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Democratic Multiplicity Democratic Multiplicity
Perceiving, Enacting, and Integrating Democratic Diversity
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Book contents

Part IV - Indigenous Democracies

Published online by Cambridge University Press:  21 July 2022

James Tully
Affiliation:
University of Victoria, British Columbia
Keith Cherry
Affiliation:
University of Alberta
Fonna Forman
Affiliation:
University of California, San Diego
Jeanne Morefield
Affiliation:
University of Oxford
Joshua Nichols
Affiliation:
McGill University, Montréal
Pablo Ouziel
Affiliation:
University of Southampton
David Owen
Affiliation:
University of Southampton
Oliver Schmidtke
Affiliation:
University of Victoria, British Columbia

Summary

Type
Chapter
Information
Democratic Multiplicity
Perceiving, Enacting, and Integrating Democratic Diversity
, pp. 193 - 304
Publisher: Cambridge University Press
Print publication year: 2022

11 Gitxsan Democracy: On Its Own Terms

Val Napoleon

We live in societies that may be politically democratic but are socially fascist, which is more than ever the ideal regime for global neoliberalism. But this duality creates instability. Will the future be more democratic or, to the contrary, will fascism move from a social to a political regime? It will depend on us. Each generation fights with the weapons it has.Footnote 1

Democracies are dying democratically.Footnote 2

- Boaventura de Sousa Santos
Introduction

Democracy is generally understood and discussed as operating within a state and applying to those people within the procedural grasp and coercive power of the state.Footnote 3 From this view, the democratic determinants are who gets heard both formally (i.e. through votes, representative government, and legal and civic administration) and informally (i.e. media voices and spaces, economic participation and class, and education privileges).Footnote 4 How might we conceive of democracy within nonstate societies such as historic Indigenous societies? How would it operate and what would its determinants be?

Within what has been described as the deepest crisis of liberal democracy since the 1930s, I want to take up and explore some of the current challenges to democratic governance from an Indigenous perspective and from within a historic nonstate political ordering of Indigenous societies. How is the global democratic crisis being experienced in Indigenous communities, and how might Indigenous insights and responses, so sorely needed, invigorate larger conversations about liberal democracy? One of my aims here is to examine several worries that I have about what appears to be a general lack of critical analysis and inattention to serious questions concerning Indigenous democracies, governance, and citizenship.

One of my worries is the deficit approach being applied to Indigenous peoples and societies. The assumption driving this impoverished approach is that Indigenous societies were never democratic and, further, that historically and to the present day, Indigenous societies violate human rightsFootnote 5 through the operations of their political ordering, economies, and legal orders and law. These so-called deficits provide the justification for further impositions of state democratic constructs which create more hammers to force the reshaping of Indigenous democracies and citizenries into acceptable colonial forms. The process and effect of this deficit approach creates what de Sousa Santos has called abyssal thinking, wherein one imaginary operates to exhaust all other possibilities, thereby rendering those other possibilities invisible.Footnote 6

My other related worry is created by the persistent idealization and romanticization of Indigenous practices based on the assumption that there is no need to be critical of either historic or present-day Indigenous politics, law, and economies. In their efforts to be supportive of Indigenous peoples, some Indigenous and non-Indigenous academics take the position that they cannot acknowledge or discuss Indigenous sexism, internal oppressive power dynamics, or other political dysfunctions lest they further undermine Indigenous peoples and perpetuate colonial oppression. The reality is that today there are some Indigenous communities that are dangerous for women and girls because they are absolutely shameless in their sexism,Footnote 7 and there are extensive local conflicts within and between communities.Footnote 8 When historic problems are denied in Indigenous societies, and when present-day problems are blamed entirely on colonialism, the consequence is the erasure of historic Indigenous intellectual resources, resiliencies, and processes that might be drawn upon today.

I have three overarching objectives in this chapter. First, I want to demonstrate how current negotiations between GitxsanFootnote 9 communities and the Canadian (i.e. federal and provincial) governments are a form of abyssal thinking, and as such operate to further undermine Gitxsan democracy and governance. To support this argument, I draw on the work of Boaventura de Sousa Santos and his analysis regarding modern western thinking in the global struggle for social justice.Footnote 10 While I am focusing on the Gitxsan to avoid pan-Indigeniety and to allow a deeper analysis, this discussion may be extrapolated more broadly to apply to other Indigenous peoples.

Second, I want to examine one exemplar of Indigenous democracy: that of the historic and present-day Gitxsan society from northwest British Columbia. My basic contention is that, while not perfect, historic Gitxsan democracy is an example of intense democracy, a far more politically inclusive form of governance than the current model of what is perhaps the worst form of representative democracy imposed through colonization with the federal Indian Act.Footnote 11

Finally, I want to apply Kirsten Rundle’s articulation of Lon Fuller’s legalities and relationships to Gitxsan governance in order to expand and develop other ways of thinking about and restating law and governances in Gitxsan society and, by extrapolation, in other Indigenous societies.Footnote 12 My intention here is to create another method, and an accompanying grammar, with which to analyze contemporary forms of Indigenous governance and some of the arising issues.

Canadian Abyssal Thinking

Modern Western thinking is abyssal thinking. It consists of a system of visible and invisible distinction, the invisible ones being the foundation of the visible ones. The invisible distinctions are established through radical lines that divide social reality into two realms, the realm of “this side of the line” and the realm of the “other side of the line”. The division is such that “the other side of the line” vanishes …

What fundamentally characterizes abyssal thinking is thus the impossibility of the co-presence of the two sides of the line. To the extent that it prevails, this side of the line only prevails by exhausting the field of relevant reality. Beyond it, there is only nonexistence, invisibility, non-dialectical absence.Footnote 13

In 2019, a northern Gitxsan group invited me to attend one of their negotiating meetings with federal and provincial negotiators.Footnote 14 Rather than taking the usual course of litigating for a declaration of Aboriginal title from a Canadian court, these Gitxsan were instead negotiating for a declaration of their Aboriginal title over their historical lands with the provincial and federal governments.Footnote 15 My role was to describe Gitxsan law and political ordering, how it worked, and how it constituted a valid form of democracy. Within this conceptualization of democracy, specifically Gitxsan democracy, “Citizenship is not a status given by the institutions of the modern constitutional state and international law, but negotiated practices in which one becomes a citizen through participation.”Footnote 16

This Gitxsan group was comprised of representatives from their own historic political and legal system rather than the band council as set up under the Indian Act.Footnote 17 Hence, these Gitxsan people were the chiefs, wing chiefs, and members of the historic Gitxsan matrilineal kinship groups, the huwilp,Footnote 18 commonly known in English as the House.Footnote 19 I will expand further on Gitxsan political and legal ordering, and its operation in what follows.

The problem was that the federal and provincial negotiators were having great difficulty seeing and comprehending Gitxsan democracy as legitimate political and legal forms of ordering. Instead, the federal and provincial negotiators expressed concern about what they perceived as the lack or deficit of Gitxsan democracy because Gitxsan people did not hold elections to vote for their House chiefs or wing chiefs – past or present. What they failed to see was a society that Richard Overstall describes as being formed by threads of kinship and threads of contract which “weave a complex legal and social fabric.”Footnote 20 Gitxsan law and political ordering constitute and are constituted by these threads, the warp and woof, the fundamental structure of Gitxsan society. Ralph Waldo Emerson has aptly and beautifully commented that the “Old and new make the warp and woof of every moment. There is no thread that is not a twist of these two strands.”Footnote 21

According to the federal and provincial negotiators, this absence of elections and voting in Gitxsan society violated the democratic rights of Canadian citizens under the Canadian Charter of Rights and Freedoms,Footnote 22 specifically the following:
  1. 3. Every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein.

  2. 4. (1) No House of Commons and no legislative assembly shall continue for longer than five years from the date fixed for the return of the writs at a general election of its members.

The imperative of the federal and provincial negotiators was simple: Gitxsan people are Canadian citizens so there must be Gitxsan elections so they can vote for their chiefs and wing chiefs in the future. A failure to provide such elections for Gitxsan people would violate their democratic rights as per the Charter of Rights and Freedoms. The experience of the Gitxsan in these frustrating negotiations brings to mind the inspiring work of James Tully:

At the end of the day, therefore, what keeps the imperial network going and the structural relationships of domination in their background place, is nothing more (or less) than the activities of powerfully situated actors to resist, contain, roll-back and circumscribe the uncontainable democratizing negotiations and confrontations of civic citizens in a multiplicity of local nodes.Footnote 23

The federal and provincial negotiators also expressed concern about the Gitxsan discriminating against each other and against non-Gitxsan if they did not explicitly recognize and incorporate other rights and freedoms as set out in the Canadian Charter of Rights and Freedoms. Additionally, the federal and provincial negotiators expressed their discomfort about potential Gitxsan violations of human rights as per federal and provincial legislation, though they provided no examples except the lack of elections.

From what mindset was the federal and provincial operating? How might they understand the logics of their role and position as they met with Gitxsan? Lawyer and legal historian Richard Overstall offers this insight:

One of the invisibilities for the federal negotiators is how their adherence to representative democracy is moulded and blinded by path dependence. This concept argues that present options for political, economic and technological acts are constrained by prior decisions and history. … For representative democracy, as performed in post-colonial Canada, it may be useful to see how its predecessor English institutions came in to being. … The representative democracy path thus retain its origins of supreme executive and legislative power backed by a compliant bureaucracy and a monopoly of legitimate violence, albeit with the possibility every four years or so of a popular vote between two or three very similar groups of executives and legislators.Footnote 24

These 2019 negotiations were yet another effort on the part of the Gitxsan to address the continual “path dependant”Footnote 25 demands of the state. Over the years, when descriptions and explanations of their legal and political ordering fell on deaf ears, this Gitxsan group pragmatically created new structures and instruments intended to somehow meld the Gitxsan matrilineal kinship system with representative Canadian democracy and governance structures. These pragmatic responses have meant that the Gitxsan, and other Indigenous peoples, have their own historic legal and political institutions as well as contemporary legal and political institutions. Despite contradictions between the past and present institutions, both historic and contemporary law and political authorities continue to operate through them. This is a situation that generates ongoing problems and internal conflicts, with the basic result of undermining and delegitimizing Gitxsan governance and law.Footnote 26

So, how might de Sousa Santos’ abyssal thinking be helpfully applied to the Gitxsan? Boaventura de Sousa Santos is writing about the Western tension between social regulation and social emancipation, and the visible foundation beneath metropolitan societies and the invisible foundation beneath colonial territories. Again, according to de Sousa Santos, the “intensely visible distinctions structuring social reality on this side of the line are grounded in the invisibility of the distinction between this side of the line and the other side.”Footnote 27 What is visible to the federal and provincial negotiators is the Canadian state complete with its own forms of political, legal, and economic institutions – and all that created these legitimacies and institutions – histories, power, and corresponding narratives. The colonial ideology of this imaginary “exhausts” anything beyond itself because its very definition is a denial of other legitimacies.

In turn, what remains invisible to the federal and provincial negotiators are the Gitxsan political, legal, and economic institutions – and all that created these legitimacies and institutions – histories, power, and corresponding narratives. Through their interactions with the Gitxsan, the federal and provincial negotiators maintain and uphold their visible universe while denying and erasing that which comprises Gitxsan society, past and present, unless it is recognizable and cognizant to state forms. In effect, the federal and provincial negotiators are “policing the boundaries of relevant knowledge,” thereby wasting the “immense wealth of cognitive experiences” of the Gitxsan.Footnote 28 This colonial policing is strengthened by the abyssal incommensurability strategy, wherein that which is beyond the Canadian state is simply characterized as incommensurable, as well as deficient and inferior.Footnote 29

Boaventura de Sousa Santos argues that the “first condition for post-abyssal thinking is radical co-presence. Radical co-presence means that the practices and agents on both sides of the line are contemporary in equal terms.”Footnote 30 Creating this condition for the Gitxsan means comprehensively restating and articulating their own society – complete with institutions, law, economies, polities, histories, knowledges, and meaning-holding/creating narratives. Radical copresence means that the federal and provincial representatives expand their abilities to imagine, see, and appreciate other expressions of law, political participation, and inclusion. This simple solution means first understanding one’s own limitations and then deliberately developing a shared standard for evidence because, as political philosopher Michael Blake writes, “When there is no shared standard for evidence, then people who disagree with us are not really making claims about a shared world of evidence. They are doing something else entirely; they are declaring their political allegiance or moral worldview [in the absence of shared evidence].”Footnote 31

Arguably, abyssal thinking has become a part of neocolonialism, as is evidenced by the public claims that the “government is failing to defend the democratic rights of First Nations communities to resist their hereditary leaders.”Footnote 32 Abuses of power and corruption, along with the promise and failure of law, are the stuff of world history and are also recorded in Indigenous oral histories. These are reasonable collective struggles for Indigenous peoples but are only manageable when their legal orders are intact, complete with accountability, political inclusion, fairness, and legitimate processes. However, what unfortunately happens is that the media, the state, and others opportunistically pick up on Indigenous conflicts only to reduce them to their simplest parts, and, further, polarize these into, for example, hereditary leadership versus elected band councils.

These kinds of political dichotomies are a failure of basic civility where collective and legitimate processes of reason are not applied because Indigenous legal orders have been undermined.Footnote 33 For change to occur and for radical copresence to be possible, the Gitxsan requires global cognitive justice, enabled by no less than a new kind of post-abyssal thinking.Footnote 34

Gitxsan Democracy

How are Gitxsan democracy and law invisible to Canada according to de Sousa Santos’ abyssal thinking paradigm? In the next section, I explore one historic narrative to begin making visible Gitxsan resources for thinking about citizenship and democracy as the first step to radical copresence.Footnote 35 What is important to this narrative exploration is that citizenship and intense democracy are evident and operating within two nonstate societies: the Gitxsan and the Nisga’a.Footnote 36 This narrative was told by John Brown (Kwiyaihl) from the Gitxsan village of Kispiox and recorded by early anthropologist Marius Barbeau in 1920.Footnote 37 Oral histories are one form of the intellectual property owned by the Gitxsan and are further explained later in the chapter. While reading the narrative, keep in mind that access and the extensive trade system were essential to both the Nisga’a and Gitxsan economies.

A Peace Ceremony Between the Nisga’a and the Kisgegas

The people from the Nisga’a Nass Valley and the people from Gitxsan village of Kisgegas had made friends. This peace agreement was broken when Meluleq, the [Frog]Footnote 38 chief of Kisgegas killed Tsastawrawn, a Nisga’a. Wiraix [Wolf], also from Kisgegas, murdered another Nisga’a named Guxmawen. In retaliation, a Nisga’a murdered Kwisema. For a long time, the Kisgegas did not go to the Nass Valley.

The Nisga’a sent word to the Kisgegas that they wanted to make friends and [they proposed a Gawaganii (Gitxsan term), or Peace Ceremony].Footnote 39 When they arrived, there was a large party of them. The Kisgegas gathered together to meet them. They had invited people from [the Gitxsan villages of] Kispiox and Gitanmaax. The Nisga’a feast party camped just above Kisgegas village.

Meluleq was ready for the ceremonies, and he stripped himself naked to meet his guests. Wiraix did the same. Tsenshoot followed their example, as well as Guxmawen.Footnote 40 All this for meeting one another. The flies were very bad at that time of the year, but they did not [show that they minded] them. They did not even brush them away, although they could hardly endure them.

One of the Nisga’a said, “This is the last day for your village!”

Wiraix answered, “You have entered the Wolves’ mouths. You won’t be alive tomorrow.”

Tsenshoot spoke to Meluleq, “You won’t see the sun tomorrow. This is the last time you will look at the sun!”

Meluleq answered, “The crows and the animals will eat your flesh. You make me angry now!”

The Kisgegas gathered and built a barricade with big trees in front of their village and they built another barricade in front of the Nisga’a [camp]. They put the barricade across to show that the Nisga’a were not to pass beyond it. If one of the Nisga’a went beyond this barricade, those on the opposite side would kill him. The same with the Kisgegas: if they went beyond their barricade, they would be destroyed. Then the Kisgegas went back to their houses, and the Nisga’a went back to their camp.

The Gitxsan fired off blank cartridges, only powder, without bullets in their guns. The Nisga’a did likewise.

Then the Kisgegas sang songs, and they sang a peace song. The Nisga’a also sang peace songs. The Kisgegas blew white swan-down on the heads of the Nisga’a, and, in turn, the Nisga’a did the same to them. They composed a song about the peace, the words of which were that they were making peace. This was a peace performance.

In the evening, the invited Nisga’a guests arrived at the village and the Kisgegas allowed them to come forward. The Nisga’a gathered on one side of the village. Two people were delegated for the peace performance. Guxmawen did not come in person but he sent his daughter on his behalf; she stood in his stead. The other was Tsemshoot, also Nisga’a.

All the Kisgegas came out of their houses. No one had dangerous weapons, only sticks and their hands. The Nisga’a hit some Kisgegas, and the Kisgegas hit the Nisga’a with their hands and with the sticks. Both Tsemshoot and Guxmawen’s daughter had sticks and they kept waving these around until they were both captured. The Kisgegas captors covered Tsemshoot and Guxmawen’s daughter with a caribou hides and took them prisoner. Then the mock fighting stopped.

They all sang the song that they had composed during the night about making peace, with the words about how they were to make peace. Then everyone entered the houses. Tsemshoot was taken to Meluleq’s house and there were two men to guard him. While Tsemshoot stood, they placed caribou skins all along the house for him to walk on until he got to the back of the house. A very big caribou skin was spread out and they on this they piled many pillows for Tsemshoot to sit on. It was a great seat for him. They piled trade blankets to about four feet high. When he wanted water, the guards brought it to him.

They did the same for Guxmawen’s daughter, and she was seated at the back of Wiraix’s house. Two men of noble birth stood on each side of her to guard and watch her. The whole village gave a grand feast. The Kisgegas gave many furs to all the Nisga’a: beaver, marten, caribou, and fisher pelts. The Nisga’a went back to their camp with a bundle of various skins given them by different Kisgegas.

In the morning, the Nisga’a gave their dance. Those performing in the Peace Ceremony were not given food. That was the rule. Nobody in the song or dance was allowed to eat for one day. After they fasted for one day, the very best food was prepared and passed around. The bodyguards of Tsenshoot and Guxmanwen’s daughter had also fasted, so they were led to the food too, and they ate to their satisfaction.

The dance lasted for four days in one of the largest houses in the village. Then four men led the prisoners to that house. They were seated at the back of that house for the last big dance. The Nisga’a sat on one side, and the Gisgegas on the other. The Nisga’a danced until midday, and they picked out four of the best men and placed them on seats of honor.

Meluleq took a white tail feather of an eagle and dipped it in blood so that one half turned red. He gave this feather to Tsenshoot, placing it in his hand.

Waraix did the same with Guxmawen’s daughter. They got the very best white handkerchief from the white man’s store and wrapped her hand in it, and on her head, he planted two swan’s feathers that he got from the Nass.

The villagers got ready before the Nisga’a could leave them. They gave the Nisga’a a farewell dance, dancing behind them until they were out of sight. The Nisga’a also danced as they were on their way homewards. They sang a song in the Sekani language, advising them that they would enjoy peace with them forever. The Kisgegas gave the Nisga’a a song, and the Nisga’a gave the Kisgegas another song.

Then they went back with them to the Nass. Tsenshoot took one of the swan’s feathers and returned it to Meluleq before returning to his own people. This was a sign of deep friendship that was interpreted with the words “I have given you peace and friendship for years to come.” Guxmawen’s daughter said the same words to Wiraix. The Peace Ceremony was over.

Analysis
As we turn to the analysis of the above narrative, John Borrows provides an important reminder to not idealize Indigenous peoples.

We need such laws not only because we are good people with life-affirming values and behaviours. We also require these laws because we are “messed up”. Indigenous law must be practiced in the real world with all its complexity. … Law does not just flow from what is beautiful in Anishinaabe or Canadian life. Law also springs from conflict. It emerges from our responses to real-life needs, which are often rooted in violence, abuse, exploitation, dishonesty, political corruption, and other self-serving and destructive behaviours.Footnote 41

The Peace Ceremony is a complicated oral history and it would be easy to get lost in its detail and in our own responses to difference – those aspects that are beyond our own terms of reference and experience. Given this, it is important to be specific about the question one is asking of the narratives, stories, or oral histories.Footnote 42 To center this analysis on questions of governance and to inform my discussion of Gitxsan democracy, the question I am asking of this narrative is: How should one respond to a violent rupture of a long-term political relationship with a neighboring people? And since this analysis is about nonstate democracy, the “who” and “why” of responding to this rupture of arrangement between neighboring peoples are significant.

There are a number of basic elements that are relevant to the question I am asking of the narrative, and I have highlighted these here for ease of reference.
  • The Gitxsan and the Nisga’a are neighboring peoples, their lands are adjacent. The two peoples had “made friends,” suggesting they had not always enjoyed peace, but their relationship was peaceful at the onset of the narrative.

  • This peaceful relationship was disrupted by three murders: (1) Gitxsan Meluleq killed Nisga’a Tsastawrawn, (2) Gitxsan Wiraix killed Nisga’a Guxmawen, and (3) A Nisga’a (unnamed) killed Gitxsan Kwisema.

  • Consequently, the Gitxsan did not travel to the Nass Valley for a long time.

  • The Nisga’a requested a return to peace, and they initiated a peace.

  • The Nisga’a traveled to Kisgegas, and they made a camp just above Kisgegas village.

  • The Kisgegas invited other Gitxsan from the villages of Gitanmaax and Kispiox.

  • Meluleq and Wiraix prepared by stripping themselves naked to meet their Nisga’a guests. In turn, Nisga’a Tsenshoot and Guxmawen also stripped in order to meet with the Gitxsan. Without clothing, everyone suffered terribly because of the bad blackfly season, and they “did not show that they minded.”

  • Both Nisga’a and Gitxsan traded insults, the Gitxsan built two barricades, and both sides fired blanks at the other.

  • Both sides sang peace songs, and they blew white swan feathers on each other. A new peace song was composed.

  • Two Nisga’a were delegated for the Peace Ceremony: one was Guxmawen’s daughter and the other Tsemshoot.

  • The Gitxsan and the Nisga’a armed themselves with sticks, and then they hit each other using only their hands and the sticks. Guxmawen’s daughter and Tsemshoot also had sticks which they waved around until they were ‘captured’.

  • Guxmawen’s daughter and Tsemshoot were separately taken to different longhouses, they were covered in caribou hides, and more caribou hides were placed on the earth for them to walk on to the back of the longhouse. Additional trade blankets were piled high, many pillows were placed for them to sit on, and guards of noble birth watched them and tended to their needs.

  • Kisgegas gave a big feast and different Kisgegas gave many furs of all kinds to the Nisga’a. Those who were part of the Peace Ceremony fasted.

  • The next morning, the Nisga’a performed their dance, then those who had fasted were fed.

  • The dance lasted four days, then the ‘prisoners’ were brought to the longhouse for the last dance.

  • The Kisgegas were seated on one side, the Nisga’a on the other. Four ‘best’ Nisga’a were placed in the seats of honor.

  • Meluleq took a white tail feather, dipped it in blood so that half of the feather was red. He gave this feather to Tsemshoot. Waraix did the same with Guxmawen’s daughter.

  • Waraix also wrapped Guxmawen’s daughter’s hand in a white man’s handkerchief, and then he placed two white swan feathers in her hair (the feathers were from the Nass).

  • The Kisgegas gave the Nisga’a a farewell dance, and they danced behind the Nisga’a as they left for the Nass Valley. The Nisga’a also danced on their way home.

  • The Kisgegas gave the Nisga’a a song, and the Nisga’a gave the Kisgegas a song.

  • Tsenshoot gave Meluleq one of the swan feathers back, and pledged peace and friendship for years to come. Guxmawen’s daughter did the same with Wiraix.

This is a rich and perhaps deceptively simple narrative. For this analysis, there are two main legal responses to the question I have posed to this narrative: (1) the Nisga’a decided to restore peace by initiating a Peace Ceremony, and (2) the Gitxsan accepted the invitation to restore peace and to host the Peace Ceremony .

For the most part, the reasoning for these two legal responses is implicit rather than explicit. What is at the heart of this narrative is that the relationship between the Nisga’a and Gitxsan was important and had previously been restored and maintained, and this was the continuing primary response. The valuable gifting of a name, songs, and dances are all very precious as well as structural for each people’s governing institutions. These gifts also comprise part of the intellectual property for both peoples, and their inclusion for the Peace Ceremony indicates the paramountcy of peace between the two peoples. The relationship between the Gitxsan and Nisga’a enabled trade, territorial access, and travel, all of which were managed through carefully arranged marriages and lineages. Restoring relationships usually requires accepting responsibility for harms and compensation. The Gitxsan acknowledged their responsibility for the events leading to the Peace Ceremony and they paid compensation in the form of the furs and feasting. The Nisga’a accepted their responsibility for reacting to violence with violence by initiating the Peace Ceremony and by gifting the Gitxsan with a name and a song.

However, there is so much more going on in this rich narrative that provides important insights into how people were managing themselves and the conflict. As the first step, both the Nisga’a and the Gitxsan accepted responsibility for the conflict and for its resolve – individually and collectively. Secondly, key individuals from both parties made themselves completely vulnerable (naked) and transparent (no weapons) to the other. Third, both sides exercised exquisite physical, emotional, and mental discipline in the mock battle of fake bullets, sticks, and hands. All the parties would have been extraordinarily careful to not accidentally injure one another in their physical demonstration of war and their implicit acknowledgment of its ultimate possibility.

Fourth, the songs, names, and dances are all legal expressions and ongoing performative requirements for the public feast (the main legal, economic, and political institution for both the Gitxsan and Nisga’a), and continue to be performed by Tsenshoot, Guxmawen, Meluleq, and Wiraix, and others to this day. In this way, for both the Nisga’a and Gitxsan, the Peace Ceremony continues to be inscribed with legal and political meaning, becoming part of an ongoing public memory and part of the precedent record from which to draw from for solving future conflicts.

Finally, both the Gitxsan and Nisga’a had to have had the political and legal authority to act on behalf of their respective Houses to have initiated this major inter-societal event and for it to be recorded in the oral histories and for it to shape the ongoing relationship between the peoples. The songs, dances, and names form the architecture (i.e. the warp and woof) of Gitxsan decentralized governance, and they also hold articulations of law. What is invisible in the narrative, and in the enactment of the respective political and legal authorities, are the discussions, disagreements, and consent that would have taken place prior to the Peace Ceremony. Many, many people, all legal agents to the fullest extent themselves, were necessary to make the Peace Ceremony possible: preparing enormous quantities of food (i.e. gathering, hunting, fishing, etc.), hunting and preparing the hides and furs, enacting the mock battle, creating and performing the songs and dances, and formal witnessing of the entire process for future recall.

The Peace Ceremony narrative stands for many things, including the human potential for violence, and the continuing need for individual and collective agency in rebuilding, maintaining, and protecting relationships between peoples. There are also some elements that raise questions that can generate more discussion and learning. For instance, why did the Nisga’a sing a Sekani song? Likely it would have been a gift from the Sekani, and the narrative captures this detail to emphasize the importance of relationships with other neighboring peoples. Another question is about Guxmawen traveling to Kisgegas, but not participating in the Peace Ceremony. Instead, his daughterFootnote 43 participated in the Peace Ceremony on his behalf, and likely this would have been related to a saving-of-face requirement for Guxmawen. The richness is that these and other questions can be explored in future conversations in a way that ensures that law is part of people’s everyday lives – in a way that generates questions rather than focuses on answers.

Gitxsan Relationships

[This is] a starting point for a new kind of inquiry into the relational dimensions of contemporary conditions of the rule of law. Three key ideas from Fuller’s jurisprudence are reflected … The first is the centrality of relationships. The second is the significance of the form of a relevant legal modality to the shape and fate of those relationships. The third is the possibility that certain legal forms will, for relational reasons, be unsuited to the contexts within which they might come to operate.Footnote 44

With this brief introduction to Gitxsan society, I want to bring the relationships that create Gitxsan society into focus. To begin, the Gitxsan are a nonstate, decentralized society wherein political and legal authorities are distributed and acted on horizontally between matrilineal kinship groups of extended families – the House – within which there are reciprocal legal obligations.Footnote 45 This is an exogamous system, so each person’s father’s House is a part of a different clan with separate responsibilities to each Gitxsan citizen. The Gitxsan legal, political, and economic orders operate through these dense networks of kinship ties. Each individual Gitxsan person is a legal agent within her or his House. Beyond the House, which is relationally autonomous,Footnote 46 it is the House that is the collective legal agent in all external interactions with other Houses and with the larger networks of clans and inter-societal alliances.

House chief ‘names’ are part of the House’s governing structure and intellectual property, and are the form through which House territories and other property are held in trust. The authority of a House chief depends on the fulfillment of the House’s legal and political obligations through the entire system. Without centralized and hierarchical bureaucracies, Gitxsan society is maintained by a series of stabilizing tensions created by an absolute requirement to cooperate and a deep corresponding ethic of competition and autonomy – from the individual to the larger kinship levels. For example, the authority and ability of the House chief to fulfill her or his larger legal obligations depends on the willing economic contributions and labor of each member. However, since a person’s House membership operates as a placeholder rather than locking people in, members can choose to align themselves elsewhere in the system, thereby causing a significant economic loss to the House chief and the House.Footnote 47

Liability in this system is collective. For example, a person is responsible to their House for their actions, but it is the House that is liable for that individual’s actions in the larger network. Furthermore, injuries caused by individuals are also collective, so if someone is injured, the entire House is considered injured and there is consequent collective liability and compensation. Admittedly, this is a gross simplification of a complex society, but it nonetheless contains the essence of how the kinship network operates throughout Gitxsan society. It is this complex of legal, economic, and political ordering that is the basis of Gitxsan citizenship and democracy – mutually constituting and fluid with Gitxsan citizens – as individual and collective agents, accountable to and responsible for the maintenance of the larger whole.

To return to Rundle’s relationship theory, she argues that relationships and their demands were necessary to and constituted Lon Fuller’s legalities, and, further, that a society’s institutional forms have carriage for those relationships because they hold the “responsibilities and opportunities for the authority of law itself.”Footnote 48 According to Rundle, Fuller’s jurisprudence applies to all governing relationships, not just to a state’s legislative function. This insight frees Rundle’s analysis from being state-centric and releases its potential application to nonstate societies such as the Gitxsan.

Rundle’s theory advocates the centrality of relationships to a society’s legal order and its constituting legalities.Footnote 49 Gitxsan society is entirely constructed of individual and collective relationships, kinship networks through which Gitxsan law and governance operate and are collaboratively managed. Each individual legal agent has responsibilities to their kinship network, and they have the ability to exercise choice and accountability in how they align themselves and contribute to the collective.Footnote 50 This kind of relational accountability, operating at individual and collective levels, constitutes a form of intense democracy, or what Christine Keating calls “fullest democracy.”Footnote 51

The second theme of Rundle’s relationship theory concerns the “significance of the form of a relevant legal modality to the shape and fate of those relationships.”Footnote 52 The paramount political and legal unit within Gitxsan society is the House, which is organized matrilinealy, and, at least historically, the size of the House allowed for face-to-face interaction of all House members within each House.Footnote 53 These kinship relations are crosscutting, extending beyond the matrilineal families, clans, and villages, and also connecting to other peoples such as the Nisga’a, Haida, Tsimshian, Wet’suwet’en, and beyond. In this way, they are the relational filament weaving the largest political collectivity – that of the society – but are also building important political, legal, and economic connections to other peoples. Gitxsan democracy, then, captures Gitxsan people within its nonstate procedural grasp and collective coercive power, as demonstrated by the Peace Ceremony.Footnote 54

Finally, Rundle’s theory includes the possibility that certain legal forms will, for relational reasons, be unsuited to the contexts within which they might come to operate.Footnote 55 As mentioned earlier, colonialism in Canada included the Indian Act, which set out the imposed structure and procedures for electing small, representative administrative entities. This colonial process included dividing larger societies of Indigenous peoples into small groups that were geographically pinned on reserves as per the Indian Act and the Constitution Act, 1867.Footnote 56 The consequence of imposing this particular form of representative democracy has been devastating to Gitxsan ordering, where former historic political and legal accountability crossed village boundaries and extended over the entirety of Gitxsan lands. In short, the larger legal order has been fractured into six small reserves, and has undermined the historic political and legal institutions of Gitxsan society. This is the very embodiment of de Sousa Santos’ assertion that “Democracies are dying democratically,”Footnote 57 but in this case, it is the attempted murder of intense Gitxsan democracy ‘democratically’ via colonial legislation and by agreement. Nonetheless, the Gitxsan are still the Gitxsan, but now are struggling with conflicts arising from the imposed governing structures and diminishment of the Gitxsan legal order.Footnote 58

Conclusion

When Cree legal scholar Darcy Lindberg analogized the universe to law, he wrote that one must learn to see all the stars in the universe because all the stars matter.Footnote 59 These other legal orders, institutions, and law are rendered invisible by the Canadian state’s grid of intelligibility. Given this, the project of creating radical copresence means adding to the national legal imagination and expanding the Canadian grid of intelligibility. This work, for Indigenous peoples, including the Gitxsan, means substantively and procedurally articulating Gitxsan law and legal institutions to support the practice of Gitxsan law. All the attendant questions have to be worked out while doing the research and in the actual practice of Gitxsan law.

The image in Figure 11.1 captures Lindberg’s analogy and it illustrates the wonder of first seeing those formerly invisible stars.Footnote 60 This powerful image also embodies de Sousa Santos’ abyssal thinking, wherein the visible is made visible by lifting the curtain of abyssal limitations, and, in doing so, that beyond the curtain can become copresent.

Figure 11.1 Cover of L’atmosphère: Météorologie populaire

The challenge for the Gitxsan and other Indigenous peoples is to rebuild their legal orders by the hard work of critically and collaboratively rearticulating and restating their historic legal resources. This approach will enable Gitxsan peoples to restore the best practices of their former intense democracies, complete with inclusive and active citizenship, for today’s political and legal negotiations, and self-determination and governance demands.

In taking on the work of rebuilding and restating Indigenous law, we should not “overlook the concrete possibilities available for creative and effective negotiations and confrontations of civicisation and de-imperialism,”Footnote 61 or that “Another world is actual” not just possible: “Despite the devastating trends, another world of legal, political, ecological, and even economic diversity has survived and continues to be the loci of civic activities for millions of people.”Footnote 62

12 Democratic Futures and the Problem of Settler States An Essay on the Conceptual Demands of Democracy and the Need for Political Histories of Membership

Joshua Nichols

The future of democracy within settler states is, much like its past, radically contested, deeply complicated and ultimately uncertain. This fact is, in one sense, unsurprising. After all, the future of democracy has never been certain. Of the various forms of government possible within the Western world, democracy is the least stable. As a concept it refers simply to the rule of the demos (the common people).Footnote 1 That much is clear, but how are we to determine the boundaries of a people? Two possible methods spring to mind. We could adopt a territorial definition and thereby define membership by reference to boundaries that are set in relation with neighboring groups (jus soli). Alternatively, we could base the definition on a conventional set of rules for determining kinship. In this case membership becomes a function of recognized familial relationships (jus sanguinis). It is also possible to develop a mixed approach, but no matter the approach taken the selection is strictly conventional. In other words, the question of membership leaves democracy contested at its conceptual foundations – there simply is no a priori definition of the people.

