Indigenous peoples: caught in a perpetual human rights prison.

• Author: Chartrand, Larry

"Recognized", I like that term. Makes me feel almost real.

--Thomas King, 2012 (1)

1. INTRODUCTION

   As a Canadian citizen I am entitled to all the rights and privileges such status provides me, without discrimination based on my Aboriginal ethnicity. Not only do I possess such individual rights, 1 also have the social and economic means to benefit meaningfully from that status, unlike many of my fellow Metis "Canadian" citizens. (2) Nothing for me to complain about? Ah, but there is. In fact I am offended precisely because I am a Canadian citizen. Let me briefly explain: Canadian citizenship was not something my people agreed to have; it was forced upon my Metis ancestors from the Wood Mountain-Willowbunch area of what is now present-day southern Saskatchewan. (3) They were an independent bison hunting people with their own governance structure, laws, and territorial sovereignty (shared in common with a kinship alliance known as the Nehiyaw Pwat confederacy). (4) Regrettably, things changed with the onslaught of Canadian military authority and power. The 1885 war that ended with the defeat of the Metis people at the battle of Batoche and the subsequent hanging of Metis leader Louis Riel for treason are later regarded as regrettable but inevitable moments in the progress of civilization. (5)

   Ever since we were unilaterally absorbed into the Canadian state machine we have been resisting Canadian colonization and fighting for recognition as a distinct sovereign people. By the force of settlement and the imposition of British/Canadian sovereignty, followed by the visible manifestation of effective governance control (along with its monopoly on legal violence) in our territory we called home, we became Canadian citizens. But we did not abandon our Metis culture and identity and yes, we continue to resist our political inclusion into a nation-state that is not one of our own choosing. (6) More problematic still is the fact that democratic philosophers such as Jurgen Habermas do not satisfactorily account for this injustice, but rather ignore it so as to avoid the inconsistency in the logic of the theory.

   In this paper, I argue that the issue of forced citizenship inclusion cannot be satisfactorily resolved based on accepted liberal theories of nation and democracy such as those posed by Jurgen Habermas. This is so because the point of departure in liberal theory is based on an initial assumption that the composition of the original citizenship of a democracy like Canada is legitimate, or is at least taken as a given unable to be challenged within liberal theory without rupturing the constitutive principles upon which it is founded. It may seem unorthodox to focus a paper about Indigenous peoples' governance on the criticism of a theorist of democracy who never turned his mind to the issue of colonization and the unwilling absorption of Indigenous peoples into the sovereign sphere of a colonizing European nation state. It might also seem odd that I do not focus on writers such as Will Kymlicka or Michael Ignatieff who have more directly turned their minds to such questions. As explained in this essay, I focus on Habermas because Habermasian theory has been transplanted to America, and scholars within philosophical, legal, and political studies in Canada accept his work as a valuable resource when considering Canadian democracy. Moreover, liberal theorists like Habermas reinforce theorists like Kymlicka who are simply incapable of imagining a democracy like Canada as being forever unjust and illegitimate because of the forced presence of Indigenous peoples. Arguably liberalists like Kymlicka strive to ensure that the standards of deliberative democracy for which Habermas is representative are effectively and fairly applied to Indigenous peoples within the state, thereby ensuring that colonization no longer disadvantages them from within.

   Yet, how can one advance a theory of democracy and transplant it in America--or in any colonizing context--without addressing the question of the rightful inclusion of Indigenous peoples? Interestingly, Michael James, whom I discuss more fully below, tries to do so by writing about the relationship between American Indian tribes in the United States and the United States government. Although he makes a good case, relying on Habermasian theory, for a strategy to ensure that the American tribes have a distinct democratic voice in American governance, he ultimately fails to address the question of the unjust inclusion of the American tribes under the sovereignty of the United States.

