Masks Off: Treaties, Rights, & Their Ideological Function

I woke up a few days ago to the news that sites within Miꞌkmaꞌki were burning.  My kin in Wāpanahkēw have been under siege by white, settler-colonial forces who have engaged in blatant and open acts of anti-Native violence for several days, and this news from the East is just the latest in a line of disturbing reports.

To get at the root of it, as I understand it from the reporting of Mi’kmaq themselves, what has driven this attack on their community at Sipekne’katik First Nation in Nova Scotia has been their insistence on their treaty rights, and in particular their right to fish and collect traditional resources. The legal source for these rights is embedded in the Peace and Friendship Treaties.  These treaties are agreements that were entered into by the British prior to 1779 with the Mi’kmaq, Maliseet, and Passamaquoddy nations, the obligations of which were eventually inherited by Canada.  The 1752 treaty signed by the Mi’kmaq, which did not cede territory, included the agreement that the Mi’kmaq “shall not be hindered from, but have free liberty of Hunting & Fishing as usual.”

Today, within the Mi’kmaq understanding of these rights, this includes the creation and maintenance of “moderate livelihood” lobster fisheries.  Along with other rights, this means the ability to collect resources outside of the restrictions imposed upon others by the Department of Fisheries and Oceans (APTN 2020).

However, such rights are often perceived as “special” by various settler actors.  Thus, while these rights are embedded within treaties, which nominally form part of the framework for the settler’s juridical order, and Native people have always asserted them, they have been continuously pushed back against, both by the formal institutions and agents of the settler-colonial state, as well as by the irregular forces of everyday settlers[1]. This is also far from the first time that these tensions have boiled over into outright colonial/racial violence.  In 1981 the Sûreté du Québec (the Québec Provincial Police)[2] carried out raids against the Mi’kmaq community of Restigouche in an attempt to quash the exercising of their traditional rights to salmon fisheries (Obomsawin 1984).  In 2000 canadian state officials assaulted another Mi’kmaq community, Burnt Church, this time in New Brunswick (Obomsawin 2002).

Importantly, it should be noted, that the incident at Burnt Church also occurred a mere year following the Marshall Decision.  This decision, handed down by the Supreme Court of Canada in 1999, did not grant the Mi’kmaq the right to fish, but rather affirmed and recognized their rights as enshrined within the original treaties.  Indeed, it from within the wording of this decision that the terminology of a “moderate livelihood” emerges (APTN 2020).  So-called “moderate livelihood” is, in theory, designed to allow Mi’kmaq and their kindred Nations to be able to earn a living off of the resources in their territories.  There is additionally a third kind of Fishery, a “Food, Social and Ceremonial” fishery which allows for catches to be used as food or used in ceremony, but which cannot be sold.

Now the conflict is boiling over again.  This time, rather than canadian or provincial state officials, the tip of the spear being thrust into the Mi’kmaq are everyday Acadian settlers of the non-Native commercial fishery, including the Maritime Fishermen’s Union.  Boats have been damaged, flares fired at Mi’kmaq people, trap lines cut, and vehicles destroyed.  The blaze at a lobster pound used by the Mi’kmaq to store lobsters, a fire around which much suspicion now circulates, is just the latest incident.

The complaint which animates the Acadian settler fishery revolves around supposed concerns regarding conservation, and thus about the Mi’kmaq’s ability to lay traps for lobster and retrieve them outside of the regular season.  This of course is little more than a cover, and one that flies in the face of the facts on the ground.  The Mi’kmaq of Sipekne’katik First Nation have seven licences for their fishery, at 50 traps per licence, with only three currently in use, for a total of 150 traps.  Even at maximum deployment, the Sipekne’katik Moderate Livelihood fishery would have no more than 350 traps.  The Acadian settler fishery is orders of magnitude larger, with its commercial zone allowing for just shy of 400,000 traps.  The Department of Fisheries itself also admits that the lobster stocks are healthy.  If any fishery were to be negatively impacting lobster stocks, it would most certainly be that of non-Mi’kmaq actors.

This, of course, does not actually matter to those Acadian settler fishermen engaging in, being honest, colonial race rioting against the Mi’kmaq fisheries.  Nor has it historically mattered to the various federal or provincial agencies that have sought to curtail the exercise of Mi’kmaq rights, abandoning their duties and obligations under the Peace and Friendship, and various other, treaties, even as those treaty rights have been upheld by the highest juridical and judicial force within canadian Settler legality.

