Indigeneity in the Courtroom

Law, Culture, and the Production of Difference in North American Courts

Jennifer A. Hamilton

• Publisher: Routledge
• Year: 2008
• ISBN:
  9781135864446
• Edition: 1
• Topic: Law
• Subtopic: Courts
• Index: Law

The central question of this book is when and how does indigeneity in its various iterations – cultural, social, political, economic, even genetic – matter in a legal sense? Indigeneity in the Courtroom focuses on the legal deployment of indigenous difference in US and Canadian courts in the late 20th and early 21st centuries. Through ethnographic and historical research, Hamilton traces dimensions of indigeneity through close readings of four legal cases, each of which raises important questions about law, culture, and the production of difference. She looks at the realm of law, seeking to understand how indigeneity is legally produced and to apprehend its broader political and economic implications.

1
Introduction

Tracking Indigeneity in the Courtroom

This introduction briefly outlines the terrain of “indigeneity in the courtroom” and locates how indigenous difference is produced in North American courts.¹ The central question of this book is when and how does indigeneity in its various iterations—cultural, social, political, economic, even genetic—matter in a legal sense? When does it not? Indigeneity here references not the specific ontologies and epistemologies of peoples living throughout Native North America, but rather the political, economic and legal articulations of indigenous difference (and the discursive and material effects of these articulations) in postcolonial settler nations.²

Indigeneity in the Courtroom is not a comprehensive comparative work that considers the similarities and differences among entire bodies of law. Rather, it focuses on the legal deployment of indigenous difference within a particular spatial and temporal scope—the Native Northwest Coast in the late twentieth and early twenty-first centuries. Relying on ethnographic methods and modes of analysis, I trace the dimensions of indigeneity through close readings of four legal cases, each of which raises a different set of questions about law, culture, and the production of difference. I look at the realm of law, seeking to understand how indigeneity is legally produced and to apprehend its broader political and economic implications.

In each of the four cases, legal actors deploy the idiom of indigeneity in order to make claims to rights, to property, and to political standing. Not only are assertions of indigeneity in these legal cases extremely varied (this book examines cases involving violent and sexual crimes, land disputes, and the disposition of human remains), but the actors making these assertions are also not always indigenous subjects. I argue that despite the purportedly novel nature of these cases, indigeneity in the courtroom is the most recent expression of a powerful colonialist legal tradition whose legacy continues to shape contemporary claims. Through a critical examination of these cases, I seek to explore how legal discourse and practice allow us to think the contemporary political context of Native North America and its conditions of possibility. What can a critical engagement with some of the more abstract and symbolic aspects of law reveal about the concrete and material lives of indigenous peoples living in this historical moment?

LAW

Arguably, no other group has a more confounding relationship to Europeansettler legal institutions than North American indigenous peoples (Canby 1998; see also Carrillo 1998; Culhane 1998; Harring 1998; Wilkins 1997; Wilkins and Lomawaima 2001). Historically, Euro-settler systems of law developed in part as a response to settler encounters with indigenous populations. Particularly in the Western part of the United States and Canada, law was central to colonizing projects, both in terms of exercising control over indigenous populations and in the creation of national settler identities.³ Yet the colonial legacies of law are more than strictly “legal”—they exceed the boundaries of legal institutions and are key discursive elements in social and political life in settler states like the United States and Canada. Indigeneity and law are thus inextricably linked.

As Susan Staiger Gooding and Eve Darian-Smith assert, “Writing about law in Native North America requires reading dominant legal regimes themselves as always already constituted in the relation between diverse local, national, international legal and political discourses …” (2001:1). A central part of this project is to direct attention to how the historic contours of settler-indigenous encounters became enshrined and encoded in statutes, legal policies, and court decisions, and to further examine how these historic contours shape and intersect with contemporary struggles over identity, political and economic recognition, and self-determination.

