Strategies of Justice: Aboriginal Peoples, Persistent Injustice, and the Ethics of Political Action [1 ed.] 2018961576, 9780198833543

Table of contents :
Cover
STRATEGIES OF JUSTICE: ABORIGINAL PEOPLES, PERSISTENT INJUSTICE, AND THE ETHICS OF POLITICAL ACTION
Copyright
ACKNOWLEDGMENTS
TABLE OF CONTENTS
A NOTE ON TERMINOLOGY
Notes
CHAPTER 1: Introduction: Word Warriors and Political Action
1.1 Word Warriors
1.2 Political Philosophy and Political Action
1.3 Characterizing Persistent Injustice
1.4 Deliberation and Political Theorizing
1.5 Outline of the Book
Notes
CHAPTER 2: The Ethics of Political Action
2.1 Ideal Theory as Political Architecture
2.2 Political Action and Normative Permissions
2.3 Political Action and Self-Transformation
2.4 Ideals and the Unpredictability of Politics
Notes
CHAPTER 3: Deliberation and Political Strategy
3.1 Democratic Deliberation and Persistent Injustice
3.2 Canadian Law and Dominating Discourses
3.3 The Harms of Sincerity
3.4 Speaking Untruth to Power
3.5 Strategy and the Division of Labor
Notes
CHAPTER 4: Justified Lawbreaking
4.1 Law, Justification, and Permissibility
4.2 Procedural Circumvention and Electoral Strategies
4.3 Nullification and Deliberative Directness
4.4 The Costs of Armed Virtue
4.5 Legality, Permissions, and Disagreement
Notes
CHAPTER 5: Self-Care and Proportionality
5.1 Land Claims and Competition
5.2 Self-Help and Proportionality
5.3 Land Claims Again
5.4 Indirect Conflict and Political Contexts
5.5 Proportionality and Diverse Moral Interests
5.6 When Do the Permissions Cease?
Notes
CHAPTER 6: Envisioning the Future
6.1 Duties and Permissions
6.2 Ideal Theory and Political Prediction
6.3 Strategy, Political Action, and Anarcho-Indigenism
6.4 Aboriginal Traditions and Human Flourishing
6.5 Self-Determination and Unpredictability
6.6 Experimentation and Uncertainty
Notes
CHAPTER 7: Conclusion: Political Philosophy and Political Change
7.1 Permissions and Their Exercise
7.2 Political Theory and Political Change
7.3 Political Philosophy as Public Deliberation
Notes
BIBLIOGRAPHY
INDEX

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OXFORD POLITICAL THEORY Series Editors: Will Kymlicka and David Miller

STRATEGIES OF JUSTICE

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OXFORD POLITICAL THEORY Oxford Political Theory presents the best new work in contemporary political theory. It is intended to be broad in scope, including original contributions to political philosophy, and also work in applied political theory. The series contains works of outstanding quality with no restriction as to approach or subject matter. OTHER TITLES IN THIS SERIES

Immigration and Democracy Sarah Song Against Marriage An Egalitarian Defense of the Marriage-Free State Clare Chambers Civics Beyond Critics Character Education in a Liberal Democracy Ian MacMullen The Ethics of Immigration Joseph Carens Linguistic Justice for Europe and for the World Philippe Van Parijs Critical Republicanism The Hijab Controversy and Political Philosophy Cécile Laborde National Responsibility and Global Justice David Miller Disadvantage Jonathan Wolff and Avner de-Shalit Levelling the Playing Field The Idea of Equal Opportunity and its Place in Egalitarian Thought Andrew Mason The Liberal Archipelago A Theory of Diversity and Freedom Chandran Kukathas The Civic Minimum On the Rights and Obligations of Economic Citizenship Stuart White Reflective Democracy Robert E. Goodin Multicultural Citizenship A Liberal Theory of Minority Rights Will Kymlicka Deliberate Democracy and Beyond Liberals, Critics, Contestations John S. Dryzek Real Freedom for All What (if Anything) Can Justify Capitalism? Philippe Van Parijs

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STRATEGIES OF JUSTICE ABORIGINAL PEOPLES, PERSISTENT INJUSTICE, A N D TH E E T H I C S O F P O L I T I C A L AC T I O N BURKE A. HENDRIX

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Great Clarendon Street, Oxford, OX2 6DP, United Kingdom Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered trade mark of Oxford University Press in the UK and in certain other countries © Burke A. Hendrix 2019 The moral rights of the author have been asserted First Edition published in 2019 Impression: 1 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by licence or under terms agreed with the appropriate reprographics rights organization. Enquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above You must not circulate this work in any other form and you must impose this same condition on any acquirer Published in the United States of America by Oxford University Press 198 Madison Avenue, New York, NY 10016, United States of America British Library Cataloguing in Publication Data Data available Library of Congress Control Number: 2018961576 ISBN 978–0–19–883354–3 Printed and bound by CPI Group (UK) Ltd, Croydon, CR0 4YY Links to third party websites are provided by Oxford in good faith and for information only. Oxford disclaims any responsibility for the materials contained in any third party website referenced in this work.

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ACKNOWLEDGMENTS Any book of this kind is unavoidably the result of collective effort, carried out in conversation with others over a long period. Given the nature of this book, however—a non-Aboriginal scholar writing about Aboriginal political action—the caveat that usually concludes an acknowledgment section belongs at the beginning: all errors in this book are my own. The acknowledgments below should not be taken to indicate endorsement with the book’s methodologies or conclusions. Some of those listed have expressed agreement with most of the text, some have expressed agreement with parts and disagreement with others, and a few have expressed hesitations about the project as a whole. This seems to me appropriate, given the unavoidably uncertain nature of many of the questions the book considers. My thanks in advance to those future interlocutors who will identify the book’s errors and refine its ideas accordingly, to better hone our understanding of how to pursue justice in conditions like our own. The very earliest germ for what would become this book emerged during a year as a Visiting Faculty Fellow in the Centre for Ethics at the University of Toronto, and I would like to thank Melissa Williams for making the Centre a welcoming place, along with other visiting fellows including Xavier Landes, Dennis McKerlie, Pierre-Yves Neron, and Kristen Rundle. Early drafts of chapters were presented to audiences at Memorial University and the University of Guelph, along with conference panels at the annual meetings of the American Political Science Association, Midwest Political Science Association, and Western Political Science Association. My thanks to those who discussed the book materials in these contexts, including Aubin Calvert, Janine Clark, Carol Dauda, Gerald Doppelt, Michael Goodhart, Jeffrey Howard, Scott Matthews, Tad McIllwraith, Charles Mills, David Owen, Dimitrios Panagos, David Peritz, Toby Reiner, David Watkins, Julie White, Inez Valdez, and Peter Verovšek. There were others in these contexts whose names I did not record, so my thanks to them, and my apologies. I also thank members of the PDX Political Theory group including

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Acknowledgments

Nick Buccola, Chana Cox, Bill Curtis, Alex Sager, Les Swanson, and Andrew Valls. The list of those who read, discussed, or corresponded about chapters in progress includes Ali Aslam, Robin Barklis, Nick Buccola, Charles Campbell, Joe Carens, Simone Chambers, Simon Cotton, Glen Coulthard, Adam Dahl, Danielle Delaney, Nir Eyal, Kennan Ferguson, Desmond Jagmohan, Robert Jubb, Loren King, Brian Klopotek, Avery Kolers, Jacob Levy, Tad McIllwraith, Alison McQueen, Shmulik Nili, Brandon Morgan-Olsen, David Owen, David S. Owen, Robert Nichols, Scott Pratt, Vince Redhouse, Toby Rollo, Walter Ross, Douglas Sanderson, Jeff Spinner-Halev, Ron Stevenson, James Tully, Dale Turner, Tim Waligore, Melissa Williams, and Kerry Whiteside. Special thanks are due to those who were willing to read materials as the project neared its final form, usually on short notice: Robin Barklis, Deborah Baumgold, Kirby Brown, Gordon Christie, Ben Jones, Avery Kolers, Ben Laurence, Kelley McMinn, Alison McQueen, Shmulik Nili, Debra Thompson, Dale Turner, Andrew Valls, Tim Waligore, and Kyle Powys Whyte. My thanks as well to Will Kymlicka as OUP series editor for targeted comments on the near-final version of the manuscript. Past and present departmental colleagues at University of Oregon who read or engaged with the in-progress book include Deborah Baumgold, Erin Beck, Gerry Berk, Anita Chari, Craig Kauffman, Alison Gash, Kerrie Koesel, Joe Lowndes, David Steinberg, Will Terry, Debra Thompson, and Dan Tichenor. My thanks to the Native Studies faculty and broader Native Strategies group at the University of Oregon, including Gordon Bettles, Kirby Brown, Brian Klopotek, Kathy Lynn, Angie Morrill, Jennifer O’Neal, Kari Norgaard, Jeff Ostler, Scott Pratt, Leilani Sabzalian, Jan Smith, Lani Teves, and, at nearby Lane Community College, James Florendo. You have helped to make University of Oregon a wonderful intellectual environment to work on Native issues. Alison McQueen deserves special thanks for her friendship and support across multiple stages of this process. Her clear thinking, understanding of political dilemmas, and incisive feedback have made me a much better thinker, and have thereby improved this book in innumerable ways. My thanks to David Miller and Will Kymlicka for allowing this book to appear under the Oxford Political Theory banner. It is an

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honor to be part of this series. At OUP, Dominic Byatt has overseen this project with patience and insight, for which I am deeply grateful. Sarah Parker and Céline Louasli further facilitated the book’s progress, while Keerthana Sundaramoorthy and SPi Global managed the details of the production process itself. My thanks to Ojibway artist Mark Anthony Jacobson for permission to use the vibrant work that graces the book’s cover. The portrayal of ideal and non-ideal theory in Chapters 1 and 5 draws on “Where Should We Expect Social Change in Non-Ideal Theory?” Political Theory 41 (2103): 116–43, and I am grateful for permission to use those materials here. Early elements of some of the arguments here were suggested in other published works, though no direct text from them survives into this book. These include “Memory and Native American Land Claims,” Political Theory 33 (2005): 763–85; “Moral Error, Power, and Insult,” Political Theory 35 (2007): 550–73; “Political Theorists as Dangerous Social Actors,” Critical Review of Social and Political Philosophy 15 (2012): 41–61; “Context, Equality, and Aboriginal Compensation Claims,” Dialogue: Canadian Philosophical Review 50 (2011): 669–88; and “Historical Injustice, Rawlsian Egalitarianism, and Political Contestation,” Canadian Journal of Law and Jurisprudence XXVII (2014): 73–98. I thank, finally, non-academic friends and neighbors for reminding me that there are other things in life besides finishing a book. These include among others Jennifer Archer, Chris Chilcote, Rob Chilcote, Bret Davis, the five France brothers, Marvin Goodwin, Bryan Hendrix, Joe Hendrix, Kelley McMinn, Ann Olsen, and Jay Vroman, in addition to my siblings Scott, Barry, and Marla Hendrix and a wide range of further relatives and Coast Range community members. I dedicated a previous book to my mother. This one I dedicate to the memories of my father Harold Hendrix and my uncle Fred Hendrix, who did their best to keep me grounded in the world of physical labor and the changing seasons. They have my deepest thanks.

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TABLE OF CONTENTS A Note on Terminology 1. 2. 3. 4. 5. 6. 7.

Introduction: Word Warriors and Political Action The Ethics of Political Action Deliberation and Political Strategy Justified Lawbreaking Self-Care and Proportionality Envisioning the Future Conclusion: Political Philosophy and Political Change

Bibliography Index

xi 1 32 72 116 164 216 265 279 299

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A NOTE ON TERMINOLOGY Choices of terminology can sometimes matter a great deal in democratic deliberation, and it therefore seems necessary to address one of the book’s central terminological choices before it gets underway. Throughout, this book uses the adjective Aboriginal to refer to the first peoples of North America, coupled with a relevant noun— Aboriginal peoples, Aboriginal communities, Aboriginal scholars, and so on. This terminology is central to Canadian legal and political discourse, including the Constitution Act of 1982, where Aboriginal peoples are acknowledged as rights-holding entities. Since the bulk of the non-Aboriginal philosophical literature dealing with the politics of Aboriginal peoples in North America has arisen as a result of Canadian legal and constitutional debates over the past four decades, I have adopted this word choice throughout in hopes of increasing accessibility to that audience. Although this terminology is not widely used in the law of the United States, non-Aboriginal American readers are likely to be familiar with the terminology from these Canadian debates as well. The most natural alternative terminology is Native, which is widely used in many Aboriginal communities in an everyday way on both sides of the (purported) United States-Canada border,1 usually without any modifier such as American or Canadian. This use of Native represents my own everyday usage as well. I have set the term aside here, however, to increase accessibility to non-Aboriginal readers who are more versed in the legal terminology (see the discussion of my deliberative expectations in the book’s introduction). Other potential terminologies include First Nations (in relation to Canada), Indian (in relation to the United States and Canada’s Indian Act), and terms drawn from Native languages such as the Kanien’keha term Onkwehonwe.2 Each of these has slightly different resonances, and readers should consider whether the arguments made in the book would shift with the adoption of one terminology rather than another, since differing terminologies are rarely the same in all of their political and social implications.3 Where possible, I will use the names

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of specific Aboriginal communities and intellectual traditions, such as Anishinaabe, Haudenosaunee, or Nisga’a.4 I have avoided the term Indigenous in the book to avoid terminological overinclusion. Given its use internationally to refer to groups in very different parts of the world (e.g., Indigenous groups in African or Asian countries), use of this terminology might pull debate too far away from the specific challenges and political opportunity structures that Aboriginal peoples face in relation to the United States and Canada, the central topic of the book.5 In varying conditions, appropriate responses may be quite different, so that separate inquiries are necessary into the specific challenges faced by Indigenous peoples elsewhere.6 Those who know other cases well should think about what would or would not change in the book’s arguments with them in view.

Notes 1. Many Aboriginal peoples deny that the border between the United States and Canada concerns them in any way, because it was a border created without their consent that to severed many of their communities. This is the case with the St. Regis/Akwesasne Mohawk community, for example. For an exploration of refusing the border and broader claims of United States or Canadian authority, see, e.g., Audra Simpson, Mohawk Interruptus: Political Life Across the Borders of Settler States (Durham: Duke University Press, 2014). 2. For the latter term, see Taiaiake Alfred, Wasáse: Indigenous Pathways to Action and Freedom (Peterborough: Broadview Press, 2005), 19, 28, 32–33. 3. There are questions of conceptual ethics at stake here. See, e.g., Alexis Burgess and David Plunkett, “Conceptual Ethics I,” Philosophy Compass 8 (2013): 1091–1101, and David Plunkett and Tim Sundell, “Disagreement and the Semantics of Normative and Evaluative Terms,” Philosophers’ Imprint 13 (2013): 1–37. This is clearest for a term such as Onkwehonwe, which is intended to reclaim the capacity for selfdefinition in a language outside of English. See, e.g., Alfred, Wasáse, 32–33. The field of Anishinaabe Studies may be an especially fertile source for new (to English) conceptual tools in the future, given the broad range of scholars working within this linguistic tradition. For an overview of the field, see, e.g., Jill Doerfler, Niigaanwewidam James Sinclair, and Heidi Kiiwetinepinesiik Stark, eds., Centering

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Anishinaabeg Studies: Understanding the World through Stories (Lansing: Michigan State University Press, 2013). For specific examples of work that centers Anishinaabe terminologies and concepts, see, e.g., Leanne Simpson, Dancing on Our Turtle’s Back (Winnipeg: Arbeiter Ring Publishing, 2011) and John Borrows, “Seven Generations, Seven Teachings: Ending the Indian Act,” Research Paper for the National Centre for First Nations Governance (2008): 1–33. 4. I use the spelling Anishinaabe throughout the book, though many variant spellings of the term are in use. The term Haudenosaunee refers to the Six Nations of the Iroquois, who do not constitute a single nation, but rather a federation of allied nations. The Haudenosaunee peoples nonetheless form a shared community with a common intellectual tradition. The Nisga’a are a people of the Northwest Coast, in territory now claimed to be part of Canada. 5. Indigenous peoples has been kept as a broad and ambiguous category internationally, given the diversity of experiences it is intended to capture. For discussions of the international use of the terminology, see, e.g., Benedict Kingsbury, “ ‘Indigenous Peoples’ in International Law: A Constructivist Approach to the Asian Controversy,” American Journal of International Law 92 (1998): 414–57 and Alan Bernard, “Kalahari Revisionism, Vienna and the ‘Indigenous Peoples’ Debate,” Social Anthropology 14 (2006): 1–16. The current experiences and aspirations of indigenous peoples elsewhere in the world are often quite different from those of Northern American groups who also share this designation. See, e.g., the discussion of indigenous pastoralism elsewhere in the world in Scott Richard Lyons, “Actually Existing Indian Nations: Modernity, Diversity, and the Future of Native American Studies,” American Indian Quarterly 35 (2011): 294–312. 6. In some cases, there are reasons to suspect that indigeneity does not confer any rights for responding to injustice. This is especially so in the case of Fiji, where indigenous peoples already have powerful capacities to shape many political outcomes. For a nuanced evaluation, see, e.g., Dominic O’Sullivan, Indigeneity: A Politics of Potential – Australia, Fiji and New Zealand (Bristol: Policy Press, 2017), ch 8.

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CHAPTER 1 Introduction: Word Warriors and Political Action

Our word warriors Compete in Olympic language games Wrestling in forked tongues.1 - Dale A. Turner

This is a book about political action within conditions of persistent injustice.2 It will be concerned with the ethics of political action in both examining the kinds of political strategies that are normatively appropriate for those seeking to escape such conditions, and in examining the kinds of self-transformations that these strategies may bring about. It focuses throughout on the political action of Aboriginal peoples within settler societies such as the United States and Canada when they seek to change the laws and policies that currently shape their lives. Many of the questions that it considers are relevant to other groups within conditions of persistent injustice as well (e.g., for African Americans), but—as I will argue—different political circumstances shape political action in different ways, so that a generalized overview of the topic would sacrifice nuance and depth. Political action is hard work that requires often-ambiguous choices within social backgrounds that are resistant to change, and recognizing the texture of that action is possible only with attention to existing social structures and the avenues for political action that they allow. Aboriginal peoples within countries such as the United States and Canada remain in most instances politically and socially disadvantaged in ways that are difficult to square with any well-developed

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conception of justice. While these countries have highly developed arrangements of Aboriginal rights, in which Aboriginal groups have legal rights that differ in important ways from those held by other citizens, these systems are not always well-structured to achieve good outcomes, nor are they always well-motivated. These countries came about through invasion, made and then swiftly violated countless treaties, forced Aboriginal populations onto reservations, sought to assimilate Aboriginal people into non-Aboriginal culture through a variety of coercive means, and denied the value of Aboriginal plans and visions at every turn. Current policies remain in many ways the inheritors of this past. Centuries of domination have created political patterns that are difficult to break, and Aboriginal peoples within both countries often continue to feel themselves to be in a state of siege. While the United States and Canada have seen great improvements over the past five decades, members of these groups nonetheless remain relatively poor, culturally dominated, and profoundly vulnerable to reversals of policy. It is this context that sets the background for the book’s inquiries. The book hopes to communicate with three somewhat different audiences. At the broadest level, it hopes to speak to philosophers and political theorists who are interested in the ethics of political action as a basic normative topic, wherever that action may occur. What sorts of moral permissions and duties do those in conditions of persistent injustice have when seeking to improve their status, for example? Second, the book expects to communicate with philosophers and political theorists whose work focuses specifically on Aboriginal rights, for whom both the issues and the idioms are expected to be familiar. Third, and in many ways most importantly, the book hopes to be transparent to scholars from Aboriginal Studies and to Aboriginal political actors who may be less familiar with the literature and idioms of Anglo-American political theory, but who are intimately familiar with the questions of political action that the book examines. If the book’s arguments are ultimately not persuasive to those viewing them from this perspective, they are likely to be in need of repair. With this audience in mind, I have sought to be as transparent as possible when presenting arguments from AngloAmerican political theory and philosophy, by, for example, relying upon specific professional jargon as little as possible. The book will not always be as successful as I would wish in this regard, but I hope

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that it will at least provide an additional set of tools for continued deliberation about how justice is best pursued in conditions like our own. All audiences should know that I am not a member of an Aboriginal nation or community, and that the arguments here are intended only as my own. Non-Aboriginal readers, in particular, should not see Aboriginal claims for justice as weakened if they happen to be less than persuaded by my own formulations and judgments. The arguments here are intended to facilitate further deliberation about these complex political questions, and where they fail to do so, readers should think carefully about the kinds of arguments that they would find more persuasive instead. Readers from Anglo-American philosophy are encouraged to read works of Aboriginal political theory directly to gain a deeper sense of the issues discussed here, and to enter into engagement with these works in extended ways.

1.1 Word Warriors The approach of this book has emerged from engagement with the work of Anishinaabe philosopher Dale Turner, and it takes this work as a launching point for its investigations.3 Turner argues that Aboriginal rights and Aboriginal political action must be seen within their appropriate historical and social context, a context set in large part by persisting practices of colonialism, understood more specifically as mistaken practices and beliefs that have for a long time endangered the political lives of Aboriginal peoples and others. The shape of Aboriginal political action can only be understood within this contextual background, which requires that Aboriginal peoples adopt certain patterns of discourse and politics if they hope to be politically successful.4 Turner’s work thus gives central attention to problems of political context and political strategy, and these linked topics are central to the book’s method of proceeding.5 For Turner, the strategic engagement of Aboriginal political actors with the political institutions and discourses of colonial states is essential to the long-term project of escaping persistent injustice. Aboriginal scholars, political leaders, and activists must become “word warriors” if they are to successfully defend the rights and well-being of their communities against the continuing legacies of

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colonialism that are embedded within surrounding state institutions and other social structures.6 The practices of states must often be treated as obstacles to be navigated by Aboriginal efforts, rather than as mechanisms for the realization of justice: In the current relationship, Aboriginal peoples encounter uncompromising bureaucratic resistance to virtually every resource their communities require for their physical survival. The lesson that we have learned, and that history has shown Aboriginal peoples time and time again, is that even in the best of moral worlds, justice may demand a certain course of action but by no means guarantees it.7

Within this context of persistent injustice, “Word warriors ought to be intimately familiar with the legal and political discourses of the state, and therefore able to use them to assert, defend, and protect the rights, sovereignty, and nationhood of indigenous communities.”8 What matters for word warriors is not primarily communication for its own sake, but communication as a form of self-defense. Discourse and other forms of political action are necessarily undertaken in the shadow of power, and they take on particular inflections given the specific details that this background creates.9 “This imperative may be unjust,” Turner notes, “but our survival as independent and selfdetermining nations demands that we bow to it.”10 Aboriginal political and intellectual practice, on this account, must be careful, strategic, and eternally self-aware—always cognizant of its larger social context, and profoundly sensitized to its ultimate political task of grappling with state institutions.11 This method of contending with surrounding forces has deep roots within Aboriginal intellectual traditions, while requiring careful adaptation to the realities of colonial injustice: A [traditional Aboriginal] vision seeks understanding of the diverse landscapes in which one is inextricably immersed. The brutal reality is that these landscapes have changed drastically since the arrival of Europeans . . . . [C]olonialism has created other kinds of landscapes that our ancestors would have found incomprehensible.12

Turner focuses primarily on Aboriginal scholars and other intellectuals, and sees their task as responding to continuing colonial practices where they linger within state structures and those of other dominant social institutions. At the same time, they must be familiar

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with Aboriginal philosophical traditions and strongly attached to their communities, so that they understand what it is they are seeking to defend.13 Scholars must see themselves as part of a larger effort at escaping colonialism marked by substantial divisions of labor among many Aboriginal political actors: For word warriors to fulfil their responsibilities effectively, they will have to know their way around European intellectual traditions and know how these traditions have affected Aboriginal intellectual landscapes . . . . [T]heir intellectual labor will have to be useful. That is, the intellectual community will have to be part of a larger and more effective indigenous political machinery, one that is able to assert and protect the rights we believe we possess.14

Turner’s description of Aboriginal political and intellectual activity is thus a profoundly nonideal argument for political discourse and action within persistently imperfect social circumstances— those in which effective argumentation is extraordinarily difficult given established structures of power and intellectual presuppositions, in which dangerous landscapes must be navigated with the imperfect tools at hand.15 Turner’s work is focused primarily on the role of arguments about Aboriginal culture and nationhood within the legal discourses of the Canadian state and the broader patterns of public discourse associated with them. The set of concerns about appropriate political strategy in conditions of persistent injustice is more general, however, and the book therefore takes Turner’s argument as a launching point for an investigation of the moral context in which Aboriginal political claims must be made, and of the normative appropriateness of different political and intellectual strategies intended to respond to this social context.16 My focus will be on the action of Aboriginal political leaders and activists more heavily than on scholars, though the line between these groups is often fluid in practice, and scholars will sometimes take center stage as well. All three kinds of actors must act to navigate, contest, and, when possible, repurpose or reform the legal and political structures of surrounding states. Their political action is often quotidian and visible only to some state institutions, though at other times it rises strongly into political visibility. Political leaders and activists, like Aboriginal intellectuals, unavoidably serve as word warriors in their interactions with courts,

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parliaments, and the surrounding public sphere, with choices to be made that are often difficult, ambiguous, and deeply consequential for the communities that they seek to defend.17 The book seeks throughout to put questions of political strategy at the center of investigation, examining a range of ethical questions associated with combating persistent injustice. Chapter 3 will examine questions of political strategy that are quite close to those of Turner’s concern, with a focus on patterns of discourse in response to Canadian legal debates. The other chapters will extend investigations of this kind to further contexts and additional normative questions, but will retain throughout Turner’s central concern: that colonialism’s legacies channel patterns of debate and political action in strong directions, and that word warriors must navigate these carefully, with great self-awareness about the mix of benefits and potential dangers in what they undertake.

1.2 Political Philosophy and Political Action For political theorists and philosophers who are less familiar with Aboriginal rights and political action in practice, a somewhat different framing may be necessary, given the book’s focus on politics from the ground up rather than from the top down. The book will be interested in the difficult and relatively understudied question of appropriate moral strategy: what kinds of political, discursive, and social tools are open to Aboriginal peoples and others who find themselves in persistently unjust political circumstances? Is full honesty always the best policy, or is something else often appropriate? Are there tradeoffs between the interests of different actors that must be negotiated before political action can proceed, or should they be worked out later? These questions are considered in depth throughout the chapters to come, with a focus specifically on political actions that are intended to alter the laws or policies that lock patterns of persistent injustice in place, rather than actions intended simply to endure them. These are questions of obvious importance, yet they generally have not been central questions within Anglo-American political philosophy. Following the pioneering model of John Rawls, political philosophers often instead begin their work from the imagined position of a

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political architect, who seeks to construct the principles for the most just form of society that can be achieved given unavoidable human failings (e.g., certain weaknesses of will) and the operational requirements of institutions. This approach often begins with basic presumptions about the goals that social institutions should pursue, basic kinds of protections that individuals need to live satisfactory lives, basic assumptions about human moral psychology, and so on, and then tries to develop a full and systematic conception of a just society as a conclusion from these beginnings. There are plausible reasons for this approach: it promises to help in overcoming unreasoned attachments to the existing political world, it promises to set goals that can be pursued over the long term, and it aspires toward a common political language in which more everyday kinds of debates can be discussed.18 Approaches of this sort often seek to answer multiple questions of political philosophy at once, and to channel the character of political debate in strong ways going forward: one first envisions the structure of an ideal political world and then deals secondarily with the question of how it can be brought about. This style of work will be most familiar to many of this book’s political philosophy readers—even those who have concerns about this approach—and I will have much more to say about it in Chapter 2 and Chapter 6. The book’s framing discussion of persistent injustice and colonialism poses the obvious question of what it might mean for such injustice and colonialism to end—to know in detail what such a world would look like, so that we can evaluate how far from it we may be. It would obviously be ideal to have a theoretical model of this kind for conceptualizing the full meaning of justice for Aboriginal peoples, especially if it were one that both Aboriginal and non-Aboriginal people could agree upon. Such an approach would articulate in a clear way the political status of Aboriginal sovereignty, governance, culture, identity, and so on, in relation to a broader theory of how human societies ought to be organized and relate to one another. There have been many attempts to do something like this, which include most centrally the work of Will Kymlicka, along with others writing with this target in mind.19 This is essential work, and I will have some things to say about the potential content of such a theory in the next section. Arguments of this kind have sharp limits, however, for evaluating the political choices of groups suffering under conditions of persistent

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injustice. Political theorists working in the mode of ideal theory almost necessarily imagine themselves as a kind of political architect, viewing society from above and imagining how it should become. In some cases, this can become an intellectual distraction: because ideal theories involve many controversial questions of the kind that is intrinsically engaging to philosophers (and that may not require deep empirical study), they are easy to return to again and again. Even if those involved do not imagine what they are doing as any sort of intellectual game, it can inadvertently become one. At the same time, a focus on ideals to be realized calls attention away from those who are engaged in the hard work of daily politics, and to the kinds of choices that badly structured social orders require disadvantaged groups to undertake. This book approaches political questions from the social location of these political actors themselves (in this case, Aboriginal peoples), and asks how political and social life is experienced from this more ground-level view. Seen in this light, many aspects of our current societies do not seem easily changeable, particularly when they have been in place for a very long time already. Given the tendency of entrenched social forces to defend their own advantages, a focus on political action calls attention to the kinds of options that are available to disadvantaged social groups in seeking to improve their conditions.20 Existing political and social structures generally require that political efforts be channeled in certain directions, yet disadvantaged actors must often seek changes to many of these channels themselves.21 These channels shape the kinds of action that are possible within them: they thus shape, as well as constrain, in ways that are not always obvious or intuitive. Approaching political life from the point of view of political actors themselves helps to reveal the continuous importance of questions of this sort; when we cannot simply imagine that political and social change take place automatically in the presence of compelling reasons, we are required to think seriously about the means through which it might ultimately be secured. I will argue that a wide variety of Aboriginal political strategies are acceptable in conditions as they exist, which decontextualized forms of normative analysis might disallow. In conditions where legal institutions require certain kinds of arguments that Aboriginal leaders could not endorse on their own reasons, for example, Aboriginal communities may find themselves torn between hopes of open and

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frank political action and the need to behave in more strategic fashion. When existing institutions lock into place patterns of injustice, it will often be morally permissible (if not always prudent) to adopt means that would otherwise be morally inappropriate. I will focus specifically on permissions for forms of political action that are normatively available to those facing persistent injustice, but not permissible for political actors more generally.22 These normative permissions constitute mechanisms for responding to specifiable features of the unjust political terrain. As outlined in the chapters to come, these will include permissions for deeply strategic and sometimes straightforwardly deceptive speech within deliberative forums (Chapter 3); permissions to violate existing law through multiple means (Chapter 4); permissions to pursue self-help before aiding other groups who also face injustices (Chapter 5); and permissions to expansive forms of political experimentation in shaping the conditions of future generations (Chapter 6). These permissions are not, of course, simply open-ended: they are calibrated to the goal of escaping persistent injustice instead, and shaped accordingly. The questions that such permissions create often receive only limited attention by those who engage in ideal theorizing, and the relationship between such political action and the ideal theories themselves is often deeply indeterminate. Simply as an intellectual matter, philosophical inquiry should have much more that is systematic to say about political action by the unjustly disadvantaged than it actually does (see Chapter 2). There are important questions here to be answered, which involve different audiences than the alreadypowerful legislators or judges that many kinds of political philosophy address. Moreover, attention to the realities and difficulties of political action is central to recognizing the political choices made by Aboriginal peoples, and to engaging with these choices deliberatively. I seek to take an approach in the book that grapples more directly with legacies of colonialism and with the complexities of our real political practice. Many of the concerns about patterns of persistent injustice evaluated in this book apply to many more groups beyond simply Aboriginal peoples, whether in North America or elsewhere. The most obvious example in the United States is found in the conditions of many African American communities, who, in similar ways, continue to experience American institutions as mechanisms of

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Strategies of Justice

dominance rather than of protection. Injustice is by no means limited to only to the experience of Aboriginal peoples. Yet patterns of persistent injustice can differ in important ways, and a book that tries to evaluate questions of this kind purely in the abstract or in a broadly capacious way is likely to miss much of the texture and nuance of the specific questions facing groups under particular conditions. Perhaps more importantly, a book of that kind would be less able to engage with any of those whose politics it discusses in any strong way. While it would be too simple to say that political domination is always created by monologue, it does seem clear that debates about the politics of the unfairly disadvantaged should be carried out in conversation with those concerned whenever possible. By focusing in detail on the political contexts and dilemmas of Aboriginal peoples, my hope is that those who know little about Aboriginal politics will come to understand it better and, therefore, respond to Aboriginal political efforts in more fruitful ways, while those who experience that politics directly will have additional discursive tools for explaining the character of their efforts.

1.3 Characterizing Persistent Injustice Non-Aboriginal political theorists are likely to want some sense of what justice would look like, since it is difficult to determine when persistent injustice ends without such a standard. While I will argue in Chapter 6 that there remains a great deal of uncertainty about details, the basic normative goals associated with Aboriginal rights seem to have relatively broad agreement: as communities that are the inheritors of different cultural traditions, Aboriginal groups should be able to make political decisions on their own terms in a variety of circumstances. There are basic issues of human flourishing involved here, even if colonial histories, practices of treaty making, and other matters are bracketed. Given the unavoidably collective nature of democratic and other forms of decision-making, lives are likely to go better on all sides if patterns of political authority reflect different historical experiences and differing cultural valuations. There thus seems to be wide agreement that Aboriginal peoples should have meaningful rights of self-determination; the difficulty is with working out the longer-term details of this model.23

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We do not need a robustly detailed version of what ideal social institutions should look like to recognize that Aboriginal peoples in both the United States and Canada remain insufficiently protected by these countries.24 The focus of this book will be on persistent injustice, rather than on historic injustice, but the unquestionably domineering histories of these countries continue to shape the lives of Aboriginal peoples in a variety of ways. In both countries, higher than average proportions of Aboriginal people living in Aboriginal communities remain poor and often fare badly on multiple indicators of quality of life, with Aboriginal communities often more liable to violence, more affected by suicide, and more socially splintered than is typical of nearby non-Aboriginal populations. These are outcomes that can be traced in specifiable ways to past state policies, which there have often been only limited efforts to overcome. All readers of this book will be aware in broad terms of the violence associated with European incursions into North America, and to the forced migration of peoples, confinement into small patches of territory, and the daily infringements of Aboriginal choice that these processes involved, to say nothing of sporadic attempts at outright physical genocide.25 Less familiar for many readers may be the complex conditions that this history has created for Aboriginal peoples in the present, which stem from the dense and often baroque legal structures associated with these processes, many of which continue to persist into the present. In both Canada and the United States, for example, Aboriginal peoples remain prohibited from making many decisions about land ownership within their boundaries, or exercising police powers over their own members, or protecting their own members against sexual assault by outsiders, or taxing many economic activities within their territories, or regulating environmental damage to their communities, or ensuring that they have clean water, or managing the dispersal of their own resources. All of these are problems that can occur in relation to territories that are legally recognized as Aboriginal reservations, which thus retain many elements of the de facto prison spaces that they once were. Moreover, the simple retraction of this strange field of awkward legal strictures would often remain insufficient to facilitate Aboriginal flourishing. Because these reservations were created by historical processes that often had little concern for Aboriginal well-being, these reserved territories are

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often ill-suited to being long-term homelands, because they are too small, territorially malformed, or leave out ecological or other resources necessary to the flourishing of those in these territories. While it is sometimes suggested that Aboriginal territories within the United States and Canada are strongly self-governing, this in fact represents an aspiration of what the future may hold much more than a lived reality. In most instances, indeed, reserved Aboriginal territories remain much more intrusively governed than neighboring non-Aboriginal territories. Moreover, the historical processes that worked to blockade or paternalistically “mentor” Aboriginal efforts at self-rule have often left Aboriginal political structures ill-suited to make use of political authority when they manage to reclaim it. Both Canada and the United States have a history of half-hearted attempts to facilitate Aboriginal self-government, almost always impatiently and on the cheap, with resources that are far too limited to repair much of the damage already done. Rebuilding spaces for political decision making by people devastated by colonial harms requires additional resources to make up for past deprivation of resources and training, but both countries have continued to offer much less, with what does come often attached to limitations that have little to do with the flourishing of Aboriginal people themselves. In the past, both countries often “recognized” self-rule opportunistically, as a way to legitimate land transactions or other kinds of actions on Aboriginal lands through agreements with handpicked leaders of their preference,26 and this continues to occur with sufficient frequency to undermine the legitimacy of Aboriginal governments when they become established. The reality, then, is that Aboriginal political units are rarely structurally able to self-govern in a substantial sense in either country. They often remain institutionally unable to provide effective spaces of freedom and a shared way of life in practice. At the same time, I do not want to underplay either the changes that have happened since the 1970s in both countries or the degree to which many Aboriginal communities in both contexts are slowly rebuilding for themselves meaningful spaces for shared political life. In the 1970s, the United States formally turned to self-determination as a policy, with complex but significant impacts on government contracting, inter-bureaucratic relations, and Aboriginal governance

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that continue to build in force over time. Moreover, the ad hoc and unexpected emergence of tribal gaming as a legal possibility in the United States has allowed a few tribes to gain substantial wealth, and a much larger number to develop independent revenue streams that are not beholden to Federal or other transfers.27 Continuing treaty processes in parts of Canada have had somewhat similar impacts in providing revenue streams to some Aboriginal nations, while the inclusion of Aboriginal rights within Canada’s Constitution Act of 1982 have opened up further spaces for the development of selfgoverning capacities. Stated briefly, there are enough Aboriginal success stories to show that Aboriginal self-governance can work, and that the model of minority cultural rights associated with it is viable when practiced well. Aboriginal peoples can flourish when the right structures are in place, even if the states ruling them have few motivations to actually bring these about. These changes mean that conditions in both the United States and Canada are substantially improved from what they once were, and that there are political pathways in place by which continued moves to overcome persistent injustice are possible. At the same time, there is no automatic trajectory by which these countries will continue to improve over time. Rather, continued escape from conditions of persistent injustice is likely to occur primarily because of the political action of Aboriginal leaders, activists, and ordinary individuals themselves. Indeed, there are no obvious political forces that would prevent backsliding away from those improvements that have occurred, such that Aboriginal leaders must often carefully defend gains made even as they seek further improvements.28 Readers should hold this picture of improving but fragile and still oftendamaging conditions in mind while reading the book, since it can help with conceptualizing the range and kind of permissions that require evaluation. In general, one can say that the more serious the persistent injustices to be overcome, the more extensive the permissions for political action by those who face them. The permissions for Aboriginal communities facing legally sanctioned genocide in nineteenth-century California, for example, were necessarily very expansive, as were those of groups facing forced relocation and reservation imprisonment.29 The kinds of permissions I will evaluate here are thus calibrated to my interpretation of contemporary laws and policies as still profoundly unjust, but which have a number of

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features that deserve to be retained and deepened as well. Those who disagree with this evaluation should consider what their own interpretations of current circumstances might entail instead.