And so, thinking about this, I want to propose a question, or rather a series of questions: why care about treaties?  What do they matter?  What material force are they actually able to enact in our lived existences as Native North american peoples and Nations, not just with regard to Mi’kmaq out in Wāpanahkēw, but elsewhere?  Is not the struggle, currently heating up once again, near Caledonia, just west of Toronto, rooted in the Six Nations Rotinonshón:ni Confederacy and their agreement with the Crown regarding the Haldimand Tract?  I think also of my own Nation, the Menominee, and our struggle against the Back 40 Mine on the border between Upper Michigan and Wisconsin.  Or the various bands of the Lakota and Dakota peoples struggling against Pipelines.

The examples that one can pull without much more than a cursory thought, on both sides of the anglo-settler border, are too many to enumerate.  Wherever you look in North America, whether it is in the United States or Canada, whether the setters speak English or French, treaties are violated as a matter of course by the settler, either by its various state apparatus, or its individual actors, whether civilian or wearing a government suit or uniform.  And in those same moments, Native peoples continue to loudly assert their treaty rights, calling upon settlers and their governments to affirm, uphold, and honour them.  To recognize them as sovereign Native nations.  These are often joined by calls, variously, to “reconcile,” or to “decolonize” Native-settler relations.

But why?  As I said, the brute violence of ongoing settler colonialism would seem to put to lie any notion that the settler cares for the treaties, that it cares for reconciliation, whatever that concept may mean, or that some notion of “Native Rights” contains any meaningful content.  If they did, then one would presume that the settler would not have abandoned their treaty obligations as soon as they were no longer tactically or strategically useful to them while they competed against other Native nations or colonial powers vying for territory in North America. If the treaties mattered why the residential and boarding schools?  Why the 60s and Millennial Scoops?  Why complete and utter inaction on MMIWGTS?  Why pipelines?  Why do settlers, whether police or irregulars, know that they can get away with murder?  If the treaties mattered to the settler, why any of this?

Treaties and Rights as an Ideological Complex

These are facts born of, and demonstrated through, the force of history.  Given this, I would assert that the treaties, insofar as the settler is concerned, never amounted to anything more than lego-juridical devices of tactical and strategic leverage for the settler at a time when the positions of those powers that now dominate the continent (the United States and Britain, later giving way to Canada) were more precarious and less sure than they are today.  The settler recourse to treaty-making not only had a strategic usage as the settler-colonial powers battled one another (Britain against France, the U.S. against Spain and Mexico, etc.) or against the largest and most powerful confederations and alliances of Native Nations but also played a deeply internal role existentially.  The settler still is continuously unsure of their own existence, in one sense or another.  Existentially they retain a need to constantly re-assert and re-instantiate their own legitimacy, given the presence of Native Nations whose continued existence (re)presents a set of alternative, and, quite importantly, prior, claims to sovereignty and territoriality.  The presence of the Black colony as well within the settler’s borders, which has never been freed from enslavement, simply having had the order of things transmogrified into newer forms, presents a similar threat to the settler legal, existential, and psychological order. This is why the figure of the Native must be continuously murdered and conquered over and over again within settler civil society, including the media, something which I have written about before (2020).  This is why the Black population must be constantly carceralized, criminalized, and contained.

In this regard, the continued talk of treaties by the settler is but one tool in the arsenal of ongoing settler self-renewal and justification.  Through recourse to treaties, the settler can maintain one of its basic existential edifices through the dual claim that not only did the Native wilfully surrender the territory to them, but that today they are the true masters and inheritors of the land, the waters, and the skies, casting the Native back into the rez and into the woods.

But what of the other side?  What of the continued Native assertion of so-called treaty, inherent, and native/aboriginal rights?

I should be clear that what I am not trying to elucidate here are the conceptions of treaties within Native North American legal orders.  For Native legal orders and cosmologies, treaties invoke senses, obligations, and commitments to shared responsibility, care and the expectation of it, reciprocity, and integrity, not only to each other as those beings that we might call “human,” but to an even more extensive eco-cosmology that includes our other-than-kin, the lands, waters, mountains, and forests.  Many have spoken and written on those understandings with a beautiful eloquence (Todd 2018; Yerxa 2014).

Rather, what I want to engage with is the discourse of treaties and rights as they are refracted by, within, and through the ideo-legal order of the settler; not only as the way in which the settler invokes their understanding of treaties—as, at its most base level, cession of territory and sovereignty, as well as a cessation of existence, not just as that which is understood to be autonomous, but more simply as that which is—but how a certain discourse of treaties and rights, which may well mobilize and root itself in a certain understanding of Native legal orders and cosmologies, becomes embedded within the settler legal order through the very act of attempting a shared articulation.  I take these two things—the understanding of treaties by Native legal orders, and the discourse of treaties as it is refracted by settler legal orders—to be distinct, if outwardly similar.