Although indigenous peoples have been making claims in North American settler courts since the establishment of those courts, there has been a flurry of legal activity on the part of indigenous groups since the 1960s for various reasons. These include the legacy of the civil rights movement in the US, the formalization of indigenous and multicultural policies in Canada, and the increasing numbers of indigenous peoples participating in mainstream legal systems as practitioners. As a result, “the interpellation of political into legal questions” has become one of the primary ways in which indigenous peoples make political claims in a postcolonial era, especially in Anglo settler states (Dirlik 2001:182). It is this “interpellation” that I am interested in tracking in its contemporary forms, and each of the four case studies provides insight into these questions.

CULTURE

In settler states in the latter part of the twentieth century, a new form of postcolonial reckoning emerged, often embodied in the idioms of culture, difference, and indigeneity. Culture, traditionally thought to be the purview of anthropologists, came to matter in a profound sense in social, political, and legal worlds. As typified by Charles Taylor’s now-classic essay “The Politics of Recognition,” the recognition of cultural difference was itself broadly considered to be a social and political good. While the dimensions of recognition varied greatly, the law itself was configured as a key site of intervention for what Taylor called “the politics of difference,” wherein “what we are asked to recognise is the unique identity of this individual or group, its distinctiveness from everybody else” (1994; see also Gutmann 1994).

In postcolonial democracies such as the US and Canada, nation-states which consider themselves to be culturally and legally plural, issues of cultural difference circulate in multiple spheres and permeate many institutional fields including education, medicine, and in particular, law. The espousal of tolerance and respect for difference has become an important value, one that is expressed both in political and moral terms. As Taylor argues, the failure of liberal nation-states to recognize the differences among their plural citizenry has not only political dimensions, but ethical ones as well. Taylor posits that such a failure can be psychologically damaging to minority groups. In such a conception, difference takes on an almost sacred character and becomes a compelling idiom for articulating rights, values, and identities.

The inevitable conflicts and contradictions that emerge as part of discourses of difference push the boundaries of tolerance and respect, and are often described as threatening to a national culture.⁴ Scholars Jill Norgren and Serena Nanda describe this tension in the US context as existing between “the need to create national institutions, including law, which unify culturally different groups, and … the need to protect human rights by allowing some degree of religious, personal, cultural and local political autonomy” (1996:1). Discourse around Canadian multiculturalism often reflects this same tension (Mackey 1999; Macklem 2001). These contexts of pluralism are essential to understand how indigeneity functions in North American courts.

During moments when many cultural anthropologists argued to “forget culture,” or at the very least, argued its limits, the “culture concept” began to have significant import in communities and contexts outside of anthropology and outside of academia (see e.g., Brightman 1996; Clifford 1988). Cultural relativism, most simply the idea that cultures have their own internal logic and should be understood and evaluated by these internal rules and not by foreign moral or evolutionary schemes, has been one of cultural anthropology’s most influential concepts. Particular conceptions of the cultural, especially the idea of culture and tradition as bounded and static entities, became passé within anthropology just as indigenous peoples were making claims to culture with particular political force. Anthropologist John Cove, among others, has argued that cultural relativism “has provided indigenous peoples in a number of countries with a basis for political action—a factor that has global import for anthropology” (1999:109).⁵

As assertions of traditional and cultural rights have become increasingly important for indigenous peoples throughout the world, these assertions have been critiqued, particularly within certain branches of the academy, as simplistic, essentializing, and incomplete. Debates about what constitutes “culture” or, more specifically, “a culture,” have been prevalent within the Americanist tradition of anthropology (Darnell and Valentine 1999). Anthropologists have become increasingly uncomfortable with “culture talk” and what they see as “the essentialism, primordialism and primitivism, as well as the residual colonialism” inhering in conceptions of indigenous identity (Guenther 2006:17).⁶ This discomfort, however, does not necessarily extend beyond academia, and institutions such as courts have become increasingly fluent in “culture talk.” US and Canadian courts in particular have picked up this highly politicized discourse and have begun a process of legal interpretation that has far-reaching consequences for the indigenous peoples living within (and beyond) their borders. Increasingly, anthropologists and others are exploring the discursive and ideological dimensions of this attention to culture in both political and legal spheres (e.g., Dombrowski 2002; Merry 2000; Miller 2001, 2003b; Povinelli 2002a), and Indigeneity in the Courtroom follows this line of inquiry.

