Case Study 6

Overview of topic: Law

Some critiques of international law identify its origins within imperial ideologies and projects, in particular through the use of the Doctrine of Discovery, a principle named as legal foundation and justification for the expropriation, dispossession, and domination of non-European peoples across the world (Miller, 2011). In this view, international law, as a Eurocentric invention, continues to operate according to colonial legacies that remain embedded in the mobilization of contemporary legally framed actions and practices. For example, the colonial logics of law are identified in the justifications for and ethics of humanitarian interventionism – where a state, coalition, or international organization launches a military offensive against a foreign government in the name of protecting civilians. For Mohammed Ayoob (2002), as the protection of citizens from violence enacted by their own governments came to enter state discourses in the post-Cold War period, humanitarian intervention came to serve as a pretext for exercising power. He argues this shift involved a new understanding of sovereignty as responsibility, whereby states were obliged to conduct themselves in certain ways towards their citizens, as a matter of international scrutiny. If responsibility for upholding human rights was abrogated, the state’s sovereignty could be nullified by the “international community”, defined as the arbiters of justice.

For Ayoob, while the notion of sovereignty as responsibility has some grounding in moral obligation to prevent violence, it tends to be articulated as part of a preexisting civilizing rhetoric rooted in European imperial histories. The “standard of civilization” logic that defined European powers’ practices towards other states until the late 19^th century was based on the assumption that sovereignty could only be attained by states that demonstrated a particular way of being – one that marked them as civilized according to standards set by European political thinking. In the following, Ayoob explains how this standard allowed for non-European powers to be categorized as inferior and therefore denied the recognition and power that sovereignty would afford.

Ayoob notes that states acted to protect civilians in particular contexts (for example, Kosovo), but not others (such as the case of genocide in Rwanda), which undermines the idea that protecting citizens is the primary motive. He interprets interventionism as a way of reasserting this historical power, with human rights acting as a front for states’ own interests. International law has therefore functioned as part of the discourses mobilized in the justification and framing of decisions to go to war. If international law can uphold forms of oppression, it is also appropriated for enacting change: various rights have been won through campaigns for legal amendments, including voting rights, gay marriage, and abortion rights. The following section further explores law as a colonial instrument.

Section 1: The law and colonial reproduction

Introduction

Though law is often assumed to represent a sense of moral authority, some scholars contest this idea, arguing that it participates in and facilitates systemic inequalities (Goldstein, 2014). As Alyosha Goldstein (2008) argues, colonial states took shape through legal contests over power, which were grounded in land theft as a means of preventing the restoration of territory and political authority to indigenous peoples. For Goldstein (2008: 835), settler colonialism is a political system that is reproduced in specific “moments of conflict” that often play out in the legal sphere as a means for white people to negotiate privileges among themselves.

1) Indigenous rights and the law

For scholars within Indigenous Studies (Byrd, 2011; Coulthard, 2014), legal frameworks of the nation-state are not as clearcut as they are presented by state figures. Indigenous people in North America, for example, see themselves as nations preexisting the contemporary legal state framework. The laws that govern their presence on the land and relationship to the state could then be understood as international, rather than national, in character. There is therefore a tension for indigenous peoples between participating in the settler state’s legal frameworks on its terms and using its language of colonial-legal rights, and a rejection of this, which may continue to affirm and reproduce the inaudibility of indigenous voices in settler public spaces. Some indigenous nations seek collective rights but not within the framework of a state. This is in tension with the rights-based legal systems of liberal capitalist states that tend to be based on individual rather than collective rights. Existing legal instruments are often inadequate for carving out social and political space for indigenous peoples though they are often the recourse available for claiming rights.

In 2007, the United Nations General Assembly adopted the Declaration on the Rights of Indigenous Peoples (UNDRIP), the result of decades of organizing among indigenous groups globally (Wiessner, 2008). The UNDRIP provides individual and collective rights, allowing indigenous peoples two forms of citizenship – that within their own Nations (constituting collective rights or status) but also within the states in which they reside (as individual citizens). The declaration was voted in with four settler states voting against, including the US, Canada, Australia, and New Zealand. As Goldstein (2008: 833) argues, these states’ rejection of a recognition of indigenous peoples indicates the danger that their claims to land represent for “the fictive coherence of settler nation-states, which have historically sought to render the persistence of ‘nations within’ as a domestic concern without international implication.”

Ongoing colonial relations have been grounded in and depend on colonial jurisprudence, which means the opportunities for restitution are legally hampered – as Goldstein (2008) argues, this image of the law as instrument of justice allows for the constant deferment of justice for the dispossessed, whereby the promise of legal resolution can always exist in an imagined future. Future resolution implicit in this legal foundation allows for justice to be “perpetually deferred” (834). This suggests the law and jurisprudence more widely creates space for a politics that will be fought through specific forms of language.