This brings us to the next conceptual knot in democracy. If democracy is indeed the rule of the people, then the process for determining who is in and who is out needs to be broadly accepted and understood, as it is part and parcel of the authority structure within that social order. Put differently, in a democracy legal questions of membership are conceptually bound up with the question of both the legal process of determining membership and the justificatory practices that are used to legitimize those determinations. If we attempt to craft a legal process for determining membership without reference to the explanatory requirements of legitimacy (which are historically and contextually specific), then the outcome will be normatively illegible (viz. it will not be understood as a legitimate move within the constitutional order). If we reverse our approach and instead attempt to determine membership by reference to the explanatory requirements alone, then the outcome will be legally illegible (viz. it will not be received as a valid legal move within the constitutional order). If we attempt to see the relationship between legality and legitimacy as an either/or problem, then it seems that democracy is stranded on the horns of a dilemma between the semantics of formal legal rules and the pragmatics that enable one to make sense of actual social practices.

This dilemma is not inevitable, it is simply a product of approaching the relationship as being fundamentally disjunctive in nature. Seen through this lens, democracy is caught up in paradoxes of membership and authority that seem to leave us with little other choice than accepting the notion that legal authority is an act of pure independence (viz. commands made by an actor without correlative responsibility).Footnote 2 This idea of authority as pure independence is as incoherent as the idea of one player in a chess match being able to self-authorize their actions as a legitimate move in the game. This leaves us with little recourse but to appeal to some makeshift conceptual black-box to cover over the paradox of authority (viz. Kant’s thing-in-itself). We can find our way out of this paradoxical dead end by reconsidering the relationship between legality and legitimacy. For example, the fundamental constitutional convention of “what touches all should be agreed to by all” (quod omnes tangit ab omnibus comprobetur, or q.o.t.) helpfully reminds us that legality and legitimacy are inextricably interconnected. This interconnection is also clearly reflected in the notion of freedom that Rousseau develops, which holds that “[o]bedience to a law one has prescribed for oneself is freedom.”Footnote 3 It is possible to argue that that these examples set a standard of legitimacy that is practically unrealizable and so, if we adopt them, then no legal order could be taken as being legitimate. We are thus thrust back into paradox. But, here again we are jumping over the social process of judgment and evaluation and attempting to evaluate the relationship between semantics and pragmatics in the frictionless space of armchair reasoning. It is as if we had decided that the criterion for determining the validity of legal semantics is unquestioning pragmatic acceptance, which is as absurd as looking for a game that is entirely circumscribed by rules. Simply put, if we are to begin to make sense of democratic forms of government, then the relationship between legality and legitimacy cannot simply be ignored.

Two cases draw this point home. First, even if we assume that it is possible to satisfy the ideal foundational conditions set by the convention of q.o.t., the issue of membership must remain open. This is true by virtue of the simple fact that we have to account for the consent of those who are born into membership. If the question is treated as closed, then the foundational logic of the society changes from consent to historical convention by virtue of natural reproduction. There is thus a conceptual change that takes place from the foundational moment when the membership is constituted by their consent and its continuation by future generations whose consent is not relevant. If we rigidly maintain this position, we are immediately adrift in absurdities. It seems that in order to determine whether or not a given society is a democracy or not we would need to have a very clear picture of its founding moment. We would then set off in hunt of a foundational generation, but what kinds of records would we have at our disposal? How are we to interpret these records? Here again we find that our choices bristle with political significance. This problem is further magnified if we consider the fact that the notion of what counts as consent is also necessarily conventional. We thus have to consider the political and legal implications of how we determine what consent means. Is the requirement that consent is indicated once and for all in a written contract? Is it to be imputed by appeal to what rational actors would be bound to commit themselves to? Is it subject entirely to the ongoing and active consent of individual members? Each interpretation of consent is a political decision that leads us down very different constitutional paths.

Second, if we consider the actual historical foundations of presently existing states, we quickly see that none of them can resolve the problem of membership. The political history of their rules of membership is a motley assortment of legislation and explanatory conventions (viz. they are representative democracies). If we omit these histories, then we necessarily view the composition of the state as a mechanical result of the legal conventions that are currently practiced there. This external and descriptive method is akin to determining the number of chess pieces on the board by watching how the players move them. This will provide us with a count of the pieces, but it will tell us next to nothing about the actual rules of chess. H. L. A. Hart clearly and succinctly unpacks the limitations of this kind of external perspective in The Concept of Law:

If, however, the observer really keeps austerely to this extreme external point of view and does not give any account of the manner in which members of the group who accept the rules view their own regular behavior, his description of their life cannot be in terms of rules at all, and so not in the terms of rule-dependent notions of obligation or duty. Instead, it will be in terms of observable regularities of conduct, probabilities, and signs. For such an observer, deviations by a member of the group from normal conduct will be a sign that hostile reaction is likely to follow, and nothing more. His view will be like the view of one who, having observed the working of a traffic signal in a busy street for some time, limits himself to saying that when the light turns red there is a high probability that the traffic light will stop. He treats the light merely as a natural sign that people will behave in certain ways, as clouds are a sign that rain will come.Footnote 4

A political history of membership provides us with the kind of internal perspectives that allow us to make sense of membership in actual states. That is, it allows us to go beyond the narrowly defined limits of external descriptions (and their guesswork in the fancy dress of “objectivity”) and meaningfully make our way about in the hustle and bustle of everyday politics.

The everyday reality of settler states vividly demonstrates the need for a political history of membership. On the one hand, states such as Canada, New Zealand, Australia and the United States (to select only a few of the current descendants of the British Empire) are, like every other modern state, a conventionally constructed membership. But the conventions that led to Indigenous peoples being included as minorities within these states do not fit neatly within the confines of either the jus soli or jus sanguinis. The settler states acquired territories by defining the peoples they encountered as lacking the legal capacities necessary to be recognized as peoples. The territories of these states were thus acquired via a complicated mixture of practices of coercion (viz. racist legal fictions, unilateral assertions, force and fraud) as well as practices of consent (viz. treaty-making and multifarious practices of intersocietal law and governance). Simply put, Indigenous peoples did not contract into the settler states; they were conscripted into them. As a result, settler states have been left with no plausible explanation for this conscription. They have generally opted to respond by claiming that their legal authority is self-authorizing and unquestionable. This sets down a bright line between law and politics and situates the question of legitimacy squarely on the political side. This strategy of nonresponse (or nonjusticiability) has not resolved these conflicts. Rather, it has produced a body of jurisprudence whose doctrines, tests and principles are so painfully confused and convoluted that they simply cannot be understood as being consistent with the rest of constitutional law. In response to the incoherence of the law in this area, jurists in settler states have opted to basically wall the area off by labeling it “sui generis.” If this strategy were practically effective, then we would expect these sui generis legal areas to gradually slow down and eventually simply vanish, like some kind of vestigial limb, but the opposite has proven to be the case. In other words, the legalistic approach to the question of authority has failed to make any meaningful progress in resolving the foundational crisis of legitimacy that divides settler states and Indigenous peoples. The sui generis jurisprudence of Aboriginal law has continually expanded, taking us further and further down the rabbit-hole of self-constituting and self-authorizing authority. If we are going to work our way out of this crisis, we will need to start by retracing the steps that led us here.

How did we get to this point? During the long nineteenth century, each of the settler states developed complicated constitutional structures that featured categorically distinct forms of government. We can roughly divide these forms of government into two ideal types of membership, which have a wide variety of local and regional variations. First, there are those who are recognized by the government of the settler state as citizens and thereby governed by a system of rules that they have a say in making (viz. the constitutional structure was normatively legible to some of those operating within it). In practice, these representative democracies developed categorical distinctions in membership and these distinctions took their color from their context. Put somewhat differently, the legal pragmatics were subject, at least in part, to the local semantics of authority, but this authority was justified in relation to the modern standard of self-governing citizens. But these categorical unfreedoms are thus normatively legible only to the degree that the citizens find them to be so. Second, there are those who are unilaterally defined as “Indians” and governed by administrative commands backed by force. This form of government was normatively illegible to those who were subject to it because it was using formal legal mechanisms to recode their normative framework, or, to use the terminology of the time, to civilize the Indians. The first type of government fits within the broad confines of the concept of democracy (albeit its fit is uncomfortable due to the politics of determining the franchise), whereas the second openly contradicts it.

This feature is by no means exclusive to settler states. All states (indeed, all associations) are riven by political histories of the exclusion and oppression of so-called “minorities” and “aliens.”Footnote 5 Where the uniqueness of the settler states first begins to show is in terms of degree. That is, while all states deal with conflicts arising from issues of membership (e.g. secession movements, overlapping claims to territory by neighboring states), within settler states the entirety of their claim to territory rests on the legal exclusion and/or diminishment of Indigenous peoples. As a result of this unique degree of pressure on the question of membership, settler states have developed extensive and complicated legal and political structures to meet this challenge. This difference of degree led them to develop vocabularies of law that were different in kind.

The categorical difference between these legal vocabularies is particularly important when we are trying to get a sense of what the futures of democracy could be at this particular moment in history. This means that the political histories of membership in settler states offer us a unique opportunity to gain some insight into the possible futures of democracy in nation-states. Put differently, the intense pressures on the question of membership in settler states have produced something like a core sample of the political climate of Western modernity. In this way, I believe that one of our best chances to find something meaningful to say about the futures of democracy now is to begin the work of writing the political histories of membership in settler states. These histories cannot serve as prediction machines for the future of democracy (this can only ever be the territory of prophets, seers and charlatans), but they can provide us with concrete examples of situations wherein the presuppositions of membership in nation-states are exposed and contradicted by the demands of factual situations.

Among settler states, Canada provides us with a particularly unique sample: its constitutional order has been forced to respond to both the claims of Indigenous peoples and the problem of secession. The principled architecture of the Supreme Court’s response to this problem can be found in two cases, namely, R. v. Sparrow and the Reference re Secession of Quebec. The contrast between these two cases can help us to see the different historical lenses that the Court has used to respond to these two constitutional conflicts. While a fine-grained appreciation of the details of these cases is needed to really draw out this distinction, let us simply say here that the principles of these cases are not consistent with one another. Rather, they are rooted in the histories of two categorically distinct vocabularies of law. We can label these two as “democratic constitutionalism” (e.g. the combination of mixed constitutionalism and popular sovereignty introduced by the American and French Revolutions) and “administrative governance” (e.g. Colonial Administration). They correspond to two different understandings of the relationship between law and the legitimacy of the political order that stem from the so-called Second Empire of the long nineteenth century. Therefore, by understanding the principled differences between these cases we can understand the relationship between these vocabularies of law and the future of democracy in modern nation-states.

Now that we have a rough sense of the significance of both Canada and these two cases, I will set out an itinerary for the rest of this chapter. I aim for this to be an essay in the etymological sense of the term. By that I mean that I am offering a limited case study and not a systematic treatise. This is merely an initial walk across very complicated terrain, and my aim is to pick out some features and draw your attention to them. The more philosophically robust and legally systematic mapping of these features in their wider context will need to come later. That caveat in place, I have divided the chapter into two sections: first, I will elaborate on what I mean by a political history of membership. I will then make use of the concept by using it to provide readings of Sparrow and the Secession Reference as cases within a political history of membership in Canada.

What is a Political History of Membership? A Methodological Note on the Distinction Between Law and Politics

What is a political history of membership? One way of getting at this question is to understand what follows from the fact that the concept of membership cannot be removed from contestation. As I have pointed out, it is possible to remove the question of membership from one vocabulary. For example, the legal system can treat the question of membership as being nonjusticiable, but this does not settle the question; it simply shifts the venues and vocabularies of contestation. This changing of vocabularies can be difficult to see if we approach the problem from the presumption that questions of law are, in some way, categorically distinct from those of politics. While it is simply true the vocabularies of law and politics have distinct institutional practices (viz. the judicial branch of government operates by rules distinct from those found in the executive and legislative branches), we cannot plausibly claim to understand a legal system without offering an account of how the actors within that system make sense of what they are doing. We must appreciate the fact that the vocabularies of law are necessarily historical and that all competent actors need access to this dimension of the legal system to operate within it. Without this kind of account, we must limit ourselves to simply describing what the actors we observe might be doing. If we are depending on this kind of descriptive approach to make sense of what is happening in an actual legal system, things can go frightfully awry. In order to be able to claim that we understand what social actors are doing within the legal system we must be able to account for the rules that any current system operates by and how the social actors actually make sense of those rules. If we do not understand the relationship between the rules and how social actors interpret them, we cannot make sense of the daily operations of the legal system.

Let’s try and unpack the above point a bit more clearly. If we attempt to get a clear view of the legal system by setting aside its historical development and instead working from an abstract theoretical model like the imperative theory of law, we do indeed manage to articulate a clearer picture of what the law is, but it is by necessity a picture of what the social actors might be doing (as H. L. A. Hart clearly shows in response to Austin by exploring the significance of legal rulesFootnote 6). It is a re-presentation of the meaning of the actual, everyday practices of social actors that are being described. By this I simply mean that the simple imperative theory is built upon a series of presumptions, and these presumptions have significant costs. The presumptions help us by enabling us to construct a manageable view of the multiform complexity of the everyday world, but they also blind us to certain aspects of this complexity. If we presume that we are able to merely describe a given object or situation, then we are blind to the normative implications that are necessarily bound up with our use of language. This blindness is what Wilfred Sellers calls “descriptivism” (Robert Brandom uses the term “semantic naiveté” in a similar manner).Footnote 7 In order to make our way through this mistake we need to pay more attention to the relationship between description and evaluation. Sellers helpfully draws out this relationship:

Although describing and explaining (predicting, retrodicting, understanding) are distinguishable, they are also, in an important sense, inseparable. It is only because the expressions in terms of which we describe objects, even such basic expressions as words for perceptible characteristics of molar objects, locate these objects in a space of implications, that they describe at all, rather than merely label. The descriptive and explanatory resources of language advance hand in hand.Footnote 8

Once we see that describing and explaining are inseparable, we can see where we went wrong. So, with this clearly in mind, let’s reconsider the presumptions implicit in laying claim to a descriptive account of the concept of law. If we choose to simply set aside the theories of law that were the historical accompaniment of the common law in a given period, we are also choosing to subtract the normative framework that actual legal actors used to make sense of their legal system. We are treating these rival theories as rival descriptions of the law and not as normative frameworks for practically doing things within a legal system. While it is true that setting the other theories to one side and starting again from a different set of presumptions does produce different possibilities for the concept of law, this cannot be understood as merely a descriptive account. Any such project is necessarily a re-evaluation of the concept of law from a limited perspective.

This theoretical lens (to use a common metaphor) provides us with a set of new explanations and ways of practically making our way about the law. But the lens is also shaping the world that we practically navigate.Footnote 9 In this way it is like a pair of glasses: they enable us to see more clearly, but only within a limited field of view as Wittgenstein reminds us, in the case of the eye and the field of sight, “you do not really see the eye.”Footnote 10 These glasses cannot provide us a direct and unmediated view of objective reality (Wilfred Seller’s attack on the “myth of the given” comes to mind here).Footnote 11 All that these glasses can offer us is a historical picture of the law. This necessarily means that by picking up the glasses of contrasting theoretical perspectives (e.g. those of Hobbes and Harrington or Blackstone and Bentham) we get a clearer view of what historical actors were doing in their context and what they built into the legal vocabulary that we have inherited. In other words, these glasses can help us understand why historical actors made the moves that they did within their contexts and we can begin to notice how versions of these vocabularies continue to be active in the everyday workings of the legal present.

If we set all of these accumulated glasses aside and chose instead another pair, then we risk forgetting that they are on our face.Footnote 12 In this case, we lose track of the fact that our view is partial, and we lose the ability to make sense of the everyday practical reality of the legal system. At the extreme, this blinkered approach to the law produces a legal system whose reality fits Weber’s description of the “iron cage” of the future, which was inhabited by a

mechanized petrifaction, embellished with a sort of convulsive self-importance. For of the last stage of this cultural development, it might truly be said: “Specialists without spirit, sensualists without hearts – this nullity imagines it has attained a level of civilization never before achieved.”Footnote 13

The deeply rooted pessimism here is palpable, but it does not close off the horizon of the future. The “iron cage” is a view of the future. Weber was cognizant of this. As Skinner helpfully demonstrates, Weber’s historical project in The Protestant Ethic and the Spirit of Capitalism was to account for how the vocabularies of the Protestant reformation played a central role in “legitimizing the rise of capitalism.”Footnote 14 This kind of history offers us something like “its own time comprehended in thoughts” (to borrow Hegel’s evocative phrase).Footnote 15 In other words, it demonstrates that situated historical actors can and do play a role in constructing the normative vocabularies that allow them to act within the legal and political systems of their time. Skinner unpacks the significance of this in relation to Weber:

the earliest capitalists lacked legitimacy in the moral climate in which they found themselves. They therefore needed, as a condition of flourishing, to find some means of legitimizing their behavior … one of the means they found was to appropriate the evaluative vocabulary of the Protestant religion – greatly to the horror of the religious, who saw themselves as the victims of a trick … If it was a trick, however, it certainly worked. The distinctive moral vocabulary of Protestantism not only helped to increase the acceptability of capitalism, but arguably helped to channel its evolution in specific directions, and in particular towards an ethic of industriousness. The relative acceptability of this new pattern of social behavior then helped in turn to ensure that the underlying economic system developed and flourished. It is for this reason that, even if the early capitalists were never genuinely motivated by the religious principles they professed, it remains essential to refer to those principles if we wish to explain how and why the capitalist system evolved.Footnote 16

This is precisely what I am calling the “political histories of membership” provide us with. But they are not confined to explaining how and why a given system evolved. Rather, they orient us toward the present moment of a legal system and, in the best case, provide us with the opportunity to intervene and “channel its evolution in specific directions.” That is, they provide us with the practical tools necessary to interpret the everyday reality of actual legal systems and open avenues for encouraging principled change in ordinary language.

Sparrow and the Secession Reference as Chapters in the Political History of Membership

In the introduction I argued that settler states are unique in relation to other states because their claim to territory rests on the legal exclusion and/or diminishment of Indigenous peoples. This is a uniqueness of degree. For example, Spain has contested areas of jurisdiction in the substate nationalities of Catalonia, Galicia and the Basque Country, but these contested regions do not extend over the entirety of Spain. Thus, settler states are unique due to the degree of contested jurisdiction over their territory. This difference meant that in settler states the question of constitutional legitimacy was existential (viz. without a legitimate legal claim these nation-states could not exist) and so they developed vast administrative systems to address the issue, which were constructed with two categorically distinct legal vocabularies. This meant that the settler states of the long nineteenth century had a kind of bicameral constitutional order. There was the normal constitutional order built upon the principles of self-determination and constitutional law, and the Indian administrative system that operates as a state of emergency whose object was the interminable work of civilizing the uncivilized.

These administrative systems were constructed on the basis of a legal vocabulary whose concept of authority is self-constituting, irresponsible to those it governs, and ultimately incoherent. J. S. Mill attempted to legitimize this irresponsible form of government in the following manner:

Despotism is a legitimate mode of government in dealing with barbarians, provided the end be their improvement, and the means justified by actually effecting that end. Liberty, as a principle, has no application to any state of things anterior to the time when mankind have become capable of being improved by free and equal discussion.Footnote 17

Let’s unpack this a little. Mill effectively claims that the criterion for determining the legitimacy of this form of government rests in the capacity of those who claim authority to objectively know the civilizational status of those subject to it (viz. the conflict of interest here is clear). Thus, normative legibility is still the criterion of legitimacy, but (thanks to a claim to the universality of one normative framework) the onus is reversed. In this model of the state, if the basis of authority is not legible to you that is proof that you have not attained the degree of enlightenment that is required for freedom. The Kafkaesque nature of this model of government is obvious: there is no possibility of barbarians attaining liberty, there is only the “iron cage” of the future.

As a consequence of these two vocabularies of law, the theories of sovereignty that the courts have developed in settler states are not consistent with one another. By this I mean that the theory of sovereignty that is used to explain the constitutional order for citizens is distinct from the one that is used to explain the constitutional order for Indians. One of the basic criteria of the former was its normative legibility to the citizenry (viz. authority required their recognition and so the pragmatic doings of law had to reflect the semantic context) whereas the latter was normatively illegible by design (viz. authority required only their obedience).Footnote 18

This two-chambered constitutional structure was explicit for the nineteenth and much of the twentieth century, but the post-WWII process of decolonization required them to formally abandon the “temporary despotisms” of Indian administration. This has led settler states to use the legal vocabulary of minority rights to address the claims of Indigenous peoples. This can make it difficult to appreciate the seriousness of the constitutional problem. On the surface it seems that Indigenous peoples are categorically distinct from substate national groups, but that is only because the settler states have unilaterally categorized the object of these conflicts. They are not seen as conflicts over jurisdiction (like those with subnationalists) but as conflicts over minority rights. The problem here is that the unilateral categorization of one party by the other does not determine the actual object of a conflict between parties. It simply confuses the matter. For the last 150 years, Indigenous peoples in settler states have consistently articulated their claims in the vocabulary of jurisdiction and settler states have unilaterally responded with the vocabulary of rights. They have done so because the vocabulary of rights is downstream of the question of sovereignty (viz. it is a question of finding the right mix of rights to stabilize the sovereign-to-subjects relationship). This has led them down a kind of constitutional rabbit-hole wherein the courts make decisions based on policy and then half-heartedly assemble the legal authorities after the fact. It is a rabbit-hole because the resultant body of jurisprudence would only make sense within the nonsensical confines of a Lewis Carrol novel. The source of this confusion is that these settler states have retained theories of sovereignty that are theoretically unilateral, legally unquestionable and ultimately incoherent.Footnote 19 We can see how these two vocabularies persist within Canadian constitutional law by analyzing Sparrow and the Secession Reference.

Sparrow and Administrative Government

In Sparrow, the Court had to provide an interpretive framework for an unusual constitutional provision. The wording of s. 35(1) of the Constitution Act, 1982 does little more than point to content that is not actually provided (viz. existing Aboriginal and treaty rights). The position of the provision in the scheme of the act provides some insight into its significance, but it also greatly magnifies the problem posed by its vague wording. Section 35 is outside the scope of the Charter and thus it is not subject to the reasonable limitations of s. 1 or the override power of s. 33. This means that the legal quality of s. 35 has more in common with the relationship between ss. 91 and 92 of the Constitution Act, 1867. It establishes a jurisdictional line within the division of powers. But this left the Court in a very difficult position. If they interpreted the provision in this manner, they would effectively be declaring any and all legislation that touched on “existing Aboriginal and treaty rights” null and void. This would doubtlessly result in constitutional deadlock and so they set out to find the “appropriate interpretive framework for s. 35(1)” by starting with an examination of its “background.”Footnote 20 One would naturally presume that the background the Court has in mind would include a consideration of the legislative context of the provision (e.g. the extensive collection of Hansard, committee reports, related litigation, the history of the treaties), but instead they simply stated that “there was from the outset never any doubt that sovereignty and legislative power, and indeed the underlying title, to such lands vested in the Crown.”Footnote 21 The first authority that they cite for this (curious) proposition is Johnson v. M’Intosh, which is the locus classicus for the so-called “doctrine of discovery.”Footnote 22

The Sparrow framework is built upon the most pernicious legal fictions of the nineteenth century (viz. an unstable amalgam of the doctrine of discovery and the civilization thesis). By failing to address these foundations the Courts have given the Crown’s assertion of sovereignty over Indigenous peoples a strange extratextual quality: it simply has what it claims to have and is not required to tether this power to the constitutional order. Instead of securely limiting Crown sovereignty within the constitutional order the Courts have positioned Indigenous peoples as a special minority within Canada that has access to a sui generis set of group rights. They did so by basing their interpretation of the background of s. 35(1) on the vocabulary of administrative government, which starts from the presupposition that the Crown has unilateral power-over Indigenous peoples (viz. what Brandom – following Hegel – labels as “pure independence”). This vocabulary of law systematically mistakes the distinction between power and authority (viz. it assumes that to have power is to have authority). This mistake has systematic effects that ultimately render its account of the actual legal order incoherent. As Hart forcefully argues contra Austin, a theory that mistakes the distinction between power and authority purchases “the pleasing uniformity of pattern to which they reduce all laws at too high a price: that of distorting the different social functions which different types of legal rules perform.”Footnote 23

By looking to this “background” to determine the meaning of s. 35(1) the Court in Sparrow ensured that the Canadian project of reconciliation with Indigenous peoples could never make progress toward its stated purpose. This is because it unilaterally fixes the constitutional framework that the two parties are contesting. That is, the position taken in Sparrow presumes that Indigenous peoples are minorities and that the Crown is in possession of (unquestionable) sovereignty, legislative power, and underlying title. This assertion of power as authority locks Indigenous peoples into the framework of the Canadian constitutional order as conscripts.

Within the confines of the Sparrow framework, the parties cannot resolve their conflict because the legal vocabulary for resolving that kind of conflict has been removed from the board. As a result, the court has forced the parties into a surreal game in which a conflict between foundational partners over the jurisdiction in a federal constitutional order can only take place through the vocabulary of Charter-like rights. This is surreal precisely because the legal vocabulary of rights necessarily presumes that the actual issue of the conflict (viz. the nature of the constitutional relationship between the parties) is settled. This has effectively led to the development of a jurisprudence that can, at best, be described as thin principled and fact bound. Or, to be more direct, it has led to the creation of a legal labyrinth whose shifting walls and doors have rendered the constitutional order normatively illegible.

To repurpose Bentham’s phrase, Sparrow has left the Canadian constitutional order looking like “non-sense upon stilts.”Footnote 24 The problem with this kind of “non-sense” is that it is often contagious. The vocabulary of administrative government is not confined to one corner of the constitutional order. It lives in the worrying and multiform expansions of the discretionary powers of the executive. After all, the vocabulary of administrative government includes that key legal tool in the kit of nineteenth-century colonial empire: martial law. Legally unresponsible forms of government have been expanding in the twenty-first century, but they have deep roots in the nineteenth century. If we fail to notice how these administrative systems and their legitimating legal vocabulary work together within existing legal systems, then we cannot begin to understand the future of democracy.

The Secession Reference and Democratic Constitutionalism

The vocabulary of democratic constitutionalism in the Secession Reference has presented the Canadian constitutional order with the possibility of moving past the limitations of the nation-state and toward the deep pluralism of diverse federalism (borrowing Charles Taylor’s instructive work on “deep diversity”).Footnote 25 This gist of the case is rather simple: when a partner of a federal constitutional order voices a desire to leave the federation, all of the partners are obligated to come to the negotiating table and see if they can find a way to meet the underlying concerns of the aggrieved partner. This is how the Court openly mediates between the demands of legality and legitimacy.Footnote 26 Legality alone would have counseled them to find that any claim to alter the constitutional order without fulfilling its amending formula is simply without legal effect. This would provide a formally correct answer, but it would have the same binding force that the Imperial Crown’s formally correct claims to sovereign power had once the Declaration of Independence was issued – namely, very little. The Court clearly pointed to the risks of this narrow interpretive approach when they characterized the constitutional order that would result from it as a “straitjacket.”Footnote 27 Alternatively, if they had heeded the demands of legitimacy alone, then a unilateral right to secession would be consistent with the principle of self-government. This would effectively remove the binding effect of constitutional law holus bolus. In such a world, the form and substance of political association is lost, leaving only an endless cycle of fracture and subdivision. By mediating between these two principles the Court successfully avoids both of these risks.

The combination of diverse federalism and democratic constitutionalism that the Court put forward in the Secession Reference is built on the presumption that the Canadian state is composed of plural legal orders.Footnote 28 This presumption of plurality is of central importance because it leads to the construction of legal vocabulary that acknowledges that legal orders require both formal coherence and normative legibility. By taking a step back from the stifling confines of Sparrow and its nineteenth-century conception of absolute sovereignty we see that sovereignty can be the product of negotiations between jurisdictional partners within a federal or confederal relationship. In other words, this vocabulary of law carefully distinguishes between power and authority and thereby has the interpretive resources to show how authority is dependent on processes of mutual recognition. Once we understand the vocabulary that the Court makes use of in the Secession Reference, we can apply them to the problem of Sparrow and provide a meaningful path forward in reconciliation. This means that tools for modification and adjustment are no longer the exclusive purview of a cadre of legal engineers working on the magical combination of rights that will achieve the formal requirements of reconciliation behind the backs of Indigenous peoples. Rather, the vocabulary of legitimacy is openly set on the table between partners so that they can use them together to renegotiate the shared constitutional framework.

Conclusion
Those without a political history of membership are blind to the profound risk posed by the vocabulary of administrative governance, and this vocabulary was used to build part of the constitutional order in the settler states. In these states, sovereignty has been attributed to the executive branch on the basis of its unilateral assertion alone, and this commits these states to systematically mistaking power for authority.Footnote 29 This legal fiction is so potent that it has been used to recharacterize treaties as surrender agreements.Footnote 30 The concern with the idea of democratic nation-states in the nineteenth century was that they would be totalizing (Burke, Acton, Tocqueville and others voiced this concern) and so would not leave open the space for rational dissent. The risk was that a loss of the division of powers (so prized by Montesquieu) would concentrate power in a way that compelled obedience without providing any kind of normative guidance (viz. law understood – through Bentham and Austin – as the fancy dress of threats backed by force). This concern is by no means theoretical; rather, it is the everyday constitutional reality of Indigenous peoples in settler states. The vocabulary of law that catches them in this “web of meaning” (to repurpose Geertz’s phraseFootnote 31) is not confined to that little traveled attic of constitutional law known as Aboriginal law. Philp Frickey provides us with a clear and forceful analysis of the US version of this legal vocabulary:

Kagama was the first case in which the Supreme Court essentially embraced the doctrine that Congress has plenary power over Indian affairs. Its apparent inconsistency with the most fundamental of constitutional principles – the McCulloch understanding that Congress ordinarily possesses only that authority delegated to it in the Constitution – is an embarrassment of constitutional theory. Its slipshod method of bootstrapping a congressional plenary power over Indian affairs is an embarrassment of logic. Its holding, which intimates that congressional power over Indian affairs is limitless, is an embarrassment of humanity.Footnote 32

In settler states, the need to mediate between the demands of the nation-state (viz. a single people with sovereign authority over a bounded territory) and the realities of colonial empire presented two paths: the first leaned hard on the formal requirements of the nation-state and set to work civilizing those populations that could not be seamlessly fused into the body politic (the focus on children as the tabula rasa for the uniform citizenry of the future). Those following this perspective jumped over the issue of legitimacy with the thousand-league boots of colonial fictions that simply determined the legal rights of others on the fiction that such work could be done via objective evaluation alone (viz. it is possible to objectively define and identify the uncivilized). This work of constructing a legal vocabulary for the problem of legally acquiring occupied territory and conscripting Indigenous peoples was done in libraries, courtrooms and legislatures far away from those it presumed to diminish. The systematic distortion that accompanies the conflation of power and authority was missed because the legal process was designed to treat this as its unquestionable background presumption. Put otherwise, the cause of these distortions is baked into the rules of the game, and thus those playing the game in the courts are left with the maddening task of making sense of the whirlwind of principles, doctrines and tests that exist in the jurisprudence. But this should not be taken as grounds for a pessimistic rejection of constitutional law within settler states. We must remember that this was only one of the vocabularies of law that were used to account for the relationship between settler states (and the Imperial families) and Indigenous peoples.

The other vocabulary of law (which I have labeled “democratic constitutionalism”) was used in more workaday contexts than its rival. Whereas the vocabulary of administrative governance often dominated the specialized registers of colonial bureaucracy, legislatures and the courts, the vocabulary of democratic constitutionalism was more commonly used on the ground by treaty negotiators.Footnote 33 This was by no means a process that can be idealized. It was plagued by fraud and coercion, but nonetheless this was part of the on-the-ground practice of law and politics on the frontier. It could not function with background presumption that power and authority are one and the same as this would make the entire process of treaty-making senseless. How could one conduct negotiations on such terms? The only possible case that comes to mind is a kind of caricature of surrender negotiations following a crushing military defeat, but even in this extreme case, power and authority are not strictly equivalent. Courts have interpreted the treaties with exactly this distorting presumption, but the constitutional risks of this narrow formalism are frighteningly high. As Chief Justice Marshall clearly explained in Worcestor, the narrow interpretive approach should be rejected because

[s]uch a construction would be inconsistent with the spirit of this and of all subsequent treaties, especially of those articles which recognise the right of the Cherokees to declare hostilities and to make war. It would convert a treaty of peace covertly into an act annihilating the political existence of one of the parties.Footnote 34

The significance of this move to retain the “political existence” of the Cherokee nation is difficult to overstate. It is not simply that the Chief Justice is preoccupied with doing justice to the Cherokee nation. He clearly recognizes that this act of justice is a two-way street. By maintaining that the Cherokee nation is a “distinct community, occupying its own territory” he preserves the legal and normative coherence of the constitutional order.Footnote 35 Simply put, this interpretation retains the sense-making capacity of constitutional law by maintaining the distinction between power and authority.

If the Courts of settler states accept such a construction, it would allow the legislative and executive branches to effectively have the ability to remove the sovereign character of another party by unilateral declaration. This could seem to be compulsory for the “courts of the conqueror” (viz. the sovereignty of the Crown is understood to be nonjusticiable, and for good reason: if it were treated as a zero-sum proposition then the courts could delegitimate the constitutional order they operate within), but allowing this move introduces a strange loophole within the constitutional order. There are no constitutional norms to connect the declaration of legality to a comprehensible legitimating explanation (e.g. it is not conquest, not a normal surrender). This leaves it as a kind of free-floating – or, perhaps more clearly, “extra-constitutional” – plenary power that cannot be openly expressed as it contradicts the legal and normative principles that render the constitutional order legible to its citizenry.Footnote 36 Now, if we continue to attribute legitimacy to the background presumption that settler states have unquestionable power over Indigenous peoples, we also necessarily have attributed absolute sovereign power to the executive. This loss of the distinction between power and authority could be used to eclipse the distinction between the government and the state. In other words, when the courts take this kind of sovereignty as the background presupposition, they have used their judicial discretion to untether the executive from its constitutional bounds. The sole criterion for the legitimacy for such a sovereign is its self-determined power. In this instance the courts have left their constitutional posts and taken up work as the sovereign’s valet. If we accept this as a coherent and reliable picture of reality, then it seems that the futures of democracy are rather dim. After all, these spooky bootstrapping sovereigns will only suffer the rights of its citizens so long as it is convenient for them to do so. But we do not need to give into this pessimism. We can reject that vocabulary of law as incoherent. We can remind ourselves that for law to be binding (in more than the crude sense of the power of the gunman) it must be normatively legible; it must make sense to us as a rule. This means that we have to face the fact that legality and legitimacy are necessarily connected and that we cannot jump over this requirement with the pseudo-descriptive categorization of custom versus system. The only viable way forward is to make use of the imperfect tools that have developed within the vocabulary of democratic constitutionalism to construct a constitutional order that is legible to all of those it claims to include. If Western liberal democracies fail to properly understand this history, then they are doomed to suffer a similar fate.

