parkinson 1994:10-18) . In drawing the con­ trast between i n d i g e n o u s a n d non-indigenous approaches to law. 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. indigenous cultures have inter­ nalised values from non-indigenous cultures. the tradition itself evolves (Krygier 1986. a n d i n d e e d is likely to b e a matter of continual adjustment. t h e n . It is a b o u t the conditions of interaction. 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. 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. 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. a n d about the 52 5 3 . T h e p r o b l e m is o n e of restructuring a dialogue . T h e r e are strong e l e m e n t s of tradition in the non-indigenous Australian law. at o n e m o m e n t in time. 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 . T h e issue is not o n e of complete separation or of fracturing. 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 . Legal reasoning works with con­ cepts a n d j u d g m e n t s inherited from the past. 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. about the e n c o u n t e r between different legal/political philosophies. 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). 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.or p e r h a p s it would be m o r e accurate to say 'developing a dialogue'.82 JEREMY WEBBER a n d of achieving some practical conciliation between indigenous rights a n d non-indigenous interests. T h e redefini­ tion of the relationship is a matter for the long haul. 1991. T h e r e are unlikely to be any quick fixes. so that now those values are fully p a r t of the indigenous societies (Law Reform Commission 1986: 88-90. given the largely one-directional n a t u r e of influence to this point .5 . This is true because of the com­ plexity of the issues.n o t restor­ ing some pre-dialogic purity. T h e r e is substantial potential for that interaction. I por­ trayed the difference as m o r e stark than it is in fact. Maddock 1984: 234—35. Poirier 1996). Attwood 1996b: 109-10.

why it conforms to what is really in issue in indigenous land claims. 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. 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. 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. their own patterns of social order. In o t h e r words. s u p p o r t the courts' a p p r o a c h . a couple of examples will help d e m o n s t r a t e the practical impact of reconceiving indigenous title. they have kept their j u d g ­ ments o n e step removed from this level of detail. in practice. namely respect for indigenous people n o t merely as individual or familial proprietors. 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 .I n d i g e n o u s actors. 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. Institutional Implications T h e shift in focus for which I have a r g u e d .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.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 . 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. I have shown why this a p p r o a c h is right . a n d their own conceptions of land use a n d landholding. 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.MABO AND AUSTRALIAN CONSTITUTIONALISM 83 achievement of a national dialogue that is m o r e typified by respect than by imposition. 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. First. but saying very little about the rights enjoyed u n d e r any specific indigenous people's law. While I will not canvass those implications in detail. c o m b i n e d with negotiations with n o n . I have shown that courts have. but as m e m b e r s of societies with their own law. I h o p e . Instead. T h a t rationale will. 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 . that it has the characteristics of the 'framing n o r m s ' . ruling on the existence of native title a n d o n its extinguishment. 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. their own cultures a n d institutions. e n c o u r a g i n g t h e m in adjudication with a light touch.

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. 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. for example.i n d i g e n o u s divide for all of which they are poorly suited. individuals were a d o p t e d into that community in the post-con­ tact period. 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. a n d were especially c o m m o n in the North American context. 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. But surely in the main r u n of cases.84 JEREMY WEBBER described previously. 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. In the Yorta Yorta claim. If. Otherwise. a n d the design of institutions to bridge the i n d i g e n o u s / n o n . the courts will find themselves ruling u p o n precise questions of i n d i g e n o u s law. such political consolidations are a c o m m o n feature of the evolution of all soci­ eties. They b e c o m e especially 54 55 . In fact. inseparable from native title. 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 . even t h o u g h non-indigenous explorers reached the area only in 1824) (Yorta Yorta 1998: 52). 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. the realisation that indigenous title is about the recogni­ tion of indigenous societies. most indigenous title cases d o deal with descent in a b r o a d e r fashion than this. individual descent may be part of the proof. but they look at succession t h r o u g h time of the Indige­ n o u s community. the focus on bloodlines is too narrow. rather than o n biological descent? If.as i n d e e d the court found in the Yorta Yorta claim (Yorta Yorta 1998). the specific m a n n e r in which indigenous land use must be reconciled with n o n . wouldn't the successor community enjoy the rights of its predecessors? After all. 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. 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. for example. Moreover.i n d i g e n o u s interests. These are. 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. 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. 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. with­ out imperilling the persistence of indigenous title t h e r e . in the e n d . for e x a m p l e . mistaking individual inheritance (according to what law of succession?) for continuity of the society.

b u t this is certainly less than full a n d exclusive traditional c o n t r o l . 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. expertise a n d the resources derived from resource revenues in the N o r t h e r n Territory.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 . with n o overarching political coalition. driven by indigenous leaders? T h e Land Councils . T h e r e has. 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 . 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 . T h e various Aboriginal Land Councils have suffered consid­ erable criticism in r e c e n t years. In native title claims in s o u t h e r n Australia. 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. 56 57 .i n d i g e n o u s use. because their processes d e p a r t from strict control by the traditional o w n e r s . driven by the practicalities of making title claims a n d administering the lands obtained. T h e essential p r o b l e m becomes.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. 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 . 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. c o m m u ­ nities have similarly found that combination increases the chances of suc­ cess.i n d i g e n o u s divide . t h e n . 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. b e e n a c o m p a r a b l e process of political coalescence in the south. with m e m b e r s h i p from many indigenous peoples.have. 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. 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. 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. 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. Some of the most influential Councils cover vast tracts. o n e of recognising a n d respecting autonomy. sometimes from their friends.institutions that can h o l d indigenous resources. a n d place the administration of that law in the h a n d s of non-indigenous tribunals. T h e Councils have b e e n particularly powerful because of their size. If native title itself is law of the interface. without d o u b t . 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). therefore.

They provide a mechanism for h o l d i n g the land that works well within Australian law. in Yunupingu 1997: 84). It raises b r o a d e r considerations of relations between non-indigenous a n d indige­ n o u s societies. capacity for c h a n g e . B e r n d t 1982: 1. to develop patterns of leadership'. Land Councils are real institutions. with their own dynamism a n d their own . T h e r e are occasions when Land Councils have failed their constituents (as. of course. 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. or existing o n e s improved. is t r u e of virtually all political authorities). Land Councils d o that. 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. It may be that better institutions can be devised. a n d toleration for multiple and shifting interests that characterises the law of at least some Aboriginal peoples (Myers 1986: 127-58. 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. Just as it makes n o sense for non-indigenous courts to t u r n themselves into adjudicators of indigenous law . Rowley m a d e this point in his path-breaking study of indigenous com­ munities in the 1960s a n d 1970s. including the n e e d to respond to the dislo­ cation a n d dispossession of many indigenous people.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. Anthropologists have drawn attention to the flexibility.86 JEREMY WEBBER This seems to m e to b e b o t h a necessary a n d an acceptable process. long resided on o t h e r s ' land .again u n d e r indigenous c o n t r o l . Langton. 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 . 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 ' . according to indigenous custom. They p e r m i t indigenous land use to m e e t new challenges.indeed. precisely because it makes n o sense for that to occur . Sut­ ton 1995b: 49-60. 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. Poirier 1996. while enabling traditional owners to continue to enjoy their lands. with all the factionalism a n d political manoeuvring that involves. 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. 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. Hiatt 1989: 99. Tensions have led some constituent groups to secede from the N o r t h e r n Territory Councils. They can blend indigenous m o d e s of decision-making with structures that interact well with non-indigenous forms. Land Councils pro­ vide a sphere. p r o t e c t e d from non-indigenous interference. u n d e r that umbrella. following disloca­ tion.

O n c e o n e acknowledges (as the High C o u r t does) that indigenous orders are dynamic entities. 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 . 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. T h e issues raised by native title c a n n o t be resolved. raising issues of the mediation of sovereignty. with the capacity to develop a n d c h a n g e . a n d forces us to ask difficult questions a b o u t how non-indigenous institutions should respond to that reality. 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 . o n c e a n d for all. 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. If we d o wish to obtain some . in the control of their lands. yet it is undeniably a legal right. If a court did p u r p o r t to d e c r e e such a result. 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. 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. T h e issues are extraordi­ narily complex. It therefore has a constitutional dimension. Claims of indigenous self-government are often treated as t h o u g h they were quite separate from claims of native title. These issues are best resolved t h r o u g h negotiation rather than adjudica­ tion. 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. we would soon find that the issues e m e r g e d in o t h e r guises. 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. 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. 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. I n d e e d . b u t that does n o t make t h e m any less recognised by law. Those governmental mechanisms may not. within Australia. 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. u n d e r the c o m m o n law. They r e q u i r e the working o u t of solutions over the long term. requiring that one attend to the insdtutions that can appropriately structure the intersocietal interface. as societies. 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. Native title itself is n o t i m m u n e . involving respect for indigenous entitlements to land but also the recognition a n d institutionalisation of spheres of indigenous control.8 ) .MABO A N D AUSTRALIAN CONSTITUTIONALISM 87 mechanisms of c h a n g e . be i m m u n e from legisla­ tive i m p a i r m e n t . by an exhaustive s t a t e m e n t of that title's incidents.

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 . of attempting forcibly to sever Aborigines' connection to their heritage. their own distinctive gov­ e r n m e n t a l institutions. indigenous Australians' humanity. . a n d on the respect that all have for this country. 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. a part of Australian history. at times. a n d their own d e e p connection to this country. 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. even t h o u g h they have. a n d has left a legacy that we c a n n o t simply avoid. at times. We must also. dialogue. We can also draw u p o n the tra­ dition of democratic a n d institutional innovation in this land. adjustment a n d reconstitution over the years since 1788 ( a n d i n d e e d before).some m e c h a n i s m for conciliating. 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. b e e n subject to c h a n g e . parallel trajectory. b u t which has often shown itself to b e highly adaptable. in a stable a n d predictable fashion. T h o s e indigenous societies c a n n o t be wished back into the past.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. 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. displacement. often without legal compulsion. is the p a t h of the future. For the most part. We can build productively u p o n the moral a n d practical interaction that has b e e n . with their own institutions a n d laws. a n d of even denying. a n d a newly implanted non-indigenous society whose m e m b e r s have fashioned their own heritage. Aboriginal a n d Torres Strait Islander societies survive. T h a t m o r e wrench­ ing e x p e r i e n c e holds its own lessons. like any societies. without prevarication. inter-penetration. in Mabo.88 JEREMY WEBBER d e g r e e of 'certainty' .i n d i g e n o u s land use . T h e r e are resources o n which to draw. 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. r a t h e r t h a n exhaustive definition. 1994. Senior 1998). 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 . i n d i g e n o u s a n d n o n . Institutionalised adjustment a n d col­ laboration. c o m e to terms with the conse­ q u e n c e s of denying indigenous connection to the land. Australians came to recog­ nise. 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. Howitt 1991. that Australia was m a d e u p of the overlay. each with its own pathways traced across this land.

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. jurisdictions (Asch 1997). 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. To be sure. each of which is sovereign in its own right. 89 . T h e politics of indigeneity resonate with references to sovereignty a n d self-determination. out­ come over process. 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 . 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 . privileging conflict over cooperative coexistence.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). Particular emphasis is focused on indigenous peoples as fundamentally a u t o n o m o u s political communities. yet sharing in the sovereignty of soci­ ety t h r o u g h multiple. identity a n d political voice (Alfred 1995). 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. 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. Nevertheless.in effect. 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. yet interlocking.

including 'Maori sovereignty'. yet such an assertion invari­ ably clashes with state assumptions of unilateral and undivided authority over all of the land. Endorsed instead are the discursive frameworks of a new constitutional order. Discourses that once bolstered 'society-building' themes of 'com­ munity development'.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. To the extent that tino rangatiratanga reflects and reinforces Maori aspirations for recalibrating the political contours of Aotearoa. a framework for a new constitutional o r d e r a n d a supportive context for constructive re-engagement. 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 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 . 'bi-nationalism' a n d 'Treaty partnerships'. T h e contesting of these 'duelling discourses' strikes at the core of cultural politics in Aotearoa. 'tino rangatiratanga'. 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. a preferred basis for consent. about process rather than results. 'multiculturalism'. 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. its role in reconstitutionalising the interactional basis of Maori-Crown rela­ tions c a n n o t be underestimated. and about listening rather than legalities (Coates and McHugh 1998). where the various h a p u and iwi ('tribes') who comprise Maoridom con­ tinue to contest their relationship with the Crown. 'iwi models of selfdetermination'. We argue that appeals to tino rangati­ ratanga go beyond the restoration of Treaty entitlements or resolution of historical grievances perse. 'te taha Maori' a n d 'institutional a c c o m m o d a t i o n ' have been sharply challenged. 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). 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. about reconciliation rather than restitution.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). Instead of a 'needs'-driven agenda that historically framed Maori-Crown interaction namely. 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). 'tangata whenua'. In that tino rangatiratanga espouses .

• 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. As discourse. writes . • repossession of land a n d resources unless explicitly ceded by treaty. 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. yet is subject to contested debate over who owns what and why. • 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. policy or persuasion (Stasiulis a n d Yuval-Davis 1995). 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. its potential in advancing the cause of a postcolonising Aotearoa has yet to b e realised. Australia and New Zealand have m u c h in c o m m o n . Parliament or conquest. 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). T h e n o t e d Metis scholar. Paul C h a r t r a n d . white settler d o m i n i o n s such as Canada. 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. whose customary rights to self-determination over juris­ dictions p e r t a i n i n g to land. Alfred 1999a). But indigenous peoples in these a n d o t h e r postcolonising domains have b e c o m e increasingly politicised. Morse 1992. indigeneity refers to indigenous peoples as 'first nations'. Institutional structures that o n c e colonised the 'nations within' are n o longer acceptable. 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. Indigeneity: Discourse and Transformation Structurally speaking. in the h o p e of 'unsettling' their relationship with society at large (Dudley a n d Agard 1993). belonging a n d relations (Fleras 1996). 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.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.

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. With its claims that simultaneously deny yet affirm a sovereign state. 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. 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). It reflects a certain understanding of power and authority. Spoonley 1995). a n d why. 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 . In its willingness to work within the system r a t h e r than outside of it. the assertion of 'sovereignty without secession' is i n d e e d 'subversive'. historically determined configuration of social relations and public space. conquest.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). a secessionless sovereignty is consistent with the d e m a n d s of postcolonising society (Fleras 1999). 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.by discovery. Colonialist assumptions about sover­ eignty have c r u m b l e d accordingly. 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. or an eternal given. Appeals to constructive ree n g a g e m e n t are critical in advancing the cause of a shared sovereignty. indigeneity assumes a political framework that is inherently contradictory of settler state claims to sovereignty ( H a v e m a n n 1999). involving multiple yet interlocking jurisdictions in working t h r o u g h dif­ ferences. rooted in a particular. 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 . Treaty. 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.

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). o n the other. . 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). Claims to indigenous sovereignty are a central element in the discourse. Indigene­ ity as practice can coexist with the principle of a multiple yet interlocking sovereignty at this level. 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). a 'soft' sovereign option with residual powers of self-determination within existing institutional frameworks. 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. 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. At the opposite pole are sovereignties in n a m e only ('nominal sovereignties'). but limited only by interaction with similar bodies a n d higher political authorities. Webber 1997). With its focus o n the removal of discrimi­ natory cultural a n d structural barriers within the existing institutional framework.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. Kaplan 1993. that is. the right of sovereignty applies to all i n d i g e n o u s peoples as the original occupants. its scope transcends a c o m m i t m e n t to official multiculturalism. O n the o n e h a n d . N o r does indigeneity simply entail restitution for historical griev­ ances or even restoration of indigenous rights per se. 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 . Char­ trand 1996. 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. Kymlicka 1995. Tully 1995. 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. provided that jurisdictions are defined a n d divided accordingly. 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').

the restructuring of s t a t e . Indigenous peoples may not b e sovereign in the political-legal sense. 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). References to the Eurocentric term 'sovereignty' may not correspond with indigenous mindsets. At the source of this impasse is the state's persistent intent to maintain colonial control over indigenous .94 Table 1 State ROGER MAAKA A N D A U G I E FLERAS Levels of indigenous sovereignty Nation • de facto sovereignty • control over internal jurisdiction within framework of shared yet interlocking sovereignty • nations within Institutional • nominal sovereignty • decision-making power through institutional accommodation • absolute (dejure) sovereignty • internal and external autonomy • complete independence with no external interference Municipality • functional sovereignty • community-based autonomy • internal jurisdictions. 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. limited only by interaction with similar bodies and higher political authorities T h e distinction between the right of sovereignty versus the right to sov­ ereignty is also important.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. Nevertheless. Impasse With so m u c h at stake in the sovereignty game. and thus co-opting indigenous peoples into dialogues that do not reflect their culture a n d realities (Alfred 1999a). b u t they most certainly are for purposes of e n t i d e m e n t and engage­ ment. the right to sovereignty in the sense of final authority is m o r e fiercely contested and widely rejected (Daes 1996). however. Indigenous peoples have the right of sover­ eignty by virtue of original occupancy. 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). 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. 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).

Finally. 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 . the relationship between cosovereign equals in the political arena. notwithstanding removal of the most egregious aspects of colonialism (Alfred 1999a). a n d because govern­ m e n t policy a n d administration are the institutional correlates of that domination. 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. Inasmuch as . namely. 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). 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). are out in public a n d subject to debate. 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. 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.by forcing t h e m to justify their very right to existence. References to indi­ geneity are inextricably linked with competition over power . It is political because indige­ nous claims constitute grievances against the state. a n d why. each of which claims intrinsic authority over separate yet interlocked spheres of jurisdiction (Fleras 1996). T h e state is drawn into the most contentious of all relations. land a n d governance.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.or. Wickcliffe 1995). Indigeneity is political in that choices a b o u t who controls what. 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. T h e politicisation of indigeneity opens u p the governing process to contestation. the legitimacy of their claims to citizenship a n d their rationale for rule over land a n d inhabitants. m o r e accurately. 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. with all sectors com­ mitted to a c o m m o n goal as well as a shared set of rules (Sharp 1990). Equally obstructive is the failure to appreciate the implications of indi­ geneity as a politicised ideology for radical renewal. the very legiti­ macy of the colonising process is contested by challenging Crown author­ ity over peoples. 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).

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). 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. 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.h e g e m o n i c vision that articulates a fundamentally 'subversive' way of belonging to society. 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). 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 ' . corrective justice is fraught with underlying contradic­ tions. The contention between Aboriginals and non-Aboriginals rests in fact on a paradigmatic contradiction of which the poles are. 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. (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. but as equals with i n h e r e n t rights to redefine the basis for belonging. logically irreconcilable. while bro­ kering a tentative b l u e p r i n t for a discrete institutional framework that . 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. As the conceptual differences over land partly revealed. 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'. . But o n its own a n d divorced from the bigger picture of re-engaging state-indigenous peoples relations. 'yours' a n d 'ours'. or of ter­ ritorial claims that might be satisfied if o n e or the other party showed flexi­ bility or compromised. 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. the two parties operate within institutional parameters and sociocultural systems which have nothing in c o m m o n . What we have instead is a c o u n t e r .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. . McHugh 1998). 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 ' . a priori. a conflict of interest is inevitable a n d irreconcilable.

In acknowledging that 'we are all in this t o g e t h e r for the long h a u l ' . While these p a t t e r n s will vary in time a n d place. reconciliation over restitution. 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). . 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. 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. relationships over rights. • 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. • Innovative patterns of b e l o n g i n g are integral to constructive engage­ m e n t . Walker 1999). • 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 . 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. i n t e r d e p e n d e n c e over oppo­ sition. 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 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). they already have sovereignty by virtue of original occupancy. 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. 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). 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 . • I n d i g e n o u s peoples d o n o t aspire to sovereignty per se. 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. yet sharing in the sovereignty of society.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. a n d power-sharing over d o m i n a t i o n . c o o p e r a t i o n over competition. each of which is a u t o n o m o u s in their juris­ diction. Strictly speak­ ing. 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. 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. constitutional­ ism over contract. 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.

By contrast. relations a n d identity. so a choice must be m a d e in terms of this opposition. 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. 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. 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. 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. 1996). 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. Discourses range from assertion of Maori sovereignty over the entire country (Awatere 1984) to the creation of separate Maori insti­ tutions (Spoonley et al. Maori politics resonate with increasingly politicised calls to rebuild the relationship along binational lines.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). Poata-Smith 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). 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). 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 . 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. 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). 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. . interac­ tion. ' E n g a g e m e n t ' is the key. 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). 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). as Taiaiake Alfred concludes. 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. Worse still. 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. 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.

self-reliance. 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. Archie 1995. T h a t confusion prevails is less problem­ atic than the refusal to front u p to tino rangatiratanga which. 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. Durie 1995. full chiefly authority. 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. D e p e n d i n g on the person or context. bi-culturalism a n d p a r t n e r s h i p . with points of irrelevance in between. in the words of the late Matiu Rata. Mead 1997). the expression is often dismissed as offensive or an affront. chiefly m a n a . Few words are as likely to elicit such a n i m u s or to evoke admiration. Barlow 1996.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). 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. 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. Maori cultural a u t o n o m y a n d territorial development. 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). restoration of m a n a Maori. Maori control over Maori things within a Maori value system. . self-management. Maori nation­ h o o d . In contrast are Maori perceptions of tino rangatiratanga. strong leadership. 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. tino rangati­ ratanga has e n c o m p a s s e d the following: Maori sovereignty. self-determination. tribal autonomy. s u p r e m e rule. i n d e p e n d e n c e . For many non-Maori. trusteeship. 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. 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. 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 ' ) . i n d e p e n d e n t power. absolute chieftainship. (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. iwi n a t i o n h o o d . Maori autonomy.

to hold their lands in accordance with long-standing custom on a tribal and commu­ nal basis. In short. a n d for yet others still. for still others only Maori as a collectivity. 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). for others. For some. and means the authority to make laws for the good order and security of the country.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. within the individual.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. . Maori versions of the Treaty ceded kawanatanga (governorship) to the Crown. This is less than the sovereignty ceded in the English text. 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'. The cession of sovereignty is implicit from sur­ rounding circumstances. (b) In recognising the 'tino rangatiratanga' of their lands. Moderate versions suggest a shared sovereign a r r a n g e m e n t involving a division of jurisdiction. 'Radical' views equate tino rangatiratanga with absolute Maori ownership and political control (Jackson 1997). and that puts the o n u s o n disentangling the issue over who controls what. 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). this sovereignty prevails over the entirety of Aotearoa. tino rangatiratanga resides within the h a p u . 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) . but vested Maori sovereignty in tino rangatiratanga by guaranteeing exclusive customary rights over property. 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). for others. (Waitangi Tribunal 1987: 149. it entails some degree of autonomy from the state. (a) In the Maori text the chiefs ceded 'kawanatanga' to the Queen. but subject to the protection of Maori interests. the iwi. 'exclu­ sive' a n d 'undisturbed' possession of Maori properties (Kawharu 1996). the relationship between ran­ gatiratanga a n d sovereignty is complex and multi-textured.a decision that many say is n a r r o w a n d restrictive. para 11.11. T h e essence of rangatiratanga is sov­ ereignty-driven: for some. According to Sir H u g h Kawharu. the Crown acknowledged the right of the Maori people for as long as they wished. for still others. it consists of shared jurisdictions within a single framework.

we prefer a definition inspired by the writings of the American First Nation's scholar. With those caveats in mind. including: • its expression in Maori society. tino rangatiratanga is not interchangeable with sovereignty or self-determination (Walker 1995b). tino rangatiratanga may be better seen as a process by which this attribute is applied after the fact. More specifically. Maori are organised into a variety of traditional a n d non-traditional bodies. • 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. T i n o rangati­ ratanga is analysed from different perspectives. Rangatiratanga rights d o m o r e than redress historical grievances.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 . at an executive m e a n i n g of the Maori Congress in May of 1995. As well. it also provides the basis for. strictly speaking. yet privilege Maori as essentially auto­ n o m o u s a n d self-determining political communities.the principle of Maori diversity. confirmed by Article 2 of the Treaty. each of which is legiti­ mate in its own right a n d deserves protection of its integrity. 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). 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'. 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 ' ) . Only the exercise of tino rangatiratanga provides tangible evidence of its exis­ tence. 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. derives from. they also establish patterns of belonging that contest Crown sovereignty. m u c h like power or sovereignty. 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). First. T h r e e principles are intrinsic to tino rangatiratanga. in addition to 'catch-up justice'. As the epitome of power. Tino rangatiratanga serves as a precursor of Maori sovereignty. • its status within a national Maori body politic. Instead of a ' t h i n g ' with definable properties. Nga Matatini Maori .

Taken together. T i n o rangatiratanga asserts . Despite diversity in affiliations a n d structures. both individually a n d collectively. Whakakotahi .the principle of a u t o n o m y a n d con­ trol. Mana M o t u h a k e Maori . 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. tino rangatiratanga would be supported by three structural c o m p o n e n t s of a Maori constitutional framework: namely. T h e single unifying aspiration u n d e r tino rangatiratanga is that of autonomy. tino rangatiratanga symbolises a Maori right to exercise authority within a Maori constitutional framework. a n d m a n a tangata (the right of all Maori. 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. 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. Durie continues. 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. together with assumptions of Maori responsibility over Maori affairs at iwi. 1998). Taken together. More specifi­ cally. 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). From this. 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. h a p u a n d national levels. tino rangatiratanga is about the development of Maori policy by Maori as part of the special covenant with the Crown. from h a p u a n d iwi to u r b a n authorities a n d national bodies. t h e n . tino rangatiratanga is closely aligned with the principles a n d practices of indigeneity as discourse a n d transformation. 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). 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. In separate publications. that is. m a n a a tangata (Maori community interests) and m a n a Maori (national Maori representation). T h i r d . In brief. 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. Mason Durie equates tino rangatiratanga with self-determination over internal jurisdictions (Durie 1995. m a n a a iwi (hapu a n d iwi).102 ROGER MAAKA A N D A U G I E FLERAS Second. 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). tino rangatiratanga is a b o u t self-determination. According to Durie.the principle of Maori unity. Strength in n u m b e r s may also result from a unified base. rangatiratanga rights constitute a level of Maori sovereignty that incorporates a separate power base with parallel institutions for reformulating Maori-Crown relations. 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).

Such developments have given substance to the n o t i o n of tino rangatiratanga at national a n d tribal levels. 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. received t h r o u g h Treaty settlements. New Zealand society has struggled to c o m e to grips with its colonial past. tino rangatiratanga was n e i t h e r created by the Treaty nor bestowed by the Crown. tino ran­ gatiratanga is unmistakably Maori in spirit a n d style. In May 1995.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. In seeking to advance Maori indigenous rights. 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 . 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 . 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). This c o m p e n s a t i o n . 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. 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 . Moreover. 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. 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. 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. 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. which m a d e Te Reo Maori an official l a n g u a g e of New Zealand. 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 . Tino Rangatiratanga in Practice It is o n e thing to talk a b o u t tino rangatiratanga as a principle. 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. 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.

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. 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. hosted a New Zealand Maori team in addition to the New Zealand national team {Christchurch Press. the 1998 World Cup. the Tainui Settlement a n d Ngai Tahu Settlement of 1998 are an expression of tribal rangatiratanga. language. which it describes as tikanga. Additional signs include developments in the sports world where the rugby league's premier international compe­ tition. 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. O t h e r Maori MPs. laws principles and procedures) of each part­ ner. 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. Currently the five Maori MPs w h o occupy the Maori seats hold the balance of power. 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 . e n h a n c e this position but the actual power lies with occupants of the Maori seats. 1 0 J u n e 1997). For the first time Maori MPs wield real political power rather than delegated or negotiated power. that is. especially those in the coalition government. the ultimate power u n d e r an integrationalist m o d e l still resides with the Pakeha majority . 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. T h e constitution recog­ nises each c o m p o n e n t . 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 . Evidence suggests that recognition of tino rangatiratanga is b e c o m i n g socially acceptable in certain spheres of society. To be sure. Maori have gravitated to the centre of political power without the aboli­ tion of the Maori seats. (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). 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.104 ROGER MAAKA A N D A U G I E FLERAS rangatiratanga. Formal political representation is yet a n o t h e r place to locate an expression of tino rangatiratanga. 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. at the highest levels of cabinet deci­ sion-making r a t h e r than on the margins.

the tribes that constitute M a o r i d o m . a n d $30 million in cash. TOKM's role is to man­ age the asset until a system of allocation to Maori can be devised. 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. 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). 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. 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. It is this area of d e b a t e that best illustrates conflicting views o n tino rangatiratanga. 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. if u n i t e d in opposition to Maori initiatives. It was always going to b e allocated o u t to sectional interests. 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 settlement was u n i q u e in that it was a pan-Maori solution to a multi-tribal claim. T h e settlement was formalised u n d e r the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992. 1997). which effectively gave Maori interests control over 23 per c e n t of the national off-shore fisheries. More substantial expressions of tino rangatiratanga have taken place as a result of the Fisheries Settlement (Cheyne et al. 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'. b e c a m e the Treaty of Waitangi Fish­ eries Commission (Te O h u Kaimoana. 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. T h e debates are many a n d multilayered. T h e fishing settlement process caused a n d continues to elicit vigorous a n d often acrimonious public debate. 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. o n the o t h e r h a n d . 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. Inland tribes.coastline versus population base. there was never any intention that the settlement remain a Maori asset. After m o r e than seven years of lobbying. O n 17 April 1997 T O K M a n n o u n c e d that 60 per cent of the . a substantial asset consisting of 57 000 t o n n e s of fish quota. 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 . T h e actual set­ tlement pivoted a r o u n d the Sealords Deal. TOKM). But as the move to develop allocation models suggests.T I N O RANGATIRATANGA IN A O T E A R O A 105 who. could prevent Maori political representation from having any effective say. over the period of the settlement process. In r e t u r n .

the decision has signalled the negotiability of the ' o n e tribe. 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 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. As of August 1999 the issue is before the C o u r t of Appeal. 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. 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). Still. 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. Tribal groups remain at the forefront of the Treaty claims process a n d tribal formations have gained ascendancy in public awareness. with at least o n e dissatisfied major tribe considering taking the matter to court. 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. T h e situation has not altered since. espe­ cially in the wake of various iwi-development policies.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. Sir T i p e n e O'Regan. n o t fishing quota. therefore. 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 . Most Maori leaders d o n o t recognise any o t h e r type of tino rangatiratanga. have p u t tribes at the fore. O n 30 April 1996 the C o u r t of Appeal ruled in favour of the u r b a n groups. 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. T h e treaty claims a n d settlement processes in spite of several 'Maori' settlements. b o t h in its settlement and allocation debate. In an interview o n sovereignty the Tainui leader Sir Robert Mahuta puts it very succinctly: 'To us Maori sovereignty is Kingitanga. the matter went to court. has o p e n e d the way for m o r e expansive definitions of tino rangatiratanga. namely a percentage of the money. Maori parliamentary representation a n d the fisheries setdement demonstrate two mutually interrelated but analytically distinct expressions . Wellington a n d Christchurch have m a d e claims for a share of the fisheries assets. the fish­ eries claim.J. A combination of urban Maori Authorities from Auckland. W h e n TOKM rejected their claim. o n e terri­ tory' basis of tino rangatiratanga. such as the Maori Language Act. T h e matter is far from settled. A n o t h e r well-known tribal leader. tino rangati­ ratanga can only be expressed t h r o u g h tribal affiliation. At the High Court h e a r i n g in Auckland on 4 August 1998. 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 . As this debate was going on. Justice B. 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. Full stop' ( M e l b o u r n e 1995: 144).

In contrast to Australia. 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. 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 . 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. namely. t h o u g h one is a Bishop. Yet structures of internal colonialism con­ tinue to tarnish the process of postcolonising from within (Bennett & Blundell 1995). Australia a n d Aotearoa are in the process of decolonisation. 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 . 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. a chief from Ngati K a h u n g u n u expressed it this way: 'Just as you are all English. Maori is my n a m e ' (Kawepo 1860: 5). As a result of this history t h e r e are two ethnicities. Diversity is tolerated. 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. In a letter to the settlers of Hawkes Bay. References to postcolonial renewal a n d reform notwithstanding. 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 . white settler domin­ ions r e m a i n suspicious of any fundamental restructuring. . there was a clearly identifiable cultural homogeneity. Canada a n d the US where a b r o a d range of diverse indigenous groups exists. T h e notion of Maori as a collectivity is a post-contact social construct. in New Zealand there exists b u t one: Maori. expressed in a commonality of language a n d cus­ tomary practice. 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.T I N O RANGATIRATANGA IN A O T E A R O A 107 of tino rangatiratanga. 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. 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. While there was a consider­ able range of tribal a n d regional 'diversity'. Re-engaging with Indigeneity Settler d o m i n i o n s such as Canada. a tribal eth­ nicity a n d an all-inclusive Maori ethnicity. 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). 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. Before colonisation Maori saw themselves solely as tribal peoples.

As H e n r y Reynolds (1996) points out. Yet inclusion into nation­ h o o d is pivotal. Reference to indigenous sovereignty as shared yet sep­ arate rarely extends to c o m p l e t e separation. con­ temporary expressions of personal and group identity. to imagine a very different political model. furthermore. if that is the decision. 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.resides not in the nation-state but among many descent groups. o n c e the cost of exclusion from society proved detrimental. the original peoples of the land. however.it's hard not to call it sovereignty . They have to under­ stand that Maoridom is a form of society in which the ultimate authority . As distinct c o m m u n i t i e s of a political nature. and of themselves as later arrivals. although tribal groups cooperate and make c o m m o n cause. Pakeha have. it rejects a multicultural desire to celebrate diversity a n d achieve institutional equality. 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. statehood may not be essential for cultural survival in the m o d e r n world. by the same token. (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 short.108 ROGER MAAKA A N D A U G I E FLERAS By contrast. 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. 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. all of them autonomous. . without necessarily buying into the trappings of a fully fledged administrative unit known as a state. indigenous peoples have moved from the margins to the centre of national stages. 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. 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. No less critical is the reconstitutionalisation of the first principles that govern indigenous peoples-state rela­ tions.but as tangata whenua.the largest and the most important one but still a minority . They have to think of tribes and tribal forms of organisation not as relics of the past but as vital. they always retain their ultimate right to make their own decisions and. 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 . They have to understand that rangauratanga is the expression of that autonomy and. that. to g o it alone. In the space of o n e generation. As Renwick notes: They have to think of Maori not as a minority .

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. each a u t o n o m o u s in jurisdic­ tion yet sharing in state sovereignty (Canada. 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). b o t h of w h o m are sovereign in their own right. Royal Commission o n Aboriginal Peoples 1996a. a n d fraught with contradiction or conflict at the worst. 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.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. 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). Clear breaks with the past are ideal. 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. yet inextricably interlocked as p a r t n e r s in jointly exploring postcolonising possibilities. Indigenous people-state relations are imbued with an air of ambivalence as colonialist paradigms grind u p against postcolonial realities. . Even m o r e formidable is the postcolonising of white settler dominions when sover­ eignty is openly contested.

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PART II Identity .

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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. 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. political theorists are now considering the polidcal a n d historical issues of native people within their recent works o n consdtutionalism. 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. 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. More than anything. with the philosophy itself an enabling device for the development of new and m o r e substantive conversations between previously silent peoples. the strident nationalism of native peoples t u r n e d within political thinking into a d e e p . suffering. 1 113 . perhaps. citizenship a n d multiculturalism.o n e that may be characterised in its barest form. O n c e coupled with well-publicised inquiries into residential school abuses a n d land claims. 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. as o n e of possibility . the reasons why certain injustices prevail. 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'. in philosophical terms. 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 . 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. the consideration of questions posed by 'aboriginality'.some of the vio­ lence.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. posed such a challenge to the state and to those that theorise the state. it is h o p e d that within this social space of listening a n d t a l k i n g . T r u e to that earlier work.

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. national minorities a n d native people. 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 . which has yet to be ratified. 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. A n d with difference. a Mohawk reserve c o m m u n i t y in Canada. A question attaches itself to these works: if 'culture' is the matter of difference. In revealing these languages to us. 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. 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. T h e very n o t i o n o f an indigenous n a t i o n h o o d . O r is it not? In this chapter. However. Although diverging in m e t h o d (Kymlicka's work is remarkably sociological rather than historical). 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. 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. r a t h e r than race. 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. may be simply unintelligible to the western a n d / o r imperial ear.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. 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. 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. which demarcates identity and seizes tradition in ways that may be antagonistic to the encompassing frame of the state. With this rethinking a n d refashioning of a key philo­ sophical a n d political textual practice within the west. 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). This new code. experiences a n d discourses a n d these processes are inextricably j o i n e d to culture. power a n d experience. 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. to d e t e r m i n e who its m e m b e r s or citizens should be. 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 . 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 . 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 .

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. b u t of defining t h e self. '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. 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. 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. however.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'. 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. Cayuga. a m a r k e r of colonialism's simultaneous beginning. of choosing a m o n g political alternatives and visions for that definition. Before taking u p the specificity of Kahnawake's citizenship a n d t h e voices that convey this issue. Paine 1999).C I T I Z E N S H I P IN KAHNAWAKE 115 of descent. 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. T h e self-consciousness and recognition (albeit historical a n d strangulated) of the nationhood that 2 . Oneida. 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. particular indigenous peoples . 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. In this. 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. T h e 'blood q u a n t u m ' years span 1984 to the present. 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 . t h e ways in which this speaks or does not speak to western citizenship theory.such as those of the Iroquois Confederacy (the Seneca. Mohawk and Tuscarora nations) . O n o n d a g a . 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.

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). a n d the n e e d for some talking a n d listening between the two. 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. In o r d e r to contribute to such a conver­ sation. T h u s their n a t i o n h o o d enjoys a diversity of forms a n d experiences. what a Mohawk 'should 3 . of j u s t 'who' a Mohawk is. 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. 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. b u t most importantly. T h e data for this 'practice' resides with the Mohawks of Kahnawake a n d their everyday nationalism. 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 . it is o n e of a great d o c u m e n t e d history. 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. political a n d cultural theory. 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.116 AUDRA SIMPSON the Iroquois enjoys is n o t only a matter of consciousness a n d oral history. 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. epistemologically convenient case of Iroquois governmental practice. But their reflections a n d rumina­ tions u p o n difference. 1999). H e r e . This question of mem­ bership. m o r e theoretical aims. a n d in this. the way that nationalism (and thus. In spite of the historically d o c u m e n t e d a n d thus. 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. p r o c e d u r e a n d political structure. 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. con­ quest a n d settlement. practised a n d n a r r a t e d by its own people. As well. However. 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 . toward o t h e r Indian peoples a n d toward the state. a n d informs the particular con­ sciousness a n d attitude of Iroquois people toward each other. this d o c u m e n t e d a n d experiential history lives within the present (Simpson 1998. 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. unlike the n a t i o n h o o d of western states. of what the criteria shall be for obtaining. 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. 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. 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. diplomacy. b u t because of invasion. u p o n culture. some would argue. 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. And as with other indigenous peoples.

at the very least. war a n d the r u m i n a t i o n s of recent philosophical works. in text. 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. t h e n . 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. 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. his­ tory a n d power in settler societies is o n e that we all await.s t a n d a r d / n o n . 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. 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. 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 ' . 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. This conversation o n the i m p o r t a n t issues of politics. c o m m u n i t y a n d rights. As well. in some very m o d e s t ways.C I T I Z E N S H I P IN KAHNAWAKE 117 be'. following the structural 'traces' . as such. However. a desired conversation between Indi­ ans a n d others. 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. Nationalism energises a n d animates n a t i o n h o o d a n d . Achieving a 'Listening State' or a State that Listens: Recasting Nationalism and Nationhood What is t h e 'stuff. requires some reflection in t h e context of the indigenous a n d the day-to­ day. 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 . 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. 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 . 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. As a stream within the anthropology of experi­ ence.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. these notions may b e p u t to work in o r d e r to enable.

118 AUDRA SIMPSON of the initial colonial e n c o u n t e r between settlers and Indians. 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. will be something observ­ able a n d assertive. This nationalism. instruments of colonial control that are now funda­ mental in the construction a n d maintenance of the Mohawk nation. disagreement. ' t h e n a t i o n ' will be positioned a n d defined in just that context. Mohawk nationalism. is replete then with colonial ironies. the nation is a p r o d u c t of 4 . Mixing parts. is a collectively self-conscious. if it is industrial England that defines those processes u n d e r dis­ cussion. and implicit. Both constitute a terrain of consen­ sus. like many others. The nation. a n d from the neocolonial pre­ sent. 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. T h e nationalist project in Kahnawake is a hybrid form in its impe­ tus a n d expression. 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 . the nation will exhibit the characteristics of industrialisation. discord a n d hopeful contemplation that connects the categorical 'Mohawk' to the individual. ' T h e nation'. it appears on o n e level to be about maintaining for Kahnawakeromon ('People of Kahnawake') what they have in the present. 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). 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 . As well.to an indige­ n o u s Iroquois past a n d present. then. In other words. as it is expressed in Kahnawake. deliberate a n d politically e x p e d i e n t formulation a n d a lived. the colonial a n d pre-colonial . Rather. as it is expressed in Kahnawake. 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. 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 . culture is both a self-conscious. But m o r e importantly (anthropologically r a t h e r than journalistically). 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 . their family a n d the extension of their family to a living entity: their nation. while g u a r a n t e e i n g a space for t h e m in their future. arrived at t h r o u g h an often bloody patrolling of clearly established a n d yet shifting boundaries. 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). from the ancestral a n d immediate past. r a t h e r than c o n t e m p l a t e d . it draws from Iroquois teachings. similarly. In this context. p h e n o m e n o n . H e r e . as in any. H e n c e . ' 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 .

T h e nation. T h e s e agents are 'nationalists'. h e tells us. nationalism. 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. 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 . Gellner's analy­ sis is a solid sociological accounting of the conditions that beget nation­ hood.self. but dismisses or elides the collection of meanings (through event. 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 . 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. God-given way of classifying men. . . 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 . 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'. Analytically. for analysts. then. a p p e a r to b e politi­ cally d o m i n a t e d . which serves at o n c e to prove the perspectivist a n d historically constructed nature of theory.4 2 ) . ' s t a t e h o o d ' . A m o n g o t h e r non-western people.C I T I Z E N S H I P IN KAHNAWAKE 119 mystified process called 'nationalism'. it is nested in the experience of statehood in E u r o p e . Nationalism is m o r e than an attribute of m o d e r ­ nity or a fall-out from agrarian society.a n d treated the constituents as matters of manipulation for the historic agents of nationalism. it is a process that is wedded to cul­ ture a n d must be treated so in analysis. Nationalism is exhibited a n d expressed by collectivities that d o n o t fit Gellner's m o d e l . . and often obliterates pre-existing cultures: that is a reality . Nationalism is the means to an end . but that is another matter. which sometimes takes pre-existing cultures and turns them into nations. as an inherent though long-delayed political destiny. a n d at the same time limit its use in analysis to o t h e r western or western-influenced societies.those that are non-western.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. iden­ tity a n d history . Gellner has taken the core complex of nationalism . are the experiences of native peoples in Canada. are a myth. I argue later that nationalism is a consciousness that is n o t limited to industrial or post-industrial society. Those who are its historic agents know not what they do. a political theory of legitimacy (Gellner 1983: 1). sometimes invents them. (Gellner 1983: 48-9) H e r e . I c o n c u r with Gellner that nationalism is. economically integrated a n d at times. but central to the discussion at h a n d . F u n d a m e n t a l for a Gellnerian theorisation of nationalism. Of this Gellner elaborates: a Nations as a natural.

and imagined as b o t h inherently limited a n d sovereign' (Anderson 1991: 6). nationalism is an imaginative process that leads to the con­ struction of what h e calls a 'cultural artefact' .the nation. 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 . A n d e r s o n concludes neatly. as they are an elemental means of separating p e o p l e from o n e another. 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. postmodernity a n d postcolonialism . However. is responsible for representing the kind of imagined community that is the nation. 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 ' . alienation.120 AUDRA SIMPSON Much of the public culture of native peoples in Canada has b e e n stri­ dently. T h e s e processes may be u n d e r s t o o d as industrialism. as these are the terms (for some native peoples a n d not for others) that are their own. bringing it into the arena of cognition and creation. Anderson brings us away from the restraints of industrialism through an emphasis o n the cognitive dimension of nationalism. By privileging the imagination rather than the salience of boundaries. T h e nation. as with Gellner. is 'an imagined political community . radical modernity. a n d p r o d u c i n g personal and col­ lective identity. It is from the point of extending nationalism to other peoples that we move away from Gellner to Benedict Anderson. For Anderson. Each. 'a simultaneity of past a n d future in an instantaneous present' (24). remarkably assertive on matters of territory. Anderson assigns nationalism to a particular space in time.by their nationalism (6). bound­ aries a n d selfhood . the collapse of face-to-face interaction and. Bhabhian terms.all signifying similar processes in different places. Anderson takes national­ ism a step further than Gellner. in simpler. 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. 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. Like the people they identify a n d demarcate from others. From h e r e . 5 . h e nests his discussion in the experiences of Europe. he argues by taking u p Walter Ben­ j a m i n . 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 . 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.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. replacing the Protestant Ethos and industrialism with similar attributes of modernity: the novel a n d the newspaper (25). ' 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. thereby shaping the style and the tenor of nationalism. thus explaining the effervescence and naturalness of nation as something that always was. jurisdiction. a n d in doing so h e centres the nationalist n o t as a clueless and stigmatised inventor or myth-maker.