1.4 Deliberation and Political Theorizing The book is intended as a deliberative act within our existing social context, which sets some parameters on the way that the text proceeds. As indicated by the dual beginning points of the book, there are reasons to expect that readers from Anglo-American political philosophy and readers from Aboriginal Studies will approach the book from within differing discourse communities. It is thus essential to be as clear as possible about the deliberative intentions of the text, and the ways in which this shapes its inquiry. Given the importance of addressing Aboriginal readers in conversations that concern Aboriginal rights, I have sought to be as accessible as possible to scholars approaching the book from within Aboriginal Studies, though there are likely to be limits on this accessibility as discussed below. With this in mind, I have sought to be as transparent as possible when presenting arguments from non-Aboriginal political theory and philosophy, by, for example, limiting specialized language where possible. I have also sought to draw on illustrative examples that will be familiar to readers from Aboriginal Studies, who are likely to have a dense sense of the complexities, ambiguities, and on-the-ground realities that are not conveyed in the text itself. It is my hope that the book will be accessible to at least some nonacademic Aboriginal audiences as well, since the relevant conversation is a broader one than simply the halls of the academy. For these reasons, references to specific non-Aboriginal political theorists and detailed discussions of ongoing philosophical controversies have been kept to a minimum.30 The aim throughout is to facilitate transparency about the alreadycomplex topics that the book addresses. At the same time, it is important to be clear about my positionality in writing this book, and about its primary anticipated audience. As I noted earlier, I am not a member of an Aboriginal community or an insider to any Aboriginal intellectual tradition. Rather, my training was in Anglo-American political philosophy, and that continues to

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structure my thinking and approach to Aboriginal political action.31 Because they reflect my tools for thinking, the book relies throughout on the intellectual tools of Anglo-American political philosophy, rather than on Aboriginal intellectual frameworks themselves. This will inevitably lead to instances in which concepts from Aboriginal philosophical frameworks would lead to conclusions of different texture than those outlined.32 In most cases, I hope that this will lead to few deep substantive differences, but readers will have to decide. Moreover, while I have been studying and writing about Aboriginal issues for a decade and a half, I have not experienced first-hand the consequences of persistent injustice familiar to most Aboriginal readers. This will, at times, lead to descriptions that fail to capture with sufficient vividness the character of given political failures (e.g., in relation to criminal law, as described in Chapter 4), and will no doubt lead to errors of judgment in many argumentative locations. Readers from Aboriginal Studies should keep this positionality in mind going forward. Given the series in which this book appears and its style of argumentation, I anticipate that most readers will be non-Aboriginal political philosophers working within the Anglo-American intellectual tradition. The book has adopted several deliberative strategies to facilitate readership by those portions of this audience that have limited knowledge of Aboriginal politics. Perhaps most importantly, I have sought to keep the portrayal of Aboriginal politics relatively streamlined by focusing on general types of political situations, rather than on specific cases in highly detailed ways. The book is for this reason likely to feel somewhat schematic to those who know specific cases well, and they are invited to fill in details where relevant, to better judge whether the analysis would change with them in view. I have sought, similarly, to minimize reference to Aboriginal scholarship that is not directly discussed in the text. Non-Aboriginal readers should keep in mind that the scholarship in Aboriginal Studies is much more extensive than it may appear from reading this book alone, with patterns of depth that can barely be conveyed here. The book’s interest in communication with non-Aboriginal political philosophy has shaped its substantive arguments in important ways, and readers from Aboriginal Studies should be aware of this while proceeding. Perhaps most importantly, the book has focused

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Strategies of Justice

on persistent patterns of settler-state failure, while leaving in place the presumption that settler-state legal and procedural structures— those of Canada and the United States—are binding on Aboriginal peoples in the absence of deep and specifiable substantive injustices.33 Given dominant presumptions among non-Aboriginal political philosophers about the functional purpose and justification of states, specific instances of state failure are likely to prove more persuasive than arguments about the binding force of historical treaties or unjust modes of original political incorporation.34 An argument in favor of inherent forms of Aboriginal sovereignty could thus easily swamp discussion of the details of current injustices.35 Thus, the book seeks to show that even if basic state claims to political authority are granted, the persistent injustices faced by Aboriginal peoples are sufficient to open up a great deal of normative space for strategic political action, given that legal authority is justified only by its capacity to secure justice for those within its purview and that these states have persistently failed to pursue this.36 Readers from Aboriginal Studies might treat the text as an alternate deliberative path toward arguments for the self-determination of Aboriginal communities culminating in sovereignty.37 Insofar as Aboriginal peoples have claims to a legal existence fully separate from these states, the normative scope for political action described here will broaden accordingly.38 One of the book’s central terminological decisions also requires discussion in this context. This is the terminology of “permissions,” which has already appeared several times in this introduction, and which is central to the book as a whole. The book argues throughout that those facing conditions of persistent injustice have normative space to adopt forms of political action that are not normatively open to other political actors, in ways that are closely calibrated to the injustices they face. I refer to this additional moral space using the Anglo-American philosophical terminology of “permissions.” The term is not intended to suggest that Aboriginal peoples somehow require the permission of settler societies to pursue a more just future for themselves.39 Rather, the term refers to a general category of actions that individuals or groups are able to take without acting wrongly toward other people. Permissions are areas in which one is free to undertake certain kinds of action if one thinks best, or to refrain from doing so if this seems appropriate.40 Because those who

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face persistent injustices have good claims to escape their conditions, they have increased scope in the political choices open to them in responding to these injustices. The chapters to come, for example, will outline permissions held by those facing persistent injustice to speak untruths to state institutions, to circumvent state political procedures, and to engage in armed blockades of state agents, among other things. I will argue for specific ways of understanding the origin and limits of those permissions. Readers approaching the book through the lens of Aboriginal philosophical frameworks may have alternative ways of conceptualizing this notion, and I encourage them to consider whether or how the arguments here might change with those in view. The book’s intention is, to the degree possible, to provide some additional tools for common dialogue between Aboriginal and nonAboriginal readers. For Aboriginal readers, I hope that the book will provide some additional ways of framing particular kinds of political arguments or otherwise communicating with audiences who may remain difficult to reach, as well as some tools for evaluating the costs and benefits of particular political strategies for Aboriginal communities themselves. At the same time, the book is intended to help non-Aboriginal readers recognize the normative appropriateness of decisions by Aboriginal scholars, political leaders, and others to serve as word warriors in conditions as we know them, and conditions as they are likely to be. Because this is a book written in conditions that continue to be shaped by colonial presumptions that are often difficult to recognize, there are unavoidable dangers that its arguments may go amiss in multiple directions. Non-Aboriginal readers should thus remember that the arguments offered here are my own, and that they are not intended to speak on behalf of Aboriginal peoples themselves. If the arguments here are not persuasive, I encourage non-Aboriginal readers to look more deeply into these issues and the work of Aboriginal scholars themselves, and to think carefully about what better arguments might look like in these conditions of persisting injustice.

1.5 Outline of the Book Chapter 2 is oriented primarily to the expectations of AngloAmerican political philosophy, so Aboriginal Studies readers may

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prefer to bypass this chapter in favor of later chapters. In Chapter 2, I outline the broad ethical questions surrounding the adoption of particular political strategies by social actors facing conditions of persistent injustice. Examination of the ethical choices available to those enduring persistent injustice does not form a central theme within Anglo-American political thought, which seems odd given the normative importance of such injustice. The chapter begins with a discussion of ideal theory as conceptualized by John Rawls, to examine some of the ways in which this method of proceeding may make it difficult to envision questions about the ethics of political action. The chapter then turns to two distinctive kinds of ethical questions. First, it examines the normative permissions that are available to those suffering from injustice, arguing that they will often have more extensive permissions for political action than others do, where, for example, transparency of deliberative efforts, or law-abidingness, or other kinds of political expectations are involved. Second, the chapter examines the complex relationship between means and ends, and the potentially problematic ways in which particular political strategies may transform those who adopt them. It argues for careful attention to the political opportunity structures within which political decisions must be made when examining the kinds of transformations that may occur to those who pursue strategic choices. It closes by returning to many of the ambiguities of ideal theory with respect to envisioning Aboriginal political futures, and the unavoidable questions of judgment these ambiguities raise about when specific strategies are or are not permissible. Chapter 3 focuses on the question of deliberative transparency in Aboriginal political action, with a focus on Canadian legal debates. Existing states often require Aboriginal claimants to frame their goals in specific ways when pursuing political change through legal or political processes. Claims for political authority, for example, often must be framed as claims of land ownership and prior occupancy within Canada, simply because the established structures of law demand this, regardless of the kinds of justifications that Aboriginal actors might prefer to offer instead. Thus Aboriginal actors, if they are to succeed politically through these channels, are often required to present their moral claims in ways that are less than fully transparent, or that may even misrepresent their considered

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judgments in profound ways. Are discursive strategies of this kind morally permissible, and if so, in what sort of cases and under which limits? The chapter argues that they are generally permissible when necessary to protect important moral interests or to improve the functioning of deliberative institutions over the long term. The chapter also argues, however, that close engagement with state institutions can threaten the political judgment of Aboriginal leaders who undertake it, so that there is an important role for other members of Aboriginal groups to continually remind them of these dangers and to evaluate their political proposals carefully. Chapter 4 extends the discussion of strategic political action to questions of lawbreaking, drawing on examples from both the United States and Canada. Law is intended to help us secure justice, but it often falls short of these aspirations. While many philosophical arguments defend civil disobedience and other intentionally visible ways of violating existing law, they do not commonly consider methods of illegal action that seek to remain invisible and unrecognized. This chapter considers as a hypothetical case violations of laws surrounding political campaigns, in which an Aboriginal people takes illegal steps to support a candidate experienced in Aboriginal policy and sensitive to their concerns. It argues that illegal actions of this kind would be morally justified when necessary to protect important moral interests, despite the political dangers to those who might attempt such strategies. In its final section, the chapter considers a more transparently visible kind of illegal strategy: armed resistance to state agents at the border of a reservation or land claim area. It argues that actions of this kind often allow for more direct and uncompromised forms of communication, and promise to open space for political discourse that is not so strongly shaped by state institutions. Nonetheless, actions of this sort are likely to be very difficult to sustain for long, and to be harmful to many kinds of community goods, so that they are best understood as a political strategy to be used occasionally and carefully. Chapter 5 examines the question of competition among the choices and moral interests of the unjustly disadvantaged themselves. As should be obvious, Aboriginal peoples are not the only unjustly disadvantaged political actors in the world, and, in many cases, pursuing an improvement in the condition of one set of actors can collaterally worsen the circumstances of others who are also in

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difficult conditions. Aboriginal peoples who seek increased material resources may find themselves in competition with other groups for an artificially limited supply, for example. Are groups in this instance required to pursue relationships of alliance with other disadvantaged actors to increase that supply for everyone or are they instead allowed to pursue assistance to their own members first of all? Although it is a troubling conclusion, this chapter argues that worse-off social actors can often adopt methods that blockade the efforts of others who are also unfairly disadvantaged, or even worsen their position. While they have an obligation to attempt alliances with other groups of the disadvantaged when reasonable, this will not always be possible to secure, and the costs of attempting it will sometimes be excessive. The chapter argues that self-help, like other political actions, must be taken with concerns about proportionality in mind: Aboriginal peoples and other disadvantaged social actors should always carefully weigh the impacts of their choices on others who are also disadvantaged, and sometimes avoid acting when those impacts are especially severe. Chapter 6 turns to the question of appropriate specificity in envisioning long-term political goals from conditions of persistent injustice. How utopian a vision should Aboriginal actors have when they consider the goals they hope to achieve, and what role should Aboriginal tradition as currently understood play in these decisions? Should Aboriginal political theorists, for example, attempt to reach a very clear and highly detailed portrait of the alternative kind of political order that they seek? I argue that there are reasons for wariness here, given the possibility of forming political blueprints or roadmaps that are unable to be realized given the political world as it is or as it is likely to be. In the meantime, these visions may lead those who hold them to overlook certain kinds of hard proximate decisions. The chapter relatedly considers the role of current understandings of Aboriginal traditions, suggesting that colonialism’s damage makes it unwise to rely too heavily on these traditions as they are currently interpreted when envisioning the flourishing of future people. The chapter argues for self-consciously open-ended and protean visions of the future that make vivid certain goals and aspirations, rather than the adoption of clear blueprints that aspire to be realized directly in the world. In particular, it argues for regarding utopian visions as akin to literary works, which are intended to

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open the political imagination without committing it to specific future outcomes. The brief conclusion restates, in short form, the portrait of politics that emerges from the book as a whole, and it sketches again the circumstances faced by Aboriginal word warriors and the moral choices most reasonably open to them. The conception of the political future that emerges from the book as a whole is in many ways an incremental one, channeled by the past and continually shaped by the parameters of non-Aboriginal institutions. Yet it is also a future about which much remains yet to be determined, and where Aboriginal peoples and those non-Aboriginal people who wish to move past colonialism can find many choices yet to be made. As I noted earlier, the arguments here are not intended to “win” a particular set of debates, but to provide further intellectual tools for thinking about the ethics of political action and appropriate responses to persistent injustice in the relations between Aboriginal peoples and the states that now claim to protect them. Political deliberation and normative reasoning are difficult work, and best done in conjunction with others. This book represents one extended proposal among others for thinking about Aboriginal political efforts in conditions as we know them. There are other ways of thinking about political action beyond those outlined here, and readers should consider which alternatives they might find most plausible. Non-Aboriginal readers, once again, are reminded that the arguments offered here are my own and are not intended to speak on behalf of Aboriginal peoples themselves. If the arguments here are not persuasive, I encourage non-Aboriginal readers to think carefully about what arguments they might find more persuasive, and to seek to articulate them as alternatives in conversation with those who face these injustices directly.

Notes 1. Dale A. Turner, This is Not a Peace Pipe: Towards a Critical Indigenous Philosophy (Toronto: University of Toronto Press, 2006), 1. The terminology of “word warriors” draws on Gerald Vizenor, as, e.g., in The Trickster of Liberty: Native Heirs to a Wild Baronage (Norman: University of Oklahoma Press, 2005), 18, which Turner cites at 71. See

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2.

3.

4.

5.

Strategies of Justice also Vizenor’s invocation of Magritte’s “this is not a pipe” in the context of his Manifest Manners: Narratives on Postindian Survivance (Lincoln: University of Nebraska Press, 1999), 18. There is a level of both playfulness and inter-Anishinaabe conversation running through Turner’s work that I do not try to capture here. My use of the term “persistent injustice” has many affinities with Jeff Spinner-Halev’s use of the term “enduring injustice” in Spinner-Halev, Enduring Injustice (Cambridge: Cambridge University Press, 2012), 6–12, 56–84. See also Jeff Spinner-Halev, “From Historical to Enduring Injustice,” Political Theory 35 (2007): 574–97. I have used different terminology than Spinner-Halev because his project is framed through the literature on historic injustice, and continues to have resonances with that literature that are potentially distracting here. SpinnerHalev is concerned with the continued effects of “radical injustices” of the kind that historically occurred to Aboriginal peoples, and with the downstream effects that these continue to have on Aboriginal communities, especially in terms of historical memory. I am less interested in historical memory or the character of past injustices in this book. Spinner-Halev’s work also focuses on just outcomes more heavily than on the ethics of political action. Given the disanalogies between our projects, it has seemed best to adopt a different terminology here. Spinner-Halev’s work has nonetheless played a substantial role in my own thinking about persistent injustice. Turner, This is Not a Peace Pipe. Turner used the spelling “Anishnabi” throughout his book, but Anishinaabe is now a more commonly used spelling. Many variant spellings of the term remain in use within communities using this broad self-designation. In many communities, the plural form of the term is written as “Anishinaabeg” or “Anishinaabek,” which I have forgone to minimize confusion by non-Aboriginal readers. Turner, This is Not a Peace Pipe, 58 invokes what he calls “Kymlicka’s constraint” from Will Kymlicka, Liberalism, Community, and Culture (Oxford: Clarendon Press, 1989), 154: “For better or worse, it is predominately non-Aboriginal judges and politicians who have the ultimate power to protect and enforce Aboriginal rights, and so it is important to find a justification of them that such people can recognize and understand.” Turner argues that word warriors must keep this constraint in mind throughout their political action. The book has emerged from engagement with many other works by Aboriginal scholars and authors as well. These include Vine Deloria, Jr., Behind the Trail of Broken Treaties (New York: Dell Publishing, 1974); Vine Deloria, Jr., God Is Red: A Native View of Religion (Third Edition) (Golden: Fulcrum Publishing, 2003); John Borrows, Recovering Canada:

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6. 7. 8. 9.

10. 11.

23

The Resurgence of Indigenous Law (Toronto: University of Toronto Press, 2002); John Borrows (Kegedonce), Drawing Out Law: A Spirit’s Guide (Toronto: University of Toronto Press, 2010); Taiaiake Alfred, Peace, Power, Righteousness (Oxford: Oxford University Press, 1999); and Taiaiake Alfred, Wasáse: Indigenous Pathways to Action and Freedom (Peterborough: Broadview Press, 2005). Among the multitude of others are Robert A. Williams, Linking Arms Together: American Indian Visions of Law and Peace 1600–1800 (Oxford University Press: New York, 1997); James Youngblood Henderson and Russell Lawrence Barsh, The Road: Indian Tribes and Political Liberty (Berkeley: University of California Press, 1980); and Douglas Sanderson, “Redressing the Right Wrong: The Argument from Corrective Justice,” University of Toronto Law Journal 62 (2012): 93–132. Works that became important to the project after it was more fully developed include Audra Simpson, Mohawk Interruptus: Political Life Across the Borders of Settler States (Durham: Duke University Press, 2014); Glen Sean Coulthard, Red Skin, White Masks: Rejecting the Colonial Politics of Recognition (Minneapolis: University of Minnesota Press, 2014); Leanne Simpson, Dancing on Our Turtle’s Back: Stories of Nishnaabeg Re-Creation, Resurgence, and a New Emergence (Winnipeg: Arbeiter Ring Publishing, 2011); and, as the book was nearing its final revisions, Leanne Betasamosake Simpson, As We Have Always Done: Indigenous Freedom Through Radical Resistance (Minneapolis: University of Minnesota Press, 2017). Turner, This is Not a Peace Pipe, 7–11. Turner, This is Not a Peace Pipe, 78. Turner, This is Not a Peace Pipe, 95. Turner, This is Not a Peace Pipe, 73. Turner argues that traditional Aboriginal philosophies themselves (e.g., those articulated by traditional medicine people) should be protected as fully as possible from further damage and scorn; only if legal, political, and cultural environments begin to change strongly would it become safe or wise to attempt fully transparent political discourse on this basis. Turner, This is Not a Peace Pipe, 10. Turner’s is by no means the only way to conceptualize Aboriginal action in conditions of persistent injustice, and beginning from the work of other Aboriginal scholars would have drawn attention to different kinds of topics and questions. Those who know these alternatives well should consider how the inquiry might have changed with other approaches in mind. One alternative starting point is that of Leanne Simpson and others who work within the framework of “resurgence” or “radical resistance,” who focus primarily on the ways in

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12. 13.

14.

15.

Strategies of Justice which Aboriginal communities can rebuild themselves by ignoring, as much as possible, the institutions of Canada or the United States. See especially Simpson, Dancing on Our Turtle’s Back and Simpson, As We Have Always Done. Others who take this approach include Coulthard, Red Skins, White Masks, and Simpson, Mohawk Interruptus. I address elements of resurgence arguments in Chapter 4 in relation to the work of Taiaiake Alfred (e.g., Wasáse), but this is not the book’s basic framing. Related approaches similarly turn away from state institutions in seeking spaces of political freedom and possibility that can be built within existing social structures. See, e.g., Mishuana Goeman, Mark My Words: Native Women Mapping Our Nations (Minneapolis: University of Minnesota Press, 2013). See also the discussion of the need for “felt theory” that focuses on affect and experience rather than philosophical argument in Dian Million, Therapeutic Nations: Healing in an Age of Indigenous Human Rights (Tucson: University of Arizona Press, 2013), 30–1 and ch 3. The framing of this book is less strongly shaped by the experiences of Aboriginal women than should ideally be the case. This includes centrally Simpson, As We Have Always Done. See also Val Napoleon, “Aboriginal Discourse: Gender, Identity, and Community,” in Benjamin J. Richardson, Shin Imai, and Kent McNeil, eds., Indigenous Peoples and the Law: Comparative and Critical Perspectives (Portland: Hart Publishing, 2009), 233–55. Readers are encouraged to consider how the arguments here might have looked differently through this lens. Turner, This is Not a Peace Pipe, 88. Turner, This is Not a Peace Pipe, 9–10, argues that it is more important that “word warriors” provide space for Aboriginal philosophies and philosophers than master them directly. One does not need to understand the full details of these philosophies to understand their value or recognize those who are most practiced in them. It is thus important that word warriors understand non-Aboriginal philosophies clearly and thoroughly, but not necessary that they are fully fluent in their own traditions to carry out their defensive role effectively. Turner, This is Not a Peace Pipe, 91. I have removed an original emphasis on “and” in the first sentence, to better call attention to the latter part of the quotation. There are doubtless many kinds of burdens on deliberation beyond those that Turner describes where Aboriginal peoples are concerned, and differing kinds of discursive burdens for those facing different patterns of injustice. See, e.g., Tommie Shelby, Dark Ghettos: Injustice, Dissent, and Reform (Cambridge, MA: Belknap Press,

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16.

17.

18.

19.

20.

21.

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2016), ch 9. The discussions of the book as a whole are intended to be illustrative rather than exhaustive. I have sometimes extended Turner’s arguments toward conclusions that he himself might not endorse. This represents in specific form an example of the usual caveat for philosophical arguments, particularly when non-Aboriginal individuals write about Aboriginal politics: questionable arguments should always be attributed to me, rather than to Turner’s own work. Turner, This is Not a Peace Pipe, 117: “[F]or example, a competent indigenous tax lawyer can be an important word warrior for many indigenous communities.” The archetype of such an approach is the work of John Rawls, from whom this description is most heavily drawn. See especially A Theory of Justice (Cambridge, MA: Harvard University Press, 1971). Will Kymlicka, Multicultural Citizenship (Oxford: Oxford University Press, 1995); Kymlicka, Liberalism, Community, and Culture. See also, among many others, Andrew N. Robinson, Multiculturalism and the Foundations of Meaningful Life: Reconciling Autonomy, Identity, and Community (Vancouver: University of British Columbia Press, 2007); Patrick Macklem, Indigenous Difference and the Constitution of Canada (Toronto: University of Toronto Press, 2001); Joseph Carens, Culture, Citizenship, and Community: A Contextual Exploration of Justice as Evenhandedness (New York: Oxford University Press, 2000); Duncan Ivison, Postcolonial Liberalism (Cambridge: Cambridge University Press 2002); Jacob T. Levy, The Multiculturalism of Fear (Oxford: Oxford University Press, 1999); James Tully, Strange Multiplicity: Constitutionalism in the Age of Diversity (Cambridge: Cambridge University Press, 1995); and James Tully, Public Philosophy in a New Key, Volume I: Democracy and Civic Freedom (Cambridge: Cambridge University Press, 2008). The question of how less advantaged individuals within a society with the most just achievable institutions should behave when these institutions still fail to secure fully egalitarian treatment is an important one, but a different inquiry than I undertake here. See, e.g., Jeffrey Edward Green, The Shadow of Unfairness: A Plebeian Theory of Liberal Democracy (Oxford: Oxford University Press, 2016), especially ch 4. See relatedly the discussion of “Aristotelian equity” in Avery Kolers, A Moral Theory of Solidarity (Oxford: Oxford University Press, 2016), 128–33. The term change here may be misleading, and it should only be seen as a kind of shorthand. In many cases, it is deeply important to prevent changes to existing arrangements. It has often been the case

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that the long-standing property claims of Aboriginal peoples have been suddenly overridden when non-Aboriginal populations found resources of value that they wished to claim, for example. Because I generally focus throughout on creating improvements rather than on preventing further damage, however, I have generally used this phrasing in the book. 22. If political permissions are areas of choice that “violate no obligation or natural duty” (Rawls, Theory of Justice, 116), then it seems intuitive that those facing persistent injustices should have wider range for choice relative to other political actors when seeking to improve their situation. For the argument that persistent injustice changes the shape of political obligations, see Shelby, Dark Ghettos, 212–23. The permissions I have in mind are similar in normative structure to the “special permissions” that Daniel Statman considers for those whose communities are under threat of massacre and enslavement, though they are obviously of vastly more limited extent. See Daniel Statman, “Supreme Emergencies Revisited,” Ethics 117 (2006): 58–79 at 58. The permissions I outline are part of a toolkit to pursue justice in one’s one case. For this reason, they could potentially be reframed as entailments of an imperfect duty to pursue justice for oneself. Because I am skeptical of duties of this kind both logically (do they allow supererogation?) and for their likely psychological effects, however, I focus throughout on what is permitted to those facing injustice, rather than on what their self-regarding duties may require of them. My thanks to Will Kymlicka and Ben Laurence for discussion of this issue. 23. There are a wide variety of ways of conceptualizing the details and desirable texture of Aboriginal self-determination. The terminology itself has roots in international arguments about the “self-determination of peoples,” but its central use in American debates originates most strongly from its use in the title of the “Indian Self-Determination Education and Assistance Act” (ISDEAA) of 1975, which brought this terminology into American law and practice. The core idea of selfdetermination might be described as the aspiration toward self-directed social change (or absence of change), with multiple institutional forms possible for realizing this goal. For an overview of space for such social change in different eras of United States and Canadian history, see, e.g., Duane Champagne, “Native-Directed Social Change in Canada and the United States,” American Behavioral Scientist 50 (2006): 428–49. For details of the ISDEAA, see, e.g., Geoffrey D. Strommer and Stephen D. Osborne, “The History, Status, and Future of Tribal SelfGovernance Under the Indian Self-Determination and Education Assistance Act,” American Indian Law Review 39 (2015): 1–75 and

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Danielle Delaney, “The Master’s Tools: Tribal Sovereignty and Tribal Self-Governance Contracting/Compacting,” American Indian Law Journal 5 (2017): 308–45. For an overview of the details of current American Indian law in the United States, see Stephen Pevar, The Rights of Indians and Tribes (Oxford: Oxford University Press, 2012). For broader debates about self-determination in practice, see, e.g., Meriam Jorgenson, ed., Rebuilding Native Nations: Strategies for Governance and Development (Tucson: University of Arizona Press, 2007) and Eric D. Lemont, ed., American Indian Constitutional Reform and the Rebuilding of Native Nations (Austin: University of Texas Press, 2006). For an overview of the Aboriginal political efforts that led to these policy changes, see, e.g., Charles Wilkinson, Blood Struggle: The Rise of Modern Indian Nations (New York: W. W. Norton, 2005); for efforts at this goal in several historical moments, see, e.g., Kevin Bruyneel, The Third Space of Sovereignty: The Post-Colonial Politics of US- Indigenous Relations (Minneapolis: University of Minnesota Press, 2007) and Frederick Hoxie, This Indian Country: American Indian Activists and the Place They Made (New York: Penguin 2012). In Canada, legal space for self-determination has been more limited, even if the aspirations toward this goal are the same. For a brief overview of current law in Canada, see, e.g., Jeremy Webber, The Constitution of Canada: A Contextual Analysis (Oxford: Bloomsbury, 2015). For an accessible but more detailed overview with critical evaluation, see, e.g., Patricia Monture-Angus, Journeying Forward: Dreaming First Nations Independence (Halifax: Fernwood Publishing, 1999). For the precise details of Aboriginal policy in Canada, see Olthuis, Kleer, Townshend (OKT), Aboriginal Law Handbook (Fourth Edition) (Toronto: Carswell, 2012). For some suggestions about targeted reforms, see, e.g., Douglas Sanderson, “Overlapping Consensus, Legislative Reform, and the Indian Act,” in Patrick Macklem and Douglas Sanderson, eds., From Recognition to Reconciliation: Essays on the Constitutional Entrenchment of Aboriginal and Treaty Rights (Toronto: University of Toronto Press, 2016), 320–56. 24. The best model for conceptualizing how to evaluate institutional failures in the absence of ideal theory is found in David Wiens, “Prescribing Institutions Without Ideal Theory,” Journal of Political Philosophy 20 (2012): 45–70. Wiens argues that we should examine institutions for patterns of moral failure, and then focus carefully on the causal processes that create such failures and evaluate how they can be overcome. Other works can be reframed in this light as well. Kymlicka’s Multicultural Citizenship represents a failure analysis of

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25.

26.

27.

28.

Strategies of Justice state claims to neutrality, for example, and an extended set of proposals for responding to that failure. In international law, genocide does not require outright killing, but rather “acts committed with the intent to destroy, in whole or in part, a national, ethnic, racial, or religious group,” which can include mechanisms such as “forcibly transferring children of the group to another group”: United Nations General Assembly Resolution 260 (III), Convention on the Prevention and Punishment of the Crime of Genocide, 1948, article 2. It is unquestionable that the United States and Canada engaged in widespread policies that would violate this international definition, given its focus on group integrity rather than on Holocaust-like policies of physical extermination. Officially sanctioned actions of the latter kind were less common, but they did occur. There were unquestionably efforts of this kind in some of the early colonies, while political leaders in Oregon and California discussed “extermination” (sometimes using that term) as official policy. See, e.g., the extensive documentation in Benjamin Madley, An American Genocide: The United States and the California Indian Catastrophe, 1846–1873 (New Haven: Yale University Press, 2016). See, as one well-documented example among many, the ways in which the United States entered into an agreement with a minority “treaty party” during the Removal of the Cherokee Nation from Georgia to Indian Territory, after failing to receive agreement from the properly elected Cherokee government. For a detailed account of the conditions that led to the signing of this treaty, see, e.g., William G. McLoughlin, Cherokee Renascence in the New Republic (Princeton: Princeton University Press, 1986). See the more theoretical discussion of how Aboriginal ownership is conceptualized by states in Robert Nichols, “Theft is Property! The Recursive Logic of Dispossession,” Political Theory 46 (2017): 3–28 at 14–15. For an overview, see, e.g., Randall K. Q. Akee, Katherine A. Spilde, and Jonathan B. Taylor, “The Indian Gaming Regulatory Act and its Effects on American Indian Economic Development,” Journal of Economic Perspectives 29 (2015): 185–208. For some of the perceptions that gaming has caused among the legislators and citizens of surrounding states and localities, see, e.g., Jeff Corntassel and Richard C. Witmer II, Forced Federalism: Contemporary Challenges to Indigenous Nationhood (Norman: University of Oklahoma Press, 2008), ch 2. This book is being finalized in the second year of the Presidential administration of Donald Trump in the United States. While there has not yet been substantial backsliding in Aboriginal affairs to this point, it is hard to escape the fears of harmful retreats yet to come.

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29. Many of the arguments in this book have been developed in conversation with Desmond Jagmohan. Jagmohan studies the thought and action of African American educator Booker T. Washington, who sought to improve the conditions of former slaves in the heart of the Jim Crow South. The political opportunity structures available in these conditions created dilemmas that share similarities with those considered here, but the permissions were surely greater in these circumstances. See Desmond Jagmohan, Making Bricks Without Straw: Booker T. Washington and the Politics of the Disfranchised (Cornell University PhD Dissertation, 2014). 30. In this, I follow the approach of Anthony Simon Laden, Reasoning: A Social Picture (Oxford: Oxford University Press, 2012), vii, adopted in light of a broader conception of how communication goes best, 7. 31. I should also note that I am deeply attached to certain features of the existing world that are the result of past brutalizing practices toward Aboriginal peoples. There are likely nontrivial ways in which this inflects my thinking. Specifically, I have deep geographical and familial attachments to the Alsea River watershed in the Coast Range of Oregon, on lands that were never voluntarily transferred by members of the Siletz and Grand Ronde communities. The Alsea Indians, who originally occupied this area, were forcibly merged with many other Oregon communities into the Confederated Tribes of Siletz Indians and the Confederated Tribes of Grand Ronde. For an overview of the community at Siletz, see, e.g., Charles Wilkinson, The People Are Dancing Again: The History of the Siletz Tribe of Western Oregon (Seattle: University of Washington Press, 2010). For accounts of the specific removals of the Alsea Indians, first into the Alsea sub-agency along the coast and then to the Siletz Reservation, see David Gene Lewis, Termination of the Confederated Tribes of the Grand Ronde Community of Oregon: Politics, Community, Identity (PhD Thesis, University of Oregon Department of Anthropology, 2009), ch 3. 32. There is an extensive literature within Turner’s own Anishinaabe tradition. See, e.g., Borrows, Recovering Canada; Borrows, Drawing Out Law; John Borrows, Freedom and Indigenous Constitutionalism (Toronto: University of Toronto Press, 2016); Simpson, As We Have Always Done; Simpson, Dancing on Our Turtle’s Back; Kyle Powys Whyte, “What Do Indigenous Knowledges Do for Indigenous Peoples?” in Melissa K. Nelson and Dan Shilling, eds., Traditional Ecological Knowledge: Learning from Indigenous Methods for Environmental Sustainability (Cambridge: Cambridge University Press, 2018), 57–84 ; Scott Richard Lyons, X-Marks: Native Signatures of Assent (Minneapolis: University of Minnesota Press,

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33.

34.

35.

36.

37.

Strategies of Justice 2010); and Jill Doerfler, Niigaanwewidam James Sinclair, and Heidi Kiiwetinepinesiik Stark, eds., Centering Anishinaabeg Studies: Understanding the World Through Stories (Lansing: Michigan State University Press, 2013). In this regard, it stays within the limits of what Turner call’s “Kymlicka’s constraint”: that successful Aboriginal political claims will need to be made within terms understandable to state institutions. See, e.g., Turner, This is Not a Peace Pipe, 118–19. My sense is that non-Aboriginal philosophers who are skeptical of Aboriginal sovereignty in principle are likely to become less so after close examination of specific failed policies, such that an inquiry like the present one is a necessary prelude to such a discussion for many readers. Since what matters for the flourishing of Aboriginal communities is policies and relationships, my own sense is that in the end outcomes are more important than specific ways of referring to Aboriginal selfdetermination, though I understand why Aboriginal readers may disagree. For an argument about the functional character of states, see among many others Jeremy Waldron, “Special Ties and Natural Duties,” Philosophy and Public Affairs 22 (1993): 3–30. For arguments that complicate common presumptions of Anglo-American political philosophy about political membership, see, e.g., Kymlicka, Multicultural Citizenship, 108–20. Arguments from the Aboriginal side that entirely reject engagement with state institutions can sometimes make it harder to see the difficult work that many Aboriginal political leaders do in grappling with states as well. The work of Alfred (Peace, Power, Righteousness; Wasáse), for example, often presents those who engage in such efforts as irreparably tainted by the nature of their engagement, so that it becomes more difficult to see how their work can go better or more badly. For Turner’s nuanced reflections on Alfred’s work, see Turner, This is Not a Peace Pipe, 106–11. Alfred’s may ultimately be the correct view, but starting from the book’s midrange position of defeasible state authority claims opens space to examine those who grapple with unjust states in more detail. The book thus remains within Turner’s parameter (This is Not a Peace Pipe, 58) that arguments should be persuasive to the non-Aboriginal actors who hold the balance of social power. One might think that “sovereignty” is not the best language for defending self-determination, of course. For an argument that this terminology is often unhelpful to Aboriginal self-determination in the United States given the character of federal law, see Kouslaa T. Kessler-Mata,

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American Indians and the Trouble with Sovereignty: A Turn Toward Structural Self-Determination (Cambridge: Cambridge University Press, 2017). For an argument that the language of sovereignty is inconsistent with Aboriginal political traditions as well, see, e.g., Taiaiake Alfred, “Sovereignty” in Philip Deloria and Neal Salisbury, eds., A Companion to American Indian History (Malden, MA: Blackwell Publishing, 2002), 460–74. . Despite these concerns, the language of sovereignty remains central to Aboriginal political projects that contest the authority of both the United States and Canada. 38. Specifically, those discussed in Chapters 3 and 4 will broaden, while those discussed in Chapter 6 will not. Whether the permissions in Chapter 5 would change or not is harder to judge, but my sense is that they would not. Those who already have a good sense of the arguments for such legal independence should think about how the book’s arguments might change with that in view; those who do not should evaluate the book on its own terms before moving to this more philosophical complex terrain. I have written elsewhere about Aboriginal rights of secession. See Burke A. Hendrix, Ownership, Authority, and Self-Determination (University Park: Penn State University Press, 2008), where I defended the rights of Aboriginal people to separate statehood. I am now substantially more skeptical about the capacities of Aboriginal political units to achieve meaningful independence in this way, at least in the North American context, though this does not thereby weaken potential requirements for countries like Canada and the United States to fairly negotiate their future relationships with Aboriginal peoples in noncoercive, consensual ways. For an argument that draws strong conclusions about Aboriginal permissions for political action in light of rights to secession, see J. Angelo Corlett, Terrorism: A Philosophical Analysis (Boston: Kluwer Academic Publishers, 2003). 39. My thanks to Kyle Powys Whyte and Will Kymlicka for noting the complex resonances of this term, and to Kirby Brown and Tim Waligore for discussion the penultimate version of this paragraph’s text. 40. Rawls, Theory of Justice, 116–17: “[P]ermissions are those acts which we are at liberty both to do and not to do. They are acts which violate no obligation or natural duty.” The permissions discussed in this book are primarily those generated by persistent injustice, though Chapter 5 briefly discusses some more generalized permissions as well.