13 Cracking the Settler Colonial Concrete Theorizing Engagements with Indigenous Resurgence Through the Politics from Below

Stacie Swain

In the way that we engage rather than disengage, we change what wants to appear unchangeable.

- Dian MillionFootnote 1
In August 2018, poet and scholar Rita Wong was sentenced to twenty-eight days in jail for blocking the gates to the Trans Mountain pipeline tank terminal in Burnaby, British Columbia. She did so in solidarity with Protect the Inlet, a movement led by the Coast Salish peoples who built Kwekwecnewtxw, a traditional Watch House, as part of their resurgence and resistance to settler colonialism.Footnote 2 More than 200 people were arrested that summer. In a statement that Wong released after her sentencing, she wrote:

I … intend to ask the court to respect Coast Salish laws that uphold our responsibilities to care for the land and waters that make life, liberty and peace possible for everyone … We can all learn from natural law and Coast Salish law that we have a reciprocal relationship with the land; and that we all have a responsibility to care for the land’s health, which is ultimately our health too.Footnote 3

Wong’s statement expresses her respect for Coast Salish law, recognizes relationships of interdependence and reciprocity within that law, and acknowledges learning her responsibility to care for the land from these legal principles. While it is not unusual for Indigenous peoples to cite their own laws within Canadian courts, Wong’s statement is notable for doing so because she is an (un)settler of Chinese descent. In other words, she is not Indigenous to the territories in question. Despite the consequences of doing so, people like Wong disrupt settler colonialism by engaging with Indigenous resurgence.Footnote 4 This process of engagement, and the collectivities that such engagements generate, comprise the subject of this chapter.

For my purposes, settler colonialism can be understood as the attempted elimination or enclosure of Indigenous lands and peoples plus the concomitant production of a new society through colonization and settlement.Footnote 5 Settler colonialism can also be characterized by “a predatory economy that is entirely at odds with the deep reciprocity that forms the cultural core of many Indigenous peoples’ relationships with land,”Footnote 6 such that capital accumulation is valued over supportive relations with each other and sustainable relationships with the earth. These predatory relations have brought settler colonial societies into the coconstitutive social and ecological crises that differentially affect individuals and groups within stratified liberal democracies.Footnote 7 As scholars argue, however, settler colonialism is “imperfect” – it is unfinished, or not fully “settled.”Footnote 8 As such, settler colonial states are always attempting to perfect their dominion over Indigenous lands and peoples.

In other words, settler colonial states attempt to enclose and foreclose Indigenous relationships to place and political authority.Footnote 9 Although Indigenous peoples continue to point out their relationships to place prior to settler presence, as Dian Million describes, “Still, the concrete is real, a metaphor that readily conveys the institutional essentializing of capitalist forms. It is meant to convey permanence when nothing is permanent, it’s all spirit, where there is only ever change.”Footnote 10 I understand “concretization” as the process through which settler colonialism attempts to perfect itself. Concretization instills a sense of permanence or inevitability – a sense in which the predatory and oppressive relations of settler colonialism are perceived as inevitable, unchangeable, and the only viable possibility – despite the ongoing presence of Indigenous nations and their legal, social, and political orders. Settler colonial concretization works by incentivizing subjects – Indigenous and otherwise – to understand themselves, the world, and their agency within it through the matrices of empire, capitalism, and colonialism.

As “subjects of empire” within settler colonial contexts, diverse Indigenous peoples come to identify with and understand themselves through asymmetrical and nonreciprocal forms of recognition, and this understanding maintains the political and economic hierarchies of imperial power and colonial domination.Footnote 11 In contrast, Indigenous resurgence movements offer conceptual and practical resources to refuse imperial subject positions and hierarchies. Indigenous theorists, such as Glen Coulthard and Leanne Betasamosake Simpson, have theorized Indigenous ways of understanding and living through the concept of “grounded normativity.”Footnote 12 Grounded normativities are deeply rooted in Indigenous relationships to land and forms of political community, and emphasize political responsibilities to place, people, and other-than-human beings. For those embedded within settler colonial concrete, however, grounded normativity can seem opaque or inaccessible because Indigenous peoples’ ontologies and epistemologies have been mystified, or even made to seem “mystical,” by Cartesian and Enlightenment-based epistemologies.Footnote 13 Yet people who are not embedded in grounded normativity, and who are not Indigenous to the place being protected, still engage with Indigenous resurgence despite the consequences of doing so – for example, those such as Wong, as a woman of Chinese descent, and other non-Coast Salish people who were arrested at Kwekwecnewtxw. Given the mystification of grounded normativity, how do people come to refuse the incentives of settler colonialism and take up a political practice that furthers Indigenous resurgence, instead of concretizing settler colonial hierarchies of domination?

In this chapter, I suggest that engaging with Indigenous resurgence can engender forms of political subjecthood and agency that complement grounded normativity, and in doing so disrupt the perception that settler colonialism has concretized. I characterize the collectivities generated through engagement with Indigenous resurgence as relational, practice-based, and animated by a place-based ethic of responsibility. In section one of this chapter, I provide an argument that begins with theories of Indigenous resurgence and grounded normativity. In section two, I offer three stories of engagement with Indigenous resurgence in which to ground my theoretical argument. These stories are drawn from my own experience, for which I am indebted to Kwakwaka’wakw, Secwépemc, and Lkwungen and W̱SÁNEĆ places and peoples.Footnote 14 In section three, I discuss the stories through the concepts proposed in my theoretical argument. In my understanding, Indigenous resurgence movements disrupt the concretization of settler colonialism by embodying decolonial political relations that are drawn from grounded normativity. As a basis from which to engage with and relate to others, grounded normativity also offers opportunities to connect and collaborate with those who share ethical commitments and a political project. The stories in section two offer examples of such cooperative work, and I deploy political theorist Jakeet Singh’s work on the “politics of recognition and self-determination from below” to understand how engagement can complement grounded normativity. Because both grounded normativity and politics from below are premised upon principles of mutual recognition and interdependent self-determination, their conjunction can precipitate ways of understanding oneself and acting in the world that are implicated within and informed by resurgent Indigenous nations’ relationships to place, political responsibilities, and practices of reciprocity. To paraphrase Wong, all those who live within Indigenous territories have the potential to learn from natural and Indigenous laws.Footnote 15 The relational and practice-based collectivities that do so, I conclude, also disrupt settler colonial concretization because they constitute a network of democratic movements – ones that recognize Indigenous forms of political authority that settler colonialism attempts to eliminate and foreclose.

Theory
The events in the stories I provide are contingent upon Indigenous resurgence, which makes it both a necessary and pragmatic starting point. While by no means homogenous, the Indigenous resurgence literature suggests that for Indigenous peoples, the pathway to a sustainable and ethical future lies in reconnecting to traditional practices while being open to and adapting to modern technologies. As Gina Starblanket notes:

The term “resurgence” implies a process of renewal or awakening from a period of dormancy. In Indigenous contexts, it also carries a particular cultural and political connotation, referring to a form of mobilization and action that is grounded in the revitalization of our traditional ways. Practices of resurgence emerge from a worldview that acknowledges a living relationship between past, present, and future, and makes possible the imagination of strategies of cultural renewal based on the interplay of pre-colonial pasts and decolonial futures.Footnote 16

As a form of mobilization, action, and practice, Indigenous resurgence movements reactivate the ethical and political commitments within Indigenous social, political, legal, and spiritual orders. These commitments can be understood as legal and political responsibilities, which flow from the historical and ongoing relationships that an Indigenous nation has with place, people, and other-than-human beings. While not being exempt from internal power dynamics,Footnote 17 Indigenous resurgence can be understood as a prefigurative political project, which imagines alternatives to settler colonialism’s hierarchies of domination.

While Indigenous resurgence can be understood as a prefigurative political project, the frame of reference and means through which Indigenous ethico-political commitments are activated and embodied can be understood as “grounded normativity.” As Nishnaabeg scholar and artist Leanne Betasamosake Simpson explains, grounded normativities are the “intelligence systems that hold the potential, the theory as practice, for making ethical, sustainable, Indigenous worlds.”Footnote 18 Grounded normativity sets out the place-based and nation-specific responsibilities that are drawn out from Indigenous forms of organization and relations with the world; upholding these responsibilities enables Indigenous peoples to live in good relationships with each other, the land, the waters, and other-than-human beings.Footnote 19 As the base of Indigenous political systems, economies, and nationhood, grounded normativities also create “process-centered modes of living that generate profoundly different conceptualizations of nationhood and governmentality” from nation to nation.Footnote 20 As a concept within Indigenous political theory, grounded normativity therefore offers resources for understanding how the ethical commitments of Indigenous legal and governance orders provide a foundation from which to critique “the imperatives of colonial sovereignty and capitalist accumulation.”Footnote 21 In practice, grounded normativities provide a perspective or frame of reference from which to understand oneself and the world, and embodied techniques through which to express political agency against and instead of how settler colonialism interpellates and incentives. As Simpson and Coulthard describe, “Grounded normativity teaches us how to live our lives in relation to other people and nonhuman life forms in a profoundly nonauthoritarian, nondominating, nonexploitive manner.”Footnote 22 Grounded normativities are how Indigenous resurgence movements embody the decolonial relations that they envision.

As argued, Indigenous resurgence and grounded normativity provide forms of political subjecthood and agency that significantly differ from those offered by empire, capitalism, and settler colonialism. However, it is worth taking a step back to ask what precipitates an understanding of one’s practices as expressions of political agency within the context of collective movements against oppressive structures. Legal scholars Val Napoleon and Hadley Friedland ask a similar question: how can people in marginalized subject positions, and those who work with them, view their everyday practices as “practices of citizenship” within anti-imperial and decolonizing movements – in light of the sense of powerlessness often felt by such subjects?Footnote 23 Their theoretical work is instructive for other contexts in which a sense of powerlessness is inculcated, such as I posited for settler colonialism earlier. Settler colonial society can be understood as one such context because political possibilities are constrained by the concretization of unjust relations of domination; settler colonialism encloses subjecthood and agency, forecloses alternatives, and institutionalizes a sense of permanence or inevitability. Napoleon and Friedland suggest that the shift in perspective from powerlessness within one frame of reference to political agency within another involves three factors: the recognition that one has the “freedom to act otherwise,” even within limits; the development of “a broader frame of meaning” through which to understand one’s actions; and the connection of one’s actions to a larger political project. To build on their work, in the context of settler colonialism individuals must see themselves as more than “subjects of empire.” Rather, subjects must understand themselves and their actions through more liberatory frames of reference, such as those offered within the grounded normativities of Indigenous nations. Then, connecting to a collective, political project such as Indigenous resurgence allows for new possibilities and cooperation between those who are engaged in practices of freedom or practices that resist domination and oppression.

Thus far, I have built upon political theorists, primarily Indigenous, to suggest that grounded normativity and Indigenous resurgence offer anti- and decolonial forms of subjecthood and agency for Indigenous peoples. In doing so, they subvert the logics of settler colonialism and disrupt its concretization. While somewhat abstract up to this point, I will ground this theory in sections two and three. In my introduction, however, I pose a question: how do people who are not Indigenous to a place in question come to refuse the incentives of settler colonialism and disrupt its concretization by taking up a political praxis that complements Indigenous resurgence?Footnote 24 An initial reason to ask this question is because Indigenous resurgence is often conceptualized as a turn inward, away from the settler colonial state – and perhaps society, too. Further, as described earlier, the resurgence literature shows that grounded normativity is place-based and nation-specific: it is embedded in relationships to the lands and waters, stories, songs, dances, ceremonies, subsistence practices, and other such learned perspectives and embodied techniques.Footnote 25 Grounded normativities can therefore be inaccessible to those who are not embedded within them – not because they are inherently opaque or mystical, but because settler colonialism attempts to erase or capture them within imperial, capitalist, and liberal frames of reference.Footnote 26 However, grounded normativities must be able to be engaged with and learned, even if incrementally. I say this for one, because members of diverse Indigenous nations return to grounded normativity despite the displacements and disconnections of settler colonialism. Further, Indigenous scholars turn outward and explain their own nation’s grounded normativities as a basis from which to engage with others.Footnote 27 The act of turning outward is key here, because I suggest that it creates the opportunity for those who are not Indigenous to a place in question to engage with and learn from Indigenous resurgence within a shared, collective political project.

As Simpson and Coulthard describe, “grounded normativity teaches us how to be in respectful diplomatic relationships with other Indigenous and non-Indigenous nations with whom we might share territorial responsibilities or common political or economic interests.”Footnote 28 On a more intimate scale than the nation, Simpson conceptualizes networks of consensual and reciprocal relationships through the constellation as drawn from her own nation’s grounded normativity. Speaking to the opacity previously mentioned, like the land itself constellations are “visible to everyone all night” but “unreadable theory and imagery to the colonizer or those who aren’t embedded in grounded normativity.”Footnote 29 For Simpson constellations are entry points that function in relationship with others, and thus also offer lessons on connection and cooperation: “Constellations in relationship with other constellations form flight paths out of settler colonialism into Indigeneity. They become doorways out of the enclosure of settler colonialism and into Indigenous worlds. They can be small collectives of like-minded people working and living together, amplifying the renewal of Indigenous place-based practices.”Footnote 30 In the stories that follow, I talk about engagements with Indigenous resurgence as examples of such collectives that support the renewal of Indigenous place-based practices. The point that I aim to develop further is the process through which Indigenous resurgence movements open doorways for others to see and step through – not into an absence, nothingness, or lawlessness, but into generative relations that engender forms of subjecthood and agency that complement grounded normativity.Footnote 31 Grounded normativity offers ways to relate that refuse the concrete enclosures of settler colonialism, with an emphasis upon practice and collaboration from the ground up.

With an eye toward those who are engaging with grounded normativity instead of those fully embedded within it, I suggest that Singh’s “politics of recognition and self-determination from below” can be used as a complementary approach. Singh contrasts politics from below against top-down or statist projects, emphasizing politics from below as a form of “building or practicing alternative cultures of politics from the ground up.” These alternative politics tend to be “articulated in the relatively provisional voice of a much less dominant social actor who is participating in an ongoing social struggle and critical dialogue with many other (differently situated) social actors.”Footnote 32 As I understand it, this aptly describes the situation of Indigenous nations and others within stratified settler societies, sharing in struggles against imperialism, capitalism, and colonialism. The politics of recognition from below requires mutual rather than unidirectional recognition between subjects as relational actors sharing in struggle,Footnote 33 wherein power is understood as cooperative or interactive instead of coercive; coupled to power, freedom can be understood as a form of “situated agency” within power relations.Footnote 34 In my reading, this “situated agency” resembles the principles of relationality and reciprocity that often animate Indigenous resurgence movements. Within these movements, grounded normativities propose a dynamic of recognition that is premised upon seeing oneself as situated in relation to and interdependent with others (including place and nonhuman others) – instead of through the hierarchical politics of recognition offered by the settler state and society – which affects one’s expressions of political agency and instills the responsibility to sustain one another through practices of reciprocity. The politics of recognition and self-determination from below and grounded normativity complement each other in their shared emphasis upon practicing alternatives from the ground up, mutual recognition, and situated or relational agency expressed in pursuit of freedom, which is a mutual benefit.

To summarize my theoretical contribution, I propose that we understand engagements with Indigenous resurgence that occur through a politics from below as generating collectivities that are relational, practice-based, and animated by a place-based ethic of responsibility. As Singh describes, politics from below are “a kind of ethico-political practice” to bring about “alternative ethico-political goods,” instead of “a particular institutional telos” within imperial relations.Footnote 35 In the context of settler colonialism, those “alternative ethico-political goods” include a more just and sustainable relationship with Indigenous peoples, the earth, and each other more broadly. As Wong alludes to in her statement upon sentencing, these ways to relate are premised upon principles of interdependence, responsibility, and reciprocity learned from resurgent Indigenous nations. Others are drawn into relational and practice-based collectivities through ethical, cooperative work alongside Indigenous resurgence movements. Relational and practice-based collectivities animated by a place-based ethic of responsibility have implications within settler colonial contexts: they offer alternatives to settler colonial relations of domination, in the form of collective cooperation and collaboration with diverse Indigenous nations grounded in their own normativities. By enacting these alternatives, relational and practice-based collectivities generated through engagement with Indigenous resurgence disrupt the concretization of settler colonialism. In the next two sections, I turn to movements and engagements to illustrate this process.

Stories

In this section, I narrate three stories of engagement with Indigenous resurgence movements. I aim to ground my theory of relational and practice-based collectivities, animated by a place-based ethic of responsibility, within the movements and places that the theory is drawn from. I relate these stories from my own experience, as a white, cis, able-bodied settler of Ukrainian–British descent, who grew up in Treaty 6 territory south of Amiskwaciwâskahikan/ᐊᒥᐢᑲᐧᒋᐋᐧᐢᑲᐦᐃᑲᐣ (Edmonton). I moved to Lkwungen and W̱SÁNEĆ territories in August 2017, after which I began to physically engage with Indigenous resurgence movements. I offer these stories from my own perspective because the engagements taught me, and others working alongside me, to see beyond the concrete that calcifies our current, unsustainable social and ecological situation.

My methodological approach is informed by Paulo Freire’s conceptualization of praxis. For Freire, praxis requires the identification of a problem, action to address that problem, and reflection, which informs further action.Footnote 36 As such, theorizing, acting, and reflecting are coconstitutive elements of any attempt to transform conditions of oppression. In each story presented here, settler colonialism in a range of forms, including the predatory relations identified earlier, can be acknowledged and understood as the problem. This problem spurred me and others to act alongside Indigenous resurgence, and against settler colonialism. For me, writing this chapter is a form of reflection – one form of dialogue alongside other, ongoing conversations. The engagements in the stories herein were not perfect, in part because of my own situated whiteness, but they have also been place-based, generative processes of relationship building, learning responsibilities, and practicing reciprocity. As moments of engagement with Indigenous resurgence through politics from below, I consider them through the framework of “flows, rivers, kinships, [and] knowledges that do not create enclosure, but that create relations, help, support, other ways of thinking and moving concrete.”Footnote 37

Story 1

It is February, and the dusting of snow on the trees that line the narrow highway glows gold in the sun. Two friends and I are on our way to Port McNeill, on the northeast side of Vancouver Island. From there, we will take a ferry to Yalis/Alert Bay, and then a smaller boat to a place called Swanson Island. We are there in answer to a call for supporters put out by hereditary Chief Ernest Alfred of the ‘Namgis nation, who has been (re)occupying a cabin built by the Norwegian corporation Marine Harvest Seafood (now called Mowi) since September 9, 2017. The cabin, seemingly abandoned along with three others, sits across a small bay from an open-water net pen fish farm. When we arrive off the dock in Alert Bay, we are met by an organizer of the group Maya’xala Xan’s Awinakola, which translates (if insufficiently) to “respect our land, sea, and sky,” because we are part of and depend upon them. The sign-up form on the Maya’xala xan’s Awinakola group’s website states “You will be provided with Protocol from the ‘Namgis and Mamalilikala Tribes. You will be expected to maya’xala – respect and follow and adhere to the ground rules of being at the farm.”

We are told to expect a quiet week because the fish farm is currently empty, and are given instructions on what to monitor, how to order food supplies, and what amenities the cabin offers. There is a wood-burning stove to heat the cabin, internet if we turn the generator on at night, and a composting toilet. In addition to monitoring activity on the fish farm, we are welcome to do small improvement projects around the site. I hammer thin strips of wood across the slippery boards up to the composting toilet, one friend patches rotting slats in the walkway, while another builds a wooden frame for the camp stove inside. The mornings begin with a quick and icy splash from the rain barrel, while days are filled by reading and eagle-watching interspersed with walks. Once darkness falls, we stoke the fire, drink tea, eat chocolate, and play cards. We sleep on the floor next to the stove.

Our time on Swanson Island brings a strange mix of feelings. It is often idyllic, alternatively anger- and sadness-inducing, and sometimes exciting. The first evening there, we witness a stunning orange, purple, and deep blue sunset. As the light fades from the sky, the array of pens and floating docks across the bay is hidden within the black silhouette of the land that marks the water’s edge. The waters off Swanson Island, like others within the Broughton Archipelago Marine Conservation Area, are host to open-net pen fish farms. The pens are regularly filled with imported Atlantic salmon smolts who spend about two years growing before being collected, canned, and shipped to other countries. While the salmon are in the pens the fish farmers feed them food pellets which, along with their feces, can pass through the nets to litter the seabed. Similarly, small fish can pass through the nets and juvenile wild salmon can get trapped within them. The net-pens are breeding grounds for sea lice, which pass through and pass on piscine ortho-reovirus, a disease that reduces wild salmon’s musculature and thus their ability to move quickly, catch prey, and travel upstream to their spawning grounds.

The lands and waterways that belong to the wild salmon also comprise the territories of several nations within the Kwakwaka’wakw, those who speak Kwak’wala. At least five of the local nations – the ‘Namgis, Musgamagw Dzawada’enuxw, Mamalilikala, Kwikwasut’inuxw Haxwa’mis, and Gwawaenuk – have been united in their opposition to fish farms for more than thirty years.Footnote 38 Elected and traditional leaders issued multiple eviction notices to the fish farms in 2001, 2003, and in August and December of 2017. These eviction notices have also been delivered through oral tradition, such as by Ma’amtagila matriarch Tsastilqualus Umbas in 2019. Swanson Occupation, in addition to occupations and camps near other fish farm sites, is part of the local nations’ movement to re-establish presence and assert jurisdiction over the lands and waters that they have never ceded or signed treaties to share. In the December 2017 eviction notice, Musgamagw Dzawada’enuxw identify open-water pens as “a serious risk to our wild salmon, environment, culture, and way of life.”Footnote 39

By coming to Swanson Occupation, my friends and I give Chief Ernest a period of respite with his relatives in town. While there, we watch the fish farm through binoculars and a telescope, listen to a squawking CB radio, and record the names of the boats that come and go and how many people arrive and leave with them. One day a large boat comes, with a long blue tube that we learn is sucking dead fish from within the net. Next comes a barge loaded with nets and white bags, which we are told is probably feed. Contrary to the expectations of the local nations, the Swanson Island fish farm is being prepped to host another shipload of Atlantic salmon smolts. The smolts will be propelled into the pens through a tube like the one that sucked the dead fish up. My friends and I return to the city at the end of our six days, where we begin to learn more about the fish farm industry and Kwakwaka’wakw resistance. Over the next few months we organize a phone bank, which leads to us becoming engaged with a community of others acting in support of Kwakwaka’wakw resistance and resurgence.

Story 2

In August 2018, I helped to organize a bus trip that departed from the Lkwungen and W̱SÁNEĆ territories of Victoria, BC, took a ferry across the Salish Sea, made several stops in Vancouver, and traveled to Secwépemcul’ecw – the territories of the Secwépemc nation, which lie on the eastern side of the Rocky Mountain Range. The bus trip, which had more than twenty people of Indigenous and non-Indigenous heritage on it, began with an invitation extended by the Tiny House Warriors (THW). The THW are a movement, largely made up of Secwépemc women and families, which intends to place ten tiny houses in the path of the Trans Mountain Pipeline Expansion (TMX).Footnote 40 The expansion would not only increase the flow of oil through Secwépemcul’ecw, but also bring transient workers for construction and the industrial “man camps” associated with large-scale oil and gas infrastructure.

On the bus trip, our destination was meant to be the THW village at Blue River, then the highest point on the “Canadian” side of the Rocky Mountains: Mount Robson Provincial Park, where Mount Robson overlooks the visitor center.Footnote 41 We were going there for an event called “Our Water Gives Life: WUCWMILCETKWE.” Before reaching Blue River or Mount Robson, however, our journey was beset with difficulties. First, some people’s gear was stolen from the bus in the wee hours of the morning that we were leaving. Then, officers of the Royal Canadian Mounted Police (RCMP) met us in the Vancouver parking lot where we had arranged to pick passengers up, indicating that they were aware of our route and surveilling our movements. Once on our way, the community action bus – a blue school bus converted to biofuel – chugged up the hills of the Coquihalla highway before overheating in the hot August weather. We pulled over once, then again, near the apex of a hill inundated with smoke and a forest fire visible on the far side of the neighboring mountain. While we debated what to do, someone smudged the bus with sage. We opted to continue on, and were pleasantly shocked to see the bus levels stabilize enough to coast into Kamloops that night. Now in Secwépemc lands under the jurisdiction of the women traveling on the bus with us, we cooked dinner and changed to a mini-bus organized by the THW. Late that night, the mini-bus delivered us to a Mount Robson campground where we (re)claimed a group campsite and set up tents for a few hours of sleep.

The next day, the hot afternoon brought another form of heat: the RCMP’s Aboriginal police liaisons, who pressured us to leave despite Secwépemc people asserting their right to be on their territory, threatening us with forcible removal and arrest. Then the THW pulled a tiny house onto the visitor center lawn, and we joined them there. The afternoon featured drumming and singing by the Secwépemc and others, music and dancing on the service road, and speakers from Kwekwecnewtxw/Protect the Inlet and other Indigenous land defenders from further afield. We shared barbequed wild salmon that our bus picked up from a reserve downriver, alongside bannock, potatoes, corn on the cob, and a grain salad. When the gathering concluded we camped near the visitor center, and the next morning we ate breakfast, listened to stories, and then moved with the tiny house to blockade a small bridge over the Fraser River. There, within a stone’s throw of a TMX pumping station and with the green water rushing over the rocks below, an elder offered a prayer. While sage burned in an abalone shell on one of the concrete barriers, we tied red ribbons to the bridge in honor of missing and murdered Indigenous women, girls, and two-spirit people up- and downriver. Secwépemc/Ktunaxa woman warrior, birth keeper, and traditional tattoo artist Kanahus Manuel spoke of fulfilling her responsibilities to the river rushing below, the berry bushes fed by it, and to her own nation, but also to those who are connected to the Secwépemc through the river and the infrastructure of TMX. Some of the wild salmon who swim through Kwakwaka’wakw territories migrate as far as Rearguard Falls, a mere ten minute drive away from the Mount Robson visitor center. On our journey back to the Salish Sea, we stop to visit the THW village at Blue River and are shown where to gather and eat some wild blueberries. The newly serviced community action bus is filled with singing as we descend toward the coast and the places we reside. This is not an ending, however: the THW continue their work in Blue River, while others go on to blockade tank terminals at Kwekwecnewtxw, resist RCMP invasion at Gidumt’en, (re)occupy the BC Legislature, and build tiny homes and Little Big Houses for the people and places we relate to.

Story 3

As an early fall morning sleepily dawns some months later, I arrive on the University of Victoria campus with coffee in hand. In the green space next to the Students’ Union Building, I take out my keys to unlock the tall, blue, padlocked construction fencing. After I swing open one fence panel to create a gap, I set up an awning, tables, lawn chairs, signage, and tee-shirts that read “water is life” and “protect the sacred.” Further inside sits a flatbed trailer with its wheels taken off, leveled on wooden blocks atop a small hillock. On the trailer, a structure is taking shape. The morning sun filters through misty clouds, illuminating the dewdrops that line the grass and piles of tarp-covered tools and lumber. As I work on one side, Catherine pulls her truck up and unlocks another, smaller gap. Catherine is a builder who began building tiny houses as a volunteer with the THW in Neskonlith, and who now lends her time, knowledge, and experience to building projects organized within Lkwungen and W̱SÁNEĆ territories. On the first morning that we met here, W̱SÁNEĆ/ Sḵx̱wu7mesh plant and language revitalist Tiffany Joseph had welcomed volunteers and shared teachings about the place, the land, and her people, including her family’s long-running relationships with members of other Indigenous nations.

Standing in the cool morning air, Catherine and I sip our coffee together. We chat about how many build volunteers have signed up for that day, what tasks they will work on, what’s for lunch, and if there’s a workshop happening that evening or not. As volunteers start to arrive, the sounds of conversation and construction begin to fill the air. This particular moment is easy for me to evoke from my memories of October 2018 and September 2019. In those times, UVic students and community members (Indigenous and non-Indigenous) came together to provide material infrastructure for Indigenous resurgence movements: first for the THW resisting TMX by returning to their lands, and then for the Ma’amtagila (Kwakwaka’wakw) nation fighting against fish farms and deforestation. The first was one of three tiny houses sent to the THW, while the second was a “Little Big House” for matriarch Tsastilqualus and her kin to move home to Hiladi, “the place to make things right.” At Hiladi the Matriarch Camp will rematriate the land and rebuild their nation, like the THW are doing across the Salish Sea and upriver. As the summer arrives they are collecting seeds, starter plants, and tools to support their move home.

Discussion

I offer these stories as examples of engagement with Indigenous resurgence movements. They can be understood as examples in which grounded normativity and politics from below function complementarily to generate relational and practice-based collectivities comprised of those who are Indigenous to a place in question and those who may not be. These collectivities are animated by a place-based ethic of accountability, learned from principles of relationship, interdependence, and reciprocity present within the grounded normativities under discussion. As Million cautions, however, “These are familiar words now, relations, reciprocity, resurgence – but it is also our responsibility to look closely at what we practice to bring these closer into living.”Footnote 42 In this section, I reflect upon the stories of engagement through the concepts developed earlier. To keep the discussion manageable, I focus on three questions: How do the movements in question enact their grounded normativities within political projects of resurgence to create opportunities for cooperation and collaboration? How does the process through which others engage with these movements represent a politics of recognition and self-determination from below? And how does a place-based ethic of responsibility manifest within and through these engagements?Footnote 43 Relational and practice-based collectivities, I argue, constitute networks that are informed by and implicated within Indigenous resurgence. These networks disrupt the concretization of settler colonialism by embodying alternative relations.

A brief consideration of settler colonialism’s concretization helps to provide context for what follows. As discussed in my introduction, the enclosures and foreclosures of empire, colonialism, and capitalism can be understood as logics and techniques of concretization. For example, the histories that shaped Kwakwaka’awkw, Secwépemc, Lkwungen, and W̱SÁNEĆ contexts include the enclosure of Indigenous children within residential schools and Indigenous nations within reserves. Although contested by the Indigenous peoples they attempt to contain throughout history and into today, these enclosures limit the mobility of Indigenous peoples while opening up their lands and waters for settler colonial infrastructure such as fish farms, pipelines, cities, and university campuses. In doing so, they also attempt to foreclose the possibility of Indigenous political authority, law, and governance. Disconnected or restricted from land use, life ways, and livelihoods,Footnote 44 the Indigenous peoples of these places have been subjected to predatory and oppressive systems: as wage workers in canneries or fish farms, subjects of environmental racism and gender-based sexual violence in communities near industrial projects, and consumers within colonial and capitalist structures that occupy stolen lands, such as universities. Within these sites, those who are embedded within settler colonialism populate and reproduce settler colonial structures, logics, and norms. Concretization occurs when people do so as if there is no other choice – thinking and acting as if settler colonialism is permanent or inevitable.

Despite settler colonialism’s attempt to concretize, diverse Indigenous nations have dynamic legal and governance orders that persist and manifest within Indigenous resurgence movements. Practices of resurgence are not in idealized, precontact forms; they are drawn from grounded normativities, based in tradition but adapted to modern exigencies. Examples include the Watch House at the tank terminal in Coast Salish territories, Secwépemc using tiny homes on trailers to rebuild villages because their “land is home,” or members of Kwakwaka’wakw nations delivering written and oral eviction notices to fish farms by canoe and speedboat, while wearing once-forbidden regalia. These are members within Indigenous nations exercising sovereignty.Footnote 45 As the THW say, “We are committed to upholding our collective and spiritual responsibility and jurisdiction to look after the land, the language and the culture of our people.” This responsibility may arise from the legal principle of Qwenqwent, or humility and human dependence upon the land, which is expressed within Secwépemc language and stories.Footnote 46 Or, as one of the Musgamagw Dzawada’enuxw eviction notices reads, “We are here because we feel it is necessary, in order to preserve and protect these lands and waters that have been the home of our people for thousands of years. It is our right and responsibility to be here.” As Sarah Hunt contends, Musgamagw Dzawada’enuxw boarding fish farms were not performing civil disobedience, and I would add that nor were the ‘Namgis, and Ma’amtagila alongside them.Footnote 47 Rather, they were enacting their responsibilities to wild salmon, to each other, and to the land and waters in accordance with their laws.Footnote 48 This can be understood through the framework of maya’xala xan’s awinakola, which approximately translates to respect our land, sea, and sky, which includes the living beings within these realms. By being on the lands and waters to protect their homelands from colonial and capitalist harm, Secwépemc and Kwakwaka’wakw people represent Indigenous resurgence movements embedded within their respective grounded normativities, upholding their ethical commitments and political responsibilities to place, other-than-humans, and each other.

In taking up their political responsibilities, Secwépemc and Kwakwaka’wakw resurgence movements have also turned outward, inviting others to work alongside and share in their political projects. As the Maya’xala Xans Awinakola website explains, visitors to Swanson Island would be provided with protocol and expected to maya’xala – respect, adhere to, and follow the ground rules of being there. The THW “Our Land is Home” project states “The Tiny House Warriors are building something beautiful that models hope, possibility and solutions to the world. We invite anyone and everyone to join us.”Footnote 49 Further, the trip to Secwépemcul’ecw only came about because of the THW’s invitation to “Our Water Gives Life: WUCWMILCETKWE”:

We are inviting you to join us on this beautiful day to acknowledge and give thanks to the headwaters of the Fraser River, that form in Secwépemc Territory … We ask you to gather with us on this day for this family-friendly event of music, sharing food and witnessing the lands and water at risk at the Sacred Headwaters.Footnote 50

By identifying ways to relate to others and to place, these invitations reflect the legal principles, ethical commitments, and political responsibilities contained within their respective nations’ grounded normativities. To recall Simpson’s constellation metaphor, I understand these invitations as Indigenous nations embedded in grounded normativity opening a doorway and inviting others to approach and step through it. When people do so, it creates an opportunity for collective, ethical, cooperative work based on mutual recognition and self-determination – a politics from below.