C I T I Z E N S H I P IN KAHNAWAKE 121 'newness'. In appreci­ ating its simultaneous newness a n d timelessness. 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. How does nationalism apply in Canada today? What is the relationship between the state a n d the Indians in Canada . H e r e .to behave as nations d o a n d not desire. 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.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' . More than simply sug­ gesting t h r o u g h iconic imagery who its p e o p l e are.as a m e a n s to s o m e t h i n g . at the e n d of their cultural labouring. exist b o t h within states a n d without states. 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. or simply for respect.A n d e r s o n ' s 're-presentation' of the essence of the nation. Nations. m o r e specifically. artistic. 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. p e o p l e start to assert themselves in certain ways. We will take from t h e m the insight that state structure is essential for the production of identity a n d nationalism. a n d that e n d is statehood. statehood? Perhaps the desire may be for an abstraction . political or o t h e r culturally expressive lines. in historical and philosophical terms. nationalism is a m e a n s to an e n d . In this way. by a relationship with the state. as many p o i n t out. 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. official governance a n d control . Nationalism is shaped. 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 .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 . for moral victory. 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. all of which c o m m u n i ­ cate in some way what the essence of the nation is. a key institutional form in the era of modernity.or. m u s e u m s a n d exhibitions. such as sovereignty. we may be able to locate its impetus a n d e x a m i n e the style that it takes . 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. coronations. t h e n . T h e state creates the image . a process that is accelerated by rituals of the state such as national parades.along rhetorical.a principle. However. 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.

representations of experience.122 AUDRA SIMPSON over public a n d 'official' culture (such as the Canadian Broadcasting Corporation. political aspirations articulated. association or disassociation. experience a n d history. creating the conditions u n d e r which differ­ e n c e becomes a p p a r e n t . T h e state is o n e frame in which visibility is p r o d u c e d . anthropological discourse a n d practice is still s h a p e d by colonialism (Kuper 1996. when articulating and analysing indigenous n a t i o n h o o d . as such. A m o n g the co-authors in these investigations are narrative. a n d what ' t h e matter' of the difference is that some wish to decipher. blood becomes a synecdoche for all things cultural. By framing what is official. 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. in the conjunction of race-making as nation building and the invention of purity which it entails. as the narratives that we will listen to are.). directly related to the processes of ethnogenesis and nationalism. authenticity a n d tradition a p p e a r as politically expedient resources. Anthropology. '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). 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'. 'the state' is what Brackette Williams calls 'a context of analysis' (Williams 1989: 426). 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 . 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. that is. 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'. In this context. Williams instructs us that: Seriously investigating the 'aura of descent' that surrounds ethnic group pro­ duction requires detailed attention to how. m u s e u m s etc. Much as it was in the past. 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 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. However. the state creates conditions of either affiliation or distance. in their barest form. a n d culture. Said 1989). 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. Asad 1973. T h e field . (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. T h e affiliations arise from the state's project of homogenising heterogeneity.the machinery of settle­ m e n t that has h a r d e n e d into institutions of governance.

now that the ship appears to have lost its moorings.that it is like a m o v e m e n t to a clearing.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 . H e r e decolonisation movements and literature (Cesaire 1972. or a spell of debilitating experimentation with passing fads a n d fashions (Salzman 1994: 35). Medicine 1971) as well as the conceptualisation of the discipline as a discourse. 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.C I T I Z E N S H I P IN KAHNAWAKE 123 however. ' 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. Taking u p A d o r n o . More than merely maintaining a place in ' t h e field'. Fanon 1963). Much of c o n t e m p o r a r y anthropology. h e likens this m o v e m e n t to a ' h u m a n praxis' . for some. Said 1978. polemical a n d scholarly critique (Deloria 1969. calls for politically engaged and collaborative work (Biolsi and Z i m m e r m a n 1997: 17-18). 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.Michael Jackson. h e reminds us. 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. political a n d philo­ sophical factors. military power and knowledge production has been b r o u g h t o n in part by global. a n d the understanding that n o discourse is valuefree (Asad 1979. In the wake of settler rule. 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. Their awareness of the inces­ tuous relationship between colonisation. t h e n . to make sense of a n d to m a n a g e the geographies of colonial inheritance. has c h a n g e d (Wafer 1996: 259-61). are now grappling with the history a n d politics that such a past has m a d e for them. Foucault 1980) have fed into the radical reconstruction that is underway in anthropological literature. each working in concert to n a m e . of an ongoing 'crisis' (Said 1989: 205-6. for the most part. testing o u r . e n t e r 'confederation'. Toward this e n d . issues from a tension between objective a n d m o r e subjective models of cultural analysis . in Paths Toward a Clearing (1988). anthropologists. 'self-government' and ' t h e nation-state'. first. anthropology has n o t lost its p u r p o s e . Marcus and Fischer 1986: 7-16). 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). 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'. ' t h e expedition'.the two models that are often invoked when explaining how anthropology 'should' be d o n e . that t h o u g h t is a way into a n d t h r o u g h the world . This space is cleared by Jackson's a r g u m e n t for a phenomenologically driven form of cultural analysis. Working within this tension . Hymes 1969.a dialectic that carries us from o n e idea to the next. ' 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.

affording us the ultimate a n d absolute final­ ities of t r u t h . interpret a n d write culture. as we are. Asad 1973. 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. 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 .124 AUDRA SIMPSON vocabulary against the exigencies of experience. anthropological discourse has r e p r o d u c e d a n d . 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. 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. of cultural creation . Mohawk Nationhood and Narrativity Rather t h a n focus his efforts o n the style of anthropological discourse. 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. It is for this reason that anthropology. His way into experience is 'radical empiricism'. their place a n d their way in the world. 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. In objectifying Indians a n d o t h e r anthropological subjects. Clif­ ford 1986).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.a space within a world whose horizons are o p e n . radical empiricism will be a m e t h o d with which o n e will experience. finally. As such. their culture. Hymes 1969. 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). 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. 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. For Jackson. as each shapes the o t h e r in the defining m o m e n t s of their exchange. per­ p e t u a t e d colonial relationships of power (Deloria 1969. 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. 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. where Indian p e o p l e may be. This testing of vocabu­ lary against the living of life carries o n e to 'a clearing' . In weaving these elements together in the writing of culture. Jackson's central preoccupations in this text are those theories of knowledge a n d power that should inform anthropological analysis. some have argued. as some c o n t e m p o r a r y anthropologists have d o n e (Crapanzano 1986.

o n e that attempts an under­ standing t h r o u g h listening. T h u s we have an alternative to the integrating.by placing experience at the very centre of his analysis. 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.witness canonical notions of history. 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 . where the p r e m i u m is on rec­ onciling various solitudes a n d ways of being. t h e n . As well.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 . If we were to argue. T h e r e is m u c h . 'minority nationalist' model of ethnic relations within a b r o a d e r framework of the state. In placing an overall p r e m i u m on the dialectics of being the currency of exchanges between people . 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 . H e r e is a philo­ sophically a n d sensorially t u n e d encounter.a perspective that embraces the politics of honesty (and humility). in Jackson's work that Indians should be con­ c e r n e d with. perhaps. But m o r e importantly. 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 . as Kymlicka would have it. from a generic 'native' perspective we might say (and rather simply at that) that 6 . Although Jackson is not a Mohawk.experience. observing. Jackson's arguments a n d suggestions bear on the particular concerns of contem­ porary anthropological practice . by engaging the flux of lived life. a partiality that Abu-Lughod likens to 'standing o n shifting g r o u n d ' (1991: 142) . t h e n . a n d having as its premise the untidiness and fluxist n a t u r e of culture. And other experiences clearly have mattered m o r e . nor is his work informed by the p l e n u m of their existence within the nation-state of Canada.a practice beset by a 'crisis in represen­ tation' . radical empiricism acknowledges the par­ tiality a n d shifting n a t u r e of knowledge. 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. literature a n d curricula.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. 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 . by listening in substantive ways to the voices a n d experiences within. his analysis bears o n this o t h e r crisis in conversation issues pertaining to native-state relations.

acquiescence a n d in some cases. 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 . toward a place a n d a state of b e i n g that is o u r own. analysts must examine the words a n d stories that p e o p l e share with each other. It is the prism t h r o u g h which many Indians view their historical experiences. It is t h r o u g h the provisions of the Indian Act that the Mohawks of Kahnawake. In o r d e r to appreciate these representations. 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. We live then in a tension that must be resolved. As with culture a n d the analytical a p p r o a c h that Jackson is arguing for. like those Indians belonging to o t h e r reserve c o m m u n i t i e s in Canada. 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. knowledge that we share and. receive their right to reside o n the 12 000 acres known as the Kahnawake Indian Reserve. 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. a m o n g these facts. It is because of these facts that we own. 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. This is a fact to us a n d is fiction to far too many others. themselves a n d their aspirations a n d t h o u g h t . out­ right battle. to the ways that Indi­ ans r e n d e r their own experiences into being. 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. the history a n d knowledge that we share of this past. this land. luck. 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. force. 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. 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- . to outside p e o p l e who claim it now as their own. belongs by the miracu­ lous interplay of history. In o r d e r to appreciate that experience. F u r t h e r m o r e . how they represent them­ selves a n d their p e o p l e to each other. but there is resonance still. 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 . 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 ' ) .126 AUDRA SIMPSON t h e r e are 'facts' that we own.' 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.

a process that n o t only signals to individuals the social ideal. 9 . is approximately ten minutes away from the c o m m u n i t y by vehicle. T h e p e o p l e of Kahnawake.St Constant. 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. 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 . the municipalities that s u r r o u n d the community . to exercise authority a n d control over the affairs of the reserve. Kahnawakero:non shape their historical a n d con­ temporary experiences t h r o u g h discursive practice . Delson a n d Chateauguay . 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. the Mohawks of Kahnawake are splintered from o n e of the Six (formerly five) Nations Confederacy. '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. but suffuses everyday life with a sense of n a t i o n h o o d . 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. at every t u r n .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'. 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. 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 ' ) . '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. 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 ) .non. a large multicultural city. 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 issue of policing a n d jurisdiction is a constant source of con­ cern. Montreal. 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.CITIZENSHIP IN KAHNAWAKE 127 mental structures a n d peoples that inhabit the political landscape of Canada. Kahnawake behave as o t h e r nations d o a n d attempt. To maintain a sense of themselves as a nation. the Iroquois or Haudenosaunee ('People of the L o n g h o u s e ' ) . 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.are largely white a n d f r a n c o p h o n e c o m m u ­ nities. 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.

I focus h e r e o n discursive practice or 'what p e o p l e say' to each other. '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. 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). Citizenship. 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. Ethnicity a n d structural inequality are often the starting points in analyses that e x a m i n e nationalism. 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. 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 . 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). H a u p t m a n 1986). Membership in an Indian community carries rights a n d obligations to that community. 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). 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. 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 h o p e to r e t u r n nationalism to the web of meanings that comprise culture . 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. 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 . 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').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. reside o n the reserve. r a t h e r than those that they have with the 'outside'. 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. Band m e m b e r s have the right to build a h o m e o n the reserve.the p l e n u m of experience. 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 . 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. or ignoring these interactions alto­ gether. By privileging the interactions that Mohawks are having with each other. r a t h e r t h a n ethnicity. 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.

let alone adjudicate. 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 . Using a radically empirical m e t h o d . This past is tied to ways of seeing a n d being in the world that are n o t ' p u r e ' . 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. 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. 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. b o t h self a n d nation are braided into past experiences a n d stories of those experiences (Kerby 1991: 1. From h e r e . we will g o to a b a n d council meeting. B h a b h a 1990: 1-7. 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. o n who an Indian is a n d . these narratives have b e e n provided to 'revalidate the everyday life of ordinary people. m e m b e r s h i p a n d Mohawk sov­ ereignty. 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. C o n n e r t o n 1989: 16-17). m o r e specifically. 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 . As well. We will go first to a bingo hall. 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 ' . p r o d u c i n g the on-going. which will provide a direct linkage m a d e by the elected council between law.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 .u p c o m i n g elections in July 1996. 10 . 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. At the same time Kahnawakeromon have h a d friendships.m o d e s of being that enter b o t h indigenous a n d 'statist' notions of being into a dialogue. 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 . 1994: 7. A text t h e n from Onkwarihwa 'shon: a.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 . what a Mohawk is a n d should be. to tell their stories in their own words' (Jackson 1996: 36). Questions that t h e n con­ front Kahnawakero.

T h e hall has yet to fill u p a n d Daniel a n d Martha. so to speak. in checking out the young w o m e n who work there. M a r t h a exclaimed: ' O h yes. as far as I know it). They seem m o r e interested. you t w o . She c o n t i n u e d with the details o f ' 1 3 5 ' s ' allegedly dubious family tree. 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. . are smoking cigarettes a n d we are talking. 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 .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. it's that dirty. a n d we are trying to figure o u t which security a n d which service staff are involved. food b r o u g h t in against regulations a n d o t h e r offences. T h e y carry walkie-talkies a n d look for cellular phones. T h e bingo is divided into service a n d security employees.1 know your m o t h e r [points at Daniel] a n d I know your father [points at me] . however. I am wait­ ing to play a n d killing time with them. 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.' We suddenly stopped laughing a n d Martha continued. walking a r o u n d h e r e like that.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.' Daniel a n d I are laughing o u t loud now. who work at the bingo. trying not to laugh. unfazed. We are 'rolling'. O u r con­ versation is redirected. however.30 per cent!' Now we are looking at her. listening. T h e security guards are all m e n a n d are mostly young. oblivious to the hickeys. David Dinkins a n d 135 himself. 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. I d o n ' t think either of us started to worry until t h e n .a n d I know your halves are whole.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. a n d Martha is just catching h e r breath. T h e service employees. skinny son of a bitch . 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. 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 . 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. she is excited with h e r information a n d the effect it is having o n us. stealing glances at each o t h e r . with the exception of R o b e r t a n d Daniel. are w o m e n . h e is lucky if h e is even 30 p e r cent! Look at him in that "Warriors" jacket .

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 ] . 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. She speaks in Mohawk. a b o u t individuals a n d who they are with. T know who you are talking a b o u t a n d h e has b e e n told. if we base things h e r e on anything else b u t the Kaienerakowa t h e n we will be racist. why we are in this mess. She is sitting by the chiefs at the front of the Knights. . . each of us has s o m e o n e in their family . h e knew what h e was getting in to. u 12 . Families are positioned in their usual seats. H e knows h e is supposed to leave. o n e w o m a n asks. 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. Why d o n ' t you p e o p l e [at the meeting] throw down The National Enquirer and. 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 . t h e r e is n o stigma o n half-breeds whose fathers are Indian. so d o n ' t think I d o n ' t know. a b o u t the Law itself a n d how it is applied. .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. 'What are we going to d o ' . She shushes m e . How can we deal with these contradictions?' An older w o m a n t h e n stands u p . What h a p p e n e d to that? You know. m e too.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. 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. I tell t h e m you can't come back h e r e . . 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.' 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. Some people are stand­ ing when they ask their questions a n d voices are raised several times. h e r voice is loud a n d she seems angry. 'with so a n d so? H e is with that white w o m a n a n d they have a child . read the Indian Act? It's all there. ' T h e r e are m o r e questions now. you have to know t h a t . 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. 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] . 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. H e r voice is rising a n d I ask my auntie what she is saying.' 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 .

And yes.] 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 ] . . Indeed. 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 . Nia:wen (thank you). it is N O T about who is the purer of the species. .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 . 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. 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. and that for once. it has to be very clearly stated that there is a big difference between being backed into a corner and being guilty of racism. it becomes a matter of who is entitled to those rights. It is about not allowing this to go o n any more. and it is about putting things right once and for all. n o t a c o d e . 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.132 AUDRA SIMPSON T h e w o m a n says in English. However. the tricky part is that.' Onkwarihwa'shon:'a ('Our Affairs') Racism. it is about survival. In any case the Mohawk Council of Kahnawake and the Membership Committee are dutybound to follow the wishes of the Mohawk People of Kahnawake. the question of who is entitled to what must still be answered in terms of who is actually Indian. In this. journeys can be agonising. by virtue of the kind of blood running through their veins. .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. if we're ever going to get this mess cleaned up. and clean-ups can be as messy as the mess itself. before they get any worse and a whole race of people is eradicated. H e t h e n says: 'If a traditional system is a p p r o p r i a t e . (Chief Allen Paul 1995: 5 . T h e aspect of the debate on membership is fixated on the term 'blood quantum' . I can only ask that our own people contribute in any way they can.] S h o u l d o u r w o m e n have to d o that . Yes. and no-one else. We got to t h e Knights early a n d w o r k e d o n his platform.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. race is involved in the matter Native Rights [sic]. Here. In recent times. At times. despite any such difference. t h e n so be it. It is about wrongs done through five hundred years of history to an entire race of people. However. 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 . It is about justice. to the setting straight of the membership issue. long journey ahead of us. and if nothing else at all. non-Native powers honor their part of the Two Row Wampum Treaty and stop meddling in our affairs. we have a long.

what was he saying? Without giving us time to talk to each o t h e r h e started his platform. ' Kwe Kwe. I make a note to myself to vote for him next week. a Chi­ nese restaurant a n d take-out that o p e n e d o n the reserve . T h e words. I jolted upright. 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 was telling stories. H e h a d n o paper. O n e talked about land. 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. 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 . T h e platforms c o n t i n u e with most candidates going over their allotted ten minutes. 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. 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.h e milks it m o r e because everyone is laughing. W h a t ' c h a got Cooking?' Everybody started laughing. were sung to the very recognisable t u n e by H a n k Williams. Much to my surprise. looking at him. 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. although u n k n o w n to m e . taking notes the whole time.' h e bellowed. 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. n o index cards a n d n o unifying t h r e a d that I could identify at the time.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.maybe alluding to the co-owners of Way Ta Le. a n o t h e r talked a b o u t his past. 'Hey Good Looking. I m e a n . o u t of the blue: T d o n ' t like blood q u a n t u m . 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. make full sentences. T h e first candidate is a m a n in his thirties. r e m o t e in relation to 'Town' which is m o r e central. you could live o n the Farm [farmland off Highway 120 going towards St Con­ stant. really try? It is n o t e n o u g h to tell your children "satien" [sit down!] or "tohsa" [stop it!]. 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. a n d smiled while waving to the a u d i e n c e . I am thinking h e is like Charlie Chaplin a n d an ironworker all in o n e .what was h e doing. 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 . And t h e n h e said. It was Sak's t u r n . glancing at each other .' H e now starts speaking Mohawk with a Mandarin accent . I was tired. H e walked to t h e mike a n d raised his h a n d . h e started to sing a song in Mohawk to the people.

at a place where we could listen to indigenous voices that speak. a n d I agree. H e wanted to know what they said. 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. walk and talk the stuff of n a t i o n h o o d . . This conversation. Sak was a Mohawk language teacher a n d we like him for this. working at the Iroquois Indian Museum. a n d speaks in Mohawk. but . should be predicated on lis­ tening. New York. I am listening to h i m a n d watching him. that this conversation is s o m e t h i n g that might make Canada a better place to be. a n d so it was to the problematic of indigenous n a t i o n h o o d . We looked then at anthro­ pology a n d its structural a n t e c e d e n t s to arrive. I stop taking notes. 'We n e e d some young blood in there. 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. / could tell you a story about membership that would break your heart. h e is teach­ ing us what being Mohawk is.h e is making fun . .a n d in d o i n g so. H e wants to know who. Post-candidates Night: the Phone Call My g o o d friend is in Albany.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 .' h e says. It was a r g u e d that anthropology is shaped still by colonialism . 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.it's your ancestry . an Indian m e a n s of expression. some might say strangely. People are laughing and I ' m laughing too. I tell him a b o u t Sak's song a n d his platform. or how many beads you put in your ears . but I won't. s h a p e d its language a n d gave it some authority have c h a n g e d . we might all agree. . 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. if anybody. Now I know. H e is imitating us . said anything a b o u t education.' Sak sings m o r e songs.that the geo-political relationships that gave it pur­ pose. We are laughing at the platform and at m e trying to imitate Sak imitating everyone else. H e is holding u p a m i r r o r to us a n d we are laughing at ourselves. . 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. H e called m e after the meeting a n d we are talking about the platforms. 'My band n u m b e r is lower than your b a n d n u m b e r ' ] . It was this a r g u m e n t : that political theory desires a conversation with Indians. that we turned. 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.

however. creativity. 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 discussion of these issues b r o u g h t us to Kah­ nawake a n d these stories . the categories that they place o n each o t h e r ' s being . are now woven into its preoccupations a n d discourse. to anthropology.that they are tied to stories a n d these stories are tied to ourselves. to Jackson. reflexivity. a n d yet miraculously neutral. is it possible to listen to each o t h e r in a sub­ stantive a n d meaningful way. 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.stories that are laced together with hopes a n d desires for control a n d authority over life . 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 .may be lost o n you.the question of how anthropologists are to speak about p e o p l e without speaking for people .CITIZENSHIP IN KAHNAWAKE 135 the impetus for research has r e m a i n e d the same.can this ever be a directed. T h e effects of conquest. o n e e m o t i o n to a n o t h e r . 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. at dmes.the names that Kahnawakeromon have for each other.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. to step u p o n the terrain of a g r e e m e n t . 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 . 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. by some miracle. As well. by what they say a b o u t each o t h e r . revision. 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. T h e intricacies of these stories . Leaving the Knights of C o l u m b u s again. locality a n d experience? And. nervousness and. reactionary discourses. b u t that is fine. I want to r e t u r n once again to polidcal theory. 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 . a n d only for a m o m e n t .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. to share the interior frontiers of Mohawk n a t i o n h o o d .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. 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.the traffic from o n e c o n c e p t to another. T h e p o i n t of sharing these narratives was to contribute something to this conversation. a n d ask if this praxis that h e talks a b o u t . as Tully a n d others are trying to do? .

sensorial deposits as well as per­ sonal a n d collective desires.h e squares himself o n the g r o u n d that h e stands on. like n a t i o n h o o d . forgetting. Are Kahnawake's attempts at finding a way back into the world . We wait together for an answer. 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.we listen for a response from somewhere o u t there. 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. h e takes aim a n d h e fires. m u c h like the social a n d cultural analysis of the past. you too will take shots that are shaped by these lessons: memory. It is n o t objective.to find a clearing . I n d e e d .an objective a n d value-free affair? Can we liken their attempts to find this clearing.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. We watch the shot cut t h r o u g h the sky until it fades into sud­ d e n dissolution . thought. He looks to the g r o u n d . 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 . and as such is shaped from social interactions. is a process. 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. . e m o t i o n a n d vocabulary against the exi­ gencies of the present. I think that we can. the sense a n d specificity of life a n d those a r o u n d you. H e is like us . n o r is it a r a n d o m praxis.

a n d that . 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.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 . b r o u g h t this Utopian view into question.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. 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. 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. 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.(Taylor 1989) O n e could easily b e forgiven.apart from the occasional deviation along the way . 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 . 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 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.s e t t l e r rela­ tions are thus an o n g o i n g dynamic. in t u r n . 'Feelings and memories of a Kuia. however. for thinking that the worst of the colonial legacy has b e e n p u t b e h i n d us. 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. with many issues still r e m a i n i n g to be resolved. I n d i g e n o u s . 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.

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. In d o i n g so I challenge the validity of political theory that speaks in terms of abstract rights without recognition. providing a firmer ontological foundation for a 'politics of difference'. 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.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. ironically. This c h a p t e r argues that this new foundation can. 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. situated expe­ riences of those individuals a n d groups whose plight led to the creation of those very same transcendental principles. 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. 2 . 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. thereby effectively exclud­ ing any c h a n c e of recognising notions of social transformation and c h a n g e .138 MANUHUIA BARCHAM . which in turn is the same as what will be. 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. While this process has led to the creation of a voice for ' a u t h e n t i c ' indigenous claims. 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. 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. or regard to. the fact of the continually changing n a t u r e of the specific. 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. be found within the very body of work known best for its anti-foundationalism poststructuralism.

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 ' . an operational 'politics of difference' based o n this atemporal dichotomy of being/ non-being may lead . 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. 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. 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. This subordination. thereby effectively excluding recognition of the possibility of' becoming'. 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. however.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 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. particu­ larly since t h e E n l i g h t e n m e n t . Difference was placed in a position of subordination to identity. 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. as various minority g r o u p s attempt to assert their right to difference. as identifi­ cation b e c o m e s a process structured a r o u n d the recognition of fixed selves . m o r e often than not. 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. taken identity as the definitional e l e m e n t of t h e relationship. Western t h o u g h t has. r e d u c e s g r o u p identity to a dichotomy of being or 'non-being'.t h r o u g h the synchronic reification of c o m m u n i t y . 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. a n d p e r h a p s unintentionally. 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. In overcoming this p a r a d o x . 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.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. In the transference of ideas of g r o u p identity to the level of policy imple­ mentation. has led to problems in m o r e recent times. T h e prioritisation of identity over difference thus acts to restrict the possible forms that identity can take.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 .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.

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 . 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. 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. however. 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. w h e n this interpretation of indigeneity is used as the basis for policy creation. as are all identities. While at a superficial level these struggles are often dismissed as merely altercations over funding. 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 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.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. as these 'facts' are intri­ cately linked to the conceptualisation of identity as a state . a close reading of these disputes reveals a m u c h d e e p e r problem at work. essentialised con­ ception of indigeneity.an action that has. socially constructed a n d historically c o n t i n g e n t .140 M A N U H U I A BARCHAM cultural n o r m s a n d traditions. 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. in turn. Indigeneity is taken as a 'natural' a n d unproblematic category where in reality it is. 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. h e n c e synchronic. Indigenous rights are thus generally seen as being d e p e n d e n t u p o n an ahistorical. basis. It is with regard to these predicated con­ ceptions of indigeneity that the p r o b l e m lies. Problems arise. 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 . as has b e e n the case in New Zealand. 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.

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. as in N o r t h America. services.P O L I T I C S OF I N D I G E N E I T Y 141 rights as constituting a Treaty-based partnership between the Crown a n d iwi. however. an action that effectively excluded a n d delegitimised o t h e r forms of Maori community. 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. 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. thereby creating a paradoxical process whereby the Crown construed the Treaty against 'Maori who are n o t organised in traditional tribal groupings. its legacy of iwi with a strong centralised structure remained. while at the same time acknowledging that such people have Treaty rights' (Waitangi 6 7 . b e c o m e subsumed u n d e r the rubric of the 'tribe'. territories a n d institutional forms acknowledged by the law were those that existed in 1840. 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. 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. 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. Similarly. T h u s . 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. 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 ) . 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 . 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. 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. 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). 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. And although the Runanga Iwi Act was repealed the same year it was passed. 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).

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. This standard m o d e l o f ' a u t h e n t i c ' Maori socio-political organi­ sation.3 0 ) . Iwi institutions can therefore be said to be n o m o r e authentic than other forms of Maori associational organisation. 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. h a p u (clan) a n d iwi (confederation of h a p u ) . Certain Maori elite. wherein records were kept of customs of the newly discovered peoples. 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. Metge 1964). such as Elsdon Best a n d Percy Smith. with their size a n d functions varying widely from region to region (Walker 1989: 3 5 . Maori traditions a n d organisational forms were thus objectified a n d reconstituted in a timeless asynchronicity. a historical fact high­ lighted by Angela Ballara (1998) who demonstrated in a well-researched . from which iwi have (re)gained their c u r r e n t status is. 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. present a n d future (Meijl 1996: 3 2 9 . who were h o p i n g to salvage ethno­ graphic histories of Maori traditions for the future. 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). 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 .past.5 2 ) . 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 . 8 The Challenge of Urban Maori Maori society is generally perceived as being traditionally organised along a framework of kin-based descent groups. however. 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. such as Sir Apirana Ngata a n d Sir Peter Buck. 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 .142 M A N U H U I A BARCHAM Tribunal 1998: 210). 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. 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. Webster 1975).

however. 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 . Following the signing of the Treaty of Waitangi. 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. 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. a n d an unsuccessful attempt to establish a separate parliament. 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 ) . with nei­ ther being to the exclusion of the other (Barcham 1998). 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. T h r o u g h o u t this period. iwi and hapu found themselves at the e n d of the nineteenth century facing an everdecreasing power base (Maaka 1997: 3 ) . 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 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. apart from those of equal citi­ zenship. However. the loss of their military power in the 1860s. T h r o u g h o u t most of the twenti­ eth century iwi were thus relatively weak politically. are valid only for iwi . Maori maintained a distinct group identity. 9 1 0 11 12 Two r e c e n t disputes between Iwi Maori. and m o r e a cultural institution than a political o n e . . 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. d u e to the fact that the legislative environment u p to this point in time has asserted that Treaty rights. 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.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.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. even in the face of the radical social restructuring that the shift to the urban environment entailed.

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 u s . were d e n i e d funding.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 . T h e Trust based its claim instead o n the a r g u m e n t that its exis­ tence. Dissatisfied with their t r e a t m e n t by the CFA. 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). 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 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. 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. 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 . In contrast to the case p u t forward by the Trust. the Trust argued. the Crown argued. on behalf of the CFA. 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. the 'Te W h a n a u o Waipareira Trust' . 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 ' .which they. Problems arose when certain Maori organisations who did not fit the restrictive legislative criterion of an iwi.defined as a 'tra­ ditional' tribal body . a n d as the communities' chosen institutional body. yet who felt they were entitled to funding o p p o r t u n i t i e s as Maori. 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 . were sworn to uphold. the Trust took their claim to the Waitangi Tribunal for a r b i t r a t i o n . that the Trust was not an 'iwi' as the agency under13 14 . the Te W h a n a u o Waipareira Trust argued.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).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. This absence of negotiation a n d consultation. as a p a r t of the institution of the Crown. 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.the representative body of West Auckland Maori. O n e of these organisations d e n i e d funding. T h e m e m b e r s of the Trust did not claim to be an iwi .

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. Maori fishing rights as recognised u n d e r earlier fisheries legislation were to be wiped off. In return. however. 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. a n d therefore n o t considered a Treaty p a r t n e r of the Crown. T h e Te W h a n a u o Waipareira Trust was disqualified u n d e r the Children. 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. particularly u r b a n based Maori organisations. a n d t h r o u g h the institutional a n d organisational forms they chose. 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. Moreover. a n d that u r b a n Maori were therefore entitled to a share of the cash a n d assets. Young Persons. 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. 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. It was u p to iwi to decide how those assets were distributed. 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. the setdement could only go to iwi. this interpretative exclusion has the potential for even greater political. 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 . social a n d e c o n o m i c ramifications for the New Zealand Maori population. 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.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 . This restrictive interpretation by the New Zealand g o v e r n m e n t of the recognition of difference. a n d so n o t entitled to consultation or special consideration. 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 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. T h e Fisheries Com­ mission held the view. that since the settlement was in exchange for fishing rights that belonged to iwi. and Their Families Act 1989 from being treated as an 'iwi social service' because it was n o t kin-based. 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. Non-iwi g r o u p s however. 15 .

For. Justice Paterson ruled. In this new case the presiding j u d g e . Justice Paterson further ruled that in terms of the allocation of these assets. In a long a n d detailed decision. following the wording of the Maori Fisheries Act (1989). 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. This decision was then appealed. as a m e n d e d by the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992. however. T h e case of noniwi Maori in New Zealand d e m o n s t r a t e s that. Non-iwi Maori. thus act to destabilise the currently accepted bases of indi­ geneity. Instead. 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.with their composite selves positioned simultaneously along multiple social axes . 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. Justice Paterson. h a d to rule on two decisions: should Treaty assets go only to iwi? If the answer was yes. 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. but in late O c t o b e r 1999. rights that some argue that ' u r b a n ' individuals have lost. the New Zealand Court of Appeal u p h e l d Justice Paterson's interpretation of iwi. T h e p r o b l e m .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 . specifically represented in the examples above by u r b a n Maori. T h e realisation must be m a d e . only 'tradi­ tional' Maori tribes qualified as iwi (Paterson 1998: 82). however. while the recognition of dif­ ference is reconfiguring the space of politics. 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.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. While Maori embody a plurality of self . 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. 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. 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. 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. (Maaka 1993: 213) .

Webster 1975). for while the first t e r m is usually defined positively. 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 . These binary pairs are not gener­ ally r e g a r d e d . T h e problem facing us. In the case of New Zealand. as r e p r e s e n t i n g two equal terms. placing the second term within a position of subordi­ nation. 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. can b e found within the b r o a d body of work commonly known as poststructuralism. Secondly. This view is mistaken for a n u m b e r of reasons. yet no-one can deny their Maori-ness. the second is customarily defined negatively as the absence of the first. 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 d o m i n a n t term defines the ter­ rain of the other. In New Zealand. 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. 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. 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). their identity is currently shaped m o r e by their disadvantaged position in New Zealand society than by interaction with 'traditional' frameworks. as their physical characteristics a n d day-to-day interactions confirm their Maori identity. however. I argue. many Maori n o longer identify with iwi. T h e genesis of this answer. 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). then. 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. because of the traumatic experiences of colonisation a n d urbanisation.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. constantly shifting their defini­ tions over time (Ballara 1998. Thirdly. 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. a n d h e n c e able to adequately take account of notions of change. First.iwi .has b e c o m e a sim- . 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.

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 . Reflection on poststructural notions of becoming. however. 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. ever-changing a n d ever-moving. It is this cre­ ation of a space of 'becoming. Similarly. or social formation' . leads to the erasure of the founda­ tions of this distinction. nihilistic state of chaotic flux (Graff 1983). yet they are not in themselves 'not indigenous'. in theoretical a n d practical terms. 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. wherein neither notion of identity nor difference is prioritised over the other. While each of these terms is constitutive of the whole. a d a p t e d to any kind of m o u n t i n g . specifically urban Maori. Representation of Maori difference has thus assumed a clear distinction between the 'indigenous' a n d the 'non-indigenous'. So. T h u s . 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 forever postponed. so poststructuralism shows us we can never fully know the determi­ nate characteristics of a body. g r o u p . 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. Representation. thus collapse into contemporaneity spatio-temporal oppositions such as indigenous and non-indigenous. 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. reworked by an individual. 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. Instead. while some have claimed that the infinite sliding of the Derridean signifier means that poststructuralism collapses reality into a constantly shifting. mod­ ern a n d traditional. it is detachable. 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'. that opens u p the possibility of cultural identity that entertains difference without the assumption of a temporal hierarchy. 1983). I see this shifting characteristic of Derridean play as a strength. Representation has thus b e e n conflated with the thing-in-itself. a copy of a copy. Non-iwi Maori. m o r e real than the reality it supposedly rep­ resents (Baudrillard 1983).148 MANUHUIA BARCHAM u l a c r u m . 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. reversible. through their occupancy of the indeterminate third space of 'becoming. 'the m a p is o p e n a n d connectable in all its dimensions. however. 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. T h e supposed n e e d .

difference. for example. In the public policy field. the long-term gains of a temporally sensitive basis for recognising and accommodating difference will far outweigh these earlier costs. b u t focus o n the reali­ sation that the subject of rights is n o t a juridical subject. We can therefore d o away with the impossible d r e a m of precisely defining existence. We should thus n o t 'speak of a dualism between two kinds of "things". In addressing the idea of indigenous rights we should appeal n o t to an atemporal a n d juridically (pre) conceived subject. 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. for while all identities are f o r m e d t h r o u g h difference. In practical a n d theoretical terms we cannot. would approxi­ mate the d e g r e e of self-reflexivity that this a p p r o a c h endorses. 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). 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). r a t h e r than suppress. We should look to the processes that shape o u r lives. 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). 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. 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. b u t of a multiplicity of dimensions. all identities are simultaneously t h r e a t e n e d by these same differences. a n d thereby allow for the creation of policies that engage with. while n o t celebrated. the use of peri­ odic reviews. r a t h e r than the organisations that r e p r e s e n t us. . is at least recognised. for guidance o n how to construct a m o r e ontologically s o u n d politics of difference. rather it is a sub­ j e c t formed o u t of specific processes a n d sites of struggle (Ivison 1998). These destructive impulses can. n o r should not. a n d the official recognition of the legitimacy of the process of self-definition in the construction of official policies. however. 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 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. 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 .POLITICS OF INDIGENEITY 149 (Deleuze a n d Guattari 1987: 25). d o away with representation.

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). 17 'Aboriginality' and 'indigeneity' were originally constructed to acknowl­ edge a specific form of difference and to overcome certain forms of discrimination. n o t iwi. where evidence points to the exercise of rangatiratanga. 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'. 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). of 'continually recon- . however. it is rangatiratanga that deter­ mines which of those relationships have c u r r e n t significance' (214). . kin-based or not. . In ruling on the Waipareira claim. 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. h a p u or whanau. 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 that while 'kinship a n d descent provide ready-made net­ works of relationships a m o n g Maori .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. the Tribunal suggested that section 396 of the Children. as iwi. in exchange for the promise of the Crown to protect Maori rangatiratanga. 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 . Arguing that Maori perform best when the princi­ ples of rangatiratanga are maintained. With respect to this. did not provide a complete explana­ tion of Maori identity. T h e problem remains. 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 . the restricting of the devolution to tribal authorities h a d been. while being modern descendants of earlier forms of kin-based Maori institutional form. . In accord with this finding. 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 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. In response to these a r g u m e n t s . 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. . n o t with some specific institutional or organisational form such as the tribe. Young Persons. the Waitangi Tribunal found that ran­ gatiratanga lay with Maori people.

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. Where manifest aboriginality in these terms does not exist. both in theory a n d in practice. It is time. . 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. 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. drained of their content by European contact.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. Also. 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. 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. as b o t h can act as appropriate mechanisms for the recognition a n d exercise of indigenous rights. any engagement with notions of indigeneity must take seriously the realisation that indigenous cultures and societies necessarily change over time . (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 realisation enabled by the embracing of poststructuralist notions of differance and play. W h e n institutional structures are set u p to force p e o p l e to fit into prescribed tribal divisions. and capable only of echoing the loud noises from European society. a world in which the dynamic char­ acter of Maori. dynamic relationships between its m e m b e r s . In practical terms. people are perceived as empty vessels. while devising strategies that accommodate the diverse Aboriginal identities associated with place and region' (Stokes 1997: 170). T h e spirit of Maori society lies n o t in its organisational structures. 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. If this realisa­ tion is n o t m a d e soon. has never been lost. a n d other Fourth World cultures. but in the o n g o i n g .

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. In the basement storeroom I was shown an amazingly large collection of cultural products such as the usual boomerangs. 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. spears and shields. these cultural symbols are used without recognition of their source or displayed in a way that offends indigenous peoples. 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. According to their tags they had been taken from many areas 152 . This was evident during my visit to the Royal Museum of Scotland in Edinburgh in 1996. 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. 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). 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). Consequently. 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. Unfortunately. may result in its disclosure to individuals who are not authorised to know or view such material.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. particularly secret or sacred items.

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. an Aboriginal sacred item was on full public display. 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'. 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. to my shock a n d horror. illuminated pagan R o m e ' (Greenfield 1989: 10). including the area known as the Port Phillip district. 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. . 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 . 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. Later. according to the Pope. I walked a r o u n d the public area of the museum and. . 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. During the n i n e t e e n t h and early twentieth centuries. 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. 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. Or. This ideology . T h e m u s e u m would. 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. 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). In the n o r t h of Australia. dating back to the 1890s. T h e remaining items were subsequently placed in the new Vatican museum.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. 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 . which o p e n e d in Rome in 1927. I was told the item was displayed for its 'aesthetic beauty'. 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.

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. 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). 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. as it was d e e m e d necessary to clear the way for the 'white nation'. sideshows a n d carnivals. 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. finely balanced. 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 part of the fascination with ' t h e O t h e r ' . 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.154 SONIA SMALLACOMBE justified the violence. irretrievably shattered t h r o u g h con­ tact with whites'. literature a n d p e r f o r m i n g art. 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. which systematically removed us from the images and language of the new nation. dispossession a n d incarceration of Australia's indigenous population. video. but also t h r o u g h the nation's collective amnesia. wine bottles. Q a n t a s jets. music. Aboriginal designs a p p e a r on T-shirts. as logos for major companies a n d advertisements for Aus­ tralian events. Not surprisingly. 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. 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). Aboriginal a n d Torres Strait Islander peoples have b e e n relegated to the rhetorical status of'First Australians'. vaudeville tent shows. Not surprisingly. 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. 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. Aboriginal a n d Torres Strait Islander cultures have often b e e n por­ trayed 'as fragile. but also within the tourist industry. . As a result. film.

sculptures a n d dot paintings in a c o n t e m p o r a r y sense. We're receptive to what Aboriginal artists. 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 . a n d t h r o u g h power relationships of . is very m u c h evident in Australian society. particularly with regard to the conditions in which such artwork is p r o d u c e d . 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. 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.and as others see us. an Aboriginal art expert. 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). (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'. T h e h u n g e r for the 'exotic'. is o u t of step with reality. 'primitive' a n d 'the u n k n o w n ' . writers and performers have to say. 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). u n t o u c h e d by 'civilisation'. 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'. 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. dancers. 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. In a very real sense they are helping to reshape our own concept of self and of country . This observation was m a d e by Djon M u n d i n e .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. 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.of the way we see and feel things as Aus­ tralian . Hayden's speech reinforces the view that only cer­ tain aspects of indigenous culture are acceptable to the Australian nation. which is often based on their assump­ tions of the ' a u t h e n t i c Aborigine'. which is part of the fascination of ' t h e O t h e r ' . While intending to be complimentary.

Such a construction is continually reinforced because a majority of Australians only occasionally interact directly with Aboriginal a n d Torres Strait Islander people. lobbied for legislation (to protect Aboriginal her­ itage) that was introduced in all Australian states in the late 1960s and 1970s. which were highly valued as part of the E u r o p e a n cultural a n d archaeological tradition. . in every academic discipline. Western Constructions of Cultural Heritage In the past. who were somehow 'less Aboriginal' and thought to have 'lost their culture'. a n d Aboriginal people living in urban areas. 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. particularly in the south-east of Australia. 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. Anderson 1993: 24). particularly in the south-east of Australia. and rock-art sites were seen in terms of their aes­ thetic a n d public value. are often found in academia where they create Aboriginal Australia for the majority of non-Aboriginal Aus­ tralians. and held u p as rivalling those of. A small g r o u p of academics. white academics ignored the connections a n d relationships between these cultural sites a n d the living Aboriginal communities. They were often c o m p a r e d in quality with. Archaeologists were preoccupied in protecting their sites from indiscriminate destruction and from unscientific. the representa­ tions of Aboriginal people have occurred without any reference to the voices of Aboriginal people (Harris 1996: 29. Not surprisingly. These commentators. Distinctions were m a d e between Aboriginal people living in the remote areas who were destined to 'die out'.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. 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. but at the same time were the 'authentic Aborigi­ nes'. consisting mainly of archaeologists a n d anthropologists. knowledge a b o u t Aboriginal a n d Torres Strait Islander sites. Europe. amateur and destructive research. This lobby g r o u p did not have any input from or the support of Aboriginal people. a n d therefore rely o n the accounts of 'expert c o m m e n t a t o r s ' . As a consequence. These sites were considered to have important her­ itage a n d scientific value. 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. because of the belief that there were n o 'real' Aboriginal people left in this part of the country (Sullivan 1985: 141). who still rely o n anthropological constructions.

T h e devaluation of . any form of protection must c o m e from specifically designed legislation that has to be sensitively interpreted by the courts. 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. there was little involvement by indigenous Australians themselves (Laws of Australia: Aborigines 1995: 7. 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 . and to chattels such as cultural property (Laws of Australia: Aborigines 1995: 7-11). What has been considered worthy of protection has usually been on the basis of its scientific. Gray 1993: 10-11). 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 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. the former Aboriginal a n d Torres Strait Islander Social Justice Commissioner. 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 . 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. in the same way as w o m e n ' s knowledge d o e s within most western societies. As previously stated. enshrines E u r o p e a n archaeological and scientific values and.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. (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. aesthetic or sheer curiosity value. 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. as such. protects Aboriginal cultural heritage on that basis. Boer 1991: 88). Because cultural heritage is a collective right a n d not adequately protected by c o m m o n law doctrines in Australia. as a western con­ struct. 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. Mick Dodson. has this to say about the way west­ ern society views indigenous cultures: Our values have been filtered through the values of others. Therefore cultural heritage. historic. 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.

including some sec­ tions of the Ngarrindjeri community. 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. 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 was forced to resign from the Opposition front b e n c h . Subsequently. 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. developers a n d m e m b e r s of the public. 1 . 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). supported by the South Australian g o v e r n m e n t . 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. operating in this country. British law. For many Australians. T h e c o n t e m p t toward Aborigi­ nal beliefs was evident when a former Coalition front-bencher. 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 . Ian McLachlan. despite the application of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth). 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. 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. McLachlan's criticism. McLachlan's intention to invade the secrecy of w o m e n ' s business was evident in March 1995. Many Australians believe there is only one law. 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. 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. which sought n o t only to question the validity. which holds that all Aboriginal spir­ itual beliefs are ' n o m o r e than fairytales'. has resulted in bitter conflict that has never b e e n satisfactorily resolved. As a result. 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. 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. 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.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. 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).

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 . 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 . if Bula were awakened. 'the whole c o u n t r y would shake. however. they are dismissive of the idea that Aboriginal women in the rural a n d u r b a n south possess spiritual beliefs. are contemptuous of Aborigi­ nal a n d Torres Strait Islander spiritual beliefs. 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 . At the same time. that there are various levels of c o n t e m p t operating. a major creation figure that would wreak havoc if disturbed. 16. This area is c o n n e c t e d with Bula. who broke ranks with most colleagues a n d carried Cabinet to ban mining on Coronation Hill. 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. 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. According to a Jawoyn elder. the traditional owners. T h e differences are based on g e n d e r and concepts of Aboriginality. black m a n ' (Land Eights News 1989: 2. H e went on to say 'it would be just as preposterous. 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. for spokespersons for the Aboriginal people to question the Chrisdan mysteries' (Chamberlin 1995: 6). 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. In o t h e r words. in my j u d g m e n t . In contrast. Bob Hawke. before the media. bullock. C h a m b e r l i n 1995: 6).w o m e n are forbidden from knowing the details. 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. or Sickness Country. Many Australians. 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. 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'. Further. the Jawoyn people. It can b e argued. especially after having h a d e x p o s u r e to western forms of knowledge. particularly developers. the Jawoyn elders portrayed in the m e d i a coverage fit within the colonial ideals of . where the indigenous population were dispossessed of their lands in the 1850s when they were removed to nearby Port McLeay Mission (Tehan 1996: 12).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. white man. everyone going to die. T h e Jawoyn people were successful in their bid to stop mining because of support from the then Prime Minister. In this case.

It is often assumed that science is objective a n d value-free. technical rationality. that is. a n d experts may be able to verify authentic p r o v e n a n c e . o n the knowledge a n d cultural systems of indigenous peoples. surveying. T h e categorising of indigenous cultural knowledge. medically dissecting. 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 . the idea that Ngarrindjeri people may possess a religious belief system com­ parable to western religious beliefs was never acknowledged by the legal system. 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. Science and its technologies have been i m p o r t a n t tools of colonisation. For example. a n d employed extensively in measuring.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 . the interests of the developers were clearly definable and hence there was the compulsion to find a clear concept of 'heritage'. Consequently. affect national a n d international laws and conventions. thus r e n d e r i n g t h e m subordinate to western systems. T h e generalised model of western science is based on control. 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. 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. Consequently. this case was highly con­ troversial. the one 'true' ver­ sion of the religious beliefs and cultural system of the Ngarrindjeri peoples. However. including reli­ gious beliefs. At the core of the debates is the privileging of western 'science' above all else. indigenous peoples a n d their knowledge systems are subordinated to . while the western legal system may find ways to deal with disputes over buildings. order. In the K u m a r a n g k / H i n d m a r s h Island case. and the exclusive domain of non-indigenous populations. the western legal and politi­ cal institutions were called u p o n to balance the interests of developers and the Ngarrindjeri claimants. 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. 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. Western concepts of heritage are based on the construction of hierar­ chies a n d classifications that are imposed. discipline a n d m e a s u r e m e n t (Davis 1996: 2). including ancestral remains. 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. and the court­ r o o m has the function of balancing these interests. objects a n d environmental heritage. In performing this task. 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. classifying and controlling indigenous peoples. t h r o u g h the colonising process.

even t h o u g h 'science' is designated as 'knowledge' (Davis 1996: 2). or to assert custodianship over sites have been met with incredulity. a n d emotionally a n d politically charged. T h e idea that indigenous knowledge could be regarded as indigenous 'science' is viewed with some scepticism by some academics. categorise a n d evaluate con­ cepts in indigenous societies. 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). 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. 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. Further. to ask western institu­ tions to return indigenous cultural property. to a large d e g r e e . 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. This is par­ ticularly evident in the policy-making areas. 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. as a result. However. failed to recognise that indigenous conceptual systems have their own internal logic a n d rationality. there has been a gen­ eral lack of recognition toward indigenous cultural heritage. the world view a n d cultural matrix of o u r societies are attacked. 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. colonialism is p e r p e t u a t e d . where western terminology a n d concepts are imposed as a way to define. What seems to b e at the core of these disputes is that western perceptions have. denying. any indigenous feelings and connections toward our own heritage have not been accepted as legitimate. b u t that o u r systems a n d concepts should guide the debates. a wedge is thrust between the object a n d its m e a n i n g a n d .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. in Australia. As illustrated previously. As a result. resentment and denigration of these claims. It offers a distinctive world view that outsiders can rarely grasp. 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 . 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. 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. This may also e n a b l e us to control a n d challenge the myths regarding o u r Aboriginal- . misrepresenting or fabricating the concepts or categories of indigenous peoples. 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. As a result. W h e n o u r knowledge is fabricated by outsiders.