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CHAPTER 2 The Ethics of Political Action

In this chapter, I want to outline the basic normative questions with which the rest of the book will be concerned, and to show how I conceptualize them in relation to other aspects of political philosophy. This chapter will be oriented primarily toward nonAboriginal scholars, in the expectation that Aboriginal readers will generally understand the normative questions involved in political action from first-hand experience. I will nonetheless seek to keep the discussion as accessible as possible, since many of the issues here may be helpful for Aboriginal readers in thinking about how they themselves balance strategic political decisions against their social ideals, or in providing deliberative tools for registering specific forms of disagreement, or in other ways. Some of the topics here will be taken up again in Chapter 6, in discussing Aboriginal visions of what the future should hold, and this chapter may help to illuminate more fully some of the thinking behind the arguments made there. The primary concern of the book is this: in conditions of longstanding and difficult-to-dislodge political injustice, what are those suffering this injustice normatively allowed to do in pursuit of protections for their own moral interests?1 The inquiry will focus especially on political action intended to alter the patterns of law and policy that lock in place persistent injustices, rather than on actions to simply endure them. I will argue that Aboriginal peoples and others in such conditions are often morally permitted to behave in a variety of strategic ways that more advantaged political actors are not. All individuals have a natural duty to promote justice and to support institutions that secure it, but when institutions themselves instantiate injustice, this natural duty will often permit or require acting against their rules.2 Moral permissions to

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make choices of this kind are especially strong for those who are the direct targets of persistent injustice, who are often justified securing their own moral interests through means that violate existing law or ideal standards of democratic deliberation, or that otherwise bring to bear political resources that would generally be impermissible (sometimes including violence or the threat of violence).3 The chapters to follow consider examples of such permissions and how they might play out on the ground in Aboriginal politics in Canada and the United States.4 These normative permissions are complicated, however, by their relation to ethical questions in the broader sense, as the term refers to the forms of life and self-understanding of those involved. Even if it is normatively permissible for political actors facing persistent injustice to adopt a variety of political strategies, it does not follow that it is always (or ever) wise for them to act on these permissions. Sometimes this is simply a matter of pragmatism: such attempts may create too many risks of political blowback to be prudent. But sometimes more is at stake as well. Political actions often transform both those who engage in them and their relationships to others, and these transformations may not always be in positive directions. If those suffering persistent injustice have permissions to speak to state institutions with less than complete honesty, for example, this may hamper within-group deliberation, such that leaders will choose to pursue goals that their members could not really affirm as valuable. A full reckoning of the ethics of political action must thus be sensitive to the potential harms that groups of the disadvantaged may do to themselves in acting politically in specific ways. The chapter proceeds in four sections. First, it begins with an overview of ideal theory as conceptualized by American philosopher John Rawls, seeking to outline the central ideas of this approach to political philosophy, along with some of its key points of indeterminacy and its presumptions about universality of audience. Second, the chapter turns to an examination of the relationship between ideal theory and political action, suggesting that individual political actors always confront a world that seems both more fixed and more unpredictable than that suggested by Rawlsian ideal theory. In these conditions, a reasonable nonideal theory should allow those suffering persistent injustice to adopt means appropriate to the pursuit of a better world. Third, the chapter examines some of the

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possible ways in which particular kinds of choices might reshape the values and practices of those who adopt them in complex ways. Finally, it outlines some of the presumptions about fields of social possibility that will underpin the remainder of the book.

2.1 Ideal Theory as Political Architecture Examination of the range of choices normatively available to those facing persistent injustice has not been not a dominant theme within Anglo-American political philosophy, despite the obvious importance of the topic.5 Given the persistence of injustice within all of our societies, this is a surprising pattern.6 It may be that many scholars feel that there is too little that can be said about the topic or that what can be said is too obvious to need stating.7 I will argue against this position throughout this chapter and the book as a whole, trying to show both that there is much that can be said and that it is not always obvious. But a more plausible explanation for this relative neglect may arise from the tendency of Anglo-American political philosophers to adopt the rhetorical position of the political architect, who specializes in showing how diverse sets of normative goals and facts about the world can fit together to realize justice for a wide variety of people (usually those conceptualized as sharing the same “society”).8 While I will raise some concerns about the viability of this approach before chapter’s end, it represents a dominant strand of political philosophy for good reason: we need both clear perspective on where we are and a sense of where we should be going to evaluate many failures of the current political world. The relationships between this analytical approach and that required to evaluate the political decisions of the disadvantaged is intrinsically awkward, however, in ways that I will outline below. The two approaches treat different parts of the social world as constants in their evaluations and appeal to two different kinds of audiences, and this makes it difficult for conversation to occur between these areas of investigation. In his canonical A Theory of Justice, John Rawls set out to describe and justify a set of principles that would allow a society of free and equal people to coexist together on terms that all of them could understand and accept. Rawls argued for the central role of what

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he called ideal theory in political thinking. Ideal theory seeks to determine the structuring principles for the fairest form of human society that could be both stable and accepted by those who live within it. In other words, it helps us to conceptualize our long-term political goals, and to recognize the kinds of tradeoffs, incentives, and organizational principles that will be necessary in the best of humanly possible worlds. Nonideal theory, in contrast, refers to any work of theorizing that is intended to help with reaching that ideal.9 Ideal theory, Rawls believed, was the only systematic mechanism for gaining clear perspective on the failings of current political life,10 so that an ideal theory of a particular subject was logically necessary for pursuing justice in our flawed world: one could not hope to pursue reforms in such a world effectively without a clear sense of what the ideal outcome should look like.11 Rawls was concerned with the justice of social institutions, and especially with a society’s fundamental social and legal structures. His own work was especially focused on justifying strong welfarestate protections, but the basic approach is more general. Ideal theory considers “the way in which major social institutions distribute fundamental rights and duties and determine the division of advantages from social cooperation. By major institutions [one should] understand the political constitution and the principle economic and social arrangements.”12 Ideal theory is concerned with the ways in which different arrangements of legal rights, authorities, and powers affect the quality of human lives, and with discovering how the elements of these basic social structures can fit together to construct a system that individuals would strongly prefer if they were able to experience it.13 In other words, it is the method for a kind of imagined political architecture, intended to help us recognize the legal and other building blocks necessary for a free society, and the ways in which these will either benefit or constrain those who live within it. The intention of ideal theory is thus to imagine the most just form of social order that can be achieved given human beings “as they are and laws as they might be,” in the words that Rawls borrows from Jean-Jacques Rousseau.14 Within this theoretical approach, no institution or social practice should be regarded as fixed if it can feasibly be changed.15 While basic human needs are relatively unchangeable, human social habits are presumed to be relatively flexible, and institutions are expected to

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have many forms of potential realization that are consistent with the background certainties of social science. As may be obvious even to readers encountering this specific formulation for the first time, there are deep ambiguities in the idea of an ideal society conceptualized in this way, because it is hard to recognize precisely what the fixed points really are. In envisioning potential laws and institutions, the notion of “taking humans as they are”16 requires two kinds of speculations, which can be backed by evidence to differing degrees, but which remain unavoidably uncertain. First, attention to human psychology is essential in evaluating how different systems of laws and social rules will affect the well-being of those living within them. One needs to judge the kinds of protections and opportunities that individuals— including individuals as members of communities—need if they are to live happy and flourishing lives. Second, similar psychological expectations set the limits as to what the basic structure might be able to effectively demand, as do social scientific concerns about institutional coherence. Viable structuring principles must be those in which consistently high compliance by limited human beings is in fact possible.17 While Rawls expected social structures to play a role in shaping the character of those who live within them, he acknowledged important limits to what socialization can produce.18 Ideal theory should thus aim for a realistic utopia, in which the requirements of human flourishing are maximized, and all avoidable human failings are minimized. Political architects should focus on designing a model of society that maximizes the provision of basic human needs, while ensuring that the building constructed is stable and long lasting.19 Because this style of thinking involves difficult forms of double speculation, it is almost unavoidable that it gives rise to intense patterns of philosophical debate about what the ideal should look like. Humans are complex creatures, and any theory that suggests that people will be happy and satisfied with their lives in specific conditions is always substantially speculative. Do humans generally prefer to pursue economic activities as a form of self-creation, for example, or do they generally experience such activities as unpleasant distractions from other aspects of life that they value more?20 Arguments about achievable ideals—the “realistic” side of a realistic utopia—are even more contentious when they involve speculations about whether alternative kinds of social orders can ever be brought about, and about whether they could remain stable once they arose.21 Societies that

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expect humans to remain deeply conflictual and self-interested, or unavoidably nationalistic, are likely to allow for quite different “realistic utopias” compared to those that have different expectations for human behavior.22 Since we cannot easily conduct field experiments in these matters, we are often required to make such judgments based on ambiguous social scientific evidence about present practice, which is itself usually quite some distance from the ideals that this might serve as evidence for or against.23 The work of the architect here is intrinsically difficult because, in a sense, we do not yet agree on either what kinds of rooms individuals need to live well or the principles of stable building construction. Given the difficulty and apparently high stakes of these debates, it is easy to see why philosophers and political theorists are continually drawn into correcting errors that they see in the work of others, and, therefore, into continuing the project of ideal theorizing. Despite their importance, theories of this kind can make it difficult to recognize the realities of political action, and, thereby, to help in evaluating the actions open to those who work to bring it about. Although exercises of ideal theory are hoped to be action guiding, in articulating goals that everyone concerned with justice should work toward, they often have ambiguous audiences, both intended and actual. Given its focus on social wholes and their rearrangement, ideal theory is most naturally addressed either to “democratic citizens” in general or to those who already govern the societies described, including legislators and (especially) judges. Ideal theory thus often presumes that those addressed have the capacity to bring about the desired changes in their own behavior if they are simply persuaded of these changes’ value or, alternatively, that one’s audience has powerful institutional mechanisms for bringing about social change by others if they simply make use of them.24 Thus works of ideal theory often say to their audience, in effect, “Here is the social order to be achieved. Now rearrange yourselves accordingly,”25 or “Here is the social order to be achieved. Use your dominant position to bring it about.” Examination of the political action of those facing conditions of persistent injustice, on the other hand, requires that we begin with the presumption of relative fixity within certain dominant social institutions, and begin our reasoning from there.26 The image is more that of someone navigating difficult shoals. Within the idiom of architecture, it might be phrased this way to those who suffer from

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persistent injustice: “The following social agents are persistently working against you. Figure out how to construct the right political architecture despite their continual efforts to prevent this.” For those used to work in ideal theory, this mode of address will often seem insufficiently demanding of those who are blockading justice: if nothing is demanded from those behaving wrongly, and all work must be done by those who are already disadvantaged, then how will the ideal ever be achieved?27 Because an ideal social order will require that those who live within it relate to one another in specific ways (e.g., in terms of democratic deliberation, duties of citizenship and civility, and so on), ideal theories are likely to focus on the clear articulation of such standards. If citizens are to maintain a well-governed society of this kind, for example, they will need to uphold its laws and scrupulously follow its established political procedures. This means, among many other things, that they must accept political defeat gracefully, without seeking to alter the decision-rules of their society and without strongly resisting its justly made decisions. Because societies will generally be stable only when individuals hold others to account, citizens of such a society would have good grounds to regard all forms of departure from the dominant rules as failings of political virtue, and ideal societies would therefore require a public discourse focused on generating political virtues of the appropriate kind. In an ideal political system, there would be no benefit, and only dangers, to focusing on special political permissions for those who regard themselves as suffering mistreatment: this would only represent an encouragement to narrow self-interest or to intellectual error. Ideal theory’s mode of address is, accordingly, likely to focus on the promulgation of these high standards to its audience. Evaluating the normative permissions for those suffering persistent disadvantage, on the other hand, is likely to entail the promulgation of a second and inconsistent set of standards: those appropriate to the disadvantaged in current conditions, but morally prohibited to everyone else. It is hard to convey both messages at once.28 Those versed in ideal theory are thus likely to regard focused attention to the ethics of political action by the disadvantaged as peculiarly targeted or self-defeating from the start.29 Attention to the work of Rawls can help to illustrate the difficulty that those concerned with the development of ideals may face in

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articulating standards for those facing conditions of persistent injustice. In A Theory of Justice and (especially) in his later work Political Liberalism, Rawls argued that citizens should make political arguments to one another in a form that was appropriately calibrated to the needs of an ideal society. Rawls referred to this as “public reason,” and held that citizens should make public arguments (at least about basic issues of justice) within terminologies and frameworks that could maintain political neutrality.30 The goal of this restriction is especially clear in relation to religious disagreements. To ensure that laws remain neutral between different religious beliefs and, thereby, that they respect all members of society equally, citizens should abstain from using religious language in political argument, aiming instead for secular reasons only. For the same reasons, they should hold others to restrictions of this kind. Beginning from the framework of ideal theory, Rawls had understandable difficulties in describing standards for political action by those suffering profound injustices. This is illustrated, most centrally, by his awkward navigation of the Civil Rights Movement in the United States.31 Facing unquestionable patterns of political domination in the Jim Crow South, Martin Luther King Jr. and other Civil Rights leaders made political appeals in Christian language, drawing explicitly on Biblical prophets and injunctions to argue for an end to racially exclusionary laws and social practices as the abolitionists before them had done. Rawls acknowledged the appropriateness of these strategies in conditions as they were, despite the impermissible nature of such arguments within an ideal society. “The abolitionists and King would not have been unreasonable [in these methods if they believed] the political forces they led were among the necessary historical conditions to establish political justice, as does indeed seem plausible in their situation.”32 It was, in fact, hard to see other mechanisms that might have succeed as well in this instance, and the patterns of domination involved were unquestionably severe. The problem, for Rawls, was that admitting religious arguments into the public sphere as a general matter would be harmful, even if they were essential in cases of this specific kind. Rawls thus recognized the need for a well-developed theory of political action by the unjustly disadvantaged, but his work showed deep theoretic uncertainties about how to move forward from this acknowledgment.

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What we need, ultimately, is a set of standards for evaluating the degree to which unjustly disadvantaged groups can behave more strategically toward state institutions and other major social structures than can the citizens of these polities in general. This is an intrinsically awkward balance for those of us accustomed to thinking in terms of ideal kinds of laws and policies because it entails promulgating two mutually inconsistent standards of behavior, one for the unjustly disadvantaged and another for ordinary citizens (who are often likely to be contributors to this injustice). Since ordinary citizens (and those who directly engineer injustices) are unlikely to accept that different rules should apply to them, or, alternatively, are likely to see themselves as maltreated even when they are not, the best way to promulgate the relevant standards to each poses complex questions of communicative strategy. Yet these are not unique questions of political theorizing. Rather, they lie in the background of many debates about nonideal theory, in ways that pose complex problems for the enterprise as a whole. For purposes of the book’s inquiry, I want to set aside what might be called the “problem of mixed messages” as a question about the ethics of political theorizing itself as a social practice, not one about the ethics of political action as evaluated here. The question of how potentially conflicting social messages should be managed must remain as a topic for later inquiry. If the book’s project is to get off the ground, it has to accept the coherence of evaluating the ethical choices available to those facing conditions of injustice. The goal is to avoid getting lost within long-standing questions about ideals and how the citizens living according to them should behave, so that we may give closer attention to those who currently face persistent and real barriers to their flourishing.

2.2 Political Action and Normative Permissions Evaluation of the ethics of political action by those facing persistent injustice fits within the category of “nonideal theory.” Nonideal theory refers to those works that seek to provide normative guidance on how to reach the ideal, which Rawls conceptualized as an adjunct to ideal theory. Virtually all versions of nonideal theory begin by taking some forms of injustice as relatively fixed in place, while

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presuming that social change is possible for at least some others. They then seek to show how it might be possible—given the available avenues in which change can occur—that we could shift to a form of social order that approximates the goals of ideal theory somewhat more effectively. The most ambitious forms of nonideal theory try to work out a series of routes by which changes might build on one another to eventually end at the ideal.33 More typical, however, are more moderate forms of nonideal theory that seek to show how we might change one particular aspect of society for the better, without at the same time making things worse in some other way or setting up long-term blockades to other forms of normative improvement. Most forms of nonideal theorizing thus focus on what might be called local improvements—specific achievable social changes that would be normatively beneficial.34 While one might anticipate that inquiry into the ethics of political action by those facing persistent injustice would be a central topic of nonideal theory, this generally has not been the case. Acts of nonideal theorizing can proceed in quite different ways, and many of them do not give attention to the specific political choices of those who face injustices themselves. Nonideal theorizing generally presumes that certain dominant political institutions or social groupings should be treated as de facto unmovable by normative arguments, so that they must either be (a) treated as targets to be manipulated by rhetorical strategies35 or (b) treated as social obstacles that other social actors must organize against, strategize around, seek to constrain, and so on. Strategies (a) and (b) are quite different, and it is very hard to follow both approaches at once. Most works of nonideal theory adopt the second strategy, yet even within this category such exercises often remain ambiguous about which set of potentially persuadable social actors is the audience for what the theorist has to say. Different methods of proceeding here will produce quite different topics for discussion. Often the intended audiences remain ambiguous even within works of nonideal theory, or those who are invoked are generalized “democratic citizens,” with judiciously little said about the specific social actors who blockade efforts at reform or who are the direct executors of injustice themselves. Sometimes the audience is more narrowly specified, such as “international human rights lawyers” or “progressive legislators” or something of this kind. Many other options are available as well. Each of these

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approaches is likely to shape the nonideal theorizing in distinctive ways, as it takes into account the kinds of social power that this audience is likely to have, the specific opportunities for social or political intervention available to them, their likely sources of hesitation about acting, and so on.36 Despite this variety of targeted audiences and envisioned social actors, very few works of nonideal theorizing focus specifically on the choices available to those suffering from persistent injustice, especially when they are trying to change the conditions that structure these injustices. On reflection, this is surprising, given both the importance of the topic and the distinctiveness of such questions.37 There are good reasons to believe that those suffering under conditions of long-standing political mistreatment have different permissions for political action than do other individuals with whom they share a legal or political system. They have, after all, the same general set of moral duties to end injustices that all individuals have, and they have personal rights to self-defense against violence or domination. These topics are central to the approach of the current book. What, then, does the palette of permissible political actions look like in these conditions? One theoretical option would be to insist that those in conditions of mistreatment should remain within the limits of nonviolent civil disobedience.38 The religious arguments that Rawls noted in relation to Martin Luther King Jr. have a long history within the tradition of Christian political thought, while King’s specific formulations drew heavily on the thought and practices of Mohandas Gandhi. Those exercising civil disobedience in this form press their case for social reform in strongly public ways, while at the same time acting openly and with a willingness to suffer during their efforts.39 Civil disobedience generally holds that those suffering oppression should break the law openly, with the expectation that they will be arrested and thereby eventually force their oppressors to recognize and confront the violence or arbitrariness instantiated within current laws, so that they will thereby be motivated to change them for the better.40 Acting in this way is fully transparent, and it shows its dedication to the realization of common institutions of justice clearly.41 As Gandhi made clear, and as other commentators have suggested, civil disobedience coerces no one (even if it may impact other citizens with mild costs of time and

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money), so that those who engage in it cause no harm to others even if they are wrong about what justice entails.42 Seen in this light, it is easy to recognize why civil disobedience can gain wide acceptance from a variety of political positions: it seems, in principle, practicable by all who believe they are encountering justice, whoever they may be,43 so that the method retains the structure of a neutral and general rule well-suited to a broad general audience.44 I will have more to say about this view as an ethical outlook concerned about harmful forms of self-transformation below, by which terms it may have much in its favor. Taken strictly as a normative standard for evaluating the choices those experiencing persistent injustice, however, it seems clearly too restrictive. If the model is likely to be successful, this is of course a good argument in its favor. But surely a broader range of strategic choices was normatively available in the Jim Crow South to which the Civil Rights Movement was responding, given the degree of domination that it involved. Even in the absence of a strong theoretical account of why, it would not seem to have been wrong to lie to police officers and other instantiations of state institutions, for example, or to navigate those institutions in ways that were formally illegal. Nor would it be at all plausible to take this position for the days of slavery itself, or for processes of violent American attacks on Aboriginal communities. Most of us find many circumstances in which patterns of oppression are deep enough that we will license clear divergences in the standards of behavior permitted to the oppressed and oppressors. Slaves and their masters were not on the same moral footing, nor were black Americans and the white supporters of Jim Crow laws in the 1950s South. One party was pursing justice, while the other was seeking to blockade it. This inevitably shapes the way in which theoretical inquiry proceeds: we cannot structure theoretical arguments that address all citizens equally in such conditions if we are to act in good moral faith, even if we hope for a future in which such equal address will be possible. Nor are there persuasive reasons to limit the political actions of the unjustly disadvantaged by the standards that bind everyone else in the meantime. Acknowledging the appropriateness of different messages can likewise help us to avoid over-categorizing political strategies as examples of what Michael Walzer has called the “problem of dirty hands.” The problem of dirty hands occurs when a political leader or

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other political actor does something that they know to be intrinsically wrong, but that is at the same time necessary for the success of some valuable political project.45 While I will outline some examples that could be taken to have this form is Chapter 5 when discussing competition among the unjustly disadvantaged themselves, there is no reason to regard many kinds of “illegal” or other strategic actions by unjustly disadvantages social actors as morally tainted in this way. Rather, these are often fully appropriate actions that break no obvious moral rules. They may, however, often appear to violate moral rules of general standing, and, in many cases, will be perceived as troubling by those who engage in it for this reason.46 Many kinds of strategic political actions will thus appear to involve moral dilemmas, when they in fact do not. This is not to deny that the problem of dirty hands can exist in many cases, but rather to say that it will generally not apply to many kinds of political action by those in conditions of persistent injustice. Political actors facing these conditions have permissions to act in ways that are prohibited for others in their society (and for themselves when they are not acting specifically to defend their own moral interests), because they are required to navigate a political terrain that does not protect their moral interests in appropriate ways, and that thereby burdens their political efforts in illegitimate ways. Aboriginal and other political actors in these conditions will predictably face charges that they have acted wrongly, and they may often want to act politically in ways that are shielded from public view, but this does not indicate any intrinsic wrongness in a wide range of strategic choices they might make.47 It seems widely recognized in works of nonideal theory that individuals need not follow all laws that are said to apply to them in conditions of persistent injustice, but this literature often focuses on actions that seek to evade specific laws rather than to alter them through strategic action. Some typological distinctions seem helpful here. Some kinds of actions in conditions of persistent injustice are primarily evasion-focused, meaning that they seek to open up space for individual flourishing by evading particular kinds of laws and social structures, without at the same time seeking to change the patterns of injustice in which they exist. Actions of this kind are widespread in most all patterns of social domination, and they remain extensive in conditions of persistent injustice of less extreme form. These may involve a range of actions, from, for example,

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complying slowly with the dictates of government officers (e.g., Indian agents overseeing reservations) to “stealing” necessary property from those who hold it unjustly, to shielding the breakers of unjust laws from police investigation, and so on.48 These are mechanisms for blunting the worst effects of unjust institutions, by seeking to bring out individual or small-scale outcomes that are closer to the conditions that would hold in a just world. We might describe the goal of these actions as justice substituting, since they seek to produce very local outcomes that approximate what justice requires. For this reason, it seems clear that actions of this kind must generally be limited in ways that respect the moral interests of nearby others in similar conditions, although many uncertainties remain about how precisely this should be navigated.49 Although there are profoundly important questions surrounding the limits of resistive actions of this kind, this book will be focused instead on political action that is intended to bring about change to some forms of law and policy. In this regard, it will usually be strategic political action undertaken with a goal beyond the actions themselves, generally as a means toward specific reforms to legal procedures, patterns of decision-making, or structures of resource distribution. The line between evasion-focused and strategic political action as I will use the terms here is unavoidably indeterminate because many forms of evasion will aspire toward longer-term changes, and evasion is included among the set of strategies that members of groups seeking social change may pursue. But the basic distinction seems clear nonetheless, and it is worth keeping the differences between these modes of politics in view, since strategic forms of political action may involve somewhat different normative standards than those associated primarily with evasion, and may often have different ethical consequences more broadly. The question, then, is how one might evaluate the normative permissions open to Aboriginal peoples and other sufferers of persistent injustice in seeking to create social institutions, policies, and practices that are closer to justice than current conditions.50 The core argument of this book is that social actors facing such conditions have more extensive permissions than others do. These permissions arise from the confluence of natural duties to help realize justice, along with reasonable self-care (or self-priority) that individuals can give to themselves and to those with whom they have close

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connections. All individuals have natural duties to take actions that will help to bring about just social arrangements, or, where the specific meaning of justice is uncertain, the reduction of injustices that are locally recognizable and remediable.51 Most construals of these duties assert that they require action only when the costs to the individual actor are not “too high” to make such action reasonable, however, and I adopt this limitation here. On this view, all individuals have spaces for permissible forms of self-priority even when they are not themselves experiencing injustice, despite the fact that justice might be more swiftly realized if they lacked such permissions. The special permissions held by those facing conditions of persistent injustice emerge from the same basic structure, because these ordinary permissions are magnified and deepened when profound injustices actively work against the chances that individuals should have for flourishing lives. Political institutions are intended to help in securing and ensuring justice for all affected by them, and this is why individuals have duties to contribute to their continued operation. Where individuals are themselves ill-treated, however, the costs of their support are relatively higher: they are asked to support the same institutions that endanger or otherwise frustrate their capacity for flourishing. Whatever the permissions for self-preferences that others have, then, those who are suffering substantial injustices have relatively greater scope for self-priority where support for the normal operation of these institutions is concerned. Broadly speaking, the scope of these permissions will vary depending on the depth of the patterns of injustice or domination that those who seek political change face. The permissions open to enslaved African Americans, for example, seem necessarily to have been extremely broad, as were those open to Aboriginal peoples when countries like Canada or the United States were seeking to force them onto reservations, ruling them in stringent ways once there, and so on.52 Even so, these permissions were limited in particular ways, especially where they may have involved violence against those who were not causally central to egregious patterns of mistreatment (e.g., children in the families of slave owners, rather than the slave owners themselves). Limits here are difficult to determine with any precision, but the basic point that greater severity leads to greater permissions seems undeniable. The more egregious the mistreatment, the worse the moral interests of the oppressed are served,

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and the costs of their adherence to law and political process thereby increased. The examples examined in this book are generally of a more ambiguous character. Although Aboriginal peoples in the United States were historically treated in ways that unquestionably licensed lethal violence in political self-defense, and that licensed very strong options for strategic political actions for an extended time after that, both countries are now much more open to procedural forms of political action than they once were. Nonetheless, both countries continue to carry out a variety of laws and social policies that reflect long-standing patterns of unwarranted mistreatment. These are conditions in which political procedures are open in certain directions but estopped in others, or open in ways that Aboriginal peoples cannot easily make use of given unrepaired damage from previous policies, or open in ways that require them to compete with other groups of the disadvantaged for an artificially limited pool of resources, and so on. In conditions of this kind, evaluation will have to be made carefully, with attention to specific patterns of political blockage. The options are what we might describe as medium strength here: sufficient to give Aboriginal people permissions that most other social actors do not have, but less than those that would have existed in earlier eras or for current Aboriginal peoples in some other states.53 To evaluate specific limits more precisely, it will be necessary to look at specific social contexts, to see both what is normatively at stake and how deeply this context may force political action away from more just channels. There is no obvious metric or algorithm by which one can make decisions of this kind, and this uncertainty may lead some normative theorists to want to fall back on hopes that such calculations can be circumvented by turning to ideal theory for a set of procedural revisions that will obviate the need for such decisions. But this seems unlikely: although we want states and political procedures to be neutral, there are few ways to make them so in even the best of conditions, and fewer yet in conditions of persistent injustice. Instead, this is one of those several normative areas in which our judgments will generally have to be calibrated through examples, which can be evaluated as “too much permission” or “too little permission” once examined, as happens in many other areas of normative life.54 Consider, for example, the ambiguities that many of us face when deciding whether someone has acted within the

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bounds of their individual rights, or encroached on the rights of others. We may propose many principles, but at the end of the day, we are evaluating relative weights of different kinds of concerns. The same holds here. As I will show in later chapters, this is part of what makes the political judgments of the unjustly disadvantaged so difficult: they must usually decide for themselves whether they or their representatives should undertake particular kinds of actions, with very little assistance possible or forthcoming from others.55 This focus on specific circumstances means that evaluation of the permissions available to those suffering from persistent injustice will only be possible through detailed examination of particular political contexts and the challenges and potentials found within them, at least until a sufficient literature builds up to allow for more broadly categorical claims. In the chapters that follow, I will try to isolate out specific kinds of contexts and the questions that they pose for the normative boundaries of political action. Because the political arenas within which Aboriginal peoples in the United States and Canada must interact will often be unfamiliar to many non-Aboriginal readers, it will be necessary to provide relatively substantial details in some instances. Insofar as analytical work on the ethics of action in conditions of persistent injustice has been done, it has generally been in relation to the political efforts of African Americans.56 Readers familiar with non-Aboriginal forms of persistent disadvantage and the forms of political action associated with them should use the examples discussed throughout the book as tools for comparison or contrast. Developing a firmer normative grasp of these complex questions of political ethics will proceed best when pursued from a number of directions. This will also increase the odds, as I will argue below, that any ideal visions that emerge from our political examinations will appropriately offer desirable and achievable portraits of what the future could come to hold.

2.3 Political Action and Self-Transformation Close attention to the contexts of political action is important not only for evaluating the normative permissions available to those combating persistent injustice, but also to help us think more carefully about the kinds of transformations that political action itself

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may create. Although it seems overstated to hold that political action always transforms those who engage in it, it does seem reasonable to believe that it commonly does so. Those who pursue political goals against stiff opposition are likely to become deeply anchored to particular ways of proceeding politically, for example, and may have difficulty adjusting their course in new directions.57 They may also develop strong feelings of antipathy toward particular opponents or come to perceive other social actors as dogged opponents when they actually are not, and so on. Political action can also harden attachment to particular normative judgments that might not otherwise survive scrutiny, in, for example, deepening attachment to a set of legal rights that, all things considered, might serve less well than some alternative set of rights.58 Those who are skeptical of normative permissions for the unjustly disadvantaged often draw on concerns of this kind to argue that all political action must be carried out openly in the public sphere, through laws and normative standards that are shared by all, so that the relatively neutral mechanisms of courts and legislatures can do their work. Yet this response only makes sense if there are ways to insulate political officers from the same kinds of transformative forces that political actors outside of these institutions face. Government is rarely a “neutral judge” in the face of competing social forces, regardless of how much we might wish this were the case.59 Even if some kinds of procedures can induce better uses of information than others can, even the best political system will be filled with spaces requiring personal judgment and choice, and individuals who inhabit political offices are just as prone to flawed transformations over time as others are. Moreover, where a government system entrenches a normatively flawed social order, those who inhabit its offices are likely to develop personal characteristics that replicate many of the pathologies of the political system as a whole. So attention to the frequent transformations that political action can bring about does not provide a means to dispose of extra normative permissions for those facing persistent injustice. Most of us are muddling through most of the time; that includes those who fill government positions, as well as those who do not. The ubiquity of transformative effects from political action does mean, however, that those interested in the ethics of political action must give close attention to what empirical scholars call the political

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opportunity structure of a given social order.60 This term refers to the overall constellation of political pathways available to those seeking change, along with an account of the areas in which their efforts are more difficult or entirely estopped. Taken as a whole, a map of the political opportunities across an entire political system is likely to be very complex and frequently ambiguous. Clever political leadership often involves recognizing new pathways of opportunity that have just emerged or that have been overlooked until now: important social changes often occur precisely because such new pathways are recognized.61 Nonetheless, the basic contours of a political opportunity structure are likely to remain relatively consistent over time, frequently with one or two social institutions most strongly associated with particular kinds of political spaces. Because these political spaces are generally associated with particular procedures, patterns of discourse, and consistent political competitors, they will generally draw those who engage with them in predictable directions. Those who engage with courts primarily, for example, are likely to come to mirror some of the logic of courtroom argument, while those who engage primarily with government bureaucrats will incline along a different trajectory, and so on. While it is common to fear that those who engage routinely with state institutions may become “co-opted by the system,” then, the ways in which this threatens to occur will often be quite different across social arenas. The question of how to respond to these dangers is a perpetually difficult one. It is not sufficient simply to wave the problem away as the inevitable outcome of political action, since this gives no insight into how it should be navigated. Nor does it seem causally true that all of those who interact with the political institutions of an unjust system become tainted themselves. Meaningful political action is possible; it is just hard. The question, then, is how to navigate these dangers, and how to conceptualize directions in which self-transformation is appropriate (or even beneficial) compared to directions in which it is inappropriate, either normatively or given the forms of personhood or social life that it may bring about. As I will outline in chapters to come, these difficulties will often be navigated best by various kinds of divisions of labor. But the viability of these methods will vary depending on context, the character of the group, and so on. One potential solution to the difficult ethical questions surrounding self-transformation is to posit an extremely tight relation between

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means and ends, such that all means adopted must be fully consistent with the social practices of the world one wants to realize. The most prominent example of this approach can be found in the thought and practice of Mohandas Gandhi, whose satyagraha method (“truth force” or “soul force”) insisted that all forms of political noncooperation be carried out in the most transparent way possible. Those who wanted to bring about a world of honesty and mutual love should behave accordingly, acting only in ways that reflected the standards for the ideal political life toward which they strove. Gandhi held that action of this kind was normatively required by respect for others, and that it was the only causally effectual means of realizing justice over the long term.62 But he also held that this was necessary to show appropriate respect for oneself as well. The goal of moral life, Gandhi believed, was to live in absolute truth with oneself, as well as others, and this would be impossible if one began to dissemble, remain silent, or otherwise do anything at variance with what one authentically believed.63 Despite the dangers of over-simplifying Gandhi’s complex thought, one might regard this as a profound concern with the problem of moral perspective: given all of the psychological changes likely to occur once one pursues politics (or any other goal) in anything other than a spirit of complete truth, one was likely to be lead astray from one’s original goals and from what one should really value. Put differently: anything less than truth inevitably corrupts.64 The clarity and simplicity of Gandhi’s view is deeply appealing, and describing the effectiveness of his efforts in India as astonishing remains an understatement. The political successes of Martin Luther King Jr. while deploying Gandhi’s techniques are likewise events of world-historic significance. In light of these events, it is tempting to suggest that all political action must adhere to these standards, not only out of respect for others but also out of desire to preserve one’s own moral clarity and self-respect. Even if there is a sense in which those suffering persistent injustice might have a normative permission to use especially strategic means, on a view like this, it would never be wise or appropriate to adopt them. Despite the clarity of this view, however, many of the empirical assumptions that it entails seem to me incorrect. Much of everyday politics does not go on in the public sphere with the degree of visibility practiced by Gandhi and King, nor can it. Many kinds of political work necessarily take

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place in courtrooms, committees, bureaucratic hearing processes, intergovernmental contract negotiations, and so on. These often require complex and careful negotiations, in which nonviolent noncooperation may lead to no new results at all. Moreover, it seems to be untrue that all forms of strategic action reliably corrupt one’s perspective irremediably.65 While political leaders in all sorts of conditions continue to let down those they purport to represent, there are nonetheless many political leaders who work extremely hard to develop new laws and policies, to balance out many competing and disagreeing social forces that cannot be reasoned with directly, and so on. For those who accept the Gandhian view, much of what follows will seem to go down a mistakenly dangerous road; for those who regard the Gandhian view as overly rigid in its empirical presumptions, however, a more contextual examination of the self-transformative effects of political action is needed.66 As this indicates, many of the questions involved in evaluating the ethics of political action in this broader sense are essentially empirical and psychological. For normative permissions, it is relatively straightforward to show in conceptual terms how space for selfcare opens up in a substantially unjust society, even before we specify the exact meaning of those terms with reference to empirical cases. Questions about self-transformation are intrinsically empirical, however, because normative dilemmas exist here only insofar as we can pick out predictable patterns of psychological change. Arguments of this kind are thus unavoidably more speculative than those associated with basic normative permissions (even if the on-theground meaning and scope of those permissions inevitably involves difficult judgment calls). If people were immune to such selftransformations, they would be no concern at all. We have good reason to believe that such self-transformations can occur, however; what we do not have is any certain mechanism for determining exactly where and when they might be the most severe or problematic. My own view draws on the work of philosopher Lisa Tessman, who argues that individuals living in conditions of injustice often develop what she describes as “burdened virtues.” These are personal characteristics, habits, and valuations that are valuable within one social context, but which create recognizable failures of human flourishing in other contexts.67 Tessman is interested in persons as