To reiterate one aspect of my theoretical argument, I suggest that a praxis based on mutual recognition and self-determination from the bottom-up, where a politics from below complements grounded normativity, has the potential to shift the frame of reference through which participants understand their political subjecthood and agency. In other words, those engaged in relational and practice-based collectivities are not necessarily embedded within grounded normativity – though their political subjecthood and agency can be implicated within and informed by grounded normativity to amplify what Simpson refers to as “the renewal of Indigenous place-based practices” – or Indigenous resurgence. Namely, upon entering into relationship with Indigenous places and people through a dynamic of mutual recognition, those who were not Indigenous to the place in question must recognize the ongoing sovereignty and jurisdiction of Kwakwaka’wakw and Secwépemc people. Pursuant to this, and because this dynamic of recognition is reciprocal, those who are engaging with Indigenous resurgence are recognized in turn by members of Indigenous nations who are grounded in their own governance and laws. This recognition interpellates those who are not Indigenous to the place in question not as “Indigenous” in any sense of the term nor as members of Indigenous nations, but as relational actors situated within the web of relationships that inhabit and include that place. Expressions of political agency, or practices of self-determination, are conditioned by this recognition and the relationships that follow; in other words, mutual recognition from below informs political conduct or praxis. Put simply, those who recognize Indigenous nationhood must act as such – these relationships shape behavior. For example, fish farm occupiers practice maya’xala through the protocols provided, and bus trip participants listen to and follow the lead of Secwépemc people while present within Secwépemcul’ecw.Footnote 51 Taking up a political praxis through a politics from below, engaged with Indigenous resurgence, means learning from Indigenous ways of understanding and relating to place, other people, and other-than-human beings.

From this learning, a place-based ethic of responsibility extends outward from Indigenous grounded normativities to others relating to that place. In other words, those who are not Indigenous to a place in question come to see their own responsibilities within and to place. As discussed, Kwakwaka’wakw and Secwépemc resurgence movements draw their political practices from place-based grounded normativities, which contain principles of responsibility, interdependence, and reciprocity. In the stories presented here, I and those with me on Swanson Island and within Secwépemcul’ecw bore witness to these principles in practice. To illustrate this, I will draw upon my own experience, as someone who was raised in “oil country” and who now lives on Coast Salish lands. After spending time on Swanson Island to protect the salmon, I learned about how wild salmon travel throughout coastal waters and into the interior, as a keystone species that feeds other animals and the forests, in addition to Indigenous nations. For example, as the invitation to “Our Water Gives Life: WUCWMILCETKWE” describes, “This area is Sacred to Secwépemc and have [sic] nourished thousands of years of Secwépemc and all Indigenous Peoples and Nations downstream that depend on the Fraser River.” At the headwaters of the Fraser River in the interior we heard Kanahus Manuel speak upon her responsibility to others connected by the water – not only the wild salmon and those who depend upon them, but also women, girls, and two-spirit people endangered in both directions along the pipeline crossing Secwépemcul’ecw, toward the Alberta tar sands in one direction, with the tank terminal in Burnaby and the supertankers traversing the coastline of Vancouver Island in the other. From a perspective drawn from place, the interdependencies across these places – and the ways in which settler colonial infrastructures attempt to disconnect and sever them – become much more visible, as does one’s own implication within them. From this shift in perspective and recognition of interdependence, as learned from Indigenous grounded normativities, flows a place-based ethic of responsibility. This ethic, in turn, can engender a political praxis of reciprocity that creates further opportunities for collaborative work in solidarity with Indigenous resurgence.

Having developed a place-based ethic of responsibility, those who have engaged are motivated to give back to the Indigenous peoples and places they relate to and learn from. To see how a place-based ethic of responsibility can engender a reciprocal praxis, we can most easily look to the Tiny House and Little Big House builds.Footnote 52 These build projects were made possible by engagements with Kwawkwaka’wakw and Secwépemc people embodying the grounded normativities of their nations within their own territories. Given where the builds took place and to recognize Indigenous political authority, it is important to recognize that some of these engagements were between W̱SÁNEĆ and Secwépemc people, or W̱SÁNEĆ and Ma’amtagila people. For example, at the first build on campus, Tiffany Joseph spoke of her family’s connection to the Secwépemc/Ktunaxa Manuel family through several generations; at the second, Tiffany and Ma’amtagila matriarch Tsastilqualus each spoke of their mutual love and respect. In addition, the builds arose from prior engagements and collaborations between those who are Indigenous to the place(s) in question and others who are not. For instance, the builder involved went to Secwpemcul’ecw to build Tiny Houses and brought this knowledge back to the island, and there was a Tiny House built by community members on W̱SÁNEĆ territories a year or so before the campus build took place.Footnote 53 The two build projects I speak of were entirely volunteer-run. This included organizing meetings, fundraising, physically building the houses, holding art and screen-printing workshops, hosting panels and talks, and feeding volunteers throughout. Many volunteers participated in multiple builds, transmitting knowledge, learning new skills, and building relationships. As sites of engagement that provide material support for Indigenous resurgence, the build sites provide opportunities for collective, cooperative work – those who take this work up constitute what I have termed relational and practice-based collectivities. That collaborative work is geared toward amplifying the land-based practices of Indigenous resurgence – those who protect the territories that sustain all of us, and whose invitations into that work make our own interdependence and responsibilities visible. In giving back to Indigenous people protecting the land, we give back to the lands and waters that sustain us. Understood from within a place-based ethic of responsibility, the Tiny House and the Little Big House are material embodiments of reciprocity in practice.

The engagements that I discuss, including the builds, would not have been possible without the Indigenous resurgence movements at the center of them. Through these movements and the networks extending out from them, people learn ways to relate that are drawn from Indigenous normativities; the relational and practice-based collectivities generated through these processes will help sustain Indigenous resistance and resurgence. I feel compelled, however, to address an issue that I see as both a limitation and a possibility within my experience and this discussion. The stories that I share and reflect upon primarily center upon Secwépemc and Kwakwaka’wakw resurgence and grounded normativities. However, it is the Lkwungen and WSÁNEĆ peoples who have legal and governance orders that respect the land, water, and wild salmon here and now, where the builds took place and where I write this chapter from. In the stories, however, I have provided little evidence of engagement with the ways that Indigenous resurgence and grounded normativities are embodied and practiced by members of Lkwungen or WSÁNEĆ nations. They too have distinct ways of relating and upholding responsibilities to place, to the water of the Salish Sea and up rivers like the Goldstream, where wild salmon still return to spawn.Footnote 54 While my own focus in this chapter doesn’t preclude those who were involved from having prior, deeper engagements with the Indigenous peoples of these lands, it does reveal where the build projects and I still need to do more learning, relationship building, and cooperative work. From the theoretical perspective I argue for here, however, this limitation is also where the potential lies. Participation within relational and practice-based collectivities induces others to see themselves as subjects and agents within broader, place-based networks of interdependence, responsibility, and reciprocity. This shift in perspective may also lead one to look more closely at the place one lives, where the concrete of settler colonialism may appear to be more solidified but cracks remain and can be widened.Footnote 55 For example, engaging with place and wild salmon alongside Kwakwaka’wakw and Secwépemc people embedded in grounded normativity may precipitate not only recognizing the Goldstream River as SELEK̵TEL̵, but also wondering how the stream that runs beneath a road, on the commute to campus instead of within a provincial park, formerly and still sustains life – and how one’s everyday actions may impact its ability to do so.Footnote 56 Engaging with Indigenous resurgence, even if partially and imperfectly, can serve as a step toward relationships and practices for living more responsibly with these lands and waters.

Conclusion

The relational networks comprised of resurgent Indigenous nations and those who engage with them can be made visible by looking to place. The collectivities that make up these networks can be understood as democratic movements that recognize the political authority and vitality of resurgent Indigenous nationhood in the present, in the places we live and interact with and within. By relating and acting in ways that refuse the incentives of empire, capitalism, and liberalism, these networks of relational and practice-based collectivities threaten the permanence and inevitability of settler colonial structures and institutions.Footnote 57 Evidence of this can be seen in the surveillance of Indigenous movements and rights activists by Canadian Security and Intelligence Services (CSIS) and the RCMP, the latter of whom monitored me and others within Secwépemcul’ecw. As Jeffrey Monaghan and Miles Howe show, when it comes to Indigenous movements the Canadian security state’s pre-emptive surveillance and policing tactics “translate the potential ‘successes’” of Indigenous social movements that challenge injustice “into ‘risks’ associated with public order,” revealing a logic of enmity.Footnote 58 Settler colonial surveillance tactics do not emphasize actual violence or lawlessness, but rather various noncriminal criteria that demonstrate an individual or group’s potential for “virality”: their mobility, appeal to others, and ability to network and “gain popular support” through affiliation and alliance-making.Footnote 59 As one surveillance report warns, “the longer a protest continues, the stronger and larger the web of interconnectivity grows and the more difficult it will be to disentangle.”Footnote 60 This attempt to disentangle – to disconnect, enclose, and foreclose by concretizing colonial and capitalist structures – is a primary logic of settler colonialism.Footnote 61 Through engagement, connection, and collaboration with Indigenous resurgence, relational and practice-based collectivities have the potential to subvert settler colonial logics such as this. Because this web of interconnectivity is premised upon ways to relate to place, each other, and other-than-human beings that are drawn from grounded normativities, the web runs deeper than the settler colonial security apparatus is willing to permit – hence the arrests that began this chapter.

Rather than “protests” against a hegemonic order, we can understand relational and practice-based collectivities as generative democratic movements in which people act otherwise than the predatory logics of imperialism, capitalism, and colonialism. These movements recognize Indigenous political authorities within specific places. Like water and wild salmon, resurgent Indigenous nations and places have their own logics and laws. Through a political praxis that complements the grounded normativities of Indigenous nations, a politics of recognition and self-determination from below, relational and practice-based collectivities learn how to live more responsibly with both people and place. These networked webs of alliance and affiliation span below, through, and beyond the settler colonial state, flowing with the waters and following the movements of wild salmon and Indigenous resurgence. Further, these relational networks have the potential to be made denser through the extension of place-based ethics of responsibility and practices of reciprocity. This density holds the promise and power to widen cracks and fissures in the settler colonial concrete. By making these webs of relationship and practice visible through the stories I share in this chapter, I am not revealing anything that is not already known and shown through Indigenous political theory and mobilization at a range of sites and scales. What I am trying to show, however, is the process by which others can be drawn into, informed by, and agential within Indigenous ethico-political frameworks – in addition to but, more importantly, instead of settler colonial ways of relating to and understanding the world. To paraphrase the epigraph to this chapter, engagements with Indigenous resurgence can and do change what wants to appear unchangeable – they demystify settler colonialism and show that its predatory relations are not permanent nor inevitable. Neither democratic theory nor political praxis should proceed as if they were.

14 Like a Brick Through the Overton Window Reorienting Our Politics, from the House of Commons to the Tiny House

Phil Henderson

It’s difficult to know where to begin telling a story that, fundamentally, is about relationships cultivated and nurtured over millennia. This is especially true when, as that story catches up to present-day realities, the gnashing maw of empire too easily consumes all attention. In this chapter I focus on the struggles around and against the proposed expansion of the Trans Mountain Pipeline (TMX). But the political strife on which these events open a window is built on decades of contestation over the extractive processes and material flows of a globally sprawling fossil fuel industry that is the primary catalyst of a truly epochal reckoning for life as we – those enduring the last days of the Holocene – know it. More to the point, this decades-old battle against fossil capital has been brought to a head by the Canadian state’s belligerent and monomaniacal commitment to propping-up a national fossil fuel industry – Canada being itself a contested political project (re)produced, in part, through a centuries-old and ongoing imperialist effort to conquer Indigenous peoples and to dispossess them of their territories.

In both popular and academic discourses, land/water defenders continue to be represented as “protestors.”Footnote 1 Framing Indigenous-led anti-imperialist struggles in this way is premised on the assumption that the state is the constituted and singular political authority. As John Borrows notes, the ascription of ‘protestor’ or of ‘civil disobedience’ erases the presence of other sources of law that are being upheld and defended, an erasure that works to solidify the hegemony of state authority.Footnote 2 The grassroots land/water defenders who take center stage in the latter portion of this chapter are examples of ‘democratic practices of contestation’ only insofar as one chooses to politicize their actions while accepting the supposed neutrality of imperial institutions and processes. Manu Karuka helpfully displaces imperialism’s presumption of neutrality – its effort at disappearance – by naming empire’s governing logic as “countersovereignty,” making the violence of everyday life lived through empire cognizable.Footnote 3 This reframing begins from the observation that empire rests on “reactive anxiety, [and] fragile modes of power that can take overwhelmingly violent form” in their efforts to deny and displace the existing and persisting political authority of Indigenous nations.Footnote 4

Karuka’s formulation is helpful not only for noting that the empire has no clothes, but also for insisting on the central importance of Indigenous modes of social relations that govern in place prior to and endure through the colonial present.Footnote 5 The politics central to this chapter emerge from and are driven by a staunch commitment to the defense and integrity of modes of social relations and systems of governance that sustain and enhance life. These politics are not principally about contesting or resisting, even as that language is easiest for discussion; instead, these politics are about upholding Indigenous political authority. In much of what passes for the canon of Euro-American political theory, Indigenous peoples are positioned between two poles of racist misrepresentation. On one side are the false Lockean presumptions about Indigenous peoples’ prepolitical, pre-agricultural societies and, on the other, are the equally fictitious Rousseauian narratives about noble, ecologically pure, and therefore vestigal “savage” communities.Footnote 6 Other contributors to this volume expertly deconstruct this constitutive exclusion at the heart of Euro-American thought by highlighting the intelligence, the fecundity, and the durability of Indigenous governance systems (see Part IV on “Indigenous Democracies” in this volume; especially Swain (Chapter 13), as there is considerable cross-pollination in our thinking), and a much wider body of Indigenous thought and scholarship exists with which political theorists should familiarize themselves.Footnote 7 In my discussion of the struggles against TMX, I take the vitality and the vital importance of Indigenous sovereignties as my political starting place. I do this foremost because Indigenous peoples have a right to govern themselves, their territories, and their relations unencumbered by imperial regimes. But I also suggest that, inasmuch as it necessitates a confrontation with the cannibalistic urges of empire and the increasingly unlivable ecology those drives are producing, the resurgence of Indigenous sovereignties is a struggle in defense of life itself.Footnote 8 As James Tully says, in this struggle “[n]o one is offsite or not responsible. The choice is change or self-destruction.”Footnote 9

This chapter is structured in three parts. In the first, I provide a history of the struggle against TMX, up to the Canadian federal government’s reapproval of the project on June 18, 2019. In the second section I examine the federal government’s press conference reapproving TMX in juxtaposition to a press conference held minutes later by a coalition of First Nations and municipal governments opposed to the project. Here, I consider both the logic and the limitations of strategies of hegemony and counterhegemony. The third section moves to the level of grassroots politics, focusing on the week-long project to build a Tiny House and the 20 km march up the Saanich Peninsula to send it on it’s way to Secwépemcul’ecw, where the Tiny House Warriors now use the House in the resurgence of Secwépemc governance and in their fight to halt the construction of TMX through their territories. Drawing on my own engagement with the Tiny House project, as well as on local reporting and editorials, I am particularly interested in reflecting on a more expansive view of the political, one in which power and authority are not mediated through logics of hegemony/counterhegemony. While engaging this ethic of turning away from the state as the site of political activity, I also nevertheless want to avoid overly reductive or easy answers by considering the very serious problem that the state continues to pose for anti-imperialist struggles today. Throughout this I am informed by Karuka’s problematique for anti-imperialists in the twenty-first century, which has echoes of both Tully and Rosa Luxemburg: that today we face a choice between “[d]ecolonization, or mass extinction.”Footnote 10 This is the lens through which I consider what the resurgence of Indigenous sovereignties means in an era of ongoing climate catastrophe from my own positionality as a settler – a non-Indigenous person, interpellated as a citizen by an occupying colonial state.

TransMountain, A History of Expanding Struggle

In this section I reconstruct the pertinent history of TMX. Unless noted otherwise, in detailing the history of Trans Mountain’s engagement with the National Energy Board (NEB) and various stakeholders up until mid-2018, I rely predominantly on Justice Dawson’s decision in Tsleil-Waututh Nation v. Canada (2018) – the Federal Court of Appeals decision that “quashed” the initial Cabinet approval of TMX. For details subsequent to 2018 or outside of the realm of official record, I rely primarily on news reporting, excepting in circumstances – such as the Protect the Inlet March and Tiny House builds – where I participated in the demonstrations or direct actions.

In December 2013 the Trans Mountain Corporation, which at the time was owned by Kinder Morgan, applied to the NEB for a certificate of public convenience and necessity authorizing the Trans Mountain Expansion Project (TMX). The project primarily entailed: (1) construction of roughly 987 km of new pipeline ‘twinned’ to the 1,147 km of existing line; (2) construction or modification of pumping stations and tanks, with a doubling of the Burnaby Mountain tank farm from thirteen to twenty-six storage tanks; (3) expansion of the Westridge dock facility; and (4) construction of two wholly new pipelines from the Burnaby storage facility to the Westridge docks. While the language of ‘twinning’ evokes a sense of parity, upon completion TMX is actually intended to increase the pipeline’s transportation capacity nearly threefold: from 300,000 barrels per day to 890,000 per day. Furthermore, as the project is meant primarily to facilitate an export pivot from America to Asian and Pacific Rim states, the so-called ‘downstream’ impacts of the project on shipping are of an even greater order of magnitude. Filings with the NEB estimate tanker shipping jumping from roughly five tankers per month to thirty-four tankers per month – an increase of nearly 700 percent as a consequence of TMX.

Between December 2013 and November 2016, the NEB pursued a three-phase process to review TMX’s social, economic, and ecological impacts in consultation with Indigenous peoples and First Nations. The bulk of meetings occurred between April 2014 and February 2016, during which time, Justice Dawson notes, many Indigenous participants raised serious concerns not only about the project itself but also about how their participation in consultations was confined to relatively narrow post hoc issues of mitigation and revenue sharing. Higher-order questions about sovereignty, jurisdiction, and their right under the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) to offer/withhold their free, prior, and informed consent for the project as a whole were not on the table during these consultations. As such, the NEB’s recommendation in May 2016 – prior to completing Phase III of consultations – that the Cabinet approve TMX was met with severe consternation from many Indigenous peoples; the assertion that the project is in the “public interest,” clarified just how fundamental Canada’s exclusion of Indigenous governance is.

Despite the NEB’s recommendation, many who opposed TMX remained inordinately hopeful that the project would be cancelled. Their hope was a consequence of their sense that, in spite of the failings of the state’s regulatory arms, a major victory seemed to have been secured in the legislative and executive branch of government with the recent election of Justin Trudeau. Moreover, this hope was not based merely on projection. As Martin Lukacs details, Trudeau’s 2015 campaign was peppered with rhetoric wholly novel to Canada’s partisan landscape. The promise of “nation-to-nation” relationships with Indigenous peoples, and even of “decolonization,” that Trudeau offered on the campaign trail seemed to fulfill the vision of UNDRIP.Footnote 11 Moreover, cancellation of such hotly contested infrastructure as TMX seemed assured given that one of Trudeau’s constant refrains throughout the campaign and beyond was that while governments “may be able to issue permits … only communities can grant permission” – a sentiment he delivered to the Calgary Petroleum Club as long ago as 2013.Footnote 12 Many were therefore dismayed when Trudeau announced his Cabinet’s approval of TMX on November 29, 2016, following completion of Phase III of the review process. Without any apparent sense of contradiction, this approval came at the same press conference in which Trudeau cancelled the Northern Gateway and Energy East pipelines, citing both Indigenous objections and climate concerns.

Following the approval of TMX a series of legal challenges were launched, the most successful of which was brought by səl’ilwətaɁɬ (Tsleil-Waututh) and Sḵwx̱wú7mesh Úxwumixw (Squamish) First Nations, endorsed by both Vancouver and Burnaby alongside a number of other interveners. As opposition was being partly channeled through state judicial apparatuses, a number of grassroots groups also coalesced around campaigns of both public outreach and direct action. While much of the grassroots organizing against TMX took expected forms (marches, petitions, and other demonstrations of collective opposition), Lukacs details how surprising the opposition to the project was in both its breadth and depth, with thousands of people indicating their preparedness to risk arrest.Footnote 13 At the gates of the Burnaby storage tank facility, a soft blockade slowed work on the site. Day after day new people came forward, defying an injunction issued in 2018, standing in front of the facility gate, snarling construction and operations traffic. Hundreds – including prominent local and national figures – have been arrested as a consequence of their dissent.Footnote 14

As alluded to in the introduction, much of this dissent refuses to travel under the title of civil disobedience. Dissidents position themselves instead as proponents or defenders of the lands and waters under threat, as well as of the Indigenous governance systems that are at the heart of organizing – both materially and conceptually – this resistance.Footnote 15 This is perhaps clearest in the Women’s Declaration Against the Trans Mountain Man Camps, issued from Secwépemcul’ecw in November of 2017.Footnote 16 As the Declaration makes clear, Secwépemc sovereignty over “the land, waters, and resources” within their territories remains fully intact. They effectively tie together the threats that TMX poses to their sovereignty as a political body, to their territories, and to their own bodies through the degradation/toxification of land and the threat of gendered and sexualized violence that accompanies heavy industry: “We, as Secwépemc women, declare that we do no [sic] consent! We do not consent to the desecration of our sacred land; we do not consent to the transgressions on our sacred bodies!” However, rather than channeling their dissent toward the courts or appeals to elected officials, this Declaration announces their intention to construct “ten solarized Tiny Houses on our land,” an act that they note is just as much about “housing … Secwépemc families, re-establishing our village sites, and asserting our Secwépemc responsibility to our lands and waters” as it is about blocking TMX. I return to the Tiny House Warriors in the third section of this chapter, but want to note here how radically they shift the terms and location of the struggle over TMX. To call the Declaration a “refusal” of the state and its legal apparatuses seems to imply a degree of priority that those institutions clearly do not command. This Declaration embodies a compelling theory of power, in which the space of the political was never confined within the limestone buildings of state capitals – nor even in opposition directed at those presumed ‘centers of power’ – but is produced through collectivities and is always already located in and responsible to the living relations of the territories in which those collectivities persist.

One of the broadest demonstrations of grassroots opposition to TMX came on March 10, 2018, when 20,000 people joined the Protect the Inlet March to Burnaby Mountain. Headed by Indigenous leaders from along the proposed pipeline route, but primarily from local nations like səl’ilwətaɁɬ, Sḵwx̱wú7mesh Úxwumixw and xʷməθkʷəy̓əm (Musqueam), the show of immense collective power and solidarity was also the strategically chosen moment in which members of səl’ilwətaɁɬ revealed a project to both assert their governance and strengthen their on-the-ground opposition to TMX. As thousands demonstrated their collective power by marching past the gates of the storage tank facility in defiance of the court orders, just a stone’s throw from the injunction zone a crew under the leadership of Will George busily constructed Kwekwecnewtxw, or “a place to watch from.”Footnote 17 Built in the style of Salish watch houses, Kwekwecnewtxw evokes and actualizes Salish jurisdiction. A millennia-long practice of governance meant to ensure community safety, today the threat Kwekwecnewtxw guards against is posed by an infrastructure project that is facilitated through, and itself serves to further facilitate, colonial dispossession.Footnote 18 Since March 2018, Kwekwecnewtxw has acted not only as an assertion of Indigenous governance, and as a hub and home for the grassroots resistance to TMX, it has also been an invaluable bridge spanning Indigenous and settler communities. That Kwekwecnewtxw has sustained itself over such a long duration is enormously educative: both in its direct efforts at community engagement, but also as an example of the capacity that grassroots coalitions have to create and sustain frontlines against the imperial nexus of the state and industry.

Faced with an entrenched and expanding resistance, the responses from the state and industry are perhaps not surprising, even though their brashness should never fail to be shocking. As Lukacs details, faced with a popular upswell against this project, the fossil fuel industry leaned heavily on the state, calling upon politicians to impose a “law and order” regime that advances and protects their infrastructure.Footnote 19 In 2018 David Dodge, former Governor of the Bank of Canada, told a crowd in Edmonton that as opposition “fanaticism” grew, it made certain that people “are going to die in protesting construction of this pipeline.”Footnote 20 Though he later walked back his statement, in the days following TMX’s approval the then Minister of Natural Resources, Jim Carr, threatened that his government was prepared to advance construction against public dissent “through [the Canadian state’s] defence forces, through its police forces.”Footnote 21 In spite of these assurances, however, the confidence that capital had in the project eroded rapidly. In April 2018, barely a month after the Protect the Inlet March, Kinder Morgan announced that it was halting all “non-essential activities and related spending” on TMX in order to consult shareholders, setting May 31 as a deadline by which to determine the viability of the project.Footnote 22 Faced with the imminent collapse of their cornerstone infrastructure project, the Trudeau Cabinet announced on May 29 that the federal government was purchasing Trans Mountain from Kinder Morgan for $4.5 billion dollars – a sum that includes only existing infrastructure and not the immense, outstanding construction costs.Footnote 23 The government affirmed its commitment to financing the completion of TMX, in the hopes of later finding a private investor to buy the expanded pipeline.

It was likely because of this increasingly apparent integration of the state and fossil fuel industry that many opponents of TMX responded to the federal Court of Appeals’ August 30 ruling in Tsleil-Waututh v. Canada (2018) so jubilantly. In Metulia/Victoria, BC, hundreds poured into the downtown core that evening in an impromptu celebration of the decision to “quash” Cabinet’s approval of TMX. The possibility that TMX could be defeated so cleanly, and without the need for an even more protracted or escalated struggle, overawed the fact that the Court’s decision was, in fact, quite technical and narrow in scope. Far from a decision to “quash” TMX itself, Tsleil-Waututh merely remitted approval of the project back to Cabinet for further consideration on two points: (1) a more thorough assessment of the ecological impact on the Salish Sea caused by marine traffic associated with TMX, and (2) to more adequately “explore possible accommodation of those concerns” raised by Indigenous peoples and First Nations. Indeed, the Court even went so far as to affirm that Canada had “acted in good faith” in its consultations, even if they had come up somewhat short. No doubt the Court’s rosy portrayal was due, in part, to the overly constrained scope of the issues under consideration. For instance, the fact that TMX would significantly contribute to accelerating the climate catastrophe, increasing Canada’s overall greenhouse gas emissions by as much as 2 percent, was only obliquely noted in the Court’s reference to an Environment Canada report, but the consequences of this were never directly considered by the Court.

More directly pertinent to participants in the Tsleil-Waututh case itself, however, was the fact that the Court confined the scope of its proceedings to reviewing the process initiated by the NEB in 2013. Drawing on industry-wide trends, Kinder Morgan had deliberately minimized TMX’s review process by relying on the logic of “pipe in the ground.” The potential impact of the project was minimized because it was portrayed as merely expanding existing infrastructure, rather than establishing new corridors.Footnote 24 Not only does this conceal the enormity of TMX’s ecological impact, it also serves to fully elide Canada’s historic failure to live up to its own – already highly constrained – duty to consult with Indigenous peoples in the initial construction of Trans Mountain. By choosing to start the clock on the duty to consult only in 2013, and thereby ignoring the reality that Trans Mountain was constructed in 1951 as the wave of Canada’s apartheid laws was only just beginning to break, the Court’s review of TMX legitimates the lack of historic consultations – much less consent – with Indigenous peoples all along the route. Furthermore, as this approach actualized the returns on Kinder Morgan’s investment in a “pipe in the ground” strategy, it makes clear how the Canadian state works toward the erasure of Indigenous nations’ jurisdictions in a way that “augments and reinforces the intracapitalist coalition supporting and advocating for pipelines and oil infrastructure.”Footnote 25

Importantly, TMX is not novel in terms of the Courts’ using the existence of private property to retroactively legitimate the dispossession/displacement of Indigenous peoples.Footnote 26 Nor is the state’s intervention to salvage and complete a floundering infrastructure project – in order to potentiate its sell-off into private hands – wholly unexpected to students of Canadian history. As Reg Whittaker notes, “the basic engine of development in Canada” has been “private enterprise at public expense.”Footnote 27 Pithier commentators have remarked that Canada is simply “three mining companies in a trench coat, wearing a stupid hat and carrying a gun.”Footnote 28

Hegemony …

While intense, the excitement about the Tsleil-Waututh decision was short-lived, as the government announced almost immediately that it intended to fulfill the Court’s skeletal outline of the steps necessary to discharge its obligations. It came as little surprise, then, nine and a half months later on June 18, 2019, when the government announced with all the false contrition in the world that it had listened to the Court’s calls to “do better” and was now prepared to reapprove TMX.Footnote 29 Flanked by Ministers Morneau (Finance), McKenna (Environment), MacAulay (Agriculture), and Sohi (Natural Resources), Trudeau’s press conference attempted to execute a major pivot in the conversation around TMX. The strategic reason for the absence of the Ministers of both Crown-Indigenous Relations and Indigenous Services was apparent throughout the press conference in which Trudeau portrayed his critics as mired in false choices between ‘the economy’ and ‘the environment.’ Throughout this conference Trudeau strenuously avoided reckoning with the fact that TMX is contested primarily and most stridently on the grounds that it violates the jurisdictions and sovereignties of numerous Indigenous nations.

The promised nation-to-nation relationships with Indigenous peoples – which Trudeau continually says are the country’s “most important relationship” – were not mentioned.Footnote 30 Instead, Trudeau opened this press conference by asserting that his government was elected in 2015 on paired commitments of “growing the middle class” and to “protect our environment and fight climate change.” Implicit in this assertion is the suggestion that he would be seeking re-election only months later in the fall of 2019 on those same priorities. Alleging that his partisan challengers believe these objectives are irreconcilable, Trudeau insisted that they were not only “complementary” to one another but that TMX is preternaturally capable of threading them together. In spite of the apparent ease with which his government appropriated billions of dollars to purchase fossil fuel infrastructure only a year prior, Trudeau repeatedly emphasized that while he viewed it as absolutely vital, a transition away from fossil fuels would be costly. Trudeau estimated that the tax revenue from TMX “could be around $500 million per year” – at which rate the government would recoup the cost of its impulse purchase in a mere decade. He went on to outline that the construction and operation of the pipeline will not only create opportunities for people to “earn a good living,” but that all revenue earned from the completed TMX would be earmarked to be “invested in Canada’s clean energy transition” –including “any profits from the sale of the pipeline.” In one of the few unprompted references to Indigenous peoples in his press conference, Trudeau indicated that his government is encouraging possible Indigenous buyers. Seemingly, the only way Indigenous nations can have a say over fossil fuel infrastructure in their territories is if they are prepared to bankroll it.

Trudeau sought to deepen his case for TMX by further asserting that the project – increasingly treated as a panacea for all woes – would solve a “core economic problem” facing the fossil fuel industry in Canada. Overlooking the mere externality of the climate catastrophe, Trudeau noted that the single biggest crisis facing Canadian fossil fuel exports is that they are beholden to a monopoly buyer. As Trudeau suggested, the fact that nearly all fossil fuels extracted in the territories claimed by Canada are bound for American refineries means that the price of Canadian oil is dictated south of the 49th Parallel. Never mind that fossil fuel exports are sold in private markets – not primarily to states – or that global commodities trading in crude oil was already in sharp decline, Trudeau was effectively stitching together a case for TMX grounded in an overt petronationalism.Footnote 31 This was made apparent as Trudeau paired a rather obtuse invocation of Trump and the growing fear Canadians have that “anything can happen with our neighbours to the south” with his strident assertion that “Canadians are our own people, and we make our own choices.” Given not only the evident fractures that exist around just TMX but also the well-noted historic failings of the Canadian state-building project to constitute a coherent “people” for itself, Trudeau’s struggle to leverage TMX in the cause of maintaining hegemony could hardly be more apparent.Footnote 32

The political left in Canada has its own long and twisting relationship with economic nationalism, typically grounded in anti-Americanism, but which has recently aligned itself with petronationalism.Footnote 33 The political and ideological work that Trudeau’s press conference did, however, is of a different species than even those troubled projects. It is a near-perfect embodiment of what Lukacs calls “the Trudeau formula,” which he distills as a political program advancing the promise of “changeless change.”Footnote 34 As Trudeau appropriates the rhetoric and affects of more progressive, at times even radical, political movements, his policies make clear that “his goal was not to transform the status quo but to smoothly defend it.”Footnote 35 What is more, while Trudeau maintains this rhetoric while in office and in flagrant contradiction of the actual consequences of his policies, the Trudeau formula is in fact a striking development in the classic Liberal Party playbook of ‘campaigning from the left, governing from the right.’Footnote 36

Despite the vigor of Lukacs’ analysis, he underemphasizes the enormity of what the Trudeau formula achieves. Far from being merely a cynical electoral strategy, I want to suggest that by maintaining adherence to a rhetoric of social/economic/environmental justice while pursuing policies directly antagonistic to those goals, Trudeau has stumbled upon a major ideological project that is causing a massive reduction in the horizon of the politically possible – the so-called “Overton window.”Footnote 37 To suggest that Trudeau is merely appropriating, misusing, and denuding more transformative or radical political discourses is to identify only one half of the ideological work being done. More troublingly, the deeper consequence of the Trudeau formula is that it actually transmutes the public understanding of the content and meaning behind the discourses that he appropriates. Put more plainly: for the vast majority of casual observers of national politics, there is no necessary contradiction between Trudeau’s appropriation of transformative rhetoric and his status quo politics. Rather, many come, wholly understandably, to associate that otherwise transformative rhetoric with the continuity of the material conditions under which a sizable majority of them continue to struggle. By pairing the rhetoric of transformation with the actual continuity of the status quo, the Trudeau formula makes concrete the Thatcherite declaration that ‘there is no alternative.’ This is perhaps nowhere more apparent than in the case of Trudeau’s pursuit of “reconciliation” with Indigenous peoples – a project whose meaning is so perverted as to be somehow congruent with the invasion of untreatied lands by paramilitary police in order to remove Indigenous land/water defenders from their territories. Such is the toxic vacuity of the Trudeau formula that grassroots leaders such as Freda Huson of the Wet’suwet’en nation and director of the Unist’ot’en Camp declared “reconciliation” to be dead in light of the very real violence that her nation continues to face.Footnote 38

I should note that part of the Trudeau formula’s success is contingent on the contemporary partisan landscape in which Trudeau operates. Briefly stated, this is one in which an increasingly verbose and outwardly reactionary Conservative Party and its surrogates have been only too ready to denigrate Trudeau as some sort of rabid “social justice warrior.”Footnote 39 This charge serves to reify Trudeau’s false claims of pursuing a transformative politics. At the same time, the ostensible parliamentary left, embodied predominantly by the New Democratic Party (NDP), has – by the admission of many of its own supporters – abandoned positions that are even marginally oppositional to such dominant social formations as capitalism, settler colonialism, white supremacism, and cisheteropatriarchy.Footnote 40 The Trudeau formula dramatically curtails the horizon of political possibility largely because – on the partisan landscape – it is unchallenged from the left and is perversely validated in its self-presentation from the right. Given this, the emergence of a project of counterhegemony in rebuttal to Trudeau’s June 18 reapproval of TMX is all the more remarkable.