. exploitation. we n e e d the protection a n d the right to say ' n o ' to commercialisation. 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). d o n a t e or share o u r knowl­ edge. As i n d i g e n o u s peoples.162 SONIA SMALLACOMBE ity. If we choose to commercialise. misuse a n d abuse of o u r cultural resources.

This brings together the political force of Aboriginal or Torres Strait Islander solidarity with a notion of a geo­ graphically diffuse nation (Reynolds 1996). 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. should self-determination be u n d e r s t o o d in terms of a bi. 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. histories a n d cultural practices. Debate about Indigenous Self-government. 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. 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. m a d e u p of the non-indigenous nation. 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. 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. For example. 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.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. 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.or tri-national confederation. and the diversity of Aboriginal communities. 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 ' . given the array of goals that self-government is supposed to meet. 16S .

T h e formal recognition of indigenous entitlements to land con­ tributes to at least two goals: first. 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 . Michael Mansell's a p p r o a c h to indigenous self-government. 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. a n d between communities a n d regional bodies such as land councils. recognition of distinct indigenous interests in land (that is. e n h a n c e d selfd e t e r m i n a t i o n of indigenous groups. including discrimination a m o n g indigenous p e o p l e . 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. or has lived. Further. O n e potential source of tension between indigenous peoples is the absence of a compelling m o d e l of political representation. should the relevant groups be identified in terms of location who lives. 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. without loss of the political force of indigenous identity within a b r o a d e r Aboriginal nation. For e x a m p l e . 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. any move towards recognising group-specific entitlements . 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. 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 example.including rights of self-government . Delegates from those communities would come together u n d e r t h e umbrella of the Aboriginal nation. 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. interests based on prior occupation a n d cultur­ ally specified rights a n d responsibilities). 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). Each a p p r o a c h that may be considered. 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 . effective representation? Further.164 J O H N BERN A N D SUSAN D O D D S 1 given t h e small indigenous populations involved. In t h e area of native title.involves some discrimination a m o n g possible bene­ ficiaries of such rights. a n d second. by contrast. T h e interests of local c o m m u n i t i e s are given centrality. between communities.

In o t h e r words. 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. 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. 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 B O R I G I N A L L A N D RIGHTS 2 165 knowledge of spiritual or o t h e r connections with the l a n d . these may reflect the (sometimes overlapping) difference in interests held by different g r o u p s within particular Aborigi­ nal communities. may n o t even know of their Aboriginal descent (Bringing Them Home 1997: 296-301. a n d / o r s u p p o r t a r g u m e n t s against greater selfdetermination. Political theorists. discriminates against p e o p l e whose historical associations are post-contact. the emphasis o n continuity of physical association in the Native Title Act. In this chapter. 419-20). a n d o n descent a n d spiritual responsibility in the Aborigi­ nal Land Rights (NT) Act. • 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 . a n d wish to have c o n t i n u e d access to the land for those purposes. arguing for greater recognition of indigenous inter­ ests. 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 . recognition of land rights may p r o m o t e or protect an array of interests in land. paradoxically. In particular. there are questions of the appropriate representation of indigenous identity a n d of indigenous peoples' inter­ ests. 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. 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. fail to recognise certain kinds of interests in land. • who wish to have their historic claim to the land a n d their subsequent unjust dispossession formally recognised. 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. Finally. Children of the stolen generations. If t h e goals of greater . a n d those who retain an affinity to their traditional territory b u t n o t a physical presence. frequently focus o n t h e differences between indigenous a n d nonindigenous interests. silence debate a m o n g indigenous peoples. taken from their Aboriginal families. Regulatory m e c h a n i s m s for recognition of land interests may.

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 . 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. We also look at the ways in which the regu­ latory mechanisms shape and privilege some kinds of interests over others. those institutions of the Metis nation a n d those insti­ tutions of the Canadian nation. 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. 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. 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. 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. 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. or to advocate recognition of cultural pluralism within the state. In o r d e r to advocate political pluralism in the functioning a n d shape of political institutions. 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 . 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. If legislation identifies some set of interests as the recognised interests of a g r o u p . Similarly. 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. 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.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. 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.

their on-going existence a n d sig­ nificance. As such. a n d to carve out the scope for group-specific rights of self-government. plural. Further. continuity a n d consent. given the general absence of a history of treaties or recognition of pre-contact Aboriginal sovereignty before the 1992 Mabo decision. 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). 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. It is also recognition of the continuity of the nations. Between these nations the t h r e e conventions are t h e n applied to frame negotiation a n d debate. In the Australian context. 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. a n d which interests are the central.A B O R I G I N A L L A N D RIGHTS 167 with land enjoyed by indigenous peoples before expropriation. 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. their traditions a n d law . 1995: 193). especially as these relate to the specific interests of indigenous women. For example. 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 . (Tully 1995: 195) While Tully envisages a r a n g e of cross-cutting interests. however. 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.that is. 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. a n d arguing for greater self-government of the affairs of each nation by the nation. '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. In lifting the d e b a t e to the level of relations between nations. 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. Canadian confederation. 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 . In d o i n g so h e uses a framework of three conventions: recognition. 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). However. it is unlikely that this federalist a p p r o a c h is available.

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) . they differentiate themselves from or are differentiated by at least one other group according to these social forms. For Young. Specific representation of oppressed groups ensures effective democracy (Young 1990: 184). oppressed g r o u p s are subject to systemic constraints. 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). or how self-definition is to be achieved. (Young 1990: 186) For Young. woman. 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. groups are neither aggregates of individuals n o r associations of chosen members. oppressed groups o u g h t to have special representation rights. Rather. Jew.it constitutes an aspect of one's identity. at least in those areas that specifically affect those oppressed groups. While o n e can attempt to reject or reinforce one's g r o u p membership. black).3 ) . 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). 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. 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. Native American. within his account. con­ stituted by the state's institutions (Young 1990: 4 1 .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. H e r goal isjusdce u n d e r s t o o d . Young argues that within representative bodies. 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. given the influence of external structures. It is difficult to see. 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: . As such. it is not usually something separable from who o n e is . how the basic institutions are constituted to ensure that the interests of all are given a voice.

T h e Black caucus should give specific rep­ resentation to women. 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. Kymlicka and State Recognition of Cultural Pluralism In Multicultural Citizenship. for example. then. First. As such. Secondly. 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. 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. 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. 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. rather. 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. To a certain extent. 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. form the full array of g r o u p interests.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. together. for example. and the women's caucus to Blacks. to decision making bodies formed by oppressed groups that aim to develop policy proposals for a heterogenous public. 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 . indige­ nous w o m e n w h o are m e m b e r s of a women's representative body). How are these interests to b e recognised? Two things n e e d to be acknowledged properly. Kymlicka argues that the liberal c o m m i t m e n t to equality a n d individual . Oppressed groups within these groups should have specific represen­ tation in such autonomous forums. It should apply. (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. an array of partially overlapping b u t different interests that. 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.

He argues o n two fronts. Kymlicka challenges the claimed neutrality of liber­ alism a n d overturns m u c h of the orthodoxy about liberal citizenship. equality of participation in cultural life. Kymlicka argues that historic treaties provide some evidence of what . individuals whose cultural identification is associated with a minority culture will. 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. in the absence of special protections. provides the causal explanation for the c u r r e n t disadvantage. 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. including forced state m e m b e r s h i p . n o t j u s t legal ownership of (parts of) their historical territories. Reference to historical injustice. his discussion stays within liberalism because it is based on formal justice. 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.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. 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. a n d special g r o u p representation rights (Kymlicka 1995: 3 7 . by protecting the g r o u p from the actions of o t h e r groups: polyethnic rights. 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. Kym­ licka challenges the view that liberalism is inherently atomistic. relative to mem­ bers of d o m i n a n t majority cultures. In rare cases. b o t h of which attempt to reconcile ideals of uni­ versal citizenship with political recognition of cultural difference. spiritual a n d institutional history. be disad­ vantaged in the pursuit of their conception of the good. a n d removal of disadvantage. In a pluralistic demo­ cratic society. cultural. 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. 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. 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. secession a n d full self-government rights may be the only means of protecting rights to cultural identity (Kymlicka 1995: 173-92). 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 .8 ) . Employing the liberal democratic ideal of self-determination.

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. for indigenous peoples. 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.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. 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 . 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. 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 . 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 . given the role that outside institu­ tions have in the construction of those interests. t h e r e is n o clear answer to the question of how group-specific representation rights are to be identified. it is a g r o u n d for secession. 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. However. For most national minorities. 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. 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. 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. 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. however. Rather. 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. First. Second. however. 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. although the relative disadvantage of Aboriginal people is a legitimate g r o u n d for some land rights claims. at the same time. Tully. H e does n o t a p p e a r to argue. 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. as the g r o u p never agreed to federate with the colonisers (Kymlicka 1995: 116-20). 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. Third. given they a p p e a r to simply reflect ' i n d i g e n o u s interests'. secession comes at a very high cost. 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 .

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 . Native title rights are to be specified by reference to local Aboriginal law (Mabo and Others v. 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. second.172 J O H N BERN A N D SUSAN D O D D S interests political voice. within particular communities. 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. or those of subgroups. How­ ever. these institutional structures can define who. the opportunity to negotiate m i n i n g rights over t h e land to provide the community with income. However. because the . overlapping a n d sometimes inconsistent sets of interests in the land at issue. the opportunity to use the land for increased c o m m u n i t y self-sufficiency. 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. 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. Queens­ land (No. recognition of distinct bases for the group's ownership of the land or recognition of individual ownership of the land. T h a t is. 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. including Aboriginal groups. 2) (1992)). 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. 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. institutional structures which are designed to h e a r claims of interests privilege certain kinds of interests a n d . 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 . there may b e a n u m b e r of different. Young provides an account of representation for minority groups. While t h e r e is n o conceptual difficulty with attempts to realise some of these different interests simultaneously. As indicated earlier. infrastructure a n d services. are those recognised as entitled to these group-based rights. of t h e indigenous p e o p l e . First. these interests may include: t h e spiritual/cultural significance of the particular land or parts of that land. as defined by external institutions a n d structures. 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.

ABORIGINAL LAND RIGHTS 173 very institutions that recognise those interests already shape . 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 . at least some­ times. T h e effects are many. while o n the other. As such. T h e N o r t h e r n Ter­ ritory legislation gives primacy to the former. Wik. federal. 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 ) . namely Mabo.those interests. 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. alternatively. we argue that in seeking to find that single voice. each is an instance of the m o r e abstract claim for the recognition of Aboriginal sovereignty.even con­ stitute . state a n d territory land rights legislation. Already. O n the whole. health. to construct these in destructive a n d disintegrative modes. i m p o r t a n t interests may b e silenced. 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. with resistance to the ways in which these responses constitute indigenous interests. 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. 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. 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 . How Institutional and Regulatory Structures Shape and Identify Interests As applied to Australia. T h e framework of Aboriginal claims to land is set by g o v e r n m e n t legislation. This is shaped by the dichotomy of indigenous a n d non-indigenous interests. or at least muffled. 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. the testing of a claim sets different interests in opposition to each other. 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. 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. 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. While there is a strong political imperative to provide a unified voice in arguing for a land claim.

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. the land councils a n d ATSIC d e p e n d o n state. includ­ ing conflict m a n a g e m e n t a n d distribution of resources. and negotiating m i n i n g a n d o t h e r uses of Aboriginal land by non-owners. 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. T h e land councils are established u n d e r commonwealth government statute. lodging land claims o n behalf of Aboriginal people. each of these groups has its form mediated through the criteria of the Act. derivative rights of self-government. 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 areas of com­ p e t e n c e include access to the land. Their statutory functions relate to Aborigi­ nal land a n d land that may be subject to a land claim. however. T h e most notable are the regional land coun­ cils. arguably. in effect. . 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. While the basis for their activity is Aboriginal land interests. Only the last of these polities claims its origins in traditional societies of the past. territory or federal legislation. m a n a g e m e n t schemes. gives its beneficiaries. a status in the soci­ ety that contains elements of self-government. They are a m o n g the central lobbying bodies for the representation of Aboriginal views. T h e specifically Aboriginal polity is constituted. welfare a n d fiscal d e p e n d e n c e and the absence of treaty obligations. protection of sacred sites. 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. the local communities and the kinship/languagerelated groups. collectively. which. 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. within three main domains in the N o r t h e r n Terri­ tory: the land councils. 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 r e are significant Aboriginal-controlled extra-local organisations. these are so pervasive in their social. In the context of the Aboriginal Land Rights (NT) Act. 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 . through the Aboriginal Land Rights (NT) Act. In these matters they are the buffer between Aboriginal groups a n d outside interests. They are. b u t t h e r e are o t h e r significant ones.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 . Local communities are m o r e complex. However. Nonetheless. Any concept of Aboriginal autonomy is necessarily limited by state or territory and commonwealth sovereignty.

. as a result of particular historical a n d geographical circumstances. t h o u g h a broader integrity has b e e n maintained. Council m e m b e r s are elected by a n d from the local communities. 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.ABORIGINAL LAND RIGHTS 175 Land councils have two overlapping constituencies within their char­ ter. individuals a n d class. b u t are rarely identical. 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. These two groups generally overlap. only these few strong language and geographical groupings have b e e n able to organise effectively above the level of the local community. 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. in particular. 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. 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. being affiliations that place the group under a primary spiritual responsibility for that site and for the land. So far. . This overlap can and has become a source of conflict. and (b) are entitled by Aboriginal tradition to forage as of right over that land . they r e p r e s e n t a n d must consult with traditional owners of the lands within their jurisdiction. 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. In the case of the Yolngu a n d Pitjantjatjara. O n the o n e h a n d . are 5 . while o n the other. o n the other hand. However. r u r a l / u r b a n location. 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. Women. even here. 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 Tiwi of Bathurst a n d Melville Islands a n d the Groote Eylanders each have their own land council. (Aboriginal Land Rights [NT] Act 1976 (REPA028) Consolidated to No. gen­ der. 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. at least partly. T h e structure of local communities. 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. is variable and ranges from small family groups to rural towns with indigenous popula­ tions of over a thousand people.

1982. t h r o u g h the Aboriginal Land Rights (NT) Act. 1985. 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. We argue that some of these differences are shaped externally.176 JOHN BERN AND SUSAN DODDS marginalised t h r o u g h the emphasis on traditional male spiritual attach­ ments. It is i m p o r t a n t to n o t e that 6 . 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 recognised interests of Aboriginal groups is at times con­ stituted in ways that may cause tensions within those groups. 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). 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. after finding that a broadly based local g r o u p formed the Local Descent G r o u p . While some could b e addressed by giving internally oppressed subgroups greater voice. T h e r e is potential in each to arrive at a m o r e or less inclusive result. 1988). as Young argues. the functioning of the Aboriginal land commissioner u n d e r that Act. 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. a n d the adminis­ tration of decisions flowing from the granting of a land claim. 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. In the 1982 claim to the R o p e r Bar Police Reserve. 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. In these cases they d o so as the (temporary) hold­ ers of those male-focused traditions. the land commis­ sioner. 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. 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. 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.

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 . including that the traditional owner g r o u p should include the junggayi a n d darlnyin. a n o t h e r L a n d Commissioner (Justice Kearney) found that mingirringgi. as well as the mingirringgi. for those arguing against the primacy of the 7 . 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 ) . w h e t h e r exclusively or inclusively structured. T h e traditional owners have. 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. to the former Cox River pastoral lease.ABORIGINAL LAND RIGHTS 177 in his r e p o r t o n R o p e r Bar. at times. For the N g u k u r r com­ munity leadership. 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). 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. rights of way a n d so o n (Bern 1989: 165-76). such as m i n i n g exploration. 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 . 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 . This view gained strength in the light of o t h e r land claim results. 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. they were successful. in gaining the right to receive rents for the lease of the local general store. 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. using their traditional owner status. 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. 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. in the e n d . T h e Mataranka Land Claim. For example. 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. 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. This is a c o m p l e x matter. 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. 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 . In a land claim o n behalf of a related g r o u p in the same year. h e a r d in 1986. However.

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 . . T h e N g u k u r r community. b u t primacy to n o n e of them. T h e N o r t h e r n Territory government. T h e N o r t h e r n L a n d Council. 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. charged with responsibility to administer the Act. regionally based breakaway land councils. 1990). which gives d u e regard to the range of particular interests. it does so without a sig­ nificant devolution of control to the community. Such obliga­ tions have the capacity to p u t the Council in contradictory positions. T h e main points of division within the region have often been articulated in terms of this issue. T h e foci of these differences are n o t contained locally. includ­ ing c o m m o n spiritual attachments a n d responsibilities. 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 . 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. 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. 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 . including the R o p e r Bar traditional owners a n d their local descent groups. 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. T h e view is o n e that might be consistent with the aspirations of local self-government. while rejecting the singular importance of descent. As such. 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. 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 . long-term association a n d ties to the land. co-residence. While this model places weight o n local commu­ nity identity u n d e r the NT Local Government Act. 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. and thus an object for attack by the perceived disadvantaged parties. including o n e based o n the town of N g u k u r r (Bern 1989. aiming to c o u n t e r land council influence in indigenous communities. 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. has obligations to local descent groups a n d local communities.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.

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 . there must be recognition of the ways in which regulatory structures shape a n d privilege interests. 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 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). 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. 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. 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. Those constituencies will b e able to articulate their resistance to having the g r o u p ' s interests constituted externally. Barcham draws attention to the problems of recognising what is distinctive about Maori culture while acknowledging the changing. . At the same time. the diversity of interests within the g r o u p must be properly recognised. T h u s . interests a n d state institutions are n o t u n i q u e to Aboriginal self-determination.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. 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. 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. 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. It may t u r n o u t to be impossible to express. 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 the abstract. 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. rather than assuming that all Aboriginal interests can be articulated in the abstract. 'evolutionary' notion of social relations a n d institutions.

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PART III .

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Even Ernst Renan. origin'. This double connection between the imagination of race a n d the image of the nation exposes a problem. also 'a breed.CHAPTER 10 The Liberal Image of the Nation William E. Sometimes the imagination of national unity is g r o u n d e d in race. to sketch elements in an ethos of e n g a g e m e n t that enables democratic governance. when a c o m m o n constitution. saying that in early European uses race or stock was pri­ mary to the idea of nation. Connolly My aspirations in this c h a p t e r are. 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. invocations of racial unity often return to shore u p its pursuit. kind. T h e OED seconds this. the nineteenth-century idealist of the nation. agreed 183 . T h e Elementary Latin Dictionary says that nation means 'a birth. It is n o t that the image of the nation is always that of a race occupying the same territory. tribe' and 'race of people'. and. but at o t h e r times. second. species. stock. lan­ guage. religion or set of memories is invoked as the m o d e of unity. the irreducible instability of the national imaginary means that the going often gets tough for the nation. when the going gets tough for the 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. third. race. And. These two definitions may b e connected. 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. This subterranean connection explains how. 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. the degree of unity projected into each element is drawn from the imagination of race. as we shall see. to consider the adverse effects o n Aboriginal peoples of the pursuit of the nation in liberal states. first. For today. 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.

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. a n d . Its absence is invoked. But the imperative of the nation is not exactly like o t h e r absent imperatives. 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. commonality. 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. T h a t is the p a r a d o x of the nation: it never simply exists in the present. 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 . what is the model to which the drive to national unity might refer? I suspect there is n o n e . But liberalism is m o r e implicated in nostalgia for this chimera than many liberals tend to acknowledge. 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. But it also misses the national imaginary in which these themes are set. then. 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. or the troubles of the economy. T h e absence of the nation. or the insufficiency of moral life. 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. or if democratic governance is to be possible. It does so because most of Tocqueville's interpreters participate in his imagination of the nation. 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 terms identity. or if public morality is to be intact.184 W I L L I A M E. to explain the inefficacy of the state. T h e . t h e n . But the nation is also an imagination of unity or wholeness that has never b e e n actualised. . or the n e e d to discipline selective constituencies. to base politics on ethnographic analysis is tantamount to basing it o n chimera' (Renan 1995: 148). or if sovereignty is to be stable. T h a t reading is correct. 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. for Tocqueville sets a minimal state within a dense territorial nation. It is n o t only that the nation is a d a n g e r o u s chimera. becomes an acute experience when things are going wrong in any domain. 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. . The Tocqueville Model of Nationhood Alexis d e Tocqueville is generally treated as o n e who celebrated plural­ ism. But if race loses its role as exem­ plar of natural unity.

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. Consider a sample of Tocqueville's utterances: These vast wilderness were not completely unvisited by man. North America was only inhabited by wandering tribes who had not thought of exploiting the natural wealth of the soil. Although there are many sects a m o n g the Anglo-Americans. form an internal constituency that must b e marginalised in public life. But because they. 30. 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 ' . but to man who has already mastered the most impor­ tant secrets of nature. at least as he represents them. Rather. 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. . ignorant. It is by agriculture that man wins the soil . 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. O n e could still properly call North America an empty continent. 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 . (Tocqueville 1966: 373) For a democratic civilisation to flourish.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. they all look at religion from the same point of view. 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. and barbarous man of the first ages. 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. First. 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. . In this condition ['watery solitudes'. 'limitless fields never yet turned by the plowshare'] it offers itself not to the isolated. 280) . 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. Second. . 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. Atheists. differ from the settlers o n these two f u n d a m e n t a l points. united to his fellows. involuntary accord which springs from like feelings and similar opinions. they c a n n o t be included within the American civilisation. (Tocqueville 1966: 27. Let's set Tocqueville's charac­ terisation of the internal n o m a d s aside h e r e . in a sense. and taught by the experience of fifty centuries. a deserted land waiting for inhabi­ tants . . two fundamental accords must b e b u r n e d into the instincts of the territorial people.

Christianity. for the most part. a n d thought both were essential to a public morality conducive to democracy. Perhaps h e would adjust his image of the nation to encompass this development. C O N N O L L Y Tocqueville weaves Christianity. 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. 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. tolerance a n d the agitation of public opinion by cre­ ative minorities. Mill hon­ ours individuality. But h e also endorses an image of civilisation. he generates an image of the nation that requires the displacement of n o m a d s already there. T h e world is m a d e u p . 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 . Tocqueville takes n o pleasure at all in vio­ lence. m a n a g e m e n t . 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.186 WILLIAM E. morality. 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. H e is n o t a bellicose nationalist. agriculture and the mastery over n a t u r e into the territory of American democracy. is an advanced m o d e of living a n d governance. The same might be said. though somewhat less absolutely. the democratic nation does embody morality of peace a n d justice in itself. Civilisation. for instance. character. 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. of the barbarians who overran the . But because a nation of agricul­ ture a n d Christianity sets two key conditions of possibility for moral liberty. 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. for Mill. You w o n d e r what h e would say today. disposition to regular obedience a n d appreciation for rule of law necessary to representative government. Put a n o t h e r way. Generally growing o u t of a Christian culture. 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 . It is the internal connection between agriculture. Such a violence is to be regretted a n d c o n s t r u e d as unfortunate. o f ' p e o p l e s ' . In doing so. trade. it equips p e o p l e with the discipline. 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. The Liberal Image J o h n Stuart Mill is a little too close for comfort to Tocqueville.

While Mill is a secularist. (Mill 1958: 6) Mill does n o t follow Tocqueville in legitimating as necessary the holo­ caust against Amerindians. 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. o n e people at a time. 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 . 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. the paternal despotism in China. to discipline them into regular obedience even to their own lead­ ers. 'John Stuart Mill taught that the happiness of the individual is p a r a m o u n t . 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. well. that a 'creative minority' for Mill is typically a constituency above the general r u n of p e o p l e culturally. and an entire change of cir­ cumstances. According to Mill. It required centuries of time. they were brought to a halt through want of mental liberty and individuality. 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). slow. 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 ' . over 'centuries of time'. Christianity continues this creative antagonism of influences within the nation. ' 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. prepares a p e o p l e to b e c o m e a civilised. Civilisation is something given to 'peoples'. But the trace of such a sentiment might hover over the first sentence. 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. It is very p e r t i n e n t to n o t e . H e d i d n ' t n a m e names. a n d t h e n in Christianity. were very fit instru­ ments for carrying those nations up to the point of civilisation they attained. For when 1 . rhizomatic. linguistic. 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 ' . respect for law a n d a streak of i n d e p e n d e n c e . But having reached that point. 'forbearance'. T h e r e is a cartoon with two welldressed wall-street financiers walking down the street. progressive process of discipline forges a p e o p l e into a civilisation capable of regular obedience. 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. O n e says. b u t it is part of the people in its major ethnic. religious a n d moral heritage. (Mill 1958: 35) What in J u d a i s m . A long. t h r o u g h its very ethical energy a n d political dissidence.T H E LIBERAL IMAGE OF T H E N A T I O N 187 Roman Empire. when not actually serving under their own banner. morally a n d educationally. t h e n . kept p u s h i n g the nation to a h i g h e r level of achievement (Mill 1958: 34).

progress. e m b o d i e d in Bowie as the r e t u r n of Jesus to Texas. An i n t e r c o d e d vocabulary of civilisation. Mill. 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 ' . 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. 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. Meanwhile. nations a n d races is p r o m i n e n t in Considerations on Representative Government. only a particu­ lar type of territorial nation n u r t u r e s the growth of freedom and indi­ viduality. m o r e g e n e r o u s liberals. But Millian liberalism needs to incorporate a dose of it into its territorial maps. This latter combination. can be debilitating to h u m a n s if it overwhelms all o t h e r experience. . 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. They have n o vibrant. thins liberalism out. Such a t e m p o r a l sensitivity.188 WILLIAM E. 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. inspired by liberal impulses that exceed the liberal image of the nation. it also sets the stage for later strug­ gles within liberalism itself over the limits to diversity in the liberal state. For. They thus marginalise the claims of indigenous peoples. as the example of creative minorities suggests. 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. 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. seek to extend rights into new domains. David Bowie. as we shall see. 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. 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. This m e a n s the b o u n d a r i e s of liberal individuality. In the film ' T h e Man W h o Fell to Earth'. rights and justice are set in advance by the parameters of the liberal nation. Today. protectionist liberals. peoples. the guy who d r o p s in. 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. freedom and rights involving patterns of land use a n d ownership at odds with the image of the nation with which they begin. 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. But they seldom rethink the image of the nation in which they participate as they d o so. 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. such charges place t h e m in a defen­ sive position. gays a n d atheists from the start.

absent b u t never eliminable as measure a n d imperative. community. 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. 63 respec­ tively). '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 ' . of how foreign rulers can some­ times b e 'of t h e greatest advantage to a people. . then. identity. . 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). 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. Geographical limits are o n e of its causes. But t h e examples . (Mill 1958: 229) T h r e e points h e r e . Both t h e generosity a n d the limits of t h e Millian vision express this fantastic imaginary. Mill says. sameness a n d collective to imagine nationality. 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. But the strongest of all is identity of political antecedents: the possession of a national history and consequent community of recollections. centred o r close identity must be to be iden­ tity. 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. of 'uncivilised races . 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.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. Community of lan­ guage and community of religion greatly contribute to it. my emphasis). for its unity may be drawn from o t h e r sources. Mill invokes the language of commonality. 7. Second. a n d closely c o n n e c t e d .. 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. of 'a rude people'. Mill says that sameness of race. b u t h e never explains how tight.. in various inflections. pursued b u t always absent. 24. 59. 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. reli­ gion or language may n o t each always be crucial to t h e unity of the nation. 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. 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. averse to c o n t i n u o u s labor of a n exacting kind'. collective pride and humiliation. of ' a race who have b e e n trained in energy a n d c o u r a g e ' . Listen to their invocation again. H e speaks. connected with the same incidents in the past. pleasure and regret. 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 ' . 32. First.

the moral source h o n o u r e d the most etc. 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. T h e first is what you might call multi-dimensional (or rhizomatic) plu­ ralism.190 W I L L I A M E. And Mill does n o t sufficiently dis­ tinguish between t h e m . Slovaks. language a n d religion. but h e also refers to a long period of political rule on the same territory to explain the formation of a nation. G e r m a n s . In the first m o d e l . sexuality. with unity on the others. t h e second national pluralism. you have a diversity of religious faiths. 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. This appears most dramatically when h e uses the phrase 'national history' to help explain how a nation comes into being. g e n d e r prac­ tices a n d so on. 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. 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). Croats. 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 ' . • 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. But t h e r e is a n o t h e r strain in Mill's thinking. 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. ethnicity. shifting a n d uncertain character of the unity they r e p r e s e n t themselves to embody. 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. T h i r d . 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 . first language. g e n d e r performance. already intimated by the clauses 'in g e n e r a l ' a n d 'in the main'.) forming an ethos of e n g a g e m e n t across lines of difference o n the same territory. Mill employs the nation to explain political rule by a state. • 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. relation to the land. informed by an ethos of engagement. religion. o n the second you have pluralism along o n e or two dimensions. 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. His emphasis u p o n identity in religion. so mixed u p as to be . in some districts. Serbs. R o m a n i a n s and.

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'. suffi­ cient examples are sure to remain. 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. Wherever multi-dimensional plu­ rality already exists o n a politically organised territory. ethnicities. of which. 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 . 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. A multi-dimensional pluralist culture contains several religious orien­ tations.can also be inflected in a different direction. 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). 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. orientations to g e n d e r experience. 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. a plurality of dimensions. really. So t h e r e is. second. Not by extinguishing types. 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.his vision of liberal representative g o v e r n m e n t pushes h i m in that direction. 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 . except civil war. T h e multiplication of differences across several dimensions itself creates o n e . consider­ able diversity within each dimension. ' 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. cultural war or cultural gridlock. m o d e s of sensual affiliation. T h e r e are n o o t h e r options. final sources of moral guidance. T h e r e are the Basque in Spain and France. m o d e s of property use a n d so forth. a n d . in these cases.T H E LIBERAL IMAGE OF T H E N A T I O N 191 incapable of local separation. 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. but by softening their extreme form and filling up the intervals between them (Mill 1958: 234. first.

or some combination thereof. T h e national culture becomes o n e with an u n m a r k e d constituency at the centre. So whenever people e n c o u n t e r both uncertainty at the centre a n d the insufficiency of proceduralism. every other interest. Aboriginal displacement. o r a d h e r e n c e to a written constitution. Such strate­ gies to secularise the nation d o n o t seem entirely wrong to m e . They retain the idea of an indispensable centre. 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. eth­ nic.192 W I L L I A M E. T h e instability of the centre is now covered over by the narcissistic self-representations of those who occupy it. b u t t h e n . 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. they r e s p o n d to each newly recognised evil of enforced religious conformity. 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 . They are just misleading a n d radically insufficient. 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. 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. 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. j o b a n d family. 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. T h e idea is that belonging. To cling to the logic of the nation while shucking off its religious. then. T h e best way to displace the liberal image of the nation. 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. or a m o d e l of public deliberation. c h u r c h . because they are generous souls. 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 . faith a n d moral orien­ tation now becomes a minority to be tolerated or corrected by the selfproclaimed occupants of the centre. to an indispensable logic of polit­ ical communication. To the extent such a drive succeeds. the vacated centre now becomes the com­ pelling site to revitalise t h r o u g h occupation. o r a set of procedures. Multi-dimensional pluralism sets a necessary b u t insufficient condition of non-national democracy. racial purity. a n d to the possibility of collective enactment of general policies by democratic means.

belonging a n d public e n a c t m e n t . 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 .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. 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. N o r does proceduralism provide a sufficient basis of communication.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. 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. discipline. 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. In this image n o cultural constituency sits at the centre s u r r o u n d e d by diverse minorities. 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. 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. Rather. d e p e n d i n g u p o n the issues raised. In Tocqueville. 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. 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. T h e key to such a transition involves a glacial shift in the governing m o d e l of public morality. a n d to some extent in Mill. 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. 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. Each minority brings large pieces of its particular orientation with it into pub­ lic contests a n d negotiations. I pursue. 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 . the public culture of the terri­ torial state itself b e c o m e s pluralised. 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. by m e d i a talking 2 . 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. 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. a counterimage of a dense. These minorities . regulation a n d violence when things go wrong anywhere in the state. then. rhizomatic political culture that draws selective suste­ n a n c e from the secondary strain in Mill's thinking.

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. But when each constituency. 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. 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 . acknowledges the contestability of the source it hon­ ours the most. 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 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 . h o n o u r s the moral source that inspires it. several constituencies now have a lot to go on in building general assemblages for particular purposes. first. 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. free and effective political life requires the production of a national culture. 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. third. W h e r e such an ethos is fashioned. 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. Indeed. multiple orientations to land a n d property are improvised o n the same territorial space. addresses the history of violences enacted to universalise the source it h o n o u r s . Disaggregating the imperative of the nation does n o t suffice to stymie drives by particular constituencies . 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. 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. T h e cul­ ture remains dense. for instance. second. 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. a n d . 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.194 W I L L I A M E. 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. 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. 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. C O N N O L L Y heads who invoke simple models of public virtue.

For its terms were only vaguely imagined before its consolidation. For you never reach a point at which the politics of pluralisation is over. 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. property. or the nation. that both imaginaries set limits a n d e n c o u n t e r closures. It is that u n d e r c o n t e m p o r a r y conditions of political being. 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. it could be said to reoccupy the old centre. 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 . tolerance. 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.THE LIBERAL IMAGE OF THE NATION 195 to occupy the vacancy at its centre. minorities. T h e point is not to deny these formal(istic) rejoinders. progress. secular proceduralism.' Or: 'You c a n n o t avoid the lan­ guage of unity a n d identity even as you attack it' etc. limiting. those that rework received representations of majority rule. sympathy. 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. 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. secularism a n d creative dissidence. partly because it must e m e r g e t h r o u g h negotiation between multiple . what you protest against. 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. you p r e s u p p o s e . for instance. Everybody u n d e r ­ stands that e l e m e n t a r y point. as reductionists insist. This formal equivalence issues in a predictable charge: 'Connolly. the expansionary impulses of con­ stituencies which are discontented unless they e m b o d y the authoritative centre. But by giving preliminary voice to a positive counter-image. even if it has now b e c o m e insufficient. 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. A n d it would p r o d u c e a new set of limits and exclusions. dissent. were such a pluralised ethos to b e c o m e p r o m i n e n t . It is. rather. T h e eventual shape of such a complex can only be glimpsed. Now. We urgently n e e d new improvisations today. T h e crucial thing is not. T h a t modus vivendi provides an inspiration of sorts. 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. rights.

Thus. Tocqueville. for example. 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. Before the advent of capitalism. Entering into such agreements allows the governing b o a r d to set conditions of use. 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. non-profit university provides a legal forum of governance over property that modifies the typical practices of individual or corporate ownership. suspected the American nation would fall apart if it moved away from an agricultural economy. 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. If people yell about inalienable property rights whenever the question of distinctive forms of governance over lands previously wrested from Aboriginal peoples comes up. But h e did not take this assault against agriculture to require the exclusion of that aristocracy. It is fascinating to recall that Tocqueville worried about the future effects of 'new manufac­ turing aristocracy' o n the property form. 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. grazing a n d oil interests are oblig­ ated to negotiate with indigenous occupants to gain selective access to these resources. But now the progeny of these n o m a d s are being ruled out because their practices are. Now mining.196 WILLIAM E. 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. considered to be too agricultural a n d not suffi­ ciently in t u n e with new forms of advanced capitalism. In a capitalist state new forms of property are constantly emerging and new divisions often arise within the property form. to take another example. the idea of acquiring mining or oil rights over land farmed by others was absent. Today new land practices must b e forged in generously defined areas. C O N N O L L Y constituencies relieved of the necessity of conforming those negotiations to an impossible image of the nation. they might be pressed to consider these examples of creativity in the property form. such m o d e s of governance can enable indigenous peoples to . well. the privately incorporated. So does the a p a r t m e n t collective. W h e n large tracts of land are set aside for Aboriginal governance. 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. 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 today oil and mining companies can acquire mining rights to land owned in other respects by farmers.

again. New Zealand a n d the US identify the earth as simultane­ ously a vibrant source of life. 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. 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 . 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. an increasing n u m b e r of people in settler societies such as Aus­ tralia. While multi­ dimensional pluralism operates to displace the nation.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. 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. 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 history of adverse t r e a t m e n t itself generates special rights for indigenous peoples. particularly. with its ineliminable racial overtones. 3 . 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. for instance. 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. T h e ideas of 'place'. E v e r y o n e k n o w s that. 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. ' e a r t h ' provide promising possibilities h e r e . An assemblage in which divergent. 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. But the stakes are also high. 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 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. the obstacles are severe a n d the chances of success are limited. 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. 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 . T h e others c a n ' t even hold water. ' l a n d ' a n d . C a n a d a . a stunning. This pic­ ture. Of course. taken from a site beyond the earth. bright s p h e r e unlike any o t h e r planet observable from the earth itself. a resource exceeding o u r possible knowledge a n d mastery of it. And. 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. Today. For while the idea of the nation. yet overlapping. 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.

I p r e s e n t these ideas as premonitions. 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. 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. the energi­ sation of yet others seeking to pluralise the public culture.198 W I L L I A M E. 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. 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. 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. 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. . 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. the imagination of the nation a n d o u r connections to the earth. diversity. rhizomatic state it is possible to pluralise m o d e s of land identi­ fication as well as the experience of cultural identity. 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. 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. In a nonnational.

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. 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 .CHAPTER 1 1 Minority Claims under Two Conceptions of Democracy Philip Pettit T h e r e are two different conceptions of democracy . they are special to the minorities in question.what distin­ guishes t h e m from such general. a n d that it o u g h t to appeal. to those who think that it is impor­ tant to establish such claims o n a firm institutional basis. Some are collectively exercised by those g r o u p s . 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). immigrant groups can reasonably claim against a g o v e r n m e n t that represents a distinct.two conceptions of what it is for g o v e r n m e n t to be controlled by the people . Special minority claims c o m e in various forms. Special minority rights serve to protect certain minorities in the way various general rights may also d o : for example. 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. or indigenous. association a n d m o v e m e n t . therefore. 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.while others are exercised n o t by the groups as such. 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 . in the m a n n e r of a right to selfg o v e r n m e n t . protective rights .for example.is that they are group-differentiated or group-specific. Aboriginal peoples in Australia a n d N o r t h America. a richer conception equates it with what I shall describe as electoral-cum-contestatory control. W h a t makes t h e m special . b u t 199 . I argue that only the richer c o n c e p t i o n of democracy is hospitable to special minority claims. mainstream culture. And they include rights that minority. rights of free speech.

the c o m m o n feature is that they are exclusive to the minorities they favour. in the neo-Roman republican sense of freedom: that is. In the next I introduce the electoral-cum-contestatory c o n c e p t i o n . 1999). T h e two-dimensional conception of democracy does have implications on this front. 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. while rid­ ing a motorcycle. In the first p a r t of this chapter. 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). however. I have n o t h i n g m o r e to say in this chapter. as should b e c o m e clear. a n d will only sketch the o t h e r defence. 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. And another. 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. one-dimensional view in a c c o m m o d a t i n g the possibility of special minority claims. so I maintain.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. 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. a n d n o t a safety helmet. But w h e t h e r they be rights of groups or individuals. I outline the electoral conception of democracy a n d show why it is n o t particularly hospitable to special minority claims. 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. 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. 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. popular election of certain authorities: at the least. o n the republican defence of two-dimensional democracy. the legislators. it points us toward a . 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. but I will n o t p u r s u e t h e m h e r e . 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. 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).

a n d no-one's vote is weighted m o r e heavily than anyone else's. But the principles are certainly going to be a p p r o x i m a t e d . 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. 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.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.for such a weighting. 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. 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. But I think that that is a rel­ atively m i n o r p r o b l e m .M I N O R I T Y CLAIMS A N D DEMOCRACY 201 conception of democracy that informs o u r ordinary speech. Regimenting that conception a litde. for example. c o m p e t e n c e or incarceration. real-world n o t i o n of what democracy involves. 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 . I think. generally agreeable m i n i m u m . as envisaged h e r e . 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. T h e question with which we must now deal is this.say. • 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. 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 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 . How plausible are special minority claims going to look in the light of the p u r e . I describe this as the electoral conception of democracy. 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 . in a refer­ e n d u m . it is n o U t o p i a n d r e a m . S o m e will object that special minority rights. 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.the sovereignty of the p e o p l e . of course. 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 right of those with renal failure to dialysis treatment. • 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. that a democratic system n e e d s to involve m o r e than just t h e electoral elements described. from standing or voting or speaking o u t in such elections. except where t h e r e is generally agreed g o o d reason . 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.say. Some will say. 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. or at least with any plausible examples of such rights. 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 . a n d a n y o n e may find themselves forced to move to the country.o u g h t to take in m a k i n g policy. it still treats people as equals (Dworkin 1978). In the case of these latter rights. anyone may suffer r e n a l failure. 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 . 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. to receive the t r e a t m e n t offered. . 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. 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. is n o t that they offend against the second. 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 . It is clearly going to be possible to maintain a similar line with special minority rights. If they are justifiable. 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. should the individual or g r o u p suffer the need in question. 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. 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. 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. should the conditions in question apply to them. then it will often have to grant them spe­ cial rights (Kymlicka 1995). as I said. 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. as e n c o d e d in d e m o c r a t i c insti­ tutions. While their implementation only benefits people in cer­ tain conditions. But the really serious problem with special minority rights. t h e n . 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 .in effect. equality principle. For all that the insistence suggests. 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 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. o n e may believe that majority will o u g h t to prevail. to be treated in the m a n n e r required by the minority right. o n e may happily a c c e p t that sovereignty. it is rather that they conflict with the third principle of the sovereignty of the collective people. the majority . r e n a l failure a n d rural isolation. i n t o q u e s t i o n .

b u t even against majority. 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 . 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. It means arguing that whatever the majority wants. 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.while they d o constrain the electoral will .MINORITY CLAIMS A N D DEMOCRACY 203 But insisting that a legal-political system ought to incorporate certain special minority rights is rather different. n o t just against individual others. 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. Special minority rights are i n h e r e n d y countermajoritarian in character. politi­ cal will.they are essential for the func­ t i o n i n g of electoral democracy.say.is that even if we d o n o t find a n electoral origin for t h e m . certain rights should still be accorded to minorities. association. 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). 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). But the striking thing a b o u t such rights . 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 . 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). of freedom of speech. 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). constitutional m o m e n t s (Ackerman 1991). 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. m o v e m e n t a n d the like .or at least many such rights .that are invoked as protections that everyone enjoys. This aspect raises a p r o b l e m for providing a democratically robust vin­ dication of special minority rights: that is. for example. T h e s e are those general rights . and so it means suggesting that the sovereignty of the people is not sacrosanct. they still can be justified in terms that the electoral c o n c e p t i o n of democracy itself provides. 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. 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. 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. .

the process of public decision-making . such as the electoral conception of democracy envisages. 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. regular countermajoritarian rights c a n n o t be overridden by electoral will without the very prospect of an electoral democracy disappearing. but this has to be c o m p l e m e n t e d by a second.204 PHILIP PETTIT According to this style of a r g u m e n t . By almost all accounts.and unlike the rights associated with equal electoral standing . Like the constraints of g r a m m a r on ordinary speech. T h e electoral assumptions presented in the last section offer a par­ ticular interpretation of what this involves: a particular conception of democracy. My introduction to the richer conception of democracy will be in three stages. 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 . U n d e r this conception. first.is subject to popular control. however . 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. H e r e . a democracy must certainly have an electoral dimension. 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. the guiding idea is that unless the governors are controlled in . second. 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. So long as we think of democracy in the image of the electoral conception. that these observations point us towards a two-dimensional conception of the democratic ideal.special minority rights c a n n o t be defended on the grounds of being themselves essential to democracy. con­ testatory dimension. two-dimensional conception of the sort of system that would best answer to the abstract concept.majority will operates within the countermajoritarian constraints of those rights. The Electoral-cum-Constestatory Conception of Democracy At the most abstract level where n o o n e will disagree. a n d third. the concept of democracy is that of a system u n d e r which the people control govern­ m e n t . these constraints o n electoral democracy make possible the very activity that they regulate. T h e rights may have a powerful moral appeal but they will not be democratically robust. I argue. 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. Unlike general countermajoritarian constraints. unless paradoxically . T h e r e c a n n o t be a rule of majority will. I try to make the case for a richer.

in defence. If a com­ munity has n o c o m m o n interests . Assuming that a g o v e r n m e n t is desirable. 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. as I see things. 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 . 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. Institutions of the second would guard against the possibil­ ity of inappropriate interests affecting what government does. as calls that they had n o particular reason to h e e d . They would r e d u c e 'false negatives': that is. 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. 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. health or education. 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. 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 . T h e y are n o t selfish or sectional considerations. or provision against emergency n e e d . the misidentification of certain interests as c o m m o n interests. their shared or c o m m o n interests. in particular. 1989). b u t rather. security. 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. then. 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. so the radonale goes. H a b e r m a s 1984. then the relevant interests of the governed .n e e d not be taken into account and respected. for e x a m p l e .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 . 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 n they could n o t b e dismissed as irrelevant (Elster 1986.how­ ever they are interpreted . 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. for e x a m p l e . 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. 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 . then this has an immediate impli­ cation for how democracy should b e organised. interests that are particular to certain individuals or g r o u p s within the community. A certain g o o d will repre­ sent a c o m m o n interest of a population. the non-identification of certain com­ m o n interests. just so far as coop­ eratively avowable considerations s u p p o r t its collective provision (Pettit 2000).M I N O R I T Y CLAIMS A N D DEMOCRACY 205 this way by the governed. Unless g o v e r n m e n t is controlled by the people. They would reduce 'false positives': that is.

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. a n d that 'false positives' will be avoided. m o r e generally. O n e way of controlling this process is t h r o u g h the . This observation suggests that democracy should encompass more t h a n electoral institutions. w h e t h e r a given policy p r o g r a m will be selected or not. 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 . T h e process is fallible a n d subject to c o r r u p t i n g pres­ sures. in particular. 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. A Second Democratic Dimension is Available T h e r e are two distinct ways in which any process can be controlled and. a n d n o n e for m o r e than o n e . to give salience a n d standing to what are allegedly c o m m o n interests. But they may allow the interest of a majority to be represented as a c o m m o n interest. Institutions of the first sort would p r o m o t e democratic effectiveness. 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 ensure that such proposals will be submitted to public examination a n d discussion.206 PHILIP PETTIT counts for o n e . And. however imperfectly. But electoral institutions are unlikely to work as successfully on the second democratic front. 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 . Electoral institutions are vulnerable both to majoritarian a n d to manipulative con­ trol. 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 . even m o r e importantly. a n d they enable the people to deter­ m i n e . Democracy needs a second. o n the basis of majority vote. 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. 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. Not only should t h e r e be electoral institu­ tions that serve. They may serve to weed out the intrusion of foreign interests into the a g e n d a of policy-making. non-electoral dimension. 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. given reliance o n majority voting. in which the people might be given control over govern­ m e n t . O r so at least I am happy to c o n c e d e here. institutions of the second would p r o m o t e democratic equality.