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both individuals and members of social movements. So, for example, individuals in particularly abusive situations may develop skills of carefully navigating the whims of others in ways that minimize the violence they experience, while at the same time being unable to relate openly to other intimates given this habituation.68 Examples of this kind can exist within political movements, as well, especially those that are focused on combating injustice through intense and life-long political efforts. Anger that may be sustaining of long political engagement to protect one’s own rights or the rights of others, for example, may carry over into other aspects of one’s life, making it difficult to form personal bonds, enjoy free time, or otherwise lead a completely flourishing life.69 Given the complexity of human experience and psychology, there can be no way to predict perfectly where problems of this kind may occur, but attention to specific contexts of injustice can help us to anticipate where they are likely to exist. This view seems helpful to me in anticipating likely patterns of transformation through political action, especially for political leaders. If specific locations within the constellation of political points characteristic of a political opportunity structure can be recognized, then it seems plausible to expect that those who come in contact with those points are likely to be transformed in ways that reflect their specific discursive patterns, procedures, habits, etc. At the same time, the kinds of projects that political actors are seeking to pursue will help to shape these patterns of self-transformation, as individuals come to identify particular political enemies who seek to oppose their goals, and so on. One could attempt varying levels of sophistication in this analysis, but the basic prediction is that many patterns of self-transformation can be anticipated through close attention to the political context in which political action takes place. Aboriginal leaders who engage deeply in land claim adjudications, for example, are likely to face substantially different transformative pressures than those who seek to negotiate with private resource extraction firms. If this is true, then it suggests that we should not think in terms of some generalized likelihood of undifferentiated “corruption,” but of relatively specifiable trajectories that can be anticipated and, in many instances, countered. This seems to me to capture the general concerns that members of social movements, Aboriginal peoples, or other groupings have about their leaders: that patterns of

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“co-optation” will be relatively predictable beforehand, frequently occurring to multiple individuals across time in the same context. Leaders, for example, will develop certain styles of argument that are seen as virtues within a particular courtroom setting, but which will reasonably be seen as political vices by those monitoring them from outside this context. This view encourages us to avoid broad, sweeping statements and to focus on the details of particular kinds of political action. In the same way, it allows us to think in a more targeted fashion about the potential costs and benefits of various kinds of political strategies. In some cases, exercising a normative permission to deceive political officers inhabiting unjust institutions may be highly likely to generate negative self-transformations. In others, the dangers may be quite limited. It also allows us to consider how the attitude of political actors toward their own work may hamper or maintain their moral perspective. In some cases, for example, it may be dangerous for political actors to accept evasive speech from themselves, while in other cases they may think more clearly if they admit its appropriateness from the beginning, since they may thereby be less likely to accidentally believe something said for political reasons. In disaggregating the likely effects of different kinds of contexts and selfunderstandings in this way, a view of this kind encourages us to recognize that better and worse forms of politics really are possible, rather than simply sinking into despair about the way action inevitably corrupts or changes those who take part in it. This view seems preferable to me both because it is more accurate than other positions and because it offers some hope that political action is not always destined to self-defeat or co-optation. This view reflects my own (albeit limited) experience of what it is like to take part in political life, as well as my understanding of how many others have described the experience. Perhaps as importantly, in making political action recognizable and delimitable, it avoids the kinds of easy portrayal of all political action as simply the self-seeking and shortsighted action of “interest groups” or “factions” who must be managed by a beneficent state that oversees all as a neutral, procedural arena. People are indeed often greedy and shortsighted, and often pursue simply their material interests under the veil of “justice,” or come to see their own material interests as coterminous with that notion. But state institutions cannot magically transmute inputs

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into justice, nor do they operate mechanistically or neutrally. They are locations where politics takes place, and that politics often involves real stakes, in which one contending party may have normative rightness on its side and the other not. If we look for specific patterns of problematic self-transformations, we may be able to see more clearly the political stakes at hand and better evaluate whether specific efforts move in the right direction or not. The inducements that political institutions will offer are of course not always self-evident, and there will often be complex ways in which they may transform those who engage in them. In many cases, state or other institutions will offer veiled incentives for reconceptualizing one’s political goals in less demanding ways or will in other nonobvious ways be structured to distort the original views of those who engage with them.70 We should walk a careful line here. Most people engaged in ordinary politics at ground level have a very good sense of the incentives that they face, of the tradeoffs that they must calculate, and so on. On the other hand, the forces of problematic self-transformation may not always be obvious to them, and it may be necessary for them to be monitored very closely, in the present case, by Aboriginal academics whose positions allow them a different kind of independence, or by activists who refuse all direct political involvement, and so on. The point is not to valorize Aboriginal or other political actors as especially wise, but to avoid valorization of the state as the neutral solution to all problems of politics. It is not and cannot be. At the same time, politics is about real outcomes: it really is important to try to make the right decisions, despite the difficulty of doing so. Many Aboriginal and other leaders do a very good job of muddling through despite all of these difficulties, and a fair evaluation of politics requires acknowledgment that political choices that improve the world really are possible. To return to the initial discussion of this chapter, attention to the complexities of political action should lead us to treat all ideal theories of what the future should hold with some skepticism. As I noted earlier, instances of ideal theorizing always involve a double speculation about the conditions under which individuals will flourish and about the degree to which particular social orders might be stable once established. If we approach politics from the ground-level perspective of a political actor seeking change rather than the position of an imagined political architect, we may need to

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acknowledge our uncertainties about both what is possible and what is desirable. In the final section of the chapter, then, I want to return to ideal theory and think about how its aspirations might function when we avoid overstatement about our capacity to predict the character of the ideal.

2.4 Ideals and the Unpredictability of Politics In the chapters that follow, my examples will generally focus on instances in which Aboriginal peoples are seeking to alter policies that fail in relatively straightforward and easily delimitable terms, without the need for a comprehensive ideal theory of justice for Aboriginal peoples. Thus, I will give attention to land issues in Chapters 3 and 5 and to current pathologies of arrangements for law enforcement in Chapter 4, among other issues. The goal throughout is to illustrate the ways in which permissions for political action operate and the ways in which such permissions may facilitate or endanger the moral clarity of Aboriginal political actors in the process. I will presume throughout that some relatively flexible conception of “self-determination” for Aboriginal peoples should guide political action, but I will not try to pin down the details of such arrangements with fixity and precision. (In Chapter 6, I will defend this ambiguity of vision in depth.) It would obviously make the normative work of a project like this one easier to have a clearer and more precise set of ideal institutions by which current political conditions could be evaluated, so that one could recognize precisely how far current arrangements are from those that of an ideal, fully just world. A bottom-up perspective on political practices and institutions, however, should give us reasons for skepticism about our capacity to develop such useful comparative ideals at the present time and, thereby, about our capacities to use such ideals in more exactly calibrating the scope and character of permissions held by those facing injustices. Put differently, we will often be able to recognize in rough terms that persistent injustice exists, without being able to specify at present what the world would look like once it is overcome. As noted above, ideal theory in the Rawlsian mode has often run into deep controversies about what is possible and desirable for

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distributive justice within a single society, which is arguably the social question for which Rawls’s work has been most influential. Rawls presumed a society united by national feelings, a common language and history, existing legal touchstones, and so on. Few of the commonalities that Rawls noted exist in unquestioned ways where the relationships between Aboriginal peoples and countries like the United States and Canada are concerned. The question of what is both possible and desirable is thus much more profound in instances of this kind than in the cases for which ideal theory is most commonly applied. We do not have clear institutional models for how complex forms of treaty relationships can be maintained over time, for example; we do not fully understand the implications of semi-sovereign Aboriginal political units for economic activity and distributive justice; none of us know exactly how much cultural or political separateness Aboriginal peoples really will want once it is experienced, or whether these will lead to the expected kinds of flourishing or not.71 This does not mean that it is impossible to work out just relationships of this kind. Rather, it means that we do not yet know how exactly an ideal set of political institutions would be structured, given the often-unpredictable ways that institutional structures may operate in changing circumstances. In the absence of a certain theory of justice, it will be difficult to evaluate fully the degree to which particular political actors might be suffering from specific degrees of injustice. It could be—though perhaps rarely is—that apparent injustices at the local level prove beneficial on balance or unavoidable by the standards of some larger systemic theory. It is injustice that gives some groups normative permissions to pursue strategies that would not be available to other political actors. If we cannot be sure precisely how far current arrangements are from justice, is it possible to draw sufficiently exact lines about when especially strategic forms of political action may be permissible and when they are not? This uncertainty means it is possible only to approximately gauge the strength and exact texture of the permissions held by Aboriginal peoples in current conditions, rather than to nail them down with the precision we might wish for. Ultimately, I think that we lack the capacity to say what a “realistic utopia” looks like where Aboriginal peoples are concerned with much precision, so that our works of theorization are unavoidably indeterminate for evaluating the full field of gaps between existing

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political arrangements and those that we should lobby to bring about. I suspect that this is a more general problem beyond simply that of Aboriginal peoples, so that extended engagement with the ethics of political action and careful evaluation of the permissions available to those seeking political change might lead to recalibrated methods for pursuing the project of ideal theory beyond those sketched by Rawls and others taking similar approaches, or to a reduced role for ideal theory within current political philosophy.72 I do not wish to hinge anything central to the book’s arguments on this latter claim, however, since its primary goal is to show the distinctiveness of special moral permissions for those facing persistent injustice, and to develop some tools for further examination of topics of this kind. The relevant point for the project moving forward is the unavoidable uncertainty about the scope of the permissions that Aboriginal peoples now hold, which can be gauged approximately but not with great precision. Readers should examine the specific arguments of the following chapters to judge whether the permissions described there seem to them insufficient, excessive, or appropriately calibrated, and should consider what drives their reactions in one direction or another.

Notes 1. I intentionally do not attempt to delineate a list of moral interests anywhere in this book. Rather, I try to illustrate in specific cases how recognizable moral interests are damaged by specific existing political conditions. We will reasonably disagree about an abstract list of moral interests, but are more likely to agree on specific examples. An attempt to list moral interests would require substantial textual space, and would be likely to spur more disagreements than it prevents; after all, AngloAmerican philosophy loves to disagree about these kinds of things. Such an account seems likely to reroute the discussion back to ideal theory again, and to postpone investigation of the ethics of political action once more. 2. One of the clearest formulations of this argument is found in Tommie Shelby, “Justice, Deviance, and the Dark Ghetto,” Philosophy and Public Affairs 35 (2007): 126–60. It is developed in more detail in Tommie Shelby, Dark Ghettos: Injustice, Dissent, and Reform (Cambridge, MA: Belknap Press, 2016). Although the current book has developed primarily

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from thinking about and with Dale Turner’s work as discussed in the introduction, Shelby’s article exerted an influence on the development of the project as well, and his book’s appearance was well timed with the later stages of my own. One might argue that these should be conceptualized as duties to resist one’s own mistreatment, rather than permissions. If they are conceptualized this way, however, they must be understood as strongly imperfect duties, to allow space for the complex choices about self-defense that they involve. See, e.g., Carol Hay, “The Obligation to Resist Oppression,” Journal of Social Philosophy 42 (2011): 21–45. Because I want to emphasize spaces for choice and decision-making, and because I worry about the psychological over-demandingness of duties in this context, I will use the language of permissions throughout. My thanks to Will Kymlicka and Ben Laurence for correspondence on this issue. As discussed in Section 1.4 of Chapter 1, “permissions” in this context do not connote “grants of permission” from non-Aboriginal populations, but instead connote a generalized normative category that entails the “absence of duties to refrain” from particular kinds of choices. See Eugene Schlossberger, “Entitlements, Liberties, Permissions, and the Presumption of Permissibility,” Journal of Social Philosophy 34 (2003): 537–44 at 537. See also John Rawls, A Theory of Justice (Cambridge, MA: Harvard University Press, 1971), 116–17: “[P]ermissions are those acts which we are at liberty both to do and not to do. They are acts which violate no obligation or natural duty.” Discussions of this topic generally begin from analyses of civil disobedience—as I will do in this chapter as well—and then move to revolution as the apparently natural alternative. Andrew Sabl, for example, argues that, where civil disobedience is unlikely to be effective, “the reasonable alternatives are then limited to violent resistance or grudging submission, depending on one’s assessment of the consequences.” Andrew Sabl, “Looking Forward to Justice: Civil Disobedience and its Non-Rawlsian Lessons,” Journal of Political Philosophy 9 (2001): 307–30 at 322. There seem to be many further options, however. See, e.g., Shelby, “Dark Ghetto” and Shelby, Dark Ghettos. There are other nearby philosophical issues that have received substantial attention, which will be taken up in relevant locations throughout the book. For example, there is a substantial body of work on questions of alliance or solidarity in feminist philosophy and in philosophy of race, often with detailed examination of specific political strategies that might work in given conditions. See, e.g., Iris Marion Young, “Gender as Seriality: Thinking about Women as a Social Collective,” Signs: Journal of Women in Culture and Society 19 (1994): 713–38; Sally J. Scholz,

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7.

8.

9.

10.

11. 12. 13.

Strategies of Justice “Feminist Political Solidarity,” in Lisa Tessman, ed., Feminist Ethics and Social and Political Philosophy: Theorizing the Non-Ideal (New York: Springer, 2009), 205–22 ; and Tommie Shelby, We Who Are Dark: The Philosophical Foundations of Black Solidarity (Cambridge, MA: Belknap Press, 2005). Michael Walzer suggests that there is a tendency—with which he disagrees—to avoid close evaluation of the choices of those who suffer from profound injustices out of a sense that doing so is either intrinsically inappropriate or likely to do more harm than good. See Michael Walzer, Obligations: Essays on Civil Disobedience, War, and Citizenship (Cambridge, MA: Harvard University Press, 1970), 71–3. See also Shelby, “Dark Ghetto,” 153, and Jennifer Hochschild, “The Politics of the Estranged Poor,” Ethics 101 (1992): 560–78, especially 570–8. I think the “more harm than good” concern is true in many social contexts, but this does not foreclose a focus on morally appealing kinds of political action by those in such conditions, even if it gives reasons for treating normative mistakes gingerly. While the idea of the political philosopher as social designer is at least as old as Plato, the architectural metaphor in Thomas Hobbes’s Leviathan seems to me to capture many of the aspirations behind this approach most clearly. See Thomas Hobbes, Leviathan (Oxford: Oxford University Press, 1996), ch 29. Hobbes mixes the architectural metaphor with a biological metaphor that plays no obvious role in current debates about ideal theory. See, e.g., the general statements about the relationship between justice and other aspects of ideal theory outlined in Rawls, A Theory of Justice, 4–6. The general portrait of ideal theory is expected to hold under conditions of relative prosperity like those existing in the United States and Western Europe. For concerns about this presumption, see, e.g., Colin Farrelly, “Justice in Ideal Theory: A Refutation,” Political Studies 55 (2007): 844–64 at 848–56. Rawls believed that systematization was necessary to overcome unhelpful forms of intuitionism. For a brief discussion of these aspirations, see, e.g., G. A. Cohen, Rescuing Justice and Equality (Cambridge, MA: Harvard University Press, 2008), 4–5. Cohen offers plausible grounds for rejecting this aspiration as misplaced, though Cohen’s theoretical alternative has severe problems of its own. See, e.g., Rawls, Theory of Justice, 8–9. Rawls, Theory of Justice, 7. Justice as fairness “generalizes and carries to a higher level of abstraction the traditional idea of the social contract,” and is thereby addressed to individuals, even if Rawls later refers to “representatives” when

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using the formal device of the original position. Rawls, Theory of Justice, 3. See more broadly the view of political philosophy described in John Rawls, Lectures on the History of Political Philosophy (Cambridge, MA: Harvard University Press, 2007), 1. John Rawls, The Law of Peoples (Cambridge, MA: Harvard University Press, 1999), 7. For reasons of clarity I follow A. John Simmons, “Ideal and Nonideal Theory,” Philosophy and Public Affairs 38 (2010), 7 in presenting Rousseau’s original quotation rather than Rawls’s division of the phrase. Many nonideal theorists argue for a distinction between “hard” and “soft” constraints. “Hard” constraints are those that cannot be changed under any conditions, such as basic physical limits, economic laws, human cognitive capacities, and so on. By contrast, people can be motivated to overcome “soft” constraints, even if it is unlikely that they will actually do so. See, e.g., Holly Lawford-Smith, “Understanding Political Feasibility,” Journal of Political Philosophy 21 (2013): 357–68. While the distinction is important conceptually and can be valuable for ranking the relative feasibility of social possibilities, it will often be difficult to recognize which kinds of constraints we face. See, e.g., Gerald Gaus, The Tyranny of the Ideal: Justice in a Diverse Society (Princeton: Princeton University Press, 2016), 33–6 and 80–4. Both Rawls and Rousseau use the term “men” here, which indicates the limited idealizing capacities of both Rawls and Rousseau. I am thus not directly quoting their words, but rather the notion itself. Much more could obviously be said about the degree to which their gendered terminology reflects broader limits to their imaginations. For concerns about gendered presumptions in Rawls’s work, see, e.g., Susan Moller-Okin, “ ‘Forty Acres and a Mule’ for Women: Rawls and Feminism,” Philosophy, Politics, and Economics 4 (2005): 233–48. See Rawls’s claims about the relation between burdens and compliance in Theory of Justice, 6. See also Rawls’s concise statements about the role of realistically utopian political philosophy in Lectures, 11 and Law of Peoples, 7. For discussion of the relationship between the assumption of full compliance and “realistic utopias,” see Ben Laurence, “Constructivism, Strict Compliance, and Realistic Utopianism,” Philosophy and Phenomenological Research 97 (2018): 433–53. Rawls was especially concerned with the ways in which utilitarian theories demanded more of individuals than they could reasonably be expected to bear, e.g., Theory of Justice, 176–83. See also the discussion in Simmons, “Ideal and Nonideal Theory,” 9. Similar psychological expectations guided Rawls’s presumption that some form of state would be necessary in any form of human community as well.

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19.

20.

21.

22.

23. 24.

25.

Strategies of Justice If principles of justice were able to reliably secure their own adherence in all cases, coercive legal mechanisms would not be necessary. Rawls, Theory of Justice, 240–1. For discussion of this position, see, e.g., Cohen, Rescuing Justice and Equality, 146–8 and 309–10 and Gaus, Tyranny of the Ideal, 30. For a fruitful use of architectural comparisons for understanding and evaluating ideal and nonideal theory, see David Wiens, “Prescribing Institutions Without Ideal Theory,” Journal of Political Philosophy 20 (2012): 45–70. Although I only rediscovered Wiens’s paper as this chapter neared completion, with its architectural metaphor already developed, many of the arguments here can be fruitfully read in conjunction with his analysis. For example, John Tomasi has suggested that economic freedoms are an important source of “self-authorship,” such that they must include opportunities to found businesses and undertake other kinds of creative economic activities: see Free Market Fairness (Princeton, NJ: Princeton University Press, 2012). Rawls expected a society with the basic structure he defended to generate its own long-term support, so that the “realistic utopia” he outlined would be fully possible. Not all suppositions about human psychology will lead to such optimistic views of the achievable. One might give greater centrality to Rousseau’s own words in the Discourse on Inequality, that “the flaws which make social institutions necessary are the same as make the abuse of them unavoidable”—a presumption that might lead to a rather different kind of ideal than that outlined by Rawls. Jean-Jacques Rousseau, The Basic Political Writings (Indianapolis: Hackett University Press, 1987), 77. See, e.g., the defense of political “realism” in Matt Sleat, “Realism, Liberalism and Non-ideal Theory Or, Are there Two Ways to do Realistic Political Theory?” Political Studies 64 (2014): 27–41. See the discussion of the “neighborhood constraint” in Gaus, Tyranny of the Ideal, 74–84. Sometimes ideal theory is conceptualized as akin to “basic research,” without expecting that the arrangements it defends could come about in some foreseeable world, as considered, e.g., in David Estlund, “Utopophobia,” Philosophy and Public Affairs 42 (2014): 113–34 at 133–4. It is not clear whether there could be a “basic research” equivalent for evaluating the ethics of political action, though this might be an interesting intellectual project for those who incline in this direction. It is not only Rawlsian forms of ideal theory that have this rhetorical structure. Although Karl Marx stringently avoided prediction about what the future would hold, he sometimes suggested that political

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change would happen automatically when widespread recognition of the goal to be pursued was achieved: “It is a matter of confession, no more. To have its sins forgiven mankind has only to declare them to be what they really are.” Karl Marx, “For a Ruthless Criticism of Everything Existing,” in The Marx-Engels Reader (Second Edition), ed. Robert C. Tucker (New York: WW Norton, 1978), 12–15 at 15. When clarity was achieved about what justice required, this description suggests, there would be no need to strategize about how to achieve it—all or enough of those involved would simply rearrange themselves accordingly. This claim may or may not be in tension with other arguments in Marx’s corpus. 26. One of the most promising approaches to questions of agency within the idiom of debates about ideal theory is that of Pablo Gilabert, “Justice and Feasibility: A Dynamic Approach,” in Michael Weber and Kevin Vallier, eds., Political Utopias: Contemporary Debates (Oxford: Oxford University Press, 2017), 95–126. Gilabert argues for a focus specifically on agents and how they might reasonably take into account information about their social context in deciding how to act. 27. Shelby (“Dark Ghetto,” 154–5) is unmoved by concerns of this kind, since he suspects that most of those responsible for injustice will be unpersuaded by philosophical argument anyway: Unfortunately, in light of the ill will, selfishness, and callous indifference of many of their fellow citizens, social justice might not be achievable unless the ghetto poor take on a good deal of the burden in reforming their society. As has so often been true in human history, the oppressed must play a large role—sometimes they have to be the principal agents— in ending the unjust practices they are subjected to. . . . .The fact that this is, in some sense, unfair is irrelevant. 28. I have focused elsewhere on the political dangers of some of Jeremy Waldron’s arguments about the expiration of Aboriginal property claims on grounds that these arguments are likely to produce social harms. See Burke A. Hendrix, “Political Theorists as Dangerous Social Actors,” Critical Review of Social and Political Philosophy 15 (2012): 41–61. One might reasonably argue that the current work holds some potential dangers of the kind I attribute to Waldron. See also Robert Jubb and A. Faik Kurtulmus, “No Country for Honest Men: Political Philosophers and Real Politics,” Political Studies 60 (2012): 539–56. Given the value of rendering the difficult choices associated with Aboriginal political action more easily grasped in philosophical terms, it has seemed appropriate to write the current book all things considered, but nonideal theory needs continued development in articulating the costs and benefits of its own deliberative approaches.

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29. Many Rawlsians and other partisans of ideal theory would be unsatisfied with a political world that existed without all of those involved understanding its character—with it emerging behind their backs, as it were—which creates another potential set of objections to permissions for strategic political action. Although broad public justification of this kind is central to Rawlsian theory, concerns of this kind seem insufficient when we are seeking to overcome deep injustices, rather than more minor injustices. For an evaluation of severe injustices compared to those that are incidentally unavoidable in political life, see Rawls, Theory of Justice, 352–5. 30. John Rawls, Political Liberalism (Expanded Edition) (New York: Columbia University Press, 2005), Lecture IV. 31. In Theory of Justice (350–91), Rawls carefully evaluates the limits of obligations to obey unjust laws within a “nearly just” society, concluding that civil disobedience and conscientious refusal are often legitimate. Andrew Sabl argues that Rawls intends this phrase in a specialized sense, to refer to societies characterized by a basically sound theory of justice that is not applied to all in fair ways. See Sabl, “Looking Forward to Justice,” at 311–12. Even on this more textured conception of a nearly just society, however, it is not clear to me that the Jim Crow South would qualify, especially in its worst periods. For an extended evaluation of one political actor within the Southern racial order, see, e.g., Desmond Jagmohan, Making Bricks Without Straw: Booker T. Washington and the Politics of the Disfranchised (Cornell University PhD Dissertation, 2014). 32. Rawls, Political Liberalism, 250–1. 33. On this version of nonideal theory, we are presumed to have a clear ideal target in mind, which is accurate enough to strategize toward over a long period of time. The metaphors are often geographic (see, e.g., Simmons, “Ideal and Nonideal Theory,” 34–5): the ideal tells us what “mountain” we wish to reach, whereas nonideal theory helps us to identify obstacles within the current political world around which we must circumnavigate. The language of navigation can be deceptive here, however, because we are seeking to change the order of society rather than simply to bypass certain fixed objects. If control of a society by a small cadre of elites represents a “barrier” to be “navigated past,” we should keep in mind that our end goal is not simply to bypass this terrain in some geographical sense, but to change it such that the “barrier” no longer exists. 34. See, e.g., Wiens, “Prescribing Institutions”; see also Amartya Sen, “What Do We Want from a Theory of Justice?” Journal of Philosophy 103 (2006): 215–38.

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35. I take this to be the strategy of Leif Wenar, “Property Rights and the Resource Curse,” Philosophy and Public Affairs 36 (2008), 2–32. Of course, Wenar would have good strategic reasons to dispute that portrayal if my interpretation is correct: rhetorical manipulation rarely works when it averts to its own intentions. (Wenar’s article motivated me personally to donate increased funds to the global poor, however, so doubt about an argument’s full sincerity does not always disqualify its success.) 36. My thanks to Ben Laurence for sharing portions of his in-progress work on the topic of audience choice in nonideal theory with me. 37. It is especially surprising in the Anglo-American case, because two of the central political texts of these traditions—John Locke’s Second Treatise of Government and Thomas Jefferson’s Declaration of Independence—are concerned with precisely the issue of political action in conditions of injustice. Lockean theory, moreover, has led to detailed examinations of the conditions in which individuals are justified in disobeying laws, and of the ways in which individuals may seek to circumvent laws that do not protect them appropriately. See, e.g., A. John Simmons, On the Edge of Anarchy (Princeton: Princeton University Press, 1993). For an application of these principles to oppressed minorities, see, e.g., Chris W. Surprenant, “Minority Oppression and Justified Revolution,” Journal of Social Philosophy 41 (2010): 442–53. Because this tradition focuses on obligation and resistance, however, it tends to leave aside the question of how reforms should occur when they must go through existing institutions. The most sophisticated account of political action within a basically Lockean framework of thinking about authority and resistance is likely Walzer, Obligations. 38. If limiting opposition to civil disobedience constitutes one cautious and restrictive pole for thinking about the options normatively available to those experiencing conditions of profound injustice, another and quite different pole can be found in arguments of thinkers like Frantz Fanon, who see violence to throw off domination as not only necessary but also beneficial. See, e.g., Frantz Fanon, Wretched of the Earth (New York: Grove Press, 2005); cf. Glen Coulthard, “Subjects of Empire: Indigenous Peoples and the ‘Politics of Recognition’ in Canada,” Contemporary Political Theory 6 (2007): 437–60 at 455–6. I take it as unquestionably true that many instances continue to exist in which violence may be justified to throw off severe domination. But the cases that are both most common and most in need of analysis are more prosaic ones: cases where political action in more everyday forms are involved, entailing questions about strategic political action within

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stable but not yet just states. There is thus an odd gap in investigations of the ethics of political action between civil disobedience and revolution. 39. A number of scholars have argued that Rawls’s conception of civil disobedience is overly restrictive for many well-accepted kinds of political contentions. See, e.g., David Lyons, “Moral Judgment, Historical Reality, and Civil Disobedience,” Philosophy and Public Affairs 27 (1998): 31–49; Jennifer Welchman, “Is Ecosabotage Civil Disobedience?” Philosophy and Geography 4 (2001): 97–107; Sabl, “Looking Forward to Justice.” 40. As canonically seen, e.g., in Martin Luther King Jr.’s “Letter from Birmingham City Jail,” in A Testament of Hope: The Essential Writings and Speeches, ed. James M. Washington (New York: HarperCollins, 1991), 289–302 at 294: One who breaks an unjust law must do it openly, lovingly . . . and with a willingness to accept the penalty. I submit that an individual who breaks a law that conscience tells him is unjust, and willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over its injustice, is in reality expressing the very highest respect for law. 41. As Candice Delmas notes, many of the actions of King and Gandhi (and other figures such as Thoreau) do not fit easily within the description of civil disobedience outlined by Rawls, when all of its details are examined. See Candice Delmas, “Civil Disobedience,” Philosophy Compass 11 (2016): 681–91 at 682. Delmas argues for the value of broader, “uncivil,” forms of political disruption, along with actions that fall entirely outside of this paradigm such as assistance to fugitive slaves, without clearly acknowledging the qualitative differences between these two very different categories of action (685). For an account shading closer toward my own, see Candice Delmas, “In Defense of Uncivil Disobedience,” paper presented at the Annual Meeting of the American Society for Political and Legal Philosophy, San Francisco, 2017. 42. See Mohandas K. Gandhi, “Hind Swaraj” and Other Writings, ed. Anthony Parel (Cambridge: Cambridge University Press, 2009), 89: “If this kind of force is used in a cause that is unjust, only the person using it suffers. He does not make others suffer for his mistakes.” This kind of respect for the possibility of one’s own error is intimately connected to respect for other people. Martin Luther King Jr. argued, for example, that “nonviolent resistance does not seek to defeat or humiliate the opponent, but to win his friendship and understanding . . . .The aftermath of nonviolence is the beloved community, while

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44.

45. 46.

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48. 49.

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the aftermath of violence is tragic bitterness.” Martin Luther King Jr., “Nonviolence and Racial Justice,” in A Testament of Hope: The Essential Writings and Speeches, ed. James M. Washington (New York: HarperCollins, 1991), 7–8. This right seems reasonably extended to those who are mistaken in their perception of injustices, if this is the only way to secure space for action by those who will contribute to justice. See, e.g., David Lefkowitz, “On the Moral Right to Civil Disobedience,” Ethics 117 (2007): 202–33 and Rex Martin, “Civil Disobedience,” Ethics 80 (1970): 123–39. As Mark Philp notes, there is a tendency for discussions of political action to focus primarily on civil disobedience at the expense of other forms of politics. Philp notes many widely accepted political movements that have gone beyond this strategy, and calls for a more textured evaluation of politics similar to what I pursue here. See Mark Philp, Political Conduct (Cambridge, MA: Harvard University Press, 2007), ch 8. Michael Walzer, “Political Action: The Problem of Dirty Hands,” Philosophy and Public Affairs 2 (1973): 160–80. Jeffrey Green argues that “plebeian” citizens within stable democracies—those who are less advantaged but not subject to remediable forms of injustice—should be willing to violate many of the ideals of liberal democracy in favor of “vulgar” politics, which often breaches rules of civility. Green argues, however, that they should understand this as “learning how not to be good,” in ways that are intrinsically ambiguous in normative terms. This may or may not be appropriate for the conditions that Green describes, but it certainly does not seem to apply to those facing remedial and profound kinds of injustices. See Jeffrey Edward Green, The Shadow of Unfairness: A Plebeian Theory of Liberal Democracy (Oxford: Oxford University Press, 2016), ch 4. Rawls acknowledged the difference between rights and prudence: “There is still, of course, the question of whether it is wise or prudent to exercise this right [of civil disobedience]. Having established the right, one is now free, as one was not before, to let these matters decide the issue.” Rawls, Theory of Justice, 376. Many of the examples described by Shelby have this character. See for example “Dark Ghetto” 151–2 and Dark Ghettos, 212–19. The best investigation of how this question should be navigated within poor African American communities is that of Shelby, “Dark Ghetto,” 151–6. Shelby’s arguments are not without their weaknesses, however, especially in relation to gender. See, e.g., the detailed concerns raised in

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50.

51. 52.

53.

54.

55.

Strategies of Justice Shatema Threadcraft, “Intimate Injustice, Political Obligation, and the Dark Ghetto,” Signs: Journal of Women in Culture and Society 39 (2014): 735–60. One of the more sophisticated attempts to think about political action of this kind, and of the different roles that are necessary within it, can be found in Andrew Sabl, Ruling Passions: Political Offices and Democratic Ethics (Princeton: Princeton University Press, 2002), especially the discussion in chs 5 and 6 of the difference between the “Moral Activist” and the “Organizer.” The terminology of natural duties draws on Shelby, who himself draws on Rawls. See Shelby, “Dark Ghetto” 151–6, and Dark Ghettos, 57–9. As may be clear, my thinking about the ethics of political action has been informed by scholarship in African American politics. I have greatly benefited by Desmond Jagmohan’s research on the political strategies of Booker T. Washington and other canonical African American thinkers in the post–Civil War period, and by many conversations with him about the ethics of political action in conditions of profound domination. See Jagmohan, Bricks Without Straw. Unfortunately, Indigenous peoples in many parts of the world remain subject to severe brutality and direct violence. As one example among many, in Guatemala in the 1970s and 1980s, Mayan populations were specifically targeted for extreme levels of violence. See, e.g., Etelle Higonnet, ed., Quiet Genocide: Guatemala 1981–1983 (New Brunswick: Transaction Publishers, 2009), 127–33. As Aristotle notes, we must aim for the appropriate level of argumentative precision for the topic at hand. See Aristotle, Politics (Indianapolis: Hackett Publishing, 1998), Book I. Although Aristotle’s own method for describing virtues as a kind of mean is intellectually frustrating, it is hard to see that how to be much clearer in many instances. As the discussion of proportionality in Chapter 5 should make clear, ambiguous decisions that cannot be stated in clearly principled terms permeate our political lives. Over time, it should be possible to build up a broad set of standards for evaluating the permissions available to the unjustly disadvantaged as political philosophers, political practitioners, and others begin to work through individual examples. For this work to be effective, it needs to be systematic, wide-ranging, and accessible. Debates surrounding the ethics of war may provide a good template for work in this regard, involving as they do conversation between academics, practitioners, and the legal community. Because just war theory is structured to be accessible by those fighting on both sides of wars, however, while the ethics of political action apply only to those who can make reasonable

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56. 57.

58.

59.

60.

61.

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claims to suffering injustice, it may be hard to find public institutions that will participate in this research over the longer term. I have in mind especially Shelby, “Dark Ghetto” and Dark Ghettos. Political actors acting within particular portions of a political opportunity structure also develop distinctive skills sets that are not easily repurposed to new environments. See Sabl, Ruling Passions, ch 5 for discussion of the difficulties that Martin Luther King Jr. had in moving to new styles of political address. Here I agree with Philp, Political Conduct, 1–2: “[P]olitical action and commitment and the dynamics of political struggle powerfully influence people’s understanding and interpretation of what they value and must strive for, and what they can accept as fair, reasonable, and just.” See also Sabl, Ruling Passions, for arguments about why certain kinds of political activity require personal transformations in certain directions. Discussions of a “neutral judge” are usually traced to the work of John Locke, whose own terminology is a “known and indifferent judge.” John Locke, Second Treatise of Government (Indianapolis: Hackett Publishing), ch 9. For an explanation of the idea of political opportunity structure as it is used by empirical scholars of social movements, see Sidney Tarrow, Power in Movement: Social Movements and Contentious Politics (Second Edition) (Cambridge: Cambridge University Press, 1998), ch 5. Given the degree to which Aboriginal politics in Canada are legal politics, a full analysis within the idiom of social movement scholarship would require focus on the legal opportunity structure of Canada as well. See, e.g., Ellen Ann Andersen, Out of the Closets and Into the Courts: Legal Opportunity Structure and Gay Rights Litigation (Ann Arbor: University of Michigan Press, 2006), ch 1. Legal opportunity structures vary in certain ways from political opportunity structures, but the conceptual differences are not important here. I silently merge the two notions together throughout the book to avoid unnecessary complexity. Indian tribes in the United States discovered that they had legal rights to operate for-profit gaming enterprises, for example, even though there was no explicit recognition of such rights in American law when the first operations began. These rights were written into Federal-level legislation only after tribes won court cases acknowledging that nothing in American law prohibited such activities. The policy that has arguably done the most to transform Aboriginal economies in the United States over the past thirty years was thus not the product of Congressional or executive creativity, but of creative Aboriginal leadership. For an overview of this policy and its history,

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62.

63.

64.

65.

66. 67.

68. 69. 70.