I will admit that even on this side, treaties, legal documents, and court decisions that affirm them perhaps have a certain tactical, and perhaps even pedagogical utility.  Tactical in the sense that treaties may work to ameliorate perhaps some of the worst effects of ongoing genocide, elimination, dispossession, and settlement, even as they, quite apparently, provide no meaningful force with which to stand against and genuinely put a stop to them.  Tactical in the sense that they may give some Native actors, in select moments, a ground with which to make stands before the settler judicial apparatus.  Pedagogical in the sense that the supposed existence of treaty, inherent, and native/aboriginal rights, and centuries of settler abandonment of their obligations may serve as a teaching tool by which to bring some settlers to an understanding of at least part of the complex of vectors arrayed against Native life and lifeways.

But, again, this has to stand against the fact that the apparatus of the settler state does not care, and neither do many individual settlers nor the civil and popular societies of the settler.  The settler does not care for the supposed sovereignty of the Native.  There is no true point of articulation, understanding, or compromise.  Neither does a possibility for the violence to stop present itself when the only option for the Native, so long as the settler order persists, is to die.  Native sovereignty, vis-à-vis the understanding of the settler, has always been an empty void, entirely, and unilaterally, definable, containable, and liquidatable by the settler (Robinson 2020).

In every act of settler violence, every child snatched, every lobster pound set fire, every police murder, the fundamental nature of the settler order is exposed.  And that order includes the very notion of treaties and rights.  There is only a simulation of rights, relations, and responsibilities with no inherent reference to anything in material lived existence under the regime of the settler.

And so, it is against and within this that I think notions of treaties and rights function within Native discourse as it seeks a kind of broader political engagement.  They, treaties and rights, form a part of an ideological complex that not only masks the settler-colonial order of things, but causes Natives to perceive the mask as actually being reflective of true relations—damaged or broken as they may be—even when we may simultaneously know that the mask is a mask, and, more so, what lays behind it.

For some, as Fredric Jameson recently wrote, to engage in a discussion of ideology, or to perform a practice of ideological critique, may seem partisan, idiosyncratic, or even plainly old-fashioned (2019: ix).  This seems increasingly so with the growth and increasing cache of notions of assemblages, and two distinct turns towards the “ontological”—of the latter, the first is of course the so-called “ontological turn” within the social sciences and humanities, particularly anthropology, which has shifted the unit of analysis from a notion of ‘culture” to one of ontology or ontologies; the second is the return or resurrection of a certain kind of Heideggerian metaphysics, often inflected through poststructuralist or semi-poststructuralist lenses.

I am not here arguing against those turns.  In my own work I have productively relied upon both concepts, or variants of them, such as Alexander Weheliye’s description of “racializing assemblages” (2014), as well as the discourse of ontology (political ontology more correctly) as it relates to the theorization of coloniality, and is indebted greatly to Nelson Maldonado-Torres (2010).  However, while others may have put down ideology as a concept more suited to a previous era, or have theorized its subsumption as a secondary component within larger concepts or structures, I continue to maintain that ideology, as ideology, is an important subject of theorization and critique.

Indeed, I believe that a renewed turn towards an understanding of the ideological and its workings can, and should, be reflected upon other subjects in the course of critique.  And I believe that an understanding of the ideological can be a powerful tool in allowing us to peel back the layers and understand the inner workings and problematics of the subject at hand in this essay: treaties and rights discourse.

I mean ideology here in a certain Marxist sense.  For Marx himself, in The German Ideology, ideology is the “production of ideas, of conceptions, of consciousness,” and all that people “say, imagine, conceive” (2007: 47).  For Marx, and for many Marxists that followed him, including many of the various claimants to Leninism, as well as many Western Marxists, ideology belongs purely to the illusory realm of the superstructure.  The French Marxist Louis Althusser describes this perspective as one in which:

Ideology is sheer illusion, sheer dream, in other words, nothingness.  All reality lies outside it.  Ideology is thus conceived as an imaginary construct whose status exactly resembles the theoretical status of the dream in authors before Freud.  For these authors, dreams were purely imaginary—that is, nugatory—results of the “day’s residues”, presented in an arbitrary and sometimes even “inverted” arrangement and order (2014: 174-175).