T h e editorial m o d e of control exists so far as there are editors who stand poised. by unsatisfactory texts so that your task would b e c o m e almost impossible. 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. can we see a way to ensure this sort of control.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. therefore. that you would d o well to contemplate as well: these involve putting in ex ante controls. 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. O r you may have the power to refer your objection to an editorial board: a board. for example. 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. T h e r e are two o t h e r steps. Except in the case of referenda. 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. And the authorial control it gives the people is very limited.e n h a n c e people's control over g o v e r n m e n t . a n d n o t just relying on ex post objection. 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 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. is that it mainly seeks to give the people an authorial form of control over the process of public decision­ making. Only the majority have a say on any issue. They merely select those who will oversee a n d orchestrate the authorial process. You may be able to d o this peremptorily. 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. 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. Imagine you are the editor of a newspaper a n d you want to exercise your control to effect a general result. 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. T h e most striking thing about the electoral conception of democracy. .by making provisions for s o m e t h i n g analogous to editor­ ial 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 . You could be swamped. there is always a defeated minority. 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 . But o n c e we see the possibility of editorial as well as authorial control. presumably. as in the case of most c o n t e m p o r a r y newspaper editors. as e n c o d e d in the principles presented.

a Central Bank Direc­ tor . T h e first ex ante measure. give a deliberative justification of the line taken. or a bill of rights.208 PHILIP PETTIT T h e first ex ante step would be to present your authors with guidelines o n your editorial policy. c o r r e s p o n d i n g to the editorial guidelines a n d constraints. they should consult with you or with certain parties that you designate as your agents in consultation. In particular. an Electoral Commissioner. t h e n they should follow certain routines. 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 . or a set of laws or conventions that enjoy a certain e n t r e n c h e d status.who must be involved in the making of certain decisions. T h e a p p o i n t m e n t of certain statu­ tory officers a n d bodies . a Director of Public Prosecutions. formal or informal. T h e sep­ aration ofjudicial from executive a n d legislative power. 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. a n d to make clear to them that you are likely to object to anything that breaches those guidelines or constraints. 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. or impose any govern­ m e n t decision. And of course the e n d o r s e m e n t of a constitution. 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. T h e r e q u i r e m e n t that those who support a law. such as the principle that only acts harmful to others should be criminalised by government. would involve the imposition of restrictions. or to e n u n c i a t e constraints on how text is cleared before it comes for your inspection. you n e e d only assert the right to refer any alleged breach to the editorial b o a r d for adjudication. 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. 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. 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. 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. on how g o v e r n m e n t can act. non-electoral form of control over g o v e r n m e n t . 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. 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 . T h e institutionalisation of rule-of-law conditions that any legislation must satisfy.officers like an Auditor General. 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 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. 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. 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 . 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). This is n o t the place to review the likely effectiveness of these differ­ e n t measures.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 . they make clear the bases o n which contestation can occur. 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 . 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.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. electoral-cum-contestatory conception of the democratic ideal. 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 . there are i n d e e d insti­ tutions in existence. 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. If it is desirable a n d feasible to give democracy a second. If the ex ante a n d ex post measures can b e suitably designed. Is t h e r e also an ex post m e a s u r e . 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 . 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 . 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. 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. 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 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.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. contestatory dimension. T h e r e are four principles that the conception . 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 . 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). 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.

even if it does n o t exactly cor­ respond to any actual practice. or where there is n o possibility of appealing . Imagine a regime in which g o v e r n m e n t is entitled to legislate o n any matter. 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. to d o with ensuring regional representation or maintaining a federal system . we would expect any democracy worthy of the n a m e to approximate to the satisfaction of those principles. 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. c o m p e t e n c e or incarceration. T h e fact is.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. n o matter how per­ sonal. a n d no-one's vote is weighted m o r e heavily than anyone else's. in a r e f e r e n d u m . While we are n o t in the habit of associating the abstract ideal of democ­ racy . 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. the third. from standing or voting or speaking out in such elections. can be reasonably well assured of being treated as equals in govern­ m e n t decision-making. which introduces the contestatory element. • 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. or where t h e r e is n o r o o m whatsoever for consultation between elections with the populace. for example. generally agreeable m i n i m u m . 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.for such a weighting. 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. in particular. except where there is generally agreed good reason . is new. • 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. T h e electoral conception of democracy outlined in the earlier set of principles is an intuitive ideal of democracy. 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. individually a n d collectively.210 PHILIP PETTIT would seem to require. or where the executive or legislature controls judicial decision­ making.say. T h e first two principles are as before. 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. • 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.or by their elected representatives.

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. But this habit of speech o u g h t n o t to inhibit us. T h a t b e i n g so. of us would feel comfortable a b o u t describing such a regime as 'democratic' in charac­ ter.they look like democrati­ cally unmotivated constraints o n majority will .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. if any.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 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. Let democracy be seen as involving two dimensions . paradoxically. T h e y argue that unless majority will is constrained by those rights t h e n . 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. 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 . I argue. O n the contrary. electoral democracy will n o t be able to function properly. 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. I would say. r a t h e r than aspects of a democratic regime. 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. 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 . 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. majoritarian. 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 . Few. the other contesta­ tory . 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. we would feel that the t e r m was b e i n g abused. . minority-protecting rights u n d e r the purely electoral conception. its unity comes of a c o m m o n culture or creed or whatever. in parallel.o n e electoral.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. H o l m e s a n d others try to establish the claims of certain general. 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).

where a prison will be built a n d the like.at least as well as any feasible alternative to identify a n d advance those interests.in the process of democratic g o v e r n m e n t . 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. envi­ r o n m e n t a l soundness. for example. 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. 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. Almost everyone believes in the existence of a culturally distinctive. 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 . 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. • 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. 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. particularly within the g r o u p . in this sense: at n o level is t h e r e a general disbelief in the belief at the level below. even as it advances interests that are s h a r e d in c o m m o n by all. 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. W h e r e circumstances like these obtain. But given the cultural diversity that obtains. T h e con­ tours of diversity will be so n u m e r o u s . a n d the state must serve to advance those interests. a n d we may assume t h a t the electoral process can serve . 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. • those interests are vulnerable to collective. But in the multi­ cultural state. In the monocultural state. And so on. T h e c o m m o n interests may include interests in defence. Almost everyone believes that almost everyone believes this. If the overall state is to have any justification. • all of these things are a matter of c o m m o n awareness in the society at large. the r o o m for rivalry of interests expands dramatically. a n d from conventions of family life to habits of economic activity to t h e cus- . 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. that almost everyone disbelieves in the belief m e n ­ tioned in the last sentence.of how far they are going t o b e treated as equals . e c o n o m i c prosperity. democratically vulnerable minority or set of minorities in the population that the state governs. to the neglect a n d d e t r i m e n t of the minority. law a n d order. it is n o t the case.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 . a n d some will r u n at such variance from the general landscape.

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 . T h e p r e d i c a m e n t may be m o r e or less severe. where appeal could be m a d e . 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.against any decision taken without consultation. 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. 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. T h e fact that a society is multicultural. 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.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 . And if you a n d your culture are in t h e minority. 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 . then. but n o m a t t e r what the level of severity. 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. 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. 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. in particular the way g o v e r n m e n t behaves. two-dimensional democracy. 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 . . 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. 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. S u p p o s e that a minority culture is m u c h respected in a society. is almost b o u n d to impact negatively o n the minority.MINORITY CLAIMS A N D DEMOCRACY 213 toms u n d e r which land is held a n d used. 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. 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. or in defiance of consultation.say. 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. 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. This sort of case will arise wherever the way things h a p p e n in the society. in an administrative appeals tribunal . 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 .

W h e r e the difference goes this d e e p . education in matters relating to the minority culture. in the rules u n d e r which certain claims are adjudicated. T h e society a n d the state tend to privilege the language of the majority. 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 . in c o u r t hearings. 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 . their own g o v e r n m e n t . 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 . 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. a n d so on. T h e majority culture is inevitably repre­ sented in the educational practices prevalent in the society. in the view taken of the n a t u r e of landholding a n d group-mem­ bership. 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.quite apart from any issue of historical justice . After all. in particular an indigenous o n e . is i n c o r p o r a t e d in a democratic state. it may e x t e n d beyond any limits envisaged in mainstream tradition (Tully 1995). 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. 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. T h e case where such special rights of minority self-government will be most plausible arises when a minority nation. 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. i n d e e d I have already d o n e so. 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.unless they were given suitable powers of self-government in relation to the mat­ ters in question. or supplementary. so t h e r e o u g h t to be provision for substitute. particularly in state-supported schools. 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 . 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.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. as it will be.

I think that this is an i m p o r t a n t claim to b e able to defend. 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. 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. electoral-cum-contestatory c o n c e p t i o n . most of us are c o m m i t t e d to a richer.MINORITY CLAIMS A N D DEMOCRACY 215 standing within o n e a n d the same democratic system. then it may be too strong for comfort.it is the o n e ideal that no-one ever questions . is clear. w h e t h e r at a minimal or at an intensive level. Far from being inconsistent with it. But. 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 . To r e t u r n to the t h e m e s of the first section. 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. . as I tried to show in the last section. 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. They are certainly inconsistent with a purely electoral conception of democracy. 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.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. 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. without any special recog­ nition of your separateness. But my main claim. I h o p e . If the case for minority self-government is m a d e to derive from the distinctness of the nations as such. 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. a n d n o t from the contestatory problems to which the distinctness gives rise.

This influence is greater than ever before now that the US is the world's only superpower. Americans have been vigorously debating issues of multiculturalism for the last few years. 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'. For. 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). but has b e e n unhelpful on others. As a result. Unfortunately.CHAPTER 12 American Multiculturalism and the 'Nations Within' Will Kymlicka Like citizens in many other countries. 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. it has b e e n bene­ ficial on some issues. Moreover. even those books which are written solely for 'my fellow Americans' are influential in international debates. as David Hollinger notes. 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. But the American debate a b o u t ethnic relations would be important even without this superpower status. So it is natural that o t h e r countries pay close attention to American models of ethnic relations. particularly o n issues of ethnicity and democracy. To be sure. Ameri­ can foundations a n d government agencies are a m o n g the leading funders of scholars. I'll try to explain why. I believe that the international influence of American debates has n o t b e e n entirely a happy o n e . a n d I won't make any effort to summarise t h e m h e r e . 216 . 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. American Multiculturalism A wide r a n g e of views has b e e n expressed in the American debate about multiculturalism. non-governmental organisations and research projects a r o u n d the world.

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 . 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). b u t r a t h e r what kind of multiculturalism to adopt. 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). from an international perspective. 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 .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. However. . I share t h e m . when A m e r i c a n a u t h o r s explain what a closed. a n d the influence these defences are hav­ ing in o t h e r countries. Moreover. 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. a n d its d e e p respect for individual freedom a n d choice. voluntary a n d fluid n a t u r e of o t h e r ethnic identities in America.'we are all multiculturalists now'. T h a t is. 1 I will n o t dispute any of these t h r e e claims . 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. it must accept that new g r o u p s may e m e r g e . or with the larger American n a t i o n ) . 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. therefore. T h e main challenge for American multiculturalism. older g r o u p s may coalesce or disappear). a n d non-exclusive in its conception of g r o u p identity (that is. 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. 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 . 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 . or at least a d o m i n a n t para­ digm. 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. 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 . 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'. vol­ untary in its conception of g r o u p affiliation (that is. Only such an o p e n . static and involuntary c o n c e p t i o n of multiculturalism would look like. 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. fluid a n d voluntary con­ ception of multiculturalism fits with the fluid and o p e n nature of Ameri­ can society. pray in segregated c h u r c h e s a n d so o n ) . • 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. is that this o p e n . • 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. attend segregated schools. 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 e p r o b l e m .on the contrary.e n d e d .

while criticising the former. I explain why I think this contrast is mistaken a n d unhelpful. although certain special measures may be required (for example. as distinct from new immigrants from Africa or the Caribbean) u n d e r this 'posteth­ nic' umbrella. is with the influence of this a r g u m e n t abroad. and what justice requires. Cos­ mopolitanism is more wary of traditional enclosures and favours voluntary affiliations. a n d a 'cosmopolitan' m o d e l that accepts shifting g r o u p boundaries. a n d that it continues to work well for m o r e recent immigrants from Latin America. 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. m o r e targeted forms of affirmative action) (Hollinger 1996). C a n a d a . 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. 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). a n d as the subject of g r o u p rights. Africa a n d Asia. My main concern. and is responsive to the potential for creating new cultural combinations. 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.218 WILL KYMLICKA In the rest of this essay. which is based o n individual rights. inhibiting efforts to under­ stand a n d a c c o m m o d a t e the minority nationalisms they face. As I n o t e d earlier. how­ ever. Cosmopolitanism promotes multiple identities. T h e r e are two quite different forms of'multiculturalism' in . However. 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. Hollinger's Postethnic America I will take as my example the recent work of David Hollinger.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) . I share these basic views about the appropriate and desirable form of multiculturalism in the American context. 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 . 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 remains an achievable goal. mul­ tiple affiliations a n d hybrid identities. emphasises the dynamic and changing character of many groups. h e insists that this is what most Blacks want. I believe it is having a pernicious influence in o t h e r countries. including the legitimate claims of indigenous peoples. (Hollinger 1995: 3) Hollinger strongly defends the latter cosmopolitan form .

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. the Canadian government rejected the assimilationist model of immigration. c o r r e s p o n d i n g to two different kinds of ethno-cultural groups. 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 . In addition to the descendants of these British settlers. we have those groups which emigrated as individuals or families to Canada after the British established their dominion. which encourage the long-term linguistic and institu­ tional integration of immigrants into mainstream society. T h e policy acknowledges the inevitability and desirability of the public expression of immigrant ethnicity. 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. formed by the u n i o n of f o r m e r British colonies. 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. the latter t h r o u g h the system of federalism. Second.AMERICAN MULTICULTURALISM 219 Canada. C a n a d a is a British settler society. How­ ever. the o t h e r o n minority nationalism. schools. 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). this policy works alongside other policies (such as naturalisation policies. for the purposes of this paper. 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. a n d makes a c o m m i t m e n t to reform public institutions (for example. 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. This change was for­ malised in 1971 with the adoption of an official 'multiculturalism policy' by the federal government. I will describe t h e m as two forms of multiculturalism: o n e focused o n immigrant ethnicity. 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 . 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. First. T h e y call themselves 'nations'. in the 1970s. a n d assert national rights. 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). These are the i n d i g e n o u s peoples. Until quite recently. a n d which were c o n q u e r e d or colonised by the British. However. education policies). we have those g r o u p s which were o n Canadian soil before the British arrived. a n d instead adopted a m o r e tolerant policy that accepts the public expression of immigrant ethnicity. However. a n d the Quebecois. hospitals. Like the US a n d Australia. we have two kinds of ethno-cultural minorities. These 'nations within' were originally self-governing. a n d i n d e e d u n d e r separate sections of the Canadian con­ stitution.

like the Quebecois or i n d i g e n o u s peoples in Canada. For example. multiple and hybridic identities. like Hollinger.higher than in the US a n d to the proliferation of shifting. And. My worry. These passages implicitly reject the essence of minority nationalism in Canada or elsewhere. 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. 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). Like Hollinger. he says that his model rejects 'the notion of legally pro­ tected territorial enclaves for nationality groups' (Hollinger 1995: 91). a n d indeed is quite a success story. it is clear that the immigrant multiculturalism policy in Canada. After all. So on this issue I think that Hollinger's account of a postethnic America is a good model for other countries. is a b o u t the applicability of this model to non­ i m m i g r a n t groups. on inspection. in its intentions a n d consequences. Asian a n d Caribbean immigrants. Countries such as Austria or Belgium could learn a great deal from the US about the successful integration of immigrants. I think that this process can work n o t only for the older white immigrants from E u r o p e . I think that the integration of immigrants into this fluid a n d hybridic form of multiculturalism is desirable. and the justification for these claims is precisely that these societies were 'well-established' before 2 . political a n d legal institutions. However. I wouldn't use the term 'cosmopolitan' to describe this form of multi­ culturalism. especially the communities that are well-established at whatever time the ideal of pluralism is invoked' (Hollinger 1995: 85). for reasons I will explain later. It explicitly treats ethno-cultural affiliation as vol­ untary. a n d in particular to the 'nations within'. 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. 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. But I agree that it is a good m o d e l for thinking about the integration of immigrants groups. to share their cultural heritage a n d to participate in c o m m o n educa­ tional. 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. however. is m u c h closer to Hollinger's ' c o s m o p o l i t a n ' version. 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. treating immigrant groups and national minorities as fixed a n d self-contained entities.220 WILL KYMLICKA into Hollinger's 'pluralist' category. e c o n o m i c . that is. or the legitimacy of the forms of minority nationalism a d o p t e d by such groups. including a significant increase over the last thirty years in rates of inter-ethnic friendships a n d inter-marriages . a n d that pluralism differs from cosmopolitanism 'in the degree to which it endows with privilege particular groups. But it is fairly clear that h e does not support minority nationalism. but also for newer Arab.

As a rule. Maori in New Zealand or Sami in Scandinavia. For example. Within the . whereas indigenous peoples were entirely isolated from that process until very recently. his objections seem to apply to indigenous peoples as well. o n several levels. b u t lost in the struggle for political power. Accommodating Minority Nationalism How have o t h e r Western democracies dealt with their 'nations within'? By 'nations within' (or 'national minorities'). which is logically equivalent to racial segregation in the US (131). but also includes other incorpo­ rated national groups. h e says it is a form o f ' e t h n i c nationalism' (Hollinger 1995: 134). sec­ o n d . 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 result of federation. a n d as the bearer of group rights. 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. 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. Scots in Britain or Quebe­ cois in Canada. 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 think this is wrong. 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. Stateless nations would have liked to form their own states. h e describes Quebecois nationalism as the extreme form of 'pluralist' multiculturalism. Hollinger is n o t just implicidy rejecting minority nationalism. a n d third. they are out of step with the US's practice itself. 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. and one suspects that h e views their national claims as forms of illiberal racism. whereas indige­ n o u s peoples existed outside this system of E u r o p e a n states. T h e incorporation of such national minorities has typically b e e n involuntary. 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.m o d e r n way of life until well into this century.AMERICAN MULTICULTURALISM 221 British d o m i n i o n . These latter groups are sometimes called 'stateless nations' or 'ethno-national groups'. a n d so retained a p r e . d u e to colonisation. Hollinger's theory implicitly seems to rule such nation­ alist claims o u t of court. T h e r e is n o universally a g r e e d criteria for distinguishing indigenous peoples from stateless nations. to distinguish them from indigenous peoples. Indeed. I will discuss each of these p r o b l e m s in turn. he explic­ itly criticises it as well. b u t may also arise voluntarily. 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. like the Catalans in Spain. 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. And while h e singles out the claims of stateless nations for criticism. First.

but they raise some c o m m o n chal­ lenges to the theory a n d practice of Western statehood. the historical ideal of a fully sovereign state is increas­ ingly obsolete in today's world of globalised economics a n d transnational institutions. particularly for indigenous peoples. they have typically sought to maintain or e n h a n c e their political autonomy. G r e e n l a n d e r s . Australian Aborigines. Welsh a n d Quebecois are stateless nations. Puerto Ricans. such as federal or quasi-federal forms of regional autonomy. but more usually it involves some form of territorial autonomy. In most of the sociological literature on ethnic relations.222 WILL KYMLICKA western democracies. 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. Second. 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. At the e x t r e m e . 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 ' . 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. Moreover. t h e n . Basques. 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. 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. T h a t is. Inuit a n d American Indians are indigenous p e o p l e s . the Catalans. However. 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. 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. 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. 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. whereas the Sami. 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. Scots. As fames Tully argues. Maori. this may involve claims to outright secession. Flem­ ish. I want to e x a m i n e t h e m together h e r e for a variety of reasons. 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. And they typically mobilise along nationalist lines. First. as I discuss later. discussing indigenous peoples in isolation from other 'nations within' can reinforce the perception that they are somehow 3 4 5 6 . these two categories of national minorities are discussed in isolation from each other. and the international law literature o n minority rights.

As Walker C o n n o r notes. often ruthlessly. Ethiopia).AMERICAN MULTICULTURALISM 223 exotic a n d exceptional. (Connor forthcoming) T h e s e conflicts are n o t only pervasive. liberal democracies have tried to suppress minority nationalisms. they are deadly serious. The list includes countries that are old (United Kingdom) as well as new (Bangladesh). a n d t h e n in the next section consider whether the US diverges from this general trend. and Oceania (New Zealand). w h e t h e r advanced by stateless nations or indigenous peoples. 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. Marxist-Leninist (China) as well as militantly anti-Marxist (Turkey). 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. for states in the twenty-first century. Historically. perhaps. 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. Ethnocultural conflict has b e c o m e the main source of political violence a r o u n d the world. South America (Guyana). 7 . 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. a n d includes countries: in Africa (for example. authoritarian (Sudan) as well as democratic (Belgium). The list also includes countries which are Buddhist (Burma). Given the ubiquity a n d severity of these conflicts. North America (Guatemala). 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. rich (Canada) as well as poor (Pakistan). France b a n n e d the use of the Basque a n d Breton languages in schools or publications. 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'. of interest to a few specialists. Asia (Sri Lanka). How should liberal democracies r e s p o n d to such minority nation­ alisms? In the rest of this section. particularly over land a n d settlement policies (Gurr 1993). but n o t a central issue for political life a n d political theory in the m o d e r n world. I will examine the general trends in Western democracies toward greater recognition of minority national­ ism. Put in this light. we can see that the p r o b l e m of the 'nations within' is truly universal in scope. Hindu (India). for e x a m p l e . large (Indonesia) as well as small (Fiji). Christian (Spain). If we e x a m i n e stateless nations a n d indigenous peoples together. At various points in the eighteenth a n d n i n e t e e n t h centuries. the list of countries affected by minority nationalism is global. Moslem (Iran). Eastern Europe (Roma­ nia). p e r h a p s even the cen­ tral issue. Western Europe (France). some scholars have called it the ' T h i r d World War'. and Judaic (Israel). of e n o r m o u s urgency a n d of staggering proportions.

a n d e n c o u r a g e d the massive settlement of indige­ n o u s lands. social prejudice a n d indifference. when the state attacks a minority's sense of distinct nation­ hood. national minorities have maintained their sense of forming distinct nations with a desire for national autonomy. their sense of distinct nationality. These include Canada. the result is often to promote rather than reduce the threat of disloy­ alty and secessionist movements. Spain. at times. In the experience of Western democracies. O t h e r western democracies have a d o p t e d quasi-federal forms of territorial 8 . not attack.is m u c h m o r e stable. 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. H a n n u m 1990. justified partly o n the grounds that minorities which viewed themselves as distinct 'nations' would be disloyal a n d potentially secessionist. for empirical a n d normative reasons. however. Indeed. Canada a n d Australia prohibited the use of indigenous languages in schools and public institutions. and partiy on the g r o u n d s that national minorities are 'backward' a n d 'uncivilised'. 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.the sense of being a distinct nation. As a result. 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. 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. the best way to ensure the loyalty of national minorities has been to accept. Liberal democratic governments have. the heroes. myths a n d traditional customs) can change quickly. Belgium a n d the e m e r g i n g federalism of Britain. But despite centuries of legal discrimination. with its own national culture . In the mid-nineteenth-century. Western states badly misjudged the durability of minority national identities. 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. But the iden­ tity itself . used all the tools at their disposal to destroy the sense of separate identity a m o n g their national minorities. T h e character of a national identity (for example. It is increasingly recognised that the suppression of minority nationalism was mistaken. Today.224 WILL KYMLICKA Similar policies were a d o p t e d toward indigenous peoples. while refusing or rescinding self-gov­ e r n m e n t rights is likely to escalate the level of conflict (Gurr 1993. But the attitude of liberal democracies toward minority national­ ism has c h a n g e d dramatically in this century. Lapidoth 1996). 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. a n d that their languages and cultures were not worthy of respect and pro­ tection. from the prohibition of tribal customs to the b a n n i n g of minority-language schools. This is a striking t r e n d visible in most Western democracies contain­ ing national minorities.

a n d increasingly won. After all. a n d n o redrawing of the boundaries of federal sub-units would create a state. 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. to use Daniel Elazar's term. 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. For most indigenous peoples. family law. and both involve an ideal of shared sovereignty a n d a partnership of peoples. a kind of 'federacy'. regaining) substantial powers over health. But this is n o longer a realistic possibility for western democra­ cies. This is reflected in section 35 of the Cana­ dian Constitution. Indigenous communities in several countries have been gaining (or m o r e accurately. 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. Unlike stateless nations. in effect. province or territory with an indigenous majority.AMERICAN MULTICULTURALISM 225 autonomy. the trend is the same. the goal of eliminating minority national identities has b e e n a b a n d o n e d . education. As the term sug­ gests. 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. After d e c a d e s of assimilationist policies. a 'federacy' has important analogies with federalism . We see the same trend with respect to indigenous peoples. 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). with a collection of powers that is carved out of both federal a n d provincial jurisdictions (Elazar 1987: 2 2 9 ) . policing. federalism has rarely been the mechanism for ensuring self-government for indigenous peoples. While the form of a u t o n o m y differs between stateless nations a n d indigenous peoples. 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. With few exceptions. both involve a territorial division of powers. A n d even where a similar level of coercion 9 10 11 12 . criminal justice a n d resource development in their reserved lands. They are becoming. typically through some system of reserved lands. 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. I n d i g e n o u s peoples have fought for. a n d for their right to be self-governing o n their lands. therefore. indigenous peoples currently form a small minority even within their tra­ ditional territory. 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 r o u g h o u t the west. in the formation of the Sami parliaments in the Scan­ dinavian countries. self-government is being achieved outside the federal system.in particular. respect for their land rights.

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. but in interna­ tional law as well. it has failed to eliminate the minority's national identity. 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. if not impossi­ ble (short of total genocide) to eradicate' (Smith 1993: 131).226 WILL KYMLICKA has b e e n employed in this century (for example. 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. something which the majority takes for g r a n t e d . o n c e established. although this has taken the form of two parallel 13 14 . 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. and a Frame­ work Convention on the Rights of National Minorities in 1995. Few. 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. For p r u d e n t i a l a n d moral reasons. But o t h e r international bodies. 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. if any. it becomes immensely difficult. examples exist of recognised national groups in this century accepting integration into a n o t h e r culture. We also see major developments regarding stateless nations. After all. For exam­ ple. against some indige­ n o u s peoples). 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'. therefore. They accept that they contain two or m o r e nations within their borders. But they have also b e e n rejected as morally indefensible. Religious a n d Linguistic Minorities (1993). 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. This shift is reflected not just at the domestic level. T h e UN has been debating a Declaration on the Rights of Persons Belonging to National or Ethnic. such as the Inter-American Commission o n H u m a n Rights. In short. 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). 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 . 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. And this multinational character is often explicitly affirmed in the country's constitution. 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. 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. As A n t h o n y Smith notes. 'whenever a n d however a national identity is forged. a n d established a High Commissioner on National Minorities in 1993.

with substantial (and constitutionally p r o t e c t e d ) powers of self-government. 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. 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 . I n d e e d . . successful. While often discussed separately. 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. 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. 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. 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 . 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. 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 . a n d powers distributed. in which b o u n d a r i e s have b e e n drawn. a n d rede­ fined b o u n d a r i e s all over the world. 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. As we've s e e n . It is difficult to imagine any o t h e r political system that can m a k e the same claim. 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. 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. 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. is a new form of 'multinational federalism' . they clearly reflect a c o m m o n trend toward rethinking the status of the 'nations within'. while r e s p e c t i n g individual rights a n d freedoms. 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. D e m o c r a t i c federalism has domesticated a n d pacified nationalism.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. 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. a n d a n o t h e r set of conventions a n d declarations con­ cerning stateless nations. 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. t h e r e f o r e . 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. 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.that is. W h a t we see e m e r g i n g within several western democracies.

My c o n c e r n . A n d with respect to these groups. this is u n d e r s t a n d a b l e . when the US c o n q u e r e d P u e r t o Rico. These are the paradigm cases of minor­ ity nationalism within the US. t h e r e is n o distinctively American way of dealing with minor­ ity nationalisms. 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 . Hollinger argues. with concerted efforts. They all possess a distinct political status (for example. the 'domestic d e p e n d e n t n a t i o n ' status of Indians) not exercised by. For e x a m p l e . In o n e sense. Yet they are i m p o r t a n t theoretically. 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 short. Similarly. Hollinger says very little a b o u t these cases of minority nationalism in the US. the American gov­ e r n m e n t has basically followed the same pattern we have seen in other Western democracies. Blacks in the US can be b r o u g h t into the postethnic society. Whites have promised to make this possible. however. Hollinger d o e s n ' t say m u c h about how exactly this is to b e achieved. however. the situation is very different. and to exercise substantial rights of self-government on a territorial basis. 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 . but r a t h e r have fought for inclusion into the American nation. the Dawes Act) aimed at u n d e r m i n i n g their traditional institutions. or offered to. the Chamoros of G u a m a n d American Indians. a n d at breaking o p e n Indian lands for colonising settlers. And in each of t h e m . Political units have been cre­ ated in such a way as to enable t h e m to form a local majority.228 W I L L KYMLICKA By national minorities. since national minori­ ties are relatively peripheral.for example. the descen­ d a n t s of slaves b r o u g h t to America. but I share his h o p e a n d belief that. I d o not m e a n African-Americans. that most Blacks in the US have never t h o u g h t of themselves as a separate nation. 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. o t h e r territories or sub-units of the U S . Indian tribes e n d u r e d a long series of policies (for e x a m p l e . in the American context. Today. Puerto Rico. the 'Commonwealth' of P u e r t o Rico. it tried to replace Spanish-language schools with English-language schools. a n d it is time to make good o n this promise. These national minori­ ties are now treated in effect as 'nations'. 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. b o t h geographically a n d numerically. the US is i n d e e d a multination 18 . a n d I agree. because they rep­ resent the clearest cases where the US has confronted a minority nation­ alism. is with those colonised groups who do think of themselves as 'nations within' .

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. To be sure. T h e result is just the sort of fluid hybridic multiculturalism within Q u e b e c that Hollinger endorses. 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 . 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.) Far from trying to preserve some sort of racial purity.AMERICAN MULTICULTURALISM 229 state. a n d as the subject of g r o u p rights. 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. it has roughly the same p e r capita rate of immigration as the US. All of these minority nationalisms are 'postethnic' in Hollinger's sense. 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. n o t in terms of blood or d e s c e n t . a n d the province administers its own immigration p r o g r a m . (Indeed. these nationalisms are 'ethnic nation­ alisms' based on the primacy of blood a n d descent. i n t e r m a r r y with them. not all minority nationalisms are postethnic: Basque and Flemish nationalism both have a strong racialist c o m p o n e n t . most of w h o m are non-white. as Hollinger claims. 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). defining m e m b e r s h i p in terms of residence and par­ ticipation in the national culture. Q u e b e c is not u n i q u e in this. Is Postethnic Multiculturalism Incompatible with Minority Nationalism? Why have liberal democracies shifted toward accommodating minority nationalisms if. integrate with them. or i n d e e d Puerto Rico. 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. Similarly. In short. 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 . pluralistic distinct society in Q u e b e c . 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 . It also violates their self-understandings of themselves as 'nations' and 'cultures'. Q u e b e c accepts immigrants from all over the world. a federation of distinct nations. 19 20 . actively recruiting immigrants. 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 jointly help build a m o d e r n . to share their cultural heritage a n d to participate in c o m m o n public institutions. rather than races. Consider Catalonia or Scotland. Consider Q u e b e c . These immigrants are not only g r a n t e d citizenship u n d e r relatively easy terms.

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. Second. 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. If the nation that legitimates the state as a whole is not clearly an ethno-cultural nation but a political nation. fewer than 20 p e r cent accept this view (Crete a n d Zylberberg 1991). It is worth trying to m a k e t h e m m o r e explicit. I can see n o reason why liberals should automatically privilege majority or state nationalism over minority nationalism. the overwhelming majority of Quebeckers forty years ago believed that to be a true 'Quebecois'. a n d wish to maintain them . for e x a m p l e . t h e n minority nationalisms b e c o m e inherently unneces­ sary a n d pointless. Rather. then the background condition against which the claim of national minority status makes sense is missing. in most western democracies. t h e r e is a tendency to assume that if the majority nation is not defined in ethnic terms. Scotland in Britain. including Hollinger's. Both state national­ ism a n d minority nationalism are defined in postethnic. b u t rather is a nation o p e n to all regardless of ethnic descent. In real­ ity. and an ' e t h n i c ' (racialist) nationalism p r o m o t e d by the national minority. Q u e b e c in Canada. today. For e x a m p l e . In the case of Q u e b e c . in principle. Since these myths t e n d to be implicit. to all. First. except for those g r o u p s obsessed with racial purity. (Brubaker 1996: 60. 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. open. 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. b u t I think that o n e or m o r e of these mistakes underlies many American discussions. n. 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. 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 . 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.230 W I L L KYMLICKA 1 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 insofar as these are conflicts between two forms of posteth­ nic nationalism. however. non-racial t e r m s . 6) T h e examples of P u e r t o Rico in the US. they mobilise as nations because they cherish their own national identity a n d national institutions. so I will identify four such com­ m o n mistakes. 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. these conflicts are between two c o m p e t i n g forms of civic/postethnic nationalism.

or m o r e . 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. Minority nationalism n e e d not. 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. 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 . Quebec or Catalonia.should be postethnic nations. majority or minority. in a n d of itself. a n d form their own self-governing polit­ ical community. therefore. Insofar as it is guided by a liberal concep­ tion of n a t i o n h o o d . 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. to resolve or eliminate the claims of national minorities. All of these nations. or even typically. based o n a static. Hollinger's view seems to be that cosmopolitan multiculturalism should operate at the level of the state as a whole. 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. . however. H e n c e the fact that the majority nation is postethnic does nothing. Nationalism is a doctrine a b o u t the b o u n d a r i e s of political community.minority a n d majority . majority a n d minority. n o r is it a debate between 'civic' a n d ' e t h n i c ' nationalism. But h e offers n o reasons (that I can see) for this preference. Rather. T h i r d . minority nationalism does not reject cosmopolitan multiculturalism.AMERICAN MULTICULTURALISM 231 into the indefinite future. 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. 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. 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. a n d a b o u t who possesses rights of self-government. Minority nationalists assert that as 'nations within'. 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 ) . should be postethnic. It is perfectly consistent with that view to insist that all nations . b e the opposite of cos­ mopolitan multiculturalism. adopted as a compensation for exclusion from the major­ ity nation. b u t that all nations. they have the same rights of self-government as the majority. In reality. culture a n d institu­ tions. not Puerto Rico. hybridic a n d multiple). 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. 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. share a postethnic m o d e l in Hollinger's sense. 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. minority nationalism a n d cosmopolitan multiculturalism o p e r a t e at dif­ ferent levels.

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. Catalans or Quebecois.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 . hybridic multiculturalism oper­ ates at the largest possible level. Finally. however. is that a postethnic model of civic nationalism is inherently incompatible with the recognition of minority nationalism. a n d p u t n o obstacle to the mixing of peoples across state lines. O n such a view. a n d inconsistent with the practice of most western democracies.232 WILL KYMLICKA 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. or Navajo nationality. 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. (In this respect. or Quebecois nationality. 23 . 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. his preferred model of fluid multiculturalism would more accurately be called 'pan-American' than 'cosmopolitan'. T h a t is. But Hollinger himself rejects that argu­ m e n t . This would be a genuinely 'cosmopolitan' form of multiculturalism. This is conceptually mistaken. T h e second claim. As I see it.) 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. and have d e f e n d e d it myself. But it is also compatible with the strong affirma­ tion of P u e r t o Rican nationality. Minority nationalism in Western democracies is n o m o r e inherently 'pluralist' t h a n majority nationalism . I agree with this claim. including the US. nationalisms must be postethnic. a n d have a right to maintain it into the indefinite future (Hollinger 1998). t h e r e is a tendency in the literature to conflate two separate claims. 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. 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). 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. but n o t P u e r t o Ricans. And so there is n o possible liberal justification that I can see for saying that Americans have a right to national existence. states should have o p e n borders. Hollinger rejects that view on the g r o u n d s that Americans form a nation. It is o n e of the defining features of a liberal nation­ alism. T h e first claim is that in o r d e r to be consistent with liberal values. t h e n so too is the American nationalism that Hollinger defends. freedom a n d choice is increased if fluid. cherish their national identity.

And for some reason. Hollinger's book was written for a domestic a u d i e n c e . Indeed. a n d that minority nationalism is therefore inappropriate for such groups. 24 25 I think it is a serious mistake. minority nationalism is peripheral to the main debates in the US. h e only refers to it in a few passing references in his book.AMERICAN MULTICULTURALISM 233 D o e s it Matter? But why does this matter? After all. by oppos­ ing international efforts to codify the rights of national minorities a n d of indigenous p e o p l e s . in theory and practice. Rather than saying that Blacks a n d immigrants d o not see themselves as distinct nations. post-war American writers have consistently rejected minority nationalism without any serious analysis. Hispanics in Puerto Rico or Albanians in Kosovo? If minority nationalism is an unjustified response to such an involuntary incorporation. what does justice require for involuntarily incorpo­ rated national groups like the American Indians. 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. But I d o think that it is inappropriate to reject minority nationalism unless or until o n e has carefully studied the issues. 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: . Rather than tackling these issues directly or in depth. a n d to Hollinger's a r g u m e n t . What explains this trend? O n e explanation. 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. 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. 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 ) . b u t also in international forums (for instance. These references may b e misleading or inaccurate. American theorists a n d statesmen have consistently attacked minority nationalism. For example. American liberals say that minority nationalism is unacceptable in principle. what is a legitimate response? These are difficult a n d complex questions. I think. not only in their writings. 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). however. even for those groups that d o see themselves as nations. But why think that any of this has h a d a pernicious influence on o t h e r countries? After all. 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.

Serbia. n o t j u s t to existing boundaries. 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. Guided by American models. the situation in C a n a d a is critical. 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. First are the liberal intellec­ tuals within these countries. then I am sure that Quebeckers today would not be so perilously close to seceding from Canada. Slovenia). b u t not serious. as I noted earlier. instead of one. the US itself was quite willing to extend this sort of national recog­ nition to Puerto R i c o . 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. 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.234 W I L L KYMLICKA Canada a n d Eastern Europe. for example. A n d in this context. 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. 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'. even though. In fact two groups pay close attention to these American debates. Romania. the result would probably be two relatively stable liberal democracies in the n o r t h e r n half of the continent. T h e 26 . As the old saying goes. You might w o n d e r who in these countries pays any attention to American liberals. 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. the situation in Eastern E u r o p e is in many ways m o r e serious. a n d the influence of American liberalism has b e e n to marginalise t h e m even further. Despite the ever-present threat of secession in Canada. those countries with powerful minority nationalisms are having a m u c h m o r e difficult time (Slovakia. T h e inability remains the major obstacle to democratisation in Eastern E u r o p e . and to the existence of a peaceful civil society. 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). b u t to democracy itself. 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. 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 . Ukraine. the influence of American models of ethnic rela­ tions has b e e n distinctly unhelpful. For even if Q u e b e c were to secede. Hungary. Liberals are thin on the g r o u n d in most of these countries. Macedonia). which most other Western democracies have given to their national minorities. T h e conflict in Kosovo.

the American rhetoric that a good liberal democracy should be a 'civic nation'. 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. 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. the Bretons. I n d e e d .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. a n d to strip national minorities of their separate public institutions a n d rights of self-government. therefore. Serbia a n d in Russia. Basques. a n d the result has b e e n to create fear a m o n g the minorities. is an unholy alliance of liberal intellectuals a n d majoritarian nationalists. but they do. Americans are n o t the only culprits h e r e . the F r e n c h t e n d to take their principles very seriously. What we see in many of these countries. 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. both of w h o m invoke American m o d e l s to justify rejecting the claims of national minorities. to exacerbate inter-ethnic relations. 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. As I n o t e d earlier. T h e y a d o p t the language of liberal democracy a n d civic nationalism partly to impress foreign observers. 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 these subtleties often get lost in t h e translation. T h e second g r o u p paying close attention is the majority nationalists. We see this trend in Slovakia. 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. the American gov­ e r n m e n t has used military force to press Serbia to accord autonomy to 27 . 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 . H e hears that message b e c a u s e it is what h e wants to hear. 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). 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. Nationalist g o v e r n m e n t s in these countries have n o t only studied. 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 s e attempts to suppress minority nation­ alism can only be achieved by extensive coercion. Corsicans). Romania. 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. but also largely a d o p t e d .

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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.
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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
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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

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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

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(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

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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

Ten . or Pupil of N a t u r e ' . equality a n d democ­ ratic self-government. 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. then. which was widely distributed. 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. T h e famous snake of the New H a m p s h i r e flag is an original Indian symbol. many British colonists had only a distant feeling for England. for example. In ' H u r o n . 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. including this speech. 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 British colonists relied o n the Indians' support in their military confrontations with the French in the mid-eighteenth century. as the Iroquois p e o p l e had d o n e .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. 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. 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. for example. 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. a n d written accounts of revo­ lutionary meetings a n d rallies. By examining engravings and paint­ ings. as well as records of patriotic societies. however. T h e rebels of the Boston tea party dressed as Indians less in o r d e r to disguise themselves. these clubs took their n a m e from a Delaware leader. An a d m i r e r of the Iroquois p e o p l e a n d their federation. G r i n d e a n d J o h a n s e n argue. the prerevolutionary French republican. published a r e p o r t of this meeting. singing songs a n d d a n c i n g in their own fashion 'as' Indians. In the broad frame of G r i n d e a n d J o h a n s e n ' s story. are the T a m m a n y societies. Voltaire. Most conspicuous in this story of Euro-American appropriation of Indian imagery.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. and pledg­ ing their loyalty to the American republic. Their ' m e e t i n g s ' frequently consisted of Euro-Americans dressing as Indians. Benjamin Franklin. 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. By the time of the American revolution. 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 . 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.

Some who seemed to m e n t i o n Iroquois institutions positively. 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. such as J o h n Adams. What­ ever the founders knew of the Indian governance systems. W h e n they d e b a t e d what provisions the new American Constitution should contain. Benjamin Franklin was o n e of the main designers of the Albany Plan. 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. O n G r i n d e a n d J o h a n s e n ' s account. 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 . 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. 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. 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. n o t the constitution of a government. Payne 1996). 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 . J o h n Adams. 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. Adams urged the framers of the Con­ stitution to study I n d i a n governance systems thoroughly. the broad consensus of historians of the period seems to b e that the thesis has n o basis (Tooker 1988. they argue. 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. 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. . as o n e of the many streams that flowed into the A m e r i c a n democratic current. 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.I R O Q U O I S FEDERALISM 243 years later the S e n e c a leader Tryonoga. that Plan was merely a military alliance. this knowledge h a d n e x t to n o t h i n g to d o with their debates. 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. for example. were o n the losing side of the federalist debate. Levy P. 1996. the American revolutionaries discussed ideas of the Iroquois federation a m o n g others. 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. While the C o n t i n e n t a l Congress sat in Philadelphia in 1775 a n d 1776.

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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
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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

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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

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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
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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
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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.

that some people in some parts of the world are seriously deprived while others in other parts of the world live very well. 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 . which people wish to e n t e r from elsewhere in o r d e r to better their lives. 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. because powerful financial institutions have effective power to control their internal e c o n o m i c policies. According to J o s e p h Carens. T h e issue is n o t simply o n e of distributive inequality. In the absence of institutional c h a n g e .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 . many question the moral right of states to limit immigration. 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. 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. 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. 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. 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 not merely a one-time or periodic transfer of wealth from richer to p o o r e r people. excluding p e o p l e from a relatively rich country. a n d farmers a n d miners of the South obtain very unfavourable prices on a global resource market. for example. 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. 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 . 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. 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 . 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. a n d most of the profits r e t u r n to the N o r t h . is little different from . Rather. 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. a n d this institutional system r e p r o d u c e s a n d arguably widens the distributive inequalities. many argue that the colonial e c o n o m i c relations between North a n d South persist (Cardoso 1993). 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.

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). 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. 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. from local o r group-based a u t o n o m y over nearly all affairs. that the same form of law. 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). the idea of sovereignty entails that a state has ultimate author­ ity to regulate all the activities taking place within a specific territorial jurisdiction. 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. by implication. however. Many of these challenges c o m e from indigenous peoples. to self-governance over only a small range of issues.I R O Q U O I S FEDERALISM 251 the preservation of a feudal privilege. Internal Challenges Internally. regulation a n d administration o u g h t to apply to all the peoples a n d locales within the territory. cultural a n d religious differences within their claimed jurisdictions (Levy J. As those examples indicate. 1997). This often seems to m e a n . 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. they have prima facie rights of self-governance. such as family law or the m a n a g e m e n t a n d use of particular resources. moreover. Despite the strong claims of most states to be sovereign over all the activities in a territory. moreover. These claims are difficult or impossible for states organised in the existing states system to accom­ m o d a t e . To the degree that peoples are distinct. 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. a n d the right to develop governance practices c o n t i n u o u s with pre-colonial indigenous practices. Both these aspects of internal sovereignty are morally questionable. This cultural a n d . because they involve claims about the rights to use land a n d resources. By the mechanism of immigration control. T h e limitation of sovereign authority of a wider polity over groups a n d locales may vary in kind or degree. Most of the world's indigenous peoples claim rights of self-determination against the states that claim sovereign authority over them. 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.

must negotiate agreements a n d over which they c a n n o t simply impose their will a n d their law. 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 to have rights to be distinct political entities with which o t h e r political entities. 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.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 . 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 . 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. in having the uniqueness of their claims recognised by international bodies such as the World Court or the UN. which they refer to as 'soft' sovereignty. I n d i g e n o u s peoples remain colonised peoples. Despite the locality of their claims. 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. however. not only with respect to cultural issues. Despite these successes. Despite unjust conquest and c o n t i n u e d oppression. They claim or seek significant self-government rights. 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. In their contribution to this volume. 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. Most seek explicit recognition as distinct peoples by the states that claim to have jurisdiction over them. 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). to some extent. but with respect to land and access to resources. 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. Especially in the last two decades they have organised across different parts of the world. however. internationally recognised state with ulti­ m a t e authority over all matters within a determinately b o u n d e d territory. especially if o t h e r states in the international system are not d o i n g so. requires challenging the international system of sovereign states. Properly recognising the claims of indigenous peoples today. many nation-states c o n t i n u e to repress indigenous move­ ments. T h u s indigenous peoples' movements are both a source of 5 . such as states. a n d have succeeded. 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. They explicitly eschew a notion of sovereignty as non-interference.

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. Instead. In articulating the vision I draw on the work of Gerald Frug. David Held a n d J a m e s Tully. 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. To conclude. In particular. 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. 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.I R O Q U O I S FEDERALISM 253 ideas a n d a c d o n beyond the system of sovereign states. 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. Certain feminist a n d postcolonial theories question this 'sovereign self. This vision should n o t be construed as the proposal for concrete institutional design. a n d justice also be d o n e to indige­ n o u s p e o p l e . is an i n d e p e n d e n t . decentred diverse democratic federalism. 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. Such a c o n c e p t of t h e centred subject. Nedelsky 1989. a n d at the same time show the limits of that system (Wilmer 1993). a subject is a u t o n o m o u s if it has effective control over its own sphere of 6 . 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. A long-time advocate of increasing powers of local governance in the US. Despite the i n t e r d e p e n d e n c e I alluded to above. w h e t h e r a state or a locale. They assume that a unit of g o v e r n m e n t . or complete control over a self-regarding s p h e r e of activity in which others have n o right to interfere. 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. 1991). I sketch a vision of global governance with local self-determination that I call. Most visions of decentralised democracy implicitly transfer the idea of sovereignty from nation-states to smaller units. how­ ever. is problematic at any level. In the theory of a relational self. b o u n d e d jurisdiction with sole authority over matters in its purview. a n d where outsiders should m i n d their own business a n d leave us alone. they assume that we must continue to work within that system because we lack alternatives. in accordance with its major principles. 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. While many share the criticisms of the system of sovereign states that I have summarised. a m o n g others. With some others who question the sovereignty principle.