Strategies of Justice see, e.g., Stephen Pevar, The Rights of Indians and Tribes (Fourth Edition) (New York: Oxford University Press, 2012), ch 16. See Gandhi, Hind Swaraj, chs 16–17. Although often framed through earthy examples, Gandhi’s was a deeply sophisticated doctrine. See, e.g., the detailed explication in Karuna Mantena, “Another Realism: The Politics of Gandhian Nonviolence,” American Political Science Review 106 (2012): 455–70. See Gandhi, Hind Swaraj, 96: “Academic questions such as whether a man may not lie in order to save his life, etc., arise, but these questions occur only to those who wish to justify lying.” Gandhi’s conception of speaking truth is consistent with a kind of generosity and kindness toward those one addresses, so that it is somewhat less categorical than Emerson’s argument that one should “go upright and vital, and speak the rude truth in all ways.” See Ralph Waldo Emerson, The Essential Writings of Ralph Waldo Emerson, ed. Brooks Atkinson (New York: Modern Library, 2000), 134. For an argument within Aboriginal philosophies that the means adopted unavoidably shape the ends achieved, see Leanne Betasamosake Simpson, As We Have Always Done: Indigenous Freedom Through Radical Resistance (Minneapolis: University of Minnesota Press, 2017), e.g., 19–20. For empirical evidence that strategies of the kind described throughout this book can be successful, see, e.g., Alison L. Gash, Below the Radar: How Silence Can Save Civil Rights (Oxford: Oxford University Press, 2015). Different kinds of political contexts seem to require different kinds of personalities and practices to succeed. See Sabl, Ruling Passions. Lisa Tessman, Burdened Virtues: Virtue Ethics for Liberatory Struggles (Oxford: Oxford University Press, 2005), 114. I draw especially on ch 5, “The Burdens of Political Resistance” and her conclusion. I frequently move some distance from the kinds of examples that Tessman describes, so that in many cases my analysis is loosely inspired by her own, rather than drawn directly from it. The key idea throughout is that strategic political actions may lead to the creation of habits and valuations that would not be part of a more fully flourishing social world. See also Lisa Tessman, “Idealizing Morality,” Hypatia 25 (2010): 797–824. See the examples in Tessman, Burdened Virtues, 19 and the discussion of this general category at 166. Tessman, Burdened Virtues, 121–4. Glen Coulthard, for example, has argued that the forms of “recognition” and “reconciliation” offered by the Canadian state should

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essentially be seen as efforts to defuse the political potential of Aboriginal political movements by integrating them into the Canadian political order as subordinate partners. See Coulthard, “Subjects of Empire.” Many other Aboriginal scholars and political actors make similar kinds of arguments. For worries about Dale Turner’s work in this regard, see, e.g., Bruce Morito, An Ethic of Mutual Respect: The Covenant Chain and Aboriginal-Crown Relations (Vancouver: UBC Press, 2012), 194–6. 71. For empirical information on the degree to which members of Aboriginal peoples in the United States see themselves as connected to the non-Aboriginal political institutions around them, see, e.g., Kouslaa T. Kessler-Mata, American Indians and the Trouble with Sovereignty: A Turn Toward Structural Self-Determination (Cambridge: Cambridge University Press, 2017), ch 5. 72. Political theorizing can, in some cases, become actively dangerous to the cause of justice when certainty about the ideal future is coupled with a strong insistence on its direct pursuit. This is especially true when ideals created with one context in mind are shifted to different contexts without sufficient care for the slippages occurring in that translation. I have written about the dangers of the deployment of high theoretical aspirations elsewhere, albeit in somewhat polemical tones that I now regret. See Hendrix, “Political Theorists as Dangerous Social Actors,” 41–61. Burke A. Hendrix, “Context, Equality, and Aboriginal Compensation Claims,” Dialogue: Canadian Philosophical Review 50 (2011): 669–88 and Burke A. Hendrix, “Historical Injustice, Rawlsian Egalitarianism, and Political Contestation,” Canadian Journal of Law and Jurisprudence XXVII (2014): 73–98.

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CHAPTER 3 Deliberation and Political Strategy

As noted in the Chapter 1, Anishinaabe philosopher Dale Turner has argued that Aboriginal political actors should respond to persistent injustice by acting as “word warriors,” who defend Aboriginal nationhood and self-determination within the threatening discourses and legal structures of the Canadian state.1 This involves careful engagement with dominant political and intellectual structures in unequal conditions: because law and patterns of political argumentation continue to be shaped by colonial presumptions, word warriors must work to expose those flawed presumptions where possible, and must act in self-defense against them through other means where this is not possible. It will often be necessary to shelter traditional Aboriginal philosophies and ideas from political scorn and assault, Turner argues, either by refusing to talk about them or by continually redirecting the conversation back to more directly political topics. Such word warriors must be carefully strategic to defend the just moral claims of Aboriginal peoples, recognizing that words are tools of political action that can bring positive change only when correctly calibrated. In this chapter, I will examine the topic of deliberation within conditions of persistent injustice with a primary focus on Turner’s central concern: Canadian legal and political debate. Anglo-American political philosophy has not grappled centrally with questions of political action by those facing conditions of persistent injustice, despite the political and normative importance of this topic. Chapter 2 outlined some potential reasons for this relative neglect, grounded in the nature and attractions of ideal theory as an approach. I argued there that those who are disadvantaged by such injustices have normative permissions to act politically in ways that others do

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not, but I also suggested that these permissions should often be exercised with care, given their potential for problematic side effects. I noted that evaluation of political action requires careful attention to the political structures in which that action takes place, and to the options and inducements that these structures may offer. In this chapter, I want to show how these concerns can play out within the specific discursive tradition (Canadian law) that is Turner’s focus. Turner does not specify exactly the kinds of means that are permissible for word warriors to adopt. I want to consider a range of deliberative possibilities here, with a focus on the standards of deliberative democracy and the costs and benefits that particular strategic approaches might create. My focus will be primarily on Aboriginal political leaders rather than on the intellectuals that Turner considers, but the same kinds of concerns about political strategy hold for both (see Chapter 1). As I noted in Chapter 2, examination of the channels available for pursuing political change is essential for thinking about political action in practice. Social movement scholars often refer to this as the political opportunity structure, though one might also think of it as the dominant set of constraints on political action. In Canada, Aboriginal politics are most strongly judicial politics, and it is, therefore, judicial politics that frames the structure of debate.2 This arises primarily from the constitutionalization of Aboriginal rights in Section 35 of the Constitution Act of 1982.3 While debates about the future of Aboriginal peoples obviously take place in many other locations as well, ranging from Parliament to bureaucracy to university classroom, the central terms of debate remain set by the courts. The dominance of the courts thus induces particular patterns of deliberation from Aboriginal peoples even in social spaces far from the courts themselves. Legal institutions require Aboriginal peoples to speak within particular kinds of terminologies that make it difficult for them to state their claims openly and honestly, not only within the courts but within Canadian political debates more broadly. I will argue that Aboriginal peoples are often under no requirement to speak transparently or honestly in conditions of this kind when their own unmet moral interests are at stake. I will suggest, moreover, that Aboriginal political efforts will often be more effective if Aboriginal leaders acknowledge this permission, and think carefully about where they are making use of it and where they are not.

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3.1 Democratic Deliberation and Persistent Injustice Before turning to the structures of deliberation within Canada’s political opportunity structure and to Aboriginal political strategies, I want to outline the set of ideals against which permissions for political action must be set. Many normative theorists who defend deliberative democratic theory have argued that political life should be more than simply the contestation of interest groups, each pursuing their own political gain without reference to the common good or normative principles. They argue instead for a more demanding style of democratic life, which gives central place to processes of mutual justification via deliberation and other communicative means.4 The core argument of deliberative democratic theory is that political decisions are morally and legally justified when they can be reached on the basis of reasons shared openly by all affected by them, in ways that have not been created by communicative manipulation or political coercion. The goal is to create a political system in which everyone can understand and affirm the reasons for social arrangements to exist as they do. Consider this formulation by philosopher Joshua Cohen: Deliberation is reasoned in that the parties to it are required to state their reasons for advancing proposals, supporting them or criticizing them. They give reasons with the expectation that those reasons (and not, for example, their power) will settle the fate of their proposal. In ideal deliberation, as [ Jürgen] Habermas puts it, “no force except that of the better argument is exercised.” Reasons are offered with the aim of bringing others to accept the proposal, given their disparate ends and their commitment to settling the conditions of their association through free deliberation among equals.5

For a deliberative society to come about in this way, we must expect and require participants to speak honestly and openly about their real beliefs. Those who engage otherwise are likely to be regarded as “manipulative” and “disrespectful,” liable to pursue their political goals without any concern for how others are treated.6 It is hard to see how meaningful deliberation can occur if most citizens do not behave appropriately. How could a system based on shared reasoning function if participants are unwilling to speak honestly to one another about what they believe and why they believe it? I take this conception of democratic theory as normatively correct in its ultimate aspirations, as does Turner. We should, I believe, desire a society in which laws and other forms of social order are

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justified on the basis of reasons given openly and accepted by all involved without coercion or manipulation. Democratic debate should, in ideal conditions, take place on terms of openness, transparency, and mutual desire to reach equitable, agreed-upon outcomes. The chapter’s concern, however, is with this question: in the face of persistent injustice, are Aboriginal peoples permitted to behave strategically in speech and other forms of communication?7 As Cohen notes, deliberative democratic theory is an ideal to be pursued, rather than a description of actual democratic practice.8 I will argue that Aboriginal peoples frequently are permitted to speak strategically, even to the extent of saying things that are untrue—that they have permissions to speak untruth to power. I will argue that Aboriginal political leaders will often maintain their moral perspective more effectively if they admit to themselves the permissibility of such actions. Some versions of deliberative theory might deny such permissions entirely, and insist that those facing conditions of persistent injustice must simply keep deliberating as the aspirations toward open and transparent justification demand. An ideal theory that focuses on the public maintenance of high standards is likely to incline in this direction, for fear of weakening the standards put forward for everyone, including the already powerful. As a publicly promulgated standard, this is not implausible, and, indeed, it may be both intellectually and politically essential. Yet, as I noted Chapter 2, standards of this kind generally do not describe the permissions held by those facing persistent injustice and, indeed, often cannot do so without generating mixed messages. As a description of the normative condition of those seeking to escape persistent injustices, such a position seems obviously inequitable in its impacts on those who are already overburdened.9 It may often be politically wise to insist publicly on a standard of this kind, but that does not make it plausible on its own normative terms. An examination of the ethics of political action by the disadvantaged requires something further. Many deliberative theorists have pushed for the extension of deliberative theory beyond a relatively rigid exchange-of-reasons model, in hopes of opening up more effective deliberative space for those facing deliberative or substantive inequities within the space of broadly promulgated standards.10 Deliberative theorists who revise deliberative theory in this way are often seeking to relax

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the strictures of democratic deliberation on all participants, in hopes that these more capacious standards will be helpful to those pursuing normative improvements for their own conditions.11 Many deliberative theorists have defended the value of sincere personal narrative and rhetoric as viable elements of a reasoned conversation, for example, even if they do not rely simply on direct argumentation.12 Thus someone who offers a personal narrative of a particular kind of injustice they have suffered or a particular way in which they have experienced social institutions may be offering the most transparent kinds of reasons that they can convey, even if these are not simply made in propositional form. Communicative methods of this kind are often necessary to give a detailed texture to one’s arguments, or to convey arguments that a person does not know how to state in general terms. Many kinds of rhetoric may similarly have this quality, in seeking to draw people in to conversations in which shared terms of agreement can come to the fore, so that the implications of these agreements can be articulated more fully. These arguments often have a great deal in their favor, but they nonetheless seem insufficient in the present context. Whatever the standards are for those who are not facing persistent injustice, surely more distinctive permissions are held by those who do face it. Some scholars have sought to outline the permissions held only by those facing injustices. As noted in Chapter 2, John Rawls, who did more than anyone else to formulate the notion of “ideal theory,” held that it was appropriate for those suffering serious injustices to engage in civil disobedience, while making sincerely held religious arguments that he otherwise hoped to remove from the public sphere. Similarly, David Estlund has argued that profound deliberative inequities can generate grounds for constrained transgression where deliberative norms are concerned, in which violations of political civility (e.g., forms of action that shut down public meetings) are used in seeking to better approximate fair deliberation in conditions where existing deliberative structures generate injustices.13 As social movement scholars have noted, repertoires of disruptive or contentious politics can be quite broad,14 and one can envision a range of positions on precisely how disruptive this action might be, with permissions scaled according to relative degrees of injustice suffered: the more profound the form of injustice, the more disruption is permissible.15 While these approaches have many strengths, they

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generally presume that actions of this kind are taken transparently and in the open.16 Drawing from Estlund, we might refer to these as strategies of open transgression. These revisions to deliberative democratic theory and others like them have helped to build a more nuanced portrait of the ethical structure of political action in inequitable conditions. However, it seems to me that they do not calibrate matters in quite the right way for conceptualizing the ethics of political action by those facing persistent injustice. It seems, instead, that those facing persistent injustice often have permissions to act in highly strategic, nontransparent terms, even to the extent of saying things that are untrue. These might be described as instances of concealed transgression. More polemically, such actions might be described as speaking untruth to power. Many arguments about political disruption seem to hold a paradigm case in mind when conceptualizing how political change happens, which is drawn especially from the Civil Rights Movement in the United States and other similar models of highly public action intended to force a crisis and subsequent political realignment.17 This model of social change seems mistaken, or at least far from exhaustive, where Aboriginal political action is concerned. Many of the actions that have helped to reduce the maltreatment of Aboriginal communities over time have been carried out largely beyond the public eye.18 Persistent injustice is often brought about by institutional structures that lock into place certain kinds of discourses and patterns of action, and these structures are frequently differentiated in complex ways. Changes to these structures will sometimes come about through highly public forms of political action that force powerful social actors to change their behaviors, but many kinds of deliberative action take place in much less spectacular forms, in building small political shifts in multiple locations. Indeed, careful day-to-day work will often be necessary to set the stage for public action, by, for example, developing new interpretations of laws or by slowly accreting certain kinds of decision-making authority to certain institutional nodes, and so on.19 There are thus many locations in which strategic speech can be important, many of them not especially public, though always under the partial and diffuse observation of many specific political actors and, occasionally and sporadically, the larger citizen public.

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In this more variegated and institutionalized environment, the kinds of decisions that must be made about communicative strategies are themselves often more ambiguous and complex, with patterns of deliberation taking place in a mix of highly visible locations and in less-visible environments. Strategies of concealed transgression might take place either within a given forum or as part of a larger strategic effort across multiple forums. Forum-specific strategies might be adopted within specific institutional structures as a deliberation-approximating mechanism to bring patterns of debate closer to those that would prevail within the institution itself if it were willing to listen to a broader range of reasons. The relationship between specific deliberative forums and broader debates in the public sphere is often strong, however, with broader patterns of public deliberation shaped by specific deliberative forums such as Supreme Courts. This will be the case for the examples I consider here. In these circumstances, there are reasons to accept broader, cross-forum kinds of strategic action shaped by a broader permission to normative self-protection, which may entail strategic action even within forums that are themselves well-constructed, in light of their anchoring role within broader structures of persistent injustice. I will focus on permissions of this broader kind throughout the chapter.

3.2 Canadian Law and Dominating Discourses The easiest case for concealed transgression would be one in which the dominant party is clearly unwilling to abide by anything like deliberative requirements. Permissions to speak untruth to power do not hinge on the failures of others to have high deliberative aspirations, however, but on harmful discursive and deliberative environments themselves. I will thus focus throughout on cases in which it is not clear that the non-Aboriginal party involved is motivated by straightforward hostility, or that it is flagrantly refusing to abide by the rules of fair deliberation. My interest is in cases where systemic structures make the realization of justice difficult. While debate represents an unavoidable part of human society, given our capacity to evaluate the terms by which we live, all societies have some social structures that are much more powerful than others in setting the terms of this debate.20 They matter not only for their formal role in deciding controversies in coercively binding (i.e.,

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“legal”) ways, but for their effects in structuring broader social patterns of discourse as well.21 In other words, they fundamentally set parameters for the political opportunity structure in which political action must take place.22 In virtually all cases, disadvantaged political actors will find their deliberative prospects strongly constrained by one or a few overarching institutions that both determine policy and shape broader patterns of discourse.23 Understanding the political decisions they face will often require close historical and contemporary examination of these institutions and the discourses that they create. In this chapter, I will focus on a Canadian example that illustrates the problem I am concerned with. Roughly analogous structural limitations exist in the American case, as well, though with important differences that will be considered in Chapter 4. Current Canadian Aboriginal politics is strongly shaped by the judiciary, both legally and within the broader sphere of public deliberation.24 The Canadian Supreme Court has been tasked with interpreting the rather spare text of Section 35 of the Constitution Act of 1982, the core text of which states simply, “The existing Aboriginal and treaty rights of the Aboriginal peoples of Canada are hereby recognized and affirmed.”25 These rights have been most centrally conceptualized as rights of property ownership (“Aboriginal title”) held by Aboriginal groups. While the Canadian state made many treaties with Aboriginal peoples during the period of its expansion, it frequently violated the terms of those treaties. Moreover, huge swathes of Canada were “acquired” by the provinces or the confederation without even the pretense of treaties, especially in British Columbia and in the north. This means that Aboriginal peoples continue to hold property rights to these areas, which must somehow be “reconciled” with the current sovereignty of the Crown.26 The evaluation of Aboriginal title rights is inherently backward looking over a very long time scale. In the words of Canada’s Supreme Court: [F]rom a theoretical standpoint, Aboriginal title arises out of prior occupation of the land by Aboriginal peoples and out of the relationship between the common law and pre-existing systems of aboriginal law. Aboriginal title is a burden on the Crown’s underlying title. However, the Crown did not gain this title until it asserted sovereignty over the land in question. Because it does not make sense to speak of a burden on the underlying title before that title existed, Aboriginal title crystallized at the time sovereignty was asserted.27

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To demonstrate that they continue to hold land rights, Aboriginal peoples must meet strong tests of continuity between the early periods (1868 or before) in which Canadian sovereignty was asserted and their current conditions, demonstrating the ways in which they have continued to represent roughly the same kinds of culture and group, to maintain bonds with these spaces, and so on. This has important ramifications for the ways in which Aboriginal claims appear in the broader public sphere: as resolutely backward looking. Because the specific legal terms of debate surrounding these land claim processes are generally unfamiliar to non-Aboriginal Canadians, the arguments that Aboriginal peoples make often seem peculiar in political spaces outside of the courts and in broader public conversation.28 When courts demand effective legal arguments to show a long genealogy to property claims, requiring Aboriginal claimants to speak over and over about events that may have occurred in 1868, or even as long ago as 1763, this leads non-Aboriginal citizens who know little of the legal context to see Aboriginal claimants as deeply obsessed with long-ago events. Aboriginal peoples are thus induced by legal mechanisms to present their claims in ways that lock in a broader public image as political relics, even if they would prefer to make arguments of a very different kind. Aboriginal groups are understandably concerned to maintain the legal framing that gives them political leverage, but the cost of doing so is frequently either incomprehension among those who are not Aboriginal or a misunderstanding of the kinds of normative goals that Aboriginal peoples actually have. The stakes for land claims are high, and they stretch far beyond land narrowly construed. Rather, they have deep ramifications for the flourishing of Aboriginal peoples both now and in the future, since Aboriginal title provides the legal underpinning for other kinds of rights, as well as the best mechanism for preventing ongoing forms of dispossession in the face of resource extraction—something that is frequently accompanied by ecological damage that may render locations virtually unlivable. Because these legal structures themselves are focused on land transactions, however, they have very little directly to say about the conditions necessary for Aboriginal communities to live well in the present and future, and courts are in no way required to take this into account. Aboriginal peoples thus must meet demanding tests to show that they still have rights to land,

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speaking within the dense historical terms required by the courts and soliciting evidence from historians, anthropologists, and others, even when their ultimate goal is to ensure the long-term viability of communities that have suffered from poverty, violence, and racism for a very long time.29 In the absence of such rights, these communities are often effectively powerless, being unable to exercise selfgovernment, protect themselves from resource extraction, and shape their own future.30 Land claims processes become, in other words, the dominant location within the political opportunity structure through which change can be pursued. It is not impossible to create conditions for the flourishing of Aboriginal communities outside of these processes, but it is nonetheless extremely difficult.31 They are, for most purposes, “the only game in town.”32 If Aboriginal peoples do not pursue such claims, they are likely to lack all legal tools to control aspects of their own futures. Yet what results from successful claims conceptualized in Canadian law is a proprietary (property) right, with only weakly associated rights of Aboriginal self-determination or self-protection.33 Generally, Aboriginal peoples are able to negotiate only limited claims to small portions of their originally claimed territory,34 and those claims are themselves not legally robust despite their constitutional status, because Aboriginal ownership rights can be overridden by Canadian institutions with relative ease: [T]he range of legislative objectives that can justify the infringement of Aboriginal title is fairly broad . . . [T]he development of agriculture, forestry, mining, and hydroelectric power, the general economic development of the interior of British Columbia [or another province], protection of the environment or endangered species, the building of infrastructure and the settlement of foreign populations to support those aims, are the kinds of objectives that are consistent with this purpose and, in principle, can justify the infringement of Aboriginal title.35

While some of these purposes (e.g., the protection of the environment or endangered species) are clearly matters of justice, most of the purposes instead involve forms of resource development that may be harmful to both the Aboriginal community involved and more broadly (e.g., for many kinds of fossil fuel extraction). Most of these justifications for infringement, in fact, are the kinds of reasons that were historically offered for incursions into Aboriginal

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communities in the first place. The basic parameters of such claims are thus relatively tightly drawn: if Aboriginal people press land claims, they stand a chance to gain better legal control over many aspects of their future, while still lacking strong footing from which to move forward into more stable political circumstances. The pursuit of land claims and the subsequent defense of rights once acquired are thus a central and necessary obsession of those who lead Aboriginal groups, whatever other goals they might wish to pursue as well. Given the nature of the background legal environment, arguments made in court may have consequences that stretch far beyond the courtrooms themselves, into many aspects of the public sphere, and vice versa. If a tribal leader makes a particular kind of argument in the newspapers, for example, or within the public records of a tribal meeting, this may be applicable as evidence in some legal contexts. Even if it is not, it may be used in newspapers or parliaments as a method of evaluating the sincerity and defensibility of specific Aboriginal legal arguments, or by judges in choosing how to decide cases before them. There are thus difficult issues of communication at work here: institutions require Aboriginal peoples to speak within particular kinds of terminologies that render their claims peculiar within the broader non-Aboriginal public sphere. Other disadvantaged groups surely face problems of this kind as well, although they will vary in form. Those who know these other cases should consider how the discussion here might proceed differently with them in view instead. The basic problem here is profound: Aboriginal leaders must carefully regulate their arguments to be consistent with legal framings in most all public settings, if they are to make their claims in the strongest possible way. Moreover, these legal structures do not only have effects on strategies and perceptions within the non-Aboriginal public sphere. They also have effects on the worldviews of Aboriginal leaders themselves. Those who speak within particular patterns of discourse over and over again, throughout multiple aspects of their political lives, are understandably likely to find their understanding of political goals shaped by these discourses. The framing of Aboriginal title claims as primarily matters of ownership, for example, can easily occlude other ways of understanding what is at stake.36 As one example among many, consider this account of an interaction between an Aboriginal political leader and his grandmother:

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[ Joe Johnson] had been out in the bush inspecting a piece of land that the [Kluane First Nation] was considering for selection as part of its land claim. His grandmother had accompanied him; she was sitting by the fire sewing while he walked around with a map trying to decide on an appropriate boundary for the land selection. After a while, she called him over, offered him tea, and asked what he was doing. He told her he was working. “What do you mean ‘working’? You’re just walking around with a map.” He explained the land claim process to her, and she became upset when he learned that he was trying to figure out which land belonged to Indians and which to the white men. She told him that was a crazy thing to do, for no one can own the land – neither white men nor Indians. The land is there; we move around; we die. How can anyone own it? She said she had thought “land claims” meant that the government and native people were getting together to try to figure out how to keep the land and the animals safe for their children and grandchildren.37

For this Aboriginal grandmother, the language of proprietary rights is a fundamentally mistaken way of framing what is at stake. The relevant language instead lies in responsibility and stewardship as necessary to maintain the conditions for the flourishing of future generations. Questions about the future well-being of her own community and of others are, for her, necessarily at the center of debate. Neither the future-oriented character of the grandmother’s concern nor its terms fit readily with the intrinsically backward-looking structure of the legal claims process as a whole. Nor are her concerns readily expressible within the language of property.38 The problem is not that Aboriginal peoples have no concepts that could be described as “ownership” on some interpretations of the term. Ways of conceptualizing specific relations between persons and parts of the material world are not alien to Aboriginal traditions: virtually all Aboriginal peoples have highly developed methods for specifying the relations between particular persons and particular aspects of the natural world, including patterns of use and responsibility. The problem is that many of the details of these relationships are only partially captured by the language of “ownership” and “property,” especially when concerns about future flourishing are included, so that moving swiftly between one discourse and another is often extremely difficult, while the dominant side of the relationship can continually shift discussion back to its preferred footing.39 Using one terminology rather than another brings with it multiple logical relationships,

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empirical presumptions, canons of interpretation, and so on, all of which predispose courts toward particular outcomes.40 A language of responsibility for future flourishing is likely to function much differently than a language of possessive ownership, even if this language also retains a role for connections between persons and places that might fit the terminology of “property” under some interpretations.41 In those conditions, an Aboriginal group seeking to protect the quality of life for its future generations unavoidably finds itself handicapped from making the claims it believes within specific institutional forums and thereby—given the dominance of these institutions—from securing the conditions necessary to protect its future.42 Johnson describes himself as embarrassed after his grandmother’s questions, precisely because he recognizes their dialogic force: they remind him of things that he should have remembered all along.43 The problem of intellectual slippage here is very hard to avoid, and political leaders will not always have their grandmothers available in this way. These intellectual slippages may not always take the specific form outlined here, but they are pervasive within the broader legal structures of Aboriginal title claims in Canada. To think about the impacts of these discursive limitations in a general way, and to frame the chapter’s discussion of deliberative strategies, presume that an act of translation into the preferred language of the courts is likely to leave what I will call a remainder: that is, a set of claims that are important but unable to be translated effectively.44 One need not assume that translation is strictly impossible. It may simply be too burdensome to carry out by specific persons, for example, because they lack sufficient knowledge of all potential legal doctrines, or lack the resources to hire those who have it, or are forced to move quickly by the courts’ schedules, and so on.45 Or it may be that judges can perfectly well understand all of the ideas articulated by the other side, but do not regard arguments of this kind as appropriately “legal,” so that they are disregarded even when dialogically transparent. The salient situation is one in which certain kinds of ideas cannot be conveyed such that a mutual position can be reached that is fully comprehensible and acceptable to the side that has an effective veto on political outcomes.46 The terminology of “remainder” refers to the portion of these ideas that, for one reason or another, cannot be fully expressed—or at least fully heard—within this asymmetric deliberative situation.47

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What should Aboriginal actors do if this remainder includes important arguments that are essential to their justified moral claims? As an artificial but illustrative example, imagine that one half of the normatively justified claims of an Aboriginal group can be met by the legally translatable portion of their discursive claims, but that the other half cannot. There are various ways in which this might be instantiated. Perhaps there are subtle issues about the relations of stewardship between groups and the territories on which they live involved, which are clear and well-debated within traditional Aboriginal philosophies, but which are lost in attempts to reframe ideas into the language of the courts. Or perhaps the remainder simply contains claims that non-Aboriginal judges could easily understand on their own merits, such as concerns about the destructive effects of Canadian patterns of resource extraction (e.g., of oil from tar sands) but that are judged to be irrelevant according to the legal standards governing a particular case. Both kinds of problems are, to some extent, present in the grandmother’s concerns noted above, and a full survey would show that there are multiple ways in which Aboriginal groups face powerful remainders when dealing with the courts.48 My interest here is not in outlining specific remainders in detail, however, but in evaluating the structure of the problem and in thinking about legitimate political responses. What precisely should Aboriginal actors do in such conditions, when they are, for one reason or another, unable fully to make arguments concerning the character of their lives to the institutions that substantially control their futures? In conditions of this sort, seeking to be deliberatively successful and seeking to be argumentatively sincere will often come into conflict. In cases of this sort, I want to argue, it is generally permissible for Aboriginal political leaders and other Aboriginal actors to give up the aspiration toward sincerity. It is also likely to be wise to do so. Where institutions reproduce patterns of discursive domination that are associated with persistent injustice, it seems legitimate for disadvantaged political actors to be less than fully frank and open in their speech when this is necessary to protect important moral interests or to create conditions under which fair terms of deliberation can be more closely approximated over the long run. Insofar as these discourses filter out into the wider public sphere, the relevant permissions for strategic action seem to travel with them. When these

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structuring institutions play a fundamental role in shaping public deliberation more broadly, and sometimes even bring elements of that public deliberation into their courtroom, Aboriginal leaders and others seem readily justified in foregoing transparency and sincerity as a response. I will argue that even outright untruths are often morally permissible—what I have called speaking untruth to power. I will argue, moreover, that Aboriginal leaders will sometimes fare better in their role if they are not always concerned with speaking the full truth, though there are prudential reasons to exercise these permissions only with great care.

3.3 The Harms of Sincerity In Chapter 2, I separated discussion of moral permissions in conditions of persistent injustice from questions of self-transformation for clearer conceptual explication.49 The relationship between the two can often be quite close, however, and this is the case where democratic deliberation is concerned. Those who advocate deliberation as a mechanism of creating shared, legitimate political outcomes often focus on the ways in which deliberation can transform the viewpoints of those who engage in it, as they come to take on new beliefs and values they would not otherwise have had. Such transformation is likely to occur in circumstances that do not mirror ideal forms of deliberation as well, because these, too, involve the exchange of reasons, albeit of an incomplete sort. Yet these kinds of transformations can be dangerous: those who attempt deliberation where dominant kinds of discourses are set by powerful institutions are likely to be transformed in directions favored by those institutions. Where institutions provide the stable background for human flourishing, such adaptations to institutional discourses are likely to be valuable, because they socialize individuals into mutually beneficial ways of seeing the world. Where those institutions are structurally bound up with persistent injustice, however, these adaptations can often replicate the pathologies of the discourses associated with them. In cases of this kind, politically harmful forms of self-transformation by Aboriginal leaders are likely to be reduced by admitting the permissibility of insincere or even untrue argumentation. Explicating the costs of sincerity in such cases helps to show why. In what follows,

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I will consider a range of responses to these conditions of discursive domination, as well as how they might affect those who engage with them, to better map out the range of potential strategies in these circumstances. I want to consider first two discursive strategies that insist on sincere, transparent argumentation in at least some deliberative fields. The most unyielding approach might be to attempt a full range of argumentation no matter what, in hopes of leading to a revision of dominant structures: to continue to assert one’s full range of claims even in the face of continuous rejection, harmful political blowback, or, in legal venues, injunctions to cease from distracting speech, in the hope that eventually others will listen, perhaps in the broader public sphere if not in the courts. We might refer to this as insistent transparency.50 This is not an absurd response: one can continue to follow one’s conscience in all regards, knowing that the responsibility for deeply flawed outcomes will rest in the intransigence of others. For many Aboriginal social actors who are not enmeshed within court cases or other kinds of legal venues, this will be the most natural and often most effective kind of speech. (I will have more to say about this below.) For those who are engaged in extended interaction with legal or other governmental institutions, however, there is reason for a great deal more caution. This approach can be costly when one’s community is the victim of persistent injustice that powerful institutions play a role in maintaining, and where incautious speech might make matters worse.51 In legal forums, continued attempts to speak about the remainder are likely to lead to being silenced altogether. If one is unwilling to speak according to the rules of appropriate argument (as set by legal procedures and so on), the occupants of state offices might understandably ask, why should others listen at all?52 At the same time, speech in public that does not fit with the expectations of the law can undermine the clarity of one’s case in the broader public sphere, or even within the courtroom. In many cases, then, insistent honesty and complete disclosure is unlikely to prevail when pursued by those who are otherwise best located to move at least some levers of political power. An alternative strategy, which steps away somewhat from fully transparent argument, is to relinquish all attempts to discuss issues in the remainder, and to focus on being as honest and open as one can in

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the institutionally permitted field of discourse instead: to speak sincerely but not completely. This might be referred to as a strategy of field-specific transparency. At first glance, it might seem a good compromise between the desire for honesty and the parameters of political possibility. Yet, in fact, it may be a strategy ripe for problematic forms of self-transformation. What happens to the remainder in this instance? It is likely to be a difficult balancing act psychologically to believe something deeply but feel unable to speak of it, while still seeking to be fully sincere elsewhere. One possible outcome is thus that the remainder will be intellectually abandoned over time, either as politically hopeless or simply forgotten in the intense pursuit of other political efforts, so that the ideas contained in it fail to ever receive any sort of hearing. If Aboriginal leaders, to be politically successful and to understand themselves as sincere, must effectively give up half of the moral claims they would otherwise make, this raises obvious problems. It may be the case that achieving half is better than nothing; future Aboriginal leaders may be able to jury-rig better conditions, despite land rights that are ill-suited to protect their communities’ future, for example. But the losses are nonetheless profound, and they demonstrate the failure of deliberation to achieve its own aspirations. Moreover, another outcome seems psychologically possible when the strategy of field-specific transparency is attempted, and that is in many ways more troubling, since it may often be hard to avoid. My own suspicion is that very few Aboriginal leaders will be able to simply silence their knowledge of the remainder even if they wish to do so.53 In these instances, there are powerful reasons for those dedicated both to achieving increased justice and to speaking honestly to seek to translate the remainder into terms that are politically efficacious, even if such translation is in fact impossible given the terms permitted by dominant political actors.54 If all claims over land must be framed as issues of property ownership and historical rights, it is tempting to believe that this language can capture all that is morally important if handled in just the right way, and to either hope that the correct translation will emerge naturally as the process continues or actively reinterpret ideas from the remainder until they begin to seem consistent with the permitted terminologies. Thus one can begin to believe that the language of ownership and the rights associated with it in Canadian law can in fact capture relevant notions

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of (e.g.) responsibility to future generations, even when the details of the law (or the concept of ownership itself) make these translations awkward at best.55 In other words, one begins by seeking an honest way to bridge the remainder, and finds a way to make the bridge that is plausible but not in fact accurate. In seeking to remain sincere, one begins to lose track of one’s own beliefs; what can be said begins to shape what one believes should be said. Those dedicated to honesty and to political success may persuade themselves out of the remainder in an urge to be fully transparent; less gently, we might say that they rationalize themselves out of some of their beliefs in an effort to remain sane in difficult conditions.56 It is important to emphasize that sincere and well-meaning people seem the most vulnerable to such adaptations. Aboriginal activists and others in nongovernmental capacities often accuse Aboriginal leaders in formal positions of pursuing far too limited of political and deliberative programs because they have been co-opted by the personal benefits they receive through state institutions.57 Such benefit seeking is surely true in some cases, given normal human failings. But it is likely also true that many Aboriginal leaders come to abandon discussion of the remainder or continually mistranslate it because they deeply want to succeed for the people they represent. Political argument is difficult in the best of conditions, and the conditions facing Aboriginal actors are vastly more demanding. When leaders find themselves articulating claims within a particular kind of language over and over again, often in highly formalized ways with high stakes, it should not be surprising if they come to think in that language, whether they prefer this or not. Moreover, one should take seriously the possibility that Aboriginal leaders making such efforts may sometimes succeed in their attempts at translation, so that they have understandable grounds to keep making such efforts. Before attempting, it is not always obvious whether particular ideas can be successfully translated or not: sometimes, novel forms of argumentation can find ways to bring much of the remainder into official conversation. Even if land claims deliberation must always be conducted in the language of historical ownership, debates can sometimes take surprising shifts, and sometimes arguments that were previously in the remainder, even for generations or centuries, may become viable again. This seems to some degree true for claims about stewardship and responsibilities to

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avoid environmental harms in the present day, as principles of this kind of have increasingly entered into state law. Some apparently hopeless efforts at translation may unexpectedly succeed, at least partially, and this prospect is likely continually to draw leaders into deeper and deeper engagement with the preferred discourses of state institutions.58 Sincere attempts at translation should thus not be conflated with simple co-optation or self-seeking behavior, but they nonetheless continually pose dangers that the remainder will be lost even by those who struggle mightily to protect it. In conditions of this kind, where dominant institutions require particular kinds of languages to have reasonable hopes of political success, sincerity and a desire for transparency are at a minimum not unalloyed goods, either for the overall quality of deliberation or longer-term escape from persistent injustice. This suggests reasons to think seriously about the benefits that may emerge from giving up the requirement of sincerity in such cases, and to consider carefully the potential benefits of strategic argumentation and—at least sometimes—of speaking outright untruths.59 I do not believe many Aboriginal groups in fact practice the latter, and empirically there are good reasons for them to forgo it in most instances, given the potential for political blowback. But I will argue that it would often be morally permissible for them to adopt such techniques, even if there will usually be good prudential reasons to avoid doing so.