… and Anticolonial Strategy

As Trudeau wrapped up in Ottawa, across the continent another press conference hosted at səl’ilwətaɁɬ was beginning.Footnote 41 This press conference was remarkable not only in that it modeled a different relationship to place – the abstracted distance of the state-eye view from Ottawa was displaced by systems of governance firmly rooted in the territories threatened by TMX – it also displayed a strikingly more dispersed theory of power and authority.Footnote 42 Contrasting the singular authority of the prime minister and his Cabinet, on stage in this second press conference were representatives from səl’ilwətaɁɬ, Sḵwx̱wú7mesh Úxwumixw, and xʷməθkʷəy̓əm, alongside other Indigenous leadership from Sumas First Nation, Tsartlip First Nation, the Neskonlith Indian Band, and Stewart Phillip, the Grand Chief of the Union of BC Indian Chiefs, also on stage were Vancouver Mayor Kennedy Stewart and Councilor Jean Swanson – both of whom had been arrested on Burnaby Mountain. Embodying a commitment to polyvocality and inter-nationalism, this press conference centered on the imminent and very material threat that TMX poses. As Rueben George (səl’ilwətaɁɬ) stated in his introductory comments, those gathered on the stage were there because Trudeau’s actions in reapproving TMX “are hurting Canadians.” This necessitates the formation of a coalition prepared to “protect what we love” in a way that is grounded in Indigenous governance systems that teach the necessity “to protect all the human being on our lands and waters, that’s our law.” Chief Leah George-Wilson (səl’ilwətaɁɬ) affirmed this sentiment. She asserts that her “obligation is not to oil. Our obligation is to the land, the water, to our people, to the whales” and that none of the prime minister’s comments or consultation processes had adequately addressed those concerns or the risks that his Cabinet is imposing on her nation.

Chief Dalton Silver (Sumas First Nation) noted that what this boils down to is a shared responsibility to protect the Salish Sea from harm. This responsibility exists far beyond the shoreline of the Sea itself, Silver continued: it begins hundreds of miles inland from the Sea at the headwaters and flows downstream through the territories of his own nation. Radically distinct from the abstracted, Cartesian thinking of the Cabinet and the NEB – the excesses of which had treated the Salish Sea as somehow separable from the overland route of the pipeline, resulting in the Tsleil-Waututh decision forcing a temporary delay of TMX so that the project’s impacts on the Salish Sea could be considered – Silver articulates his nation’s theory of responsible governance as one that is produced through the actual material relationships of the territories in which it is situated. Sumas is not connected to the nations and communities around the Salish Sea merely as a consequence of the inevitable destruction that TMX represents; they are primarily connected through the life-sustaining relationships embodied in flows of water, runs of salmon, and the political alliances that are embedded within and have enhanced those relationships since time immemorial. This is as concrete a realization of how Trudeau’s pursuit of TMX manifests the countersovereignty of imperial regimes as one is likely to find. Grand Chief Phillip made this all the more clear by noting that his sense of déjà vu at the Cabinet’s announcement is a consequence of the fact that, for Indigenous peoples, persisting in their governance under direct threat by the colonial state is very much “another day at the office,” even as he staunchly asserts that “Indigenous peoples walking … in solidarity with their friends and neighbours and their allies” is the pathway toward victory over this project.

To at least some degree, this coalition can be helpfully understood as an effort to build and to make visible a counterhegemonic formation that challenges the ongoing accomplishment of a petronationalist hegemony forwarded by the Canadian federal government. As William Carroll notes, the “deep transformation” portended by counterhegemonic struggles “gets its start on, and draws much of its vitality from, the immediate field of the conjunctural, in resistance to the agenda of the dominant hegemony.”Footnote 43 Put more simply, while they often appear as both primarily responsive to the actions of the constituted authority and confined to relatively particular issues or interests, the deeper undercurrents of counterhegemonic struggles envision a truly radical uprooting of the dominant order. Importantly, the strategic terrain of counterhegemony is also embedded in struggles that are of immediate and material consequence to the communities with/in whom solidarity and affinity are being built, rather than persisting predominantly in the realm of ideals. Struggling toward this deep transformation, counterhegemonic formations seek to draw “together subaltern social forces around an alternative ethico-political conception of the world, constructing a common interest.”Footnote 44 The shared threat that TMX represents to these communities has contributed to the stitching together of an alliance between First Nations and municipalities. Moreover, inasmuch as Indigenous-led decolonization struggles are always local in character, requiring alliances or ententes with neighboring communities, and insomuch as TMX is a particular struggle in the much wider battle against climate catastrophe, the coalition stepping forward to challenge Trudeau embodies a transformational critique of the dominant order.

This coalition against TMX is similar to Carroll’s account of counterhegemonic struggles in another important way. Carroll writes that, for a counterhegemonic movement to “walk on both legs,” it is “elemental” that it engage in a struggle that aims at “reclaiming the state.” While Carroll insists that this is a matter of strategic – rather than normative – importance and that the state need not be “privileged” as the site of struggle, a concerted effort toward “democratizing state practices” must be “understood as one part of broader transformations.”Footnote 45 Put plainly, the state’s ability to martial both considerable violence but also enormous capacity means that it must be taken seriously as a location of political struggle – a point which is likely all too apparent to those responding to Trudeau’s press conference, given the deprivation forced on First Nations by the Indian Act and the strain endured by municipal governments under neoliberalization.

Chief George-Wilson’s promise that Tsleil-Waututh will continue the fight against TMX using “all legal tools” should, I think, be read in this vein as being one part of a counterhegemonic struggle. Far from an effort to seek recognition from the colonial government, the strategy that Tsleil-Waututh and its allies are pursuing is one that leverages the internal contradictions of the Canadian state to their own – anticolonial – purposes. Whereas many persist in presenting the state as a unified and homogeneous thing, the strategy being pursued against TMX is premised on the political utility found in the contradictions between the governing logics of various state apparatuses.Footnote 46 The relatively immediate logics that capture the legislative and executive branches, directing their commitment toward a market-logic that necessitates the diminution of Indigenous political authority, run into contradiction when they confront the courts’ commitment to stabilizing colonization over the longue durée, a project that can accommodate the relatively capacious conception of Aboriginal rights outlined by the Canadian judiciary. Leveraging the space of contradiction between the multiple logics contained within the state is an effective strategy that, since the Calder decision (1973), has used the judicial elements of the state to significantly curtail many of Canada’s most egregious colonial excesses.

Importantly, this is not pointing to the existence of so-called checks and balances; rather, it reveals the existence within the state of multiple colonial logics that can both articulate, but also contradict, with one another. In spite of the potential that struggles within the judicial sphere have unlocked, the foundational commitment of the judiciary to colonization is widely understood. Long noted by grassroots Indigenous leaders and scholars, the courts themselves freely admit it when they acknowledge that it is beyond the scope of their powers to interrogate the Canadian Crown’s assertion of allodial title.Footnote 47

Sending out Grassroots in an Extinction Event

It is, in part, because the multiple apparatuses constituting the state share a foundational commitment to maintaining colonization that Indigenous peoples have always pursued a variety of anti-imperialist strategies. While strategies of counterhegemony – engaging anti-imperialist struggles within/against the terrain of existing state apparatuses – have yielded crucial victories, many Indigenous leaders and scholars assert that, ultimately, liberation cannot be achieved through state avenues. Rather, they emphasize the importance of Indigenous governance systems’ resurgent cultural practices as an embodiment of their nations’ jurisdictions throughout their territories.Footnote 48 Moreover, as I stated in the introduction, Indigenous governance systems exist both prior to and without any necessary reference to the processes of imperialism through which they persist. Leanne Betasamosake Simpson describes this precisely when she writes that the processes of resurgence are, in many ways, “just Indigenous life as it has always unfolded.”Footnote 49 This is striking in its resonance with how Chief Silver characterized Sumas First Nation’s sovereignty as being about an obligation to defend the land and waters that sustain his nation and all those who live in the territories. As Chief Silver is engaged in a vital counterhegemonic struggle by which to leverage the state’s internal contradictions, creating space for those obligations to be pursued without threat of colonial violence, those who are focused on grassroots strategies for resurgence pursue those obligations without making them cognizable within colonial structures. By being inattentive to these dynamics, to the primacy of Indigenous sovereignties on the ground, many non-Indigenous commentators continue to miss some of the most transformative anti-imperialist work; the grassroots resistance to TMX is no different.

Before discussing the Tiny House build and the accompanying march, it feels necessary to make a few clear delineations. Given the preceding discussion and some of the literature with which I am engaged, some may equate the following discussion with political movements that scholars such as Carroll (disparagingly) and Richard Day (approvingly) describe as being committed to antihegemonic strategies.Footnote 50 “Antihegemonic” does not, however, properly describe the relationships I discuss as they are at work on the ground, because the very question of hegemony (and whether it is to be retained, resisted, or rejected) gives undue priority to the state as the space of politics. At once fully recognizing the importance of movement and dynamism within and between Indigenous governance systems – both in terms of actual geographic mobility and in terms of cultural movements – I nevertheless ask that the reader take the sovereignties of Indigenous nations as their lodestar in understanding what I describe as politics at the “grassroots.”Footnote 51 This framing is, importantly, not my own creation, but rather comes out of the vernacular of the very organizing communities that it describes.

Delineating further, while the image of the “grassroots” seems tailor-made to evoke the notion of a politics “from below,” I also want to resist that characterization. While I share many of the political and intellectual commitments that scholars like Jakeet Singh expertly describe as part of their method of seeing the space of politics “from below,” its presentation of a hierarchical relationship is inapt for the context in which I am thinking here.Footnote 52 This is because, even as it seeks to describe suppressed but still extant agency within actually existing relations of domination and exploitation, the framing of above/below – inadvertently – recapitulates the erasure of Indigenous political authority by subordinating it to the presumed priority of imperial systems.Footnote 53 The sovereignties of Indigenous nations are better understood as neither below, nor as necessarily vying against empire through counter-/antihegemonic strategies, but rather as fully constituted and extant orders of political authority in their own right.

As the coalition assembled at səl’ilwətaɁɬ announced their continued commitment to the fight against TMX, across the Salish Sea in the territories of the Lkwungen and WSÁNEĆ peoples, volunteers tidied up a lot just outside of the downtown core of Metulia/Victoria. Over the preceding ten days, this space had been a flurry of activity around construction of a mobile Tiny House in solidarity with the Tiny House Warriors of the Secwépemc nation. As noted, the Tiny House Warriors announced in 2017 that they intended to use a fleet of tiny houses to assert their jurisdiction as Secwépemc women and that, as a consequence, TMX could not pass through Secwépemcul’ecw. This was their fourth Tiny House overall, and the third one built in Metulia/Victoria.

While imperfect and uncertain in the same ways as any political project, the Tiny House build is remarkable for the ways in which it draws upon, thickens, and generates relationships within the various communities that surround the build. Volunteers working on the House are supported by the socially reproductive labor of others as lunches are provided by individuals and affinity-based community groups like Food Not Bombs and the Community Cabbage meal program. Leftovers make their way to community-houses or else are dropped off at nearby food programs. Artists are also pivotal in this build: visual artists donate designs and studios produce screen-printed t-shirts sold on a pay-what-you-can basis to cover build costs; likewise, musicians host a fundraising dance-party with an accompanying silent auction. Members of the Fearless Collective host a workshop on the build site for Indigenous and racialized community members, out of which comes the creative vision for a mural that accompanies the House to Secwépemcul’ecw, celebrating the Indigenous women, matriarchs, and femmes who are “Protecting What Heals Us” in the face of the threat posed by TMX.

A series of “Tiny House Talks” are held on the build site most nights after construction wraps, with the explicit aim of broadening and deepening the community’s intellectual tools. Workshops link the struggle against imperialism in Canada to struggles in the Middle East, the South Pacific, and Latin America; think tactically about the tools of direct action; and interrogate how we carry the logics of empire within our daily, intimate lives. It was out of these Tiny House Talks that a vision for the future work of this community was brought forward by Tsastilqualus Umbas, an Indigenous matriarch; several months later, that vision culminated in the Little Big House build, a crucial step forward in the struggle to evict fish-farming operations from Kwakwa̱ka̱’wakw waters in the Broughton Archipelago and to rematriate Ma’amtagila territories. Likewise, these relationships became a vital resource months later as the community was mobilized in solidarity with the uprisings that occurred following Canada’s re-invasion of Wet’suwet’en territory.

In spite of the vibrancy of the political space created through this flurry of activity, and despite the enormity of the TMX debate at the time, the Tiny House received almost no media attention during construction. The sole exception was a lone cameraperson from local news, who showed up to the build site after being tipped-off that the street-entrenched community may be congregating in order to establish a tent city. Media coverage only turned toward the Tiny House as a consequence of the 20 km march on June 22 that sent the House up the Saanich Peninsula to govern and defend Secwépemcul’ecw. The march itself was truly stunning: as the sun rose over the Salish Sea, hundreds of supporters gathered in Centennial Square, where they were welcomed by local elders. Within the hour a stream of people poured into the streets, led by representatives of the Tiny House Warriors, as well as of Protect the Inlet and of Kwekwecnewtxw, and tailed by the Tiny House itself—adorned with a banner that read “decolonization or mass extinction.” The incredible reach of the inter-nationalist grassroots coalition opposed to TMX and the terms of the struggle were in full evidence. Winding through the streets, drum circles and round dances were set up at various intersections and bridges, temporarily reclaiming city infrastructure, declaring an anti-imperialist future. As it moved up the Peninsula, members of local nations came out to greet the march, welcoming their relations to the territories with food, stories, drums, and company. Nearly 12 hours and just over 20kms later, the Tiny House pulled into Island View Park, where a feast was held to celebrate this resurgence of Indigenous governance.

Unsurprisingly, sustained media attention arrived only as a consequence of the march that closed the entirety of the northbound traffic on a major arterial highway for several hours. Despite the entirely predictable nature of this turn of events, it is nevertheless worth analyzing some of the leading commentary, as I consider it a revealing window into how the space of the political is dominantly constructed. Particularly revealing in this vein was a piece authored by the Victoria Times Colonist’s editorial board on June 25, originally entitled “Highway March a Plodding Farce” – though the online version was later retitled as “Effective Protests can be Difficult. Just Look at Saturday’s Effort.”Footnote 54 In the editorial, as in Trudeau’s press conference, the march and the resistance to TMX that it is a part of were reduced to an environmentalist protest which had made a “mockery” of its own cause – there was no mention about the assertion of Indigenous sovereignties, despite it being core to everything. Primarily, the authors took umbrage at the idea that the march may have inconvenienced motorists – a charge which led them to assert that for every extra ounce of gasoline burned because of traffic delays, the march was an effort “that reeked of hypocrisy.”

Setting aside the impossibly zero-sum calculation that this editorial wants to hold environmentalist movements to, I think it is even more striking for the theory of power and political authority that it evidences. The authors write that, confronted by the “life and death” reality of the climate catastrophe, “[w]e need answers and we need solutions.” As such, they implore their readers, and especially those who participated in the march, to “become part of the solution” by making an effort to “talk to decision-makers.” The editorial continues: “we need to convince those in power, around the world, that something must be done quickly.” While this is simply presented as common sense, the authors are in fact reifying a conception of power and authority as necessarily ‘power-over’: the power to command or direct. They specifically treat that power-over as also being simultaneously power wielded at a distance, to which one must make an appeal, a supplication, or – in the most extreme cases – a protest. Moreover, given the presence of numerous Indigenous leaders, First Nations, and municipal representatives in the march, clearly only certain (read: colonial) institutional positions are deemed to have been imbued with power. In short, power here is presumed as the property of those who hold state offices.

Coincidentally, on the very day that the Colonist published its editorial, the United Nations (UN) Human Rights Council’s Special Rapporteur on Extreme Poverty and Human Rights released a report on “Climate Change and Poverty.”Footnote 55 In a truly daunting assessment of the ecological crisis, the Special Rapporteur warns of the “climate apartheid” that is emerging globally (12). Those with means are already isolating themselves against the impacts of the climate catastrophe which they are instrumental in causing, while the poor and marginalized are left to fend for themselves. The report warns that “the best-case outcome is widespread death and suffering by the end of this century”; the worst, humanity on “the brink of extinction” (14). Clearly, then, it shares the sense that climate change generally, but also specific projects like TMX that expand fossil fuel extraction and consumption, are matters of life and death. Interestingly, however, whereas the Colonist critiqued the Indigenous-led grassroots resistance to TMX as missing an opportunity to engage with “those in power,” the Special Rapporteur concludes that because states are power structures that “overwhelmingly stand for the status quo and are thus unlikely to take a strong lead when radical change is needed,” the “real driving force for progress can only come from community mobilization” (16). This report lays bare the necessity of coming to grips with the fact that, inasmuch as it is composed of those who are most directly affected by the consequences – especially the ecological consequences – of empire, the space of grassroots politics is the leading space of transformative struggle

Most generously, the Colonist editorial is read as a form of realpolitik; however, their understanding of power – which is widely shared – as an object of state offices erases the reality of power as produced through processes of collective action. Realizing how tightly the Colonist hews to this rigidly statist theory of power reveals the bleak irony of their crescendoing coda that “[w]e need answers and we need solutions. We should not expect to get them from those souls who are easily led.” Far from being easily led, I think of those who participated in the Tiny House Build, the march, and who are defending Secwépemcul’ecw and all the territories downstream from TMX as remarkable for the degree to which they understand themselves and their comrades as historically situated, collectively empowered, and therefore responsible actors. Rather than seeking anyone’s advice on what constitutes ‘effective protest,’ these grassroots strategies set aside the logic of offering protestations to those ‘in power.’ Instead, they participate in the (re)assertion of Indigenous governance systems in ways that eschew appeals to the hegemonic order entirely. This collectively produced, grassroots politics does not appeal to or protest those with power, because it is a site of power itself. As media responses to the march reveal, most often that power is made legible when it is read as being asserted against the constituted authority of the state and industry through blockades, the withdrawing of labor, or riotous acts. But the true strength of this grassroots politics is not in what it seeks to abolish – the actually existing infrastructure and institutions of empire – but in what it defends and what it produces: That is, the territories that support the flourishing of life itself, and the systems of governance that have learned over millennia how to accommodate themselves to the places in which they have grown.

Conclusion

Original construction of the Trans Mountain pipeline in 1951 was motivated, in part, as a response by the imperial core to the globally rising tide of anticolonial struggles. Most acutely, Mohammad Mosaddegh’s ascendancy to the premiership of Iran, on a platform of popular reforms including the nationalization of oil resources hitherto dominated by British Petroleum, provided the rhetorical backdrop against which Canadian investors and politicians accelerated the Trans Mountain project. As detailed by Laura Gray, the supposed threat posed to the imperial core by the Iranian people securing for themselves control over natural resources was to be counterposed by Canada’s entrenchment of fossil fuel extraction from, and transport through, the territories of numerous unconsenting Indigenous nations for export to global markets.Footnote 56 Karuka’s observation that empire works through logics of countersovereignty – constantly reshaping itself in response to resistance movements – is made abundantly clear here, as the success of anticolonial struggles elsewhere is used as a perverse justification to further entrench the dispossession of, and environmental threats to, Indigenous peoples within the territories claimed by Canada. Trans Mountain was birthed and is being reborn as a stop-gap in the faltering circuitry of imperial domination. But a world linked through imperial circuits is also a world linked in struggles for liberation.

To focus solely on the circuits of imperialism is to persist in a mode of scholarship that assumes a states-eye view as the lens on the political.Footnote 57 Rather than continuing in political science’s oldest traditions of seeing like a state, in this chapter I have attempted to understand the struggle against TMX as an Indigenous-led project of anti-imperialist internationalism, which has manifestations that orient themselves to the space of politics in ways that are informed by logics of both counterhegemony and grassroots coalition-building. More to the point, in accounting for these struggles I have attempted to show the primacy of Indigenous sovereignties as modes of governing social relations that build on the intergenerational production and transference of knowledges that emerge in and with the places in which they are situated.

To displace the centrality of the state in this account is not to deny its importance; indeed, such displacement is in fact necessary in order to see how these anti-imperialist struggles have and continue to (re)politicize the state in ways that very often outstrip the tools of critique and analysis available to political scientists. As the horizon of political possibilities provided within the confines of liberal democracy continues shrinking or transforming into more authoritarian and reactionary versions of itself, these struggles – linked with countless others – are reminders not only of our collective power to build, unbuild, and rebuild our relations, but also of our fundamental obligation to do so.

15 Governing Ourselves: Reflections on Reinvigorating Democracy Stimulated by Gitxsan Governance

Jeremy Webber
Introduction

In this chapter, I explore how we can give added precision to – how we can give added life to – the idea that democracy means that the people rule themselves. I especially want to reach towards a vision of democracy in which a political community’s citizens see themselves, fundamentally, as custodians of their society’s legal and political order. I do so by reflecting upon, and seeking inspiration from, a political order in which members do typically have that sense: the Gitxsan people of northwestern British Columbia.

Democracy has been called, famously, an ‘essentially contested concept’.Footnote 1 We are in one phase of that contestation and, in reflecting upon how we should go forward, I start from the premise that we should focus upon a core aspiration that typifies a great many understandings of democracy – namely, that democracy is about the people ruling themselves. It is about the people participating in the good of self-government. That aspiration does not eliminate democracy’s contested character. There remain important and disputed questions about who constitutes the people, about the mechanisms through which the people should exercise their authority, about the dividing line between matters that should be determined collectively and those left to individual determination, and doubtless many others. Nevertheless, the focus on self-government does real work. It excludes arguments that justify democracy primarily on grounds that have nothing to do with the distinctive good of self-government, such as what makes governments effective, how one maintains political stability, how one secures a wide informational base for governmental decision-making, or how one limits one’s rulers. These considerations may identify additional benefits of democracy or parallel goals but they are not, on their own, sufficient substitutes for the core aspiration. Indeed, I suspect that those who advance them rarely see them as substitutes. Rather, these arguments a) are a way of clinging to a form of government that people value because of the core aspiration but that needs buttressing against critiques of democracy’s limited achievement of that aspiration in practice, or b) are calculated to persuade an authoritarian regime to permit a democratic transition.

Focusing on the core aspiration keeps our gaze fixed upon the essential appeal of democracy: the hope that, in some material sense, citizens might understand their government’s decisions to be their own decisions – that the citizens themselves might, in a way that they accept, ‘own’ those decisions. The core aspiration is essentially the same as the idea that government should be based on the consent of the governed (although, in this context, consent is not what one might think, as we will see).Footnote 2 The core aspiration is also closely related to popular sovereignty, understood to be ‘the grounding of the ultimate authority for law and governance within one’s own society, so that political power is, in a very real sense, self-authorized and self-determined – not dependent for its authority on the gift of any outside party.’Footnote 3 The core aspiration gives voice to what it means to be a citizen. It expresses the dignity in citizenship.

Arguably, it is precisely this aspiration that is in question in our current juncture. The fundamental challenge in many western democracies is the widespread view that the core aspiration is not being fulfilled – indeed, may not be capable of being realized – in current states and institutional structures. Such an alienation from government is a defining element in populist movements of both right and left.Footnote 4 It can be seen in the intergenerational tensions afflicting many democracies: in the perception that political leadership is ageing, paying insufficient attention to political succession, and neglecting the economic and environmental interests of youth and future generations.Footnote 5 It is also, patently, a central theme in today’s battles over diversity and inclusion. The challenges themselves are not unprecedented. The drive of people of colour (or women, or sexual minorities, or immigrants …) for inclusion continues struggles that are long-standing and pervasive. The alienation associated with populism and generational sclerosis has recurred throughout the history of contemporary democracies. Indeed, when it comes to the core aspiration, our reach will always exceed our grasp, not least because democracy seeks to realize collective agency in human communities that are inevitably characterized by disagreement. The very fact that the meaning of democracy is contested means that its realization will be imperfect. That is not, however, an argument for inaction. The value of essentially contested concepts is precisely in the struggle to define and realize them, even if – especially if – those ends are never fully achieved. If one accepts the core aspiration in any form, one must continually strive to do better. And the injustices themselves, on almost any view, are real and demand a response.

How can one do so? How can one develop the relationship of citizens to their governments so that they see those governments, with justification, as an expression of their political agency rather than a power that is opposed to them? The answers to those questions are many and varied. One might say that they include the whole history of democracy. When it comes to practical strategies for achieving the core aspiration, we all have much more to learn from a Stacey Abrams or a Greta Thunberg than you have from me.Footnote 6 But it is often the case, in situations like this, that we stumble over the terms in which we conceive of the aspiration. We aim for something we cannot achieve and neglect those things we can. Here, then, I want to contribute to how one might conceive of and take steps toward the core aspiration.

Or, to put this chapter’s purpose another way, the thoroughly dominant form of our constitutional discourse presumes a separation between government and people – or, at the very least, a counterposing of the two. Liberal democratic writings speak of government being ‘constrained’ by law and the institutions of electoral democracy. Rights are, above all, conceived as restrictions on government. Constitutions create ‘checks and balances.’ For its part, progressive politics is about ‘speaking truth to power’, progressive scholarly critique about recognizing that we are subject to a pervasive governmentality, capillary, inescapable. In contrast, I believe that we need to re-establish, for our age, democracy as a sphere of possibility, a cooperative endeavour to make our world a better place, to achieve goals (action on climate change; better healthcare; more equal distribution of wealth; education for all; equality for women, people of colour, Indigenous peoples, sexual minorities; environmental protection … the list goes on) that we would be unable to secure as individuals. Of course, you, dear reader, might now be full of objections, for that vision has never disappeared. Checks on state power on the one hand, and attempts to harness that power on the other, march hand in hand in progressive movements. Rosanvallon has chronicled the wide variety of means by which democratic institutions have blended, throughout democracy’s history, empowerment and oversight.Footnote 7 But is it wrong to think that confidence in the positive vision of democratic action is now at a low ebb? How might we act to reinforce the sense that government can be ours?

This chapter tries to clarify that objective by reflecting on an institutional context in which members do consider themselves to be custodians of their legal and governmental order: the governance structures of the Gitxsan people of northwestern British Columbia. This is the same Indigenous people that is the focus of Val Napoleon’s contribution to this volume (Chapter 11). Indeed, I owe a great debt to Professor Napoleon (Gyooksgan) for my understanding of Gitxsan society.Footnote 8 My purpose is not to claim to be an expert on Gitxsan governance. Nor is my focus the significant and continuing impact of colonialism on Gitxsan institutions. Rather, I seek to draw inspiration for the governance of societies generally from what has been, for me, an immensely stimulating engagement with Gitxsan institutions.

The organization of Gitxsan society does not take a state-like form.Footnote 9 By this I mean that its institutional structure is not arranged in a comprehensive and highly rationalized architecture, with jurisdictions for creating, interpreting, and enforcing law so arranged that every question is, in principle, subject to a single authoritative answer. Instead, the authority to articulate and interpret the law is widely distributed in society, so that the kinship groups generally called in English ‘Houses’ (Gitxsan: wilp and huwilp), the groupings of related Houses known as wil’naat’ahl, and various combinations of Houses assembled in feasts all bear their own traditions of Gitxsan law and have authority to interpret and act upon those traditions. Indeed, this is itself a simplification, for especially knowledgeable individuals play important roles in their own right, villages often have distinctive practices and discourses within the broader Gitxsan people, the Gitxsan people as a whole bear a strong sense that they share a common order of law and governance, and there are such close affinities with and connections to the legal orders of the Nisga’a and Tsimshian (neighbouring peoples that speak closely related languages) that one might consider them all variations on a single legal tradition. Moreover, there is an ethic of non-interference and non-imposition among these different instances. Significant disagreements on process and substance can therefore persist indefinitely.

This means that questions about the maintenance of community have a continual presence in Gitxsan society. The task of sustaining community is a matter for conscious effort each time the community assembles to accomplish legal work. Its members are directly responsible for that work, a responsibility that, if it runs into trouble, can lead Houses or groups of Houses to choose to disengage, withdrawing in whole or in part from Gitxsan institutions for varying periods of time. The existence of Gitxsan society is not taken for granted so that the measures necessary to sustain it recede from view. They are not masked by a political identity and institutional frame so dominant that the identity and frame are unimpeachable, as tends to be the case with states.

By reflecting on Gitxsan institutions, then, one can see what it takes to sustain a vibrant society grounded in the active adherence of its members. To be clear, I will not be advocating a simple transfer of approaches from Gitxsan society to large and diverse polities. Central features of Gitxsan society – such as the role of kin relations, their grounding in histories of great antiquity, the marriage of people to territory, the sense of kinship with non-human beings, even simple questions of population and scale – are clearly not transferable to contemporary non-Indigenous societies, at least not in so many terms. Nor do I mean to suggest that the themes explored here have no counterparts in non-Indigenous political traditions. Fortunately, they frequently do. Rather, my objective is to seek inspiration, clarification, imaginative stimulus, and reinvigoration from an engagement with the Gitxsan thought and practice of law and governance.

My great thanks to those, infinitely more knowledgeable than I am, who generously shared their knowledge with me at many points, especially Glen Williams (Malii), Katie Ludwig (Gal-sim-giget), Darlene Russell (Gux-gal-galsxw), and Audrey Lundquist (Guu jenn sim Simogit). I am particularly grateful to the late Neil J. Sterritt (Madiigam Gyamk), who shared his knowledge, understanding, and wisdom, answering my many questions. My gratitude too to the people who welcomed me to ceremonies, especially those of Malii and Haxbagwootxw (Vince Jackson). I continue to feel a deep obligation to those, now so many passed away, who gave their testimony in the Delgamuukw litigation, and from whom, at this distance, I have learned so much.Footnote 10 Any mistakes, of course, are my own.

The Institutions and Organization of Gitxsan Governance

I begin with an overview of Gitxsan governance, drawing, from that description, the principal characteristics of the Gitxsan people’s responsibility for law and governance. I will focus on institutions derived from Gitxsan tradition. Those institutions co-exist in sometimes contested relationship with structures introduced by Canada’s Indian Act, or patterned on non-Indigenous models. I refrain from dealing with the latter not because I doubt their legitimacy – those institutions too have become embedded in many Indigenous societies and, if so, I am not entitled to doubt their place – but because, for this chapter, I seek to reflect upon non-state forms of Gitxsan governance. As we will see, in that governance, the paradigmatic institution for the accomplishment of legal operations is the feast (yukw, or li’liget). The feast cannot be understood without grasping the kinship relations of Gitxsan society. We therefore begin there.

Those kin relations centre on the House. In Gitxsan society, every individual is a member of a House. Each House owns a particular territory (averaging approximately 575 square kilometres) that it administers, from which its members are entitled to draw their sustenance and for which the House is responsible. The term ‘ownership’ fails to capture the full character of that relationship. Ken Muldoe (Delgamuukw) described the relation as a ‘marriage of the Chief and the land’.Footnote 11 As that metaphor suggests, the relationship to land is more than merely instrumental (although the land’s pragmatic value in sustaining those dependent upon it is indeed important). The relationship also involves a metaphysical bond. A House’s territory forms part of a set of possessions, of foundational value to the House, that includes the House’s distinctive crests, songs, dances, regalia, names, and relationships with non-human beings. The entitlement to all these treasures is held within the histories of the House, the adaawk, passed down and supplemented through generations of recounting in the feast hall.

A House generally consists of between 20 and 200 members.Footnote 12 One inherits one’s House membership from one’s mother, so Houses take the form of extended lineages related through the female line. In Gitxsan country (including the semi-autonomous Gitanyow), there are something like sixty-eight Houses. Each of these Houses is represented by a head chief, who has special responsibility for safeguarding the House’s relationship to the territory and all their treasured possessions, protecting the reputation of the House, the organization of harvesting upon the land (and thus for the welfare of all members of the House), and leading the decision-making of the House, which tends to occur through consultation among the principal members of the House and related Houses. In a sense, the head chief stands for the House. When an individual becomes head chief of their House, they assume the chiefly name by which the House itself is known and has typically been known for many generations. Thus, the chief bearing the name Delgamuukw is the head chief of the House of Delgamuukw.

Individuals accede to chiefly names substantially through inheritance. The names belong to the House and are in practice controlled (to a significant extent) by extended families associated with those names (again, with the relevant family members always reckoned through the female line, for one must be a member of the House to bear one of its names). Moreover, inheritance of a chiefly name, especially the most important names, is not automatic. Potential chiefs pass through a succession of increasingly significant names held by the House as they are trained and occupy progressively more important roles. When an important name becomes available (generally, in the case of a head chief, because of the death of the previous holder), there are typically more than one potential candidate. The relative fitness of the candidates – their knowledge, their character, their training, their wealth, their relationship to the former chief – is then weighed by the principal members of the House. Ideally, those members ultimately agree on the best candidate. That House then holds a feast at which the name is conferred. Names can also be stripped from a holder who is considered by their House to have failed to fulfil their responsibilities, although this rarely occurs (a removal is also accomplished in a feast). A chiefly name therefore has some of the characteristics of an office. A head chief is acutely aware that they are one in a very long line of individuals who have held that name. They seek to live up to the name and to add to, not detract from, its lustre.Footnote 13

The Houses, then, are the principal property-holding and administrative bodies in Gitxsan society, but they are not self-sufficient. Importantly, Houses are dependent on other Houses for marriage partners. One is forbidden from marrying within one’s clan, and because every House exists within one of four clans in Gitxsan society, marrying outside one’s clan also means that one always, at least in principle,Footnote 14 marries a member of a different House. Each marriage, each household, is therefore a meeting of Houses, of territories, of histories. Since spouses generally live together, every House has on its territories spouses who are members of other Houses. Moreover, the children of the spouses inherit the House membership of the mother; thus, if the couple resides on the lands of the husband’s House, the children too are members of a House that is not the owner of the lands. Gitxsan society therefore recognizes the right of a spouse to harvest resources on the lands of their spouse’s House, of children to harvest on the lands of their father’s House, and indeed, to some extent, of grandchildren to harvest on their grandfather’s lands, all subject to them acknowledging and complying with the authority of the House chief over those lands. Moreover, there are other expectations and responsibilities, which I won’t describe here, that spouses and fathers have towards Houses to which they are related by marriage. Thus, when one considers that every marriage generates such relations, that the relations extend for the lifetime of the holder, and that marriage partners are typically drawn from a number of Houses (including Nisga’a and Tsimshian Houses), Gitxsan country is crisscrossed by a complex web of entitlements and responsibilities: both the central entitlements of House members, and the more limited entitlements of those connected to the House by marriage or filiation.

This brings us to the feast. The feast is the forum in which the principal work of law and governance is accomplished, such as conferring names (which, as we have seen, also confers a much broader set of rights and responsibilities); effecting marriages, divorces, and adoptions; the settlement of rights and obligations upon death; the recognition and correction of wrongs; the payment of debts; and, historically and perhaps increasingly again today, making or at least communicating the main decisions over the administration of the House’s territory and symbolic possessions.