Others have a right to make a claim to be party to a decision a n d its execution. then. I propose to extend this principle of federalism to the relationship between peoples at both regional a n d global levels. nations or continents. 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. at the same time we should recognise that the web of global. T h u s with David Held. either individually or with others in collective decision-making processes. Frug calls for strong federated a n d negotiated regional governments in which local governments a n d their citizens directly participate (Frug 1999). a n d at the same time m o r e regional a n d local control at the level below that . T h e first element in a vision of global democracy. T h u s a principle of self-determination. self-determination subsidiarity decisions should be made and carried o u t at the most local level possible. h e proposes that more empowered localities should be understood as situated subjects. While locales or other units are or ought to be selfdetermining. b o u n d e d and separated from their neighbours in self-regarding a n d self-interested pursuit of local wellbeing. Instead of assuming that decentralised units must be centred. 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. clearly separating a realm of our business from a realm outside that is n o n e of o u r business. or to review them. parties should make the decision together. even non-governmental organisations. When issues a n d actions are thus mutually affecting. a n d where those outside must keep o u t of o u r business. as distinct from the principle of sovereignty. b u t n o n e ought to be sovereign. peoples. 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. locales.254 IRIS M A R I O N YOUNG action a n d influence over the determination of the conditions of its action. only if they can show that the issue and decision materially affect them. n o jurisdiction ought to be sovereign. can each be thought of as having claims to self-determination. a n d that much about o u r local context is constituted by our rela­ tionship to those outside. Regions. but without sovereign borders. T h o m a s Pogge a n d others. W h e t h e r at the level of individual persons. is local self-deter­ mination. To reflect this. While local a n d regional self-determination are important values. 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. local regions. I envision a principle of local self-determination enacted in the context of global governance structures (Held 1995). This means rejecting a conception of self-governance as non-interference. 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.

a principle of the sep­ aration of powers is vital. municipalities. are left to local jurisdictions. such as indigenous groups. 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. each with its own regulative function. 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. 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. 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. states are the subject of what international regulation exists. 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 .that legislates regulation in these areas. 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. a n d the m o v e m e n t of peoples.a world state . 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 . trade a n d finance. citizenship. in the sense that it only lays down r a t h e r general principles with which all jurisdictions must comply. Each provides a thin set of general rules that specify ways that individuals. T h e visionary founders of the UN h o p e d that its institutions would evolve this way. T h e global level of governance is 'thin'.I R O Q U O I S FEDERALISM 255 of c u r r e n t nation-states. a n d some of t h e m would still have the potential to . regions a n d states relate in a nested fed­ erated system. corporations. Interpretation a n d application of the principles. While these may sound like contrary goals. with state. is local a n d regional. as well as any governance issues that d o n o t come u n d e r the principles. b u t only to set out a n d a r g u e for a few principles of postcolonial governance. for example. including labour standards a n d wel­ fare rights. For the most part. environment. T h u s I imagine that each regulatory regime has a functional jurisdiction legally separate from those of the others. non­ profit service associations a n d individuals. c o m m u n i c a t i o n s a n d transportation. m o r e than any other. Public administration. h u m a n rights. which is to say that each locale has the power to decide for itself how it complies with the general regulatory principles. 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. At a global level. however. directly addressed in global regulation. I imagine a global system of reg­ ulatory regimes to which locales. In that spirit. according to this vision. I d o n o t envision a single sovereign g o v e r n m e n t . investment a n d capital utilisation. My p u r p o s e is n o t to design global governance institutions.

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. a n d so on to a level of global j u d g e m e n t a n d regulation. is to p r o m o t e democracy. most are deeply u n d e m o ­ cratic. 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. the devolution of sovereign authority o n t o m o r e local units. 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. T h e uniformity. 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 . outsiders have a right to claim that they are affected by a unit's or an agent's business. With Held. would b e seriously altered. the UN is not a democratic institution.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 . Participation a n d citizenship are always enacted best at a local level. 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. any . 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. I envision regimes of global federation as democratic. and I c a n n o t begin to address those. d o require institutions of representation a n d policy deliberation at levels far removed from the local. with little or no opportunity for the participation of ordinary citizens and locales (Pogge 1997). At the level of vision. T h e tribunals of international law have few c h a n n e l s of democratic accountability. 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. o n e of the reasons to insist on localism. centrality a n d final authority of that level. the E u r o p e a n Union. For o n c e we move beyond a local level. however. 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. Some might claim that at this level democratic participation and accountability is simply not possible. 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. Especially because of the power and structure of the Security Coun­ cil. 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. Held imagines global governance with nested levels of jurisdiction. Some might regard this as the most far-fetched of all the elements in the vision. however. Decentred federalism allows sovereignty at n o level. 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. First. If conflict is n o t resolved or if additional agents have a legitimate stake in the issue. Democratic fed­ erated regimes of global regulation. h e r e are some things to bear in mind.

whose interests a n d p r o b l e m s must be discursively constructed as involv­ ing everyone. which h e believes can b e generalised as ideals for a postcolonial politics: mutual recognition. Postcolonial possibilities of transportation a n d c o m m u n i c a t i o n .is an 'imagined community'. they maintain . 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 . finally. 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. Tully describes what emerges from such a process of interaction and negotiation a m o n g distinct groups as 'diverse federalism'. 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.I R O Q U O I S FEDERALISM 257 polity . m o d e s of discourse a n d ways of looking at the world. enable the formation of public spheres c o m p o s e d of active citizens in global civil society. 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. With J a m e s Tully. because p e o p l e d o n o t have experience of most of the oth­ ers in the polity. 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. As federated. 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. hemispheric or global . each party's distinctness is affirmed. By m e a n s of strong local organisation. however. In the process of negotiated interaction they maintain con­ tinuity with their pasts. 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. they seek to maintain continuity with previous agreements. 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. 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 ) . In Strange Multiplicity.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). finally. Tully looks to p r e . t h o u g h they are always also revisable by m e a n s of new negotiations. As I have d o n e earlier. c o n s e n t a n d continuity. Tully extrapolates t h r e e 'constitutional conventions' from this e x a m p l e of treaty constitutionalism. 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.national. I envision d e c e n t r e d democratic global federalism as diverse. with their own inter­ ests. 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.

modes of thinking a n d forms of self-government that make it u p . T h e feder­ ated relation to wider legal arrangements is diverse in several respects. self or c o m m o n premises . . T h e relationships in which the diverse units a n d groups stand to the federation. T h e postcolonial project entails. Most places. I have suggested. 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. some may not apply at all. A polity in the m o d e of diverse federalism publicly recognises the diversity of peoples.258 IRIS M A R I O N Y O U N G strong presumption of local or group-based self-governance. 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. finally. ways of life. are not necessar­ ily uniform. they d o n o t assume a single c o m m o n idiom of discussion. 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. 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. Politically. 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. Instead.or a single com­ m o n way of expressing themselves. Agreements a n d regulations may apply to different units in different ways a n d degrees. 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. or indeed.

Tully 1993. in fact. ranching. See also Delgamuukwv. Reynolds 1992. a native group that in the past lived mainly by hunting. 1991. 259 . 1995. 6 For a development of this claim see James Tully's chapter in this book and references therein. For a discussion of some of these strands and their limits. o n e does not exist. fishing and gathering may now turn its lands to farm­ ing. Williams 1990. the diversity and complexity of arguments concerning indigenous peoples' claims. 3 There were significant strands of moral and political thought that resisted such assumptions. for example. Walker 1987. 1995. 748: So far as the doctrine of aboriginal rights is concerned. 123-24. for example. Said 1994. 1996. Royal Com­ mission o n Aboriginal Peoples 1996a. 7 See the important discussion by Slattery 1987: 745-78 especially at p. Okin 1998. we see no reason to impose a stan­ dard typographical practice where. O n the 'governmental' character of this aspect of the lib­ eral state with regard to cultural minorities see Chatterjee 1993: 220-39. Canada. see. 5 See. T h e chapter by Barcham also touches on these issues. Slattery 1987. Arneil 1996. see Pagden 1995. British Columbia (1997) 3 SCR 1010. the Symposium on Multicultural Citizenship in Contestations 1997: 4. especially Lamar CJ at paras 116-18. Given our desire to reflect. 1997. Tuck 1999. Our contributors take different stances on these issues.Notes 1 Introduction 1 T h e historical material is now vast. 8 There has been some debate over whether or not it is appropriate to italicise words in Maori. 4 Note that Kymlicka has been criticised by some for being unwilling to impose liberal principles on groups like indigenous peoples. tourism or mineral development. 2 For more discussion o n the nature of western political theory in general see the essays in Vincent 1997. 1. For important recent discussions see Pagden 1982. in part. Cooper and Stoler 1997. Chatterjee 1993. Connolly 1994.

1 1 . 9 For a reconstitution of the Maori universe of utu. It is here used as a Maori translation of'ship'. He uses the latter term to constitute the entire Maori world-view as a basis of identity and sovereignty. 10 For questions about pakeha identity and history. I continue to use rangatiratanga as a starting point for the non-Maori reader who is encountering the question. 57. see Orange 1987: 19-23. see Durie 1998: 2-3. The connotations of 'galley' make it a better English translation than 'canoe'. 11 A meeting place where strangers are challenged. 2 For Chief Justice Prendergast's judgment in the case Wi Parata v. and stated as the basis of cultural claim.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. and where debate occurs among those qualified to take part in it. 2 Waitangi as Mystery of State: Consequences of the Ascription of Federative Capacity to the Maori 1 Colonial Office memorandum CO 209/2:409. Baswick & Leeson 1999: 7 0 9 . See Kukathas 1997b. it is mentioned last. 8 For Locke on 'federative power'. . see Sharp 1997: 65-6. see Turner 1997. see Sharp 1997: 64-9. 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.3 . single or double-hulled. 5 The term 'contact' is a key o n e in Pacific historiography. Bishop of Wellington J877. For tau nw'and its ambivalences. The Maori cosmogony is set forth. 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. but individuals should be free to form or re-affirm their commitment to var­ ious kinds of associations (cultural or otherwise). but equally. For the historical circumstances. denoting the m o m e n t at which the encounter between cultures began. then recognised as guests. see Durie 1998: 2 . and whether the word pakeha adequately ascribes them. See also Turner forthcoming. Reference given by Paul McHugh in Kawharu 1989: 31. alluding to the exchange between Peter Munz and Anne Salmond (Munz & Salmond 1994: 60ff). in Durie 1998. 4 For the enlargement of vocabulary from rangatiratanga into mana. sections 143-48. has no business interfering with them. chapter 12. 7 See Windschuttle 1994 and the ensuing exchange in La Capra. see Salmond 1997. 12 T h e ivaka is the sailing vessel. 6 I owe much here to conversations with Mark Hickford at St Antony's College. as well as the possibilities for a fair dialogue. 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. Hence there are no grounds for group rights. with emphasis on the role of James Busby as resident on behalf of the Crown. in which Polynesians navigated the Pacific. Oxford. see Second Treatise. and many other authors.260 N O T E S (PAGES 1 9 . see Kawharu 1989: 110-13.

3 For a summary of the historical research on the four dimensions of coloni­ sation over four historical periods in Canada. 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. For background. 436-37. 13 Delgamuukw 1997: 114. Sparrow [1990] DLR (4th): 404. forthcoming. Warry 1998 and 'Legitimations of Internal Colonisation'. 11 R. AG BC (1973). v. Royal Commission 1996a: 201-44. 141. see McNeil 1998. These resettlements covered a tiny portion of British Columbia and were nowhere near the Gitxsan and Wet'suwet'en territories. see Asch 1999: 432. see Culhane 1998.4 7 ) 261 2 T h e best introduction to how these two concepts are used by indigenous peoples is Turner 1997. 245-604.) For an analysis of Delgamuukw. and the subhead 'Legitimations of Internal Colonisation'. the four policies analysed by the Royal Commission 1996a: 245-604. 10 Delgamuukw v. see Alfred 1999b. 6 For the strategies of assimilation and accommodation. Asch argues that this feature of the Court's judgments legitimates and con­ tinues the colonial status of indigenous peoples. and Alfred 1999a. . 439. see Van devPeet (1996) 137 DLR (4th): 289 (SCC): 300. cited in Asch 1999: 435. For the Court's rejection of any appeal to the general and universal rights of the Enlightenment as a source of aboriginal rights. BC [1997] 1 CNLR 14: 145. For a recent statement of indigenous sover­ eignty and self-determination. Culhane 1998: 90-110. 12 T h e date the Court gives for the assertion of sovereignty over indigenous peoples and their lands is 1846. for example. 7 For the concept of a 'word warrior'. see Armitage 1995. see Royal Commission on Aboriginal Peoples 1996a. 5 For a summary of historical research o n the three strategies of extinguishing rights. For a broad textual and contextual analysis of the cases leading up to Delgamuukw in 1997. See. cited in Asch 1999: 439. 245-604. For the appeal to their 'distinctness' as 'aborigi­ nals' as the sole basis of aboriginal rights in earlier judgments. 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 Turner forthcoming. and the sub­ head 'Struggles for Freedom'. 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. to which I am greatly indebted. 4 Accordingly. see Royal Commission 1996a: 137-200. 9 Calderet al. 34 DLR (3rd) 145 [1973] SCR 313: 156. (Henceforth in text as Delgamuukw 1997. 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. See also Alfred 1995. '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). v.N O T E S (PAGES 3 8 . 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. 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. 439. see Raunet 1996.

1 0 4 . international treaties and continuing sovereignty are also features of Marshall's famous argument. This is incompatible with his earlier statement that indigenous nations are domestic and dependent. See Tully 1993: 117-27.5 2 ) 14 This is the main thesis of Asch 1999. an early Chief Justice of the US. see 'Struggles of Freedom' and note 42. as justification for infringement only became rele­ vant after Aboriginal rights were constitutionalizcd in 1982! 16 Delgamuukw 1997: 161. and so can take their land. as a strategy of assimilation. But Lamer CJ was not referring to the seventeenth and eighteenth centuries . For the limitations of . If the Plaintiffs ever had sovereignty. see Appendices. 21 For hinge propositions. the 1989 submission of the Attorney General of Canada in defense of the earlier. 19 See. p. As of September 1999 the federal government has not ratified the Agreement. for example. pp. Lamer CJ is citing with approval an earlier case. see Alfred 1995: 119-28. 3. most of the other First Nations have said that it is not a template. claim that the orig­ inal Nisga'a land claim includes part of their traditional territory. 22 This starting point is a paraphrase of John Marshall.7 2 and Tully 1993: 5 8 . 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.l. For details of the land settlement. 515-97). For a devastating criticism of the Agreement. Glad­ stone. Williams 1990. Nisga'a Final Agreement (1998). Pagden 1995. 15 For these justifications. T h e Agreement was signed by the three parties on 4 August 1998 after twenty years of negotiation. 29): T h e plaintiffs' claim to ownership and jurisdiction over all the lands in the claim area.he was talking about the present day. T h e Attorney General of Canada responds: Ownership and jurisdiction con­ stitute a claim to sovereignty.9 9 . 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 . For the legal and historical background. T h e two-step procedure. 6. and the modern treaty process in British Colum­ bia more generally. the Gitanyow. in Worcester v. 17 The Government of Canada. clauses 2.agri­ culturists are superior to hunters and gatherers. 159-95 (self-government and justice). 18 See Nisga'a 1998: 31-158 (land and resources). n. unless an indigenous nation has agreed to this status in inter­ national negotiations. the Government of British Columbia and the Nisga'a Nation. see the articles in British Columbian Studies 1998-99. the State of Georgia in 1832 (6 Peter's Reports. It states (cited in Asch 1999: 444. 20 Although the provincial government has heralded this treaty as a 'template' for the treaties now under negotiation with fifty other First Nations. For an overview of the arguments pro and contra. lower-court challenge by the Gitxsan and Wet'suwet'en peoples for legal recognition of their rights to jurisdiction over their tradi­ tional territories. see Foster 1998-99 and Raunet 1996. O n e indigenous nation. see Turner 1997. Preamble. Culhane 1998: 3 7 . para 73.262 N O T E S (PAGES 4 7 . 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. but there is no evidence of this. it was extin­ guished completely by the assertion of sovereignty by Great Britain.

26 For this conception of non-state and non-exclusive sovereignty. 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. For a comprehensive account and pragmatic defence of this and the self-determination argument.7 2 and Turner 1997: 19-30. see Alfred 1999a: 42-4. see Murphy 1997. 24 This understanding of treaties and of the Royal Proclamation of 1763. Royal Commission on Aboriginal Peoples 1996: 4 3 4 . See Tully 1993: 127-29 and Alfred 1999a: 5 2 . See Burrows 1997. 104.N O T E S (PAGES 5 2 .3 . see Alfred 1999a: 5 4 . Royal Commission on Aboriginal Peoples 1995a: 59-70. . see Turner 1997. 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. 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). See also the reconstruction and application of the prior and continuing sovereignty argument by Williams 1997. 29 International Court of Justice (1975) summarised in Venne 1998: 4 5 . 1996b: 18: In entering into treaties with Indian nations in the past.1 am greatly indebted to these two excellent theses. For a similar study for Australia. Venne 1997. see Canadian Royal Com­ mission 1993. The Court continued this line of reasoning in Case Concerning East Timor (Portugal v. Treaty making . based on a critical review of the extensive lit­ erature generated by the Royal Commission. not subordinate part­ ners already in or o/Canada. There is a tension between these two views in the final Report o f the Royal Commission. See note 28.5 4 ) 263 Marshall's use of the prior and continuing sovereignty argument. Australia) (1995). see Tully 1999. 28 See Venne 1998: 6 8 . 113. see Tully 1998.9 6 . see Strelein 1998. a relation that is not captured by West­ ern notions of private property or jurisdiction. For a more detailed account o f the for­ mer view. as 'popular' sovereignty or a 'free people'.6 3 and Venne 1998: 122-28. with more emphasis on the self-determination argument. 23 This fundamental principle has been upheld by the International Court of Justice in its Advisory Opinion Concerning the Western Sahara (1975).7 . When these two arguments are presented from an indigenous perspective. For an attempt to discuss the argument in the context of Australia. For an introduction to this holistic understanding of being-in-the-world. as international treaties among equal nations or peoples. the Crown recognized the nationhood of its treaty partners. That is. Venne 1998 and Macklem 1995 for the com­ plementarity of the two arguments.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. Strelein 1998. is the way treaties are understood by indigenous peoples and it has gained considerable historical and normative support by Western scholars. 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. . 27 See Murphy 1997. For the latter view. It does not imply that o n e nation is being made subject to the other. For the Supreme Court of Canada's use of the argument . 25 See Royal Commission on Aboriginal Peoples 1996a: 6 7 5 . i n d i g e n o u s p e o p l e s are equal partners ivith Canada.

GA Official Records. Declaration on the Granting of Independence to Colonial Countries and Peoples Res­ olution 1514 (XV) 14 December 1960. 15th session. no. paras 6-7 together with Resolution 1541 (XV) GAOR 15th session. 1998. Suppl. This universal principle is endorsed by the Supreme Court of Canada in Ref­ erence re Secession of Quebec. for Australia. paras 6-7 together with Resolution 1541 (XV) GAOR 15th session. see note 19.5 8 ) of discovery and non-consent that the ICJ rejects in Western Sahara see note 12. cited at 76. para 1.4 . no.7 4 argue that while Kymlicka's well-known theory protects indigenous peoples from assimilation. 9 2 . For the studies of four Special Rapporteurs see Venne 1998: 7 5 . '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'.3 . The Declaration on Friendly Relations. In addition to the references in note 25. and in general. 29. 16. minorities. See Young forthcoming for a cogent theory of global democratic governance that recognises individuals. Suppl. it preserves colonial accommodation.264 N O T E S (PAGES 5 4 . 66. The right of self-determination is asserted in Article 3 and qualified in Article 31. Turner 1997: 1-30 and Murphy 1997: 5 9 . Strelein 1998: 16-33 and Moss 1995.6 ) . peoples and states. This saltwa­ ter restriction on self-determination was introduced in 1960 in explicit oppo­ sition to the Belgium initiative to extend it to peoples. no. 16. 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 . within independent states. 29. See Strelein 1998: 60-2. Principle IV. GA Official Records. 15th session. see Venne 1998: 92. Murphy 1997 and Kymlicka 1995. GA Official Records. Suppl. and her chapter in this volume. Collective rights embodied in a claim to self-determination are seen as a threat to the sovereignty of the dominant state. 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. Young forthcoming. 15th session. For a detailed presentation of this argument with respect to Canada.2 8 for the Draft Declaration. no. Strelein 1998. See Laden 1997. 66. see Tully forthcoming. The Draft Declaration on the Rights of Indigenous Peoples accepts internal self-determination at Article 31. 30 31 32 33 34 35 36 37 38 39 40 41 42 . including indigenous peoples. and 2 0 5 . 107-63 for the struggles over the Draft.8 2 . 16. Declaration on the Granting of Inde­ pendence to Colonial Countries and Peoples Resolution 1514 (XV) 14 December 1960. Principle IV. Suppl. in Venne 1998: 205-28. and for the use by the Attorney General of Canada of an extinguishment argument that the IJC also rejects. Strelein 1998: 5 9 . especially the study by Aureliu Cristescu. 25506. 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. See Venne 1998: 5 1 . GA Resolution 2625 (XXV) of 24 October 1970. Declaration on the Granting of Independence to Colonial Countries and Peoples Res­ olution 1514 (XV) 14 December 1960. file no. no. 16. See Venne 1998: 73-4.6 1 . Suppl. 16. This is a paraphrase of the rights of internal self-determination in the Draft Declaration on the rights of Indigenous Peoples. See Strelein 1998: 59-60.

Queensland (No. WikPeoplesv. 7 Mabo 1992: 44. based o n the customs and traditions of the people. See also 65 and 83. Victoria [1998] 1606 FCA (18 December 1998) becomes Yorta Yorta. which survive the assertion of sovereignty by the colonial power in much the same way that. Coe v. at an earlier stage of the development of the area. See especially his discussion of the recognition and enforcement of native title by the ordinary courts at 4 2 . 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. Queensland (1996) 141 ALR 129: 230. Commonwealth (1975) 135 CLR 337. Some commentators have criticised the confining of indigenous title to a purely private right. WikPeoplesv. 2) (1992) 107 ALR 1. which examined the process of moral reflection that underpinned the High Court's recognition of indige­ nous title. that the sovereignty of the Australian state could not be questioned in proceedings before the courts of Australia. rights held by private parties survive a change in sovereignty in the wholly nonIndigenous context. Queensland (1996) 141 ALR 129 (HC) becomes Wik. Sparrow v. See also Coe\. under international law. Its content is determined by the courts as a matter of fact.8 (per Deane and Gaudron JJ). Mabo v. British Columbia (1997) 153 DLR (4th) 193 (SCC) becomes Delgamuukw. per Deane and Gaudron JJ. Wardv. 2) (1992) 107 ALR (HC) becomes Mabo. Western Australia (1998) 159 ALR 483 (FC) becomes Ward. 8 In Mabo 1992: 20-1 and 51 (per Brennan J) and 5 7 . however (although there are some comments that would suggest otherwise in the first Coe decision at 129 (per Gibbs J ) ) . R [1990] 1 SCR 1075 becomes Sparrow. and Yorta Yortay. the High Court held.N O T E S (PAGES 6 0 . even on the terms laid down in Mabo. although they have generally conceded that that is the effect of the definition of native title in Mabo. Here. See also 83. 6 Mabo 1992: 42. Indigenous title is enforceable before the general courts by the usual legal and equitable remedies. 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. This essay is a companion to Webber 1995a. See. following the Seas and Submerged Lands case. Grattan and McNamara 1999. Mabo v. Queensland (No. /*r Deane and Gaudron JJ. and to Duncan Ivison. Commonwealth of Australia (1993) 118 ALR 193 (HC) at 198-200 and. Within general Australian . 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. Commonwealth of Australia (1979) 24 ALR 118 (HC). for example. New South Walesv. see Clarke 1999.5 of that decision: Native title is conceived as specific interests in land. Some of the more frequently mentioned cases have been abbreviated after their first mention in the text: Delgamuukw v. The recognition of that overarching sovereignty need not exclude a lesser right of self-government. I argue that that limited conception of indigenous title (as a purely private right) is untenable. For a discussion of Australian constitutional law as it affects indigenous people. Garth Nettheim and Paul Patton for their comments on earlier versions of this manuscript.6 3 ) 4 Beyond Regret: Mabo's Implications for Australian Constitutionalism 265 1 2 3 4 5 My thanks to Bill Wagner for research assistance.

Section 35 of the Constitution Act. It is sufficient to note that the concept is a complex one. however. Regardless of whether such authority is recognised as a matter of constitutional right. 147). lesser rights. The definition has. See also the discus­ sion of Pufendorf in Tuck 1979: 160-61. Unlike Commonwealth legislation. by the conclusion that 'aboriginal title' itself is not subject to it. or perhaps vested in (or shared with) the Australian people. Land rights legislation fre­ quently allows the land to be dealt with in ways that would not have been pos­ sible before colonisation. Re Southern Rhodesia [ 1919] AC 211 at 233-34. See Borrows 1997. Dodson 1997: lOOff. was responsible for the provisions on ownership in the French Civil Code. 197-200. State of Georgia (1832) 6 Peters 515 at 5 5 6 .6 0 (US Supreme Court). The Van der Peet test has been fiercely criticised. been retained for other. 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.266 N O T E S (PAGES 6 3 . as conseiller d'etat and orateur du gouvernement. for example. custom or tradition integral to the distinctive culture of the aboriginal group claiming the right' Van der Peet\. See. currently subject to sub­ stantial reconsideration. upon introducing the provisions before the Corps Legislatif on 17January 1804. native title neces­ sarily presumes a measure of continued indigenous political autonomy. Cooper v. 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. vol. This is not the place to resolve all these conundrums of sovereignty. of course. The application of this definition has been substantially lim­ ited.6 6 ) constitutional doctrine. 9 10 11 12 13 14 15 16 See also Brennan 1995: 85-7. 8: 146-52. R [1990] 1 SCR 1075 at 1109-11 and 1113-19. who. in its 1986 report.9 . Stuart (1889) 14 App Cas 286 at 291. Cherokee Nation v. is the best interpretation of the natural rights theory of Jean-Marie-Etienne Portalis. in Delgamuukwv. Bern and Dodds in this volume. Coombs' principal concern is with those aspects of native title legislation that render indigenous land more easily alienable. Clarke 1997: 22ff. may ratify past acts of dispossession. the Law Reform Commission rejected cod­ ification and court enforcement as ways of recognising Aboriginal customary laws (Law Reform Commission 1986: 87-8. This. which may well have space for the recognition of sig­ nificant indigenous rights to self-government. See his speech. by virtue of their ability to amend the Constitution by referendum. and may confer less protection against future dispossession than that accorded to nonindigenous interests. See. See also Worcester v. Locke. used the indigenous people of North America as his chief exemplars of humanity in the state of nature (Locke 1986: 328). it seems to me. State of Georgia (1831) 5 Peters 1 at 17 (US Supreme Court) per Marshall CJ. subject to justification: see Sparrow v. per Lamer CJ). Australian states' attempts to create arrangements for the control and man- . 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. See also Tully 1993: 137. R (1996) 137 DLR (4th) 289 at 310 (SCC. 1982 protects 'aboriginal and treaty rights' from legislative impairment. For this reason. Mabo 1992: 2 6 . sovereignty is undoubtedly divided at least between the Commonwealth and States. British Columbia (1997) 153 DLR (4th) 193 (SCC). the division of governmental authority is not strange. Nettheim 1999: 564ff). in Locre 1827. for example. for example.

Their .7 (per Brennan J ) . the cases on indigenous title at least implicitly acknowledge this. High Court of Australia. 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: 3 2 . 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. The 1998 amendments to the Native Title Act 1993 strengthened the capacity to resolve title issues by agreement. MacMillan BloedelLtdv. See Smith 1998. GummowJ (Wik 1996: 2 3 4 . and KirbyJ (Wik 1996: 279ff). Transcript of Pro­ ceedings. See. Tickner. 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'). see Edmunds 1998. Indeed. 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. for example. 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. Mabo 1992: 4 8 . see Grattan and McNamara 1999. Western Australiav.Iff of the Constitution Act. O n e wonderful example of this comes from the area north of Lakes Huron and Superior in the 1840s. Mabo 1992: 44 (per Brennan J). For a useful review of the use of regional agreements in the first years of the regime. in the majority reasons. For an especially thoughtful discussion. Proposed sections 35. Canada. see Merlan 1996: 165.7 3 ) 267 17 18 19 20 21 22 23 24 25 26 27 28 29 30 agement of indigenous title are subject to direct constraints imposed by the Racial Discrimination Act 1975 (Cth): Gerhardyv. See also Yu in Yunupingu 1997: 168ff. but with the Court expressly declining to state whether the granting of land to a land trust would extinguish native title: Pareroultja v. for they make clear that the specific rights of indigenous people inter se are determined by the law of the community con­ cerned. The realisation that indigenous title is primarily about the recognition of the indigenous order. See Delgamuukw 1997: 228. 1982. There is considerable anthropological literature on the appropri­ ate claimant. not the specific interests. Sparrow 1990: 1119 (per Dickson CJ and La Forest J). See also at 284 (per Laforest J). S156 of 1993. Delgamuukw 1997: 273.3 7 ) . Royal Commission on Aboriginal Peoples 1996b: 561-62. may provide elements of a solution to the issue of group definition so ably presented (with intriguing proposals for resolution) by Sutton 1995a: 1. sections 29ff. No. per MacfarlaneJA).N O T E S (PAGES 6 7 . these particular amendments (unlike others in the 1998 package) having significant indigenous support.9 (perBrennan J) and 84 (per Deane and Gaudron JJ). the reasons of Toohey J (Wik 1996: 186-87). See. Pareroultjav. See also Slattery 1987: 744—45. In Yannerv Eaton [1999] HCA 53 at paras 76 and 77. relying upon the provisions with respect to the alienation of Indian lands in the Royal Proclamation of 1763. Wik 1996. Compare. Draft Legal Text (9 October 1992). 13 April 1994). but note that they are talking about land law's feudal character in a manner very different from that here. Tickner (1993) 117 ALR 206 at 214 (leave to appeal to the High Court was d e n i e d . Mullin 1985: 607 (BCCA. for example. Charlottetown Accord. For a contrasting view. with those of Brennan CJ (Wik 1996: 154-59).

See also Ward v Western Australia [2000] FCA 191 at paras 203—6. see text accompanying note 16. not least because indigenous representatives were cut out of those negotiations. where a range of potential means of implementation is acceptable: Mahev.1 0 ) . rather than the continuity in descent of any of the subgroups. that context-sensitive adjudication may be better than 'political negotiations'. especially that Constitution's stipulation (in section 24) that the members of the House of Representatives should be 'directly chosen by the people'. not the continuity of any specific private rights to land. I suspect that the same is true of the guarantee of democratic institu­ tions implicit in the Australian Constitution. See also Sullivan 1995: 97. and. of the right to schooling in minority official languages in Canada. control of parts of the area occupied by the community may be exercised by sub-groups . 4 7 . 36 See. For criticisms.2 . Alberta (1990) 68 DLR (4th) 69 (SCC) at 85ff. 542) and by a passage he quotes from Lamer CJ's judgment in Delgamuukw (Ward 1998: 499. Markus 1996. for example. 32 Ward v Western Australia 1998: 529. . 33 See note 19. Kirby 1970-71. but nevertheless that they do operate. and sets out to chart the process of moral reflection that underlay Mabo. see Brennan 1998. The High Court has been unwill- . The issue is not merely a lack of proof of the sub­ groups' interest. the claim was originally brought by individuals for specified parcels of land. which does not argue that moral reflection or arguments of justice operate unmediated in society (for that is clearly not the case). 38 But see Coombs 1994: 148 in which he argues.268 N O T E S (PAGES 7 3 . where the court rejected an appeal based on precisely this ground. 37 See. as in Mabo. It has also generally been the case under the Northern Territory and Queensland legislative regimes (Sutton 1995a: 9 . for if this were the case. For defence. especially Appendix 1. Dodson 1997. 638.7 6 ) arguments resulted in the Robinson-Huron and Robinson-Superior Treaties of 1850 (Morrison 1994: 4 0 . for example. This suggests that it is the indigenous societies' character as legal/political entities that is important to the establishment of indigenous title. for example. Wik 1996. found in section 23 of the Constitution Act 1982. 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. 31 This is certainly true of the High Court judgments: Mabo 1992. Dodson 1997: 5-6. 39 Some constitutional rights also have this character. . not laws and customs of the sub-group. Antonios 1998. Lee J dismissed this argument (at 533) by suggesting that it is the people's continuity as an organised society. but the traditional laws and customs which order the affairs of the sub-groups are the laws and customs of the community. This is true. the Western Australian government would have won its argument that the lack of proof undermined proof of the people's title. 34 For Coombs' remarks.6 9 ) . This is true even when. see Clarke 1997. 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. on the basis of the experience of the Waitangi Tribunal in New Zealand/Aotearoa. 539-43. Delgamuukw 1997). when deter­ mining that native title is vested in the people rather than the subgroup: the community may be so organized that responsibility for. See also Lee J's comments at 542. 35 See Webber 1995a. indeed. The vesting of the land in the entire community was affirmed on appeal. upon which title depends. 639. see Ward2000: paras 200-2.

4 1 . the account of different languages of justification in Macdonald 1997: 74—7. a resolution that was intended to g o some way towards satisfying this demand. The political role too had its antecedents. There is a very g o o d account of this p h e n o m e n o n in Morrison 1994. The forced removal of Aboriginal children is o n e of the clearest examples (but not the only example) of this. But the more general . See generally Attwood 1996a: 100-16. Yet several judges say that the scope for variation in representation may not be absolute. John Howard). the implicit debate between Prime Minister Howard and Patrick Dodson at the opening of the Australian Reconciliation Convention. see Zines 1997: chapter 17. and various systems of proportional representation. T h e differences are also reflected within indigenous (and indeed non-indigenous) communities. On 26 August 1999. Indigenous peoples raise additional considerations. a first-past-the-post system. Ex rel McKinlay v.4 ) . Blainey 1993: 11. For useful correctives of this assertion. compatible with a broad range of variation in particular systems of representation. See. as description of how the courts have actually decided cases. which permitted the counting of indigenous Australians in the national census. and Webber 1993. See the dis­ cussions in AG Commonwealth. See Bern and Dodds in this volume and Webber 1996: 275-76. Of course. Overview 1997: 8-12. Commonwealth (1975) 135 CLR 1 (especially per Stephen and Mason JJ) and McGintyv.8 1 ) 269 40 41 42 43 44 45 46 47 48 49 50 ing to find that those provisions require a particular pattern of representa­ tion (in particular. Murray 1999: 222-25. Western Australia (1996) 186 CLR 140. notably the extension of the Com­ monwealth franchise to all Aborigines in 1962 and the constitutional amend­ ment of 1967. 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]). especially given the apparent acceptability yet potential variation of effective representation under the cur­ rent Australian single transferable ballot system. o n e value'). This suggests the possibility of a 'framing norm' applying at a broad level of generality. in Webber 1995a: 18-20. and that extreme imbalance may not be permissible. Gal­ ligan 1987: 3 0 . it is simplistic to paint the divide solely in indigenous/non-indige­ nous terms. 'one vote. 263-75. Overview 1997: 9 . I give several examples of the distinctive framing of the issues.N O T E S (PAGES 7 7 . Myers 1986: 125-26. 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. See. for example. as against the Canadian authorities. T h e phrase is that of Sir Owen Dixon. See Parliamentary Debates 1996: 5975 (29 October) and Parliamentary Debates 1996: 6155 (30 October. for example. on the Prime Minister's motion. for example. The latter arti­ cle specifically addresses issues posed by immigration. although the general point with respect to recognition remains the same. See. although there is a real question whether Dixon CJ himself had such a constrained conception of the judicial role (see Gummow 1999: 7 3 . See Chesterman and Galligan 1998. I explore justifications for such autonomy in Webber 1994: 219-22.1 1 . the Commonwealth House of Rep­ resentatives passed. See Bringing Them Home 1997.

attempt to formulate and refine those principles. Moreover. except in a weak sense. For a valuable discussion of these institutional dimensions. See. 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. sections 11 and 23. See Webber 1995a. While there. See. Brennan 1995: 197-200.3 5 (where the possibility of adoption is expressly contemplated). see Coombs 1994: 133ff. See. Even when we consciously follow past ways .270 N O T E S (PAGES 8 1 . and to define our own positions in relation to it. see Simon v.8 and 48. there are times when our reflection leads to regret. Political Theory and the Reshaping of Institutions' con­ ference in 1997. 175. 422ff. for example. Note that an attention to tradition need not be conservative. See also the report commissioned by the Commonwealth government (Reeves 1998). the work profited from the suggestions and .1 1 3 ) point . Patton (1995a. in a positive fash­ ion.about the tension between the traditionalist and voluntarist modes of justification . See also Sullivan 1997. But that engagement is by n o means uncritical. and our current normative commitments. It is noteworthy that the Pitjantjatjara successfully pressed for a land rights regime that did not involve proof of individual interests. It does recognise that we define ourselves. [the solution to i n d i g e n o u s / n o n .when we draw. 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. upon the p a s t . but rather placed the land under Pitjantjatjara control generally. (Attwood 1996b: 116) 52 53 54 55 56 57 58 59 T h e aspiration is stirring. to understand it. in what is otherwise a very fine article.w e reflect upon the principles inherent in it. for example.i n d i g e n o u s relations] might reside in a new beginning for Australia. See. The Queen (1985) 24 DLR (4th) 390 (SCC) at 406-7. In the Canadian context. Rowley 1970: 423. 51 Thus. but the republican language seems to me to be ill-chosen. 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. in relation to the past. the need for a new approach important. 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.remains. Sutton 1995b: 48. Furthermore. 1994: 137-38. 1995b) has argued from different philosophical foundations for a similar resistance to definitive conclusions. Bain Attwood's concluding sen­ tence is jarring: In political terms. for example. for example. H e also discusses the emergence of hybrid forms of administration at 2 7 . Suchet 1996. Aboriginal Land Rights (Northern Territory) Act 1976 (Cth). and we define our present commitments in contradistinction to what went before. See Sturmer 1982: 69. the comments of Pat Dodson reported in Sullivan 1995: 99. See also Coombs 1982: 227. such that we might all be at h o m e in this place. Ward 1998: 503 and 532ff. affirmed in Ward 2000 at paras 2 2 9 . and inquire into their relationship to today. Levitus 1991.

4 Of the 'colonial ironies' that c o m e to mind. for culture and authenticity upon indigenous peoples. one is the use of the Indian Act by contemporary elected councils to even determine membership within their communities at all. 'Iroquois au present du passe' (vol. It is nonetheless a somewhat useful concept and argument for linking 'rights' to temporality within the arena of political praxis. Assigning value and intentionality to these practices (or the rhetorics of tradition) is a deeply vexing practice for many. This is not to say that the Indian Act is not recog­ nised (and reviled) by some as an instrument of colonial governance. 29. For an excellent summary of the invention debate and attendant textual issues please see Briggs 1996. I will shortly argue that 'nationhood' is the more appropriate analytical framework for comprehending one native community within the context of Canada. indigenous 'nationhood'. an external reviewer for CUP and others who engaged in substantial ways with the paper. Stokes 1997 and Tonkinson 1990. Authenticity then adds a certain value to this cultural moment. 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. which harnesses the past to the present through consciousness and discursive prac­ tice. devoted entirely to the history of the Iroquois. see Levin 1993. The Indian Act is a legislative instrument of colonial government that is rooted in Victorian notions of gender and civility. In the context of Kahnawake it is the marriage of consciousness and being. Povinelli 1999 argues that these prac­ tices set up a certain failure for indigenous claimants with the frame of juridi­ cal practice in Australia. no. 'Nationhood' may appear to be less strategic politically. Jean-Guy Goulet. 2. Suffice it to say that the underlying variable of authenticity creates this affection for and sets up the logic for 'invention' within analysis. Nonetheless. tradition) frames culture in a fixed and an unmoving space in time.1 1 8 ) 271 queries of many. should not be considered to be an invention in either its most oppor­ tunistic and non-constructionist sense. and the claims that it commands in the contemporary. as found in Smith 1991. For further work on abo­ riginality in the context of Canada. For further . These alternatives offer 'tradi­ tion' as an alternative authority and institution for governance. Fenton 1998 and the special volume of Recherches amerindiennes au quebec. I am especially grateful to Duncan Ivison. nor in its most nuanced sense. that sets such a premium on particular moments since past. There are within Kahnawake institutional alternatives and counter-discourses to that of the elected council and the Indian Act. 3 For a thorough discussion of the dynamics of the Confederacy see Richter 1992. This notion of authenticity (and its handmaid. 1999). It is colonial­ ism. as is found in Keesing 1989. but it reflects most accurately the historical experi­ ence and the politics of the Mohawks of Kahnawake. and in the context of Australia. Responsibility for the arguments and content therein resides with me. see Beckett 1988. Klaus N e u m a n n .N O T E S (PAGES 1 1 3 . 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. 1 'Aboriginality' enjoys more currency within anthropological literature than it does on the ground of day-to-day native political practice. 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. Julie Cruikshank. And it is colonialism and its apparatii that place the 'burden of p r o o f for tradition.

Dickson-Gilmore 1999b and Reid 1999. Once fired. the Kahnawake Peacekeepers. These claims — for land. This grant is known as the 'Seigniory de Sault St Louis'. of a static and deeply essentialist notion of identity and tradition. or Mohawk Council of Kahnawake (MCK). see Alfred 1999a. Later that year. 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. the Kahnawake Police. See McMaster and Martin 1992 and Kasprycki el al. please see Blanchard 1982. This difference is premised more often than not upon a baseline of cultural wholeness. another local police force. the racist hues to the Cross shooting strengthened the resolve of the Kahnawakero'. As part of this agreement. In order to give them the authority that is required to issue fines and tickets with the backing of Quebec law. Povinelli 1999). The issues that energised the protest in 1995 trace back to the late 1970s. For a book-length argu­ ment in favour of returning to tradition from a perspective rooted in Kah­ nawake's history. Paine 1996. 5 O n e need not look far for examples within contemporary expressive culture of native peoples in Canada. These claims. 8 'Band' is the terminology used in the Indian Act and is interchangeable with 'reserve'. In 1979 the MCK fired their local police force. Whittaker 1994. 6 T h e representational tensions of text have 'real-life' equivalents in the living issues of native-State relations. the MCK negotiated a tripartite policing agreement. land. However. 1998. Dominy 1995. T h e Kahnawake Police refused to close the quarries for want of an outside court injunction. outside J . administered by the band council. 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. and the role that anthro­ pologists occupy in their articulation and execution. 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). In this context 'band list' should be understood as the communitycontrolled list of members. meaning and nationhood to native artists rep­ resenting nations in Canada and the US. 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. 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 1990.1 2 7 ) historical and ethnographic work in this area. was formed in its place. Campisi 1991. tensions that are readable in the form of claims that are made upon the state. Coupled with the issues that surrounded the firing of the police force and the quarries.272 N O T E S (PAGES 1 1 8 . Mills 1994. two catalogues of curated exhibitions that dealt with the themes of contemporary culture. 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'. for failing to enforce their resolution to close two government-leased quar­ ries on reserve. Jocks 1994.non to have the Kahnawake Peacekeepers enforce the laws of the community and not outside governments. since 1979 the authority of the Peacekeepers was limited by their refusal to swear an oath of allegiance to the province of Quebec. continuity and authenticity. 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.

All names have been changed to protect the identity and privacy o f the speakers. I am grateful to Peter Thomas Sr for explaining the chronology of events in 1979. The two days of protest that fol­ lowed the signing of the agreement involved young men defacing personal property of elected chiefs and councillors. found this an affront to Mohawk sovereignty. 13 Or Kaswentha. Kahnawake has refused to grant automatic re-admittance to any­ o n e o n the federal registry of Indians to the band list. 10 These narratives cover the period of 1993 to 1996. post-secondary education.N O T E S (PAGES 1 2 9 . 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). especially youth associated with the '207 Longhouse'. T h e other is the Gawi'io. This is one basis for a traditional mode of gover­ nance for Iroquois people. For a thor­ ough discussion of the Indian Act and Bill C-31 from a political science per­ spective see Cassidy and Bish 1989.1 3 2 ) 273 police were given limited jurisdiction in the community. T h e purple represents the sea of life that each row shares. Aimed at redressing the patrilineal bias of the Indian Act. With the exception of those women who are widowed or divorced. At the same time as the federal govern­ ment was enlarging the number of Indians on the federal registry. voting or the individual sale of status for alcohol. Between the vessels are chains that connect them to each other. or 'Good Message of Handsome Lake'. There are rows of white wampum parallel to each other. In the case of Kahnawake. Bill C-31 granted status to all those who had lost it due to out­ marriage and previous enfranchisement to the Canadian state. 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. 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. They are direct reprints of notes taken at meetings or are textual reconstructions of certain moments that had passed without note-taking. 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. 12 'The Great Law of Peace'. this was viewed as a concession to Quebec. a 1613 treaty between the Dutch and the Iroquois represented by a belt of purple and white wampum shells. Considering the dif­ ficult history just detailed. 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. Bill C-31 expanded the power of band council governments to determine their own membership requirements for their communities. 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. Although they share the same sea and sail alongside each other. with d e e p purple wampum between and around them. understood by some anthropologists as the 'con­ stitution' of the Iroquois. The Two Row Wampum has also been incorporated into the Final Report of the Royal Commission on Aboriginal Peoples as a possible model . One row represents the Iroquois vessel and the other the European vessel. Some community members. Before 1951 Indians lost their status because of enfranchisement: this may have occurred because of service in the military. These are occasionally shined and maintained by o n e or the other vessel.