3.4 Speaking Untruth to Power There is a variety of strategic positions as one moves increasingly away from full transparency, each of which may play out differently within different political opportunity structures. Given the presumptions of deliberative theory against strategies of this kind, I want to examine the kinds of self-transformations with which different strategies might be associated, to better evaluate the relative dangers to those who engage in each. The arguments here are unavoidably empirical and psychological, and readers should evaluate them accordingly. (There is of course nothing unique about such empirical and psychological predictions, since many kinds of normative theorizing, such as Rawlsian ideal theory, cannot do without

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them either.) There are multiple ways of acting as a “word warrior,” and even if all are equally permissible in conditions of persistent injustice, they may not be prudent or appropriate given their likely outcomes. As I will show below, the difficulties of empirical and psychological prediction matter within Aboriginal communities as well: there are likely to be a range of positions on the costs and benefits of such strategies within Aboriginal communities, and these are likely to lead to disagreements between leaders and ordinary members in a variety of circumstances. The strategy that deviates the least from the aspirations of deliberative theory is what might be called internal critique: where one seeks to show the logical consequences of another’s moral commitments, even though one does not share those premises. Two approaches here are likely to be regarded as unproblematic by deliberative theorists, one negative or eliminative, and the other positive or constructive. The negative approach focuses on the exposure of incoherent ideas to clear ground so that something else can take their place. An Aboriginal scholar or political leader who seeks to show that non-Aboriginal conceptions of property, sovereignty, or some other concept are self-contradictory is engaged in this kind of strategy. Turner’s strategy, with which the chapter began, often invokes something like this kind of negative critique, in seeking to expose unstated colonial presumptions in Canadian law.60 Such a strategy can also be deployed in a more positive or constructive way as well, however, to show that a political conclusion is dictated by particular premises, even when performed by someone who does not endorse those premises. Deliberative democratic theorists will generally not see anything morally problematic about this constructive strategy, so long as it wears its intentions openly. It says something along the lines of “I do not believe this, but you do, so you should therefore reach the following conclusions.” Deployed in this way, the strategy is open about the kind of argumentative style being deployed and, therefore, sincere, even if not fully revealing about the views one prefers instead. Both positive and negative forms might be described as instances of transparent internal critique. There are unfortunately many conditions in which it would be self-defeating to acknowledge that one is adopting a strategy of internal critique rather than of open and honest disclosure. This is often the case for legal arguments about Aboriginal rights, in which it

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is essential to make arguments that use the discursive frames and terminology of the courts even when one is outside of them, with no admission that one would prefer some other kind of discourse instead. Where legal discourses dominate the broader public sphere, it will be necessary to manage carefully one’s statements with an eye to the broader context as well as immediate venue. As I noted above, there are complex feedbacks between arguments made in court or at a treaty negotiating table and discourses that appear in the wider Canadian public. Arguments made in legal settings are likely to set the tone for public debates more broadly, however awkwardly legal terminologies may be misinterpreted by those who do not know what the law requires. In turn, arguments made in the public sphere can sometimes be used as evidence in courts about an Aboriginal group’s traditional or current beliefs. Aboriginal leaders know that ordinary institutions of public deliberation are deeply structured by the courts, that their movements are watched closely, and that everything they say may ultimately be repurposed against them. They will thus have good reasons to articulate the same argument repeatedly in multiple venues in hopes of reinforcing its effects within the most legally consequential venues. Such consistency can work only if one gives no hint that one does not fully endorse the arguments made. We might call this veiled internal critique. There are likely to be variety of moral losses associated with this careful managing of arguments from the perspective of democratic deliberation, especially as these arguments enter into the broader public sphere beyond the narrow strictures of courts or other formal venues, and these should be acknowledged. A person who adopts this strategic attitude does not enter the public debate in a fully open and sincere spirit, since she is not describing the reasons for the outcomes that she wishes to realize, and is acting as if she does not in fact have such reasons. This may have broad ramifications for engagements on both sides. As defenders of deliberative democracy have noted, effective deliberation usually builds trust among those who engage in it, as those involved commit to cooperative relationships by making claims and then behaving according to them over a long period.61 Since argumentative strategies of this kind are likely to be recognizable as strategies in many cases, these kinds of cooperative relationships seem less likely to form: this strategy makes estrangement or continued estrangement more likely. Moreover,

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leaders who approach politics in this way are likely to miss any opportunities that exist for actually changing current deliberative patterns beyond those already officially dominant, or to miss opportunities for deliberation in other venues for similar reasons.62 These leaders will also be frustrating to those who are committed to absolute honesty, and to nonleaders who do not understand why many things of value to them simply are not being discussed. Yet there are likely to be normative benefits to a strategy of veiled internal critique if Aboriginal leaders are persistently self-aware about its strategic character, rather than seeing themselves as engaged in effective acts of translation. Those who seek to be as open and honest as possible have structural inducements to lose their own capacity to recognize remainders where they exist, as noted above, while someone who self-consciously adopts a strategic attitude toward deliberation with dominating institutions is much less likely to do so.63 There is little reason to lose track of the remainder here, because it is likely to be used as a touchstone on a daily basis for formulating appropriate deployments of the strategic tools available in legal and other dominant discourses. Veiled internal critique can insulate the remainder from attack, while using it as a primary source for weighing one strategy against another. When the moral stakes are high, this kind of protection and clarity can be extraordinarily important.64 Keeping moral perspective in the midst of political conflict is hard. One way to achieve this is to keep clearly in mind the distinction between what one hopes to ultimately achieve and the means— argumentative or otherwise—that are necessary to achieving it. It may seem that moving further along on a spectrum of strategic speech will always facilitate moral clarity, but this does not actually seem to be the case. There is thus good reason to think carefully about the effects of a range of strategies. Consider a further case in which an Aboriginal leader insists not only on particular interpretations of dominant state legal principles, but also that particular relations exist between those dominant principles and Aboriginal legal principles, even when this is not in fact true. We might refer to this as argumentative insincerity, in which one actively asserts the truth of an argument that one believes to be false, rather than simply giving this impression by omission. Thus one might, for example, assert publicly that Aboriginal responsibilities for future generations are reflected perfectly in a specific legal argument about Aboriginal title,

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even if they are not, because one hopes to gain leverage that might support other kinds of political action in the future. One might adopt such a strategy, for example, if asked directly in a public forum about such connections between existing law and Aboriginal values, where giving such an answer would create a stronger appearance of the full and open conversation that would lead to better public perception of one’s efforts. This is a clear case of saying something that is untrue, since it actively claims a correspondence between ideas that does not actually exist. Deliberative theory would generally brand arguments of this kind as “manipulative” or “disrespectful.”65 The first term is an accurate description, because it regards one’s interlocutors as part of a systemic structure that must be navigated rather than directly persuaded, but the usual normative resonances of the term seem inapplicable here: manipulation is not intended to take advantage of others, but to protect one’s basic moral interests by countering the effects of dominant discursive institutions. It may be, to some degree, disrespectful of those others, since it anticipates that they will not be moved by sincere arguments.66 But it is often simply true that they will not be moved, and respect for one’s own moral interests seems to straightforwardly outweigh this concern. In conditions of persistent injustice, where political structures and the deliberative patterns associated with them make political change in some directions very difficult, carefully calibrated responses to those circumstances do not seem morally distasteful. On the other hand, the potential for dangerous forms of self-transformation through a loss of moral perspective may be high here. Insofar as a strategy of claiming active sincerity requires one to continually describe elements of the remainder in ways that are consistent with dominant terms, one may accidentally adopt a strategic attitude toward the content of the remainder as well. One may begin to see in the remainder not that which is really there, but to find elements in it that are conducive to one’s daily political struggles as they have been framed by others. One might, for example, reinterpret long-standing Aboriginal ideas of stewardship as merely anthropological data, useful as evidence of historically based ownership but otherwise irrelevant in the present. In these conditions, it may be highly dangerous to seek to explain the relation between dominant discourses and one’s own; it may be safer instead,

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if one can, to adopt only a principle of veiled internal critique as described above, by limiting conversation only to interpretation of the dominant discourses to protect the clarity of what one really values.67 At a minimum, such strategies need to be handled with care, even if they are morally permissible to attempt.68 The dangers of negative self-transformations seem to reduce again if we step further along the spectrum, to the direct use of strategic untruth, where one makes straightforwardly untrue claims about factual or other matters—the clearest case of what I have referred to as speaking untruth to power. Consider an imaginary example. Canadian law requires that an Aboriginal group demonstrate unbroken connections to a territory from the time of confederation or before, along with a well-developed account of Aboriginal law that explains relationships to the relevant territory.69 Against this legal context, imagine an example in which the group’s residence in a particular area has not actually been unbroken and in which their law is quite vague about their responsibilities to the specific territory. After examination of Canadian law, they determine that they do not in fact have connections of the kind that the law requires. Nonetheless, the relevant land is not being cared for well, and it is obvious that it will be ecologically destroyed by resource extraction if a land claim is not successful, in ways that will cause serious spill-over effects into areas where the Aboriginal group currently lives, with predicted harms to health and well-being for more than one generation. Let us specify that the Aboriginal group lacks an equally plausible alternative legal option for defense of these territories. Nor do they have other powerful political resources, given their relatively small numbers and the forces arrayed in favor of extraction. In this instance, would they be morally permitted to knowingly present false information about their occupancy or use patterns to the legal system or to larger deliberative institutions if they were able to do so successfully? This case is intended to be hypothetical both in its details and in the general decision it considers. I do not believe that it describes the practice of any actual Aboriginal land claimants—I certainly will not try to name any—and it is easy to imagine ways in which deception would fail in this instance. (Courts generally require voluminous testimony, exactly to make efforts of this kind of strategy hard to pursue successfully, and claims made in the public sphere may be

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caught up within their legal ambit.) The relevant question is whether such a strategy would be permissible in circumstance of this type if it were possible to pursue it successfully. It seems to me that it clearly would. Barring severe countervailing conditions, communities ought not to have the ecological basis of their lives destroyed, or their health damaged in profound ways. If a dominant deliberative structure allows or causes this to happen without real and deep deliberation about alternatives, it fails to achieve one of the basic reasons for its existence. Feeding incorrect information into such a flawed system to reach an outcome closer to that expected from an ideal deliberative system is thus simply counteracting flawed institutional mechanisms by appropriate means. Deliberative structures are failing in their very purpose in this instance, and it is hard to see how they can have overriding legitimacy at the very point where they are failing. It is hard to see why one would oppose deception in this circumstance if it could be used effectively. Deliberation is intended to help us reach a political world in which all people are treated appropriately, according to principles that they have good reasons for accepting, but in instances where the system fails in persistent and damaging ways, it seems permissible to use other mechanisms to bring about the appropriate protections. Given the value of deliberative systems, there are reasons to hesitate before responding to them with means of this sort, but one should not hesitate forever.70 The value of such actions is especially strong where they might help to build more satisfactory deliberative conditions going forward, through, for example, institutional change or changes in consultative requirements. In the current imagined case, there are reasons to believe this might occur: falsifying some information would lead this hypothetical Aboriginal group into a claims-negotiating process that offers somewhat greater chances of allowing their more complete views to be heard, and increased control over lands and resources would reciprocally give them slightly greater opportunities to be heard in other venues (e.g., in terms of environmental management at higher levels of government). A successful claim, in other words, would give them a stronger institutional footing in the deliberative system as a whole, even if it would remain, on balance, a weak one overall. There can, of course, be complex tradeoffs here, which can likely only be evaluated for specific cases. There may be cases where false

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information might help with protecting a particularly important sort of moral interest, for example, while at the same time worsening the future usefulness of a particular deliberative forum. Or the opposite may be true, such that sacrificing an important moral interest now may help with building a stronger deliberative setting over the long term. There is thus much more that could be said about the full moral picture associated with political choices of this kind, especially about their impact on the status of other groups (Aboriginal or otherwise) who may make later use of particular deliberative institutions. These questions of proportionality in action are the topic of Chapter 5. But we should not let these important difficulties occlude the basic normative point: speaking untruth in defense of important moral interests or a less hostile institutional environment will often be morally justified, and may sometimes be prudentially necessary. Would it in fact be a good idea for Aboriginal groups to attempt to adopt a strategy of strategic untruth very often? It seems to me that the answer will generally be no, though others who have acted more deeply in political conditions of this kind may disagree. Dishonesty in court or the public sphere is extremely devastating when exposed, and it is often hard to maintain for long periods under intense scrutiny. Moreover, it is very difficult to maintain among multiple persons at once, so that Aboriginal groups may be badly suited to maintaining such a strategy where issues of serious importance are involved. High-stakes strategies of untruth of the kind used for illustrative purposes here thus seem permissible but rare. But politics often involves a vast number of smaller or more ambiguous untruths, some of which can sometimes have important social impacts over the long term. If the analysis outlined here is correct, there may be many reasons to believe that these are generally permissible for those facing conditions of long-standing disadvantage when necessary to reduce those disadvantages, so long as they do not thereby inflict disproportionate harms on others in similar conditions (see Chapter 5).

3.5 Strategy and the Division of Labor Given the relationship between patterns of persistent injustice and many kinds of deliberative forums, I have argued that Aboriginal peoples behave permissibly if they adopt a generally strategic attitude

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toward the dominant political institutions with which they must interact, even when these institutions are by aspiration intended to foster open deliberation. They must be careful to ensure that their actions are not counterproductive or excessively harmful to other parties (see Chapter 5), but what matters is the impact on leaders and the group itself rather than fidelity to the rules of deliberative forums or to open conversation in the public sphere. Indeed, the argument here suggests that it will often not be necessary for Aboriginal leaders to specify to themselves precisely which degree of honesty and disclosure they are adopting in regard to dominant deliberative institutions, so long as they find ways to remain clear about the character of the remainder and what they are trying to achieve. In some cases, it will be difficult to determine from the thick of political conflict whether one is being somewhat deceptive or translating claims imperfectly or translating them fully. Insofar as all of these strategies seem morally permissible so long as deliberative institutions continue to channel discourses in problematic ways, it seems that Aboriginal peoples are permitted to concern themselves primarily with the effectiveness of particular strategies and their implications on their own psychological capacities and relationships. Divergent kinds of strategies may be successful within particular deliberative and institutional forums, and it seems reasonable to believe that Aboriginal peoples are permitted to adjust according to the opportunities that they face.71 Because Aboriginal political leaders are simply human beings acting in difficult and ambiguous political conditions, they will often make mistaken decisions this way, sometimes with stakes that are very high. This has implications for deliberative practices within Aboriginal peoples themselves. For obvious reasons, Aboriginal leaders should think carefully about what they hope to achieve by any given strategic action, and whether they are adapting their strategy to their goals or instead are being unintentionally subverted by their strategic engagements with structuring state discourses. In the middle of political efforts, however, it seems too much to expect them to do this very well. In conditions of this kind, it seems appropriate for Aboriginal communities to continually regard those leaders who interact strongly with state institutions with caution and even distrust. When leaders are permitted to think strategically, it is nonleaders who must take responsibility for continually reminding them that a remainder is in fact at stake. Consider the

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relation between Joe Johnson and his grandmother again. Johnson, it seems, has adopted many ways of thinking from Canadian law, while his grandmother expresses frustration and bafflement about the distortions involved in doing so. There are good reasons to believe that both may be playing their social role responsibly. Johnson, in the middle of political conflict, may be unable to succeed without speaking in language that is often not his own. Yet his grandmother and others like her seem essential to remind him of what he is doing, and to help him navigate the hard questions of what to defend and what to give up. She cannot easily fulfill his role, but it seems hard to see how he could succeed at hers as well. There are thus good reasons to believe that divisions within Aboriginal communities themselves about legitimate methods of deliberative engagement may serve a valuable long-term role in conditions where dominant institutions necessarily create an intellectual remainder. This functional role is often difficult for outsiders to recognize, however.72 As I noted earlier, the claims made by Aboriginal representatives within legal settings must usually be consistent with statements made by those representatives in broader public settings. Thus Aboriginal leaders will need to be very careful about making public statements that might be inconsistent with the dominant legal structures in which they are most commonly engaged. An Aboriginal leader engaged in land claims negotiations, for example, will be required to base public statements on long-standing historical ownership of a set of lands, and to make frequent reference to legal transactions undertaken long ago. This necessarily leads such leaders to appear resolutely backward looking in the broader public sphere, where assertions about old wrongs seem to represent simply an inability to move on.73 Those watching from a distance generally do not understand the social conditions that require this kind of speech. They are therefore likely to perpetually misunderstand the strategic nature of these arguments, and to be confused or angry when they see other members of the same Aboriginal people making different kinds of statements. Functional and necessary divisions will often be misconstrued by outsiders as mere political disorganization. This is not to say that all divisions within Aboriginal communities will ultimately be functional in this way, since difficult political conditions create divisions of a more agonizing kind. Aboriginal communities will often be divided in painful and fractious ways not

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because they disagree about the long-term political goals they would like to achieve, but because they disagree about which strategies are permissible and effective in pursuing an escape from persistent injustice, even when they accept the need for divisions of labor. As I outlined above, there are a variety of ways in which political actors might behave strategically in speech. There will be many within Aboriginal communities who will be comfortable with some stages along the spectrum I have outlined above and not others. For some, these will be normative reasons, such that certain kinds of speech seem to treat others with insufficient respect. For others, any nontransparent strategy will seem intrinsically shameful, as a kind of cringing in the face of injustice.74 Others will disagree about the psychological changes that particular strategies will bring for leaders, both with my evaluations here and with each other. Some will thus see certain strategies as dangerously self-transformative of leadership, while others will see those same strategies as conducive to clarity of moral vision. In the absence of a clear language for discussing gradations of transparency in strategy, there may even be cases where members of Aboriginal communities think they disagree about basic normative questions, where they simply have different categories of action in mind. Aboriginal leaders, given their visibility within broader Canadian debates, will often be unable to articulate what they are doing openly, for fear of undoing their efforts. All of these conflicts can occur even before one considers the simple empirical question of what works. As anyone who has studied or engaged in political action will know, this is often staggeringly hard to predict, nor is it always clear in retrospect. Many of the conflicts that divide Aboriginal communities thus have deep roots: they represent understandable and normatively permissible reactions to circumstances of profound difficulty. This does not make them any less painful for community members who must navigate these disagreements. Those of us who observe from a distance should thus be careful about passing judgment on the political choices made in this regard without close attention to detail and context. Our primary responsibility should be to do what we can to improve the ways in which deliberative institutions function, so that choices of this kind do not become such a part of everyday political life for Aboriginal peoples and other disadvantaged groups. I have had little to say in this chapter about the social changes that could be pursued by

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non-Aboriginal actors. Nonetheless, it should be clear that the deliberative system in Canada could be improved in important ways. What would have to change for these permissions to no longer be open to Aboriginal peoples? Investigating this question may help us to think about where to lend our own efforts at systemic reform.

Notes 1. Dale A. Turner, This is Not a Peace Pipe: Towards a Critical Indigenous Philosophy (Toronto: University of Toronto Press, 2006), e.g., 7–11, 71–5. 2. See, e.g., the discussion in Fred Bennett, “Aboriginal Rights Deliberated,” Critical Review of Social and Political Philosophy 10 (2007): 339–58. For the broader background of the legal structures in common law that have made such judicial centrality possible, see, e.g., P. G. McHugh, Aboriginal Title: The Modern Jurisprudence of Tribal Land Rights (Oxford: Oxford University Press, 2011), as summarized vii–ix. As Ron Stevenson notes, the centrality of these constitutional debates across Canada has led to an explosion of philosophical literature on Aboriginal rights, which the Supreme Court has shown a willingness to consider in making arguments. S. Ronald Stevenson, The Political Theory of Aboriginal Rights in Canada: Prospects for Reconciliation (PhD Thesis, Faculty of Law, University of Ottawa, 2015), 4. 3. Constitution Act (1982), Section 35 (1), states, “The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.” Courts have thereafter been responsible for determining the meaning of this phrase. 4. This book is itself intended as a contribution to that kind of deliberation. While academic works are sometimes intended primarily as contributions to narrowly academic debates, arguments about Aboriginal politics have broader political and deliberative implications whatever their intentions. I have written about ethical questions surrounding academic discussions of Aboriginal rights elsewhere, though in somewhat different form. See, e.g., Burke A. Hendrix, “Political Theorists as Dangerous Social Actors,” Critical Review of Social and Political Philosophy 15 (2012): 41–61 and Burke A. Hendrix, “Moral Error, Power, and Insult,” Political Theory 35 (2007): 55–573. 5. Joshua Cohen, “Deliberation and Democratic Legitimacy,” in James Bohman and William Rehg, eds., Deliberative Democracy: Essays on Reason and Politics (Cambridge, MA: MIT Press, 1997), 67–91 at 74.

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7.

8. 9.

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It would be mistaken to suggest that Cohen is unaware of issues of power in deliberation and the ways in which institutions can go deeply astray. My use of this standard of deliberative theory is thus not intended to suggest that Cohen would disagree with the conclusions described here, nor that he would agree. Rather, it is intended to illustrate concisely a conception of democratic deliberation that can only be approximated in flawed conditions. Micah Schwartzman, “The Sincerity of Public Reason,” Journal of Political Philosophy 19 (2011): 375–98, at 389. Schwartzman’s more complete statement describes one imagined person who speaks with incomplete sincerity as “manipulative, disrespectful and more likely to pursue her political agenda regardless of whether she has sufficient public reasons.” Schwartzman acknowledges in a footnote that variations from sincerity are sometimes justified in non-ideal conditions (393, footnote 52), but, like many others, does not pursue the issue further. One of the clearer attempts to think about non-ideal standards for evaluating real deliberation is that of Christian F. Rostbll, “Dissent, Criticism, and Transformative Political Action in Deliberative Democracy,” Critical Review of Social and Political Philosophy 12 (2009): 19–36, especially in its articulation of the relationship between inequalities of power and the virtues of deliberators themselves outlined at 26. For a discussion of some of the idealizing features associated with this conception, see, e.g., Cohen, “Deliberation,” 343–4. In addition to prolonging the broader set of persistent injustices against Aboriginal peoples, this position creates additional burdens that are specific to deliberation itself. These burdens are likely to entail significant moral loss, in requiring for example that many Aboriginal actors undertake educational programs to gain deliberative leverage (e.g., the study of law or non-Aboriginal philosophy) and, thereby, more broadly undertake lifestyles that they would not otherwise choose. See, e.g., the kinds of philosophical training described in Turner, Peace Pipe, especially chs 4 and 5. For an example of what such attempts at finding the resources to make speech successful over the long term look like, see the massive and sprawling intellectual career of Vine Deloria Jr., with books ranging from Custer Died For Your Sins: An Indian Manifesto (Norman: University of Oklahoma Press, 1998 [1969]) to God is Red: A Native View of Religion (Golden: Fulcrum Publishing, 2003 [1973]), The Metaphysics of Modern Existence (San Francisco: Harper and Row, 1979), and the posthumous The World We Used to Live In: Remembering the Powers of the Medicine Men (Golden: Fulcrum Publishing, 2006). Deloria’s intellectual efforts across this vast territory varied greatly in effectiveness, which is unsurprising given the vastly complex set of

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questions he attempted to address. For my own response to Deloria’s work, see Burke A. Hendrix, “The Political Dangers of Western Philosophical Approaches,” in Jose Antonio Lucero, Dale Turner, and Donna Lee Van Cott, eds., The Oxford Handbook of Indigenous Peoples’ Politics (Oxford: Oxford University Press, published online 2013). Others might include not only speech, but oppositional forms of political action in which Aboriginal peoples or others who are wrongly disadvantaged combine deliberative engagement with direct forms of oppositional political action, and—when necessary—forms of microresistance to domination. I take something like this to be the position of James Tully: see Public Philosophy in a New Key: Volume 1: Democracy and Civic Freedom (Cambridge: Cambridge University Press, 2008), e.g., 23–5, 239–44, 258–65, 276–8, and 287–8. Tully does not consider political deception within legal environments directly, but the general tenor of his work (particularly his deep respect for Gandhi) suggests that he would be uncomfortable with the position taken here. In addition to these relaxations of full political transparency, it is common for philosophers to defend mild kinds of dissembling or nontransparancy as essential to human social life and, therefore, to showing respect for others in some kinds of political circumstances. See, e.g., Cheshire Calhoun, “The Virtue of Civility,” Philosophy & Public Affairs 29 (2000): 251–75. Civility in this sense is essentially about displaying respect for others, rather than securing just treatment for oneself, and it is something expected of all citizens rather than permitted to those suffering from persistent injustice. See also Thomas Nagel, “Concealment and Exposure,” Philosophy & Public Affairs 27 (1998): 3–30. Iris Young, e.g., argues that personal narrative is often permissible in deliberation, while John Dryzek has defended the value of bridging rhetoric and other kinds of speech. See, e.g., Iris Marion Young, Inclusion and Democracy (Oxford: Oxford University Press, 2002), 63–77; John S. Dryzek, Foundations and Frontiers of Deliberative Governance (Oxford: Oxford University Press, 2010), 76–82; and John Dryzek, “Rhetoric in Democracy: A Systemic Appreciation,” Political Theory 38 (2010): 319–39. My arguments throughout this chapter are influenced by Dryzek’s arguments about the value of rhetoric and other methods of indirect communication for building a satisfactory deliberative system over the long term. David Estlund, Democratic Authority: A Philosophical Framework (Princeton: Princeton University Press, 2009), 193. Estlund (193) refers to the problem as “power’s interference with reason.” See also, e.g., Archon Fung, “Deliberation before the Revolution: Toward an Ethics

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of Deliberative Democracy in an Unjust World,” Political Theory 33 (2005): 397–419. William Smith and James Brassett argue that in evaluating non-standard interventions into deliberative systems, “we should focus on factors such as the extent to which . . . action X contributes to authentic deliberation in a public space, creates opportunities for marginalized and excluded voices to participate in deliberation across different settings, or improves transmission of opinion from public to empowered space.” William Smith and James Brassett, “Law, Interrupted: On Legislative Disruption and Deliberative Democracy,” Democratization 20 (2013): 522–8. They are drawing on and building from Dryzek, Foundations and Frontiers of Deliberative Democracy, especially 10–14. 14. See, e.g., the variety of strategies of contention outlined in Sidney Tarrow, Power in Movement: Social Movements and Contentious Politics (Second Edition) (Cambridge: Cambridge University Press, 1998), 20–1, 30–42, 96–122. 15. Estlund (Democratic Authority, 200–1) notes that attempts to use countervailing power often lead to results very different from those generated within fair terms of discussion: Countervailing uses of power . . . will not normally neutralize the original insertion of power. If you put a gun to my head, and I put my gun to your head in reply, your use of power has been (at least to some extent) countervailed, in the sense that its ability to skew the deliberations has been scaled back by my response. Still, the power-free ideal of the ideal speech situation or the ideal epistemic deliberation has not been restored. Strategic speech, including well-targeted deception, can often fare better than these means, by bringing the substance of conversation closer to what it would be in conditions that are more open. 16. Most normative and deliberative theorists are likely to be comfortable in some form or another with many of the disruptive techniques of Canada’s Idle No More movement, for example, and other kinds of protests that are done in public, with clear communicative intent about the reasons for one’s actions, the goals being pursued, and so on. For many supporters of Idle No More, its open and public character was fundamental to the form of politics it entailed. Idle No More was seen as a direct, unashamed form of political resurgence that operated outside of the perpetual compromises involved in day-to-day interactions between the elected leaders of Aboriginal communities and the overpowering influence of Canadian bureaucracies. Because it was free of the control of state discourses, it was able to achieve a clearer moral perspective. See, e.g., Glen Coulthard, “#IdleNoMore in Historical

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18.

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Context” and Taiaiake Alfred, “Idle No More and Indigenous Nationhood” in Kino-nda-niimi Collective, The Winter We Danced: Voices from the Past, the Future, and the Idle No More Movement (Winnipeg: Arbeiter Ring, 2014), 32–7 and 347–9 along with many other contributions to this volume. This is argued by, e.g., Andrew Sabl, Ruling Passions: Political Offices and Democratic Ethics (Princeton: Princeton University Press, 2002), 249–51. For a detailed evaluation of policy change for several Aboriginal communities in the United States, see, e.g., Laura E. Evans, Power from Powerlessness: Tribal Governments, Institutional Niches, and American Federalism (Oxford: Oxford University Press, 2011). See also the discussion of political blowback when Aboriginal political conflicts with state institutions becomes highly public in Kouslaa T. Kessler-Mata, American Indians and the Trouble with Sovereignty: A Turn Toward Structural Self-Determination (Cambridge: Cambridge University Press, 2017), 58–61. Sabl (Ruling Passions, ch 6) outlines many of the political practices that were used in organizing the Civil Rights Movement in the United States, where a variety of day-to-day political structures were assembled to build legal cases, train activists, register voters, and so on. Many of the political actions associated with Aboriginal politics in the United States and Canada share this kind of invisible network and capacity building. In the United States, at least, most tribal leaders show a combination of the traits associated with the categories Sabl calls “the Senator” and “The Organizer.” See, e.g., Karl-Otto Apel, “Is the Ethics of the Ideal Communication Community a Utopia? On the Relationship between Ethics, Utopia, and the Critique of Utopia” in Seyla Benhabib and Fred Dallmayr, eds., The Communicative Ethics Controversy (Cambridge, MA: MIT Press, 1990), 23–59 at 46–9. For a discussion of the relationship between forums of decision and other kinds of deliberative forums, see, e.g., Dryzek, Foundations and Frontiers, 10–13. Dryzek distinguishes between ordinary spaces of deliberation and “empowered” spaces of deliberation (e.g., legislatures and courts). In Canadian practice, the two kinds of spaces are often deeply interpenetrated. For evidence that political and legal change can often happen best when it takes place largely outside of the public eye, see, e.g., Alison L. Gash, Below the Radar: How Silence Can Save Civil Rights (Oxford: Oxford University Press, 2015). For a valuable theoretical description of how such strategies can be positioned in regard to deliberative democracy

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23.

24. 25.

26. 27.

28.

29.

30.

31.

Strategies of Justice and the political science literature on social movements, see especially ch 2 of Gash’s volume. For the purposes of this chapter, I set aside deeper structures of racial presumption, though they pervade most aspects of public discourse as well. They do not necessarily operate the same in all social locations, however: courts may arguably be less sensitive to racism than ordinary debate, given the ways in which they regiment discourse. For a discussion of the way discourses of race can be conceptualized within a Habermasian view of deliberative democracy, see, e.g., David S. Owen, “Coloring Deliberation: Whiteness and Deliberative Democracy.” Unpublished manuscript, on file with author. See, e.g., the discussion in Bennett, “Aboriginal Rights Deliberated.” Constitution Act (1982), Section 35 (1). I have silently capitalized the originally uncapitalized term Aboriginal here to match its use in the book as a whole. See, e.g., R. v. Van der Peet 2 SCR (1996) 509, para 31. Emphasis added. Delgamuukw v. British Columbia, 3 S.C.R. (1997), para 145. I have silently capitalized the term Aboriginal, which the Court left lowercased, to better match the book’s usage. For concerns about the problematic effects of “deliberative inertia” and methods of counteracting them, see William Smith, “Civil Disobedience and the Public Sphere,” Journal of Political Philosophy 19 (2011): 145–66, especially 153–61. See also William Smith, “Democracy, Deliberation, and Disobedience,” Res Publica 10 (2004): 353–77. For examples of the ways in which land claims processes have affected the fields of anthropology and history (as well as political philosophy), see, e.g., McHugh, Aboriginal Title, ch 5. For a rational choice discussion of the ways in which state institutions structure the bargaining conditions of Aboriginal nations, and the results that these conditions create, see, e.g., Christopher Alcantara, Negotiating the Deal: Comprehensive Land Claims Agreements in Canada (Toronto: University of Toronto Press, 2013), 5–9. See 121–5 for a description of the ways in which Aboriginal peoples who seek to negotiate effective treaties must avoid contentious tactics, choose goals that harmonize with those of the Crown and provincial governments, and foster positive views among governmental agents. All of these, it should be obvious, make it very difficult to defend positions contrary to what governmental institutions already believe and seek to pursue. For an argument about how governments should evaluate the flourishing of Aboriginal communities through a policy-specific Rawlsian lens, see Douglas Sanderson, “Overlapping Consensus, Legislative Reform,

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34.

35.

36.

37.

38.

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and the Indian Act,” in Patrick Macklem and Douglas Sanderson, eds., From Recognition to Reconciliation: Essays on the Constitutional Entrenchment of Aboriginal and Treaty Rights (Toronto: University of Toronto Press, 2016), 320–56. Alcantara, Negotiating the Deal, 30. For a detailed outline of the ways in which Canadian courts are likely to react to stronger claims for Aboriginal political authority, with a focus on specific legal doctrines likely to be invoked, see, e.g., Gordon Christie, “Indigenous Authority, Canadian Law, and Pipeline Proposals,” Journal of Environmental Law and Practice 25 (2013): 189–215. In this way, they can plausibly be regarded as a continuation of the processes documented in earlier United States history in Robert Nichols, “Theft is Property! The Recursive Logic of Dispossession,” Political Theory 46 (2018): 3–28. Delgamuukw v. British Columbia, 3 S.C.R. (1997), para 145. I have silently capitalized the term Aboriginal, which the Court left lowercased, to better match the book’s usage. See more recently the discussion of infringement in Tsilhqot’in Nation v. British Columbia SCC (2014) 44. There are reasons to suspect that courts cannot easily escape limiting discursive space in ways of this kind (though in the case of many specific aspects of Canadian Aboriginal law they clearly can do better than they have). Because courts exist almost entirely to structure discourse, it is hard to see how structuring principles that create limits of this kind on deliberation could be avoided. This might be an argument for shifting many kinds of political questions away from courts to other forums that are by their nature more open-ended (e.g., legislatures, negotiating teams, or specific aspects of the public sphere). But managing to shift the location of debate from one forum to another is itself often very difficult, which can in many cases be achieved only by going through the procedures of existing forums. See Bennett, “Aboriginal Rights Deliberated.” Paul Nadasdy, “ ‘Property’ and Aboriginal Land Claims in the Canadian Subarctic: Some Theoretical Considerations,” American Anthropologist 104 (2002): 247–61 at 261. Dissonance of this kind is by no means unusual where Aboriginal arguments are involved. See, e.g., the copious evidence of Aboriginal viewpoints outlined in Canada’s Report of the Royal Commission on Aboriginal Peoples (Ottawa: Canada Communication Group, 1996), especially volume 2, ch 4. The report more generally outlines several disjunctions between Aboriginal views and the discourses dominant

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within Canadian society as a whole, including within legal institutions. For a critical analysis of the limitations that political circumstances put on the report, see Turner, This is Not a Peace Pipe, 75–81. 39. Nadasdy, “‘Property’ and Aboriginal Land Claims,” 251–4. See more broadly the difficulties and methods of effective intercultural translation of “constitutional” positions (i.e., views on deep social structure) outlined in James Tully, Strange Multiplicity: Constitutionalism in an Age of Diversity (Cambridge: Cambridge University Press, 1995), 39–41. 40. These are thus basic questions of what philosophers call conceptual ethics. See, e.g., Alexis Burgess and David Plunkett, “Conceptual Ethics I,” Philosophy Compass 8 (2013): 1091–101 and David Plunkett, “Which Concepts Should We Use?: Metalinguistic Negotiations and The Methodology of Philosophy,” Inquiry 58 (2015) 828–74. 41. If this grandmother were asked to give testimony about her own relationship to land within a legal forum, it would only become meaningful (i.e., testimony rather than simply words) when framed within the court’s conception of what is at stake—in this case ownership, not responsibility for ensuring livable conditions for future generations. See, e.g., Paul Nadasdy, Hunters and Bureaucrats: Power, Knowledge, and Aboriginal-State Relations in the Southwest Yukon (Vancouver: UBC Press, 2003), 5: If Aboriginal peoples wish to participate in co-management, land claims negotiations, and other processes that go along with [a] new relationship, then they must enter into dialogue with wildlife biologists, lawyers, and other government officials. First Nations can of course speak to these officials any way they want, but if they wish to be taken seriously, then their linguistic utterances must conform to the very particular forms and formalities of the official linguistic fields of wildlife management, Canadian property law, and so forth. Only through years of schooling or informal training can First Nations people become fluent in the social and linguistic conventions of these official discourses. In the case of wildlife management, there are at least reasons to expect state experts to have actual scientific knowledge. Lawyers and other state negotiators, on the other hand, possess knowledge of current forms of social organization, which is radically different in kind. Discursive hegemony in law is thus more clearly problematic than it is for the more scientifically sound aspects of wildlife management. On the standards described by Jane Mansbridge and her co-authors, wildlife biologists would count as (potential) experts in a deliberatively relevant

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43. 44.

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sense here, while lawyers and other administrative bureaucrats would not. See Jane Mansbridge, James Bohman, Simone Chambers, Thomas Christiano, Archon Fung, John Parkinson, Dennis F. Thompson, and Mark E. Warren, “A Systemic Approach to Deliberative Democracy,” in John Parkinson and Jane Mansbridge, eds., Deliberative Systems (Cambridge: Cambridge University Press, 2012), 1–26 at 13–14. The difficulty of such acts of translation is importantly different from the kinds of conceptual absences that Miranda Fricker describes in relation to, for example, sexual harassment. Fricker argues that, in the absence of this concept, women experiencing such behaviors from co-workers and others lacked a way to explain what they suffered, both to others and to themselves. See, e.g., Miranda Fricker, Epistemic Injustice: Power and the Ethics of Knowing (Oxford: Oxford University Press, 2009), 149–52. This is unlikely to be the case here: Joe Johnson’s Aboriginal grandmother is likely to be quite confident in her own view of the world, and to understand the concepts she is using well. The problem lies instead in making her views clear and legally meaningful to those who hold power over her fate. The problems outlined here thus fall within a looser notion of hermeneutical injustice as Fricker conceptualizes it. Nadasdy, “ ‘Property’ and Aboriginal Land Claims,” 247. It may often be possible to engage in acts of translation that do not leave a substantive remainder, of course, especially when it is possible to narrowly tailor terms of translation to specific political or legal questions. For an optimistic argument about the prospects for translation in such conditions, see, e.g., Brandon Morgan-Olsen, “Conceptual Exclusion and Public Reason,” Philosophy of the Social Sciences 40 (2010): 213–43 at 224–7, drawing on Fricker, Epistemic Injustice. Within conditions of asymmetric power, it may be dangerous to bring Aboriginal normative arguments into legal or political contexts where their meaning will become too tightly defined to do the intellectual and normative work expected of them. See, e.g., Bruce Morito, An Ethic of Mutual Respect: The Covenant Chain and Aboriginal-Crown Relations (Vancouver: UBC Press, 2012), 194–6. There thus may be good reason to avoid attempted translations given fears of how these might be co-opted over the longer term. As Alcantara (Negotiating the Deal, 9) makes clear, governments are “veto players” (9) in all negotiations, in ways that are clearly inconsistent with aspirations toward deliberative fairness. Alcantara find specific Aboriginal strategies most likely to succeed in negotiating land claims agreements: “These strategies are: adopting goals that are compatible with those of the Crown; minimizing confrontational tactics;

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47.