A feast is hosted by the House that wants the work done. Other Houses must be invited to attend, the number of Houses depending on the importance of the work to be performed. In the feast, members sit with their House (thus spouses sit apart from each other), the Houses themselves being seated within the hall in a manner determined by their relationship to the host House. Members of the host House do not dine at the feast; they occupy one end of the hall, welcoming and seating the guests, preparing or overseeing the preparation of the food, serving the food to the attending Houses, conducting the work of law and governance for which the feast was called, and thanking the attending Houses with gifts at the end. The participation of the attending Houses is essential to the accomplishment of the work. The success of that work is a function of the approval by the attending Houses for what the host House has done. In the feast’s final act, the Houses are invited to voice that approval – not their approval for the specific choices made, but that the work has been done properly. Indeed, there may be other instances of assent over the course of the feast; when names are conferred, for example, representatives of the recipient’s father’s side are invited to welcome the recipient by their new name. The witnessing that occurs throughout the feast can itself be taken as a degree of tacit approval. If guests do not accept what is being done at a feast – if the disagreement is sufficiently serious – they can depart or refuse to attend in the first place. If guests do leave, or even state clear objections, the hosts will be deeply embarrassed. The very legitimacy of what they have done will be thrown into question. They will have lost the currency that a feast is designed to provide, namely acceptance that the House conducts its affairs appropriately and that what it has done therefore deserves respect.Footnote 15

For that reason, there is usually extensive consultation within the host House, beyond the House with persons renowned for their knowledge, and with principal members of other Houses prior to the feast to ensure that any difficulties are identified and settled in advance.Footnote 16 Thus, much of the practical work of assembling support occurs before the feast. But that should not distract us from the centrality of the feast itself. The discussions in advance occur so that the feast – the only forum in which certain types of legal work can be accomplished – proceeds smoothly. They are therefore structured and geared to that need. Moreover, there are occasions – rare occasions – when approval is emphatically withheld. Such a result is cataclysmic for the host House.Footnote 17 And even if the work of the feast is approved, the speeches by guest Houses at the last act of the feast are an occasion not only for ratifying what has been accomplished but for correcting, expressing approval in guarded terms, or supplementing what the host House (or other guests) have asserted. For those reasons, the feast will be the predominant focus in the discussion that follows.

What the Feast Tells Us About Political Community

What features, then, can we see in the feast that might inform our understanding about the kind of belonging, responsibilities, and entitlements that are inherent in collective self-government?

To begin, note that the lines of authority – judgement and approval – are exercised laterally, not top-down.Footnote 18 The legitimacy of work accomplished at a feast depends upon the accumulated approval of the other Houses. The more the Houses approve the work, the more successful the legal operations will have been – and the voicing of approval is relative: a House’s approval can be expressed with greater or lesser enthusiasm, with or without subtle corrections. Moreover, each House judges the work according to its own understanding of the tradition. Of course, there is a sense of participating in a common normative order. One hears participants say that ‘We are all Temlahan people‘ (referring to the ancient village that is a common point of origin among the great majority of Gitxsan Houses). That assumption of commonality serves a regulatory function in the legal order: it underpins the authority attributed to the approbation of other Houses; it is why Houses seek the opinions of and listen attentively to knowledgeable Gitxsan generally. Nevertheless, House members cherish deeply – indeed, have a responsibility to cherish – the stories and teachings carried by their own House’s adaawk. They do not have an obligation to surrender their position in deference to contrasting views, even a consensus view. Certainly, there is a firm ethic against Houses commenting directly on other Houses’ adaawk. The custody of the normative order lies with the Houses. Authority is distributed.

This means that it is not strictly accurate to say that norms are adjudicated in the feast. Disagreements are not subject to determination and can endure for generations. Nevertheless, there is a weighing of assertions, a counterposing of interpretations, through which assertions are often adjusted and a predominant position, a gravitational centre in the discussion, emerges. Uncompromising statements of what Gitxsan law requires can co-exist with an ethic of non-imposition. It is a question of jurisdiction, not a lack of concern with truth. What then regulates disagreement? What keeps the society from flying apart? To some extent, it is the process of reasoning, articulation and response, and emergent coalescence, but that process can only go so far. Ultimately, on some matters, one reaches a point where unresolvable disagreement remains and the Houses are faced with a choice: do they push the disagreement to the breaking point, or do they acquiesce in what appears to be the predominant outcome. Sometimes they do break and withdraw altogether or from certain forms of cooperation. But note the cost. The Houses may lose, to some degree, the benefits of cooperation, such as the peaceable resolution of disputes, the cross-cutting access to territories (which often have different attributes), the ability to engage in communal activities such as certain fisheries, the ability to obtain the affirmation and legitimacy conferred by a feast, and access to marriage partners. The desire to continue these benefits of community can lead – and generally does lead – to acquiescence, although even then the resolution often involves a measure of agreeing to disagree. Those acquiescing are entitled to continue to affirm that their position is right. And, indeed, sometimes the outcome makes concessions, through process or substance, to that position.Footnote 19

Note the characteristics, then, of this political community. The society is not held together by coercion; it is held together by the desire to continue to live in community, with the myriad benefits that entails, by what we might call ‘conviviality’. Nor is it held together by consent to a set of substantive propositions, even those provisions that represent predominant opinion within Gitxsan society. Continued community is compatible with persistent agreement to disagree.

This vision of community is tolerant of different modes of belonging. This is true in the sense that different Houses or groupings of Houses can have different degrees of integration into the collaborative networks of Gitxsan society. In a significant sense, Gitxsan society is federal, with members being attached to and participating in webs of interaction at different levels: family, House, village, wil’naat’ahl, and feasts that bring together larger or smaller numbers of Houses. That engagement can be asymmetrical. The Gitanyow Houses, for example, generally decline to participate in political initiatives at the level of the Gitxsan as a whole, although they intermarry with other Gitxsan Houses and participate fully in the Gitxsan system of feasting.Footnote 20 Gitxsan society also accepts, at the individual level, different reasons for belonging, even different visions of the purpose and value of living in society. This is typical of Indigenous societies. To take an example from the Cowichan Tribes in southern Vancouver Island, I remember being struck, at a conference organized jointly with the Cowichan and conducted according to Cowichan protocols, by the words of one community member who, when speaking of Cowichan law and governance, talked of the satisfactions he obtained from fishing.Footnote 21 Those satisfactions would not be what a political philosopher (including a Cowichan political philosopher) would tend to think of first, but the diversity of discourse nevertheless has an important human reality, one that we ignore at our peril (the peril of becoming learned fools). Any community is bound together by multiple forms of attachment. Participants in Gitxsan ceremonies, like those of other Indigenous peoples, are a broad spectrum of their community; their contributions and forms of attachment are similarly broad in content and register.

Such a vision of community welcomes diversity in another way. The lack of a single, canonical, compulsory mode of belonging means that participants of different origins can, at least potentially, find a place within Gitxsan society. I spoke of the different histories, different adaawk, of different Houses. Those adaawk disclose the Houses’ distinctive origins and movements into and through the region, including at times their different ethnic origins. Not only do they record intermarriage with non-Gitxsan neighbours (or non-human beings), but the origin of certain Houses lies outside the Gitxsan orbit. Some Houses of the Frog clan in Gitanyow appear to be descended from the Gitxsan’s neighbours to the north, an Athapaskan-speaking people (a different linguistic family from the Tsimshianic family to which the Gitxsan language belongs) called the Tsetsaut.Footnote 22 One northern House not associated with Gitanyow is currently seeking recognition as a separate nation from the rest of the Gitxsan Houses; it too claims connection to the Tsetsaut.Footnote 23 The Wet’suwet’en people, the Gitxsan’s neighbours to the southeast, also speak an Athapaskan language, yet they have adopted the Gitxsan system of Houses, feast and intermarry with Gitxsan, have an important village on Gitxsan territory, and brought major Aboriginal title litigation in concert with the Gitxsan.Footnote 24 At the individual level too, non-Gitxsan individuals are from time to time adopted into Gitxsan Houses, assuming a place within the system of kinship by which Gitxsan society is regulated (although adoptees may lack certain capacities, such as the capacity to bear the principal names).Footnote 25

Of course, as a result of their long history of living together, the Gitxsan have developed a commonality that goes well beyond the simple choice to work together. It includes interconnected modes of life, a common language, related forms of law, governance, relationships to land, and the histories, songs, stories, and bodies of commentary and reflection that have been borne by that language (and which now are transmitted in English as well). That commonality is grounded in centuries of interaction, intermarriage, collaboration, conflict, and inter-feasting and now constitutes a variegated, interlocked body of discourse, not least chronicling and sustaining the very practices of law and governance we have seen in this chapter. That discourse is dynamic, continually extended, added to, deepened through the wisdom of its members, influenced by encounters with other peoples’ traditions, and applied and adjusted to new situations. This tradition itself constitutes a basis for commitment to the Gitxsan as a whole – for being Gitxsan, for considering themselves ‘Temlahan people.’ It constitutes the body of story and practice through which they have defined their place in history and on the land, which continues to frame their action in society, and through which they voice their disagreements. Consent as the basis of political community has often been conceived not as a conscious exercise of the will, a choice at a moment in time, or a subscription to a common set of propositions, but rather as a continuing adherence to one’s society, the maintaining of a degree of concord between one’s inherited traditions and one’s actions in society.Footnote 26 Gitxsan certainly are attached to their people in this latter way. Their actions in the feast hall are understood to be their actions as Gitxsan, actions that they own, even when they disagree with the specific measure adopted.

Their social identity is, in other words, grounded in the very fact of conducting their legal and governance functions together, through forms that they understand and to which they are attached. The ground of their belonging is not, as in a contract, their agreement to a finite set of principles but their continued participation in institutions in which they may frequently disagree but where they grow to understand each other, where they have the opportunity to build cooperative projects (or to dismantle them), and through which they acquire, when they work at it, an understanding of and fluency in evoking some of the reasons for attachment to the land and to their societies. Belonging to community consists in doing community.

To build community, then, one must draw members into the work of community. Gitxsan society does that, from children’s and young people’s initiation to the land and the community’s relations to it, to the structured succession of names and roles as one accedes to increasingly more challenging leadership roles, to participation in the work of the Houses and, especially, in feasts. Within feasts, members’ responsibility for sustaining community is manifest. It is inherent in the act of witnessing the work performed at the feast,Footnote 27 the value of which is emphasized by the approval sought of the attending Houses, by the gifts given to them by the host House in appreciation of their role, and by the ethic that if one attends a feast one attends it to the end. For me, though, the most striking example is the tsek: the contribution bowl. Feasts are long. Today, they commonly begin at about 5:30 or 6:00 pm and last until 1:00 or 2:00 am (and that is in addition to other collective work that is frequently accomplished earlier on the same day such as, for a feast for the placing of a headstone, the formal receiving of delegations from other Houses, each of whom comes dressed in their regalia, sing their principal mourning song, and express their condolences; the washing of the headstone; and its placing on the grave). A substantial part of the duration of a feast – often something like one to two hours – is devoted to the contribution of funds by House members and by those closely connected to the House to the work of the feast. Those contributing form a line, and as they contribute their names and the amount of their contribution are publicly announced. Those amounts are then tallied, the obligations relating to the feast are tallied too, and the payment of those obligations is then made within the feast itself, with the recipient’s name, the service, and the amount of the payment also announced. Any balance is used for charitable donations (also announced) or distributed to guests as part of the gratitude to them for attending. I confess that having been raised in a Christian tradition, with an acute awareness of the duty to separate God and mammon, this intrusion of the material on the spiritual was startling for me, but I was grateful for it. It makes abundantly clear that community requires commitment and work and money and that it is up to members to sustain that community. Political community is not done for us. It is done by us.Footnote 28

In this account, I have sought to explore the essential groundwork of Gitxsan political community. Although I have found Gitxsan governance profoundly thought-provoking and inspiring, I don’t want to leave the impression that Gitxsan society is idealized and conflict-free – a society, in other words, unlike any other human society, in which nothing really needs to be decided or done.Footnote 29 That would be to ignore one of the lessons of the practicality of the tsek. And lest the lateral character of authority in the feast lead one to think that Gitxsan society is radically egalitarian, note that the institution of the feast developed in Gitxsan society when that society was built around a pronounced distinction between chiefly families, commoners, and slaves. Indeed, there was a time when only members of chiefly families participated in the feast.Footnote 30 Gitxsan society has now moved in substantially egalitarian directions, with slavery long gone, with women very often holding principal chiefly names and speaking for their Houses in feasts,Footnote 31 and with broad consultation and participation in feasts (although the principal chiefly names still tend to be passed down within chiefly families). Like any human society, Gitxsan society is dynamic, typified by disagreements and change and capable of dealing with such processes. But that does not nullify the fact that the lateral forms of authority and approval typical of Gitxsan society hold particular insights for popular sovereignty and democracy. We now turn to those lessons – to the sharpened focus that can be drawn from Gitxsan practice.

Lessons for Democratic Reform

An engagement with Gitxsan governance can help us to clarify the sense in which people understand that a government is theirs. Self-government does not – it cannot – require agreement to the substance of everything government does. That is an impossible standard in human communities, wherein citizens inevitably disagree. Disagreement applies to the substantive norms that govern the society. It also applies to the processes by which the community establishes or interprets norms.Footnote 32 Indeed, theories that claim to be based on consent are typically one great fudge: they focus not on what citizens do consent to but what the theorist presumes they would or should consent to. The citizens’ reasoning is ascribed to them, stipulated and applied by the theorist.Footnote 33 Moreover, this attributed consent – the theorist’s stipulation of the citizens’ consent – is then used to justify the binding character of the constitution. It thereby constrains, not enables, citizens’ agency. A non-consenting citizen cannot, by dissenting, liberate themselves from the government’s control. The theorist’s stipulated ‘consent‘ nullifies citizens’ actual dissent.

So, if not agreement, then what binds human societies together? The Gitxsan experience suggests that the commitment to live in community is grounded simply in one’s realization of the value of living in community and the cost of abandoning that support and cooperation. Such a realization stems from a wide range of phenomena: the practical reality of interdependence with others (including one’s reliance on others for one’s upbringing or the need to cooperate in activities beyond the capacity of a single individual); the benefits one obtains from being able to draw upon what one’s predecessors have achieved; access to resources controlled by others; the value of participating in a common linguistic community and in the storehouse of knowledge carried by that community; a sense of deep connection to the territory and to its spirits; or one’s familiarity with and mastery of the common institutions of the people. Indeed, there are as many reasons sustaining members’ connection as there are members (probably more). They alone justify a member acquiescing in a decision or in institutions with which they may not wholly agree. That is why ‘conviviality’ rather than ‘consent‘ is such a useful term: it captures the commitment to live together without over-stipulating what the commitment must be based on. This primordial commitment is multiform. It may end up being conditional – one may, in an extreme situation, feel compelled to abandon one’s community – but that involves the severing of many strands of belonging.

In Gitxsan society, that belonging is conceived predominantly in terms of kinship. The use of kinship to determine political membership is not as archaic as one might think. Consider how citizens of today’s nation-states acquire their citizenship. Very often, one inherits one’s citizenship from one’s parents (the jus sanguinis). Even when citizenship is obtained by being born on a state’s territory (the jus soli), that principle often co-exists with the jus sanguinis and, in any case, one’s place of birth is almost always a consequence of the decisions of one’s parents. Choosing to become a citizen is the exception, not the rule. It is a common exception, one that deserves great respect in an era of migration. I exercised such a choice when I became an Australian citizen, combining that allegiance with the Canadian citizenship I had acquired at my birth. Nevertheless, the choice to become a citizen, while significant, is just one step in the process of aligning oneself with a community and finding a place within that community, which engages both one’s own subjectivity and the community’s openness to relationship. It was that complexity of attachment that allowed me to torment my spouse’s Uncle Bill, a gruff (and much-loved) Australian patriot, by saying: ‘I’m more Australian than you are, Uncle Bill. I’m Australian by choice. You are just Australian by the accident of birth.’

Moreover, one should not fall into the error of assuming that kinship in Indigenous societies is a matter of partiality towards one’s immediate family (although Gitxsan people, being human, do feel the tug of that kind of partiality). Think of the extensive web of relations created by Gitxsan kinship: not just the membership one has in one’s House (which itself can involve connections that are distant in degree), but the multiple relations that the system of kinship creates to other Houses. Remember that one must marry outside one’s House, and that, as a result of those marriages, spouses and descendants acquire both responsibilities and rights to share in the resources of each House’s territories. Michael Asch speaks of such out-marriage rules, common in Indigenous societies, as suggesting that one’s being is incomplete until it is joined with another’s, and sees that notion as lying at the foundation of treaties.Footnote 34 Each marriage extends the web of kinship. Think too of the Gitxsan’s intermarriage with neighbouring peoples (noted by Val Napoleon, Chapter 11), including the welcoming of new Houses into the Gitxsan fold. In a foundational story of the people of Gitanyow, the House of Gwass-łam invites the House of Mah-ley (Malii) to join with them and form a new society on Gwass-łam’s territory.Footnote 35 And, of course, individuals too are deliberately brought into Houses through adoption.

Kinship in Gitxsan society is, in short, a way of coming into relationship with others, of building an interlocking society of relationships, that is not reducible to agreement with a set of canonical principles. It clearly understands that community exists prior to one’s articulation of principles – that one is born into relationship. Moreover, the Gitxsan web of relations extends to non-human beings and to the land itself. Compare the Cree concept of wahkohtowin (interrelatedness). As Jobin, Friedland, Beausoleil, and Kappo say, ‘A core aspect of wahkohtowin is family relationships; wahkohtowin also extends outward in different ways to other Indigenous peoples, to non-Indigenous people, and to relations with non-human beings.’ Moreover, ‘wahkohtowin and ‘the obligation to extend wahkohtowin’ continue to exist as such beyond any given struggle – and, importantly, even if we disagree.‘Footnote 36 As this suggests, the web of relationship extends far. To be clear, it would be a mistake to treat kin relations as being purely metaphorical in Indigenous societies; familial connection, by descent, marriage, or adoption, does operate at the conception’s core. But it then results in a vision of a community connected through webs of alliance and cooperation. It defines a sphere in which relations of interdependence are sufficiently strong to sustain institutional forms. I am not suggesting that non-Indigenous societies adopt kinship as their organizing principle – though fraternité certainly was tried at an important point in liberalism’s development! But shouldn’t we think of society as being defined by conviviality, by interdependence, more than by consent? Wouldn’t that be more faithful to the multi-stranded nature of our attachments?

Of course, one may then seek to build agreement as to what one will do together, as indeed the Gitxsan do. But note that that search for agreement comes after one’s recognition of community and that it is rarely if ever perfectly achieved. It is not foundational. It becomes the continual, never finished, always essential work of community. Indeed, participation in that work is precisely what it means to be a responsible member. It is through working together that, ideally, one consolidates one’s sense of membership and builds one’s grasp of the society’s procedures, historical knowledge, rhetorical strategies, economies, lands, people, and beings – a mastery of how to work together that is itself a reason for continued adherence. Participation in this work is, as Jim Tully has said, what it means to become a citizen.Footnote 37 Thus, if we want to build belonging, we should seek to foster participation. Participation is not just an attribute of citizenship. It is how one consolidates and deepens one’s citizenship.

The Gitxsan see this work as a responsibility, not simply an entitlement. Potential chiefs are trained in the skills that leadership requires and then named on their ability to shoulder such responsibilities. Witnessing and approving the results of a feast emphasize that feast-work can only be accomplished with the active attention and judgement of other Houses; indeed, in Gitxsan society, it is that recognition that gives the work the only force it possesses. The tsek renders manifest members’ obligation to sustain materially the society’s institutions – a support essential to the political identity and agency of the Gitxsan people.

One can see analogues for each of the previous paragraphs’ affirmations in the operations of state law and governance, but the analogues are often masked by the apparent solidity, the apparent givenness, the heavy institutionalization, of the state. Can we reinforce a comparable responsibility by rendering it visible? One example might be the Australian requirement of compulsory voting. It emphasizes that there is a quid pro quo engaged by the right of citizenship: one must participate in the act of deciding the overall orientation of one’s government. A citizen may spoil their ballot, but they need to grasp that ballot and decide what to do with it. It is worth thinking of other ways of rendering visible the interdependence of rights and responsibilities. Might governments’ create specially designated funds inspired by the transparency of the tsek: a solidarity fund, for example, replenished each year by a progressively graduated proportion of one’s tax bill, for achieving the work of economic redistribution? As it stands now, government-administered pensions, employment insurance, and medical insurance build public support for government not just because they address compelling human needs (which they do) but because they crystallize interdependence and mutual responsibility in practical form.

For participation to succeed in forming attachment, opportunities for participation have to be accessible and they have to matter. One reason why Gitxsan society engages its members is that the Gitxsan people is a composite of political communities: families, Houses, in some cases wil’naat’ahl, feasting among Houses. These polities each have their own membership, their own ways of doing things, their own stories; some have their own property. They can decline to go along with others’ decisions, adhere in part to them, or harmonize their actions with others in ways of their own choosing. They are not held within a mandatory, uniform, centrally determined and enforced structure of law. Each one is a context for collective self-determination in its own right. This allows for the graduated opportunities for political participation that de Tocqueville famously ascribed to voluntary associations, together with different intensities and levels of prominence of roles. Note, however, that in Gitxsan society these polities have a sphere of autonomy and a role in general governance that most states now deny to voluntary associations. Moreover, Gitxsan polities are voluntary only in the sense that an individual can exit Gitxsan political society altogether. Your House membership is regulated by the system of kinship and by the Houses themselves, and, within that system, you are expected to fulfil your responsibilities to the extent you are able.

The Gitxsan structure of polities can be seen, then, as essentially federal, but with an array of polities that is more extensive than the more familiar federalism of states. The Gitxsan structure is not encased within a uniform framework. The ability to dis-adhere is real, albeit costly in terms of the ability to cooperate into the future. The Gitxsan approach tolerates asymmetry so that the patterns of inter-Gitxsan cooperation tend to be quite various – more akin, in some ways, to the diverse patterns of collaboration and autonomy that exist among states in the international realm rather than that between units of a federation. This diversity is a function of the Houses’ ability to make their own decisions.

Can we build, within states, a similar structure of graduated and efficacious polities? Many elements of such a structure that once existed have since been undermined. Unions no longer have the presence or power they once had. Forums for political dialogue that brought citizens into interaction with those with whom they disagreed have increasingly been replaced by echo chambers. Finding ways to restore such engagement should be a crucial objective of our time. Some suggestions: First, to be effective, these forums have to be more than voluntary. They have to be treated, to a degree, as analogous to local government, able to make decisions of public consequence (as indeed the Gitxsan’s institutions are).Footnote 38 One reason for the decline of unions is that many jurisdictions have come to treat them as voluntary associations, not as institutions representing their diverse workforce for the purpose of workplace governance. Second, it helps if they have power over resources. Indeed, the ability to participate in the allocation of resources draws members into governance, making participation consequential, rendering the institutions more representative, and training participants in the stewardship and deployment of resources. Third, it may be necessary to meet political community where it resides, empowering forums where people already convene – environmental groups, religious denominations, unions, student organizations, arts councils, parents’ forums, renters’ associations, sports clubs, and many others – and using those as the building blocks for more broadly based organization.Footnote 39

The inclusion of religious organizations in this list may set off alarm bells in some readers’ minds. It is true that recognizing existing communities may be in tension with one’s wish to create forums that are themselves diverse (though the uniformity even of religious organizations should not be overstated). The extent to which constituent organizations are democratically controlled should also count in this process. But generally, our shorthand conceptions of equality frequently suggest that citizens should be treated identically. Devolved decision-making necessarily produces differential treatment. How do we ensure those differences are okay? These are serious questions. There is a strong case for some mandatory constraints. Such constraints are compatible with the spirit of devolution. After all, the devolved units together create a composite political community, and component units may well require the observance of certain principles as a condition for that cooperation (gender and racial equality, among others). But, if one genuinely wants to deepen democratic participation, those constraints need to be kept as minimal as possible. It is important to remember that the very visibility of devolved decision-making imports a level of accountability – one that takes a form analogous to the lateral constraints in Gitxsan society.

Consider this example. In 2004, an Islamic organization in Ontario stated its intention to use arbitration under that province’s Arbitration Act, 1991 SO 1991, c 17, to deal with the consequences of family separation using Muslim personal law (some Christian and Jewish groups were already engaging in arbitration based on their religious traditions). This generated furore and the government of the day appointed former Attorney-General Marion Boyd to review the situation. She recommended that arbitration based on religious law be permitted subject to a list of requirements, including that arbitrators in such matters prepare and distribute a statement of the principles they would be observing, that the arbitrations only occur if procedural requirements specified in the report were observed, and that the arbitrations be made subject to judicial review on specified grounds.Footnote 40 This report was criticized because it would still permit the rights resulting from family break-up to be adjudicated on the basis of religious law. But note what happens in the absence of such adjudication. The vast majority of marital disputes are settled by agreement of the parties. If this were not the case, the courts would be incapable of handling the burden. Those private settlements are subject to very little oversight and are concluded on the basis of who knows what principles. In contrast, the Boyd recommendations would have opened those standards to transparency, public commentary, deliberation, procedural protections, and an enhanced measure of judicial review. Note the harnessing of the lateral processes of publicity and commentary. Our current processes tend to draw a bright line between public decision-making, which aspires to be transparent and uniform, and private decision-making, which is invisible and largely uncontrolled. We should instead embrace a gradation of publics together with a gradation of publicness.

Another way to put this argument is that we ought to come to terms with the facticity of political community. All political communities, including states, have a non-neutral, non-universal composition, one that is reflected in their decision-making. Consider this example: In the 1970s and 1980s in the southern United States, litigation challenged the position of historically Black colleges and universities (HBCUs) on the basis that their states’ university systems were, in effect, still segregated. Why? Because the HBCUs still attracted disproportionate numbers of African-American students because of the composition of their governing boards, their larger numbers of African-American faculty, and their programmes directed towards African-American students. But how, then, does one desegregate them? By giving them white-majority boards, hiring more white faculty, and changing their programming? One solution strongly pressed but ultimately defeated was to merge the HBCUs with historically white institutions, so that the HBCUs’ distinctive character would be eliminated.Footnote 41 The fact is that state institutions have a particular character that is a product of their citizenry refracted through their institutions. They are nevertheless empowered to make real decisions. I am proposing that we extend that ability to political communities within the state. If we do so, not only will there be increased opportunities for political participation, our institutions can also escape, to some degree, the impersonality, limited responsiveness, and exclusively top-down character of conventional bureaucratic administration.Footnote 42

This prescription is not anti-state. Indeed, I suspect that greater participation in such forums will lead to greater participation at the level of the state as well, that the state will be more representative, that its variegations will be more visible, and that in consequence the state will have greater legitimacy to pursue vigorous policies, as indeed it must if we are to address the great challenges of our time. For this strategy to work there does need to be a range of agencies, sufficient to allow for very broad participation, and there has to be a ladder of opportunities for participation extending to the society as a whole, as there effectively is in Gitxsan society. This has been the experience in the Scandinavian countries. There, social services are frequently delivered by agencies identified with segments of society. Yet the coverage of those agencies is extensive, and the engagement possible within them feeds into the institutions of the state as a whole, broadening and empowering them.Footnote 43

One last lesson from Gitxsan society: Note that Gitxsan political participation is intimately wedded to ceremony and ritual. A feast is marked by set-pieces having symbolic significance: the seating of each guest with their House; the encounter between the host House’s nax nok (a troublesome and unpredictable spirit) and the guest Houses’ invocation of their own nax nok; the distribution of goods as an expression of gratitude to the attending Houses; the host House’s songs and dances as the work of the feast begins; the order of contributions to the tsek by relationship to the House, ending with those of the spouses of House members; the House representatives’ commentary on the work of the feast. Indeed, Indigenous peoples often refer to their political processes as ‘ceremonies’. In Gitxsan society, it is often the case that the feast itself is primarily ceremonial, with the substantive deliberations, the negotiations, conducted prior to the feast. And yet the ceremonial elements clearly do real work. One obvious example is the response at the end of the feast by each attending House. That event, at the very least, expresses the principle that the most important actions of each House are subject to the approval of other Houses – indeed, derive their force from being seen by the other Houses to be done in the right way. Moreover, that final act of the feast impels and regulates the discussions that occur before the feast, during which the host House strives to ensure that the work will be approved. The preparations for the feast are under the structured, symbolic control of the feast’s final event.

This is a reminder of the work that ceremony does in non-Indigenous political life too. Voting is the method by which representatives are chosen, but it is also a powerful affirmation of citizens’ absolute equality. The achievement of equality in practice may remain elusive, but each election emphasizes that it is a foundational principle and reaffirms it as a standard for critical evaluation. To take another example, I argued above for compulsory voting not as a way of getting more representative outcomes (though one might make that case) but because of the message it sends about citizens’ responsibility. And, as a third example, if administration of some governmental services is devolved to grassroots organizations, perhaps we should require that each organization provide a report of their activities to a meeting of their counterparts, in which each organization would assess and comment upon each other’s activities. Think what would be learned but also, more importantly, what such a step would communicate about the direction of authority, responsibility, and accountability. Finally, note that the symbols embedded in such practices have the merit of stimulating participation and engagement. Not only do they require parties to act for their very operation, but their implications are open, demanding continued interpretation.

Conclusion

The panoply of approaches discussed herein would broaden the foundation of democratic engagement and, I hope, justify citizens in perceiving government to be truly theirs. They are founded on the affirmations that we need to live together in society, that societies are not defined by our substantive agreements, but that we can nevertheless aspire to govern ourselves collectively through practices of participatory decision-making. The greater the engagement, and the more extensive the mechanisms for accountability to each other, the more democratic our institutions will be.

Self-government does not repose upon a firm foundation outside of human endeavour. There is no such terra firma. Rather, it reposes on the quality of our structured interaction, on our ability to speak, on our readiness to hear, on the engaged responsibility of the citizens themselves, and on the institutional structures that allow us to contribute to, test, and assess that engagement. As citizens, we ultimately hold the health of our democratic orders in our hands.

Footnotes

11 Gitxsan Democracy: On Its Own Terms

1 Boaventura de Sousa Santos, “We Live in Politically Democratic but Socially Fascist Societies,” CPAL Social, November 30, 2016, www.envio.org.ni/articulo/5269.

2 Boaventura de Sousa Santos, “The Crises of Democracy: Boaventura de Sousa Santos and James Tully” (webinar, Global Politics in Critical Perspectives – Transatlantic Dialogues, University of Victoria, Victoria, BC, March 15, 2019), www.youtube.com/watch?v=-i9aFUsTipk.

3 Michael Blake, Simone Chambers, and Arthur Ripstein, “Talking Philosophy: War and Peace Part 2,” May 19, 2015, in IDEAS, produced by Greg Kelly and CBC Radio, www.cbc.ca/radio/ideas/talking-philosophy-war-and-peace-part-2–1.3324750.

5 I am not taking up the issues and questions concerning definitions and limitations of human rights constructions here.

6 Boaventura de Sousa Santos, “Beyond Abyssal Thinking: From Global Lines to Ecologies of Knowledges,” Eurozine, June 29, 2007, www.eurozine.com/beyond-abyssal-thinking/.

7 See, for example, Val Napoleon, “An Imaginary for Our Sisters,” in Indigenous Spirituality and Religious Freedom, ed. Jeffery Hewitt and Richard Moon (Toronto: University of Toronto Press, forthcoming); Emily Snyder, Val Napoleon, and John Borrows. “Gender and Violence: Drawing on Indigenous Legal Resources,” UBC Law Review 48, no. 2 (2015): 593654.

8 I have written about the extensive conflicts within and between Indigenous communities elsewhere. See, for example, Val Napoleon, “Demanding More from Ourselves: Indigenous Civility and Incivility,” in Civic Freedom in an Age of Diversity: The Public Philosophy of James Tully, ed. Dimitri Karmis and Jocelyn Maclure (Montreal: McGill-Queen’s University Press, forthcoming).

9 The Gitxsan were one of the plaintiff groups in the seminal title court action, Delgamuukw v. British Columbia [1997] 3 SCR 1010. The other plaintiff group was the Wet’suwet’en.

10 de Sousa Santos, “Beyond Abyssal Thinking,” 1.

11 Indian Act, RSC 1985, c. I-5.

12 Kristen Rundle, “Fuller’s Relationships,” in “The Rule of Law and Democracy,” ed. Hirohide Takikawa, special issue, Archiv für Rechts- und Sozialphilosophie 161 (2019): 1737. Also helpful is Kristen Rundle, Forms Liberate: Reclaiming the Jurisprudence of Lon L. Fuller (Oxford: Hart Publishing, 2012).

13 Santos, “Beyond Abyssal Thinking,” 1.

14 Over the years, many Indigenous and non-Indigenous scholars have written extensively about Canada’s colonial past, so I do not take that up here. For example, see generally, the various and numerous works of John Borrows, Gordon Christie, Kent McNeil, Patricia Monture, Paul Chartrand, Jeff Corntassel, Kiera Ladner, and Shiri Pasternak.

15 This session took place in Victoria, British Columbia. Over two days, there were about twenty Gitxsan people in attendance, and eight to ten federal and provincial representatives.

16 James Tully, Public Philosophy in a New Key, vol. 2, Imperialism and Civic Freedom (Cambridge: Cambridge University Press, 2008), 248.

17 Indigenous peoples in Canada have always been creative and pragmatic about the Indian Act and have pushed for incremental changes as one way to increase local authorities. See, for example, Naiomi Metallic, “Indian Act By-Laws: A Viable Means for First Nations to (Re)Assert Control over Local Matters Now and Not Later,” UNB Law Journal 67 (2016): 211–34.

18 Every Gitxsan is born into their mother’s House (wilp). Huwilp is the plural form. Houses are associations of related lineages with the mutually agreed ability to manage property, including resources and territories. See Richard Overstall, “Tsimshian Power Point” [unpublished, archived with the author].

19 The English term “House” derives from the former long house. Historically, the long houses included House members as well as their spouses, and as the Gitxsan are exogamous, the spouses would have been from a different clan.

20 Overstall, “Tsimshian Power Point.”

21 Ralph Waldo Emerson, Collected Works of Ralph Waldo Emerson, vol. 7, Society and Solitude, ed. Alfred R. Ferguson, Jean Ferguson Carr, and Douglas Emery Wilson (Charlottesville, VA: InteLex Corporation, 2008), 86.