   I will argue that liberal theory does more harm than good to Indigenous interests. Yes, Habermas and James do provide a powerful argument for advancing a certain kind of active citizenship to ensure that democracy is legitimate and responsive to all those who belong including Indigenous peoples, but it flounders when applied to the question of how a distinct nation can be unilaterally absorbed under the sovereignty of another without consent. How does one reconcile the characterization of a democracy based on the freedom of all to participate equally in the governance of such a democracy when that very freedom to choose to be part of it in the first place was not free at all?

   Liberal theory contradicts itself at its very foundational roots and, as I argue below, is incapable of responding to the question of rightful inclusion in the first place. All that liberal theorists can do--especially those who turn their attention to the Aboriginal question--is to advocate for a kind of special order within the democracy which accords a distinct collective voice to Indigenous peoples as well as individual voices. How far this goes depends on the nuances of each theorist's attempt to reconcile the collective political claims of Indigenous peoples and the state. The harm of initial inclusion in the state without consent is ignored in favor of advocating for special rights unique to the group but which are defined within the very democracy to which they were forced to belong.

   This failure to account for the initial morality of forming citizenship boundaries in liberal theory is perhaps why Bonnie Honig is so critical of Habermas. According to Honig, Habermas does not recognize the potential legitimacy of acute alienation from the existing constitutional structure nor the legitimacy of transcending the constitution towards an entirely new world order. (7) Notably, claims for Indigenous sovereignty are often viewed as threats to the very constitutional foundation of Canada and thus are arguably impossible to acknowledge under Habermasian theory. (8)

   This is true even where the universalistic moral approach of Habermas is adapted to account for Indigenous groups within a conceptual framework that acknowledges cultural pluralism as posited by Michael James. (9) At best, as explained more fully below, James' theory criticizes unilateral plenary power over American Tribal authority, but the sovereignty of the Tribes remains inferior to that of the United States itself. Jacques Ranciere's theory of dissensus, on the other hand, may have the flexibility to side-step this paradox or the vicious circle that insists on translating claims that attempt to transcend the existing constitutional structure into claims that "can be adjudicated positively or negatively within an existing economy of rights and liberties." (10) Ultimately I wonder whether Glen Coulthard's rejection of the need for any recognition by the State (or dialogue, for that matter) may be the only viable option, since Western theorists of democracy seem to be incapable of-or perhaps unwilling to--adequately respond to the claims of unjust inclusion within the state in the first place. (11)

   This paper will first consider how Canadian courts have responded to Aboriginal claims under s. 35 of the Constitution, 1982. (12) I will try to show how Canadian courts have effectively "liberalized" Aboriginal rights claims so as to preclude any possible recognition of an independent political status equivalent to that maintained by Canadian sovereign authorities. I argue that the approach taken by the courts has been to treat Aboriginal claims as analogous to individual human rights claims thereby always subjecting them to the over-riding claims of the Canadian public good.

   Interestingly, Habermasian theory does provide a basis for critiquing the current jurisprudence concerning Aboriginal rights. Habermasian theory, particularly as it is adopted to apply to Aboriginal peoples claims by James, does offer theoretical support for greater inclusion of Indigenous voices in a democracy like Canada. I will show how this is the case by examining two leading cases; Cunningham and Tsilhqot'in. (13) Initially relying on Habermas and James, I will provide a critique of these cases by outlining the negative impact the analysis adopted by the courts has had on Indigenous political autonomy claims as articulated by James. Accordingly, I will argue that a Habermasian analysis, as modified by James to address Aboriginal claims, would likely view the current norms and rules that define Aboriginal-Crown relations as morally flawed and fundamentally illegitimate. Ultimately, however, I will argue that James' adaptation of Habermasian theory does not go far enough. It remains incapable of addressing the question of "contested political association" because it cannot go beyond simply upholding internal democratic fairness. (14) Radical democrats, which emphasise a constant flux of contestation in democracy as opposed to striving for inclusive and equitable political participation, may provide a viable alternative basis for justifying Aboriginal claims to sovereignty, but ultimately they too may be flawed to the extent that political recognition will likely not sufficiently transcend the European-Indigenous philosophical divide, nor be truly freeing. I will conclude by agreeing with...