How Indigenous Peoples are Represented in Anthropology
My Five Pages Document
My research continues to be organized around one primary question: how to contribute to the just resolution of political relations with First Nations? Within that context, I have developed a number of research questions over the years. The first one, which is virtually completed by now, concerns how Canada explains or justifies its acquisition of sovereignty and jurisdiction over First Nations without their consent. In posing this question, I am not asking about the history of these justifications, but only how it is done in the present day – the period I would say begins with the S.C.C. judgment in Calder in 1973. In research recently completed, I came to the conclusion that the explanation relies largely on precedent derived from English law of the late colonial period, and particularly on one 1919 judgment of the Privy Council – that in in re Southern Rhodesia. That rationale specifically derives from the Settlement Thesis in which it is presumed that, at the time of “contact” First Nations were too primitive to have had legal and political institutions that required recognition by the Crown; that, therefore, the land was a terra nullius. But, as I say, that is a presentism and does not reflect the actual history of state rationales for the acquisition of sovereignty and jurisdiction. And, while I will not delve into prior rationales in detail, examining this history does form one component of the research.
But, as an anthropologist, albeit one with a keen interest in the law, the focus of my research has now turned to the theoretical basis for the rationale adopted by the Privy Council in the case cited above, a basis that, not surprisingly, relied largely on anthropological thinking about “Indigenous” societies current at that time; a theorizing based on the premise of unilineal evolution in which the most primitive comes first and we, of course, come after. Of particular moment is the passage:
Some tribes are so low in the scale of social organization that their usages and conceptions of rights and duties are not to be reconciled with the institutions or legal ideas of civilized society... Such a gulf cannot be bridged. It would be idle to impute to such people some shadow of the rights known to our law and then to transmute it into the substance of transferable rights of property as we know them.
It is a passage that incorporated in Baker Lake and, through it, becomes central to the legal rationale adopted by Canadian courts so that, up to today, one requirement of the law is that a First Nation demonstrate that it was sufficiently advanced at the time of “sovereignty” to have the seeds of an institution that it makes a claim have constitutional protection in the present day. Thus, in van der Peet the court says:
The Sto:lo were at a band level of social organization rather than at a tribal level. As noted by the various experts, one of the central distinctions between a band society and a tribal society relates to specialization and division of labour. In a tribal society there tends to be specialization of labour – for example, specialization in the gathering and trade of fish – whereas in a band society division of labour tends to occur only on the basis of gender or age. The absence of specialization in the exploitation of the fishery is suggestive, in the same way that the absence of regularized trade or a market is suggestive, that the exchange of fish was not a central part of Sto:lo culture.
So, what is surprising is not so much that the Privy Council adopted this theory but that the Supreme Court of Canada, as for example in van der Peet, incorporated it into current Canadian jurisprudence, and this even after Justice Hall specifically repudiated the Appeals Court judgment in Calder for relying on “ancient ideas.”
What is of great relevance to me is the extent to which anthropological theory played a role in securing the place of this approach in current litigation. And it is to attend to that matter that is one of the central pillars of the research I will undertake in this project. In work already completed, I have traced the development of a theory that coincides with the presumption that societies can be scaled from low to high to a particular trend in anthropological theory that developed in the early 1960s to become hegemonic in the discipline today. One of my students, Marc Pinkoski, who is just completing his dissertation, traced the history of this iteration of the materialist evolutionary paradigm to a set of scholars who developed it during their employment with the American Department of Justice as a means to defeat “claims” by First Nations in the United States to settlement of “land claims” under processes invoked by Congress in the 1950s. As this approach remains so dominant in the field and has explicit cross-over to jurisprudence (the anthropological experts for the Sto:lo as well as for the Crown both relied on it in van der Peet), a component of the research will be to follow how it plays out in Canadian jurisprudence by examining for Judgment (as well as transcripts, I hope) in various leading cases.
Another component will be to examine alternatives to the materialist paradigm that have been adopted in jurisprudence. I am particularly interested in functionalism. This approach was developed in the late colonial period and was intended, at least in part, as a challenge to the evolutionary rationale than current in jurisprudence. Malinowski, one of its exponents, in fact directly criticizes the Privy Council for its decision in in re Southern Rhodesia, with these words:
Hence the Judicial Committee plainly regard the question of native land tenure as both beyond the scope of practicable inquiry and below the dignity of legal recognition. On the contrary, I maintain that there is no people 'so low in the scale of social organization' but have a perfectly well-defined system of land tenure. It is absurd to say that such a system 'cannot be reconciled with the institutions or legal ideas of civilized society.' To reconcile the two is precisely the task of Colonial statesmanship.
I suspect that, as in Amodu Tijani v. Secretary, Southern Nigeria (which was decided at around the same time as in re Southern Rhodesia), there are many later colonial judgments of the Privy Council that rely more on Malinowski’s approach than that of the materialists mentioned above. One aspect of the research will be to find these precedents and see how British colonial law was changed by the functionalists. I do so because I am convinced that Canada is now headed for a period similar to that of “indirect rule” in Africa which is based in part on functionalist logic and so we need to know what has been done in the area already, and because I also hope it will be useful to persuade the courts that the approach they have taken to the understanding of Indigenous society was superceded by later precedents.
Another component of the research will be to bring to the surface Canadian judgments that contradict the rationale developed in van der Peet. For example, how might the inclusion of Sissons’ acceptance of the legality of Inuit marriages altered the Mahoney’s presumption in Baker Lake that, while the Inuit had an organized society, “It was not a society with very elaborate institutions but it was a society organized to exploit the resources available on the barrens and essential to sustain human life there. That was about all they could do: hunt and fish and survive.” In that regard, I would like to develop a sequence of precedents that runs counter to the revealed wisdom of the court today, using, for example, L’Heureux-Dubé’s dissent in van der Peet along with many others to show that there is a strain in the law that accepts the fundamental premise that Indigenous peoples lived here in societies and that, to return to my fundamental question, it is up to us to figure out how to resolve political relations with First Nations in that context.
In that regard, I also expect to work on ways to conceptualize political relationship that do not flow from the liberal paradigm and thus may or may not have some grounding in law (albeit not in law related to Indigenous peoples). Of these, the most important to me begins with Durkheim’s critique of Hobbes about the origins of society and moves through the work of Mauss on the origins question to construct an alternative way to create political relations with First Nations that is based closely on the notion of relationships through “Treaty” as I have come to understand it in Indigenous society. However, this component of the research is just being developed, but I do expect that, within the five years of this project, it will become a central focus.
I don’t quite know how to answer question 2. I think that what I am doing relates to the overall theme of the project and makes a contribution, particularly, to domains 2 and 3.
I think that conversation, presenting findings, and doing joint research are all important. I am particularly interested in finding colleagues who are knowledgeable about British colonial law, particularly with respect to Africa. I am hopeful that there may be a graduate student who would be interested in pursuing this matter with me. I would also benefit greatly from any conversations about the idea of treaty relationship in First Nations’ thought. I hope that we can have much face-to-face interaction and for that reason I am really disappointed that I wont be able to come to this meeting.
I have two fundamental concerns. The first is the need to get the state to engage with the fact that we have a colonial relationship with First Nations. And the second is to change the situation so that First Nations are not required to concede on fundamental points of jurisdiction and sovereignty in order to achieve gains in the short term. In that regard, I hope that the project makes it clear what are the problems with government policy and lays out clear alternatives to achieve solutions in the near term that do not require such hard choices, and at the same time it addresses how to recognize and overcome the colonial relationship that now exists. In these ways, I hope that the project moves beyond what was developed in RCAP.