48. 49.

50.

Strategies of Justice fostering Aboriginal group cohesion as it relates to the treaty process; and encouraging positive government perceptions of the Aboriginal group” (Negotiating the Deal, 9). While fostering group cohesion is not obviously linked to discursive domination, the other three clearly are. The first (“adopting goals that are compatible with those of the Crown”) is especially a cause for concern. Presumably another kind of remainder can occur when ideas would simply be too difficult to translate by any linguistic terms, but this possibility poses harder problems for deliberative democracy; I leave it aside here. For one interesting attempt to deal with these kinds of difficulties within a theory of deliberative democracy, see, e.g., Tobold Rollo, “Two Vessels: The Paradox of Deep Colonialism in Democratic Theory.” Unpublished manuscript, on file with author. See Nadasdy, “ ‘Property’ and Aboriginal Land Claims,” 255–8. This section draws on the ideas of Lisa Tessman, who argues that virtues conducive to a well-lived life overall can be sub-optimal for success in certain kinds of political movements, and vice versa. They are thus what she terms “burdened virtues.” Although the ideas of this section were originally conceived prior to encountering Tessman’s work, her ideas have shaped this section and other areas of the book in strong ways. Lisa Tessman, Burdened Virtues: Virtue Ethics for Liberatory Struggles (Oxford: Oxford University Press, 2005). I take something like this to be the position of Taiaiake Alfred. See, e.g., Taiaiake Alfred, Wasáse: Indigenous Pathways to Action and Freedom (Peterborough: Broadview Press, 2005), 104:

[T]he legalist approach has created within indigenous struggles an inauthentic, guilt-ridden, condescending, and degrading agenda full of cries for redemption, groveling for pity, and begging for a merciful end to mistreatment at white hands . . . .[ W]e must advance an agenda of social equality and political pluralism by shining the light of radical truth through the fog of racial prejudice and overwrought attachment to colonial institutions that make up the state and culture of colonial society. 51. Or at least when important issues seem to be at stake. I add the qualifier because one of the results of incomplete deliberation is a difficulty in evaluating one’s own claims fully. Generally ideas can be evaluated fully only through conversation, and the refusal of engagement by others makes it difficult to rule conclusively on one’s own beliefs. In conditions of long-standing disadvantage and difficult deliberation, it makes sense to presume the correctness of one’s claims until others are willing to argue fairly, so that one does not prematurely abandon a set

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53.

54.

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of views for the wrong reasons. My thanks to Avery Kolers for this point. Aboriginal leaders who argued in ways that caused their cases to be rejected from the courts as contrary to procedure would be engaged in a politics that puts heavy risks on the members of their nations, unless these strategies were counterbalanced by more powerful leverage in other deliberative venues (e.g., legislative bodies or newspapers). While such leverage may sometimes be available, assuming its existence would simply be a way of avoiding the moral questions considered in this chapter. There are many reasons for political leaders to aim for full transparency even when this is not the most effective strategically. A political actor’s sense of themselves as courageous or wise may be damaged by nontransparent actions, for example, as ones wonders whether this less direct approach has been adopted for the wrong reasons. See the description of the ways in which the virtues necessary to combat injustice complicate questions of ends and means in Tessman, Burdened Virtues, ch 5. The Canadian Supreme Court deployed the language of “translation” in the conjoined cases R. v. Marshall; R. v. Bernard (2005) 2 S.C.R. 220, para 48: “The Court’s task in evaluating a claim for an [A]boriginal right is to examine the pre-sovereignty [A]boriginal practice and translate that practice, as faithfully and objectively as it can, into a modern legal right.” For a cogent discussion of this ruling and its relation to philosophical theories of Aboriginal and cultural rights more broadly, see, e.g., Dwight G. Newman, “You Still Know Nothing ‘Bout Me: Toward Cross-Cultural Theorizing of Aboriginal Rights,” McGill Law Review 52 (2007): 725–56. Nadasdy (“ ‘Property’ and Aboriginal Claims,” 258) notes, for example, that many young Aboriginal community members have adopted standards of ownership similar to those found in Canadian law without seeming to realize the full implications of doing so, though this has not been without conflict with other societal members. See, e.g., the description of recognition politics and land claims in Glen Coulthard, “Place Against Empire: The Dene Nation, Land Claims, and the Politics of Recognition in the North,” in Avigail Eisenberg, Jeremy Webber, Glen Coulthard, and Andrée Boiselle, eds., Recognition Versus Self-Determination: Dilemmas of Emancipatory Politics (Vancouver: UBC Press, 2014), 147–73 at 169. Coulthard argues that close interactions with state institutions have clearly transformed the thinking of those who engaged in it: “Many of the young Dené activists who had opposed the [Mackenzie Valley] pipeline in the 1970’s are

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now either active supporters or founding members of the Aboriginal Pipeline Group.” 57. See, e.g., the concern expressed about band councils and other staterecognized forms of Aboriginal political leadership in Taiaiake Alfred, Peace, Power, Righteousness (Oxford: Oxford University Press, 1999), 30: Most of those who possess authority delegated by the Canadian or United States government are less leaders (with apologies to the rare and admirable exceptions) than tools of the state. This does not necessarily mean they are evil. Some are simply blind to the reality of their co-optation: others, however, are complicit in the political subjugation of legitimate leaders. For a more positive view of official Aboriginal organizations in Canada (especially the Assembly of First Nations) that nonetheless sees their potential as strongly restricted, see, e.g., Patricia Monture-Angus, Journeying Forward: Dreaming First Nations Independence (Halifax: Fernwood Publishing, 1999), 15. 58. If presumptions about translatability diminish the ability of leaders to recognize the content of the remainder as a whole but bring slightly more of it into viable political conversation, is this a worthwhile tradeoff? It is hard to say. Is getting clear recognition for one half of one’s claims a better outcome than opening up space for some discussion of what would otherwise be the remainder, even if one does not know whether open discussion will ultimately change the practices of state institutions? There are uncomfortable questions here about how to trade off uncertainties, for which I have little clarification to offer. 59. Many Aboriginal political actors will reject this with the same intensity as many deliberative democrats. See, e.g., Taiaiake Alfred’s absolute insistence on integrity in Wasas ́e, 113–14: As [Aboriginal peoples] who are committed to the Original Teachings, there is not supposed to be any space between the principles we hold and the practice of our lives. This is the very meaning of integrity: having the mental toughness and emotional strength to stand up for what we believe is right. 60. Turner (Peace Pipe, 9) often seems to have approaches of this kind in mind, in arguing that “word warriors” will often act “by revealing Western European philosophy as a colonial activity.” But the protective role that he attributes to word warriors (8–11) may often be most effectively carried out by some of the methods outlined later in this chapter as well. 61. See, e.g., the clear discussion in Mark E. Warren, “What Should and Should Not Be Said: Deliberating Sensitive Issues,” Journal of Social Philosophy 37 (2006): 163–81, especially 167–9.

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62. Since this remainder may often contain arguments that are themselves normatively or factually flawed (as is surely true of all arguments that are not allowed to be tested in fair conversation), leaders with this approach also make it more difficult for flawed elements of the remainder to be eliminated. Recognizing factual or normative errors is difficult in the absence of open conversation, so that difficult deliberative conditions make it more difficult for Aboriginal leaders to recognize the best formulations of their own arguments, as well as difficult to convey these arguments directly to others. 63. As Robert Goodin notes, much of the work of “democratic” deliberation must go on within our own heads. The purpose of strategic argumentation is precisely to preserve high-quality deliberation here, rather than sacrificing mental clarity in hopes of achieving full transparency in public speech. Robert Goodin, Reflective Democracy (Oxford: Oxford University Press, 2003), 169–72. 64. Turner (This is Not a Peace Pipe) argues that Aboriginal philosophies and philosophers themselves—traditional medicine people and others (10)—must be shielded from state power so that they can continue to perform their own work (11): “Word warriors must protect these forms of knowledge from exploitation by indigenous and nonindigenous peoples, and must do so mainly by engaging Western European intellectual culture.” 65. Schwartzman, “Sincerity of Public Reason,” 389. 66. Such strategies do not seem to me disrespectful to one’s interlocuters in any normatively troubling way. It does assume that many of them will not be moved by the arguments one really believes, and, therefore, that these interlocuters will often be unaware of the background social structures that help to constitute many of their beliefs. Yet recognizing that others are not perfect moral agents, but that they are instead often unaware of the ways in which their expectations and patterns of discourse may harm others, is not disrespectful in any strong sense of that term. Humans are imperfect creatures, with ideas that are partially constituted through their social context. Why would it be disrespectful to respond to them accordingly? 67. Turner (This is Not a Peace Pipe, 8–11) argues that “word warriors” must not only seek political success within the structures of nonAboriginal society, but must protect the keepers of traditional Aboriginal knowledge and practice (e.g., medicine people and others) from disrespect and cooptation as well. The concerns here reinforce the value of keeping these patterns of discourse distinct whenever possible, at least so long as state institutions continue to insist that their own discourses must remain dominant.

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68. Canadian law as it is currently structured actually forces intellectual translation in many conditions. Aboriginal groups are required to argue that they are entitled to particular land rights within Canadian law, but are commonly required to provide evidence for this ownership from Aboriginal legal and social principles as well. See, e.g., the complex evidentiary standards outlined in Delgamuukw v. British Columbia, 3 S.C.R. (1997) 1010. 69. British Columbia entered the Canadian confederation in 1871. In Canadian law, what matters is the moment when sovereignty over a particular territory was asserted, so that the relevant timelines will vary by province. I leave these complexities aside here. 70. For the notion of a deliberative “system,” see Dryzek, Foundations and Frontiers, 10–14, 80–3. 71. Indeed, this kind of flexibility may sometimes facilitate authentic processes of mutual justification on both sides, so that deliberative results emerge that are closer to those expected from more symmetrical kinds of deliberation. Sometimes arguments undertaken for experimental strategic reasons will succeed in opening a wedge for views previously condemned to the remainder, while allowing a mental distance between one’s strategic claims and the content of the remainder can allow for spontaneous moments of unforced insight, in which new potentials emerge for bridging across very different patterns of discourse. Intellectual innovations are hard to force, but often transformative, so it is good to open space for them where possible. For an argument about the role of transformative ideas in positive political change, see, e.g., Lea Ypi, Global Justice and Avant-Garde Political Agency (Oxford: Oxford University Press, 2012), 56–66. 72. Jean Leclair rightly notes that “the Supreme Court of Canada has done everything in its power to encourage Aboriginal parties to congeal in constitutional concrete a most essentialized understanding of their identity.” This is not a positive development, since it makes it hard for Aboriginal peoples to articulate internal disagreements to outsiders without weakening their legal position, while freezing in place patterns of discourse and identity within Aboriginal communities themselves. Jean Leclair, “Military Historiography, Warriors, and Soldiers: The Normative Impact of Epistemological Choices,” in Patrick Macklem and Douglas Sanderson, eds., From Recognition to Reconciliation: Essays on the Constitutional Entrenchment of Aboriginal and Treaty Rights (Toronto: University of Toronto Press, 2016), 179–203 at 191. 73. Leaders also make more forward-looking statements, of course, but backward-looking statements are a shared and dominant theme nonetheless, in replicating legal arguments over and over again to a larger

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deliberative audience that does not naturally think in those terms. For an overview of these processes, see Bennett, “Aboriginal Rights Deliberated.” 74. See, e.g., Alfred, Wasáse, which focuses throughout on the need for transparent and fearless action in the face of colonial domination. Alfred draws heavily on the work of Mohandas Gandhi, as well as Kanien’keha (Mohawk) political traditions.

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CHAPTER 4 Justified Lawbreaking

In Chapter 3, I argued that it is generally justifiable for Aboriginal peoples and others facing persistent injustice to enter public debate in a strategic rather than open spirit, using an extended engagement with one political context to illustrate the texture and appeal of such deliberative strategies. Although speaking outright untruths may rarely be effective or wise, it nonetheless seems normatively permissible when necessary in defense of important moral interests that would otherwise go unprotected. The arguments of Chapter 3 were concerned, in part, with transparency in legal forums, as well as in the broader public sphere to which they are connected. This raises the obvious question of whether other kinds of illegality may also be normatively permissible for those facing conditions of persistent injustice. In this chapter, I want to argue that such lawbreaking is often morally permissible. I do not want to assert simply a limited position of civil disobedience, in which individuals break the law with the expectation that they will receive legal punishment afterward. Though much of the argument outlined here will be relevant to thinking about civil disobedience, I am concerned with lawbreaking of a stronger sort: that in which one seeks for it not to be recognized, or where one tries to ensure that “legal authorities” do not have the capacity to punish or prevent it even when recognized. Since the topics here are complex, the chapter proceeds in three basic parts. First, it outlines the aspirational character of legal authority itself. As it will argue, real legal systems fail to be fully binding when they entrench patterns of persistent injustice or make the alteration of these patterns very difficult, so that strategic illegality is sometimes permissible to improve a legal system’s character.

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The second section of the chapter considers the moral permissibility of formally illegal actions intended to intervene in the procedures of lawmaking (part of the strategic category I will call circumvention) in the context of the United States. Individuals on Aboriginal reservations in the United States remain profoundly vulnerable to physical violence, given the deep persistence of jurisdictional chaos for criminal law, with women particularly vulnerable, especially to violence by non-Aboriginal men. I consider a hypothetical case in which tribal leaders provide financial or other backing to a supportive legislator in a way that formally violates the terms of election law, with the goal of reducing on-reserve violence. Third, I will turn to a stronger and, for many, more troubling case of illegal political action that is more common in Canada: that which occurs when an Aboriginal group takes up arms to defend a land base against governmental or private incursions, which I will refer to as nullification. I will argue that there will often be good normative grounds for such actions. Before proceeding, I want to be transparent about a simplifying assumption of the chapter, in regard to the legal systems reacted against. The question of what “law” entails when conceptualizing the relationship between Aboriginal peoples and states like the United States and Canada is an intrinsically contentious one. Both countries assert final rights of sovereignty over the Aboriginal peoples “within their borders,” while at the same time acknowledging the continued force of certain aspects of inherent Aboriginal sovereignty (in the United States) or some aspects of Aboriginal law (Canada, where certain land rights are involved). Aboriginal peoples, on the other hand, frequently point to the binding status of the treaties that they historically made with these countries under the law of nations, and assert basic rights to continuing sovereignty where such treaties were absent. To simplify the present discussion, particularly with Anglo-American political philosophy in mind, I have set aside these debates for the purpose of this chapter, and will presume that the binding legal structures are those of the United States and Canada. While this might seem to load the argument too strongly against Aboriginal political claims, I will seek to show why extensive permissions for political action remain for Aboriginal peoples and others in conditions of persistent injustice like our own, even with such an assumption in place. Insofar as Aboriginal

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peoples have good claims to inherent legal authority, the permissions outlined here seem correspondingly stronger.

4.1 Law, Justification, and Permissibility Law is intended to secure justice, and this aspiration gives it normative force. Law needs such a justification because it coerces individuals to uphold a system of public rules that they have rarely agreed to in any strong way and which can impose serious costs upon them in a variety of ways.1 While we often speak of the “consent of the governed,” this is always achievable in only secondary ways, though deliberative and other means that only imperfectly match individual agreement with outcomes. The basic purpose of law is to preserve individuals and communities from violations of their basic moral interests, and to give them mechanisms for adjudicating the many spaces of ambiguity in how these interests relate to one another.2 The problem is that law always falls short of achieving its goals, so that achieving full “legality” is always an aspiration in progress, with continual room for improving its effectiveness and appropriateness.3 In many cases, these failures of justice are within the bounds of tolerability, such that citizens are required to adhere to flawed legal standards even as they try to reform them.4 In conditions of persistent injustice, however, legal systems have more severe problems. They are themselves commonly the anchoring institutions of this injustice. In such conditions, the structuring character of flawed institutions is likely to run very deep. The morass of incoherent and selfdefeating laws that currently blockade Aboriginal peoples from managing their own territories and properties even in a purported age of self-determination, for example, are hard to square with any theory of justice whatsoever, yet they remain in place nonetheless, locking many reservations into spaces of poverty.5 The arrangements for criminal law enforcement described in the next section are even more egregiously ill structured. Broader examinations of, for example, the distribution of environmental externalities would turn up further ways in which Aboriginal communities are made unusually liable to harm.6 It is not only Aboriginal peoples who face legal failures of this kind, of course—many inner-city African American communities face analogous problems, though the legal structures

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that bring them about are often quite different, and so do other kinds of communities and individuals. The basic point is itself straightforward: social rules can be either protective or profoundly harmful, and those that fall into the latter category fail to meet the basic aspiration underpinning legality. In conditions of persistent injustice, existing institutions are likely to be deeply resilient against attempted changes, such that ordinary mechanisms of politics will generally be insufficient to create normative improvements. In cases of unambiguously brutalizing “laws,” there are few people, whether political theorists or otherwise, who will defend a requirement of obedience. Yet there are few accounts that give close attention to the range of strategies that may be possible in such conditions, or that examine the ethics of political action for such cases in depth. I want to first map out some of the diverse ways in which one might seek to behave “illegally” toward existing “legality” here, before considering how these might apply given current conditions of Aboriginal political life. Political strategies that seek to counter harmful laws might be aimed at either of the two categories of law that legal theorists commonly describe: primary rules and secondary rules. For those unfamiliar with this terminology, these categories may be better described as substantive and procedural rules. Primary legal rules are those that protect substantive moral interests for individuals and groups, by delimiting what individuals and groups are permitted to do in regard to one another, and what they are prohibited from doing. In other words, these are the kinds of things in which the police, bureaucrats, and other kinds of direct enforcers of the law are involved. Secondary rules are those procedural structures intended to set the terms of these primary rules. These are the rules stating that substantive laws must be made by the agreement of legislative bodies or adjudicated by correctly appointed judges, and so on.7 In other words, these are the rules by which other rules are made. Political strategies for responding to persistent injustice will vary depending on which set of rules they address, and how they do so. I will consider four kinds of strategies here: evasion, appeal, circumvention, and nullification.8 Because the latter two strategies are the least familiar, I consider them at length in the sections following.9 Persistent injustices are most felt by those suffering them at the level of primary rules, as they are arrested by police, or as those who

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assault them are not so arrested, or as they are ejected from their homes, or their attempted economic transactions are stopped by bureaucratic decisions, or their territories are transferred to others without their consent, and so on. Often those who experience harmful laws of this kind will seek to contest them through existing legal mechanisms when they can. When such mechanisms are not available, however, or routinely fail to secure appropriate outcomes, the most likely category of response is likely to be evasion— simply to avoid the application of the harmful rules without directly seeking to change them. When Aboriginal people tried to flee the reservation spaces to which they had been forcibly confined in the nineteenth century, or when African American slaves ran away from their legally recognized masters, they engaged in evasion of this kind. Similarly, contemporary Aboriginal individuals engage in evasion of this kind today if they do not report some kinds of income on their taxes or when they trade in particular goods without licenses (e.g., revenue-producing cigarettes) or refuse to comply with discriminatory police practices, and so on. Evasion, as I use the term here, does not try to change what is recognized as law, but to dampen specific kinds of harms that it might cause in a particular instance. Evasion, of course, might be part of a broader suite of political strategies, but on its own, it focuses only on the avoidance of specific kinds of substantive laws. Political action of the kind on which this book generally focuses targets secondary rules instead, with the goal of changing specific kinds of substantive laws, or sometimes of altering secondary rules themselves. There are, broadly speaking, three approaches that can be deployed in seeking to have an impact on substantive laws via procedural laws. The first and most familiar method I will refer to as appeal, in which one breaks law with the explicit goal of persuading those who fill political offices to change substantively unjust laws, while adhering to existing procedures for secondary law. The clearest example of this strategy is civil disobedience. Although civil disobedience is a transparent communicative strategy, intended to call attention to particular kinds of injustices so that they can be understood and changed, it is lawbreaking nonetheless.10 While the civil disobedient are generally willing to be arrested to dramatize the character of flawed legal structures, I would also include within this category those who deploy similar public actions intended to

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persuade lawmakers to act differently, while seeking to avoid arrest or recognition of their individual involvement. This category thus contains most of what social movement scholars would describe under the rubric of “contentious politics.” There seems to be widespread philosophical agreement about the permissibility of civil disobedience. As I noted in Chapter 2, there is substantial literature on the topic that treats civil disobedience as a paradigm case of justified lawbreaking, informed in many ways by the actions of Martin Luther King Jr. and other prominent figures of the Civil Rights Movement.11 Why, though, stop with strategies of this kind? Many of those who are comfortable with civil disobedience are likely to be more troubled by the categories that I will describe as circumvention and nullification. Circumvention, as I will use the term, involves the strategic evasion, manipulation, or disregarding of specific procedural rules, with the goal of creating better outcomes through means that existing law does not permit. Nullification refers to efforts to reject the dominant set of secondary rules at a very deep level, by refusing the basic legitimacy of political institutions for creating any form of legality, in favor of asserting a different set of legal institutions. This might also be understood as the on-theground assertion of a procedural counter-law, by which substantive laws should in the future be made. Nullification has many elements in common with appeal, given its transparency, as I will outline below, so this range of actions is not a simple spectrum that varies along one axis. Nonetheless, circumvention and nullification as strategies seem more likely than evasion or appeal to provoke normative controversy or uncertainty. Are strategies of this kind too dangerous to be permissible even in conditions of persistent injustice? Examining the grounds for such worries will help to reduce this concern, though, at the same time, it will make clear that these strategies must be used carefully, with clear acknowledgment of their potential dangers. The most obvious concern is that circumvention and nullification might endanger the enterprise of legality in a very deep way, by undermining shared systems of decision-making with potentially explosive consequences. Concerns about conflict stemming from uncertainty and normative disagreement are central to most arguments about the value of law. Since individuals will inevitably disagree about what law should be, how they are treated by it, what moral principles it

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should instantiate, and so on, it can be dangerous to erode the social practice of following its rules and, especially, to erode the legitimacy of the institutions by which substantive laws are made. Familiar works of canonical political theory imagine a “war of all against all” that will occur if individuals act according to their own wills and judgment,12 and there are unfortunately far too many examples of state collapse and terror-driven civil wars in recent history (e.g., the former Yugoslavia) to dismiss this concern lightly. Arguments of this kind can be overstated, and the numerical asymmetries between Aboriginal peoples and the states now ruling them make anything like state collapse unlikely. But one should still take concerns of this kind with deep seriousness, especially if arguments for circumvention or nullification are exported to other kinds of contexts elsewhere in the world. A second concern is rather different in structure, and focuses on the positive role of legal procedures in gaining information, clarifying thinking, and developing normative compromises. Many kinds of legal procedures fare better in utilizing information and fostering normative deliberation than do less institutionalized means, because they require that multiple points of view be brought into conversation, or that certain kinds of experts be consulted, or that informational reports be compiled, and so on. Given the difficulty of constructing stable, effective legal arrangements in actuality rather than simply in theory, and the unavoidable ambiguities about how humans as individuals and collectives should live together well, morally tolerable political orders seem more likely to emerge from institutional processes rather than outside of them. Human communities come back to procedures of this kind over and over again for good reason, and future social worlds are likely to require a dense field of decision procedures of this kind. Varying kinds of human moral interests are likely to be best protected when institutional means decide how this is to be done, so that attempts at circumvention or nullification may sometimes create suboptimal results even despite their intent. Taking these two concerns together gives us good reason to assign positive value to legality in general, even when the law is in many ways deeply flawed. Much of the content of even bad regimes of law protects important moral interests (e.g., protections against random violence), and societies will rarely be normatively better off with a civil war. Moreover, the argument that people should seek to change

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the law only through the law itself contains important deliberative expectations: if one is required to explain why the law should change in one way or another, there are greater odds that changes will occur in appropriate ways, that individuals will think more carefully before they act, and so on. There are thus plausible grounds to have a presumption in favor of existing legality even in conditions of persistent injustice. This is a presumption only, however, and for that reason, it cannot defensibly prohibit well-targeted illegal actions in conditions of persistent injustice. Legality matters as a way of protecting individuals and communities from harm, but when existing legal structures directly cause harm or uphold the conditions under which it continually occurs (as, e.g., with the criminal law example discussed in the next section), those suffering from these conditions seem permitted to attempt more risky kinds of political action in carefully targeted and proportionate ways. If this injustice were simply the problem of powerful social actors behaving in intentionally self-seeking fashion, such that they might be reined in if existing law were merely carried out more effectively, by, for example, embarrassing a few elites or “waking up” a larger majority for a brief period of time, it might be plausible to require those facing persistent injustice to limit themselves to evasion and appeal. It seems more descriptively accurate, however, to believe that persistent injustice is maintained by a complex overlay of interest, institutional lock-in, and flawed ideas (see Chapter 3). Dominant social structures will work to actively resist alterations to existing legal and political structures, even if those who inhabit positions of power do not do so out of any malice. They may instead believe that they are in fact defending law in a normatively appropriate way.13 This is part of the way law works: it convinces people that they ought to behave in particular ways. Aboriginal peoples and others in conditions of persistent injustice cannot easily be prohibited from countering the harms that flawed laws create, even if they are normatively required to use such means carefully and proportionally, without adopting them lightly. (I will have much more to say about the difficult test of proportionality in Chapter 5.) Calculations of proper targeting and proportionality will be unavoidably difficult where such strategies are considered, but the standard for evaluating currently illegal action is nonetheless a clear one: where legal structures are deeply bound up with persistent

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injustices, does political action contribute to the realization of the aspirations that underpin legality? This standard may sometimes operate in highly prospective ways. Evasion as a strategy generally seeks to avoid the harms that bad laws create, so that it looks to avoid specific proximate harms from obedience to them. Something more extended seems necessary where other kinds of strategies are concerned, especially those oriented toward secondary rules. Those who engage in circumvention or nullification may not even have to point to deeply important moral interests that are being harmed at the present moment, if they have good reason to expect that current arrangements make such harms to important moral interests very likely (e.g., because a set of laws has done so in the recent past). Sometimes strategic action against the law requires taking a long view, just as other kinds of political decisions routinely must, if the impacts of persistent injustice are to be reduced. Calibrating this correctly is unavoidably challenging, of course, but the same is true of most other kinds of political choices.

4.2 Procedural Circumvention and Electoral Strategies Evaluating the concept of level circumvention will be easier with a clear example in mind, to see both why it might be appropriate and how such an effort might be carried out. This will also allow us to think about broader ethical issues surrounding such strategies, including the ways in which they may or may not transform those who engage in them. As I noted in previous chapters, the specific patterns of political constraints and opportunities faced by Aboriginal peoples vary across countries. In Canada, Aboriginal rights questions are usually more strongly determined in the courts than in Parliament, given the highly constitutionalized nature of these debates since 1982 (see Chapter 3).14 In the United States, on the other hand, the Constitution is relatively silent about the status of Aboriginal nations. Congress is granted the power “to regulate commerce with foreign nations, and among the several states, and with the Indian tribes,”15 with no other statements made about the structure of its responsibilities. While American Indian law in the United States has a long and complex history, its primary principle has been Congressional supremacy, with courts seen primarily as

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interpreters of Congressional intent since at least the 1880s. Since the 1970s, Aboriginal nations have been permitted to exercise substantial powers of self-government, and to enter government-togovernment relationships with states and bureaucratic branches of the Federal government. A great deal of Aboriginal political work in the United States goes on in negotiations between Aboriginal political structures and nonelected elements of government at Federal, state, and local levels.17 But Congress remains the ultimate arbiter of the fate of Aboriginal nations, while state legislators retain a great deal of say in the relations between tribes and state institutions. In the United States, Aboriginal politics is thus far more strongly Congressional than judicial.18 Moreover, a number of structural features about the United States give increased chances for electoral leverage relative to Canada. Election campaigns in the United States continue for a much longer period than their Canadian counterparts do, and they are, therefore, more expensive. Party structures are looser, so that the selection of candidates for office is more easily affected by local political concerns. In these complex processes, some tribes have substantial capacities to affect electoral outcomes given population size. Most obvious is the Navajo Nation of the American Southwest, with a large territory and a population larger than the Canadian province of Prince Edward Island. But most have resources of a different kind. Since the legalization of tribal gaming in the 1980s, a handful of Aboriginal nations have substantial financial resources that can be deployed to good political effect. Most have far more limited resources, but these are still in many cases sufficient to maintain consistent lobbying efforts. For many tribes, the personal relationships that they are able to form with specific legislators matter most: these ensure that they will be heard when policies affecting them are under consideration, and being heard is the first step toward being protected (though certainly not a sufficient step on its own).19 I want to consider the morality of a specific kind of case of legal circumvention here, of what seems to be a purely hypothetical type thus far. This example should be framed by the conditions of criminal law enforcement within many reservation communities in the United States. Many reservations in the United States are nearly zones of chaos where criminal law enforcement is concerned, which results in very high levels of crime, especially incidents of

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sexual assault by non-Aboriginal men against Aboriginal women—a jurisdictional morass that continues as the ongoing legacy of past American actions. Violence against Native women and girls has reached epidemic levels in Indian country and Alaska Native villages—rates that are 2 ½ times higher than violence against any other group of women in the United States. Native women are more than twice as likely to be stalked than other women. One in three Native women will be raped in her lifetime, and six in ten will be physically assaulted. The murder rate for Native women is ten times the national average on some reservations . . . Significantly, United States law has stripped Indian nations of their criminal authority over non-Indians, who are responsible for committing some 88% of these crimes.20

It is not, of course, only women who experience high levels of violence: Aboriginal men are often highly vulnerable to violence as well. The details of this jurisdictional morass are often unimaginable to those encountering it for the first time. Strikingly, crimes that take place on Aboriginal reservations in the United States are tried by different parties depending on both the character of the crime and the party who commits it.21 Unusually within the American system, the Federal government has primary jurisdiction (including powers of investigation) for certain kinds of major felonies that take place on Aboriginal land and that have an Aboriginal victim or a known Aboriginal perpetrator. The Federal government, however, generally lacks an effective on-reservation presence for law enforcement purposes, so that responses to major crimes of this kind are often slow and incomplete. For crimes on reservation lands that occur to an Aboriginal person but fall short of a major felony, or that occur to a non-Aboriginal person, primary jurisdiction depends on the status of the perpetrator. If the perpetrator is a not a tribal member, the state will have primary jurisdiction for either sort of crime, even though it has taken place on Aboriginal land and may involve an Aboriginal victim. If the perpetrator is a tribal member in either case, on the other hand, the tribe will have authority over them. Because perpetrators are frequently unknown, it will thus often be unclear which party is permitted to investigate until more information is acquired. There are only very restricted conditions in which tribal police—those who are living in the community every day—will

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have the capacity to arrest and prosecute non-Aboriginal perpetrators. Moreover, tribal police are almost always underfunded in profound ways. Taken as a whole, this frequently creates a legal vacuum— Federal officers are found in the community too rarely and are often unwilling to act; state police will not investigate unless they know that the perpetrator was non-Aboriginal; and tribal police lack the legal authority and capacity to respond to many kinds of crimes or to any crimes committed by those who are not tribal members. I suspect that almost all readers will be able immediately to envision mechanisms of law enforcement that would achieve the basic goals of protecting Aboriginal people from harm more effectively. Indeed, I encourage non-Aboriginal political philosophers to learn much more about these arrangements and their history, and to develop realistic proposals for a revised system that would achieve the aspirations of legality more effectively.22 The real-world problem, however, is that such proposals have been made by a variety of parties, and yet they have failed to change this basic set of conditions, given a deeply anchored set of legal presumptions and funding patterns by the Federal and state governments. This is not to say that change is impossible, but rather that it is hard. Imagining a more ideal system does not thereby bring it about. What brings about change is instead constant, grinding work by tribal leaders and others to build coalitions, slightly redirect legal standards in more promising directions, slowly build funding for tribal capacity building, and so on. Building strong relationships with specific elected officials and bureaucrats is often especially important here. Wishing for better conditions itself changes nothing; indeed, theorizing in detail about those conditions is likely to do little on its own. The following hypothetical example should be understood against this background. Though it is commonly suggested that the financial resources of some casino-operating Aboriginal nations have had illegitimate effects on politics in some states,23 there is no evidence that tribes have in fact engaged in legal circumvention in the course of their political efforts.24 There are obvious risks associated with this strategy for any Aboriginal group that would adopt it: exposure would be likely to have highly dangerous repercussions. But the first question I am concerned with is the normative permissibility of such a strategy, rather than its prudential wisdom in any given case. Consider a hypothetical example of illegal lobbying: a tribe with

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very high levels of on-reservation violence and small levels of gaming revenue has spent a number of years cultivating a relationship with a long-term legislator, who is often sympathetic to the tribe, though by no means a consistent supporter of their positions. This legislator, let us presume, has been to the tribe’s territory on a few occasions, has a clear sense of the tribe’s complex legal history, understands generally the bureaucratic agencies with which it must interact, and has membership in a committee with broad responsibilities for Aboriginal issues (e.g., the Senate Committee on Indian Affairs). This legislator has a good understanding of the morass of criminal law enforcement in tribal communities, and has worked in the past for reform, including revised laws and increased funding capacities. This legislator was especially important, let us say, for a recent legal innovation that made it easier to investigate cases of domestic violence, which will only be successful and sustainable if followed up with additional legislation.25 Though not always supportive of the tribe’s arguments, and often swayed by other interest groups or different normative judgments, the legislator nonetheless listens when the tribe speaks and tries to explain herself to the tribe when important decisions go against their interests. The legislator likewise knows that many of her colleagues and the public in general have virtually no idea about the legal chaos of criminal law on reservations, but think instead that this shows some sort of Aboriginal tendency toward uncontrolled violence. She thus feels a sense of responsibility to think carefully about issues that others ignore or fail to understand, and to try to do something when it is not too difficult for her. Even though she is by no means fully reliable in her actions, she is one of the best hopes for continuing legal changes that will make reservations less dangerous locations in which to live. Readers who work in the area of African American politics may think of analogies to some ghetto communities here.26 Those experiencing other kinds of persistent injustice should be able to find further examples. Consider a potential opponent to the legislator just described. This opponent has no real interest in Aboriginal issues and, therefore, no background knowledge beyond what can be gained in the American public sphere, where vague ideas circulate of Indians as relics of a bygone era, legitimately pushed aside during the “closing of the West.” Given these background ideas, the opposing candidate is

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often hostile to Aboriginal interests, though not from any real malice or understanding—Aboriginal political institutions simply seem strange and untimely to him in contemporary America, so that, he thinks, the violence on reservations is unavoidable given their anachronistic nature. This opposing candidate, let us presume, would reach different views on Aboriginal affairs over time, with exposure to increased information and as tribal members are able to form relationships, so that they come to be seen as determinate persons rather than vague images out of popular culture. But the timeline for this process of forming relationships and developing knowledge is a relatively long one—eight years, let us stipulate—and the costs to the tribe of building these relationships will be substantial, in setting up meetings with the legislator on multiple occasions, regathering kinds of information of which the current legislator is already aware, and so on. In the meantime, the legal morass and high levels of violence will continue unabated. Now let us imagine further details to the example. The opponent, let us presume, has the support of several powerful social interests, including economic ones. Let us assume the economic supporters include resource-extraction industries that might benefit by looser rules on the exploitation of public lands that are near tribal communities, or that will benefit by the direction of public funds or legislative energy away from law enforcement reform to something that will increase profits, or that hold resources that are the result of past patterns of colonialism against Aboriginal peoples or others, or that otherwise have troubling motivations or advantages. Put concisely, the opponent is supported by many economic actors who are directed primarily by desires unrelated to the securing of justice, or who would not be entitled to the resources they currently control within a more satisfactory system of laws, even though contemporary law recognizes their ownership. In these conditions, would it be legitimate for the tribe to circumvent existing election law if they could find an effective way to help the sitting legislator to increase her odds of victory against her opponent? For example, would it be permissible for the tribe to contribute funds to the legislator’s campaign in ways that violate legal standards, by, say, setting up a dubious shell organization purely to make what financial contributions it can afford? We need not worry too deeply about the specific legal principles being