In the work of theorists such as the Hungarian Marxist Georg Lukács, ideology functioned through the production of ‘false consciousness,” a false or incorrect understanding of the way the world that surrounds us functions (1972).  The theorizations of “hegemony” and the hegemonic by the well-known Italian Marxist and political prisoner of Mussolini’s fascist regime Antonio Gramsci also bears many marks of this mode of thinking with regards to ideology (2000).

When I say that notions of treaties and rights form an ideological complex within Native discourse, it can be taken in this regard.  Treaties and rights, or rather the continued belief in their efficacy and meaning, do seem to perhaps betray a certain kind of false consciousness.  They certainly do not seem to present the actual forms and logics of the way that the canadian or american settler-colonial states and societies function.  From the Gramscian perspective they can also be taken to present a form through which the order of settler coloniality institutionalizes its power, makes its rule seem just, as well as abstract (that is, detached from any one specific individual), and to continue to re-inscribe the “ruse of consent” (to borrow a phrase from the Kanienʼkehá꞉ka theorist Audra Simpson (2017)) from the colonized to be governed by an occupational force that is, in the final instance, eliminative and dispossessive.

And that understanding might be both necessary and sufficient (as my friends and kinfolk trained in Anglo-Analytic philosophy might say) to understand the ideological nature of treaty and rights discourse.  However, when I say that such discourses are part of, or form, an ideological complex I want to gesture at something deeper.  Or perhaps not “deeper” per se, but rather another way of looking at it.

Instead, I think of the approach to understanding ideology taken by Althusser, and by certain theorists who have taken after him, such as Fredric Jameson.  This understanding of ideology builds upon Lacan’s distinction of ‘reality’ from the ‘Real’ to describe the workings of ideology, or ideological structures and processes, as representing the subject’s Imaginary relationship to their Real conditions of existence (Althusser 2014: 181; Jameson 1991: 51). There is a bit too much to unpack with regards to this distinction in this essay, which I would prefer to keep short, but, in brief, the ‘Real’ for Lacan is the state of nature from which humans are severed through our individual and collective entrance into the Symbolic Order, that is through our entrance into language.  Another way of describing the Real in this understanding may be to say that it is that final instance that resists symbolization (Lacan 2007).  ‘Reality’ on the other hand is the world that we construct around ourselves following our entrance into the realm of the Symbolic.

However, as I said, I do not wish to dwell much on Lacanian thinking, as it is not the point here.  There are others, with far more interest than myself in psychoanalytic theories of diverse kinds, who could most certainly explain the intricacies of the concept far better than I.  So, what then does this have to do with ideology, and from that, what does this have to do with the discourse of treaties and rights?

First thing: within the traditional Marxist understanding of ideology (Marx, Lukács, Gramsci, etc.) the forces of resistance (be they class warriors, decolonial revolutionaries, abolitionists, or queer or feminist liberationists) are thought to be able to demonstrate the fundamental falsity of hegemonic ideologies or false consciousnesses by exposing the “real world” that is masked by said ideologies.  In the instance of settler colonialism, and its recourse to the discourse of treaties and rights—from the idea that Native peoples consented to the transfer of sovereignty and territory through their various X-Marks, to the contemporary proclamation of programmes of reconciliation—this might be done through the continual and forceful exposure of the real violence, not only historic, but ongoing, of the settler-colonial project, and, through such an accounting, demonstrating how these violences have not been, and are not, the result of good intentions gone awry (as they may be thought of with regards to the residential/boarding schools, or the various “Scoops”) or a few bad actors (such as John A. McDonald) but are rather rooted in the basic DNA of the nation-state come empire projects we call Canada and the United States.

However, if that was the case, as resilient as the hegemonies and false consciousnesses of settler colonialism may be, we would presume that it would not even be necessary for the active work of decolonial resistance forces and their allies to expose them.  The mask of ideology would be washed away by the force of its own action in an unending torrent of blood, ash, tears, and genocidal violence.  As Patrick Wolfe notes:

Critics of [settler colonialism’s] generally diabolic outcomes have had little difficulty demonstrating the moral chasms between the appealing rhetoric in which a policy or judgement was framed and the oppressive consequences to which it practically conducted.  Yet it is not clear that the tactic of holding [settler colonialism] to account by the standard of their own apologetic rhetoric has had positive benefits … Given the historical regularity of the pattern [of elimination, of dispossession, etc.] those continuing to express this complaint would seem to be possessed of a robust capacity for surprise (2012: 3).

He continues, saying of the U.S. specifically, but equally applicable to the context of Canada, that:

One might have thought that a passing acquaintance with the history of US-Indian relations would suggest that a tactic that had so consistently failed in the past was unlikely to prove beneficial in the present.  The issue is not simply one of naivety, however (2012: 3-4).