Older dictionaries define rangatiratanga as evidence of breeding and great­ ness. 1995b) has drawn attention to the operation of a similar dynamic in the Australian context. Stokes 1997).) 6 Paul Patton (1995a. 7 (De)Constructing the Politics of Indigeneity 1 The question of indigenous identity. society and justice in Australia.as the Roman or Eapita cultures and societies no longer exist . 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. The word should be interpreted in this sense throughout the remainder of the chapter. 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. without distortion or residue' (Appadurai 1988: 37). Rangatira is often defined in older dictionaries as a chief or a person of noble breeding. 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. is a modifier that acts to intensify the meaning of the word following. while newer dictionaries translate it as sovereignty. T h e Brazilian government. Yet. has tried to reinterpret Indian land rights so that they only apply to 'real Indians' (Ramos 1994). For just as the shift­ ing and fluid nature of groups is not to deny their reality. 4 However. (The word tino. often found conjoined with the word in the phrase tino rangatiratanga.1 4 1 ) for government relations between Aboriginal people as self-governing nations and the Canadian state. 5 Rangatiratanga is derived from the root noun rangatira. Thus while the term does not directly translate as 'indigenous rights'. lend itself to the inclusion of this sense of the word. The latter meaning is more in accord with modern parlance of the word. or undermine claims of rights based upon those identities. More modern dictionaries similarly define rangatira us meaning a chief or a noble. 7 The Runanga Iwi Act (1990) was adopted to facilitate the devolution process through the establishment of iwi authorities capable of administering the . sadly reminiscent of the hierarchies of domination characteristic of earlier periods of imperialism. 2 A process through which indigenous peoples of the world are re-interpolated within a new spatio-temporal hierarchy of authenticity and legitimacy. 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.this should not deny the reality that their modern-day descen­ dants should in no way be considered any less authentic. however. just as there may o n e day no longer exist a Maori or Kwakiutl cul­ ture and society as such . see the chapters by Simpson and Dodds and Bern in this volume. its modern usage as the basis for Maori rights does. While the Mabo decision represented a rupture in previous ways of thinking about the place of notions such as dif­ ference. for example. so too neither should the contingent nature of identities act to deny their moral worth. For further work on the importance of indigenous identity to questions of indigenous rights. 'proper natives are somehow assumed to represent their selves and their his­ tory.274 N O T E S (PAGES 1 3 2 . 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.

were the institutional bodies recognised by the Treaty of Waitangi. regardless of the dwin­ dling political significance of these institutions. If. 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. and not iwi. a space of becoming that allows for the non-self identical character of individual and collective agents' (1995a: 162). including cities. 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 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. these monies should go to any institutional body that these individual descendants choose. iwi are entitled to these rights as hapu are merely sub-sections of iwi. T h e Census allowed for n o rea­ son to be given for this lack of iwi identification. 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. This scattering of the serviceman prevented the regrowth of tribal senti­ ment gaining any political advantage. the argument can be made that since hapu were in turn made up of whanau and individuals. In this rural environment. 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. It is in support of ideas such as this. In 1936 81 per cent of the Maori population lived in tribal areas. so no differentiation can be made between individuals who were unable to identify with an iwi. in consider­ ation of the implementation of indigenous rights in Australia. 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). . were rural. Paul Patton has. which. as some have argued. This view can be challenged on the grounds that hapu. in order to find work in the post-World War II era. Iwi experienced a short-lived resurgence in power with the recruitment of Maori soldiers for World War II along tribal lines. however. 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. From 1939 to 1989 the rural-urban ratio of Maori switched from approxi­ mately 80:20 to approximately 20:80.N O T E S (PAGES 1 4 1 . T h e findings of the Tribunal. This resurgence was short­ lived. argued that philosophies of poststructuralism contain within them the possibility for a 'politically open-ended space of possibilities of action.1 4 7 ) 275 8 9 10 11 12 13 14 15 16 programs previously run by government departments. more often than not. they still relied heavily on these traditional forms of social institution to provide meaning and structure to their day-to-day social interaction. as the returning soldiers settled at a variety of different locales around the country. are only recommenda­ tions and have n o binding force in law. or those who were unwilling to identify with an iwi.

as long as the relation is sometimes understood to go the other way as well. for example. not a labor of love. he appears to accept a view of the interests within either group as h o m o g e n e o u s . 4 Although Tully 1997 acknowledges the overlapping interests between First Nations and non-Aboriginal Canadians. 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. See. to use a fairly broad understanding of these ideas. . see Bern and Larbalestier 1985.1 8 7 ) 17 Wherein rangatiratanga exists between a Maori community and its leadership it includes a set of reciprocal duties and responsibilities. neither the thing done nor the process of doing it introduces the mind to thoughts or feelings extending beyond individuals. or at least equally open to articulation from within. sacred and secret knowledge or activities that per­ tain to specific sites or landmarks. . 2 The land councils and native title tribunals may tend. and in most cases the individual lacks access to any person of cultivation.276 N O T E S (PAGES 1 5 0 . Martin and Finlayson 1996. in combination with reforms in education and the distrib­ ution of income. Their work is a rou­ tine. but of self interest . I even agree that cul­ tural elites can teach regular guys a thing or two on occasion. See also Tully 1995: 176. 3 See. so effectively 'women's business' excludes participation by men in the same way that 'men's business' excludes the participation of women. Sanders 1995. (Mill 1958: 53) Mill. for example. if instructive books are within their reach. 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. 6 This is discussed in some detail in Bern and Layton 1984. He thought that participation in governance was o n e way to do so. and through increases in the numbers of people identifying as Aboriginal. I am with Mill on these last two points. 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. I also suspect that the routines of Mill's life stopped him from thinking more creatively . 7 On the specific issue ofjunggayi. 'Business' can also be associated in strict gender terms. but there is plenty of room for legalistic definitional debate. 9 On the Plurality of Interests: Aboriginal Self-government and Land Rights 1 In total. 5 However. The proportion is increasing through higher net birth rate than the general population. and the intercultural interests of the Metis. fewer than 2 per cent of the Australian population. certainly. in practice. wanted to lift ordinary people out of the ruts and harsh routines of ordinary life. there is no stimulus to read them.

since many stateless nations have exercised historical sovereignty. 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. such as (a) that indigenous peoples exercised historical sovereignty whereas stateless nations did not. The third is more helpful. 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. they tended to converge on certain cultural self-concep­ tions. 2 This theme is developed more extensively in Connolly 1999. and many lack a kin state (for example. 4 This is a generalisation. since this has the potential for essentialising and freezing indigenous cultures. For more o n this. However. For example. Ross Poole argues that the idea of territorial autonomy is more relevant for indigenous peoples in North America than in Australia. whereas stateless nations have kin states. dispossessed. and to share certain economic and social needs and influences. I think. see Kymlicka 1999a. (b) that indigenous peoples lack a kin state.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. and hence are much closer to a stateless nation on my criterion. Crimea might have been. not an iron rule. dispersed or intermingled with settlers from other cultures for territorial autonomy to be a meaningful option. 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. chapter 1.) Partly in order to cover such cases. although he acknowledges this remains a source of ongoing controversy within the . Indige­ nous peoples were not influenced in the same way by the pursuit of state formation. Catalans. particularly in chapter 6. 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. although they were real contenders for state-formation. pre­ cluding them from adapting whatever they find most interesting or desirable in modern societies. rather than a province of the Russian empire. it would be a mistake. (Had the balance of power been a little different. a Tatar state. (c) that indigenous peoples have a radical cultural or civilisational difference from the majority nation.N O T E S (PAGES 1 8 7 . 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). 2 For the evidence. to make radical civilisa­ tional difference a defining characteristic of indigenous peoples. Some national minorities have b e c o m e too decimated. may perpetuate the problem by entrenching an ascriptive and stigmatising conception of Black identity. other criteria have sometimes been proposed to distinguish the two cate­ gories of national minorities. or remained. I think. simply inaccurate. T h e first two of these proposed criteria are. the Crimean Tatars have recently asserted they are an indigenous people. see Kymlicka 1998a. Scots). which are aimed at tackling the special bur­ dens facing African-Americans. whereas stateless nations typically are closer in culture.

3 . states and nations. and that the territorial model is applicable to the Torres Strait Islanders (Poole 1998). it is now virtually inconceivable. It began in 1948.to be a m e m b e r of the French nationality. 9 For a concise overview. which focuses on issues of immigrant ethnicity. Similarly. 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. 7 T h e Third World War has already begun. Nobody can suppose that it is not more beneficial to a Breton. . Each year it involves new areas. T h e Third World War is now being fought on every continent except Antarctica. The one . See Parekh 1994. . Mill also opposed the attempts of the Quebecois to maintain a distinct francophone society in Canada. 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. 6 See James Tully in this volume pp. and encouraged their assimilation into the more 'civilised' English culture. 5 2 . the half-savage relic of past times. 5 This is evident in the way both Aboriginals and Quebecois reject the idea that their claims are covered by Canada's 'multiculturalism' policy.278 N O T E S (PAGES 2 2 2 . Whatever the merits of their theories for issues of cultural. It has produced mil­ lions of casualties and massive forced dislocations of nation peoples who make up the majority of the world's refugees. . I do not think that they can accommodate the specific needs and desires of 'nations within'. As Borrows puts it in the Canadian context. religious and sexual diversity in general. (Mill 1972: 395). see Minority Rights Group 1991. It began when new states tried to take over old nations . or a Basque of French Navarre. T h e same remark applies to the Welsh­ man or the Scottish Highlander as members of the British nation. without participation or inter­ est in the general movement of the world. (Nietschmann 1987: 1) 8 We are familiar with this sort of ethnocentric prejudice towards indigenous peoples. to be brought into the current of the ideas and feelings of a highly civilised and cultivated people . this will still involve substantial degrees of interdependence with the larger society. than to sulk o n his own rocks. but given the massive influx of settlers since then. Indeed. revolving in his own little mental orbit. . It encompasses most of the peoples and groups who are accused of being terrorists. 10 In many countries it would have been possible to create a state or province dominated by an indigenous people in the nineteenth century. Burma moved its army into the Karen and Shan nations and India started its military invasion of the Naga nation. Parenthetically. the Maori in New Zealand deny that their claims are covered by New Zealand's immigrant multiculturalism policy. 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). but it is important to remember that it has also been invoked against stateless nations. most nineteenth-century liberals and Marxists adopted the same denigrating attitude toward stateless nations as they did towards indigenous peoples. admitted o n equal terms to all the priv­ ileges of French citizenship . It's also important to emphasise that even where indigenous peoples seek territorial autonomy.2 2 5 ) Australian Aboriginal community itself.

see O'Brien 1989. if Hispanics or Blacks were to define themselves as self-governing nations within the US. and moreover was counter-produc­ tive to ensuring cultural survival. put definite strains o n democracy. For a more general survey. In fact. and approved by the U N Subcommission on the Protection of Minorities in 1994 (an independent body of experts). 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. For a comprehensive overview of these developments in international law. For recent overviews of the rights and status of national minorities in the US. Britain and Spain have passed laws restricting some civil rights. Rubinstein 1993. For the relation of Indian self-government to federalism in Canada. Cassidy and Bish 1989. Martinez 1997. On American Indians. see (on Puerto Rico): Aleinikoff 1994. It was drafted by a UN Working Group on Indigenous Populations between 1985 and 1993. Blacks. with high rates of inter-marriage. Had Spain or Britain persisted in trying to crush the minority's sense of nationhood. It is often used to refer to the idea that membership in a liberal nation should be based solely on . Glazer 1997.2 3 0 ) 279 11 12 13 14 15 16 17 18 19 20 21 important exception concerns the Inuit in the Canadian North. I expect that even this bastion of Jacobin unitary statehood will eventually join the com­ munity of explicitly multi-nation democracies. T h e continuing use of blood quantum rules was soundly criticised by the Canadian Royal Commission on Aboriginal Peoples. For a more detailed description of the theory and practice of multinational federalism.N O T E S (PAGES 2 2 5 . France is perhaps the o n e major exception to this rule. but still has several barriers to overcome before ratification by the U N General Assembly. After all. And the same is true of Blacks. Royal Commission on Aborigi­ nal Peoples 1996b: 239. In this sense. which argued that it was not only a violation of human rights. the blood quantum rules were first introduced by the Federal govern­ ments in Canada and the US. like we see in Turkey as a result of its efforts to crush the Kurdish desire for national recognition. For an overview of the debate. see Dickson-Gilmore 1999a. see Hen­ derson 1994. Barreto 1998. most notably the violence in Northern Ireland and the Basque country. and the illiberal laws even more restrictive and long-stand­ ing. Hispanics are a complex amalgam of Europeans. but also a violation of traditional Indian practices. had the governments not moved toward greater accommodation of the nationalist sentiment. See Canada. Schlesinger 1992. In response to the violence. Portillo 1997. Elkins 1992. see Statham 1998. the result would be an almost permanent state of authoritarianism. Lind 1995. see Kymlicka 1998a: chapter 10. against the wishes of the indigenous peoples themselves. then they too almost cer­ tainly would have to adopt a postethnic conception of national membership. For example. known as 'Nunavut'. There are important exceptions to this rule. which still refuses on principle to acknowledge the Corsicans as a national minority. see O'Brien 1987. Gitlin 1995. But it is obvious that the violence would have been worse. The term 'civic nationalism' is potentially confusing. Prucha 1994. Long 1991. See Shafir 1995. as a way of limiting the amount of money federal governments would have to pay to the community. For a partial defence of the practice of blood-quantum rules. Kymlicka and Raviot 1997. Indians/mestizos. see Alfred 1995: 163-75. the accommodation of minority nationalism has. On Guam. in certain times and places. see Anaya 1996. For what it's worth.

where membership is open to all regardless of race. 279. simply as a synonym for 'postethnic' in Hollinger's sense. For example. the Russians did not take this advice. which would give national recognition to the ethnic republics. have a cultural and linguistic component. civic conflicts or ethnic v. but for a more detailed explanation of why deci­ sions about the division of powers can lead to injustice. both sides to the conflict are forms of ethnic nationalism: state nationalism and minority nationalism are both defined in terms of ethnic descent. it gets the wrong answer. Fortunately. 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. that is. and has no real-world referent. even in the most liberal of states. All nationalisms. see Kymlicka 1996. by contrast. should not be confined . From a liberal point of view. At worst. see Hughes 1999: 3. the Canadian Royal Commission on Aboriginal Peoples studied extensively the policing and judicial system run by the Navajo nation in the American southwest. Hughes notes that American advisers in Russia discouraged the adoption of a multinational conception of feder­ alism. 13 Hybrid Democracy: Iroquois Federalism and the Postcolonial Project 1 This strategy of reading modern world history as hybrid. therefore. It should be clear why this is not a just solution to the issue. I think this is a misunderstanding.1 . For an example. It is relatively rare to find a civic nationalism opposed to an ethnic nationalism: what we find are either civic v. blood quantum rules are unfair. At best. in favour of a uni-national conception of federalism which denied any link between federalism and rights of self-government for national minorities. For a more detailed dis­ cussion of the 'ethnic/civic' distinction. In a recent article. the idea of 'civic nationalism' is incoherent. McKean 1983: 7 0 . 142-43. In this essay. Taylor's lecture is better understood as a sermon to (Americanised) English-Canadi­ ans. In many countries of Eastern Europe. many liberal commentators have assumed that the latter forms a kind of 'group right'. it tells us nothing. For examples of US opposition to minority rights protection. where the colonised subjects act upon the colonisers as well as the reverse. see Kymlicka 1998c. Sohn 1981: 272. See Kymlicka forthcoming.280 N O T E S (PAGES 2 3 0 . For more on this. 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). O'Brien 1987: 276-80. I am using 'civic' in a more restricted sense. where minority nationalism is peripheral. and not in terms of participation in a particular national culture and language. ethnicity or religion. ethnic conflicts. but rather that it is wrong for countries like Canada where minority nationalism is central to political life. and that liberals should therefore support the majoritarian nationalists who seek to centralise all power at a level where they dominate.2 3 9 ) 22 23 24 25 26 27 28 adherence to political principles. 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. 6. but the federal government may not have the legitimate jurisdiction to interfere with the decisions of self-governing indigenous communities on such issues. and his argument is not that American-style liberalism is wrong for Amer­ ican society. Put this way. see Kymlicka 1999b: 131-40. see Van Dyke 1985: 194.

final. Edward Said reads classic European texts as hybrid. as intergovernmental relationships held together only by treaties. Assum­ ing this distinction the Iroquois were more of a confederacy than a federa­ tion. I am concerned with absolute sovereignty. T h e condition should rather be put that a sovereign's decisions cannot be revoked or overridden by another authority. though the Great Law of Peace could be interpreted as a general set of procedures. since in practice many states revoke or revise decisions previously made and n o o n e considers this a challenge to their sovereignty. he suggests. 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). between confederacy. Whereas the interactional approach focuses only o n the actions of particular individuals as they affect identifiable persons. and to make the relations between peoples within a given. In any case. An institutional approach as distinct from an interactional approach. perhaps. but they vary only subtly. I derive this model from the way many indigenous movements talk about their aspira­ tions. 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. 6 J o h n Pocock is n o doubt correct to distinguish. . as Pocock points out. See Young 1999. For him.N O T E S (PAGES 2 3 9 . makes a connected international society more visible and the relations of moral responsibilities of distant peoples within it.2 5 3 ) 281 to histories of the colonised places. 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. a relationship of self-governing entities with a more enduring and general set of procedures guiding their relations. 2 See also Countryman 1996: 'If we accept that both slaves and Indians were important components of the colonial formation. This seems quite unreasonable. Given this distinction. in his essay in this volume. 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. 4 Pogge 1992. 5 In another paper I develop a model of relational self-determination inter­ preted as non-domination as distinct from non-interference. and federation. Pogge distinguishes two approaches to social justice: an institu­ tional and an interactional approach. o n e of the points of the postcolonial project is to blur the distinction between these. 3 Definitions of sovereignty abound. 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). 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. existing state more like relations between treaty partners. makes issues of international justice and moral responsibility with respect to distant strangers more visible. I suggest. sovereignty is when an agent has unsupervised and irrevo­ cable authority over another. internally related to the imperalised Others even as they celebrate European nationalisms (Said 1994). Focusing o n how structures and institutional relations produce distributive patterns. I find it a bit puzzling that Pogge includes the condition that the decisions and laws of a sovereign power are irrevocable. Morris defines it as: 'Sovereignty is the highest.

(1999b) 'Tewehid. Canberra: AGPS. 1: 36-49. A. Anaya. Righteousness: An Indigenous Manifesto. (1994) 'Puerto Rico and the Constitution: conundrums and prospects'. Constitutional Commentary. Arena. (1988) Mataranka Land Claim. (1993) 'Black suffering. Fox (ed.J. B. (1998) Native Title Report. 3. June-July: 8. 1): Foundations. Alfred. and Polynesia. 83 (September): 22. Toronto. Ackerman. (1988) 'Putting hierarchy in its place'. Santa Fe: School of American Studies Research Press. Abu-Lughod. New York: Oxford University Press. 17th session. Agenda Item 5. (1982) Yutpundji-Djindiwirritj (Roper Bar) Land Claim. (1991) We the People (vol. Oxford: Oxford University Press. Aleinikoff. (1996) Indigenous Peoples in International Law. A. Appadurai. 3. 282 . New Zealand. Antonios. London: Verso. Anderson. Oxford: Oxford Uni­ versity Press. Sydney: Human Rights and Equal Oppor­ tunity Commission. (Taiaiake) (1995) Heeding the Voices of our Ancestors: Kahnawake Mohawk Politics and the Rise of Native Nationalism. B. Cambridge. Aboriginal Law Bulletin (1996) 'Chronology of the Kumarangk/Hindmarsh Island affair'. G. Power. G. Commission on Human Rights. (1991) 'Writing against culture' in R.Bibliography Aboriginal Land Commissioner (1981) Limmen Bight Land Claim. 11: 15-43. Anglican Church (1990) Constitution of the Anglican Church in Aotearoa. Sub-Commission on Prevention of Discrimination and Protection of Minorities. Canberra: AGPS. Z. I. Recapturing Anthropology: Working in the Present. white trash'. L. S. Working Group on Indigenous Populations. Canberra: AGPS. Anderson. (1999a) Peace.: Harvard University Press. (1985) Cox River (Alawa-Ngandji) Land Claim. (1991) Imagined Communities: Reflections on the Origin and Spread of Nationalism. Canberra: AGPS. Cultural Anthropology.). R. Mass. 28 July.rak (We should remember)'.

T. and Blundell. (1995) Maori Sovereignty: Pakeha Perspectives. B.) (1988) Indian Roots of American Democracy. (1995) 'Introduction: First peoples'.) (1988) Past and Present: The Construction of Aboriginality. A. V. New York: Ithaca Press and Humanities Press. Bennett. vii-xxxviii and 100-16. Awatere. Australia and the (dis)course of History' and 'Mabo. Indigenous Peoples'Rights in Australia. and New Zealand. Vancouver: Univer­ sity of British Columbia Press. New Zealand 1868-69. Australia and the End of History' in B. (1981) For a Critique of the Political Economy of the Sign. Honolulu: University of Hawai'i Press. (1985) Kahnawake: A Mohawk Look at Canada and Adventures of Big fohn Canadian. Can­ berra: Aboriginal Studies Press. pp. (ed. (1979) Political Theory and International Relations. 9. (1979) 'Anthropology and the Analysis of Ideology'. (ed. Man. Havemann (ed. M. Auckland: Allen Lane.) (1973) Anthropology and the Colonial Encounter. (1996) Making Peoples: A History of the New Zealanders from Polynesian Settlement to the End of the Nineteenth Century. D.1945. (1996b) 'Making History.1 1 6 . St Louis: Telos Press. Barlow. Asia Pacific Viewpoint. Aborigines and Australia. B. Vancouver: University of British Columbia Press. Canada and New Zealand. (1998) Language. New York: Semiotext(e). 1: 1-10. . Ithaca: Akewkon/ Cornell University Press. Belich. In the Age of Mabo: History. C. Kahnawake: Khanata Industries. A. Oxford: Oxford University Press: pp.J. J.) (1997) Aboriginal and Treaty Rights in Canada. Canada. (1995) Comparing the Policy of Aboriginal Assimilation in Australia. Carlton South: Melbourne University Press. A. Beckett. Ballara. Princeton: Princeton University Press. (1984) Maori Sovereignty.J. J. Elites and the State: Nationalism in Puerto Rico and Quebec. Bonyhady and T. 39. Wellington: Allen & Unwin. Griffiths (eds). Oxford: Oxford University Press. Attwood. the Penguin Press. Prehistory to Politics: fohn Mulvaney. T. Asch. (1996) fohn Locke and America: The Defence ofEnglish Colonialism. Wellington: Victoria University Press. Armitage. (1983) Simulations. C. (1999) 'From "Calder" to "Van der Peet": Aboriginal Rights and Canadian Law. 14: 607-27. pp. M. (ed. (1996) Tikanga Whakaaro: Key Concepts in Maori Culture. (1998) 'The Challenge of Urban Maori: Reconciling Conceptions of Indigeneity and Social Change'. Auckland: Oxford University Press. (1989) 'I Shall Not Die': Titokowaru's War. 1973-1996' in P. Barreto. Beitz. Auckland: Oxford University Press. (1986) The New Zealand Wars and the Victorian Interpretation of Racial Con­ flict. St Leonards: Allen & Unwin. (ed. Baudrillard. 3: 303-14. Arneil. Attwood (ed. Barriero.BIBLIOGRAPHY 283 Archie. (1996a) 'Introduction: The Past as Future: Aborigines. A. the Humani­ ties and the Public Intellectual. Barcham. J. Beauvais. 428-46. Cultural Studies. Imagining Aborigines and Australia' in T. Auckland: Broadsheets Publications. Auckland: Hodder Moa Beckett. 9 8 .). C.1769 to c.). (1998) Iwi: The Dynamics of Maori Tribal Organisation from c. Westport: Praeger. Asad.

Sydney. Asch (ed. Norman (eds). Perth: University of Western Australia Press. with Stanton. Canberra: AGPS. Bhabha (ed. C. Bhabha. (1994) 'DissemiNation: Time. 27. Constitu­ tional Forum. Pastoralists and Miners. A. (1993) 'Drawing U p a Balance Sheet of Our History'. Kymlicka and W. Oxford: Oxford University Press: pp. 333-46.). Blanchard. H. and Zimmerman. 37. Toronto: University of Toronto Press. Berndt. (1997) Indians and Anthropologists: Vine Deloria Jr. Small Towns in Northern Australia. Long (eds).284 BIBLIOGRAPHY Bern. J. R. Bin-Sallik. E.Towards 2001. R. Oceania. 'Signs Taken for Wonders: Questions of Ambivalence and Author­ ity under a Tree outside Delhi. Behrens and B. Vancouver: University of British Columbia Press. (1996) 'Black witch hunt: white silence!'. 8: 27. and Berndt. (1990) 'Introduction: Narrating the nation' in H. F. J. Canadian Legal History. D. London: Routledge. Metuchen. NJ: Scarecrow Press. and Self-government' in M. Nation and Narration. A. L. Hobart: University of Tasmania Law School. (1996) 'The Politics of Discursive Authority in Research on the "Invention of Tradition"'. Brennan.). (1997b) 'Wampum at Niagara: The Royal Proclamation. Briggs. (1994) Naming the Other: Images of the Maori in New Zealand Film and Tele­ vision. Loveday and A. May 1817' in The Location of Culture. M. K. Hiatt (ed. Rights and Resource Development. Blythe. 102-22. Aboriginal and Treaty Rights in Canada. J. K. M. Borrows. A World That Was: The Yaraldi of the Murray River and the Lakes. (1985) 'Tribal Traditions and European-Western Political Ideologies: T h e Dilemma of Canada's Native Indians' in M. J. 1: 56-76. Vancouver: UBC Press. Tucson: University of Arizona Press. Toronto: University of Toronto Press: pp. 7-8: 10-15. One Nation: Mabo . 56. Blainey. Oceania Monograph no. Citizenship in Diverse Societies. 139-70.). Webb (eds). Tsamenyi (eds). T. 326-42. Sydney: University of New South Wales Press. (2000) '"Landed" Citizenship: Narratives of Aboriginal Political Participa­ tion' in W. (1998) The Wik Debate: Its Impact on Aborigines. (1982) Patterns of Tradition and Change: The Re-creation of Iroquois Culture at Kahnawake. (ed. 4: 435-69. (1993). Boldt. . Lon­ don: Routledge: pp. 11. Narrative and the Margins of the Modern Nation'.H. PhD Dissertation: University of Chicago. R. (1984) 'The Local Descent Group and the Division of Labour in the Cox River Land Claim' in L. NARU. Environmental Law and Policy Workshop. (1991) 'Sustaining the heritage' in M. L.24: 2 0 1 . and the Critique of Anthropology. (1989) 'The Politics of a Small Northern Territory Town: A History of Managing Dependency' in P. Biolsi. (1993) Surviving as Indians: The Challenge of Self-government. B. J. M. C. Boer. Papers and Proceedings: Our Common Future. and Layton. St Lucia: Univer­ sity of Queensland Press. M. (1990) 'Community Management and Self-determination' in Report to the House of Representatives Standing Committee on Aboriginal Affairs. The Quest for Justice: Aboriginal Peoples and Aboriginal Rights.) (1982) Aboriginal Sites. Australian Feminist Stud­ ies. and Larbalestier. 11. (1995) One Land. South Australia. Quadrant. Darwin: ANU. (1985) 'Rival Constructions of Traditional Aboriginal Ownership in the Limmen Bight Land Claim'. Boldt and J. and Long.1 1 . (1997a) 'The Trickster: Integral to a Distinctive Culture'. Aboriginal Landowners. G. Cultural Anthropology.J.

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

C . Diversity and Pluralism. Mon­ treal: McGill-Queen's University Press. Minneapolis: University of Minnesota Press. (1996) Self-determination in International Perspective.). Coombs. Clifford and G. K. McHugh (eds). and Belgrave. (1980) 'History and Anthropology: The State of Play'. Berkeley: Uni­ versity of California Press. S. G. Berkeley. (1996) 'International Perspectives on the New Zealand Government's Relationship with the Maori'. Bas­ ingstoke: Macmillan Press. 227-32. The Later Foucault. 11 (winter): 19-40. Living Relationships. Coates and P. H. Wellington: Victoria University Press. M. B. Citizenship. Moss (ed. Aboriginal Sites. (1999) Why I Am Not a Secularist. Cass.: Harvard University Press. Melbourne: Cambridge University Press. Literature and Art. Hanks and D. in K. (eds) (1986) Writing Culture: The Politics and Poetics of Ethnography. Kingston: Council for Aboriginal Reconciliation. Auckland: Oxford University Press. London. C. A. (1997). Ethnic and Racial Studies. F. Clifford. (1998) 'Beyond Good and Evil: The Ethical Sensibility of Michel Foucault' in J. J. Cairns et al. and Williams. Canberra: Centre for Aboriginal Economic Policy Research. Connerton. . R. 1998: pp. E. Clarke. Berkeley: University of California Press. B. J. (1982) 'On the Question of Government' in R. P. (eds). London: Sage: pp. Minneapolis: University of Minnesota Press. L. (eds) (1998) Living Relationships. (eds) (1997) Tensions of Empire: Colonial Cultures in a Bourgeois World. and Marcus. (1989) How Societies Remember. pp. D. Territory and Violence'. 108-28. and McHugh. (1988) 'The Transformation of Tribe: Organisation and Self-concept in Native American Ethnicities'. (1997) Social Policy in Aolearoa/New Zealand. Kokiri Ngatahi: The Treaty of Waitangi in the New Millennium. (1994) Aboriginal Autonomy: Issues and Strategies. Ithaca: Cornell University Press. Cheyne. Mass. Comparative Stud­ ies in Society and History. Writing Culture: The Politics and Poetics of Ethnography. sixth edn. 22 (April): 198-221. Clark. 'The Native Title Amendment Bill 1997: A Different Order of Uncertainty?' Discussion Paper 144/97. (1747) The History of the Five Indian Nations of Canada. Perth: University of Western Australia Press. J. Australian Constitutional Law: Materials and Commentary. Marcus (eds). Theory Culture and Society. Colden. Kokiri Ngatahi: The Treaty of Waitangi in the New Millennium. Berndt (ed. P. Coates. Cambridge: Cambridge University Press. and Stoler. 18-65. Cambridge: Cambridge University Press. Council for Aboriginal Reconciliation (1997) Overview: Proceedings of the Aus­ tralian Reconciliation Convention: Book 1. Cornell. and Galligan. (1995) The Ethos ofPluralization. (1991) Identity/Difference: Democratic Negotiations of Political Para­ dox. Cambridge. Connolly. 1 : 27-47. C.). California: University of California Press. O'Brien. (1994) 'Tocqueville. Connor. M. Wellington: Victoria University Press. W. Cooper. M. Cohn.286 BIBLIOGRAPHY Chesterman. 1 1 . E. (forthcoming) 'National Self-determination and Tomorrow's Politi­ cal Map' in A. (1986) 'On Ethnographic Allegory' in J. (1988) The Predicament of Culture: Twentieth-century Ethnography. (1998) Citizens Without Rights: Aborigines and Aus­ tralian Citizenship. E. (1999)'"Indigenous" People and Constitutional Law' in P. Sydney: Butter worths: 50-112. Rights and Resource Development. W.

(1987) A Thousand Plateaus: Capitalism and Schizo­ phrenia. Edgeworth. D. and Guattari. (1996) 'Competing Knowledges? Indigenous Knowledge Systems and Western Scientific Discourses'. 2: 3 5 8 . James Cook University. C. J. (1999b) "This is my history. 23: 397-434. V. 53. 5 1 . Burnaby. Honolulu: Naa Kaane O Ka Malo Press. paper presented to Science and Other Knowl­ edge Traditions Conference. 1: 27-44. 23-7 August. (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. Dickson-Gilmore. (1998) TeMana. . (1996) 'The Right of Indigenous Peoples to "Self-determination" in the Contemporary World Order' in D. 2: 3 2 . Tomlinson and B. (1981) Positions. (1998) 'Is There a Multicultural Liberalism?' Inquiry. and Parnet. Berkeley: University of California Press: pp. Dodson. Australian Aboriginal Studies. (1994) 'Tenure.7 6 . Derrida. (1999a) 'lati-Onkwehonwe. Kioni and Agard. E. Selfdetermination: International Perspectives. Durie. Dudley. New York: MacMillan Co. Ethnohistory. (1995) 'White Settler Assertions of Native Status'. Membership and the Politics of Exclusion in Kahnawake'. M. Allodialism and Indigenous Rights at Common Law: English. trans. Crapanzano. I know who I am": History. Davis. (1987) Dialogues. M. Auck­ land: Oxford University Press. (ed. Clifford and G. and the Social Significance of the American Revolution'. Dominy.J. Factionalist Com­ petition.8 . American Eth­ nologist. Chicago: University of Chicago Press. Deleuze. Crete. E. Doppelt. K. B. M. Massumi. M. New York: Columbia University Press. 46. Edmunds.C. Paris: Presses Universitaires de France. I. and the Assumption of Imposition in the Kahnawake Mohawk Nation'. 1. the Colonial Order. 3. 26. He Pukenga Korero. Anglo-American Law Review. M. Te Kawanatanga: The Politics ojMaori Self-determination. B. A. E. United States and Australian Land Law Compared after Mabo\. (1994) 'The End in the Beginning: Re (de) fining Aboriginality' (the Wentworth Lecture). D. Dworkin. (1991) 'Une problematique floue: l'autorepresentation du citoyen au Quebec' in D. Citizenship Studies. E. J. Blood Quantum. (1995) Office of the Aboriginal and Torres Strait Islander Social fustice Commis­ sioner: Third Annual Report. (1978) Taking Rights Seriously. Colas et al (eds). Canberra: Australian Institute of Aboriginal and Torres Strait Islander Studies. William and Mary Quarterly. Sydney: Human Rights and Equal Opportunity Commission. (1986) 'Hermes Dilemma: The Masking of Subversion in Ethno­ graphic Description' in J. 1: 2-14. Citoyenneteet nationalite: perspectives en France et au Quebec. Williamson (eds). (1996) 'Indians. Daes. Writing Culture: The Politics and Poetics of Ethnography. Nationhood. New Zealand Journal of Psychology. 3: 429-50. Minneapolis: University of Minnesota Press. Basingstoke: Macmillan Press. H. (1998) The Pleasure of the Crown: Anthropology. and Zylberberg. (1995) 'Tino Rangatiratanga'. Queensland. trans.BIBLIOGRAPHY 287 Countryman. M.) (1998) Regional Agreements: Key Issues in Australia. vols 1 and 2. V. 41: 223-48. 22. G. Canberra: AGPS. F. (1997) 'Identity. B.1: 66-82. R. Cairns. 2: pp. Law and First Nations. Deloria. 342-62. Marcus (eds). H. London: Duckworth.: Talon Books. Culhane.J. and Implications for Practice in New Zealand'. Habberjam.7 4 . Kealoha (1993) A Call for Hawaiian Sovereignty. Clark and R. (1969) Custer Died for Your Sins. G.

120 (Winter): 11-37. B. Li (ed. Long and O. St Lucia: University of Queensland Press. (1999) Recalling Aotearoa: Ethnic Relations and Indigenous Pol­ itics in New Zealand. Visions of the Heart. DJ. the United States. OzSalzberger. . International Lessons'. (1992) The Nations Within: Aboriginal-State Relations in Canada. E. ed. (1999) City Making: Building Communities without Building Walls. W. B. and Jackson-Nakano.S. A.288 BIBLIOGRAPHY Elazar. Prince­ ton: Princeton University Press. and New Zealand. Postcolonial African Philosophy: A Critical Reader. University of Alberta. Wellington. and Aboriginal Dynamics in Canada. A. J. Auckland: Reed. A. Havemann (ed. Gardiner. 107-42. M.). (1992) 'Managing Aboriginality: Canadian Perspectives. (1996) 'The Politics of Jurisdiction' in D. and Spoonley. L. New York: New Press: pp. Tuscaloosa: University of Alabama Press. paper presented to the Australian and New Zealand Association for Canadian Studies. (1998) 'Rethinking Claims-making as Maori Affairs Policy'. Subjectivity and Truth. New York: Cambridge University Press. Auckland: Oxford University Press: pp. Ethnic. Alberta: Centre for Constitutional Studies. (1987) Exploring Federalism.5 1 . Cam­ bridge: Cambridge University Press: pp. (1995) An Essay on the History of Civil Society (1767). Chukwudi (1997) 'Democracy or Consensus? A Response to Wiredu' in E. Scarborough: Prentice-Hall. Oxford: Blackwell Publishers. Ferguson. Auckland: Oxford University Press. Indigenous Peoples' Rights in Australia. Oxford: Blackwell. Finlayson. Foundations of Social Choice Theory. (1999) 'Altered States: Federal Policy and Aboriginal Peoples' in P. Fanon. Fay. Eze. Elster. (1999) 'Politicising Indigeneity: Ethno-politics in White Settler Dominions' in P. J. Gellner. Rabinow (ed. British Columbian Studies. J. J. Frideres. W. F. 303-20. 3. New York: Grove Press. (1998) 'What is Enlightenment?' in P. 187-234. Race and Ethnic Relations in Canada. (1992) Where Should the Majority Rule? Reflections on Non-territorial Provinces and Other Constitutional Proposals. A. New York: Pantheon Books. 116-47. (1996) Return to Sender: What Really Happened at the Fiscal Envelope Hui. and Maaka. (1998-99) 'Honouring the Queen: A Legal and Historical Perspective o n the Nisga'a Treaty'. (1987) Politics of the High Court: A Study of the Judicial Branch of Gov­ ernment in Australia. Dickason (eds). Edmonton. P. Toronto: Oxford University Press. second edn. (1996) Unequal Relations: An Introduction to Race. Galligan. (1963) The Wretched of the Earth. second edn. Elkins. and Elliott. and New Zealand. 1: 3 5 .). Cambridge.). HePukenga Korero. and Elliott. Oxford: Blackwell. Toronto: Oxford University Press: pp. G. Norman: University of Oklahoma Press. Elser and A. Canada. (1980) Power/Knowledge: Selected Interviews and Other Writings 1972-1977. (1983) Nations and Nationalism. (1996) Contemporary Philosophy of Social Science. 6 December. Toronto: Harcourt Brace: pp. Foster. Frug. Victoria University. Ethics. NZ. R. 103-32. (1998) The Great Law and the Longhouse: A Political History of the Iro­ quois Confederacy. F. Foucault. Chukwudi Eze (ed. N. Hillard (eds). D. Fenton. Canberra: Australian Institute of Aboriginal and Torres Strait Islander Studies. E. Fleras. (eds) (1996) Heritage and Native Title: Anthropological and Legal Perspectives. J.). L. (1986) 'The Market and the Forum: Three Varieties of Political Theory' in J. H.

Auckland: Oxford University Press. Grattan. (1983) 'The Pseudo-politics of Interpretation' in W. Henare. Greenfield. New York: Metropolitan. S. . (1995) One for All: The Logic of Group Conflict. De-scribing Empire: Postcohnialism and Textuality.C. London: Sage: pp. R. C. Harris. and Federation. (1995) Democracy and the Global Order. Hardimon. (1993) Minorities at Risk: A Global View of Ethnopolitical Conflict. andNew Zealand. G. S. Equity. W. (1999) Changeand Continuity: Statute. Oxford. Culture and Policy. (1986) The Iroquois Strugglefor Survival: World War II to Red Power. (ed. B. Lawson (eds). Greaves. Stabinsky (eds). Washington DC: Island Press. Havemann. Oxford University Press. and McNamara. Mitchell (ed. Philadelphia: University of Pennsylvania Press. Syracuse: Syracuse University Press. M. Cambridge: Polity Press. Tiffin and A. (1989) The Return of Cultural Treasures. (1994) 'The Myth of Authenticity: Representation. Gummow. (1984. Held. 5: 11.). Vancouver: University of British Columbia Press. H a n n u m . Gray. London: Routledge: pp. 1989) A Theory of Communicative Action. Habermas. Los Angeles: UCLA American Indian Studies and UC Press. Dealing and Deconstruction: Aboriginal Art and Land Post-Mabo'. Philosophy and Public Affairs. (1993) 'Wheeling. Cambridge. M.) (1999) Indigenous Peoples'Rights in Australia. Deflem (ed. Cambridge: Cambridge Uni­ versity Press. T. H.BIBLIOGRAPHY 289 Gitlin. Wellington: Bridget Williams Books. Aboriginal Law Bulletin. Brush and D. Mass. Harris. Princeton: Princeton University Press. Sovereignty. and Johansen. P. Griffiths. Modernity and Law. Alternative Law Journal. N.6 1 . (1999) 'The C o m m o n Law Construct of Native Title: A "re-feudalisadon" of Australian land law'. Glazer. (1997) The Resettlement of British Columbia. J. L. Victoria. T. the Government of British Columbia and the Nisga'a Nation (1998) Nisga'a Final Agreement. and Self-determination: The Adjudication of Conflicting Rights. T. Government of Canada. (1996) 'Tribal rights' in S. 135-50. Wilson and A. 2 vols. Valuing Local Knowledge: Indigenous People and Intellectual Property Rights. (1996) 'Scientific and Cultural Vandalism'. Hauptman. (1991) Exemplar of Liberty: Native America and the Evolution of Democracy. A. D. B. Gurr.). Discourse and Social Practice' in C. L. M. G. E. Chicago: University of Chicago Press. D. (1997) We Are All Multiculturalists Now. (1995) The Twilight of Common Dreams. T. Graff. Canada. 70-85. (1990) Autonomy.: Harvard Uni­ versity Press.J. 4 4 . (1996) 'Postscript to Between Facts and Norms' in M. Denise (1995) 'The Ka Awatea Report: Reflections on its Process and Visions' in M. 1 (February): 21. 8: 50-85. Habermas. Cambridge: Polity Press.: Ministry of Aboriginal Affairs. The Politics of Interpretation. Grinde. Yeatman (eds). 21: 165-95. 21. 7. Washing­ ton: Institute of Peace Press. Justice and Identity: Antipodean Practices. (1996) 'Black Enough? Urban and Non-traditional Aboriginal Art and Pro­ posed Legislation Protection for Aboriginal Art'. (1992) 'The Project of Reconciliation: Hegel's Social Philosophy'. Hardin. Griffith Law Review. pp. 3: 25.J.

Politi­ cal Theory: Tradition and Diversity. (1999) 'Institutional Responses to Separatism: Federalism and Tran­ sition to Democracy in Russia'. Representations. June. (2000) 'Modus Vivendi Citizenship' in I. The Later Foucault. (1988) Paths Toward a Clearing: Radical Empiricism and Ethnographic Inquiry. R. pp.) (1995) Visions Aotearoa: Kaupapa New Zealand. M. New York. (1997) 'The Maori View of the Law'. (1996) 'Protecting Australian Indigenous Arts and Cultural Expression: A Matter of Legislative Reform or Cultural Policy?' Culture and Policy. Museum National. S. Things as They Are: New Directions in Phenomenological Anthropology. Hutton. Ivison. London: Continuum. 'Aborigines and Gold Mining in Central Australia' in J. Youngblood (1994) 'Empowering Treaty Federalism'. 58. Reviews in American History 26: 312-28. University of Saskatchewan Law Review. New York: Pantheon Books. Art Antiquity and Law. Law and the Reinscription of Rights' in J.). Mining and Indigenous Peoples in Australasia. Moss (ed. Hughes.3: 15. We are Here: Politics of Aboriginal Land Tenure. International Alliance of Indigenous-Tribal Peoples of the Tropical Forests and International Work Group for Indigenous Affairs (IWGlA) (1996) Indige­ nous Peoples. paper presented at Canterbury Uni­ versity. McLay (ed. Syd­ ney: Sydney University Press. (1991). pp. Bloomington: Indiana University Press: pp. Hampsher-Monk and C. London: Sage: pp. Ihimaera. Wilmsen (ed. Treaty Settlements: The Unfinished Business. Jackson. (1996) 'Introduction: Phenomenology. D. T. Forests.290 BIBLIOGRAPHY Henderson. James Bay and Northern Quebec Agreement (1976) Quebec: Editeur Officiel du Quebec. L. Bloomington: Indiana University Press. Howitt (eds). London. Jackson. Chicago: University of Chicago Press. . Radical Empiricism and Anthropo­ logical Critique' in M. D. 2. Holmes. Hiatt. J.). (1995) Postethnic America: Beyond Multiculturalism.). (1998) 'Museums and Indigenous Cultural and Intellectual Property Rights'. (1995) Passions and Constraint: On the Theory of Liberal Democracy. Janke. Wellington: Bridget Williams Books. Mackinnon (eds). R. (1997) 'Postcolonialism and Political Theory' in A. 7. Witi (ed. Cultural Diversity. Berkeley: University of California Press. Outburst (March): 5.). New York: Basic Books. J. presented to ASN Convention. August: 7. Connell and R. Vincent (ed. 154-71. Moana (1995) 'Comment' in G. Jackson (ed. (1998) 'National Culture and Communities of Descent'. (1989) 'Aboriginal Land Tenure and Contemporary Claims in Aus­ tralia' in E. 1 (March): 13. The Demands of Citizenship. Hymes. New Zealand: Institute of Advanced Legal Studies/Vic­ toria University of Wellington Law Review. (1996) 'Group Preferences. 1-50. H. 2: 211-329. 119-37. Hollinger.). 99-117. (1997) 'The Application of Copyright and Other Intellectual Property Laws to Aboriginal and Torres Strait Islander Cultural and Intellectual Prop­ erty'.J. (1969) Reinventing Anthropology. and Social Democracy: Notes towards a Theory of Affirmative Action'. (1998) 'The Disciplinary Moment: Foucault. 129-48. and Biodiversity. (1996) 'Rangatiratanga'. Howitt. Cambridge: Cambridge University Press: pp. 55: 31-40.

R. Beyond the Covenant Chain: The Iroquois and Their Neighbors in Indian North America. I. Marshall. H. and Craig. Richter and J. . Multiculturalism and Oppresssion' in A. Kirby. 1-50. Kerby. S. P. November' in J. Koenigsberger.. G. and Roth. Stambrau. 2: 22-34.. 5: 237-62. 1: 20-39. TePua. Kelsey. (eds). Spoonley. (1987) '"Pennsylvania Indians" and the Iroquois' in D. 8 2 . K. (1860) 'Letter to the Settlers of Hawkes Bay. (1996) 'From Flagpoles to Pine Trees: Tino Rangatiratanga and Treaty Policy Today' in P. Kasprycki. (1989) 'Composite States. 1. Jocks. C. P. Poznan Studies in the Philosophy of the Sciences and the Humanities. 4: 475-93. V. dissertation: University of California (Santa Barbara). P. Johnston. Nga Patai: Racism and Ethnic Relations in Aotearoa/New Zealand. Jull. Smith.BIBLIOGRAPHY 291 Jennings. P. Pearson and C. C. Aldenstadt: ERNAS Monographs I. R. (1992) 'Are There Any Cultural Rights?' Political Theory. R. (1997) Between Fear and Hope: Hybrid Thoughts on Public Values. Kukathas. Palmerston North: Dunmore Press. Law and Philosophy.) (1975) Maori is My Name: Historical Maori Writings in Translation. W. 1: 19-42. Ratio Juris. Auckland: Oxford University Press. (1970-71) 'Conciliation and Arbitration in Australia .9 0 . Historical Research. Dunedin:John Mclndoe Ltd: pp. G. 62: 135-53.) (1993) Belonging: The Meaning and Sense of Citizenship in Canada. J. G. Kickingbird. F. Tuhiwai (1995) Myths and Realities: Schooling in New Zealand. M. Ph. Keesing. 3. and Tomorrow. Kaplan. Matthews. (ed. Nomos. D. 1600-1800. (1997a) 'Cultural toleration'. (1995) 'Aboriginal Peoples and Hegemony in Canada'. Jones. (1989) 'Creating the Past: Custom and Identity in the Pacific'. R. 1: 6 0 .. Cambridge: Cambridge Uni­ versity Press: pp. S. Kulchyski. (ed. L. Palmerston North: Dunmore: pp. A. H. A.) (1989) Waitangi: Maori and Pakeha Perspectives on the Treaty of Waitangi. Kawharu. Journal of Canadian Studies.8 . (1991) 'Thinking Like a Lawyer'. Con­ temporary Pacific.. H. A. 23: 6 7 . Bloomington: Indiana University Press. M.2: 11-15. and the American Revolution'. second edn. 2. Merrell (eds). 20: 105-39. 132-53. Krygier.Where the Emphasis?' Federal Law Review. Australian Indigenous Law Reporter. (eds) (1998) IroquoisART: Visual Expressions of Contemporary Native American Artists. J.4 . Sydney: ABC Books. (1997b) 'Liberalism. 4: 1-29. (1986) 'Law as Tradition'. Caselberg (ed. and Smith. Vincent (ed. McPherson (eds). Pathways to Self-determination: Canadian Indians and the Canadian State. Toronto: University of Toronto Press. K. (1984) 'Indian Sovereignty: The American Experience' in Leroy Little Bear et al. D. 108-30. (1996) 'Rangatiratanga and Sovereignty by 2040'. (1997) 'Reflections on Regional Agreements: Yesterday. (1994) Relationship Structures in Longhouse Tradition at Kahnawd:ke. Montreal and Kingston: McGill-Queen's University Press. (1994) 'Examining a State Relationship: "Legitimation" and Te Kohanga Reo'. 39: 69-104. D. Representative Institutions. Syracuse: Syracuse University Press: pp. He Pukenga Korero. Kawepo. Today. Political Theory: Tradition and Diversity.). (1991) Narrative and the Self. Morris..D. 30. (1988) 'The Traditionality of Statutes'.

et al.). 49: 281-93. (1999a) 'Theorising Indigenous Rights'..292 BIBLIOGRAPHY Kuper. Theories of Secession. Law Reform Commission (1986) Report no. 5. 26: 221-36. A. W. pp. NY: State University of New York Press: pp. M. Lehning (ed. Canada. Baswick. D. (1989) Liberalism. Levin. Laden. 1. Beiner (ed. Laitin. Kymlicka. 31: The Recognition of Aboriginal Cus­ tomary Laws. (1995) Multicultural Citizenship.D. (1999b) 'Misunderstanding Nationalism' in R. (1997) 'Grandmothers' Law. (forthcoming) 'Ethnic Relations in Eastern Europe and Western Political Theory' in W. (1999) 'Estate of Mind' in P. La Capra. Summer: 22-30. P. 104. Connell and R. Harvard University. Ph. 153-68. Research and Evaluation Group. 71-87. (1998c) 'Human Rights and Ethno-cultural Justice'. Community and Culture. D. (1997) 'Living Together: International Aspects of Federal Systems'. Company Business and Succession in Chang­ ing Aboriginal Land Tenure Systems' in Yunupingu (1997): 84-116. (1994) Valuing Cultures: Recognising Indigenous Cultures as a Valued Part of Australian Heritage/Council for Aboriginal Reconciliation. Washington: US Institute of Peace Press. 111-50. Canberra: AGPS.). Toronto: Oxford University Press . LaRusic. D. (1979) 'Negotiating a Way of Life'. and New Zealand. Langton. (1998b) 'Is Federalism an Alternative to Secession?' in P. Landmann. Universite Laval. Sydney: Sydney University Press. Canada.).) (1993) Ethnicity and Aboriginality: Case Studies in Ethnonationalism. Political Theory. unpub­ lished MA thesis. Oxford: Oxford University Press. Oxford: Oxford Univer­ sity Press. Lon­ don & New York: Routledge. (1996) Autonomy: Flexible Solutions to Ethnic Conflicts. report prepared for the Research Division. (1996) Anthropology and Anthropologists: The Modern British School. Albany. American Historical Review. D. Laws of Australia: Aborigines (1995) Melbourne: Law Book Company. E. (1998a) Finding Our Way: Rethinking Ethnocultural Relations in Canada. Indigenous Peoples' Rights in Australia. Toronto: University of Toronto Press. Review of Constitutional Studies. (1999) Discussion of Windschuttle (1994). R. and Leeson. R. Kymlicka and M. Opalski (eds). 131-40. London: Routledge: pp. Canadian Foreign Policy. (1996) 'Minority group rights: the good. Fishing and Trapping Coordinating Committee'. Canberra: AGPS. Law.J. M. A. (1988) 'Co-management of Wildlife under the James Bay Treaty: the Hunting. Mining and Indigenous Peoples in Australasia. 4. D. Theorising Nationalism. the bad and the intolerable'. and Public Policy' in J. (1991) 'The Boundaries of Gagudju Association Membership: Anthropology. (1998) 'Liberal Theory and the Nation'. 2: 709-11. University of Toronto Law Journal. Auckland: Oxford University Press: pp. 2: 213-38. 1: 1-50. Lapidoth. (ed. 1 . Department of Indian and Northern Affairs. Policy.-R. I. Havemann (ed. Can Liberal Pluralism be Exported ? Oxford: Oxford University Press. October. Dissent. Land Rights News (1989) March. thesis. Levitus. vol. (1997) Constructing Shared Wills: Deliberative Liberalism and the Politics of Identity. Howitt (eds). and Raviot.

