Red Skin, White Masks: Rejecting the Colonial Politics of Recognition (Indigenous Americas) (16 page)

During the negotiation process it became clear that many Aboriginal leaders and organizations wanted their communities vested with powers of self-government largely unencumbered by Canada, including its Charter of Rights and Freedoms. Although the negotiations leading up to the Charlottetown Accord made it clear that Aboriginal governments would not receive the degree of unfettered autonomy that many leaders had demanded during the process, in the end a compromise was reached whereby Aboriginal governments would, like their federal and provincial counterparts, be granted access to Section 33 of the Constitution Act, 1982, otherwise known as “the notwithstanding clause.” Access to the “notwithstanding clause” would provide Aboriginal governments the power to “opt-out” of or suspend those provisions of the charter deemed impediments to self-rule. This led many supporters of the Native Women’s Association of Canada to reject the Charlottetown deal, fearing that some Aboriginal governments might try to call on Section 33 as a means of undercutting the gender equality provisions outlined in the charter. As the Native Women’s Association of Canada explained in 1991:

Considering that Native women’s organizations were excluded from participating in the constitutional negotiations that resulted in the Charlottetown Accord, and that several First Nations band councils had openly admitted that they were looking for ways to circumvent the obligations placed on their governments by Bill C-31, including through the invocation of essentialist arguments based on male-dominated interpretations of “culture” and “tradition,” the concerns expressed by the Native Women’s Association of Canada were not without merit. The result, unfortunately, has been a zero-sum contest pitting the individual human right of Indigenous women to sex equality against the collective human right of Indigenous peoples to self-determination.

Social Constructivism and Settler-Colonial Patriarchy

As the brief history depicted above indicates, those communities that have argued against the integration of reinstated First Nations women under Bill C-31 and/or the protection of gender equality provisions in the context of Aboriginal self-government have tended to rationalize their positions with reference to interrelated arguments grounded on claims to Indigenous sovereignty and cultural incommensurability. According to the sovereignty position, the exclusion of First Nations women reinstated under Bill C-31 is justified on the grounds that First Nations governments, not the colonial settler state, have the fundamental right to determine in accordance with their own cultures and political traditions regulations that govern membership in Indigenous communities. At face value, the sovereignty argument holds significant weight. In contexts such as Canada, where the legitimacy of Canadian sovereignty has been shown to rest on the problematic assumption that its claimed land base was
terra nullius
at the time of acquisition (discussed further below), it would indeed appear that First Nations ought to retain authority over the
rules governing membership in their communities. In practice, however, the sovereignty argument has been indelibly shaped by the sexist grammar of state Indian legislation over time. As Mi’kmaq scholar Bonita Lawrence explains: “Indian legislation in the Indian Act has functioned so completely—and yet so apparently invisibly—along gendered lines that at present the rewriting of Indian identity under Bill C-31 in ways that target men as well as women are viewed as intense violations of sovereignty, while the gendered violations of sovereignty that occurred in successive Indian Acts since 1869 have been virtually normalized as the problems of individual women.”
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According to Lawrence’s analysis, if the sovereignty argument were taken seriously by First Nations communities, it would compel such communities to critically interrogate the sexist attack on Indigenous self-determination that has resulted in the historical dispossession of thousands of Indigenous women and their offspring through the Indian Act’s outmarriage clause, instead of selectively limiting one’s critique to the imposition of Bill C-31 in 1985.

The cultural incommensurability position is the one that has fallen under the most scrutiny of social constructivist critics. It claims that respecting the gender equality rights of individual First Nations women, as stipulated, for example, under Section 15 of the Charter of Rights and Freedoms and Section 35 (4) of the Constitution Act, 1982, clashes with the fundamentally “collectivist” orientation of Indigenous cultures and political traditions. As the Assembly of First Nations stated to the standing committee on Aboriginal Affairs in 1982:

Under Benhabib’s model, the situation described above is clearly unacceptable. In fact, one could argue that it provides a textbook example of why preservationist demands for collective recognition should not outweigh the universal rights of individual group members. Further, it also appears to demonstrate
how the institutional accommodation of essentialist articulations of cultural identity through the allocation of unhampered self-government rights can facilitate the further exclusion and marginalization of a community’s less-powerful members, especially when this form of accommodation is not subject to the norms that guide deliberative democratic practice or adhere to baseline conditions such as egalitarian reciprocity, voluntary self-ascription, and freedom of exit and association.
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In particular, the reliance by many First Nation leaders and organizations on arguments stressing the incommensurability of liberal democratic and Indigenous cultural conceptions of citizenship seems to lend credence to these concerns. However, although I agree with Benhabib’s condemnation of these exclusionary practices as unjust, I nonetheless must challenge both her identification of the source as well as her prescriptive gestures toward a solution to these practices. I simply fail to see how developing a deliberative order that calls on the state to institutionally police a more open-ended, fluid, and contestable understanding of cultural identity through democratic deliberation can subvert the deeply entrenched relations of power at play here.