Returning to Althusser, we might say that it is not just a question of naivety, on the part of Native peoples and their allies, or of broader north american civil and popular society in general, because ideology is not a mere inverted reflection of the “true” workings of some hidden reality that we can access through the application of logic and attentiveness to history.  Rather, ideology is itself tied to reality, that “imaginary relationship of individuals to the Real.”  Thus, thinking of the discourse of treaties and rights, we might say that a focus on them is not actually a project of unmasking the real violence of settler colonialism by way of demonstrating the discontinuity between the assurances and obligations placed upon both settlers and Native people by such documents and the actuality of ongoing elimination and dispossession, but rather an active engagement with the ideological complexes of settler colonialism itself.  Again, as Wolfe notes:

The critique of discontinuity between rhetoric and outcome in Indian affairs participates in the very process that it indicts.  This is because, for all of its ineffectiveness as an enhancer of Indian rights, the critique in question has proved only too effective as an ideological alibi for the negative outcomes of Indian administration, which emerge from its policy failures or unintended consequences rather than as systematic regularities. … At the very least, this circular procedure mistakes prescription for description.  More consequently, it represents the inequitable outcomes of Indian-affairs discourse as running counter to the principled workings of a fair society, a representation that effaces that society’s continuing abjection of Indian people (2012: 4) [emphasis mine].

There is perhaps something even Baudrillardian to be said about this, that perhaps the discourse of treaties and rights presents a kind of hyperreality: a representation, or simulation, of the Real that has become more real than the Real itself (1994).  In presupposing a kind of intentional fallacy or focusing methodologically on legocentrism (Wolfe 2012), this discourse not only engages in the ideological complexes of settler coloniality themselves, but begins to become so detached from that which it claims to be a true reflection of that slowly the original source is dissolved into nothingness.

Thinking along these lines, for me, raises deep and troubling questions about the ongoing engagement in discourses of treaties and rights.  To return to something I suggested earlier, perhaps a certain kind of pedagogical or tactical utility can be retrieved from it.  However, I believe that such a retrieval can only function in the short term, and with an understanding of its demonstrably significant limitations.

I am also not such a Lacanian as to believe that the Real is located within some zone of fundamental irretrievability, locked beyond the ideo-symbolic order.  Nothing presents a more pressing moment of the rupture of the Real into the ideological and Symbolic than the raw material physically of the anti-Native violence inflicted on our bodies, peoples, nations, territories, and other-than-human kin that fundamentally animates and gives life to the settler-colonial order of things.  Indeed, even the threat of such a rupture hangs in the air at all possible moments and conjunctures within the spatial and temporal worlds of the settler.

However, such a rupturing of the ideological complex, whether spontaneous or autonomous, as in the self-directed acts of race riots by Acadian settlers, or due to the ongoing works of Natives peoples and our allies to expose what lies beneath the mask, has proven, in the end, to be ultimately unable to function as a generative moment towards genuine radical social change.  This is because of the constant recourse to a reliance on a discourse of treaties and rights, and the idea that the settler simply needs to be exposed to the historical and ongoing-present truth of their own obligations and responsibilities, or that the settler-colonial state can be compelled or coerced through court, protest, legal, or international pressure action to recognize, re-affirm, and reconcile to the existence of our treaties and rights, is an act that fundamentally engages the ideological complex of the settler.  More so than that, it deeply re-inscribes and re-instantiates the settler-colonial complex by providing, as Wolfe noted, the ideological alibi to the settler state and popular society that allows it bracket off both historic and ongoing violences as contingent aberrations to the system and its intentions rather than the real result of systematic and foundational enactments of elimination and dispossession.

To be clear, I do not wish to give the appearance that I do not support the struggle of my nation’s Mi’kmaq kin and our other relations in Wāpanahkēw, or the struggles of any other Indigenous nation, from Alaska to Tierra del Fuego, from the Americas to Pasifika and back across again to Africa and everywhere else, both those at home and those abroad.  Because I very much so do.  Rather, I am troubled by the fashion in which much of Native discourse, on this continent, allows itself to be governed, in the final instance, by the ideo-legal conceptualizations of the settler.

Thus, thinking of liberation in my final thoughts, I want to ask what might be an alternative political strategy from that of the discourse of treaties and rights and our reliance and entrance into the ideological apparatuses of the settler?