Chickasaw scholar, Jodi Byrd (2011: xxvi), argues that ‘One reason why a “postracial” and just democratic society is a lost cause in the United States is that it is always already conceived through the prior disavowed and misremembered colonization of indigenous lands that cannot be ended by further inclusion or more participation.’ Inclusion in a settler regime, supported by laws that were created to legitimate the dispossession of these peoples, cannot resolve the wrongs of ongoing land theft and genocide because it fails to recognize indigenous groups as distinct from settlers and the sovereignty they claimed. This is the context for debates over how law works to produce indigenous people in North America as a minority, a racial category, rather than peoples with sovereignty and prior claims to land. The various arms of the state, including the law, elide this aspect of colonialism by normalizing settler relations.

2) The law & Indian removal

Legal rulings created precedents for removal of First Nations by undermining their legal titles to land and cementing settler control. Goldstein (2008) points to the role of the Doctrine of Discovery – used to justify European sovereignty over indigenous peoples – in shaping US law. For Goldstein (2014), insights into how logics embedded in this doctrine continue to unfold can be found in the adoption of American Indian children. Adoption policies, he suggests, have functioned in line with the wider project of Indian removal from the land. In 1978, the Indian Child Welfare Act (ICWA) was legislated as protection against the splintering of American Indian families, designed to redress a “long history of the removal of indigenous children from their families” (Goldstein, 2014: 1082). According to Goldstein, “the Christian adoption movement, along with the private adoption industry, has become increasingly aggressive in seeking to undermine the legal protections in place for Indian birth parents” (1081). In the following, he explains the political context in which the ICWA aimed to protect legal gains represented in the act.

Goldstein presents a controversial adoption case to illustrate how the ICWA is undermined as no longer relevant for a postracial US state. In this recent case, a white mother put a child up for adoption to a white adoptive couple, a decision that was contested by the child’s Cherokee birth father. In the ensuing court case, the judge decided that race was irrelevant for the child’s adoption – that her father was a Cherokee citizen was deemed an outdated point. The media were complicit in the elision of existing power relations, failing to report on the adoptive couple’s affiliation with the evangelical Christian Right adoption movement or their connections to the Christian Alliance for Indian Child Welfare – an anti-ICWA organization.

The legal decision, for Goldstein, supports the idea of a postracial society by helping to obscure whiteness as the normative and privileged centre. He writes that “Whiteness is made to appear unencumbered by the historical weight of racial violence and devaluation through the way in which racialization displaces the specificity and supposedly impossible persistence of indigenous political association” (2014: 1078). This argument insists the law, as part of a racial state, remains bound up with reproducing racial hierarchy and dispossession.

The ICWA is an illustration of how the law is an instrument through which oppressed groups fight for and win rights, but this court case also shows how such legal protections can be incrementally reversed. The adoptive couple’s apparently unquestionable emotional investment in the child in certain ways eclipsed the ICWA’s aim. The case shows how the law is not independent of deeper logics of dispossession and racialization on which the settler state is founded. Rather it can be mobilized to reproduce these logics, even as it is used to fight against them. The fight over rights to land and political sovereignty continues to be waged through legal spheres despite the latter serving as a means through which indigenous peoples were divested of their legal titles to land.

References

Ayoob, Mohammed (2002) Humanitarian Intervention and State Sovereignty. The International Journal of Human Rights 6(1): pp 81-102.

Byrd, Jodie A. (2011) The Transit of Empire: Indigenous Critiques of Colonialism. Minneapolis: University of Minnesota Press.

Coulthard, Glen (2014) Red Skin, White Masks: Rejecting the Colonial Politics of Recognition. Minneapolis: University of Minnesota Press

Goldstein, Alyosha (2008) Where the Nation Takes Place: Proprietary Regimes, Antistatism, and U.S. Settler Colonialism. South Atlantic Quarterly 107(4): 833-861.

Goldstein, Alyosha (2014) Possessive Investment: Indian Removals and the Affective Entitlements of Whiteness. American Quarterly 66(4): pp. 1077-1084.

Miller, Robert J. (2011) The international law of colonialism: comparative analysis. Lewis & Clark Law Review 15(4): 847-922.

Wiessner, Siegfried (2008) Indigenous Sovereignty: A Reassessment in Light of the UN Declaration on the Rights of Indigenous Peoples. Vanderbilt Journal Of Transnational Law 41(4): 1141-1176.