Benhabib’s anti-essentialist criticism includes two dimensions: it claims to be grounded on, first, an
empirical
understanding about the constructed nature of cultural identities, which she then, second, deploys in a
normative
argument in defense of gender justice for Aboriginal women and other marginalized members of cultural minorities.
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Indeed, I would argue that recognizing the social
fact
of cultural contestability is a necessary (although insufficient) condition for cultivating what most deliberative democrats posit as a just democratic order. In other words, what is convenient about the social constructivist position to the deliberative democratic project is that it justifies subjecting “the cultural” to the norms that guide deliberative conceptions of “the political”: that is, it renders cultural forms and practices subject “to appropriate processes of public deliberation by free and equal citizens.”
45
When viewed from this angle, it would appear that the very possibility of cultivating a truly democratic and emancipatory multicultural or multinational politics hinges on culture’s so-called fluid and therefore democratically negotiable nature.
46
However, as such scholars as Michael Hardt and Antonio Negri argue, the problem with this formulation is that it assumes that the oppressive relations of power under scrutiny operate in a very precise manner.
47
In short, the efficacy of anti-essentialist interventions such as Benhabib’s rests on the assumption
that unjust configurations of power are produced and maintained primarily through the production and naturalization of hierarchically ordered binary oppositions based on what appear to be fixed or nonnegotiable differences; differences between, say, male and female, black and white, gay and straight, colonizer and colonized. And indeed, in contexts where oppressive hierarchies
are
primarily sustained through these naturalized divisions, the affirmation of “hybridity and [the] ambivalences of our cultures . . . seem to challenge the binary logic of Self and Other that stands behind colonialist, sexist, and racist constructions.”
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But what does this strategic intervention have to say about situations where relations of dominance and subordination are neither primarily produced nor sustained through these essentialized binary oppositions?

I ask, because in the context of Indigenous women’s struggle for community citizenship rights, the binary logic that ought to be at the source of their marginalization is not readily apparent. There is no doubt that certain segments of the male Native elite have problematically seized the language of cultural incommensurability, tradition, and self-preservation to justify the asymmetrical privileges that they have inherited from the subjectifying regime of sexist misrecognition under successive pieces of Indian legislation since 1869, but the reification and misuse of culture in this case cannot be understood without reference to the colonial context within which it continues to flourish. “This constructivist viewpoint, while in some respects very useful,” writes Bonita Lawrence, “is also deeply troubling to many Native people.”
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For Lawrence, what is lacking in too many constructivist analyses of supposed Indigenous cultural essentialisms is a deep understanding of the complex web of oppressive social relations that anchor the Canadian state’s relationship with Indigenous nations, of which the gendered production and maintenance of essentialist identity formations constitutes only one. As a result of this relationship, adverse social indicators such as poverty, unemployment, substandard housing conditions, infant mortality, morbidity, youth suicide, incarceration, women as victims of abuse and sexual violence, and child prostitution are much more common in Indigenous communities than they are in any other segment of Canadian society, whereas educational success and retention, acceptable health and housing conditions, and access to social services and economic opportunity are generally far lower.
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These state-sanctioned conditions have made it difficult for some First Nations governments to provide an adequate system of support for the members they have now, let alone thousands of reinstated women and children. In fact, by
thrusting these disadvantaged members into the hands of the communities without rectifying the profound inequalities that structure the relationship
between
Indigenous peoples and the state, the federal government has simply served to aggravate the problem
within
these communities even further.
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The essentialist defense of certain First Nations’ gender exclusionary practices also cannot be understood outside of the context of the eliminatory logic of the state’s historical approach to dealing with its so-called “Indian Problem.” This logic is perhaps most forcefully exemplified in the federal government’s proposed
Statement of the Government of Canada on Indian Policy
in 1969—also known as the White Paper. As Peter Kulchyski’s recent work argues, the White Paper explicitly deployed a human rights framework of individual equality in an effort to do away with the collective Aboriginal and treaty rights of Indigenous nations.
52
In this case, formal legal equality was used by the state as a wrecking ball that threatened to undermine Aboriginal and treaty rights by unilaterally enfranchising First Nations individuals as Canadian citizens under the law while proposing to transfer reserve lands to First Nations communities as fee-simple holdings subject to Canadian property laws and the pressures of the capitalist market. This all to say that, when the Assembly of First Nations expressed concern over the threat of “individual rights overriding collective rights” during self-government negotiations in the 1980s and 1990s,
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this was not
solely
an expression of internalized sexism articulated in a patriarchal defense of custom and tradition, although for some it was unfortunately this too; it was also a conditioned response to the very real state proposal to eliminate First Nations as such.

It is also important to recall that the human right to equal treatment under the law was the rationale used to undermine the gendered violation of Indigenous sovereignty that resulted in the court challenges of Lavell and Bédard in the 1970s. Both court decisions used individual equality, as exemplified by the rights of Canadian citizenship enshrined in the 1960 Bill of Rights, to rule against the plaintiffs’ charge of gender discrimination via the Indian Act. Here I suggest that the emergent liberal rights apparatus of the Canadian Bill of Rights provided the plaintiffs with a legal
incentive
to address their concerns in a manner that was ultimately ill-suited to the task of both gender justice for Indigenous women and self-determination for Indigenous nations.