22 Part I of the Constitution Act, 1982, being Schedule B to the Canada Act (UK), 1982, c. 11.

23 James Tully, On Global Citizenship: James Tully in Dialogue (London: Bloomsbury, 2014), 73.

24 Richard Overstall, private correspondence, May 17, 2020. According to Overstall, “If we were to start, for example, in early medieval times, we would see kinship-based, community-centred social and economic networks regulated by legal orders not unlike those in indigenous societies today. Then came marauding Vikings forcing the various petty kingdoms to cooperate in a coordinated defence network. The attendant taxation and military service requirement led to a centralised bureaucracy and a warrior aristocracy with a supreme monarch and war leader. The aristocracy then had the power to coerce appropriate common lands to their private property, abolish, and later criminalise, community access rights (customary law) to pastures and forests, and drive the peasantry from their communities. Over the next few centuries, political power was wrested from the monarch, then the aristocracy, then the property-owners, and then the men. The common law, however, continues to emphasise protection of private property above the common welfare.”

26 I have written about this elsewhere. See, for example, Val Napoleon, “Legal Pluralism and Reconciliation,” Māori Law Journal (2019): 122.

27 de Sousa Santos, “Beyond Abyssal Thinking,” 2.

29 Footnote Ibid. I have argued elsewhere that incommensurability is a colonial story. See Hadley Friedland and Val Napoleon, “Gathering the Threads: Indigenous Legal Methodology,” Lakehead Law Journal 33, no. 1 (2015): 1744.

30 de Sousa Santos, “Beyond Abyssal Thinking,” 11.

31 Michael Blake, “Why Bullshit Hurts Democracy More Than Lies,” The Conversation, May 14, 2018, http://theconversation.com/why-bullshit-hurts-democracy-more-than-lies-96331.

32 Robert Jago, “Canada’s Hollow Concern for First Nations Democracy,” The Walrus, July 19, 2019, https://thewalrus.ca/canadas-hollow-concern-for-first-nations-democracy.

33 For a discussion about the loss of civility and its consequence, see Napoleon, “Indigenous Civility.”

34 de Sousa Santos, “Beyond Abyssal Thinking,” 1.

35 For further information on this methodology, see Friedland and Napoleon, “Gathering”; and Hadley Friedland and Val Napoleon, “An Inside Job: Engaging with Indigenous Legal Traditions through Stories,” McGill Law Journal 61, no. 4 (2016): 725–54

36 The Gitxsan and Nisga’a are from the Tsimshian linguistic group located on the north coast of British Columbia.

37 George F. MacDonald and John J. Cove, Tsimshian Narratives 2: Trade and Warfare (Ottawa: Canadian Museum of Civilization, 1987), 164.

38 Meluleq is erroneously listed as a Wolf Chief in the MacDonald and Cove publication; Footnote ibid. Thanks to Richard Overstall for catching this error.

39 In the McDonald and Cove publication (Footnote ibid.,) Gawaganii is incorrectly spelled as Hawaagyan. Again, I am grateful to Richard Overstall’s detailed knowledge.

40 While the former Guxmawen was killed, the name Guxmawen would have been given to the next person in line for it.

41 John Borrows, Law’s Indigenous Ethics (Toronto: University of Toronto Press, 2019), 239.

42 See Friedland and Napoleon, “Gathering”; and Friedland and Napoleon, “An Inside Job.”

43 The Gitxsan and Nisga’a are both matrilineal so Guxmawen’s daughter would have been in a different House than her father. This may be why her name was not recorded, but that is unclear from this published version of this narrative. It is also unclear as to whether she was the daughter of the first Guxmawen or the second, but for the purposes of this analysis, nothing turns on that question.

44 Rundle, “Fuller’s Relationships,” 24.

45 I lived and worked in Gitxsan lands with Gitxsan peoples for more than two decades, and my doctoral work was on Gitxsan law and developing a Gitxsan legal theory: Val Napoleon, “Ayook: Gitksan Legal Order, Law, and Legal Theory” (DPhil Law thesis, University of Victoria, 2009), 91 [unpublished, archived with author].

46 See, generally, Jennifer Nedelsky, Law’s Relations: A Relational Theory of Self, Autonomy, and Law (Oxford: Oxford University Press, 2011).

47 An individual may be adopted into a different House, or they may simply align their labor and wealth to another House.

48 Rundle, “Fuller’s Relationships,” 19.

49 Napoleon, “Ayook,” 24.

50 Collectively, members can remove names from House chiefs who fail to fulfill their responsibilities. See Footnote ibid.

51 Christine Keating, Decolonizing Democracy: Transforming the Social Contract in India (Pennsylvania: Pennsylvania State University Press, 2011), 108.

52 Rundle, “Fuller’s Relationships,” 24.

53 Overstall, “Tsimshian Power Point.” Historically, the Houses that did not have enough women and girls would shrink in size, meaning that the unit would have great difficulty upholding its legal, political, and economic obligations to the land, the House, and to other Houses. The options would be to adopt women and girls from other Houses or combine with another House for as long as their numbers were low.

54 Blake, Talking Philosophy.

55 Rundle, “Fuller’s Relationships,” 24.

56 Constitution Act, 1867, RSC 1985, Appendix II, No. 5.

57 de Sousa Santos, “The Crises of Democracy.”

58 I have written about this elsewhere. See, for example, Val Napoleon, “Aboriginal Self Determination: Individual Self and Collective Selves,” Atlantis: A Women’s Studies Journal 29, no. 2 (2005): 3146; and Val Napoleon, “Living Together: Gitksan Legal Reasoning as a Foundation for Consent” in Between Consenting Peoples: Political Community and the Meaning of Consent, ed. Jeremy Webber and Colin McLeod (Vancouver: UBC Press, 2010), 4576.

59 Darcy Lindberg, “Brain Tanning and Shut Eye Dancing: Recognizing Legal Resources within Cree Ceremonies” (2016) [unpublished, archived with author].

60 This image is the work of an unknown artist, printed in Camille Flammarion, L’atmosphère: Météorologie populaire (Paris, 1888), 163. It is on the front cover of Helge Dedek and Shauna Van Praagh, eds., Stateless Law: Evolving Boundaries of a Discipline (New York: Routledge, 2015).

61 Tully, On Global Citizenship, 73.

62 Tully, Public Philosophy, 301.

12 Democratic Futures and the Problem of Settler States An Essay on the Conceptual Demands of Democracy and the Need for Political Histories of Membership

1 I should note here that I am addressing the future of democracy within settler states that fit within the broad tradition of representative democracy. In this tradition there is a higher degree of tension placed on the identity of the demos as the authoritative body, and so the procedures and practices of legality and legitimacy must be connected to it.

2 Robert Brandom’s discussion of Hegel’s critique of Kant via the unhappy concept of Mastery is instructive on this point. See Robert B. Brandom, A Spirit of Trust: A Reading of Hegel’s Phenomenology (Cambridge, MA: Harvard University Press, 2019), 313–52.

3 This citation is from book 1, chapter 7 of Rousseau’s On the Social Contract, and its logical structure is echoed again in Rousseau’s definition of law in book 2, chapter 6. See Jean-Jacques Rousseau, “On the Social Contract,” in Basic Political Writings, trans. Donald A. Cress (Indianapolis: Hackett, 1987), 151, 161. Kant attempted to jump over the question of legal foundations (viz. the actual source of laws) by bracketing the source of semantic content and highlighting the freedom of choosing the law as your own. This leaves him with an ultimately spooky and incoherent notion of the source of authority (viz. the thing-in-itself). Hegel retains the notion of freedom that Kant helpfully developed and moves from Kant’s notion of individual autonomy to a social recognitive model. As Robert Brandom clearly explains in his masterful reading of the Phenomenology, “[t]he idea, central to modernity as Hegel conceives it, that normative attitudes are instituted by normative statuses, is the idea that statuses are to begin with merely virtual, as the objects of attitudes of attributing and acknowledging them, become actual when those attitudes are suitably situated in such complex constellation.” Brandom, A Spirit of Trust, 313

4 H. L. A. Hart, The Concept of Law, 2nd ed. (Oxford: Oxford University Press, 1994), 8990.

5 I qualify the term “minorities” because this concept presumes that there is some account that makes group B necessarily a part of the larger group A.

6 For Hart’s response to Austin see The Concept of Law, chapters I–IV.

7 For Wilfred Sellars’ use of “descriptivism” I have in mind his essay “Counterfactuals, Dispositions, and the Causal Modalities,” in Minnesota Studies in the Philosophy of Science, vol. 2, Concepts, Theories, and the Mind-Body Problem, ed. Herbert Feigl, Michael Scriven, and Grover Maxwell (Minneapolis: University of Minnesota Press, 1957), §79; and Robert B. Brandom’s discussion of it in chapter 1 of his excellent book From Empiricism to Expressivism: Brandom Reads Sellars (Cambridge, MA: Harvard University Press, 2015). For Brandom’s concept of “semantic naiveté,” see Robert B. Brandom, “ Reason, Genealogy, and the Hermeneutics of Magnanimity” (Howison Lecture in Philosophy, University of California, Berkeley, CA, March 13, 2013), https://gradlectures.berkeley.edu/lecture/magnanimity.

8 Wilfred Sellers, “Counterfactuals, Dispositions, and the Causal Modalities” in Minnesota Studies, vol. 2, ed. Feigl, Scriven, and Maxwell, §108.

9 Nelson Goodman’s classic text Ways of Worldmaking (Indianapolis: Hackett, 1978) comes to mind here.

10 Ludwig Wittgenstein, Tractatus Logico-Philosophicus, trans. Charles Kay Ogden (London: Routledge, 1922), §5.633.

11 For Wilfred Sellars’ concept of the “myth of the given,” see his essay Empiricism and the Philosophy of Mind,” in Minnesota Studies in the Philosophy of Science, vol. 1, The Foundations of Science and the Concepts of Psychology and Psycho-Analysis, eds. Herbert Feigl and Michael Scriven (Minneapolis, MN: University of Minnesota Press, 1956), 253329. This essay was originally presented at the University of London Special Lectures in Philosophy for 1956 as “The Myth of the Given: Three Lectures on Empiricism and the Philosophy of Mind.”

12 Hart’s critique of Austin’s theory in the first half of The Concept of Law is clear, thorough, and forceful. There is room for nuance in Hart’s positivism, but its limitations are nonetheless built into the presuppositions that accompany its claim to being merely descriptive. For example, how exactly does Hart ground his notion of “primitive law”? While it may be true that what he means is simple (and not the pejorative notion of “primitive” that resonates so strongly with the dark legacy of Colonial Imperialism) it is altogether unclear how exactly this determination is made outside of the confines of armchair thought experiments. How exactly does Hart’s descriptive sociologist arrive at the conclusion that the social order s/he is observing lacks a legal system? After all, if a legal system is defined simply as a coupling of primary and secondary rules, how does one determine if a given society has the “minimum content” required to establish that they do indeed possess a legal system? Before we jump into a catalog of descriptive methodology, we should carefully consider if a society composed only of primary rules would even be possible? That is, is it possible for a society to have no rules about their rules? This idea of a society outside of the possibility of change (or outside of history) has a long history in the justifications of Colonial Imperialism. For example, Kant argued that the Tahitians lived in this static space of unreflective normative life, and on this basis he argued that their lives were no different (or more valuable) than sheep. Immanuel Kant, Political Writings, ed. Hans Reiss, trans. H. B. Nisbet (New York: Cambridge University Press, 1991), 219–20. Returning to Hart, is it not more plausible that the descriptive sociologist can only describe the observed behavior in the evaluative and explanatory context that s/he operates in? And so, there is no way for the descriptive sociologist to say for certain whether or not a given society lacks rules about rules. Even if the descriptive sociologist is equipped with the more prescient and circumspect capacities of observation and description, those descriptions are looking for what they are familiar with. It is caught by the same limits that Hart so clearly stated those observing behavior at a stop sign would have. Thus, the capacities of descriptive sociology for pointing out rules and talking about rules is limited by their evaluative context. This does not mean that Hart’s account of the law is somehow unworkable. Rather, it simply indicates a problem that Hart was aware of, but those who have extended his work outside of the context he was working in have stretched his concept of law past its evaluative limitations. We can think through the problem via Quine’s notion of radical translation. In his famous though experiment from chapter 2 of Word and Object, Quine presents a case in which translation of a natural language must proceed without any prior linguistic knowledge and solely on the basis of the observed behavior of the speakers who sees a rabbit (Willard Van Orman Quine, Word and Object [Cambridge, MA: MIT Press, 1960]). The native speaker (who uses the unknown language of Arunta) uses the word “gavagai,” which leads the interpreter to believe that the word is equivalent to “rabbit.” But there is no way of being certain that this is what the speaker means because the interpreter does not have access to the other speaker’s frame of reference or “space of implications” (to borrow Sellers’ phrase). This does not lead to strong cultural relativism. This would be like jumping from the indeterminacy of translation to the impossibility of translation. Rather, as Donald Davidson shows us in his account of radical interpretation, understanding is not possible without mutual recognition. If an interpreter begins by doubting whether the beliefs of their interlocutor have an equal claim to holistic coherence and correspondence, only misunderstanding and confusion can result (Davidson’s work on these concepts is spread throughout his work, but the obvious starting point is his seminal essay Radical Interpretation,” Dialectica 27 (1973): 313–28). This can help them build the kind of tenuous connections that allow for translation between natural languages to make some degree of sense. I believe that Hart’s notion of law as being composed out of primary and secondary rules is far more helpful when it is paired with the philosophical tools that are needed to escape the dogma of descriptivism (pace Quine and Sellers for the oversimplified conjunction).

13 Max Weber, The Protestant Ethic and the Spirit of Capitalism, trans. Talcott Parsons (London: Routledge, 1992), 182.

14 Quentin Skinner, Visions of Politics, vol. 1, Regarding Method (Cambridge: Cambridge University Press, 2002), 157.

15 Georg Wilhelm Friedrich Hegel, Elements of the Philosophy of Right, ed. Allen W. Wood, trans. Hugh Barr Nisbet (Cambridge: Cambridge University Press, 1991), 21(original emphasis).

16 Quentin Skinner, Visions of Politics, 157 (emphasis added).

17 John Stuart Mill, On Liberty and Considerations on Representative Government, ed. Ronald Buchanan McCallum (Oxford: Basil Blackwell, 1948), 9.

18 I have found David Dyzenhaus’ work on the form of public law particularly instructive in spelling out the contrast I have in mind and mapping out its possible consequences for the rule of law. In particular, see David Dyzenhaus, “Process and Substance as Aspects of the Public Law Form,” Cambridge Law Journal 74, no. 2 (2015): 284306; and David Dyzenhaus, “The Inevitable Social Contract,” Res Publica 27 (2021): 187202, https://doi.org/10.1007/s11158-020-09467-z.

19 Two examples of this will suffice for my purposes here: in 1886 the US Supreme Court issued their decision in United States v. Kagama, 118 US 375 (1886) and attributed plenary power over Indian tribes to Congress based on an interpretation of the Commerce Clause of the Constitution that has no plausible basis in constitutional law. For more on this, see Robert N. Clinton, “There is No Supremacy Clause for Indian Tribes,” Arizona State Law Journal 34, no. 1 (2002): 113260; and Philip P. Frickey, “Domesticating Federal Indian Law,” Minnesota Law Review 81, no. 1 (1996): 3195. Similarly, in Canada we could point to the unquestionable presumption that the Crown is in possession of sovereignty, legislative power and underlying title, which extends from the UK Privy Council decision in St. Catharine’s Milling and Lumber Co. v. R. [1888] UKPC 70, 14 App Cas 46, to the foundational case of the post-1982 constitutional order, R. v. Sparrow [1990] 1 SCR 1075, [1990] 70 DLR (4th) 385. For more on this, see Kent McNeil, Flawed Precedent: The St. Catherine’s Case and Aboriginal Title (Vancouver: UBC Press, 2019); and Joshua Nichols, A Reconciliation without Recollection? An Investigation of the Foundations of Aboriginal Law in Canada (Toronto: University of Toronto Press, 2020).

20 Sparrow, 1102.

21 Sparrow, 1103.

22 It should also be noted that the Court does not explain how Johnson v. M’Intosh, 21 US (8 Wheat.) 543 (1823) supports their account of Crown sovereignty. First, Johnson v. M’Intosh is by no means settled authority within the United States as it is the first case of three that Chief Justice Marshall decided in relation to the Piankeshaw. His decisions in The Cherokee Nation v. The State of Georgia, 30 US 1, 5 Pet. 1, 8 L Ed 25 (1831) and Samuel S. Worcester v. State of Georgia, 31 US 515, 6 Pet 515, 8 L Ed 483 (1832) considerably modify the legal effect of discovery from something that seemingly enables the discoverer to diminish the legal rights of the other party to the desired level (like some kind of constitutional procrustean bed) to a first in time, first in right negotiating right with Indigenous peoples contra other European powers. Second, it is not clear that Johnson v. M’Intosh actually is authority for the strong version of the doctrine of discovery as it is a case that involves a land purchase agreement between a private citizen of the United States and the Piankeshaw. The citizen is trying to enforce the terms of this contrast within the US courts, but the US policy is that its citizens cannot make these kinds of agreements as that is the sole purview of Congress (mirroring the Royal Proclamation of 1763). In this case the only legal decision in Johnson v. M’Intosh is that the plaintiff is seeking the remedy in the wrong court as his contract is only subject to the law of the Piankeshaw. For this reading of the case, see Philp P. Frickey, “Marshalling Past and Present: Colonialism, Constitutionalism, and Interpretation in Federal Indian Law,” Harvard Law Review 107 (1993): 381.

23 Hart, The Concept of Law, 38

24 This was the phrase that Jeremy Bentham used in 1796 to attack the notion of natural rights in the French Declaration of the Rights of Man and the Citizen in his Anarchical Fallacies. I am repurposing his polemical metaphor to the opposite effect as I view his collapse of the distinction between the state and the government – which begins with his attack on Blackstone in Fragment on Government in 1776 – as making the legal distinction between legal authority and coercive force unintelligible. For more detailed criticism on this move in Bentham’s work and its consequences, see David Dyzenhaus, “The Genealogy of Legal PositivismOxford Journal of Legal Studies 24, no. 1 (2004): 3967; and Quentin Skinner’s analysis in From Humanism to Hobbes: Studies in Rhetoric and Politics (Cambridge: Cambridge University Press, 2018), 374–83.

25 Charles Taylor, Reconciling the Solitudes: Essays on Canadian Federalism and Nationalism, ed. Guy Laforest (Montreal: McGill-Queen’s Press, 1994), 155.

26 Reference re Secession of Quebec [1998] 2 SCR 217, para. 33. Some legal scholars may object to the use of the term “legitimacy” by claiming that it is a political concept without purchase in legal analysis. In my view this objection trades on a distinction between law and politics that strongly resembles the fact-value distinction in philosophy and suffers from the same kind of metaphysical confusions (i.e. the notion of facts without values or values without facts, which is needed to maintain the bright line version of the distinction). While there are indeed meaningful distinctions between the use of the concept of legitimacy in political and legal vocabularies, the concept of legitimacy itself is not somehow out of bounds in legal analysis. For a more detailed and sophisticated account of this distinction, see David Dyzenhaus’ account of legal legitimacy in “Process and Substance,” 284–306.

27 Reference re Secession of Quebec, para. 150.

28 See Tully’s foundational contribution to constitutional thinking in James Tully, Strange Multiplicity: Constitutionalism in an Age of Diversity (Cambridge: Cambridge University Press, 1995); as well as James Tully, “The Unattained Yet Attainable Democracy: Canada and Quebec Face the New Century” (Desjardins Lecture, McGill University, Montreal, QC, March 23, 2000).

29 Examples of this fact can be seen in United States v. Kagama and St. Catharines Milling.

30 I address the history of treaty interpretation in the Canadian courts in Joshua Nichols, “A Narrowing Field of View: An Investigation into the Relationship Between the Principles of Treaty Interpretation and the Conceptual Framework of Canadian Federalism,” Osgoode Hall Law Journal 56, no. 2 (2019): 350–95.

31 Clifford Geertz, Available Light: Anthropological Reflections on Philosophical Topics (Princeton, NJ: Princeton University Press, 2000), p. 17.

32 Philip P. Frickey, “Domesticating Federal Indian Law,” 35.

33 For more on this, see Michael Asch, On Being Here to Stay: Treaties and Aboriginal Rights in Canada (Toronto: University of Toronto Press, 2014); Aimee Craft, Breathing Life into the Stone Fort Treaty: An Anishnabe Understanding of Treaty One (Vancouver: UBC Press, 2013); and Robert A. Williams Jr., Linking Arms Together: American Indian Treaty Visions of Law and Peace, 1600–1800 (Oxford: Oxford University Press, 1997).

34 Worcester v. Georgia, 31 US 515 (1832), 519 (emphasis added).

35 Worcester v. Georgia, 520.

36 Philip Frickey uses the phrase “extra-constitutional” to characterize the so-called doctrine of the plenary power of Congress over Indian Tribes that the US Supreme Court first formulated in United States v. Kagama. See Philip P. Frickey, “Domesticating Federal Indian Law,” 67.

13 Cracking the Settler Colonial Concrete Theorizing Engagements with Indigenous Resurgence Through the Politics from Below

1 Dian Million, “Spirit and Matter: Resurgence as Rising and (Re)Creation as Ethos” (Indigenous Resurgence in an Age of Reconciliation, University of Victoria, March 18, 2017), www.uvic.ca/socialsciences/intd/indigenousnationhood/workshops/irar/index.php.

2 I tend to use “resistance” and “resurgence” interchangeably throughout this chapter. While they are often differentiated, with the former understood as reactive and state-oriented and the latter proactive and autonomous, I understand each as containing aspects of the other. For a more thorough discussion of the relationship between these terms, see Michael Asch, John Borrows, and James Tully, eds., Resurgence and Reconciliation: Indigenous-Settler Relations and Earth Teachings (Toronto: University of Toronto Press, 2018).

3 Rita Wong and Kimberly Richards, “Acting under Natural Laws,” Canadian Theatre Review 182 (2020): 2629, https://doi.org/10.3138/ctr.182.005.

4 Two aspects of this chapter that I struggled with include the terminology for those who I discuss in this chapter – settler, non-Indigenous, or those who are not Indigenous to the place in question – and attending to processes of racialization. I recognize that race inflects my terminology and what I am describing, which is how people engage with Indigenous resurgence movements. I am conscious of the debate over whether Black people should be included within the category of the “settler,” and how histories of slavery or indentured service and ongoing racialization, for example, differently condition people’s positions within settler colonial projects and engagements with Indigenous resurgence. In addition, some of those who engage with Indigenous resurgence in the stories I describe are themselves Indigenous to places other than those under discussion. While Indigenous peoples from different territories may have ancestral connections or shared experiences that shape their engagement with Indigenous resurgence, I was wary of over-narrowing the process I describe by using the term “settler.” I also did not want to discount that the process I discuss could resonate for those who are Indigenous to the places in question, but were disconnected from their Indigenous homelands and communities. In fact, much of the theory I draw upon – for example, Johnny Mack, “Hoquotist: Reorienting through Storied Practice,” in Storied Communities: Narratives of Contact and Arrival in Constituting Political Community, ed. Hester Lessard, Rebecca Johnson, and Jeremy H. A. Webber (Vancouver: UBC Press, 2011), 287307; Million, “Spirit and Matter”; Val Napoleon and Hadley Friedland, “Accessing Tully: Political Philosophy for the Everyday and the Everyone,” in Freedom and Democracy in an Imperial Context: Dialogues with James Tully, ed. Robert Nichols and Jakeet Singh (New York: Routledge, 2014), 202–19; and Leanne Betasamosake Simpson, As We Have Always Done: Indigenous Freedom through Radical Resistance (Minneapolis: University of Minnesota Press, 2017) – continue a literature in which “decolonizing of the mind” is a task for all subjects of colonialism and imperialism, beyond ancestry or phenotype. I see this chapter as fitting within this strand of theory, while recognizing the complexity of the debates noted earlier.

5 Heidi Kiiwetinepinesiik Stark, “Criminal Empire: The Making of the Savage in a Lawless Land,” Theory & Event 19, no. 4 (2016), www.ucis.pitt.edu/global/sites/default/files/Downloadables/ProQuestDocuments-2020-07-04%5B8893%5D.pdf; Patrick Wolfe, “Settler Colonialism and the Elimination of the Native,” Journal of Genocide Research 8, no. 4 (2006): 387409, https://doi.org/10.1080/14623520601056240.

6 Glen S. Coulthard, “For Our Nations to Live, Capitalism Must Die,” Unsettling America (blog), November 5, 2013, https://unsettlingamerica.wordpress.com/2013/11/05/for-our-nations-to-live-capitalism-must-die.

7 For a discussion of congruent social and ecological crises, see Umeek E. Richard Atleo, Principles of Tsawalk: An Indigenous Approach to Global Crisis (Vancouver: UBC Press, 2011); Arthur Manuel and Ronald M. Derrickson, The Reconciliation Manifesto: Recovering the Land, Rebuilding the Economy (Toronto: James Lorimer and Company Ltd., Publishers, 2017); James Tully, “Reconciliation Here on Earth,” in Resurgence and Reconciliation: Indigenous-Settler Relations and Earth Teachings, ed. Michael Asch, John Borrows, and James Tully (Toronto: University of Toronto Press, 2018), 83120.

8 Lisa Ford, Settler Sovereignty: Jurisdiction and Indigenous People in America and Australia, 1788–1836 (Cambridge, MA: Harvard University Press, 2010); Shiri Pasternak, Grounded Authority: The Algonquins of Barriere Lake Against the State (Minneapolis: University of Minnesota Press, 2017).

9 This sense of enclosure can be understood as operating through material, legal, discursive, and affective registers. In other words, while colonialism works through the enclosure of land, such as in the creation of private property and reserves, these logics of containment also work through legal ideas such as “Indian Status” and discourses on “vanishing,” “imaginary,” or “authentic” Indians. See Daniel Francis, The Imaginary Indian: The Image of the Indian in Canadian Culture, 2nd ed. (Vancouver: Arsenal Pulp Press, 2011); Cole Harris, Making Native Space: Colonialism, Resistance, and Reserves in British Columbia, Canadian Studies Series (Vancouver: UBC Press, 2002); Paige Raibmon, Authentic Indians: Episodes of Encounter from the Late-Nineteenth-Century Northwest Coast (Durham: Duke University Press, 2005); and Traci Brynne Voyles, Wastelanding: Legacies of Uranium Mining in Navajo Country (Minneapolis: University of Minnesota Press, 2015). Million particularly highlights the affective experience of enclosure, such as when Indigenous people come to understand themselves through frameworks of crises and intergenerational trauma, as offered by capitalist management within neoliberal states; Million, “Spirit and Matter.”

10 Million, “Spirit and Matter.” My thinking around “settler colonial concrete” is also inspired by Sarah Hunt’s consideration of the “colonialscape” as the colonial legal system and related infrastructures that attempt to overlay prior, deeper, Indigenous relationships to place and the legal orders drawn from those relationships. Sarah Hunt, “Witnessing the Colonialscape: Lighting the Intimate Fires of Indigenous Legal Pluralism” (PhD Thesis, Simon Fraser University, 2014), http://summit.sfu.ca/item/14145.

11 In other words, the spatialities, subjectivities, and (infra)structures of colonialism and capitalism can look and feel as though they are unchangeable or inevitable. This sense of permanence, to echo Coulthard, can have the effect of fixing the relations through which colonialism and capitalism get reproduced. Glen Sean Coulthard, Red Skin, White Masks: Rejecting the Colonial Politics of Recognition (Minneapolis: University of Minnesota Press, 2014).

12 Coulthard, Red Skin; Glen Coulthard and Leanne Betasamosake Simpson, “Grounded Normativity / Place-Based Solidarity,” American Quarterly 68, no. 2 (2016): 249–55, https://doi.org/10.1353/aq.2016.0038; Jessica Hallenbeck et al., “Red Skin, White Masks: Rejecting the Colonial Politics of Recognition,” The AAG Review of Books 4, no. 2 (2016): 111–20, https://doi.org/10.1080/2325548X.2016.1146013; and Simpson, As We Have Always Done;.

13 This opacity can also be considered a strength: see Simpson, As We Have Always Done. For a consideration of Cartesian dualism and Enlightenment-based epistemologies, see Silvia Beatriz Federici, Caliban and the Witch, 2nd rev. ed. (New York: Autonomedia, 2014) in relation to the rise of capitalism; or, in relation to Indigenous peoples specifically, Vine Deloria Jr., Red Earth, White Lies: Native Americans and the Myth of Scientific Fact (Golden, CO: Fulcrum Pub, 1997); and Linda Tuhiwai Smith, Decolonizing Methodologies: Research and Indigenous Peoples, 2nd ed. (London: Zed Books, 2012). For further discussion of the “mystical Indian” trope found in Deloria, see Francis, The Imaginary Indian; Raibmon, Authentic Indians.

14 In these stories, I chose to only identify Indigenous leaders who have been publicly active and whose role in the events discussed is well-known, and a builder with whom I have worked together multiple times and gained permission. I am indebted and grateful to all those who have been involved, and recognize that here, I offer only my own partial and situated perspective on the events I describe.

15 Due to the constraints of space, I have not addressed “natural law” within this chapter. An earlier draft focused more explicitly on water and wild salmon, which have their own laws that we can also learn from. For human–fish relations and their political implications, see the work of Zoe Todd, such as in “Refracting the State Through Human-Fish Relations: Fishing, Indigenous Legal Orders and Colonialism in North/Western Canada,” Decolonization: Indigeneity, Education & Society 7, no. 1 (2018): 6075, https://jps.library.utoronto.ca/index.php/des/article/view/30393.

16 Gina Starblanket, “Being Indigenous Feminists: Resurgences Against Contemporary Patriarchy,” in Making Space for Indigenous Feminism, ed. Joyce A. Green, 2nd ed. (Blackpoint, NS: Fernwood Publishing, 2017), 25 (emphasis added).

17 While recognizing the power and promise of Indigenous resurgence movements, I also do not mean to place them outside of power relations and the human capacity for error. For a discussion of problematic dynamics such as sexism, homophobia, and heteropatriarchy within Indigenous resurgence literature and movements, see Simpson, As We Have Always Done; Starblanket, “Being Indigenous Feminists”; and Gina Starblanket and Heidi Kiiwetinepinesiik Stark, “Toward a Relational Paradigm – Four Points for Consideration: Knowledge, Gender, Land and Modernity,” in Resurgence and Reconciliation: Indigenous-Settler Relations and Earth Teachings, ed. Michael Asch, John Borrows, and James Tully (Toronto: University of Toronto Press, 2018), 175208.

18 Simpson, As We Have Always Done.

19 Also, “Grounded normativity houses and reproduces the practices and procedures, based on deep reciprocity, that are inherently informed by an intimate relationship to place.” Simpson and Coulthard, “Grounded Normativity,” 254.

20 Simpson, As We Have Always Done, 22.

21 Coulthard, Red Skin, 64.

22 Simpson and Coulthard, “Grounded Normativity,” 254.

23 Napoleon and Friedland, “Accessing Tully,” 202. People in marginalized subject positions, for example, include those experiencing poverty, homelessness, incarceration, and colonial gender violence; Napoleon and Friedland also include frontline workers and institutions who work with people in marginalized positions within their discussion.

24 In asking this, I recognize that Indigenous resurgence is primarily by and for Indigenous peoples. While this chapter does not focus on Indigenous peoples per se, it is informed by Indigenous political theory, organizing, and mobilization. At rallies and events, one often hears “we are doing this for all of you,” or “for all of our children.” I am interested in what engagement with Indigenous resurgence looks like for those who are not Indigenous to the place being protected or Indigenous at all, the latter being a category that I include myself within; this is the subject position and relationship that I attempt to theorize in this chapter.

25 Mack’s discussion of story in “Hoquotist” might be understood as grounded normativity, used as a basis for engaging with the BC Treaty Process. For Mack, the BC Treaty Process extends “an imperial story of dispossession and assimilation … aimed at strengthening state control of indigenous lands and domesticating indigenous peoples by liberalizing their modes of political and social order,” Mack, “Hoquotist,” 290–1. Key differences between Mack’s example and the stories that I include in this chapter are the parties engaging with each other and whether they share a political project. While State–Indigenous relations are important to analyze and critique (i.e. John Borrows, Recovering Canada: The Resurgence of Indigenous Law (Toronto: University of Toronto Press, 2002); and Dale A. Turner, This Is Not a Peace Pipe: Towards a Critical Indigenous Philosophy (Toronto: University of Toronto Press, 2006)), here I am more interested in interactions between grassroots Indigenous movements and what Gaudry refers to as “the socially-conscious settler community” co-operating within the context of Indigenous-led resistance and resurgence projects: Adam Gaudry, “Researching the Resurgence: Insurgent Research and Community-Engaged Methodologies in 21st-Century Academic Inquiry,” in Research as Resistance: Revisiting Critical, Indigenous, and Anti-Oppressive Approaches, ed. Leslie Allison Brown and Susan Strega, 2nd ed. (Toronto: Canadian Scholars’ Press, 2015), 243–65.

26 As Simpson highlights, this opacity can be understood as a benefit because of settler colonialism’s attempt to perfect itself through erasure, elimination, and transformation. Simpson, As We Have Always Done, 213–17.

27 For example, Simpson, As We Have Always Done, especially within the chapters on Nishnaabeg internationalism and land as pedagogy; Umeek, Tsawalk, on the Nuu-cha-nulth concept of Tsawalk.

28 Simpson and Coulthard, “Grounded Normativity,” 254

29 Simpson, As We Have Always Done, above, 213.

31 Informed by Indigenous scholarship, non-Indigenous theorists also call for more collective and land- or place-approaches. For example, Tully, in “Reconciliation Here on Earth,” offers a political philosophy of collective liberation with reconciliation understood as an informal, double process of “reconciliation with” Indigenous peoples and the earth, instead of reconciliation as dictated by the state or understood as “reconciliation to” unsustainable and oppressive relations. These processes must be enacted through practices that transform relations, particularly as non-Indigenous people learn from Indigenous peoples’ relations with other-than-human beings. Here, I am interested in offering engagements with Indigenous resurgence as a theory for how this transformation comes about; admittedly, this is probably not the only way or perhaps even the ideal way. In conversation with Napoleon and Friedland, Tully points out that “the question of how a person moves from being a passive subject of unjust relations to being an active agent of change in and over that relationship is necessarily case specific” – a point that I agree with. Generally, however, “a person becomes an active agent by being drawn into ethical cooperative work,” and it is this process that I focus on. Napoleon and Friedland, “Accessing Tully,” 215–16.

32 Jakeet Singh, “Recognition and Self-Determination: Approaches from Above and Below,” in Recognition versus Self-Determination: Dilemmas of Emancipatory Politics, ed. Avigail Eisenberg et al. (Vancouver: UBC Press, 2015), 48.

33 Singh, “Recognition and Self-Determination,” 53. An additional note: within the dynamics of mutual recognition that are discussed in this chapter, I do not specify a term through which those who are not Indigenous to the place in question might be recognized. Possible terms might include ally, accomplice, coconspirator, or, perhaps more ideally, terms drawn from Indigenous languages. Such concepts may be case-specific, and I have chosen to leave this open-ended while recognizing that the question warrants further reflection and discussion.