Beyond the specific debates about the dimensions of culture within anthropology, it is also the case in settler nations that culture has often become an elaborate coding of, or in some cases a crude euphemism for, race. Gillian Cowlishaw demonstrates how racialization is a key component of indigeneity and advocates anthropological attention to the “racial borderlands” between settler and indigenous identities (Cowlishaw 2000; see also Biolsi 2001; Darian-Smith 2004; Gooding 1994). Thus, part of tracking indigeneity in the courtroom is making explicit how “the culturalization of race” works in legal spheres (Razack 1998).⁷

INDIGENEITY AND THE PRODUCTION OF DIFFERENCE

This book considers how concepts of indigeneity are being deployed and interpreted in both US and Canadian law, particularly in the context of litigation. Specifically, I ask how indigenous difference, indigeneity, is produced in both legal and extra-legal spheres. Rather than having a specific referent (indigenous cultural practice and epistemology), indigeneity refers to the idea that the content and meaning of indigenous difference is produced in particular contexts, in response to a variety of social, political, and economic forces. In other words, I am not exploring the nature of cultural difference itself, but rather “the processes of production of difference in a world of culturally, socially, and economically interconnected and interdependent spaces” (Gupta and Ferguson 1997:43; emphasis in original).

Anthropologist Kirk Dombrowski urges us “to grasp the specific historicity of indigenism itself,” and to examine how indigenous claims “are made and heard differently now than they would have been a few years ago” (2002:1062). In other words, “why does a discourse of indigenism succeed now where it failed in the past” (Dombrowski 2002:1062)? In addition to charting the successes of indigeneity in legal contexts, one of the fundamental tensions explored in this book is the contradictory nature of this “success” itself. As the cases in this book demonstrate, claims of indigeneity are not made exclusively by nor in the interests of indigenous peoples.

Law and legal cases provide a necessary framework for exploring and understanding the circulation of ideas and discourse. In this work, I closely examine four recent cases involving indigenous peoples, two from the US and two from Canada. Each chapter can be used as a stand-alone case study, but the chapters themselves may also be read thematically in concert with one another. In Chapter 2, I consider a criminal case in which a Washington state court allowed for the imposition by a traditionalist tribal court of a sentence of banishment for two Tlingit youths convicted of a violent assault. I discuss how the problems surrounding this case were narrated in terms of indigeneity and demonstrate how the deployment of such culturalist discourse in law creates a specific interpretive context in which broader political assertions, especially those concerning sovereignty and land rights, are potentially undermined.

In Chapter 3, I contemplate the use of an indigenous healing circle for a white Catholic bishop accused of sexually assaulting young indigenous women in British Columbia. I explore the process of “erasing indigeneity” in these legal contexts and argue that it is in fact an erasure of entire histories of colonization and their consequences. I argue that it is precisely the erasure of indigeneity in the mainstream courts that allows the healing circle, a place wherein indigeneity is ostensibly celebrated, to take place at all.

In Chapter 4, I look at a recent civil case involving the value of leased Indian land in the city of Vancouver. I explore how the value of indigenous property is constituted through a variety of discursive and material practices that reinscribe colonial property relations and help maintain settler access to Indian lands

Finally, in Chapter 5, I examine the litigation surrounding the remains of Kennewick Man. I trace what I call genetic indigeneity as a marker of a discursive shift from a public, scientific, and legal understanding of indigeneity whose predominant metaphor is blood to one in which the predominant metaphor is genes. In the Kennewick Man decisions, the genetic becomes the proving ground of indigeneity and articulates with ideas of racial and morphological difference. I ask what it means that human remains thought to be at least nine thousand years old, and thus clearly “pre-Columbian,” do no...

Table of contents

• Indigenous Peoples and Politics
• Contents
• Acknowledgments
• 1 Introduction
• 2 Banishment
• 3 Healing the Bishop
• 4 Resettling Musqueam Park
• 5 Of Caucasoids and Kin
• Notes
• Bibliography
• Index