Recognition & Settler Ideology

Here I want to bring into the discussion the recent theorization and critique of the liberal politics of recognition, which ultimately provides the basis of treaty and rights discourse, as well as the claim to such a discourse’s supposed efficacy.  Dené theorist Glen Coulthard describes this approach as the:

Increasingly commonplace assumption that the colonial relationship between Indigenous peoples and the Canadian [or American] state can be reconciled via a … recognition-based approach to reconciling [of] Indigenous peoples’ assertions of nationhood within settler-state sovereignty via the accommodation of Indigenous identity-related claims through the negotiation of settlements over issues such as land, economic development, and self-government (2014: 151).

Similar to what I have argued in this short essay, Coulthard states further that:

This orientation to the reconciliation of Indigenous nationhood with state sovereignty is still colonial insofar as it remains structurally committed to the dispossession of Indigenous peoples of our lands and self-determining authority (2014: 151).

Recognition, which can be traced back to the work of the bourgeois liberal philosopher G.W.F. Hegel and his description of the ‘master/slave dialectic (Hegel 1979; Coulthard 2014: 27; Simpson 2014: 16), is, according to Audra Simpson, fundamentally “tied up with state power” (2014: 16).  She states, in further detail:

In the case of settler societies, there is an old Aristotelian problem of how to govern alterity, how to order it, how to make sense of that which is not yours—a question that is not normative rather than tactical, and it reemerges, violently.  The ideal of transcendent principles, still divine and sometimes democratically inflected, animate the governance of these territories.  Yet the problem of governance remains.  This is because the category and construct (and institutional apparatus) of the nation-state and its presumed homogeneity endure in spite of their fundamental inability to be resolved with the complexity and force that animate territorial histories and horizons of settler-colonial nation-states.  …

The bureaucratized state is one frame in which visibility is produced, creating the conditions under which difference becomes apparent; political aspirations are articulated; and culture, authenticity, and tradition become politically expedient resources.  The state, in framing what is official, creates the conditions of affiliation or distance (2014: 16-18).

Formally, the politics of recognition, as articulated within the Hegelian dialectic, is described by Coulthard as suggesting:

That the realization of oneself as an essential, self-determining agent requires that one not only be recognized as self-determining, but that one be recognized by another self-consciousness that is also recognized as self-determining.  [For Hegel] It is through these reciprocal processes and exchanges of recognition that the condition of possibility for freedom emerges (2014: 28).

The problem of course should be self-evident.  As laid out clearly by Simpson, and as suggested by Coulthard in his work, as well as other anti-colonial and decolonial scholars such as Frantz Fanon (1967), these processes and exchanges are anything but reciprocal.  To think again of Althusser, he spoke of ideology as engaging in a kind of interpellative hailing, by which he meant that the ideological complexes which subsume us and our existences, through kinds of call and response “rituals of ideological recognition,” constitute “concrete individuals as subjects” (2014: 190; 263).  However, such power is entirely unilateral, emerging from the ideological state apparatuses of the settler.

This unilateral recognition, defined through the colonial relations of force, and problematized by Coulthard, Fanon, and Simpson, annihilates the possibility of a functional recognition politics because while the settler-colonial state possesses entirely the possibility to render the myriad of Nations indigenous to its claimed zone of sovereignty and territoriality into Indians, Aboriginals, First Nations, and all other manner of categories of settler-colonial cognition and governance, no power is available for the Native to call out to the settler.  We may call, but the hail goes unanswered.  Indeed, it is not, and never has truly been, necessary for the settler or the settler state to answer the call.

This actually itself points to yet other issues with the discourse of treaties and rights and the broader liberal politics of recognition, which is the problem posed by the question of the legitimacy of the settler-colonial state and society.  Much ink has been spilled by Native actors, activists, and academics in an attempt to render a reasonable case that the invading settler-colonial society is fundamentally illegitimate.  Such a case is made quite forcefully, for example, by Karoniaktajeh Louis Hall (1965), whose writings and influence helped to spark a renaissance of sorts of more militant expressions of Rotinonshón:ni/ Kanienʼkehá꞉ka ‘traditionalism,’ most concretely expressed in his status as the “father” of the Mohawk Warrior Society (a form of whose flag has become one of the de facto symbols of contemporary North American Native resistance writ large) (Simpson 2014: 26).

But this poses a question that is often left unarticulated: illegitimate or legitimate according to whom and accountable which legal order?  A case can most certainly be made that, within Native legal orders and cosmologies, that the dispossessive and eliminative state and society of the settler, which has continuously abrogated every treaty and agreement that has been signed, is illegitimate; that point is not one of dispute.  But we must ask: does this matter to the settler?  I would argue that the answer is not only apparent but quite clear: no.  Simply put, the legal order of the settler does not require the affirmation of its Native juridical counterparts, nor is it unsettled by its potential (for) disaffirmation.