(1991) The Maori Magna Carta: New Zealand Law and the Treaty of Wai­ tangi. C. (ed. G. (1995) 'Resources. Canada and New Zealand. (1988) 'Second Treatise of Government' in P. Havemann (ed. Kokiri Ngatahi: The Treaty of Waitangi in the New Millennium. Shapiro and W.) (1985) Who Owns the Past? Papers from the Annual Symposium of the Australian Academy of the Humanities. and Fleras. Indigenous Peoples' Rights in Australia. Fall: 3 0 . Contemporary Pacific. C. G. KoopmanBoydman (ed. Fighting Over Country: Anthropological Perspectives. Laslett. and Martin. Living Relationships. Lind. I. (1996) 'Exemplars of Taking Liberties: T h e Iroquois Influence Thesis and the Problem of Evidence'. Cultural Survival Quar­ terly. Canberra: Centre for Aboriginal Economic Policy Research: 6 5 . McHugh. New York: Cambridge University Press. New York: Cambridge University Press. and Fleras.3 6 . Wellington: Victoria University Press. Finlayson (eds). Sites. A. (1994) 'The New Tribe: Conflicts and Continuities in the Social Organisa­ tion of Urban Maori'. (1991) 'Federalism and Ethnic Self-determination: Native Indians in Canada'. (1991) This Land is OurLand: The Mohawk revolt at Oka. P. P. J. 51. (1997) 'The Politics of Diaspora'. A. (1827) La Legislation civile. 8: 7 8 . William and Mary Quarterly. New Zealand's Ageing Society. New York: Free Press. A. 35 (Spring): 2 0 .8 2 .). (1995) The Next American Nation: The New Nationalism and the Fourth Amer­ ican Revolution. R. G.BIBLIOGRAPHY 293 Levy. (1999) 'From Sovereignty Talk to Settlement Time' in P. (1997) 'Classifying Cultural Rights' in I. L.). 2: 3 1 1 . . Macdonald. MacLaine. Long. W. P. paper given at the 'Treaty of Waitangi: Maori Political Representation Future Challenges' Conference. Subsequently published in K. and Baxendale. Auckland: Oxford University Press: pp. Locke. Maaka. (1997) 'Politicizing Property Rights: Tino Rangatiratanga as Constructive Engagement'. Locre. (eds) (1992) Indigena: Contemporary Native Per­ spectives. Smith and J. commercial et criminelle de la France. Oxford: Oxford University Press. A. Two Treatises of Government. Wellington. Wellington: Daphne Brasell. (1998-99) 'Reconceptualising Relationships: The Waitangi Tribunal'. (1997) '"Recognition and Justice": T h e Traditional/Historical Contradiction in New South Wales' in D. Melbourne: Oxford University Press. paper presented at the Pacific Island Political Science Association confer­ ence.2 . Coates and P. University of Canterbury. and Fleras. Kymlicka (eds). 7-11 December. 22-66. MacDuff. M. Laslett (ed. (1998) 'Te Ara Motuhake: A Passage to Self-determination'. Rights and Recognition'. New York: St Martin's Press. McHugh (eds).T h e World of the Aged' in P. W. A. J. McBryde. NOMOS XXXIX: Ethnicity and Group Rights. McKean.-A. Montreal: Optimum Publishing. ed.). (1998) 'Aboriginal Identity and Relations: Models of State Practice and Law in North America and Australasia'. 3: 588-620. (1993) ' P a k e k e t a n g a . (1983) Equality and Discrimination under International Law. Vancouver: Douglas & Mclntyre. (1994) Swiss Democracy. 1998. 29. International Policy Review.4 3 . (1986) Two Treatises of Government. I. Auckland: Oxford University Press. Journal of Commonwealth and Comparative Politics. Linden. E.9 1 . M. New York: New York University Press: pp. Levy. paper presented at the Ministry of Jus­ tice. 6. J. A. 447-67. McMaster. 2: 192-211.

(1995) Money. and the Possibility of Mabo'. 3: 311-46. R. van (1994) 'Maori Socio-political Organisation in Pre. J. Finlayson and A.294 BIBLIOGRAPHY McNeil. Metge. M. A.J. Aborigines and the Law. St Leonards. D. in H. 4. (1998) 'Defining Aboriginal Title in the 90s: Has the Supreme Court finally got it Right?' Twelfth Annual Robarts Lecture. Martinez. Acton (ed. London: J. New York: Liberal Arts Press. Palmerston North: Dunmore Publishing. S. Jackson-Nakano (eds). Keon-Cohen (eds). (1998) 'Unutterable Shame/Unuttered Guilt: Semantics. (1999) 'Political Community. (1997) 'Puerto Rico's Decolonization'. ed. Canberra: Centre for Aboriginal Economic and Policy Research. The Indian Historian. Canberra: AIATSIS. M. Maddock. (1964) A New Maori Migration: Rural and Urban Relations in Northern New Zealand. Attwood (ed. (1996) 'Between Mabo and a Hard Place: Race and the Contradic­ tions of Conservatism' in B. (1995) 'Normative Dimensions of the Right of Aboriginal Self-gov­ ernment' in Canadian Royal Commission. T. St Leonards: Allen & Unwin. Journal of the Polynesian Society. (1996) 'Historicising Maoritanga: Colonial Ethnography and the Reification of Maori Traditions'. F. Aporia. Foreign Affairs. Social Analysis. Chicago: University of Chicago Press. 3: 27-9. In the Age of Mabo: History. Marcus. 116. Auckland: Hodder Moa Beckett. C.J. 4: 304-22. Marcus. culture and post-modernity'.). Allen &: Unwin. Liberal-Nationalism and the Ethics of Assimilation'.J. S. Heritage and Native Title: Anthropological and Legal Perspectives. Macklem. Medicine. B. D. 105. B. F. Shields. Racism and Ethnic Relations in Aotearoa /New Zealand. York University. (1996) 'Formulations of Claim and Title: A Comparative Discussion' in J.). Ottawa: Minister of Supply and Services. 212-37. (1990) 'Anthropology. Discussion paper no. Canberra: Aboriginal Studies Press. G. November: 100-14. (1996) 'Iwi Development and the Waikato-Tainui Experience' in P. Meijl. Mead. (1984) 'Aboriginal Customary Law' in P. K. 88-99. Manderson. (1972) 'Considerations on Representative Government' (1861). M. V. (1971) 'The Anthropologist as the Indian's Image-maker'. Martin. T. E. Spoonley. Considerations on Representative Gov­ ernment. 4: 234-44. (1986) Anthropology as Cultural Critique: An Exper­ imental Moment in the Human Sciences. B. (1996) Linking accountability and Self-determina­ tion in Aboriginal Organisations. Toronto. Law/Text/Culture. 27 (April): 3-16. 25 March. and Fischer. 109: 261-86. . (1995) Maori Sovereignty: Maori Perspectives. D. D. Wellington: Victoria University Press.). M. and Finlayson. A. Fletcher (ed. Oceania 65. Markus. McPherson (eds) Nga Patai. The Athlone Press. J. (1958) Considerations on Representative Government. Pearson and C. K. Moko (1997) Landmarks. K. H. Ethics. Melbourne. Utilitarianism: On Liberty. Dent & Sons. pp. London: University of London. Mahuta. Canberra: Centre for Aboriginal Economic Policy Research. P.and Proto­ history'. Mansell. pp. Mason. (1994) 'Taking Control of Resources' in C. Aborigines and Australia. Aboriginal Self-determination in Australia. Aboriginal Self-government: Legal and Constitutional Issues. Martin. Mill. Business and Culture: Issues for Aboriginal Economic Policy. Hanks and B. Merlan. D. Bridges. and Visions: Aspects of Maori CultureEssays by Sidney Moko Mead. R.

Cambridge: Cambridge University Press. (1986) Pintupi Country. Washington: Smithsonian Institution Press. B. Boundaries and the Bounded Self in R. J. 1: 60ff. 31 May. Law and Inequality Journal. T. Nedelsky. 22: 564-84. Post (ed. (1990) Ka Awatea: A Report on the Ministerial Planning Group. Minister of Maori Affairs (1989) Te Urupare Rangapu: A Discussion Paper on Pro­ posals for a New Partnership. (1987) 'The Third World War: Militarization and Indigenous Peoples'. New ZealandJournal of His­ tory 28. Mass. Moss. Morris. (1998) The User Illusion. Auckland: Oxford University Press. (1995) Tnuit perspectives on Treaty Rights and Governance' in Cana­ dian Royal Commission. Feasts and Land Claims. (1989) Maori. and Politics among Western Desert Aborigines. W. (1994) Eagle Down is Our Law: Witsuwit'en Law. Wellington: Ministry of Maori Affairs. (1994) Exchange of Letters. J.: Harvard University Press. McBryde (ed. B. April. Mulgan. Yale Journal of Law and Feminism. Mitchell. Morse. and Abroad: A report prepared for la Commission dEtude sur toute offre d'un nouveau partenariat de nature constitutionelle. (1985) 'A Question of Values: Museum and Cultural Property' in I. J. (1988) Colonising Egypt. trans. R. O'Brien. Morrison.D. Cambridge. Berkeley: University of California Press. (1998) An Essay on the Modern State.BIBLIOGRAPHY 295 Mills. Nisga'a Final Agreement (1998) Victoria B. Nettheim. Munz. Mulvaney. Ottawa.6 9 . O. Who Owns the Past? Papers from the Annual Symposium of the Australian Academy of the Humanities. A. (1994) 'The Robinson Treaties of 1850: A Case Study'. Canada. Cultural Survival Quarterly. London: Minority Rights Group. 3: 1-16. 1. Culture and Philo­ sophy. Pintupi Self: Sentiment.2 . Cambridge: Cambridge University Press. (1992) Comparative Assessment of Indigenous Peoples in Quebec.C. (1989) American Indian Tribal Governments. (1997) Nature. Norman: University of Okla­ homa Press. S.). Melbourne: Oxford University Press. 5: 267-358. Ottawa: Minister of Supply and Services Canada. Place. Nietschmann. and Democracy. (1989) 'Relational Autonomy'. (1996) Toward Justice and Virtue. New Zealand Herald (1997) 'Pakeha Told Maori Law is Separate'. (1997) Fieldwork in Familiar Places: Morality. revised edn. . 31 March: 4 0 . M. (1999) The Quality of Sprawl Sydney: Duffy & Snellgrove. Minority Rights Group (1991) Minorities and Autonomy in Western Europe. (1991) 'Law. L. Wellington: Ministry of Maori Affairs. (1987) 'Cultural Rights in the United States: A Conflict of Values'. unpublished report prepared for the Royal Commission on Aboriginal Peoples. T. Myers. MoodyAdams. Cambridge: Cambridge University Press. J. Vancouver: University of British Columbia Press. C. UNSWLawJournal. F. New York: Viking.). W. R. G. Murphy. (1999) 'The Search for Certainty and the Native Title Amendment Act 1998 [Cth]'. 1: 7-36. Ph. Culture and Authority: Multinational Democracies and the Politics of Pluralism. Sydenham. 4 7 . O'Neill. A. 11. Law and the Order of Culture. Aboriginal Self-government: Legal and Constitutional Issues. thesis. Pakeha.: Ministry of Aboriginal Affairs. Norretranders. Murray. and Salmond. M. P. McGill University.

N. (1993) 'Reconciliation: To Be or Not To Be'. Ethics. 19. 16: 425-45. Overview: Proceedings of the Australian Reconciliation Convention: Book 1 (1997) Kingston: Council for Aboriginal Reconciliation. R. Pagden. (1995a) 'Mabo. Offe. McGill University. (1998) 'Feminism and Multiculturalism: Some Tensions'. (1987) The Treaty of Waitangi. Oxford: Oxford University Press. Oman. (1991) 'Sovereignty: Outline of a Conceptual History'.). Shtromas (ed. Paul. 85-103. 108: 661-84. (1995) 'On Rights. 153-71. Paine. Freedom and the Politics of Difference'. (1994) 'Decolonizing liberalism' in A. (1997) Republicanism: A Theory of Freedom and Government.D. Wellington: Allen & Unwin. and the Constitution'. (1995) Lords of All the World: Ideologies of Empire in Spain. Public Sector. (1994) 'Indigenous Governance: Country Study . Richetts and B. (1982) The Fall of Natural Man. H. (1994) 'Mainstreaming: A Maori Affairs Policy?' Social Policy Journal of New Zealand. Edmond. C. 6: 113-41. M. Oxford: Blackwell. N. Cambridge: Cambridge University Press: pp. (1993) 'The Treaty of Waitangi: A Historical Overview'. 1500-c. Journal of Political Philosophy. H. Orange. Parata. (1999) 'Republican Freedom and Contestatory Democratisation' in I. thesis. Sewell (eds).296 BIBLIOGRAPHY O'Regan. Wilson and A. North Ryde: Law Book Company. 2: 59-70. and Liberal Rights Philosophy'. Aboriginal Law Bulletin. 3: 14-17. . Okin. Alternatives. Yeatman (eds). (1994) Tradition and Change in Australian Law. Hacker-Cordon (eds). Jr. 1800. 30: 108-19. (1997) Sharing Horizons: A Paradigm for Political Accommodation in Intercultural Settings. 11. Lincoln. Democracy's Value. ( l 9 9 6 ) 'The Iroquois League. the Articles of Confederation. (1997) 'Pandora's Envelope: It's All about Power' in L. The. 64. Ph. 3 (December): 40-9. Onuf. Payne. H. Cambridge: Cambridge University Press. 3: 605-20. S. 53. A. William and Mary Quarterly. Oliver. G. Multiculturalism. End of 'isms"? Reflections on the Fate of Ideological Politics after Communism's Collapse. Shapiro and C. S. New Haven: Yale University Press . paper prepared for the Canadian Royal Commission on Aboriginal Peoples. Ottawa: Minister of Supply and Services Canada. Racism and Retribution: A Systematic Analysis of the Membership Issue'. 4: 2-6. W. pp. Parekh. P. P. P. St Leonards: Allen & Unwin. Pettit. Australian Journal of Political Science. Pearson. A. 1991-1996. Patton. pp. N. NZ: Lincoln University Press. (1997) 'The Concept of Native Title at C o m m o n Law' in Yunupingu (1997): 150-62. POLAR.New Zealand'. 163-90. Ethnos. Parkinson. B. T. (1999) 'Aboriginality. (1995b) 'Post-structuralism and the Mabo Debate: Difference. Society and Justice' in M. 3 (15): 5-6. Britain and France c. 3: 325-49. (1996) 'In Chief Justice McEachern's shoes: Anthropology's Ineffec­ tiveness in Court'. Justice and Identity: Antipodean Practices. Under Review: A Selection from New Zealand Books. B. Onkwarihwa'shon:'a. (1997) 'Homogeneity and Constitutional Democracy'. C.

(1996) 'He Pokeke Uenuku i Tu Ai: The Evolution of Contemporary Maori Protest' in P. Sovereignty and History in a Divided Culture: The Case of New Zealand and the Treaty of Waitangi'. Puerto Rican Jam: Essays on Culture and Politics. 24.BIBLIOGRAPHY 297 (2000) 'Democracy. Prucha. Critique of Anthropology. M. F. (1999) 'Settler Modernity and the Quest for an Indigenous Tradition'. Negron (1997) 'Puerto Rico: Surviving Colonialism and National­ ism' in F. Berkeley: University of California Press. (1993) The Administration of the Colonies (1768): A Facsimile Reproduc­ tion. (1997) 'Creating Super-national Institutions Democratically: Reflections on the European Union's "democratic deficit"''. 19. Puri. Ratnapala (eds). Democracy's Value. Polanco. A. Nomas. 103. 11. 2: 163-82. Diaz (1997) Indigenous Peoples in Latin America: The Quest for Selfdetermination. Poata-Smith. Pownall. Spoonley. D. G. New Zealand Journal of History. J. K. Ethics. Evan S. (1999) 'Minimalist Conception of Democracy: A Defense' in I. and Reprints. (1992) 'Cosmopolitanism and Sovereignty'. 1: 2 8 . E. T. Minneapolis: University of Minnesota Press: pp. St Lucia: University of Queensland Press. (1998) 'The State of Shame: Australian Multiculturalism and the Cri­ sis of Indigenous Citizenship'. (1994) 'The Hyperreal Indian'. Hacker-Cordon (eds). paper presented to the Workshop on Negotiating Nationhood: An Intercultural Dialogue o n Contemporary Native Issues. Povinelli. Shapiro and C. Rayas. T. A. T. Electoral and Contestatory'. . Poirier. 42. A. Boulder: Westview. (1995) 'Sovereignty: An Introduction and Brief History'. Journal of International Affairs. H. (1992) 'Tangata whenua and Enlightenment Anthropology'. Portillo. NY: Published for the John Carter Brown Library by Scholars' Facsims. Przeworksi. Delmar. Racism and Ethnic Relations in Aotearoa/New Zealand. (1998) 'Law. Stephenson and S. Philpott. S. 2: 575-610. J. 1: 3. Cambridge: Cambridge University Press: pp. Post. October: 48-75. 5. 23-55. D.5 3 . Nga Patai. (1993) 'Copyright Protection for Australian Aborigines in the light of Mabo' in M. 1: 19-48. Pocock. Pettman. 14. (1994) American Indian Treaties: The History of a Political Anomaly. (forthcoming) 'Democratic Constitutionalism and Cultural Hetero­ geneity'. 43: 481-506. Negron-Muntaner and R. (1996) 'Negotiating Boundaries or When Itineraries Become Maps: Some Comments o n the Native Title Legislation in the Gibson Desert (Aus­ tralia)'. P. Montreal. (1988) 'Whose Country is it Anyway? Cultural Politics. Pogge. 2: 353-68. McGill Law Journal. L. A. 2: 153-71. Racism and the Construction of Being Australian'. Journal of Political Philosophy. Critical Inquiry. Winter. (1998) 'Self-determination and Indigenous Peoples: National Libera­ tion or Citizenship?' unpublished paper. R. Pub­ lic Culture. 24. Journal of Intercultural Studies. Palmerston North: Dunmore Publishing. Pearson and C. Australian Journal of Legal Philosophy. A. trans. McGill University. 6 . R. R. Poole. Grossfoguel (eds).7 December. 39-56. Mabo: A Judicial Revo­ lution. McPherson (eds). Ramos.

(ed. Australian Journal of Political Science. Rubinstein.). Riker. 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'. Mass. Atlantic Monthly. New York: Norton. In the Age of Mabo: History. 30. F. (1997) 'The Challenges of the Quebec Question: Para­ digm. The Weekend Review. Schlesinger. (1995) 'Reshaping Governance in Torres Strait: The Torres Strait Regional Authority and Beyond'. W. W. Wellington: Victoria University Press. New York: Vintage.5 3 . Chapel Hill: University of North Carolina Press. L. Understanding Canada. E. (1993) Political Liberalism. Without Consent: A History of the Nisga 'a Land Claims. D. 3 5 . (1996) Aboriginal Sovereignly: Three Nations. (1998) Building on Land Rights for the Next Generation: Report of the Review of the Aboriginal Land Rights (Northern Territory) Act 1976. R. G. 29. D. (1992) The Disuniting of America. (1993) 'Decolonizing Ourselves from Within'. A.298 BIBLIOGRAPHY Raunet. Salmond. (1970) Outcasts in White Australia. B. H. 277-314.. The Nationalist Reader. D. Renwick. . W. trans. Freeman and Co. 2: 37-50. New York: Humanities Press.). (1978) Orientalism. Ringwood: Penguin Books . Rose. pp. Montreal/Kingston: McGill-Queen's University Press: pp.) (1991) Sovereignty and Indigenous Rights: The Treaty of Waitangi in International Contexts. Richter. (1995) 'The Diversity Myth: America's Leading Export'. Rights Reductionisms at the Supreme Court of Canada'. 30-1 March: 9. Reeves. Borofsky (ed. E. (1995) 'What is a Nation?' in M.). Counter-paradigm. Rothwell. (1992) The Ordeal of the Longhouse: The Peoples of the Iroquois League in the Era ofEuropean Colonization. 6: 29-60.?' in W. Aborigines and Australia. and Coleman. H. (1992) The Law of the Land. Assessing Cultural Anthropology. St Leonards: Allen & Unwin. (1996) 'Whose Culture is it Anyway?'. Critical Inquiry. New York: Vintage. (1996) Without Surrender. Rotman. spring: 87-99. N. Canberra: AGPS. Cambridge. Attwood (ed. J. P.: McGraw-Hill. 3: 500-24. 2: 277-314. (1994) 'The Lone Stranger in the Heart of Darkness' in R. Said. B. (1997) 'Creating a Still-Life Out of Dynamic Objects.. Chabour and M. 36: 1-8. W. C. New York: Columbia University Press. Sanders. Recherches amerindiennes au quebec. (1982) Liberalism against Populism. 15: 205-25. Alberta Law Review. Schwarz. Racial and Ethnic Studies 18. Renan. May: 57-67. Clement (ed. San Francisco: W. Rowley. (1996) 'Histories and Rituals: Land Claims in the Territory' in B. Salee. Honolulu: University of Hawai'i Press. K. Reynolds.J. (1989) 'Representing the Colonized: Anthropology's Interlocutors'. (1994) Culture and Imperialism. (1995) 'Identities in Conflict: the aboriginal question and the politics of recognition in Quebec'. Rawls. M. 1773-1815. Renwick. and. Vancouver: Douglas & Maclntyre. D. (1997) Between Worlds: Early Exchanges between Maori and Europeans. W. Salzman. A. D. W. Harmondsworth: Penguin. C. One Australia?St Leonards: Allen & Unwin. A. Ishay (eds). British Review of New 'Zealand Studies. (1993) 'Is Statehood for Puerto Rico in the National Interest?' in Depth: A Journal for Values and Public Policy. Reid.

Spoonley. Native Title Research Unit. (1996) 'Indigenous Self-determination and Decolonization of the Inter­ national Imagination'. second edn. 66. J. I. Regional Agreements Paper no. D. Sohn.: Crown Western. M. New Haven: Yale University Press. (1962) 'Fiduciary Relationships'. (1995) 'Constructing Ourselves: The Post-colonial Politics of Pakeha' in M. Auckland: Massey University. Smith. Simpson. Can­ berra: AIATSIS. 6.J. Canadian Bar Review. Toronto: Women's Press. M. Native Title Research Unit. Albany: State University of New York. Shafir. Shapiro. trans. Scott. Legros. Simmons. 18: 815-20. Imagined. J. (1991) 'The Nation: Invented. . (1996) Democracy's Place. (1998) 'The Empire Laughs Back: Tradition. Ithaca: Cornell University Press. published for the Asia-Pacific Migration Research Network. 96-115. (1981) 'The Rights of Minorities' in L. Canberra: Aboriginal Studies Press. Kasprycki. Reconstructed'. 3: 727-83. Journal of Peace Research. (1993) 'A Europe of Nations . Henkin (ed. (1987) 'Understanding Aboriginal Rights'. (1997) Civic Ideals: Conflicting Visions of Citizenship in American His­ tory.BIBLIOGRAPHY 299 Scott. E. Law and Philosophy. Albany. Roth (eds). Silman. Human Rights Quarterly. Sealy. (1991) 'Aboriginal Sovereignty and Imperial Claims'.). Smith. (1998) 'The Yandicoogina Process: A Model for Negotiating Land Use Agreemen ts'. 3: 353-68. 2: 129-35. L. A. Millennium: Journal of International Studies. Sharp. Regional Agreements Paper no 7. 1962: 6 9 . S. C. Senior. Canberra: AIATSIS. Slattery. (1995) Our Home or Native Land? Victoria B. D. Wilson and A. (1999) 'Introduction: Au-dela de la tradition des etudes iroquoises traditionelles'. 20. 14: 149-84. R. A. Wellington: Bridget Wilson Books: pp. (1995) Immigrants and Nationalists: Ethnic Conflict and Accommodation in Catalonia. B. G. The Murray Islanders' Land Case.C. L. A. New Haven: Yale University Press. (1987) Enough is Enough: Aboriginal Women Speak Out. Aldenstadt: ERNAS Monographs 1.8 1 . Power and Play in the Work of Shelley Niro and Ryan Rice' in S. Sharp. I. (1998) 'Indigenous Land Use Agreements: New Opportunities and Challenges under the A m e n d e d Native Title Act'. V. Smith. A. the Basque Country. fustice and Identity: Antipodean Practices. (1997) Justice and the Maori: The Philosophy and Practice of Maori claims in New Zealand since the 1970s. Cambridge Law Journal. 29. Latvia and Estonia. P. Smith. (1997) 'Migration and the Reconstruction of Citizenship in Late Twentiethcentury Aotearoa'. New York: Columbia University Press.or the Nation of Europe?'. Yeatman (eds). IroquoisART: Visual Expressions of Contemporary Native Amer­ ican Artists. Auckland: Oxford University Press. D. Recherches amerindiennes au Quebec. Osgoode Hall LawJour­ nal. (1990) Domination and the Arts of Resistance. 29. (1996) No Ordinary Judgment: Mabo. 4: 681-703. 30. (1995) 'Historical Rights and Fair Shares'. N. C. 2: 3-9. The International Bill of Rights: The Covenant on Civil and Political Rights. Stambrau and A. Immigration Research Network.

L. Australian National University. Can­ berra: Aboriginal History Inc. Race. 2. Finlayson (eds). New York: Harper & Row. 16.). Fingleton and J. Suchet. (eds) (1984) 'The Fourth World: A Geography of Indige­ nous Struggles'. McBryde (ed. C. Canberra: AIATSIS. Pacific Voices: An Anthology of Maori and Pacific Writing. Memorial University of Newfoundland. Sutton. Stasiulis. Rights and Resource Development. Auckland: MacMillan. pp. Toronto: University of Toronto Press. S.D.). Tocqueville. C. M. pp. R. (1995) 'Introduction . 1-10. Fighting Over Coun­ try: Anthropological Perspectives. 1: 89-104. Tanner. Miller (ed. Melbourne: Oxford University Press. Pearson. Cambridge: Cambridge University Press: pp. M. L. Cit­ izenship Studies. Anthropology in the Native Title Era. Multicultural­ ism and "the politics of recognition". Sturmer. and McPherson. 97-103. Australian Geographical Studies. G. 34: 200-15. 2.). (1997) 'Dealing with Native Title Conflicts by Recognising Aboriginal Authority Systems' in D. von (1982) Aborigines in the Uranium Industry: toward self-man­ agement in the Alligator River region?' in R.). J. (1992) 'The Politics of Recognition' in A. Smith and J. Taylor. Sullivan. Canberra: AIATSIS. A. Thousand Oaks: Sage. Alternative Law Journal. Tobias.300 BIBLIOGRAPHY . Canberra: Centre for Aboriginal Economic Policy Research. Finlayson (eds). (1995b) Country: Aboriginal Boundaries and Land Ownership in Australia. Ethnicity. (1998) 'US Citizenship Policy in the Pacific Territory of Guam'. Stokes (ed. (1989) 'Feelings and Memories of a Kuia' in B. 1: 7. Perth: University of Western Australia Press. P.). N. Anthropol­ ogy in the Native TitleEra. Lawrence. Sullivan. Antipodes: A Radical Journal of Geography. trans. B. (1997) 'Citizenship and Aboriginality: Two Conceptions of Identity in Aboriginal Political Thought' in G. (1996) 'A Tale of Two Cultures. Ph. R. (1995a) 'Atomism versus Collectivism: The Problem of Group Defini­ tion in Native Title Cases' in J. Strelein. P. D. and Yuval-Davis. Fingleton and J. Bringing Home Animals: Religious Ideology and Mode of Production of the Mistassini Cree Hunters. J. Unsettling Settler Societies.). D. D. G. Tehan. 129-40. thesis. de (1966) Democracy in America. 69-116. Finlayson (eds). A. Berndt (ed. Aboriginal Sites. The Politics of Identity in Australia. Hindmarsh Island Bridge: Protection Requires the Disclosure of Secrets'. pp.Beyond Dichotomies: Gender. Stokes. (1979). Palmerston North: Dunmore. (eds) (1996) Nga Patai: Racism and Ethnic Relations in Aotearoa/New Zealand. S. Who Owns the Past? Papers from the Annual Symposium of the Australian Academy of the Humanities. 158-74. (1995) 'Problems of Mediation in the National Native Title Tribunal' in J. (1998) Indigenous Self-determination Claims and the Common Law in Australia. pp. St John's: Institute of Social and Economic Research. M. (1985) 'The Custodians of Aboriginal Sites in Southeastern Australia' in I. Stasiulis and N. two vols. Taylor. and Wisner. (1991) 'Canada's Subjugation of the Plains Cree. 21. and Class in Settler Societies' in D. Princeton: Princeton University Press. Gadd (ed. A. (1996) 'Nurturing Culture through Country: Resource Management Strategies and Aspirations of Local Landowning Families at Napranum'. Statham. Gutman (ed. Stea. 1879-1885' in J. Yuval-Davis (eds). E. . Sweet Promises: A Reader on Indian-White Relations.

Spain. 191-218. Ph. (forthcoming) 'Freedom and Disclosure In Multinational Societies' in A.) (1988) Meaning and Context: Quentin Skinner and His Critics. Tully (eds). 2 (Summer): 153-80. Poyer (eds). (1979) Natural Rights Theories: Their Origin and Development. Bickerton and A. Cambridge: Cambridge University Press. revised May 1997). Penticton. B. Toronto: Broadview Press. (1993) 'Rediscovering America: T h e Two Treatises and Aboriginal Rights' in J. S. 1: 146-67.1 2 4 . A. Ethnicity and Discrimination. McGill University. (1998) 'A Fair and Just Relationship'. United Kingdom and Canada in Compar­ ative Perspective. pp. Linnekin and L. Canadian Politics.-G. Oxford: Oxford University Press. R. Van Dyke. Cambridge: Cambridge University Press. (1999) The Rights of War and Peace: Political Thought and the International Order from Grotius to Kant. (ed. Gagnon (eds). Meanjin. Westport: Green­ wood Press. American Anthropologist. 4: 305-36. E. Venables. Beiner (eds). Tully. An Approach to Political Philosophy: Locke in Contexts. E. Belgium. (forthcoming) 'Vision: Towards an Understanding of Aboriginal Sover­ eignty' in W. (1998) OurElders Understand Our Rights: Evolving International Law Regarding Indigenous Rights. Cambridge: Cambridge University Press.C. Wafer. (1994) 'Aboriginal Property and Western Theory: Recovering a Middle Ground'. Tuck. Exiled in the Land of the Free: Democracy. W. M. Venne.BIBLIOGRAPHY 301 Tonkinson. Toronto: University of Toronto Press.D.: Theytus Books. Lyons et al (eds).) (1997) Political Theory: Tradition and Diversity. Cambridge: Cam­ bridge University Press. Bloomington: Indiana University Press. Cultural Identity and Ethnicity in the Pacific. (1997) 'Understanding Treaty 6: An Indigenous Perspective' in M. (1990) 'Is it in the Blood? Australian Aboriginal Identity' in J. 53. Ethnohistory. Social Philosophy and Policy. Indian Nations. W.). Norman and R.Jackson (ed. (1988) 'The United States Constitution and the Iroquois League'. Turner. Aboriginal and Treaty Rights in Canada. Santa Fe: Clear Light Pub­ lishers: pp. (ed.-G. 2: 2 2 0 . J. Vancouver: University of British Columbia Press. (1997) This Is Not a Peace Pipe: Towards an Understanding of Aboriginal Sovereignty.3 1 . Submission to the Select Standing Committee on Aboriginal Issues (3 December 1996. Things as They Are: New Direc­ tions in Phenomenological Anthropology. J. Tooker. Cam­ bridge: Polity Press. V. Honolulu: University of Hawaii Press: pp. Voget. Gagnon and J. Contemporary Canadian Political Philosophy. . Tully. and the US Constitution. 57. (1999) 'Aboriginal Peoples: Negotiating Reconciliation' in J. D. (1992) 'American Indian Influences on the America of the Founding Fathers' in O.). 35. Cambridge: Cambridge University Press. (1985) Human Rights. thesis. 7 3 . 137-216. F. Vincent. (1995) Strange Multiplicity: Constitutionalism in an Age ofDiversity. (1997) 'A General Framework for the Nisga'a Treaty Negotiations and Agreement-in-Principle'. third edn. 1 1 . R. (1951) 'Acculturation at Caughnawaga: A Note on the Native-modi­ fied Group'. Asch (ed. (1996) 'After the field' in M. Struggles for Recognition in Multinational Societies: The European Union.

Wellington: Brookers Ltd. 133-160. Toronto: University of Toronto Press. Waldron. S. Culture. Canberra. (1994) Reimagining Canada: Language. Waters.302 BIBLIOGRAPHY Waitangi Tribunal (1987) Report of the Waitangi Tribunal on the Orakei Claim (Wai 9 ) . R.J. 103:4-28. (1995b) 'Relations of Force and Relations of Justice: The Emergence of Normative Community between Colonists and Aboriginal Peoples'. Havemann (ed. (1997) 'Beyond Regret: Mabo's Implications for Australian Constitutional­ ism'. Culture and Iden­ tity in New Zealand. Wellington: Department of Justice. W.). and the Canadian Constitution. A. 8-10 August. Webber. Oxford: Oxford University Press. P. Webster. Havemann (ed. (1988) Indian Givers: How the Indians of the Americas Transformed the World. Weaver. (1999) 'Maori Sovereignty. Ottawa: Minister of Supply and Services. Equality and Difference: Justifications for a Par­ allel System of Aboriginal Justice' in Royal Commission on Aboriginal Peoples. Auckland: Oxford University Press: pp. Auckland: Oxford University Press: pp. Political The­ ory. Culture and Values in Canada at the Dawn of the Twenty-first Century. Wellington: GP Books: pp. 33: 623-60. and the Reshaping of Institutions. Sites. Rice (ed. and New Zealand. S. Aboriginal Peoples and theJustice System: Report on the National Round Table on Aboriginal Justice Issues. Montreal: McGill-Queen's University Press. (1990) Ethnic Options: Choosing Identities in America. Auckland: Penguin Books. Smart and P. pp. (1998) Te Whanau o Waipareira Report (Wai 414). (1989) 'Maori Studies and the Expert Definition of Maori Culture: A Criti­ cal History'. Indigenous Peoples' Rights in Australia. Canada. J. (1992) 'Superseding Historic Injustice'. (1991) 'A New Paradigm in Canadian Indian Policy for the 1990s'. Canadian Ethnic Studies. Colonial and Post-colonial Discourses' in P. paper presented to Conference on Indigenous Rights. (1995b) Nga Pepa a Ranginui: The Walker Papers. 108-22. Auckland: Oxford University Press: pp. 498-519. 2: 121-52. Ethics. Novitz and B. (1998) Unfinished Dreams: Community Healing and the Reality of Aboriginal Self-government. second edn. (1996) 'Multiculturalism and the Limits to Toleration' in A. Community. (1995a) 'Maori People since 1950' in G. Walker. (1999) 'Tino Rangatiratanga' in P. Oceania. M. Sydney Law Review. M. Savard (eds). (1989) 'Maori Identity' in D. Warry. and Hayward. Weatherford. (1993) 'Individuality. The Oxford History of New Zealand. and New Zealand. Berkeley: Univer­ sity of California Press. (1995) Kiwifruit Marketing Report. . 3: 8-18. Indigenous Peoples' Rights in Australia. J. W.). 378-99. Wellington: GP Publica­ tions. (1999) Law and Disagreement. pp. 17: 5-28. 269-79. Ward. Canada. Wilmott (eds). 18: 35-56.). Osgoode Hall Law Journal. J. New York: Crown Publishers. 22. (1995a) 'The Jurisprudence of Regret: The Search for Standards of Justice in Mabo'. (1987) Nga Tau Tohetohe: Years of Anger. 35-52. Ottawa: International Council for Canadian Studies and Carleton University Press. Language. (1975) 'Cognatic Descent Groups and the Contemporary Maori: A Preliminary Reassessment'. Lapierre. 84. Auckland: Penguin.

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

The Hague: ICJ Reports Mabo and Others v. Commonwealth of Australia (1979) 24 ALR 118 [ H C ] . Australia). Cooper v. R (1996) 137 DLR (4th) 289 (SCC) Ward v. Tickner (1993) 117 ALR 206 Paterson. 12 (1995) Case Concerning East Timor (Portugal v. 107 ALR 1. Bishop of Wellington (1877) 3N2JR (NS) 72 Worcesterv. MacMillan BloedelLtdv. (1998) Maori Fisheries Case: Decision on Preliminary Question Remitted by Privy Council Auckland: Auckland High Court Re Southern Rhodesia [1919] AC 211 Report No. 1 (Canberra: Aus­ tralian Government Publishing Service. Commonwealth (1995) 183 CLR 373 Wik Peoples v. 1986) Simony. State of Georgia (1832) 6 Peters 515 (US Supreme Court) Yannerv. Commonwealth of Australia (1993) 118 ALR 193 [HC]. R [1990] 1 SCR 1075 Van derPeelv. Mullin [1985] 3 WWR 577 (BCCA) Mahev. Western Australia (1998) 159 ALR 483 (FC) Wards. Young Person. Stuart (1889) 14 App Cas 286 Delgamuukwv. T h e Hague: ICJ Reports: p. 31: The Recognition of Aboriginal Customary Laws vol. Western Australia (1996) 186 CLR 140 New South Wales v. The Queen (1985) 24 DLR (4th) 390 (CSCC) Sparrow v.304 BIBLIOGRAPHY Coev. 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) . B. Victoria [1998] 1606 FCA (18 December 1998) Aboriginal Land Rights (Northern Territory) Act (1976) Children. Commonwealth (1975) 135 CLR 337 Pareroultjav. Coev. Brown (1985) 159 CLR 70 International Court of Justice (1975) Western Sahara: Advisory Opinion of 16 Octo­ ber 1975. Eaton (1999) HCA 53 Yorta Yortav. British Columbia (1997) 153 DLR (4th) 193 (SCC) Gerhardyv. 2) (1992) 66 ALJR 408. Queensland (1996) 141 ALR 129 WiParatav.J. Western Australia (2000) FCA 191 Western Australia v. Alberta (1990) 68 DLR (4th) 69 (SCC) McGintyv. Queensland (No.

9. 224 claims. 48. 16. 6 6 .5 0 . 165. 278n6. 154-6. 46. 8. 79. 16. 179 self-government. 174 Aboriginal and Torres Strait Islander Heritage Protection Art (1984). 174. 113. 10. 152-3. 151 Adams.John. 163-4. 16.R.9 . 39. 27. 163. L. 156 self-determination. 1 5 7 . 45. 67. 94.5 . 165. 176-7 Aboriginal Land Rights (Northern Territory) Act (1976). 2 1 7 . 152-6. 1 5 8 . 179 history. 176. 88. 172. 16-17. 179 title.9 Canadian. 158-61. 161 cultures. 25. 45. 166. 77. 139. 67. 78. 5 5 . 165. 154-6 Australian. 200. 262. 176-9 cultural heritage. 36. 13. 199. 41.9 .178 societies. 98. (Taiaiake).9 . 2 3 3 . 9. 224 to land.6 . 166. 1 6 . 159. 198 land rights. 172. 4 5 .9 . 261. 173-6. 163.9 see also indigenous Aboriginal land commissioner ( A u s t ) . 27. 161. 175-7 governments. 264n38 of minority nationalisms. 178 beliefs.5 0 .6 . 175 peoples. 174. 161 accommodation. 4 8 . 48. 16. 25. 156. 257 rights. 88 sovereignty. 16. 41. 125 academia.1 . 222 autonomy. 252. 4 9 . 1 6 3 . 9. 66 traditions. 261n6 institutional. 156. 222 owners. 176 representation. 85. 175. 2 2 1 . 27.5 . Theodore. 164.7 . 156-7 African Americans. 222. 173 305 . 168. 8. 123 aesthetic beauty. 228. 173. 178-9 law. 150 interests. 4 .9 . 2 1 8 . 90. 172 nation. 27. 196 groups. 9 3 .5 .1 9 . 3 2 identity. 150. 62. 4 6 . 7 4 . 163-4.. 153. 16. 2 3 3 . 272. 10. 158 Abu-Lughod. 43. 164. 167. 2 7 9 n l 6 strategies of. 196. 32. 2 6 2 n l 5 Alfred. 1 5 0 . 108. 10. 161. 78. 155-6. 126.7 . 198-9. 41. 1 5 5 . 183-4. 185-6. 149-51. 4 4 . 257 women. 178-9 aboriginality. 277nl agriculture. 2 2 1 . 42. 175 treaties.8 cultural property. 156-7. 263.8 . 243 Adorno. 4 6 . 72. 174. 279 descent. 158. 271 Aboriginal and Torres Strait Islander Commission (ATSIC). 2 1 8 . 8.6 . 196. 72. 176-7 communities. 43. 86.Index Aboriginal art. 152. 47. 4 6 . 171. 72. 49. 38. 257.5 . 38. 70. 162. 175 women's knowledge. 174-7. 164. G. 163. 173-4. 4 4 . 76. 152. 19. 146. 163. 48. 176.7 . 199. 152.1 9 . 153. 1 6 5 . 251.1 8 . 83. 59. 113-14. 196. 72.

95.2 .6 . 157.7 0 . 100. 222. 256. 144 Blacks.John. 108. 228. 16. 174.6 .9 Bowie. 250. 78. 229. 9 7 . 39 constitutional theory.3 . 103. 92. United States Amerindian. 6 9 . 28. 87.8 . Homi. 223. 225. 93. 57.1 0 0 . 99. 163.15—16 Best. 7-9. 2 7 1 n l . David. 27. 6 2 . 73. 9 6 . 210. 84. 152-3.. 267 America. 27. 132-3. 2 2 5 . 122-5. 192-3 Benjamin. 184-6. 265n5.4 .8 . 134-5. 157 conception of. 281n3 state. 7 0 . 4. 86. 41.6 . 2 4 2 . 2 1 . 73.9 . 117. 178. 222.1 . 84. 88. 246 relational. 251.7 0 . 272n8 see also Mohawk Council of Kahnawake Barcham. Jean. 16. 28. 253. 240. 3. 224. 7 8 .1 . 201. 8 0 . 9 1 . 90. 108. 222.). 38. 79. 7 3 . 26. 2 2 4 . 6 0 . 179 government. 281 Anderson.4 internal. 28. 73. 16. 156. 6 0 . 161. 91 individual. 199.6 . 184. 88. 38.5 . 64. 154-5 indigenous peoples. 102 democratic. 265n8 authority chiefly. 268n39 constitutionalism.8 2 . 7 7 . 106. 9 7 . 102. Angela. 6 1 . 2 5 1 . 70. 64.4 6 . 2 6 6 n l 6 history. 156. 71. 81. 216-18. 12.1 8 . 280n26 model of multiculturalism in. 7 8 . 8. 108-9.9 belonging. 52. 14. 101-3. 8 0 . 32. 141. 83.2 . 120 Bern. 128-9. 158 land. 107.5 . 7 . 7 4 . 167. 77. 157. 234-6 revolution. 278 Bhabha. Bain. 2 1 6 . 47. 80 Asch. 1.4 . 188 Brennan. 200. 155-6.1 0 0 . 222. 77. 7. 169. 251-4 cultural. 264n38. 202. 14. 4 1 . 2 4 7 . 120. 102. 8 6 . 2 3 8 . 229. 261n6. 6. 93. 157 property. 173-4. 54. 104. 94 legal. 128-9. 265n8 legal. 9 0 . Walter.9 . 279nl9 see also African American blood quantum. 12. 14. 8 6 . 128.3 see also Canada. 256 governmental.1 . 148. 235-6.4 . 6 2 . 78. 152. 253. 152-61. 32. 279n20 Borrows. 3. 97. 275 Beitz. 8. 278n8. 153-4. 6 0 . 120-1 anthropology. Justice.4 . 90. 219. 4 1 .5 . 175. 277. 179 Barriero. 9 1 . 102. 9 9 . 11. 71.7 0 institutions. 89. 87. 37. 270n51 society. 164. 3. 277n4 Ballara.7 political. 5 3 . 80 culture. 8 5 . Samir.8 0 . 268n38 see also New Zealand apology. 2 6 9 . 262n20. 77. 8 1 . 16.3 0 . 265n8. 142-3 band councils (Can. 26. 268n39 law. 9 3 . 104. Benedict 120-1 theory of nationalism. 100. 80 republican movement. 219 colonisation. 15. 219. 6.246. 38. 128-9. 16. 247 tribal. 2 9 . 179. 10.7 .1 . 13-14. 108 territorial. 167 identity. 186-7 Amin.2 . 4 1 . 128.4 .1 . 7 6 . 12.7 . 240 Basques. 76-7. 41. 7 7 . Jose. 127. 191. 107. 118. 8 0 . 61.8 0 . 191. Elsdon. 199. 229-30. 8. 142 bi-culturalism. 13. sovereignty. 2 7 9 n l 6 autonomy. 38. 3 4 . Manuhuia. 220.306 INDEX final. 257. 153-61. 77. 27. 1. 265. 138-9. 235. 86. 150 authoritarianism. 4 . 170. 73 political system. 169-70. 6 0 . 262n21. 217-18. 5 5 .2 . 223. 196. 69.5 . 80. 221.8 . J. 16. 235. 114-15. 6 2 . 15-16. 272n6 Aotearoa. 60. 203 . 60. 27. 2 2 8 . 2 5 3 . 236. 88. 7 3 . 64.1 0 0 . 9 3 . 173-6. 92. 104. 12.3 0 . 233. 101. 167. 102. 261 assimilation. 32. Charles. 147-8 becoming. 281n3 political. 9 8 . 270 Australia colonialism. 45. 247 sovereign. 2 4 8 . 25. 241.4 . 55. 94. 155. 281n3 public. 2 3 2 . 9 8 . Michael. 225. 278n8 Attwood.3 . 2 7 9 n l 6 Baudrillard. 271 n4. 131-4. 247 governmental. 152.