34 Singh, “Recognition and Self-Determination,” 55.

35 Footnote Ibid., 63; further, “self-determination from below focuses less on appropriating institutional power in the traditional sense than on transforming power relations by disrupting the hegemonic norms that conduct one’s conduct (by conducting oneself differently) and/or by working to modify or transform those norms in accordance with alternative ethico-political goods”; Footnote ibid., 65.

36 Paulo Freire, Pedagogy of the Oppressed (London: Penguin Books, 2017).

37 Million, “Spirit and Matter.”

38 To these nations, we should add the Ma’amtagila, who were declared legally extinct by the Canadian government when they merged with a neighboring nation, as arranged by an Indian Agent. The legality and permanence of that merger, however, is deeply contested and Ma’amtagila people have been very active in the fight against fish farms, among other unsustainable industries.

39 Musgamagw Dzawada’enuxw Cleansing Our Waters. 2017. “Musgamagw Dzawada’enuxw Eviction Notice.” December 1, 2017: www.facebook.com/fishfarmsgetout/photos/a.1298001513557940.1073741833.1282228605135231/1781164285241658/?type=3&theater

40 The original TMX pipeline was built in 1953 without Secwépemc consent. The expansion project proposes to twin the pipeline. For more on this, see Henderson, Chapter 14, this volume.

41 I have found Mount Robson referred to as Yuh-hai-has-kun or “Mountain of the Spiral Road” in Secwépemctsin, but was not able to verify this through a Secwépemc source. I opted not to include this term within the body of the chapter, but want to signal that “Mount Robson” is the mountain’s settler colonial name.

42 Million, “Spirit and Matter.”

43 Due to the constraints of space, I look closely at connections within and across the stories and contexts they take place in, potentially at the expense of depth. My own limitations should not be taken to indicate that movements themselves are without deep roots or that engagements with these movements are momentary and shallow.

44 See Harris, Making Native Space; Hunt, “Witnessing the Colonialscape”; Douglas C. Harris, Fish, Law, and Colonialism: The Legal Capture of Salmon in British Columbia (Toronto: University of Toronto Press, 2001), https://doi.org/10.3138/9781442674912; Rauna Kuokkanen, “From Indigenous Economies to Market-Based Self-Governance: A Feminist Political Economy Analysis,” Canadian Journal of Political Science 44, no. 2 (2011): 275–97, https://doi.org/10.1017/S0008423911000126.

45 Admittedly, the question of who holds sovereignty within Indigenous nations is a contested one, and one that has been heavily impacted by colonization and the imperialism of western political concepts – including “sovereignty” itself. Conflicts between hereditary and band governance systems are a case in point, as are concepts of sovereignty and jurisdiction that are tied to the reserve versus traditional territories. Here, I tend to understand sovereignty as grounded in title, which is a collective right held by grassroots people and confirmed on the ground (rather than delegated by the Crown), as discussed in Manuel and Derrickson, Reconciliation Manifesto, 117–20.

46 See Shuswap Nation Tribal Council and Indigenous Law Research Unit, “Secwépemc Lands and Resources Law Analysis Project Summary,” June 21, 2016, especially 38–47.

47 Sarah Hunt, “Justice at the Shoreline: Rethinking Sovereignty through Coastal Wisdom” (Landsdowne Lecture, University of Victoria, Victoria, BC, March 8, 2018).

48 The operation of multiple and sometimes competing legal systems within the same territory has been similarly addressed by John Borrows in Freedom and Indigenous Constitutionalism (Toronto: University of Toronto Press, 2016); Borrows argues that “an act of disobedience may, in another context, be considered obedience to either Indigenous peoples’ law or the state’s own unenforced or unrealized standards”; 53.

49 Tiny House Warriors, “Tiny House Warriors,” http://tinyhousewarriors.com.

50 Tiny House Warriors, “Mountain Music Concert: Tiny House Warriors,” Facebook, August 16, 2018, www.facebook.com/events/234468630738226 (spelling and grammar adjusted for readability).

51 To add: Indigenous legal principles may not be fully known, understood, or perfectly upheld throughout engagement. This is a risk of engagement, but also an aspect of learning. A lack of mastery should be expected within and not understood as an impediment to engagement. Rather, a deeper understanding can only come through engagement – cooperation, action, and reflection. On the flipside of this, engagement requires humility and reflexivity. Engagement should not lead others to think of their work as done, but, rather, cultivate an ongoing sensibility and praxis that is informed by local Indigenous laws and relationships to place.

52 Practices of reciprocity can also be small repairs or maintenance at reclamation sites such as Swanson Island. On a larger scale, the first campus Tiny House took place in part because of the trip to Secwépemcul’ecw. The Little Big House might not have come about had the Tiny House builds not broadened a collectivity that shares the project of supporting Indigenous peoples’ land-based practices, and was an opportunity for myself and others to reciprocate for the ways we have benefitted and learned from Kwakwaka’wakw stewardship.

53 There was also another off-campus Tiny House build, highway march, and community feast in the summer between the two I discuss, which was largely organized by people who had participated in the first UVic build. See Henderson, Chapter 14, this volume.

54 For an excellent discussion of W̱SÁNEĆ relationships and laws related to the Goldstream river and salmon that spawn in the waters there, see Robert YELKÁTTE Clifford, “W̱SÁNEĆ Legal Theory and the Fuel Spill at SELEK̵TEL̵ (Goldstream River),” McGill Law Journal 16, no. 4 (2016): 755–93.

55 This shift in perspective must be accompanied with a caution not to oversimplify or homogenize Indigenous nations or their legal orders across different places, or erase Indigenous nations within shared or overlapping territories. For example, Clifford’s W̱SÁNEĆ legal theory may differ between groupings within the W̱SÁNEĆ and cannot stand in for Lkwungen laws belonging to the nearby Songhees and Esquimalt nations. Both learning and relating to others, however, are processual; within these processes, complexity offers an opportunity for richness, not an excuse to disengage and perpetuate colonial violence.

56 Here I do not mean to imply that Indigenous resurgence isn’t also happening in cities – it is, at different scales of visibility. Rather, I suspect that it takes more work for others, such as I, to denaturalize the settler colonialism of urban space and recognize cities as Indigenous places.

57 One could argue that, in reality, the predatory relations of settler colonialism, including the violence of the RCMP, constitute a much more urgent and genuine “threat” than Indigenous resurgence movements acting to support sustainable self-determination.

58 Miles Howe and Jeffrey Monaghan, “Strategic Incapacitation of Indigenous Dissent: Crowd Theories, Risk Management, and Settler Colonial Policing,” Canadian Journal of Sociology 43, no. 4 (2018): 327.

59 Howe and Monaghan, “Strategic Incapacitation of Indigenous Dissent,” 338.

60 As cited in Howe and Monaghan, “Strategic Incapacitation of Indigenous Dissent,” 338.

61 For more on the concept of colonial entanglement, see Brydon Kramer, “Entangled with/in Empire: Indigenous Nations, Settler Preservations, and the Return of Buffalo to Banff National Park” (unpublished MA thesis, University of Victoria, 2020), https://dspace.library.uvic.ca/bitstream/handle/1828/12476/Kramer_Brydon_MA_2020.pdf.

14 Like a Brick Through the Overton Window Reorienting Our Politics, from the House of Commons to the Tiny House

1 In the absence of further specification, I intend for this term to encompass both the Indigenous people(s) who are leading the defense of their nations’ territories and the non-Indigenous allies who are working in solidarity with them in that struggle. See Adam Barker and Russell Myers Ross, “Reoccupation and Resurgence: Indigenous Protest Camps in Canada,” in Protest Camps in International Context: Spaces, Infrastructures and Media of Resistance, ed. Gavin Brown et al. (Bristol: Policy Press, 2018); Jeff Brady, “2 Years After Standing Rock Protests, Tensions Remain But Oil Business Booms,” NPR, November 29, 2018, www.npr.org/2018/11/29/671701019/2-years-after-standing-rock-protests-north-dakota-oil-business-is-booming; Omar Mosleh, “‘They Came to Destroy and Create Fear’: Indigenous Protester Says Men Attacked Trans Mountain Protest Champ,” The Star, April 22, 2020; Lisa Polewski, “Protesters Arrested at Residential Development in Caledonia: OPP,” Global News, August 5, 2020.

2 John Borrows, Freedom and Indigenous Constitutionalism (Toronto: University of Toronto Press, 2016), 5255; Warren Magnusson, “Decentring the State, Or Looking for Politics,” in Organizing Dissent: Contemporary Social Movements in Theory and Practice, ed. William Carroll (Toronto: Garamond, 1992), 6980; Vicky Osterweil, In Defense of Looting: A Riotous History of Uncivil Action (New York: Bold Type Books, 2020), 120.

3 Manu Karuka, Empire’s Tracks: Indigenous Nations, Chinese Workers, and the Transcontinental Railroad (Oakland, CA: University of California Press, 2019), 12.

4 Footnote Ibid., xii (emphasis added).

5 Footnote Ibid., 20–37; Soren C. Larsen and Jay T. Johnson, Being Together in Place: Indigenous Coexistence in a More than Human World (Minneapolis: University of Minnesota Press, 2017).

6 James Tully, Strange Multiplicity: Constitutionalism in an Age of Diversity (Cambridge: Cambridge University Press, 1995), 7178, 80.

7 Umeek E. Richard Atleo, Tsawalk: A Nuu-chah-nulth Worldview (Vancouver: UBC Press, 2004); John Borrows, Drawing Out Law: Spirit’s Guide (Toronto: University of Toronto Press, 2010); Nick Estes, Our History Is the Future: Standing Rock versus the Dakota Access Pipeline, the Long Tradition of Indigenous Resistance (London: Verso, 2019); Jerry Fontaine, Our Hearts Are as One Fire: An Ojibway-Anishinabe Vision for the Future (Vancouver: UBC Press, 2020); Carwyn Jones, “A Māori Constitutional Tradition,” New Zealand Journal of Public and International Law 12, no. 1 (2014): 187203; Robin Wall Kimmerer, Braiding Sweetgrass: Indigenous Wisdom, Scientific Knowledge, and the Teachings of Plants (Minneapolis: Milkweed Editions, 2013); and Kayanesenh Paul Williams, Kayanerenkó:wa: The Great Law of Peace (Winnipeg: University of Manitoba Press, 2018).

8 Umeek E. Richard Atleo, Principles of Tsawalk: An Indigenous Approach to Global Crisis (Vancouver: UBC Press, 2011); Jack D. Forbes, Columbus and Other Cannibals: The Wétiko Disease of Exploitation, Imperialism, and Terrorism (New York: Seven Stories Press, 2008); Winona LaDuke, To Be a Water Protector: The Rise of the Wiindigoo Slayers (Halifax: Fernwood Publishing, 2020); and Boyce Richardson, Strangers Devour the Land (White River Junction, VT: Chelsea Green Publishing, 1991).

9 James Tully, “Foreward: A Canadian Tragedy,” in Sarah Marie Wiebe, Everyday Exposure: Indigenous Mobilization and Environmental Justice in Canada’s Chemical Valley (Vancouver: UBC Press, 2016), xiii

10 Karuka, Empire’s Tracks, 200.

11 Martin Lukacs, The Trudeau Formula: Seduction and Betrayal in an Age of Discontent (Montreal: Black Rose Books, 2019), 136.

12 Justin Trudeau, “Speech to the Calgary Petroleum Club,” October 30, 2013, Liberal Party of Canada, transcript, https://liberal.ca/liberal-party-canada-leader-justin-trudeaus-speech-calgary-petroleum-club.

13 Lukacs, Trudeau Formula, 95–101.

14 Lauren Boothby, “More Than 200 People Arrested at Pipeline Protests in Burnaby,” Burnaby Now, May 30, 2018.

15 See Swain, Chapter 13, this volume for a striking example.

16 “Women’s Declaration Against Trans Mountain Man Camps,” Secwépemcul’ecw Assembly, Secwépemc Women’s Warrior Society and Tiny House Warriors, November 2017, www.secwepemculecw.org/women-s-declaration.

17 “Visit the spiritual resistance to #StopKM at Kwekwecnewtxw,” Protect the Inlet, 2019, http://web.archive.org/web/20210124185559/https://protecttheinlet.ca/structure/.

18 Robert Nichols, Theft Is Property! Dispossession and Critical Theory (Durham, NC: Duke University Press, 2020).

19 Lukacs, Trudeau Formula, 95–130.

21 Footnote Ibid., 96; Catharine Tunney, “Jim Carr Says Military Comments Not a Threat to Pipeline Protesters,” CBC News, December 2, 2016, www.cbc.ca/news/politics/jim-carr-protests-pipeline-military-1.3878258.

22 Stephanie Ip and Patrick Johnston, “Kinder Morgan Halts Non-Essential Work on Trans Mountain Pipeline and Sets Drop-Dead Deadline,” Vancouver Sun, April 9, 2018, https://vancouversun.com/news/local-news/kinder-morgan-to-halt-its-spending-on-trans-mountain-pipeline-due-to-b-c-opposition.

23 “Our History,” Trans Mountain, www.transmountain.com/history.

24 Shiri Pasternak, Katie Mazer, and D. T. Cochrane, “The Financing Problem of Colonialism: How Indigenous Jurisdiction is Valued in Pipeline Politics,” in Standing with Standing Rock: Voices from the #NODAPL Movement, ed. Nick Estes and Jaskiran Dhillon (Minneapolis: University of Minnesota Press, 2019), 226.

26 See Chippewas of Sarnia Band v. Attorney General of Canada [2000] 51 OR (3d) 641; and, for discussion of the case, Deanne Aline Marie LeBlanc, “Identifying the Settler Denizen Within Settler Colonialism” (unpublished MA thesis, University of Victoria, 2014), 2425.

27 Reg Whittaker, A Sovereign Idea: Essays on Canada as a Democratic Community (Montreal: McGill-Queen’s University Press, 1992), 20 (emphasis in original).

28 Alex V. Green, “Canada Is Fake: What Americans Think of as Their Friendly Neighbor to the North, If They Think of It at All, Is a Scam,” The Outline, February 19, 2020, https://theoutline.com/post/8686/canada-is-fake.

29 CBC News, “Ministers Answer Questions on Trans Mountain Expansion Approval,” streamed live on June 18, 2019, YouTube video, 26:24, https://www.youtube.com/watch?v=nQjdlnxtPzE; CBC News, “Trudeau Cabinet Approves Trans Mountain Pipeline Expansion Project,” streamed live on June 18, 2019, YouTube video, 20:17, www.youtube.com/watch?v=MF0t-hZRhEk.

30 Susana Mas, “Trudeau Lays Out Plan for New Relationship with Indigenous People,” CBC News, December 5, 2015, www.cbc.ca/news/politics/justin-trudeau-afn-indigenous-aboriginal-people-1.3354747.

31 James M. Griffin, “Petro-Nationalism: The Futile Search for Oil Security,” The Energy Journal 36, no. 1 (2015): 2541; Andreas Malm and the Zetkin Collective, White Skin, Black Fuel: On the Danger of Fossil Fascism (London: Random House, 2021).

32 Peter H. Russell, Canada’s Constitutional Odyssey: A Country Based on Incomplete Conquests (Toronto: University Press, 2017); Peter H. Russell, Constitutional Odyssey: Can Canadians Become a Sovereign Peoples? (Toronto: University of Toronto Press, 1992); and Whittaker, Sovereign Idea; see also Jacques Rancière, Staging the People: The Proletarian and His Double (London: Verso Books, 2011).

33 Irving Martin Abella, Nationalism, Communism, and Canadian Labour: The CIO, the Communist Party, and the Canadian Congress of Labour 1935–1956 (Toronto: University of Toronto Press, 1973); Kari Levitt, Silent Surrender: The Multinational Corporation in Canada (Montreal: McGill-Queen’s University Press, 1970); and Jason Markusoff, “The Rise of Alberta’s Unapologetic Petro-Patriots,” Maclean’s Magazine, July 15, 2019, www.macleans.ca/news/canada/the-rise-of-albertas-unapologetic-petro-patriots.

34 Lukacs, Trudeau Formula, 11.

35 Lukacs, Trudeau Formula, 12.

36 Stephen Clarkson, The Big Red Machine: How the Liberal Party Dominates Canadian Politics (Vancouver: UBC Press, 2005).

37 “A Brief Explanation of the Overton Window,” Mackinac Centre for Public Policy, www.mackinac.org/OvertonWindow.

38 Charlie Smith, “RCMP Arrest Unist’ot’en Matriarchs During Ceremony to Honour Missing and Murdered Indigenous Women and Girls,” The Georgia Straight, February 10, 2020, www.straight.com/news/1358106/rcmp-arrest-unistoten-matriarchs-during-ceremony-honour-missing-and-murdered-indigenous; tawinikay, “Reconciliation Is Dead: A Strategic Proposal,” It’s Going Down (blog), February 15, 2020, https://itsgoingdown.org/reconciliation-is-dead-a-strategic-proposal.

39 Jonathan Kay, “The Rise and (Possible) Fall of Justin Trudeau Show the Perils of Woke Governance,” Quillette, March 7, 2019, https://quillette.com/2019/03/07/the-rise-and-possible-fall-of-justin-trudeau-show-the-perils-of-woke-governance; Postmedia Editorial, “Trudeau Needs to Leave His Social Justice Warrior Cape at Home,” Toronto Sun, May 22, 2018, https://torontosun.com/opinion/editorials/editorial-trudeau-needs-to-leave-his-social-justice-warrior-cape-at-home.

40 Avi Lewis, “Social Democracy and the Left in Canada: Past, Present, and Future,” in Party of Conscience: The CCF, The NDP, and Social Democracy in Canada, ed. Roberta Lexier et al. (Toronto: Between the Lines, 2018), 197214; Abdul Malik, “Jack Layton is the NDP’s Third Rail,” Canadian Dimension, September 1, 2020, https://canadiandimension.com/articles/view/jack-layton-is-the-ndps-third-rail; see also Ralph Miliband, Parliamentary Socialism: A Study in the Politics of Labour (London: Merlin Press, 1961).

41 Tsleil-Waututh Nation Sacred Trust, “Live at the Trans Mountain Pipeline Announcement Press Conference,” Facebook, June 18, 2019, www.facebook.com/630937800297791/videos/612471812592081.

42 James C. Scott, Seeing Like a State: How Certain Schemes to Improve the Human Condition Failed (New Haven: Yale University Press, 1998).

43 William K. Carroll, “Hegemony, Counter-Hegemony, Anti-Hegemony,” Journal of the Society for Socialist Studies 3 (2006): 20.

46 Emma Battell Lowman and Adam J. Barker, Settler: Identity and Colonialism in 21st Century Canada (Halifax: Fernwood Publishing, 2015); Lorenzo Veracini, Settler Colonialism: A Theoretical Overview (Springer: New York, 2010); see also Jaskiran Dhillon, Prairie Rising: Indigenous Youth, Decolonization, and the Politics of Intervention (Toronto: University of Toronto Press, 2017).

47 Gordon Christie, Canadian Law and Indigenous Self-Determination: A Naturalist Analysis (Toronto: University of Toronto Press, 2019), 342–83; Arthur Manuel, Unsettling Canada: A National Wake-Up Call (Toronto: Between the Lines, 2015), 107–24; see also Delgamuukw v. British Columbia [1997] 3 SCR 1010; Reference re Secession of Quebec [1998] 2 SCR 217.

48 Glen Sean Coulthard, Red Skin, White Mask: Rejecting the Colonial Politics of Recognition (Minneapolis: University of Minnesota Press, 2014); Estes, Our History, 2019; Manuel, Unsettling Canada, 2015; Audra Simpson, Mohawk Interruptus: Political Life Across the Borders of Settler States (Durham: Duke University Press, 2014); Leanne Betasamosake Simpson, As We Have Always Done: Indigenous Freedom Through Radical Resistance (Minneapolis: University of Minnesota Press, 2017).

49 Simpson, As We Have Always Done, 247.

50 Carroll, “Hegemony,” 2006; Richard Day, Gramsci Is Dead: Anarchist Currents in the Newest Social Movements (London: Pluto Press, 2005).

51 On geographic mobility, see Borrows, Indigenous Constitutionalism, 19–49; David A. Chang, The World and All the Things Upon It: Native Hawaiian Geographies of Exploration (Minneapolis: University of Minnesota, 2016); Susan M. Hill, The Clay We Are Made Of: Haudenosaunee Land Tenure on the Grand River (Winnipeg: University of Manitoba Press, 2017). On cultural mobility see Robert Alexander Innes, Elder Brother and the Law of the People: Contemporary Kinship and Cowessess First Nation (Winnipeg: University of Manitoba, 2013); Scott Richard Lyons, X-Marks: Native Signatures of Assent (Minneapolis: University of Minnesota Press. 2010); Lee Maracle, Memory Serves: Oratories, ed. Smaro Kamboureli (Edmonton: NeWest Press, 2015); Paige Raibmon, Authentic Indians: Episodes of Encounter from the Late-Nineteenth-Century Northwest Coast (Durham, NC: Duke University Press, 2005); Linda Tuhiwai Smith, Decolonizing Methodologies: Research and Indigenous Peoples, 2nd ed. (London: ZED Books, 2012).

52 Jakeet Singh, “Recognition and Self-Determination: Approaches from Above and Below,” in Recognition Versus Self-Determination: Dilemmas in Emancipatory Politics, ed. Avigail Eisenberg et al. (Vancouver: UBC Press, 2014), 4774; see also Peter Linebaugh and Marcus Rediker, The Many Headed Hydra: The Hidden History of the Revolutionary Atlantic (London: Verso Books, 2012); Scott Neigh, Resisting the State: Canadian History through the Stories of Activists (Halifax: Fernwood Publishing, 2012).

53 See St. Catharine’s Milling and Lumber Co. v. R. [1888] UKPC 70, 14 App Cas 46; The Cherokee Nation v. The State of Georgia, 30 US 1, 5 Pet. 1, 8 L Ed 25 (1831).

54 “Effective Protests Can Be Difficult. Just Look at Saturday’s Effort,” Times Colonist, June 25, 2019, www.timescolonist.com/opinion/editorials/editorial-effective-protests-can-be-difficult-just-look-at-saturday-s-effort-1.23866187.

55 Special Rapporteur on Extreme Poverty and Human Rights, Climate Change and Poverty: Report of the Special Rapporteur on Extreme Poverty and Human Rights (Geneva: United Nations, 2019), https://undocs.org/A/HRC/41/39.

56 Laura Gray, “Trans Mountain 1953: Public Response in Alberta and British Columbia” (unpublished MA thesis, University of Victoria, 2019), 1921.

57 Magnusson, “Decentring the State”; Scott, Like a State.

15 Governing Ourselves: Reflections on Reinvigorating Democracy Stimulated by Gitxsan Governance

I thank, in the text, many who shared their knowledge with me, but I should also thank those who generously read and commented upon drafts of this paper. They are Darlene Russell (Gux-gal-galsxw); Katie Ludwig (Gal-sim-giget); Audrey Lundquist (Guu jenn sim Simogit); Audrey’s daughter Nicole Jackson, who was the first to welcome me, with great encouragement, at the headstone-placing ceremonies in honour of her grandmother, Lily Jackson (Na gwa); Glen Williams (Malii); Barbara, Gord, and Jamie Sterritt; Val Napoleon; Jim Tully; Amalia Amaya Navarro; Harry Arthurs; John Borrows; Patricia Cochran; Coel Kirkby; Sarah Marsden; Calvin Sandborn; and Rebekah Smith.

1 Bryce W. Gallie, ‘Essentially Contested Concepts’, Proceedings of the Aristotelian Society 56 (1955–56): 167–98.

2 Jeremy Webber, ‘The Meanings of Consent’, in Between Consenting Peoples: Political Community and the Meaning of Consent, ed. Jeremy Webber and Colin Macleod (Vancouver: UBC Press, 2010), 341.

3 Jeremy Webber, ‘Contending Sovereignties’, in The Oxford Handbook of the Canadian Constitution, ed. Peter Oliver, Patrick Macklem, and Nathalie Des Rosiers (New York: Oxford University Press, 2017), 293.

4 Margaret Canovan, ‘Trust the People! Populism and the Two Faces of Democracy’, Political Studies 47, no. 1 (1999): 216; Pierre Rosanvallon, Le siècle du populisme: Histoire, théorie, critique (Paris: Éditions du Seuil, 2020), 7273; Cas Mudde and Cristóbal Rovira Kaltwasser, ‘Exclusionary vs. Inclusionary Populism: Comparing Contemporary Europe and Latin America’, Government and Opposition 48, no. 2 (2013): 147–74; Cas Mudde and Cristóbal Rovira Kaltwasser, Populism: A Very Short Introduction (New York: Oxford University Press, 2017).

5 Roberto Stefan Foa, et al., ‘ Youth and Satisfaction with Democracy: Reversing the Democratic Disconnect?’ (Cambridge: Centre for the Future of Democracy, 2020), www.cam.ac.uk/system/files/youth_and_satisfaction_with_democracy.pdf.

6 Hence the wisdom of James Tully’s ‘public philosophy’ and John Borrows’ ‘physical philosophy’. See John Borrows, Freedom and Indigenous Constitutionalism (Toronto: University of Toronto Press, 2016), 1013; Patricia Cochran, ‘Physical Legal Methodology’, in Freya Kodar, ed., ‘John Borrows’ Freedom and Indigenous Constitutionalism: Critical Engagements’, Lakehead Law Journal 3, no. 2 (2019): 107–10; and James Tully, Public Philosophy in a New Key, vol. 1, Democracy and Civic Freedom (Cambridge: Cambridge University Press, 2008), 291316.

7 Pierre Rosanvallon, La contre-démocratie: La politique à l’âge de la défiance (Paris: Éditions du Seuil, 2006).

8 See, especially, Val Napoleon, ‘Ayook: Gitksan Legal Order, Law, and Legal Theory‘ (unpublished DPhil thesis, University of Victoria, 2009); Val Napoleon, ‘Did I Break It? Recording Indigenous (Customary) Law’, Potchefstroom Electronic Law Journal 22 (2019), https://adric.ca/wp-content/uploads/2020/10/Napoleon-Did-I-Break-It-Published-2019-1.pdf; and Val Napoleon, ‘Living Together: Gitksan Legal Reasoning as a Foundation for Consent’, in Between Consenting Peoples: Political Community and the Meaning of Consent, ed. Jeremy Webber and Colin McLeod (Vancouver: UBC Press, 2010), 4576. However, my debt to Professor Napoleon goes well beyond these works.

9 The description of Gitxsan society and governance that follows draws on a number of sources, principally discussions with the individuals mentioned in the text accompanying the last paragraph of this chapter’s introduction; attendance at the feasts noted there; the works of Val Napoleon cited in note 8; the testimony given in the litigation leading to Delgamuukw v. British Columbia [1997] 3 SCR 1010 (cited in note 10); Margaret Anderson and Marjorie Halpin, eds., Potlatch at Gitsegukla: William Beynon’s 1945 Field Notebooks (Vancouver: UBC Press, 2000); Richard Daly, Our Box Was Full: An Ethnography for the Delgamuukw Plaintiffs (Vancouver, BC: UBC Press, 2005); Wilson Duff, ed., Histories, Territories, and Law of the Kitwancool (Victoria, BC: British Columbia Provincial Museum, 1959); Susan Marsden, ‘Northwest Coast Adawx Study’, in First Nations Cultural Heritage and Law: Case Studies, Voices, and Perspectives, ed. Catherine Bell and Val Napoleon (Vancouver: UBC Press, 2008), 114–49; Richard Overstall, in consultation with Val Napoleon and Katie Ludwig, ‘The Law Is Opened: The Constitutional Role of Tangible and Intangible Property in Gitanyow’, in First Nations Cultural Heritage, 92–113; Richard Overstall, ‘Encountering the Spirit in the Land: “Property” in a Kinship-Based Legal Order’, in Despotic Dominion: Property Rights in British Settler Societies, ed. John McLaren, A. R. Buck and Nancy E. Wright (Vancouver: UBC Press, 2005), 2249; Neil J. Sterritt, Mapping My Way Home: A Gitxsan History (Smithers BC: Creekstone Press, 2016); and Neil J. Sterritt, et al., Tribal Boundaries in the Nass Watershed (Vancouver: UBC Press, 1998).

10 The Delgamuukw transcripts are an invaluable archive. They have been digitized by the University of British Columbia Library and are now available online: https://open.library.ubc.ca/collections/delgamuukw.

11 Opening statement of Chief Gisday Wa (Alfred Joseph) and Chief Delgamuukw (Ken Muldoe), Delgamuukw Trial Transcripts, May 12, 1987, https://open.library.ubc.ca/collections/delgamuukw/items/1.0018360#p0z-3r0f.

12 Napoleon, ‘Ayook’, 4; Overstall, in ‘Encountering the Spirit’, 32, says 50 to 150 members is optimum. An average membership of about 190 is suggested by the population estimates in Gitanyow Hereditary Chiefs Office, ‘An Indigenous Approach to Sustainability Assessment: Written Submission on ‘The Environmental and Regulatory Reviews Discussion Paper’, June 2017’, October 13, 2017, 3.

13 Daly, Our Box Was Full, 88–89, 267–68; Duff, Histories, Territories, 37, 40; Napoleon, ‘Ayook’, 6–7, 67–71, 96–107. See also, for the Gitxsan’s close relatives, the Tsimshian, Christopher Roth, Becoming Tsimshian: The Social Life of Names (Seattle: University of Washington Press, 2008).

14 Some marriages do occur in violation of these rules. These are treated, by many Gitxsan, as k’aas’ – the equivalent of incest. They play havoc with the cross-cutting obligations and responsibilities of membership. Occasionally, one of the partners is adopted into another House to regularize the situation, but many consider such adoptions improper. See Napoleon, ‘Ayook’, 80–83.

15 See Daly, Our Box Was Full, 57–98; Overstall, ‘Encountering the Spirit’, 35; Napoleon, ‘Ayook’, 150–56, 160–64; Napoleon, ‘Living Together’.

16 Napoleon, ‘Ayook’, 124–28, Napoleon, ‘Living Together’.

17 See the example recounted in Daly, Our Box Was Full, 290–95.

18 Napoleon, ‘Ayook’, 150–56, refers to this as a system of ‘reciprocal accountability’ and shows how it extends well beyond the feast.

19 See the example discussed at length in Napoleon, ‘Living Together’.

20 Consider this example: although Gitanyow generally guards its political independence, it is one of four bands participating in the Gitksan Government Commission, which provides technical and advisory services regarding a number of areas of band administration. Gitsegukla and Gitwangak do not participate in that body.

21 Personal observation, Conference on Indigenous Law in Coast Salish Traditions, organized jointly by Cowichan Tribes, Research Group on Indigenous Peoples and Governance, Pierre Elliott Trudeau Foundation, University of Victoria Faculty of Law, and the Consortium for Democratic Constitutionalism (Demcon), 14–16 October 2010.

22 Sterritt et al., Tribal Boundaries, 19, 21.

23 This is the Tsetsaut/Skii km Lax Ha Nation. For one element of litigation tied to this assertion of independence which speaks to some of the background, see Malii v. British Columbia (Attorney-General) (2019) BCSC 2060.

24 For the foundation of this relationship, see Sterritt, Mapping My Way, 65–69. The Gitxsan and the Wet’suwet’en jointly brought the litigation that resulted in Delgamuukw.

25 Napoleon, ‘Ayook’, 131–36.

26 Webber, ‘Meanings of Consent’, 17–20.

27 Napoleon, ‘Ayook’, 160–64. See also the exploration of witnessing in the proceedings of the Stó:lo people of southwestern British Columbia in Andrée Boisselle, ‘Law’s Hidden Canvas: Teasing Out the Threads of Coast Salish Legal Sensibility’ (unpublished PhD thesis, University of Victoria, 2017), 201–77.

28 For the tsek, see Daly, Our Box Was Full, 85–91. A similar realism is manifest in the use of territories. There too, the acknowledgement of the head chief’s authority over resource use takes the form, in part, of a contribution of some of the product to the chief. Gitxsan will often use an analogy to taxation to explain that contribution.

29 Val Napoleon has urged us forcefully to reject such an idealization, not least in her contribution to this volume (Chapter 11).

30 See Daly, Our Box Was Full, 194–210; Duff, Histories, Territories, 38, 40; Napoleon, ‘Ayook’, 148–50.

31 Indeed, some women have always held chiefly names in Gitxsan society, although the number and prominence of women chiefs appears to have increased.

32 Jeremy Waldron, Law and Disagreement (New York: Oxford University Press, 1999).

33 Webber, ‘Meanings of Consent’, 9–12.

34 Michael Asch, On Being Here to Stay: Treaties and Aboriginal Rights in Canada (Toronto: University of Toronto Press, 2014), 127–31, especially 127n7.

35 Duff, Histories, Territories, 26–27.

36 Shalene Jobin, et al., ‘Wahkohtowin ᐊᐦᑯᐦᑐᐏᐣ: Principles, Process, and Pedagogy’, Canadian Legal Education Annual Review (forthcoming): 27, 12.

37 James Tully, Public Philosophy in a New Key, vol. 2, Imperialism and Civic Freedom (Cambridge: Cambridge University Press, 2008), 99100.

38 See Archon Fung and Eric Olin Wright, ‘Deepening Democracy: Innovations in Empowered Participatory Governance’, Politics & Society 29, no. 1 (2001): 21, 2324; and Patrick Heller, ‘Moving the State: The Politics of Democratic Decentralization in Kerala, South Africa, and Porto Alegre’, Politics & Society 29, no. 1 (2001): 158.

39 See, generally, Saul Alinsky, Reveille for Radicals (Chicago: University of Chicago Press, 1946), 99111 and, regarding religious entities as a foundation for broad-based organizing, Jeffrey Stout, Blessed Are the Organized: Grassroots Democracy in America (Princeton: Princeton University Press, 2010), 45, for example.

40 Marion Boyd, Dispute Resolution in Family Law: Protecting Choice, Promoting Inclusion, Report Prepared for the Ministry of the Attorney General of Ontario (December 2004).

41 See the cases discussed in Wendy Brown-Scott, ‘Race Consciousness in Higher Education: Does “Sound Educational Policy” Support the Continued Existence of Historically Black Colleges?’, Emory Law Journal 43, no. 1 (1994): 5053.

42 See, for example, Anna Yeatman et al., Individualization and the Delivery of Welfare Services: Contestation and Complexity (Basingstoke: Palgrave Macmillan, 2009).

43 Lars Skov Henriksen, Kristen Strømsnes, and Lars Svedberg, ‘Understanding Civic Engagement in the Scandinavian Context’, in Civic Engagement in Scandinavia: Volunteering, Informal Help and Giving in Denmark, Norway and Sweden, ed. Lars Skov Henriksen, Kristen Strømsnes, and Lars Svedberg (Cham: Springer, 2019), 131.

Figure 0

Figure 11.1 Cover of L’atmosphère: Météorologie populaire

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