While this may play into a kind of aforementioned pedagogical programme or praxis of bringing those settlers willing to hear the call into the knowledge of what the North American settler colony functionally is, it will only ever fall on unhearing ears and unseeing eyes when it comes to the formal power structures of the settler state.  While, as I mentioned, there may have been a short term strategic and tactical utility on the part of the settler, during the period of inter-colonial competition for territory on this continent, to engage Native legal orders through the writing and signing of treaties, the settler long ago assumed unto itself the power and the ability to affirm itself, notwithstanding the various existential issues that the settler may face through the continued existence of prior and alternative Native sovereignties and territorialities.  While those prior and alternative existences may existentially trouble the settler, it does not desire nor genuinely seek, their recognition, as it simply requires their continual geo-spatial containment and the elimination of the populations who both represent them and who they represent.

Moving from issues of legitimacy to illegitimacy back to recognition, there is a way in which engaging in the politics of recognition functionally actually presupposes the legitimacy of the settler-colonial state and society, as it presumes a degree of legitimate power on the part of said state to be able to grant recognition of Native identity-based claims, namely that of treaty, inherent, and aboriginal rights, but extended beyond that to cover additional related issues as well.  Even in instances in which it is argued that the current status of the settler order is an illegitimate one, there is at times at play an implied belief that that status can be corrected, healed, or otherwise reconciled through the settler activating their social, political, and cultural site as one of recognition and affirmation.

This all folds back into my larger point that engaging in the discourse of treaties and rights fundamentally works to reinforce the ideological, legal apparatuses of the settler-colonial state, rather than functioning as any kind of meaningful unmasking of that which Settler ideology seeks to conceal.  As Coulthard notes:

Over the last forty years Canada has recognized a host of rights specific to Aboriginal communities, including most importantly to land and self-government.  Canada has always used this recognition, however, as evidence of its ultimately just relationship with Indigenous communities, even though this recognition continues to be structured with colonial power interests in mind (2014: 155).

Or, as Leanne Simpson puts it, “As reconciliation has become institutionalized, I worry our participation will benefit the state in an asymmetrical fashion” (2011: 22).  What should be clear is that this should not be so much of a worry, as much as it must be recognized as the actual case of what happens through engagement in these political sites and forms of discourses between Native peoples and state actors from any level of settler governance, whether from those representing the formal structures of the settler state, or its attendant civil and popular societies.

So, to return to my earlier thought, what do we do about this?  How do we begin to remove ourselves from our seeming entanglement in such a colonial imbroglio?  How do we move on towards our collective liberation, to decolonization, without allowing ourselves to move at the behest of settler-colonial ideology?

Refusal

I want to conclude by suggesting what Simpson, Coulthard, and others have offered as the solution to the trap presented by recognition politics and the settler-colonial ideological apparatus: refusal.  In a sense, it is a relatively simple notion, as it entails, as Simpson suggests, “a willful distancing from state-driven forms of recognition and sociability in favour of others” (2014: 16) and “a political self-consciousness that will translate into a revolutionary argument, a movement to unshackle oneself from this [the politics of recognition] formula for self-perception” (2014: 24). As the Kanienʼkehá꞉ka theorist Taiaiake Alfred notes, this is a “path of struggle laid out by those who come before us; now it is our turn, we who choose to turn away from the legacies of colonialism and take on the challenge of creating a new reality for ourselves and for our people” (2005: 19) and that a “true decolonization movement can emerge only when we shift out politics from articulating grievances to pursuing an organized and political battle for the cause of freedom” (25).

However, even here things are not as simple as they may seem.  For Alfred, for example, whose theorizations of a kind of ‘anarcho-indigenism’ (2005: 45-46) acts as an important theoretical touchstone for Coulthard, Audra Simpson, Leanne Simpson, and many other contemporary Native decolonial theorists, especially here in Canada, his discussions of “turning away” from colonialism, its State, its ideological structures, its eliminative and dispossessive logics still turns on the notion that such an “ethical and political vision” must, as its “real demonstration of our resolve,” move towards forcing “the settlers to acknowledge our existence and the integrity of our connection to the land” (2005: 19).

No matter how one wishes to frame such a discourse, even if it presents itself with an air of militant refusal praxis, there is still a possibility that it will fall, albeit in a perhaps superficially different way, into recognition politics and the ideological complexes of settler coloniality.  This danger is expressively manifested in Alfred’s anti-colonial refusal still relying in the final instance on decolonization necessarily requiring, if only in part, the acknowledgement of the settler.