122. 39. 10.9 . 250-1 Cartenz. 5 3 . 234. 2 6 2 n l 5 government. 42. 59. 10-11. 2 0 0 . 153 Catalonia. 34.2 Cayuga people. 1. Paul. 38. 2 2 5 .1 . 278n8 differentiated. 2 2 9 . 98 government. 29. 228. postcolonising society colonised peoples. 2 3 8 . 240. 133. 41. 167. 2 3 8 . 72 Chartrand. 26. 221.5 . 153. 1 9 6 . 57. 50. 262nl7 Bromwich. 121. 158 settlers. 118 expansion. 124. 1.2 0 . 43. 166 government. 31 rights. 57 societies. 227. 45. 2 7 1 n l constitution. 67 settler d o m i n i o n . 12. 160. 64. 153. 45. 240. 2 2 1 . 199. 191. 224. 25.4 6 legacy. 89. 9 5 . 114. 2 5 6 . 245. 2 6 1 n I 2 empire. 9 1 .7 ideal. 51. 10. 239. 143. 185-7 citizen. Joseph. 25. 103.225 federalism.2 Christianity. 95. 128.4 0 .9 . 278n8 Coleman. 147. 4 8 . 29. 21. 113. 159. 244 ideologies. political systems.9 see also decolonisation. 8. 219 settler society. 223. 107.5 0 . 43. 229. 66. 97. 244 colonists. 195 civilisation. Charlie. 2 1 9 . 5 3 . 186.9 . 21. 280 Brubaker. 219. 227n3. 170. 2 1 8 .3 minority nationalism. 44. 138.9 . 56.8 . 56 see also membership civil disobedience. 94. 25. 196.9 . 2 1 9 First Nations. 107. 159 interaction. 240 Chaplin. 34. AG BC (1973). 118. 46. 43 law.8 domination. Robert. 5 0 . 219 society. 43. 185-9. 41. 41. 3 7 . 117 individual.8 . 239. 20-1 see also postcolonialism colonisation.5 .8 Carens. 10. 6. 6. 9 1 .2 0 . William.4 9 . 4 . 118 courts. 2 3 9 . 91. 72 law. 113-16. 4 5 . 41. 219. 49. 4 3 . 3 7 . 2 7 . 244 British Columbia. 2 5 5 . 97. 91. 249. 278n8 Britain colonial rule. Peter. 126. 58. 118-21.9 . 127 Canassteago. 2 7 9 n l 6 society. 114. 8. 115. 72 Canada aboriginal peoples. 12. 97. 7 2 . David. 4 7 . 41. 5 4 . 107. 107. 29. 271n4 history. 167. 107.11 sovereignty. 239. 113. 1 2 . 153. 12. 3 9 . 14. 12. 203. 183. 2 5 1 . 2. 4 8 . 92. 124-6.).1 3 . 1. 2 4 2 . 1. 21. 235.5 . 38. 157. 52. 155. 5. 58 neocolonial approach. 109.3 crown. 2 1 9 . 133 Charlottetown Accord (Can. 100 territories. 113-16. 41. 117 non-colonial relationship.6 . 40. 254. 258 . 18-19. 1 6 1 . 17. 117.INDEX Bretons. 5 6 .9 .5 .6 . 245. 3 8 . 239. 124. 2 3 1 . 6 4 . 53. 2 3 7 . 2 1 9 . 31.6 . 143. 72. 92 states. 45. 41. 168 indigenous. 4 3 . 50. 31. 147. 265n5 rule. 113-15. 172 307 citizenship. 157.9 . 246 see also postcolonial colonialism. 47. 241. 219.6 . 35. 54. 142 Calderv. 2 7 . 126-8. 12. 12.2 4 . 68. 5 4 . 126. 2 2 0 . 92. 237-8 native elite. 216. 25. 271 n2 consequences of. 3 7 . 245. 116. 231 nationalism. 219 jurisprudence. 175. 97. 91. 185. 197. 56. 37. 5 8 .1 multiculturalism. 137. 128. 5 0 . 44. 123-4. 123. 2. 92 colonial control. 158.1 . 247 internal. 12.4 . 38. 2. 95.Jan.6 . 89. Buck. 39. 50. 115. 153. 193. 261 n 13.2 0 . 54. 41. 134. 230. 126 rights.2 power. 229.2 .9 . 47. 257 war. 3. 242 capitalism. 14 system.

63.5 . 124-5 genocide. 7. 162. 19. 2 3 1 . 68. 123 difference. 4. 266. 184 boundaries. 109. 127. 66. 193. 268n39 Canadian.1 3 pluralism. 123. 66. 166. 157. 253. 203. 90. 1 1 6 colonists/colonisers. 2 1 3 .). 12. 163. 191.4 . 167. 73. 3. 160 theory. 35. 166-7. 136 autonomy. 69. 17. 66. 7 3 . 258 British. 41. 244.1 . 4 5 . 242. 17-18. 29. 214. 273 cultural accommodation. 77 membership. 251 property.4 0 . 3 9 . 205. 97. 9. 15. 265n8. 41. 12. 9 7 . 172. 153.308 INDEX Australian. Walker. 158. 30. 2 3 1 . 228. 199. William. 2 1 7 . 90. 244 European. 4 . 80. 79.7 . 6-7.5 0 . 55. 115. 245 . 127-8. 123. 25. 3 0 . 198 practices. 13. 79. 75. 49. 220. 75. 219. 43. 118. 2 4 0 . 247 belonging. 170. 17. 103.C. 91. 218.1 .8 .3 . 231. 279 symbols. 2 1 7 . 8. 257 democracy. 9 0 . 2 4 0 . 223 consent. 6. 155.4 High Court of Australia. 13. 171. 45.7 . 5 2 . 19. 193. 239 diversity. 10. 148. 125-6. 34. 3 . 12. 106. 82. 172 structures.2 .5 0 . 9 7 . 252 Cross. 227 courts. 179. 251 relativism. 198 intercultural dialogue. 43. 271 cosmopolitanism. 170. 2 1 2 . 21. 189-90. 7. 263n29 Native Land Court (NZ). 67. 77. 25. 8 2 .7 . 4 8 . 67. 163. 156-8. 1-2. 171. 19. 208. 2 5 7 constructive e n g a g e m e n t . 42. 4 4 . 89. 167. 48. 5 4 .. 157.8 . 225. 74. 114. 157 International Court of Justice (1JC). 160. 120. 72. 72 World Court. 74. 157. 160 Canadian. 34. 268n37 constitutional change. 87. 246. 51. 41. of descent. 161. 103. 2 4 1 . 6 0 .9 . 208. 60. 2 1 2 . 2 0 .1 . 257 interests. 3. 120. 152. 219. 202. 14-15. 7 7 . 9 6 . 268. 117. 6 2 .9 .4 . 4 5 . 11. 6. 170. 57. 212. 278 Connor. 80. 142. 5 3 . 14-15. 106.4 . 88. 77. 56. 52. 146 Supreme Court of Canada. 160-1 recognition. 92. 220. 47. 91. 78. 265n8. 4. 44. 8 significance. 2 4 3 . 18.8 2 constitutionalism. 167.1 4 . 38. 244 c o m m o n law see law community. 44 norms. 257. 64. 72 New Zealand. 103 conventions. 240. 27. 166. 99. 18. 202. 226 groups. 5 6 . 222. compensation. 237. 161. 19. 145-6 New Zealand High Court. 4 8 . 60. 95. 80. 120 bi-. 78. 169-72. 92. 113. 4 5 . 101. 257 Coombs. 152. 18 principles. 240-1 constitution. 238. 169. 170. 2 6 6 n l 5 . 19 survival.9 .9 . 142 New Zealand Court of Appeal.9 2 . 227. David. 71.1 1 . 152. 108. 7 3 .1 3 exchange. 169. 226 Australian. 242 systems. 268n39 US (American). 97. 74. 37. 103 conventions.6 political 8 9 . 268n39 theory. 46. 36. 60. 2 0 5 . 96. 8. 77 analysis.1 8 ideal of.1 . 62.4 New Zealand. 192. 7 0 . 106 Federal Court of Australia.2 Council of Europe. 9 . 7-8. 7. 240 Connolly. 139 imagined. 4. 108. 4. 154. 107. 39. 4. 251 mono-. 169-71 rights. H. 2 6 1 n l 2 consensus. 104. 9. 144 criticism. 229 minority. 113-14. 166. 101-4 Constitution Act 1982 (Can. 12. 152-3. 97 rights. 171. confederation.1 8 . 12. 170 identity. 9.

2 1 4 . 153. 167. 93.5 . 236. 240. 142. 2 2 9 . 1. 18. 88.1 2 . 78. 55 Declaration o n the Rights of Indigenous Peoples ( U N ) . 5. 122. 215 sovereignty. 9.8 . 4. 2 4 1 . 192 nation. 47. 1960 ( U N ) . 18. 114. 193 participation.1 . 16. 4. 2. 193 public. B. 214 minority. 155-61. 186-7. 226. 169. 3 . 251. 143. 178-9 and justice. 2 0 2 . 224. 242. 17. 226 traditional. 2 1 0 . 245.1 1 . 161 custom. 215 two-dimensional. 198 and politics. 169. 135. 148. 179. 97 conceptual. 120. 2 1 3 . 75. 146-7. 246. 88. 4. 1 7 0 . 74. 1 0 . 168. 128. 227.1 1 . 86. 20. 18. 204. 2 0 3 .1 4 . 151 Delgamuukw v. 193-5. 213 democratic civilisation. 101-2. 107-8. 6 . 191. 237. 9 . 72. 2 0 2 . 226. 193. 2 1 1 . 146-8 and belonging. 272n5 dominant. 2 5 4 . 44 decentred. 1993 ( U N ) . 258 just. 2 1 1 . 204. 51.5 . 8 2 . 116. 19. 4 1 . 2 3 5 and minorities. 251 societal.1 9 . 256 politics. 247. 164. 1 9 0 . 238. 129 differance. 28 decolonisation. 16. 179.4 . 256. 170. 151 difference atemporal.3 0 native. 10. 18. 10. 188. 198. 82. 58. 237. 234 Derrida. 4. 56. 163. 2 2 4 . 196 cultures contemporary. 185. 2 5 3 . 42. 168. 179 indigenous. 186. 268n39 means. 186. 170. 2 0 0 . 227. 212. 199-204. 2 3 4 . 164. 15.1 1 . 2 1 2 . 188 polity.3 . 116. (1997). 98 cultural. 129.56. 170. 198 and nationhood. 2 1 1 . 122.9 . 8 1 . 73. 272n6 . 6-7. 113 with the state. 178 and liberalism. 227. 150. Jacques. 107. 188. 4. 6 2 . 114. 15-16. 26. 1 1 8 . 1 9 0 . 42. 188. 4 8 . 265n5 Declaration o n the Granting of I n d e p e n d e n c e to Colonial Countries and Peoples. 215 and indigenous people. 2 9 . 45.C. 278n6 constitutional.INDEX traditions. 20. 179. 18. 173. 224. 209. 238.1 1 . Religious and Linguistic Minorities.8 government. 139. 197. 8. 194 see also multiculturalism cultural diversity and democracy. 88.8 deliberative. 231 national. 78. 167 liberal. 237 ideal of. 96. 256 American. 94. 1 9 7 . 114. 183. 193. 207. 219-20.1 5 . 165-6. 80. 54. 2 1 0 . 140. 227. 199-200. 15. 203 electoral. 2. 122. 203.1 .3 0 . 241 ideal. 199. 183-4. 17-18. 7 4 . 107. 226. 170. 18. 158-9.1 . 212-13 and indigenous peoples.8 . 2 0 4 . 118.1 . 161.6 . 19. 100. 209 institutions. 122. 245 contestatory. 258 cultural heritage. 154-5.4 . 200.7 hybrid.1 6 . 2 6 1 n l 0 309 democracy. 122-6. 196 federalism. 11. 224. 191. 2 1 . 2 0 3 . 114. 203 state. 156 war. 18-19. 2 6 4 n 4 0 Declaration o n the Rights of Persons Belonging to National or Ethnic. 5 4 . 239. 170. 114. 26.1 1 . 33. 194. 245 political. 124-5. 202.229 culture.3 . 94. 244. 277n3 majority. 147-8 dialogue intercultural. 5. 4. 186. 146. 234 multicultural. 28. 92.6 . 2 4 4 society. 245 democratisation. 118. 151-7. 203. 2 5 3 . 2 0 9 . 1 9 0 .1 4 theory. 7.1 . 116. 123. 188. 172-3. 1 9 0 . 226 Declaration of the United Tribes (NZ). 210. 147 custodianship. 116. 215 global.3 . 212.

263n24 principle of. 216. 219 decentred. 251 tradition of political thought.5 . 269. 242. 119-20 immigrants. 142. 197 Protestant work. 53. 125. 18. 159. 2 5 7 . 157. 41. 10. 206 of nations. 9 1 . 2 3 4 . 69 education.6 extinguishment of rights. 227. 202. 179 multiple. 13. 53 federation. 244 settlers.5 . 18. 119-20 Europe colonisation. 171. 2 5 6 . 151. 4 . 2. 179 internal. 44. 30 nations. 202. 239.2 of sovereign status. 241. 9 1 . 147 working through. 18. 27. 197. 43.8 and indigenous people.4 . 210.8 diverse. 238. 269 Dodds. 1. 153 form of nationhood. 246 perception of indigenous people. 2 1 9 . 201. 242. 165. 147-50. 76. 63. 89. 5 2 . 141. 18. 220 institutions. 18. 107. 168. 240. 275n8 of rights. 1 9 0 . 56. 59 difference (contd. 2 3 4 . Daniel. 47. 8. 263n24 of peoples. 221. 18. 50 of title.1 5 of electoral standing. 5 1 .6 see also postethnic ethnicity. 225. 210. 157 of indigenous people. 116. 186.1 .4 federalism in Australia. 14-17. 222. 183. 97. 222. 48. 274n6. Mick. 2 1 2 .2 . 4 0 . 9 5 . 98. 36 Union. 156. 220. 119 structures of. 108. 191. 258 Australian. 122. 225 in Canada. 38.310 INDEX ethnic conflict.8 democratic. 220. 2 4 5 . 97. 257 societies. 2 6 2 n l 5 . 2 5 6 . 79. 222.1 . 2 5 5 . 157 D o d s o n . 50. 239.1 6 Dodson. 229 minorities. 214. 118. 190-5. 253. 5 3 . 278n5 ethos of engagement. 44. 280n25 treaty-. 216-17. 7. 4 1 . 171-2. 95 of rights. 52. 2 4 1 . 61. 149. 3 7 . 10. 95. 107. 9 2 . 244. 227.7 . 187. 56. 169-70. 128. 4 6 . 46. 280n22 ethnography. 2. 1 5 . 5 6 . 253. 231. 236 nationalism.1 4 . 35. 168. 4 0 . 252. 83 treaties. 91 strategies of. 194 politics of. 243 multinational. 145-7. 43.7 . Mason.8 and federacy. 12. 167 of Britain. 2 5 6 . 137-9. 170.3 . Brendan.3 . 246.4 . 154. 7. 173. 219.4 . 225 Iroquois. 2 1 3 . 50. 2 7 5 n l 6 of interests.7 . 19. 143. 202. 2 6 6 n l 6 diversity see cultural diversity Dixon. 73. 210. 238. 244. 246. 165.) identity and. Susan. 46. 280n22 relations.6 Eastern.6 groups. 4. 225 equality of citizens. 2 6 6 n l 6 dispossession. Owen. 201. 170 theorising. 215 of governmental treatment. 154. 56. 246 institutional. immigrant. 276 Elazar. 101-2 Edgeworth. 52. 184. 2 1 6 . 116. 57 Durie. 39. 226. 27. 2 4 1 . 5. 64. 224. Patrick. 6 6 . 253. 108 differentiation of p e o p l e / g r o u p s . 221. 143 of contestatory standing. 138-40. 41. 245 derived societies. 2 0 3 .4 . 4 4 . 19.2 . 191. 11. 170 discrimination. 93. 218. 241. 151. 156-7. 48 descent. 195.1 . 212-14 of individuals. 237. 147-9 recognition of. 122. 236. 53.7 . 205. 199. 2 0 1 . 6.2 0 . 133-4. 10. 5 2 . 97. 273. 168. 139-40. 225 global. 33. 227. 3. 164-5. 222. 43. 2 3 4 . 270 domination colonial. 244—5 jurisprudence. 86. 150.8 . 95. 247 culture. 229. 198 pluralised. 10. 138-9.6 . 2 8 1 n l 6 political. 209-10.

1 9 6 . 2. 31.6 . 246-7. 245 Grand Council of the (Iroquois) Confederacy.6 . 221. Augie. 163-4. 100. 3 8 .2 . 2 4 5 . 96. 132. 18-19. Fleras. 154. 64.2 . 262. 2 4 1 . 281n6 Grinde. 142-3. 2. 236. 58-9 United States.2 government Australian. 95. 200.8 . 4. 245 internal. 222. 121-2.9 principle of. 246 language rights. 13. 225 institutions. 1 2 . 49. 38. Jurgen. 229.5 0 . 62.7 . 158. 173. 211 hapu (tribes). 54. 258 settler. 232. 2 1 6 . 119-21 gender. 42 Iroquois. 91. 208. 3 8 . 245 legislation.2 0 . 128.219 federal. 2 3 5 . 224. 237. 98. 2 2 5 .4 1 .5 New Zealand. 45. 240-1 Great Law of Peace. 42. 235. 252 Franklin. 228. 178 Canadian. 262 Glazer. 5 1 . 2 4 3 .8 struggles of. 72. 237 Glenelg. 2 7 6 n l Gitxsan people.4 .4 Gummow.4 6 injustice.1 . 189-91 self-. 256 indigenous. 243. 131. 2 5 3 . 96. 186. 2 7 9 n l 2 settlers. 2 4 0 . 253. 2 2 7 . 203. 49. 127. 60. David. 127. 4 5 . 245 Sll global.2 . 28. 19-20. 13.1 . 2 5 3 . N. 237. 2 5 1 . 25. 52. 128. 6-7. 278n8.4 Gellner. 203. 178. Justice. 25.INDEX and confederacy. 155 health. 253 indigenous. 4 1 . 205. 38. 57 local.1 2 .2 . 163-4. Mark.4 . 173. 46. 217. 272. 242. 2 5 3 . 214. 123. 5 0 . Benjamin. 12. 1. 98. 42 struggles for.6 . 244 speaking. Ernest 119-21 theory of nationalism. 58.6 multination. 36. 4 1 . 205. 261. 253 France and British war. 258 Indian. 20. 27. 33. 25. 1 9 0 . 33. 88.9 colonial. 43. 275nl5 Haudenosaunee (People of the L o n g h o u s e ) . 222. 223 and minority nationalism. 175. 16 Held. 212 democratic. 6 3 . 227. 2 3 1 . 80. 170. 17. 2. 126-7 techniques of. 122. 92.). 199. 61.2 . 4 0 . 2 8 . 19. 255 of property. 253-4 individual. 178. 4 8 . 242. 281n6 European models of. Donald. 47 Frug. 42. 93. 44. 246. 25.3 feminism. Bill. Martin. 237. 102-3. 103-5. 100. 192. 72. 11-14. 128. 36. 6 . 1 7 2 . 127.4 1 . 4 8 . 170. 140-1. 199-201. 18-20. 168. 173. 8. 9. 2 7 3 n l 2 . 56. 19. 31. 77. 121-2 structures of.. Lord. 4 3 Iroquois. 30. 2 1 1 . 188. 6-9. 30. 237. 230.9 . 242. 18. 7 1 . 242. 90. 241. 2 5 3 . 166-7. 2 3 8 .8 . 183-4. 5 0 . 38. 101. 19. Bob. 42. 5 8 . 2 4 0 . 210.8 . 38. 244 collective. 137 state.4 . 116. 198 representative. 267 Habermas. 150 postcolonial. 209 legitimacy of. 196. 229 see also confederation First Nations (Can. 50. 240. 39. 166. 2 4 2 . 91. 170. Flemish. 225. 2 6 . 2.8 . 53. 9 5 control of. 2 1 9 . 87. 173-4. 1 7 7 . 3 9 . 81. 260 historical consciousness.8 . 241. 2 1 9 . 159 Hayden. 108. Heidegger. 173-4. 208. 156 Commonwealth. 210-11 decision-making. 26. 173-4 state. 246. 256 heritage see cultural heritage Hickford. 230. 101. 107. 68.150. 87. Gerald. 2 0 4 . 278n8 freedom. 118-19. 149-50. 243 global. 3 1 . 217. 49. 219 provincial. 7. 50.7 . 5 2 . 159. 2 2 4 .2 .6 . 253-4 liberal. 45. 217. 262n22 Hawke. 144-5.4 0 . 43. 188 of self-determination.

10. 126. 11. 139. 147. 236 Canadian. 231-5. 44. 52. 189-90. 148. 179 of nationalism. 272n6 and difference. 2 4 5 . 1-2. 161 political. 16. 199. 26. 7 8 . 237. 138. 167. 244 lands. 189. 158-9 H o b s o n . 165. 122. 203. 238 indigenous conceptions of. 125. 177-8 colonial. 10. 277n3 of indigenous-state relations. 2 4 3 . 30. 98. 4 ) . 16. 19. 114. 126-7 nations. 35. David. Stephen. 21. 121.9 concepts of. 2 4 3 property. 139. 242 . 219. 219. 127. 237. 171 of the idea of sovereignty. 233 ethnicity. 3 7 .4 . 127-9. 30—1. 115. 179 cultural. 2 3 8 . 3 1 . 217. 165 of internal colonisation. 228. 3 3 . 15-16. 245 as hybrid.5 . 263n24 of violence. 179 Mohawk. 238-9 pakeha. 137. 155. 27. 222. 2 6 . 113-14. 274n4 Indian. 26.4 personal. 238. 88. 167. 92. 143.3 . 218. 11.1 . 121. 240 and settlers. 20. 122. 33. 263n24 people. 9 . 147. 60. 138-40. 195. 199. 2 4 0 . 243. 134-5 imagery. 149-51. 43 of national minorities. 2 5 8 of indigenous title.1 0 . 42. 11. 117-18 222 of indigenous peoples. 1 1 5 . 14-15. 2 3 0 . 108. 6 0 . 146. 243. 116. 34. 152. 218. 127 community. 27. 17. 239.1 . 9 1 .9 . 280 Holmes. 164-5. 135 self-government. 149-50. 168.2 . INDEX identity American national. 127-8. J o h n . 5. 32. 2 2 8 . 134-5. 89. 119. 120. 178-9. 7 . 240 governance. 185. 216. 50. 3. 2 3 8 . 26. 124-5. 269 Hughes. 7 8 . 233. 15. 3 3 . 147-50 group. 164.4 . 113.9 . 116. 116. J. 52. 3. 2 4 3 . 183-4. 121-2 New Zealand. 220 national. 178 concept of. 3. 278n5 immigration.. 219.1 0 . 184. 3 0 . 120. 20. Governor. 9 1 . 125-7. 66. 219. 161 Black. 12. 115.6 . 115-17. 128 rights. 142-3. 238. 2 8 . 126.2 0 . 108. 198. 30 of indigenous-settler relations. 17. 245 Australian. 119. 269n46 Aboriginal. 189-90 immigrant. 14-15. 228. 185 reserves. 126-7. 10. 3 1 . 128. 30-5 oral. 280 Huron people. 219 culture. 231. 45. 39. 17. 246 identity.8 . 32.5 of treaties. 3 3 . 11. 14. 9 0 . 147 of indigenous rights. 245 Australian national. 27. 2 7 7 n l collective. 211 Howard. 113. 11. 258 indigenous conception of. 171. 241.5 . 107. 126. 242. 14.3 stories as. 220 indigenous. 170 minority national. 179.2 . 116-17. 229.9 Hollinger. 147 history black armband theory of.8 0 . 198 of Western political thought.6 groups. 217. 140-3. 242. 2 2 4 . 117.9 . 125-6.8 of n a t i o n h o o d .2 1 . 14-17. 127. 26. 3 3 . 129-32. 271nl Maori. 2 4 0 .312 histories of America. 2 7 5 n l 6 construction. 229. 257 of indigenous sovereignty . 3 2 . 274n4 hybrid. 3 4 . 2 7 . 246. 115-7.9 . 129. 78. 224-7. 119. 30. 244 of dispossession. 7 9 .4 . 1 4 0 . 10. 176. 108. 9 . 18. 194. 250-1 Indian American. 37. 2 1 8 . 15. 5. 170. 128-9. 267n30 nationhood. 231 multiple. 2 1 8 . 113. 170. 127. 127-9. 179 individual. 2 7 4 n l Maori. 237.7 . 197.1 . 246 politics. 116 politics of.1 .

31. 126. 155. 15-16. 228.6 systems of.4 2 .5 0 . 88. 80. 73. 167.6 .4 .8 . 137. 2. 61. 118. 47. 263n24 tribes. 161 culture. 81. 6 7 . 146.6 . 100-1. 91. 8 9 . 65 313 minority. 3 6 . 170.4 . 17. 61-6.2 7 . 41. 161 customs. 107. 2 7 3 n l l title. 59. 137 recognition of. 152. 78. 89. 95. 12-15. 68. 245 Australians. 151. 38. 62 title. 58. 102 as historical. 42. 6 2 . 146. 42. 81. 18-19. 156.9 . 255 group-specific rights. 70. 246 societies.258 self-government. 64. 3. 9. 81. 29. 4 3 . 151-5. 45 treaties.7 . 153-4 authenticity. 4 0 . 8. 148. 29. 214 nationhood.4 . 164-5. 166. 137. 78.7 0 . 67. 175. 109 territories.8 .1 . 97. 87. 74. 9 2 . 7. 131. 171-3. 137. 147-9. 2 . 95. 6 0 . 225. 179 lands. 6 4 . 38. 17.2 identity. 45.6 development. 116.1 1 . 131. 91. 135-6. 8 4 .7 . 68. 164. 250.88-91.9 0 . 2 5 1 . 53. 70.6 . 9 0 . 236 see also indigenous Indian Act.8 . 7 0 . 7 3 . 159-65.83.1 1 . 6 3 .5 . 76.3 . 51 institutional change. 146. 7 3 . 163-4. 100-1. 2 2 6 self-determination. 9 1 . 1-20. 9. 137-41. 254 recognition. 138. 1 . 2 5 1 . 20. 73. 126. 172. 9.1 .2 . 88 reform. 7 0 . 47. 52. 224 law. 264n5 traditions. 8 5 .7 . 1 0 . 151. 8 3 . 252. 102 108. 40. 7.8 .8 .5 . 118.6 .4 . 152. 8 . 5 4 .7 . 16. 4 9 . 4. 18. 114.). 233. 138. 8 9 . 84-5 peoples. 5 2 . 74. 74.9 0 . 68. 1 0 . 91.3 . 13. 113-18. 62. 56. 9. 252 resistance. 85-6.3 .6 0 .7 . 50. 9 3 . 239. 257. 8 9 .4 1 . 247 communities. 25-6. 114-17. 67. 108. 117. 8 1 . 1985 (Can. 114-17. 44. 57. 18. 74. 167. 121 status. 11. 8 2 . 79.6 . 61. 7-8.9 1 . 272n8. 2 5 . 179 land use. 146. 1. 4 3 .4 . 167. 4. 166. 9. 163-5.6 . 89. 2 7 3 n l l indigeneity. 89. 4 3 . 9 3 .8 . 97. 59. 6 3 . 107.6 . 8 . 170-2. 171-2.4 . 19. 140. 175. 179 institutions.3 . 143. 5. 107 indigenous art. 251-2. 219 . 145. 6 0 . 171. 214 and non-indigenous relations. 179 nations.INDEX and the state. 15. 15-16. 240. 1 7 1 . 229 conception of justice. 228. 44. 9 3 . 7 0 . 153. 97. 8 0 . 229-30. 5 6 . 141. 89. 179. 17-20.1 1 . 73.1 . 38. 95.3 . 145 interests. 4. 1 7 0 . 169. 1 5 8 . 271 n4. 8 4 . 122.3 . 5 9 . 2. 7 6 . 14. 72. 19. 89. 103.6 . 19.4 . 4 5 . 9 1 . 6 9 . 11. 8 2 . 9 3 . 20. 51 politics. 68. 175.3 . 94. 137. 78. 9 1 . 26. 2 4 5 . 196. 43.3 . 76. 138-40 politics of. 77 legal traditions. 108. 84. 8 2 . 7. 172.8 . 86 governance. 146.8 claims. 7 7 . 3 . 46. 237. 163-4. 252 and state relations. 253.7 8 . 126-9. 5 1 .2 . 237 innovation. 81. 6 6 . 239. 62. 3 7 . 160 women.1 . 169 word warriors. 163. 199. 157.9 . 10-11. 67. 50. 6 2 . 8 9 . 84. 170. 51 governments. 5 4 . 225. 1-2. 157. 50. 107-8. 6 3 . 107-8. 36. 2 1 6 . 8 3 . 19 cultural property. 56. 252 and settler relations. 1 5 4 . 67. 102. 59 rights. 78.224 land rights. 64.4 . 71. 8 5 . 88 language. 40. 78. 6 3 . 95. 11. 41. 1 3 7 .8 . 9 . 2 6 8 n 3 2 sovereignty. 150 as discourse.4 . 2 5 5 . 72.9 0 . 8 0 . 108. 83. 9 1 . 8 2 . 15. 146.8 . 122. 86. 3 7 .1 . 237. 197. 164-5. 171. 1. 83.5 .5 . 40 groups. 164-5. 247. 3. 107.1 . 1 5 1 . 126. 1 3 7 .6 . 3 9 . 252 design.5 Americans. 36-47. 5 0 . 61. 2 . 141. 174-9. 98. 65. 85. 167. 4 9 . 160-1 cultures. 134. 277n3 political theory. 15. 51. 8 9 . 1 6 1 . 74.

Sir Hugh. 68. 176-7 claims. 102. 12 Canadian. 16. 74. 114-15.4 . 173-4. 140-8. 164-6. 281nl0 egalitarian. 39. 171-4. 241. 127. 2 7 8 n l 0 ironies. 196 crown. 165. 118 people. 9 8 . 52. 167. 237. 102-3. 16. 85. 18. 64. Michael. 125. 19.1 0 0 . 125-9. 102. 71. 2 3 5 . 166. 161. 176. 135-6. 64. 176-7 control over.7 .. 83. 30. 69. 178-9. 106. 199-200. 76. 121.5 governance. 2 0 5 .273nll nationalism. 202. 42.1 2 community. 9. 2 4 3 . 19 Kahnawake. 209. 89. 1. 138. 72 European. 113. Martin. 271n4 Iroquois Confederacy. 170-1. 214. 271n4 community. 10. 125-6. Chandran. 123-6. 101 Kingitanga Maori. 233. 127-9. 132. 200. 85. 2 4 0 . 159 Johansen. 104. 2. 79 Kukathas. 47. 237. 205. 102. 178-9 c o m m o n . 163-6. 19-20 global. 163. 68. 2 8 . 3 1 . 173. 131. Will. 164-6. 10. 118.5 institutions. 30. 66.5 0 for indigenous peoples. 253 international. 262 land alienation. 233. 135 Kamehameha kingdom (Hawaii). 212. 17. 74. 254 influence.1 . 254. 172. 172-3 of the governed. 233 interests aboriginal. 243. 164. 157-60 kupapa Maori. 115-16. 264 Lamer. 129. 196 integration. 19. 167-8 non-Indigenous. 2 1 . 116-17. 271nl police force. 186.5 . 3 . 169. 165-6. 237. 59. 147 social service. 3. 173 Maori.8 . 9. Bruce.1 . 179 individual. 76.). 48.1 4 interface. 2 0 . 128. 2 2 4 . 87 internal colonisation see colonisation Inuit people. 73. 127. 145. 121. 157. 169-72. 103 commissioner (Aust.3 iwi people. 177 and rights. 131. 2 4 0 . 101 conceptions of. 6 6 . 114-18. 200 Kumarangk/Hindmarsh Island bridge affair. 268n32 indigenous. 128 nationhood. Chief Justice. 11. 16. 17. 272n9 Kahnawakeromon (people of Kahnawake). 205. 159. 71. 252. 25. 96 distributive. 2 1 5 group. 16. 209. 2 4 3 . 25 kawanatanga (government). 48. 5 . 241. 1 0 . 168 corrective.9 'catch-up'.2 0 . 7-8. 3 0 Australian. 90. 135-6 radical empiricism. 197-8.3 experience. 2 8 1 n l 0 theories of. 175-6. 63. 172-4. 2 1 2 . 35. 70. 4. 117. 150 Jackson. 12. 164. 61. 9 4 . 84. 124-5 James Bay Crees. 116-18. 179. 171-2. 116. 2 5 4 . 114-17. 275 -isation of Maori society. 82. 72. 2 1 1 . 85. 214. 2 1 9 . 167. 140-2. 239. 7. 29-30. 85. 188. 33. law of. 265n5 local. 126 dispossession of. 18-19.9 Kawharu. 105. 118.6 . 115. 172.2 . 83. 2 0 . 272n9.2 . 2 3 6 . 100. 165. 16. 33.4 jurisprudence. 245 n a t i o n h o o d . 95 appropriation of. 150. 7-10. 2 1 1 . 127. 135-6. 126-9. 2 3 7 . 3 1 . 64—6 rival. 179 different.9 . 164-9. 127-8. 259. 25. 2 2 1 . 133. 68.1 1 . 2 4 8 . 76.6 Krygier. 1 7 . 218. 132. 243 federation. 17. 2 4 8 . 106 Kosovo. 174. 2 4 2 . 71 Jawoyn people. 240. 38. 117. 3. 4 3 . 192. 205 in land.5 . 2 7 3 n l 3 federalism. 100 Kickingbird. Kirke. 82. 48. 125.314 INDEX justice. 176. 116.4 . 144 national. 237. 30 jus gentium (law of nations).9 . 27. 118. 74. 241. 229. 16. 241. 30 Kymlicka.6 .

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
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

INDEX
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

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

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 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

317

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
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

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

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
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

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

56.4 . 246 settlement of land. 2.8 determination. 18. 9 5 federative capacity. 9 3 . 158. 2 6 3 .213-15 representation. 19. 1990 (NZ). 179 Smith. 9 3 . 1 6 7 . 166-7. 9. 140 private. 42.4 acquisition of. 55 peoples. 173. 256.1 . 84 Australian. 251 internal and external. 126-7.3 . 49. 99. 129 treaty.2 .7 2 . 163-4. 33 government. 16. 228 2 3 1 .9 . 238. 258. 49. 44. 109. 196 cultural. 267n30 Runanga Iwi Act.1 0 .4 2 . 76 property. 123. 240. 1 8 .9 1 . 176. 251. 12-13.211. 123.). 2 5 3 . 103. 217. 14.9 . 174 Canadian. 2 1 9 . 245-6.9 .-J. 145. 115. 35. 12 equality. 76 rangatiratanga. 7 0 . 229-31 Sealord Fisheries deal. 104-6.4 . 47. 25.4 . 13-14.5 . 18. 56 self-government.1 special minority. 6. 266. 10. 108.7 . 43. 145 settler and indigenous relations. 103. 41. 118. 240.7 .4 . 170. 244.4 . 18. 92. 103 power. 80. 199-204. 8 5 . 5 3 . 214. 128.5 treaty. 52. 3 1 .2 . 168. 1 7 0 . 63.8 0 interest. 258.3 0 . 246.6 . 43. 2 4 1 . 263n24. 126. 40. 89. 5 4 . 94. 1 6 9 . 246. 49. 244 Simpson. 230.1 . 1 2 1 . 221. 38. 15-16. 132 self-determination. 143. 1 0 1 . 59. 6 3 . 65. 4 5 . 1 1 5 . 14. 48. 52.6 .261nl2 legal. C .2 remedial. 14. 30. 230. 188. 9 2 . 240. 53. 68. 117. 242 Rowley. 73. 105. 2 5 1 . 39. 38. 246 British. 2 4 7 . 87. 42.4 . 222. 174. 9 9 . 145 segregation. 8 9 . 19. 238. 1 0 0 .7 . 170. 9 . 12. 253 state. 122. 92. Sonia. 6 3 . 27. 19. 173. 2 4 7 . J. 212. Edward. 6. 71. 2 2 1 . 44. 100. 20. 199 status Indians. 18-20. 281 Salee. 264. 254. 6 . 116. 164. 72. 2 7 8 . 92.4 . 179 Smallacombe. 2 5 3 . 78. 152.7 . 72. 197. 105. 90 self. 72. 2 5 0 . 2 5 1 . 97.7 .8 . 2 2 4 .1 0 0 rule. 46. 2 7 9 . 2 2 3 .1 . 2 5 2 . Audra. 5 2 . 4 1 . 254 management. 5. 50. 57. 2 1 4 . 28.. 19. 236 Scotland. 16. 46. 18. 20. 9 2 . 321 242. 50. 2 2 6 . 49.8 1 . 142 sovereign authority. 71 nation states. 243. 244. 17. 11. 255 Rousseau.2 sovereignty. 90.7 . 14. 9 residency. 56 understanding. 197. 52. 146. 281n5 formation. 137. 320 Seneca people. 16. 161. 229 selfconsciousness. 27. 274n7 Said. 3 8 . 2. 179.1 0 2 . 251 relations between. 228. Percy. Daniel. 33.3 . 2 5 1 . 178k. 2 3 4 . 19. 114.4 treaties between. 198. 52.4 . 44.3 1 . 279n20 Royal Proclamation (1763). 9 9 . 3.6 . 240. 9 6 Sami people. 2 2 4 . 76. 78. 6 .9 . 185. 141. 5 6 . 244 European. 4 4 . 105. 81. 2.2 0 .2 . 35 sovereignty. 50 . 4 5 . 5 1 . 2 3 5 . 197. 38. 6. 272n6 societies. 25. 254 colonial. 70. 48. 257 French. 163-6. 219. 32 foreign. 2. 126. 150 welfare. 46. 175. 161 proprietary. 20. 40. 5 4 .7 . 92. 2 4 5 . 87. 240. 273nl3. 2 9 . 47. 170. 2 5 6 borders.INDEX polyethnic. 86 Royal Commission o n Aboriginal Peoples (Can. 11-13 assertion of. 2 3 1 . 141. 228. 225 Schwarz.2 . 196 see also white settler dominions settlers. 9 3 . 221.4 . 274. 220. Benjamin. 29. 219 states. 256 absolute. 28. 236. 6 5 . 274. 2 5 1 . 14. 1. 254. 54. 21. 29. 106. 115. 1 9 9 . 145.

129 capitalist.252-4. 221. 277 Statement of the Government of Canada on Indian Policy (1969). 165 Tainui people. 6 0 . 87. 167. 148-50 tino rangatiratanga. 90. 3. 14. 5 2 .4 secessionless. 9 3 . 6 2 . 53. 34 nominal. Elisabeth. 4 5 .8 Crown. 8 3 . 26. 137 Taylor. 2 0 1 . 125 institutions. 40.9 0 . 236 nation. 13-14. 15. 35. 13. 248 Canadian. 249 multicultural. 222. 247 prior and co-existing.4 establishment of.8 . 16. 8 9 . 2 2 1 .1 1 . 116-17.3 . 6 3 . 212 multination. 1 1 5 . 143 white settler. 113 Western.258 sovereignty. 226-7. 8.4 . 92. 244. (1990).8 .5 .9 .4 . 62 native. 87 New Zealand.1 4 European.4 . 25 Maori. 1 1 . 116. 9 3 . 241 statehood. 123. Alexis de. 179. 4 6 . 122 democratic. 9 1 . 188 listening. 210 post. 114. 9 1 . I. 9 . 196 Tickner. 127. 92. 12. 98-107. 62.1 0 3 . 129 inherent. 9 3 . 52. 106 Mohawk.4 indigenous. 93—4 popular (of the p e o p l e ) . 89.3 . 225-7. 238. 25 government.6 . 173. 25. 9. 56. Robert. 135. 14. 89. 28.1 0 . 101-3. 7. 51. 248 reason of. 125. 108. 18. 40. 103-4.3 . 170. 238. 117 . 42. 106 tangata whenua (people of the land). 101 de-facto. 14. 222. 5 2 .4 . 196 sovereign. 224. 156. 198 settler. 9 2 . 252 First Nations. 118 Australian. 90.3 . 183. 247. 108.8 . 32. 160 authority. 72. 2 4 6 . 14. 252-7 nationalism. 193 theories of. 45.8 liberal. 144-5. 251 mediated. 72. 125-6. 8 3 . 184-7. 45. 2 1 3 .3 . 121. 55. 73. 14. 19. 121. 1 9 . 247-9. 19 internal challenges to.322 sovereignty (contd.8 . 246 federal. 125-6. 76. 20. Charles. 16. 12. 252 transfer of. 66 communal. 27. Apirana. 11.8 land. 9 8 . 255 and indigenous relations. 2 8 . 1 0 .8 . 103-4. 173. 2 7 . 54. 17 power. 2 3 7 . 247 functional. 109 Sparrow v. 172.1 0 . 13 tribal. 116. 25. 119. 80. 53. 13. 3. 32 external challenges to. 164. 108-9. Te Whanau o Waipareira Trust. 29. 2 5 . 54 c o n c e p t of. 60. 31 rhizomatic. 193. R. state American.7 8 . 68. 108 shared. 67 Tocqueville. 16. 2 4 7 . 53 colonial. 12. 252 territorial. 18. 244. 41 stolen generations. 46. 108 Taylor. 154. 230 New Zealand. 158 Tooker. 18. 245 state of nature. 46. 3. 225 soft. 14. 108. 65. 5 4 .9 .7 0 . 140 see also rangatiratanga title aboriginal.) co-existing. 157.9 . 196-8 colonial. 265n5 radical. 97. 190 stateless nations. 79. 244 treaty. 3. 6-8. 92. 16. 108. 6 6 . 89. 229. 222. 1 9 0 . 73 indigenous. 14. 18. 54. 64 INDEX membership.1 2 . 69. 57. 56. 184. 9 3 . 118. 238. 12. 69 traditional. 9 1 . 29 postcolonial. 28. 108-9. 108-9. 93. 92. 251 state. 6 5 . 2 8 0 terra nullius. 53. 12. 9 . 166-9. 14. 2 4 7 .

263n23 whanau (family).5 . 257 Ward\. 1 9 . 146 Treaty of Waitangi Fisheries Commission (Te O h u Kaimoana. 13. Victoria (1988). 280n25 indigenous peoples. 18. 2. 105. 43. 9 . 7 3 . 100. 227 Western Sahara.. 2 4 0 . 255 Welsh. 119. 39. 15-16. 257. 171. 142. 143-5.6 . 221. Dale. 6 5 political theory/thought. 141. 252. 133 Williams. 2 7 5 n l 3 see also Treaty of Waitangi Waldron. 37 principles. 240 women's business. 13.7 0 . 240 United Nations ( U N ) . 84 Young. Jeremy. 157. 170. I. 127-8. 5 9 .3 . TOKM). 260 Tuscarora people. 1985 (NZ). 7. 19. 255-6 Declaration o n the Rights of Indigenous Peoples. 145 Treaty of Waitangi (NZ). 103. 246.3 minority nationalism.. 7-8. 226. Jeremy. 245 legal system. 237.7 . 152. 2 1 6 . 141. 143-5. 222. 57. 176. 103. 2 4 1 . 6 5 . 51 Yorta Yortas. 5 4 . 117. 229. 52. 5 1 .7 . 264 . 3 0 . 4 . 90. 253 influence. 149-50 process. 56. 238 VanderPeetv.2 . 7 3 negotiations. 141. 221.2 . 237. 243.4 .3 5 . 115. 7 1 .5 . 245. 2 7 9 n l 3 United States (US) government. 7 7 . Advisory opinion o n . 173 Williams.4 . 244. ft (1996). 49. 158. 2 2 8 . 103 Treaty of Waitangi Amendment Act. 11. 13-14. 13-14.1 0 Walker.5 . 1975 (IJC). Western Australia (1998). 12. 105. 11. 1975 (NZ). 4. 278n8 western democracies. 2 4 2 . 269 welfare. 239 Webber. 243 Tully. 237. 39.1 partnership. James. 223. 149. 144.89. 221. 166-8. 106. 220. 5 2 . 2 5 . 1. 220. 9 4 . 115 societies. 191. 275 war.M. 8 1 . 43. 191. 135. 3 . 147. 236 universal and particular. 149-50. 225 Treaty of Waitangi Act. 13-14. 194-5. 60.2 . 276 word warriors. 2 3 4 . 54. 41. 143-4. 171-2. 38. 54. 122 Williams. 38.6 . Roger. 226. 200. 72. 55. 3 7 . 1992 (NZ). 268n32 Weatherfordjack. 160-1 legal theory. 54. 42. 107-9 Wik Peoples v. 4 3 .3 4 . 242 323 Waitangi Tribunal (NZ). 2 6 6 n l 5 Venables. 35. 64. 141 Treaty of Waitangi (Fisheries Claims) Settlement Act. 216. 107. 239. 107. 264n40 Subcommission on the Protection of Minorities.8 . 103. 240 Voltaire.3 4 multiculturalism. 45. Hank. Queensland (1996). Brackette.1 8 . 73. 9 1 . 9 9 . 259. 150 settlements. 239. 1 7 . 53. 5 0 . 50. 257 rights. 4 6 . 21. 1-5. 240. R. 90. 42.INDEX making. 144-5. 276. 42.1 0 1 . 278 Turner. 105. 174. 3 6 . 116-17. 145 Tryonoga (Hendrick). 128.5 institutions. 168-9. 2 2 3 . 6 8 . 2 7 5 n l 5 white settler dominions. 166. 114. 253. 52. 12. 2 4 2 . 54. Robert.