The Edges of Exception: Implications for Indigenous Liberation in Canada

AuthorTara Williamson
PositionIs Anishinaabe and Nehayow and is a member of the Opaskwayak Cree Nation
By Tara Williamson*
CITED: (2009) 14 Appeal 68-83
In his work Homo Sacer: Sovereign Power and Bare Life, Giorgio Agamben proposes a rad-
ical theory of sovereignty that builds upon ideas from ancient Roman law and the politi-
cal theorist Carl Schmitt. Agamben’s work rst casts a light on the obscure gure in ancient
Roman law of the homo sacer, a person whose life is without political and legal worth.
Agamben then builds upon Schmitt’s theory of sovereignty, as captured in Schmitt’s infa-
mous phrase: “sovereign is he who decides on the state of exception.1Taking these ideas
together, Agamben proposes that the homo sacer is an accurate portrayal of the person
who occupies the state of exception. e state of exception refers to the capacity of the sov-
ereign to create a legally condoned “lawless” state by suspending the law as it pertains to
certain peoples. However, this lawlessness does not exist outside of the law, it exists precisely
because of the sovereign’s ability to make and determine who will—and who will not—be
subject to the law. In this way, the homo sacer “is included solely through its exclusion.2
Agamben refers to this inclusive exclusion as the “relation of exception.3is is indeed
the ultimate exercise of sovereign power because it is through this action that the sovereign
“proves itself not to need law to create law.4e all-powerful creation of a state of excep-
tion “creates and guarantees the situation the law needs for its own validity.5
1 Carl Schmitt, Politische Theologie (1922) [Schmitt], quoted in Giorgio Agamben, Homo Sacer: Sovereign Power
and Bare Life (Stanford: Stanford University Press, 1995) at 11.
2 Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life (Stanford: Stanford University Press, 1995) at
18 [Agamben].
3Ibid. at 18.
4 Schmitt supra note 1 at 19.
5 Agamben supra note 2 at 17.
* Tara Williamson is Anishinaabe and Nehayow and is a member of the Opaskwayak Cree Nation. She has a
Bachelor of Social Work from the University of Manitoba and is currently enrolled as a concurrent student of
the LL.B. program and M.A. - Indigenous Governance program at the University of Victoria. Tara would like to
thank especially Benjamin Berger, Cheryl Suzack, Jason Stabler, and Guuduniia LaBoucan for their insights and
assistance in the writing of this paper.
e concept of homo sacer contains assumptions about human life. Most importantly, it as-
sumes that biological life is distinct from political life. is assumption can be linked to
Greek philosophy and the terms zoeand bios. Zoe can be understood as bare biological life
that is common to all living things. Bios encompasses a richer understanding of life and in-
cludes political citizenship. e two terms are both separate and also connected in that the
prerequisite to bios is zoe.6
Canada was founded as a sovereign nation-state largely because of the colonization of In-
digenous peoples. At rst contact, the colonizer (Canada) perceived Indigenous people as
simple and savage. As Agamben would say, they were perceived as lacking a well-dened
bios; hence Indigenous life was not considered worthy of political recognition. is per-
ception had two eects: First, Indigenous-run political organizations were seen as impos-
sible, and so sovereign, self-governing nations were also impossible. Second, Indigenous
peoples, existing without nations of our own, were renamed Indians and unilaterally de-
clared subjects of the Crown.
e Canadian state created a state of exception from each of these eects. In the rst in-
stance, a state of exception was created when the colonizing state used the myth of terra nul-
lius and the doctrine of discovery to circumvent the rule of law to impose their own
sovereignty on already sovereign peoples. In the second instance, a state of exception was
created via numerous racist and oppressive laws, policies, and attitudes that denied civil lib-
erties and full Canadian citizenship to Indians. is dual state of exception means that, in
the current colonial framework, Indians in Canada exist on the edges of realizing both an
Indigenous liberation and full status as Canadian citizens.
When explorers representing colonizing European nations arrived at the shores of North
America, they were confronted by peoples they did not comprehend. is created a
dilemma: In the spirit of imperialist expansion the choice inevitably involved the relation
of Self to an Other, or of the centre against the margins. is is because imperialism requires
“binary oppositions that establish a relation of dominance. A simple distinction between
centre and margin, colonizer and colonized, metropolis and empire, and civilized and
primitive represents very eciently the violent hierarchy on which imperialism is based
and which it actively perpetuates.7As a result, explorers could postulate only two possi-
ble answers to this question: “[E]ither the Indians were as human beings equal to or iden-
tical with the [settlers]…; or else they were radically dierent, in which case they were
reduced to savages and on the same level as animate or inanimate objects of nature.8e
latter option provided for an Indigenous zoe (which explained the seeming humanity of
these inhabitants). And, it simultaneously denied an Indigenous bios. e Indian became
the “paradigm example of humanity in its pure, unadulterated savage state.9e political
and legal incapacitation of Indians as people allowed settlers to name North America as un-
6 For a fuller discussion of the concepts of zoe and biosbios, see ibid., “Introduction.”
7 Bill Ashcroft, Gareth Griff‌iths & Helen Tiff‌in, Post-Colonial Studies: The Key Concepts(New York: Routledge,
2000) at 24 [Ashcroft, Griff‌iths & Tiff‌in, Concepts].
8 Fred Dallmayr, Beyond Orientalism: Essays on Cross-Cultural Encounter (Albany: State University of New York
Press, 1996) at 5 [Dallmayr].
9 Robert A. Williams, Jr., Like a Loaded Weapon: The Rehnquist Court, Indian Rights, and the Legal History of
Racism in America (Minneapolis: University of Minnesota Press, 2005) at 33.

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