Against this, when I speak of refusal or turning away from recognition politics and settler-colonial ideological, legal structures, including discourses of treaties and rights, I mean this in a totalizing way.  I think for Alfred and others there is perhaps a problem to be located in too strong a reification of the settler-colonial state, understood in a not necessarily simplistic, but certainly too limited way.  To think of the state as simply “the State,” as some clearly recognizable centralization of governance and the sole possessor of the means to enact its governance through force—”the Government,” the administration, the armed forces and police, the courts, the prisons—is to miss that the state bleeds beyond these formal repressive apparatuses into what Gramsci referred to as “civil society” and Althusser called “ideological state apparatuses.”  Not only this, however, we must also perceive even more expansively that, while certainly outside of the regular scope of what we might read as the settler-colonial state, the irregular forces of everyday settlers themselves play an agential role in both the settler-colonial state’s historic expansion (the “lawless” zone of the frontier being primarily cleared in the initial by non-state actors, and only after a time being subsumed within the direct control of the settler-colonial state), as well as its ongoing manifestation and workings.  As Wolfe notes, the operations of the settler-colonial project “are not dependent on the presence or absence of formal state institutions or functionaries” (2016: 41).

Thus, while Alfred and others may believe it is simply enough to turn away from the formal regimes of the state, a turning away that I do not dispute, and would quite agree with, our refusal must go beyond that, beyond the formalized state proper to such, and be(come) a refusal of settler society in toto.  To “turn away” must not only be a refusal to seek recognition from the state but a turning away also from the idea that decolonization must manifest any kind or form of recognition from the settler.  Anything else, no matter what manner of rhetoric or theorization may be attached to it, will only function towards renewing our reliance upon the settler and thus deviate from the path of freedom.

On a deeply practical level, the problem of Alfred’s conception of a praxis of refusal that still seeks to force affirmation and acknowledgement from the settler is that it implies an implicit incapacity towards autonomous action on the part of Native and other colonized and oppressed peoples.  While I do not believe it is intentional on the part of Alfred or others who follow him, the extent to which an investiture in revolutionary decolonial social change requires affirmation or acknowledgement from, or coalition with, the settler manifests an implicit denigration of our ability to act as agents in our own liberation (Ball & Gordon 2018).

Decolonization then must be understood as a self-directed insurgent act, whether that manifests through legalist or illegalist forms (forms which, mind you, are defined as such by the legal order of the settler), against not only the settler state as the state but against the entire totality of settler coloniality.  Such insurgent acts constitute what Audra Simpson might refer to as acts of ‘positive refusal’ in as much as they are animated by, and are historically and philosophically consistent, with the generation and maintenance of our counter-orders (2014: 128).

Only then can we begin to move within a process of decolonization and decolonial action that is generated and enforced within and upon our own terms.  Only then can we begin to set upon the course of freedom.

Endnotes

[1]This point much be emphasized.  There is a long and ongoing general tendency on the left in North America to evacuate what we might call “the everyday settler” of an agential role in both the historic expansion and the current enforcement of settler hegemony and its logics of elimination and dispossession.  However, the individual settler and the collectives that they have formed and continue to form, has a wide degree of agency in forwarding the settler-colonial project.  The late Australian theorist Patrick Wolfe puts it thusly:

Its [the settler colonial project’s] primary dynamic arose permissively in the absence of official regulation.  This highly productive absence should caution us against viewing settler colonialism as a narrowly governmental project.  Rather … settler invasion typically combines a shifting balance of official and unofficial strategies, initially to seize Native territory and subsequently to consolidate its expropriation.  Rather than something separate from or running counter to the colonial state, the irregular activities of the frontier rabble constitute its principal means of expansion (2016, 40-41).

This point is important to recognize and affirm in our own analysis, because the ongoing active role of the everyday settler in the eliminative violence of settler colonialism and the maintenance of dispossessive projects deeply complicates the possibility for Native-settler solidarities, if we are to hold such things to be even remotely possible, much less desirable.

[2] For many the Sûreté du Québec are perhaps best known for their role in the so-called “Oka Crisis” in 1990, during which they, along with the RCMP and the Canadian Forces (the unified Canadian military) attempted to put down the resistance of Rotinonshón:ni/ Kanienʼkehá꞉ka members of the communities of Kanehsatà:ke and Kahnawà:ke to the expansion of a golf course and condominium development onto a sacred burial area by the neighbouring francophone settler town of Oka (Goodleaf 1995; Obomsawin 1993; York 2013). They were eventually defeated.

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