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violated here; presume that the legal repercussions for intentionally violating the laws in this way are substantial (with, e.g., specific tribal leaders arrested), and that the exposure of the violation would be more substantial yet in its ramifications. Would such a violation of existing law, carried out willfully with intent to act illegally and to avoid exposure, be normatively permissible? In my judgment, at least, it seems clear that it would be permissible, and that it would be, moreover, morally praiseworthy if it had some chance of success, in showing that tribal leaders were acting carefully on behalf of their constituency, who bear the violent consequences of persistent injustice in their everyday lives. It seems clear to me that the tribe is morally permitted to engage in circumvention of this kind if they can find an appropriate method for doing so. Even if the opponent will develop the relevant knowledge over time, the loss of the established relationship is nonetheless a deeply costly one for the tribe’s ability to enter meaningfully into debate about the terms by which it must live because it will have to begin the educational process anew before the substance of its claims can begin to be heard. In the meantime, horrific levels of violence will continue to occur to their community members. Insofar as the relationships of specific tribes with legislators effects outcomes for tribes more broadly, the loss of legislative expertise on this matter will have the same effects on all Aboriginal peoples as well. The small chance that such a strategy would weaken the rule of law as a whole or that it would blunt the knowledge-producing effects of institutions seems unimpressive here: the basic point of this action is to repair a profound failure of the rule of law on Aboriginal lands and to improve the informational basis on which decisions are made, rather than to undermine either of them. Indeed, it is arguably the case that the aspiration toward legality gives Aboriginal peoples and others suffering from persistent injustices permissions to engage in circumvention even if they have no immediate normative interest at stake for a given election, given the difficulty of their background conditions. That is, it is arguably the case that those suffering from persistent injustice can take a long and somewhat speculative view about how particular political choices may help to remediate those injustices in the future, so long as those speculations are underpinned by careful thinking to ensure plausible empirical beliefs and proportional care for others who also suffer

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from current arrangements (see Chapter 5). There are obvious reasons for such strategies to be undertaken tentatively: improving existing procedures or their outcomes is hard work, and where there are legally instantiated mechanisms that might work, it will generally be best to continue to work through these institutions rather than to abandon them. But tactical circumvention to build on effective areas of political input where they already exist, for example, seems permissible to build toward the remediation of persistent injustice by necessary increments. Where it may be possible for circumventions to change the character of procedures themselves (e.g., when supporting a Congressman who might strengthen bureaucratic consultation with tribes), this may be an especially appropriate target. In circumstances where existing structures of decision-making continue to keep persistent injustices in place, it would obviously be ideal if those of us who are non-Aboriginal would act collectively to change the conditions that bring this about.27 But examination of actual politics suggests that this is unlikely. Instead, it is likely to be Aboriginal leaders who do this work themselves. Legal circumvention seems to me a permissible part of their toolkit in cases of this kind, pending a clear philosophical argument to disqualify it. I noted in Chapter 3 that Aboriginal groups and others in similar conditions of disadvantage seem permitted to adopt a generally strategic attitude toward deliberative institutions, even if speaking untruths will usually be too dangerous to attempt. Something similar holds here, though the general restrictions seem substantially stronger. Even if it is commonly too dangerous for Aboriginal actors themselves to engage in acts that clearly constitute circumvention, and potentially erosive of the rule of law to make routine use of such means, there are often many legal ambiguities within lobbying rules, campaign laws, and other regulations surrounding legislative and electoral politics, and the analysis here suggests that Aboriginal groups do not need to worry overmuch about the use of these ambiguous mechanisms. (Often more powerful groups will already be using dubious or illegal means, but such permissions seem to exist even in the absence of circumvention by others.) This does not mean that everything goes. Aboriginal leaders will often have to sometimes abstain from actions that are disproportionate (see Chapter 5) or too risk-intensive. But the generally flawed nature of the background deliberative system

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suggests that Aboriginal peoples can take a fairly flexible view of what it means to support the law, and of the kinds of threats that are likely to undermine their capacities to reduce persistent injustices. Importantly, such a strategic attitude is not inconsistent with the aspirations toward democratic deliberation discussed in Chapter 3, nor with the information-gathering aspirations of legal procedures. Indeed, the example I have outlined presumes that good laws will come from extended conversation and the use of correct information. Tribal leaders who form long-term relationships with specific legislators will often be able to speak to those legislators in extraordinarily clear and challenging terms because they will have built conditions of mutual respect and understanding that make meaningful persuasion sometimes possible. In Canada’s judicial environment, there are few forums in which full and frank speech is possible, given the ways in which legal terminologies and procedures set the background. In relationships between specific Aboriginal leaders and individual legislators in the United States, however, the specific details of existing laws can often be treated much more flexibly— legislators, as lawmakers rather than law interpreters, are often able to approach matters with considerably more space for imagination of alternatives. Those who become tribal leaders are rarely reticent people, and they will rarely be satisfied with speaking in narrowly constricted terms when they can avoid it. Long-standing individual relationships often allow one to say things that would otherwise cross lines of civility or that would be too complex to understand or that call for forms of change that seem impossible before they actually occur. The strategic attitude outlined here is thus not inconsistent with direct and impassioned deliberation when it is possible, or with speaking boldly in all sorts of favorable conditions. I noted in Chapter 3 the ways in which a division of labor between Aboriginal leaders and ordinary members of Aboriginal communities will often be necessary for good political outcomes. Differing circumstances will often understandably lead to different understandings of what is politically wise or appropriate. As I noted there, many Aboriginal social actors see elected tribal leaders as co-opted into colonial habits when they enter politics with a strategic attitude, when they play by and sometimes breach the rules of electoral politics, or when they speak in public venues primarily in the language of legal institutions. This view seems to me frequently

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mistaken, even if such co-optation occurs more frequently than one would like. Legal and political change is often extraordinarily hard and slow work, and social scientific evidence shows that Aboriginal nations in the United States have often been able to achieve their most important victories through forming specific relationships over the long term, while continually building capacities to make further use of small opportunities when these arise.28 While there are stronger psychological reasons to fear co-optation in the Canadian case, given the ways in which legal conceptions structure larger patterns of social discourse, there are nonetheless many opportunities for assertive and transparent speech here, as well, and good reasons to believe that many political leaders are able to maintain the relevant distinction between strategic action and open deliberation to keep a clear perspective. This kind of politics is often mostly invisible to Aboriginal community members in its details, and it is understandably frustrating to those who are not in the midst of these political conflicts that achievements are often small and merely tactical. The amount that tribal leaders have been able to achieve over the last decades in the United States and Canada is, however, astonishing when seen within the longer historical perspective. All of this said, there are certainly understandable reasons for Aboriginal actors to regard such deep involvement in the politics of colonial states with considerable skepticism and concern, and to see something distasteful in this kind of strategic action toward small goals that may or may not be secured. Few of us as individuals want to become merely strategic thinkers, and this is especially so in conditions of persistent injustice. Moreover, there are always reasons to fear that adopting means of this sort may foreclose reaching the goals one wants to achieve.29 If one wants to achieve a political world in which people deliberate fairly about how they can live together in conditions of mutual respect, can this really be achieved by leaders that routinely act strategically in political matters?30 Can people really maintain clarity about their real political goals once strategic thinking has infected their character at a deep level? Perhaps more pressingly, can a self-respecting person tolerate the pursuit of change by means that—one might argue—require a kind of scraping and bowing to the dictates of illegitimate forms of power?31 At least some Aboriginal actors answer no to these questions. Some call instead for a more direct kind of illegal action, one that calls into question the

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pretensions of unjust institutions to secure the goals of law at all. In the remainder of the chapter, I want to take up the challenge of the more assertive form of lawbreaking that I have described as nullification, focusing on cases that involve defensive-oriented armed resistance, often at reservation boundaries, but in some cases beyond them.

4.3 Nullification and Deliberative Directness As I will use the term here, nullification refers to efforts to strongly refuse the application of a legal system or some of its key assertions to a group or territory, generally in favor of a counter-law that is regarded as more effective or legitimate. Nullification as intended here can apply either at the level of specific primary rules (ordinary laws) or at the level of secondary rules (institutional authority). In the latter case, nullification commonly rejects the claim of specific institutions to instantiate the ideal of the rule of law in the appropriate way, and it asserts that another set of institutions or other authorities should be followed instead. In both cases, the goal is to directly prevent certain kinds of outcomes or legal operations, by preventing those who otherwise seek to carry them out from doing what they intend. While there is a clear communicative intent to actions of this kind, they are best understood as oriented primarily toward conveying refusal to police, bureaucrats, and others who are seeking to directly exercise legal authority. When these efforts are intended to be short term and are oriented primarily at communication with the public at large or other uninvolved third parties, on the other hand, they are probably best understood as forms of appeal (discussed earlier) rather than nullification. Although the practices of nullification and appeal are analytically distinct, they are often mixed in actual cases. The extensive protests against the Dakota Access Pipeline by members of the Sioux community at Standing Rock, for example, began with a legal case, then became an attempt to directly blockade the pipeline’s construction— nullification—which then increased in visibility to become a nationally visible appeal for a change in American policy.32 Canada’s Idle No More movement went in somewhat the opposite direction, beginning as a national appeal against governmental removal of environmental

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and other protections for Aboriginal communities, and then moving toward a nullification model in many locations, as blockades were set up to resource-extraction projects.33 As a large-scale movement, Idle No More thus was pursued through multiple strategic approaches, with large-scale public marches and other kinds of mechanisms of appeal coupled with blockades and other efforts at nullification that often took place in remote locations far from media coverage and the public eye. To bring the issues that nullification may raise into sharp focus, I want to focus here on a very high-stakes form of nullification, that of defensive armed resistance at the border of a reserve or other Aboriginal lands. I want to consider armed resistance of this kind both because it has sometimes been advocated and pursued in Canada over the past decades and because it sets a high argumentative bar for permissions of political action. If nullification of this stark kind is permissible, then less intense kinds of nullification are also likely to be readily accepted. At the same time, I want to set aside entirely the potential for cases of permissible offensive armed resistance, since this raises much more complicated issues and sets a much higher bar of proportionality.34 There were historic cases in which such actions were undoubtedly legitimate, such as when Aboriginal fighters attacked cavalry troops before they could round up communities onto prison-like reservation spaces.35 Exactly when conditions changed sufficiently to make action of this kind inappropriate is a complex question that I will not seek to adjudicate.36 Rather, I will simply set such options aside here. To avoid complex questions that would require extended discussion for many non-Aboriginal readers I will also, as noted above, set aside discussion of retained forms of inherent Aboriginal sovereignty and focus only on acts of nullification against laws or policies that violate substantive protections in determinate ways, such that the assertion of counter-law is seen as necessary to correct specific kinds of abuses, rather than an assertion of the alternate legal system’s inherent applicability. Questions of the latter kind would need a separate and extended treatment.37 What I consider here, then, is not “national wars of liberation,” but specific forms of nullification that are backed up by at least the threat of violent reactions to some kinds of incursions. Consider, then, a more defensive resort to armed resistance of the kind that been attempted in Canada within recent decades, and which

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has supporters among Aboriginal groups on both sides of the border. Consider a situation, drawing on elements of several that have actually occurred, in which an Aboriginal group takes up arms at the boundaries of their legally recognized territories to blockade a project that is reasonably expected to have harmful effects. Perhaps it is a dam that will flood central portions of their lands38; perhaps a pipeline with a high chance of rupturing near water supplies39; perhaps it is a method of extracting oil from shale that is expected to cause profound environmental harms40; perhaps it is a facility to dispose of nuclear or other toxic forms of waste that will threaten their community’s health for generations41; perhaps it is non-Aboriginal workers from resource industries who will not be controllable by tribal law enforcement42; or perhaps it is a conjunction of several such threats or ongoing harms. Whatever the specifics, this is an instance in which Canadian or American law permits or requires actions that will create profound harms to already-disadvantaged Aboriginal communities. In this situation, armed Aboriginal people put themselves in the path of this harmful project, and prepare to use force if necessary to prevent its continuance.43 Armed blockades of this kind have occurred in the past: the 182-day standoff at Oka between armed Aboriginal blockaders and Canadian military forces in 199244 is only the most prominent of several instances.45 In our example, presume that harms will indeed occur to the community in the absence of the armed blockade, and that these harms represent the continuance of a longer pattern of offloading harms onto those involved. Deliberation, political lobbying, and other forms of appeal have not worked, so that other plausible options have already been effectively exhausted. How dire would conditions have to be for the relevant permissions to be activated? Although this is a question of proportionality, a topic to be examined in Chapter 5, the distinctiveness of this case requires some sense of the depth of the severity needed here. While it is tempting to respond that that armed nullification of this kind can be permissible only when the Aboriginal community is acting to prevent incipient lethal threats, this seems to set the bar too high. Most of us accept potentially lethal counter-violence against an attacker that plans to kidnap oneself or one’s family, for example, or who plans to deprive them of medications necessary to their health (e.g., for patients suffering from nonfatal but painful and debilitating conditions). Moreover, what is at stake here is not immediately the use of

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violence, but the expressed preparation to use counter-violence if certain kinds of aggressive actions are undertaken by others. In this way, armed nullification has similarities to many kinds of actions undertaken by police, who are armed but only anticipate the use of force in circumstances of direct resistance to their efforts at securing legality. Police are commonly armed even where they are seeking to disrupt only minor instances of lawbreaking, since this both facilitates compliance with law’s requirements and is necessary for their own self-defense. It does not seem to be the case, then, that armed nullification is appropriate only against actively murderous incursions. Rather, it seems permissible in a substantially broader range of cases. Although any standards will be difficult to define exactly, it seems to me that armed nullification is permissible in conditions that create deep and pervasive damage to the character of an intergenerational community, such that human flourishing will be difficult for those involved for extended periods, where there are no plausible alternative strategies for escaping these conditions. On this standard, armed nullification would be permissible both in response to new governmental policies that show clear threats of creating such damage, and in response to long-standing policies that lock such harms into place.46 This seems clearly to be the case with policies of resource extraction that will cause massive environmental harm to the territories in which Aboriginal communities live, but it also arguably extends, for example, to the archaic morass of Federal strictures that continue to freeze many reservation communities into social nearimmobility.47 At the same time, the potential exercise of armed force, even in a defensive way, requires a very clear articulation of the conditions under which violence will be avoided. The analogy with police is again helpful here: police must clearly identify themselves and must be clear about the kind of compliance that they are demanding from others. Those who are potentially subject to the actions of police also have the clear right to know what violations of legality they are charged with. This suggests that those who exercise permissions to armed nullification must state clearly the conditions under which they might make use of their arms, and that they must be as specific as possible about the kinds of harms they are seeking to prevent or end. Such transparency also seems to require the avoidance of “mission creep,” in which justifications shift or demands inflate over time. Where appeals are concerned, such protean arguments seem

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permissible (even if not always wise), but the stakes here seem to require a higher bar of clear and consistent explanation of what one is doing. Arguments for such permissions are of course likely to draw several objections. The most sweeping is that such permissions would constitute a kind of incipient anarchy, with the potential for destruction of all legal order entirely.48 Yet this objection seems to sacrifice too much to even persistently harmful legal structures, and to treat permissions to nullification as general rights rather than those that are specific to conditions of persistent injustice. As I noted in Chapter 2, there are always problems of messaging where permissions for those facing conditions of persistent injustice are concerned, since there are many behaviors appropriate for those in such conditions that should not be encouraged for others. Actions of this kind could indeed be destabilizing if they were adopted for wide use by those who are not suffering conditions of persistent injustice. (This may also be true where those suffering injustice have large population sizes relative to other populations within a country, though ironically a right to revolution is generally acknowledged without hesitation where those experiencing profound injustices form a majority.) It is hard to see that permissions to armed nullification for Aboriginal communities facing threats to their basic moral interests would have these kinds of chaos-inducing effects in North American contexts, however. Such actions are more likely to create backlash by state institutions themselves in the name of asserting legality, so that the harms this strategy may create are more likely to be borne by Aboriginal groups themselves (discussed below). This strategy is in practice more likely to be underutilized than overutilized in these conditions. Moreover, the efforts at nullification that have actually been made by Aboriginal peoples in North American have been constructed to convey a great deal of respect for the rule of law as an ideal, often invoking the positive and protective aspects of law that they believe should be upheld. Those who take up arms at the borders of a reservation or a land claim usually express clearly their sense that force has replaced the aspiration to a legal order based on discussion and negotiation, for example.49 Indeed, the goal of nullification seems to be a highly important one from the perspective of the aspiration to legality. The goal of nullification is to ensure that mistreatment is not simply borne without response, so that law cannot simply be used as

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a blunt instrument to dominate Aboriginal peoples or others without reference to the ultimate normative goals it is intended to serve.50 There are of course good reasons to find other ways of pursuing the same goals, where these are reasonably available.51 But targeted actions of this kind by Aboriginal peoples are unlikely to undercut the legal stability of countries such as the United States and Canada in any strong way. The risk of undermining the enterprise of law in these circumstances is thus not entirely negligible, but it seems vastly overblown to frame such permissions as a recipe for chaos. The more pressing worry about such permissions in conditions of persistent injustice is that efforts at armed nullification would be undertaken too lightly, in ill-considered ways that make the explosion of actual violence too likely, as, for example, young male activists move too readily to this kind of strategy or pursue it in explosively energetic ways. Armed nullification is an intrinsically high-stakes kind of politics, and one might worry that acknowledging such permissions in principle would foster intemperate decision by hot-tempered rather than cool-headed political actors. Given these dangers, it seems that such permissions must generally be taken up only through carefully procedural means. As I noted early in the chapter, formal legal procedures can have a great deal of value in gathering information, weighting different kinds of considerations, fostering compromises, and so on. This is as true within Aboriginal communities as it is within any others. Aboriginal groups contemplating nullification should give careful thought to their procedural means of evaluation to ensure careful thinking here: if young men are especially likely to act precipitously, for example, procedural mechanisms that include women and older people would seem especially important. In the case of Aboriginal peoples, this proceduralism may be carried out more readily than is the case for many other groups facing persistent injustice, since most Aboriginal groups have long-standing legal procedures of their own that can be consulted in cases of potential nullification.52 Even with procedural methods of evaluation in place, such efforts may sometimes misfire. But this concern also applies to state forms of proceduralism, which have a long record of continuing the legal failures that justify such permissions in the first place. One cannot take refuge in a fantasy of neutral and effective state institutions here—it is their absence that raises this question to begin with.

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If proceduralism is important to the appropriate use of such methods, it seems that permissions to attempt armed nullification when necessary entail the permission to engage in careful preparations for such efforts. Given the difficulties of evaluating particular kinds of conditions and of organizing for them on the fly, these attempts are likely to be more well-calibrated when those who will carry them out plan in advance and train themselves to act carefully if the event comes about. Some Aboriginal activists have sought to prepare for political actions of this kind on a relatively broad scale, ideally in a form that would bring about fundamental changes in the ways that Canada and the United States interact with Aboriginal communities. Mohawk political theorist Taiaiake Alfred, for example, describes an interview with one Aboriginal activist in the early 2000s, who was seeking to train a substantial force of armed young men, with the goal of preventing Canadian recourse to violence rather than negotiation and political engagement. “If we had multiple ‘Okas’ happening simultaneously,” the activist asks, “How are they going to handle it? That would be military overstretch. They couldn’t handle it.”53 This activist did not imagine driving out the Canadian state by force, but hoped to prevent force from being deployed to settle conflicts in violent and nonconsensual ways: The question is how do we direct and shape all of that to create the force we need to stand as a deterrent to the colonial enterprise. I don’t see us as having a strong enough military power to conquer Canada, but I do see us having the strength to create a condition of deterrence where colonial domination becomes very difficult for Canada to continue. This will create the physical and political space for us to pursue our own definition of our rights and our way of life.54

What is at stake here is not aggressive war, but the ability to respond to violence with counter-violence when necessary, by preparing individuals and appropriate organizational structures to engage in widespread acts of nullification where necessary. There are obviously multiple ways in which efforts of this kind could take place, and it would make a great deal of difference how such preparations were organized: if they were primarily planned and executed by young men rather than the full range of Aboriginal community members, for example, one would have reasons to expect dangerously misplaced actions. But there are surely many ways of preparing

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that ensure the moral seriousness of such action remains central to planning and deliberation.

4.4 The Costs of Armed Virtue As I have noted throughout the book, political actions may often transform those who engage in them. What kinds of transformations of Aboriginal communities might strategies of this kind bring about? Preparation for strategies of this kind might arguably have many positive deliberative benefits, in opening space for discussions within Aboriginal community beyond the preferred discourses of the state. If one is already pushing back against state discourses in particular cases, it will presumably often be easier to open up discussion of new kinds of possibilities beyond those discourses.55 Moreover, where nullification efforts actually succeed in opening more extensive space for the operation of Aboriginal decision-making, this might allow Aboriginal communities a greater chance to speak honestly among one another about what their real goals are and about how social life should be organized.56 These effects might be especially strong where nullification operates not only for a brief period, but over a longer horizon to open political space for forms of counter-law to emerge (e.g., in terms of resource management, criminal law, or property arrangements), because this allows for an interplay between deliberation and practice. This would allow, for example, Aboriginal communities a greater chance to speak honestly among one another about what their real goals are, to test these visions in practice, and to see how satisfactory they seem once attempted.57 Insofar as an Aboriginal group is able to build the space to deliberate away from state institutions, it is likely to be able to offer a clearer set of alternatives to currently existing conditions to its members and eventually to formulate these alternatives in more developed terms for nonmembers.58 One of the central virtues of a nullification strategy of this kind is its honesty and directness in regard to outsiders, even when reasons are not directly offered in justification59: the basic claim about the injustice of existing law is usually clear without restatement.60 Where Aboriginal groups have the political space to develop their own options clearly, however,

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they may be able to offer something stronger and even more compelling to outsiders, so that deliberation can ultimately proceed in more fruitful directions. When done correctly, then, there is an appealing kind of deliberative transparency associated with this kind of nullification that may potentially have important benefits. On the other hand, such normative permissions can come with high costs for Aboriginal groups themselves, and I want to think about these carefully. This will help non-Aboriginal readers to think about the ways in which political action may further burden those facing persistent injustice, even if their actions are ultimately successful. It will also help Aboriginal readers to think about the ways in which they agree or disagree with my judgments here and to better articulate their own expectations. None of the arguments in the remainder of this section should be understood as arguments against the permission to attempt these means. Rather, they are ways of thinking about the prudential wisdom of doing so. Many of the concerns here will be even more strongly colored by empirical presumptions than the arguments above, with particular focus on the potential psychological effects of attempts at nullification. I encourage those who disagree about the mix of normative and empirical claims in this section, as in the book as a whole, to think about how they would sketch out their own position instead. One of the primary benefits of armed nullification for those who engage in it lies in its honesty and directness, and much of its appeal may come from its relation to the self-respect of those who would pursue it. Armed nullification comes without scraping and bowing to the dictates of ostensible laws that instantiate persistent injustice. Since self-respect is an important part of human flourishing, this deserves weight in its own right. Many Aboriginal scholars and activists reject the Aboriginal political institutions that are currently recognized by states (band councils and so on) precisely because they regard them as co-opted, with those who fill these offices unwilling to speak freely, or unable to remember what is worth saying. I have noted already that this judgment seems to me mistaken toward most tribal leaders, who often work extremely hard to create conditions in which they can speak openly and honestly to good political effect. But one should take seriously the feelings of revulsion that such political action can reasonably engender, even for those who see it as morally permissible.61

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Given the pathways by which change has occurred for Aboriginal peoples over the past few decades, however, I believe that this kind of continual engagement with state institutions is unavoidable, despite the reasonable distaste it generates. Rather than leading to widespread weakening of state institutions, past examples of attempted nullifications suggest the most likely results to be either small-scale victories or inconclusive exhaustion of the effort over time. In some cases high-profile attempts at nullification have had powerful impacts, especially when publicity transformed them into something like appeals to a broader public. The 1992 confrontation at Oka helped to spur Canada’s Royal Commission on Aboriginal Peoples, and the Commission’s report played an important role in restructuring debates in certain fields of Canadian discourse (especially academic fields, where the benefits of discourse change are often delayed until students reach professional maturity).62 But most efforts do not have this public effect, and those that do seem to diminish over time in their discursive impact, as a kind of annoyance or boredom sets in among initially sympathetic non-Aboriginal people. When the attention of the non-Aboriginal public wanes, Aboriginal leaders are likely to find themselves back where they were before: with the attention of certain branches of state institutions and few others.63 Aboriginal nations thus seem required, as matters of brute political fact, to strike legal relationships with the states that now surround them and with the bureaucracies with which they interact on an everyday basis. This is a great deal of hard work, and is precisely what existing tribal leaders are in the business of pursuing every day. Nullification efforts seem unable to supplant this, though that does not mean it is mistaken to attempt them. Extended attempts at nullification may, moreover, be harmful for Aboriginal individuals and communities in their overall effects, since the processes by which one social change is pursued can have a channeling effect on the kinds of persons and communities that exist by its conclusion.64 Of course, one has to be careful here about such psychological predictions, so my suggestions should be evaluated with special care. Despite the hopes of the activist noted above for armed action, nullification of this kind seems to me unlikely to have positive effects for those individuals who engage in them if continued for very long.65 To undertake resistance of this

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kind, one needs first of all the virtues of courage and self-controlling readiness to sacrifice for others. Even if one is not actually harmed physically, waiting in a state of readiness during cold nights and hot days is challenging, and those who engage in it will be required to transform themselves to at least some degree if they are to bear it. Focusing on courage and self-control of this sort may unfortunately take energy away from other kinds of virtues: compassion, for example, may be hard when one is focusing on controlling fear, exhaustion, and anger.66 Some kinds of self-control may also suffer over the long term, as, for example, alcohol use or other self-harming behaviors become a way to defuse the stresses associated with maintaining courage. These efforts, at the same time, may harm relationships with growing children or failing elders. Contention is demanding, and rising to meet those demands will sometimes harm other things of great value.67 These concerns are, of course, speculative, and there are potential psychological gains that may outweigh them.68 Most Aboriginal nations are composed of people who have been treated badly for a very long time, and many Aboriginal communities already suffer from many of the burdens noted above (excessive alcohol use, disrupted families, and so on). Having something determinate to struggle for in honest and direct ways, and a clear sense that one’s actions can actually make a difference in the world, may often be transformative in unexpected ways.69 When communities are already fractured and often psychologically anomic, an injection of purposefulness and an active seeking for courage may improve many lives on its own terms.70 Moreover, a sense that the future is in at least important ways yet to be determined can give many reasons for engaging in political deliberation with a kind of energy that might not otherwise occur, such that people become engaged with political events that they might otherwise have seen as hopeless. Nonetheless, it seems unlikely to me (at least) that these good effects would outweigh the bad on balance as the length of confrontation increases. Over the short term, defensive armed resistance or unarmed analogues of direct action seem likely to have an energizing effect. Over the long term, however, these good effects seem unlikely to continue: the energy of constant courage can exhaust. If the purpose of resistance is to create space for Aboriginal lives in Aboriginal ways, then resistance might unfortunately foreclose its own goals over the longer term: unless

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there is nothing to being Aboriginal besides courage and resistance to injustice, much of what one hopes to defend might be sacrificed in the attempt. Or so it appears to me. Others will reasonably disagree, and judgments about which of these predictions is correct will be central to deciding on the prudence of actions of this kind. Concerns about the efficacy and potential harms of nullification suggest to me that the exercise of such permissions should form only one part of a broader palette of political action. It seems worthwhile for some Aboriginal activists to demand this kind of honest and direct action of themselves and others in especially consequential cases.71 To do this, they will have to prepare, and others will have to help them. Yet it seems to me too strong to hope that this method can achieve anything like what the activist described above hoped for.72 Exercising permissions to armed nullification instead seems to require the kinds of division of labor noted in Chapter 3, in which some pursue different kinds of strategies and approaches. It may not matter if this division of labor is between one Aboriginal community and another or between one organization and another or some other option. Rotating the burdens of nullification seems essential both for those who practice it and for those who may benefit by it (which may not always be the same people). In practice, something like this is what tends to happen: one band or tribe finds something especially strong around which to crystalize its actions for a time, and then, eventually, its contention fades through exhaustion or processes of bargaining with the state, before another takes its place.73 There are many uncertain judgments here about how such political action is best performed. It may be that something systemic might be best, such that one Aboriginal community rotates the strategy on to the next, but perhaps not—predictable routines may make such actions easier for non-Aboriginal actors to naturalize and ignore. There is a great deal of room for strategic coordination here, and I know of nothing to contribute to conversations of this kind.74

4.5 Legality, Permissions, and Disagreement The goal of this chapter has been to outline ways in which normative permissions to violate existing law can contribute to the aspirations that justify legality. I have sought to outline two kinds of potentially

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controversial strategies by which those facing conditions of persistent injustice might permissibly seek to improve the legal conditions in which they exist. Some of the later sections of the chapter will inevitably have been unfamiliar territory for those who do not focus closely on Aboriginal politics, with the plausibility of the various empirical claims made hard to evaluate. For Aboriginal readers or those who know the political details well, the discussion may have seemed somewhat sparse. My hope is that both sides will seek to fill in the relevant details as necessary to evaluate further the merits or demerits of the arguments here. There is a great deal of work that Anglo-American political philosophy needs to carry out in thinking about issues of this kind, and such thinking can be carried out only in conversation with those who engage in political action on an everyday basis. I hope this chapter has provided some tools for thinking about how those deliberative engagements might proceed. Before concluding, I do want to draw attention to the ways in which different strategies within the bounds of these permissions may create differing costs and benefits and, therefore, reasonable disagreements among those who have them about how to proceed. Given the ways in which different strategies may have divergent likelihoods of success in different circumstances, it seems likely, as I noted above, that Aboriginal peoples and others facing conditions of persistent injustice will fare best when they pursue a mix of political strategies in seeking to improve their conditions. Because the kinds of habits and characters necessary for individuals to undertake different kinds of strategies are likely to differ, however, it seems unlikely that the same persons can fulfill multiple roles at any given time. This suggests that multiple kinds of actually complementary political action may feel or appear to be working at cross-purposes, or actually be doing so over the short term, given the difficulties of predicting political outcomes. Aboriginal communities, like all human communities, would be divided in a variety of ways in even the best of conditions. But given the difficulties of overcoming persistent injustice, there will be reasonable disagreement about the appropriate limits of compromise, the degree to which particular styles of argument or action create or occlude normative clarity, and about which strategies are likely to be most effective in given conditions. Moreover, it would be too much to ask those pursuing different styles of political action to exercise a

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great deal of sympathetic understanding toward one another in the midst of contention with flawed social institutions. As I noted in Chapter 3, these kinds of divisions often look to non-Aboriginal outsiders like evidence that Aboriginal communities do not know what they want or that they are unable to manage their common social lives effectively. In fact, however, these kinds of divisions seem to be a reasonable response to difficult political conditions. We who are non-Aboriginal, and who seek to play a role in the remediation of injustice, should recognize the structure of the political conflicts that this context creates. Politics in difficult conditions is hard work, and where we see unsavory social divisions or apparent exercises of non-deliberative power, we should often look first at the causal role played by our own political institutions in these outcomes. Chapter 5 will turn to the examination of political conflict in an even sharper fashion—where groups must contend not only internally over strategic choices but also externally with other groups of the disadvantaged, whose moral interests are likewise unlikely to be met within a hostile political environment. The questions here are difficult and painful, but they seem unavoidable within flawed legal and deliberative institutions.

Notes 1. For the difficulties of consent-based accounts of political authority, see, e.g., A. John Simmons, Moral Principles and Political Obligations (Princeton: Princeton University Press, 1979). Nothing hinges on this initial mention of consent here. I invoke it only to call attention to law’s need for some form of normative justification. Most any plausible view of law is likely to lead to conclusions like those discussed in this chapter. 2. The discussion here is intended to be consistent with many jurisprudential frameworks, so long as they acknowledge that laws do not continue to bind when they cross a reasonable threshold of harmfulness or wrongness, since there is no obvious gain in locking the discussion into the full theoretical apparatus of such a position. The arguments here are most easily reached through the lens of a natural duty of justice as outlined in John Rawls, A Theory of Justice (Cambridge, MA: Harvard University Press, 1971), ch 6, and as, e.g., evaluated in detail by Tommie Shelby, Dark Ghettos: Injustice, Dissent, and Reform (Cambridge, MA: Belknap Press, 2016), 219–23.

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3. The argument here would not change in substantial ways if one entirely rejected arguments that individuals are obligated to obey laws, since those who reject political obligations of this kind generally argue for a generalized deference to existing legal structures given the social benefits they provide. See, e.g., David Lyons, “Moral Judgment, Historical Reality, and Civil Disobedience,” Philosophy and Public Affairs 27 (1998): 31–49. See also Simmons, Moral Principles and Political Obligations, for a defense of “philosophical anarchism.” For those who prefer this position, the argument of this chapter can be restated without loss as a question about appropriate degrees of nonobligatory deference to legal institutions. Interestingly, those who take such positions often seem more comfortable with the evasion of existing laws or direct resistance to them than with legal circumvention of the kind that is outlined in this chapter, though it is hard to say why this should be so. 4. See, e.g., the discussion of a “nearly just society” in Rawls, Theory of Justice, 363. As with Rawls, most scholars who focus on the ethics of political action do so for nearly just societies, which often leads to nuanced discussions of civil disobedience but few deeper engagements. For concerns an extension of Rawlsian styles of thought into more profoundly unjust circumstances, see, e.g., Tommie Shelby, “Justice, Deviance, and the Dark Ghetto,” Philosophy and Public Affairs 35 (2007): 126–60. 5. For an overview, with suggestions on potential reforms, see, e.g., Jessica A. Shoemaker, “Like Snow in the Spring Time: Allotment, Fractionation, and the Indian Land Tenure Problem,” Wisconsin Law Review 2003 (2003): 729–88. See Shoemaker’s citation of a familiar example at 746 (quoting a legal case): Tract 1305 [on the Sisseton-Wahpeton Lake Traverse Sioux Reservation] is 40 acres and produces $1,080 in income annually. It is valued at $8,000. It has 439 owners, one-third of whom receive less than $.05 in annual rent and two-thirds of whom receive less than $1. The largest interest holder receives $82.85 annually. The common denominator used to compute fractional interests in the property is 3,394,923,840,000. The smallest heir receives $.01 every 177 years. If the tract were sold (assuming the 439 owners could agree) for its estimated $8,000 value, he would be entitled to $.000418. The administrative costs of handling this tract are estimated by the Bureau of Indian Affairs at $17,560 annually. For an overview of attempts to solve the problem after the publication of Shoemaker’s article, see, e.g., Jered T. Davidson, “This Land is Your Land, This Land is My Land? Why the Cobell Settlement Will Not Resolve Indian Land Fractionalization,” American Indian Law Review 35 (2010–2011): 575–619.

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6. The maldistribution of environmental harms is sometimes the result of racist presumptions, in which Aboriginal peoples are framed as biologically inferior and, therefore, less deserving of concern. In the present day, however, this seems more often to arise from poorly designed legal structures that were constructed in eras when such discourses exercised more direct influence. There are also more fundamental issues about ways of life involved where environmental harms are concerned, given the ways in which settler colonialism involves attempts to foundationally refashion the manner in which land is used and understood. See, e.g., Kyle Powys Whyte, “The Dakota Access Pipeline, Environmental Injustice, and U.S. Colonialism,” Red Ink 19 (2017): 154–69. See also Kyle Powys Whyte, “Our Ancestors’ Dystopia Now: Indigenous Conservation and the Anthropocene,” in Ursula Heise, Jon Christensen, and Michelle Niemann, eds., Routledge Companion to the Environmental Humanities (London: Routledge, 2017), 206–15, and Avery Kolers, Land, Conflict, and Justice: A Political Theory of Territory (Cambridge: Cambridge University Press, 2009), ch 4. 7. The distinction between these two kinds of rules is canonically articulated in H. L. A. Hart, The Concept of Law (Second Edition) (Oxford: Oxford University Press, 1997), at 80–1, though Hart’s own preferred terminology is “primary” and “secondary” rules. The view of legality presented in this chapter has more in common with the natural law theories that Hart rejected than with Hart’s own understanding of law. For Hart’s plausible insistence that law should be seen as conceptually distinct from morality, see Concept of Law, ch 8. For a position that law has within it an intrinsic morality, see, e.g., Lon L. Fuller, The Morality of Law (Revised Edition) (New Haven: Yale University Press, 1969), especially chs 2 and 5. The substantive arguments here remain the same in any case; both views provide clear grounds for arguing that specific laws often fail in morally profound ways. 8. I draw the terminology of nullification from the nineteenth-century work of Pequot orator William Apess, who sought to protect members of the Mashpee Indian community for whom he was a minister from abusive Massachusetts laws. See Indian Nullification of the Unconstitutional Laws of Massachusetts Relative to the Mashpee Tribe: or, The Pretended Riot Explained (1835), reprinted in Barry O’Connell, ed., On Our Own Ground: The Complete Writings of William Apess, a Pequot (Amherst: University of Massachusetts Press, 1991), 163–274. Although this usage of the term may be somewhat unfamiliar to most of those working in Anglo-American political philosophy, its usage will be familiar to many in Aboriginal Studies and is intended as a reminder that strategies of this kind have a very long history.

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9. A recent overview and analysis of work on civil disobedience contrasted this style of action with “other types of political action, including lawful protest, conscientious objection, armed resistance, and revolution.” The fact that neither deceptive speech nor circumvention appear indicates the general discomfort that philosophical work has with actions of this kind. See Candice Delmas, “Civil Disobedience,” Philosophy Compass 11 (2016): 681–91 at 681. 10. For a clear discussion of civil disobedience within the logic of deliberative theory, see, e.g., William Smith, “Democracy, Deliberation, and Disobedience,” Res Publica 10 (2004): 353–77; see also, if more narrowly, William Smith, “Civil Disobedience and the Public Sphere,” Journal of Political Philosophy 19 (2011): 145–66 at 169–70. 11. The intellectual history of civil disobedience is a long one. The reasons offered for accepting punishment are not always clearly articulated. In many cases, the presumption is that one has a moral duty to accept punishment, but in other cases, the acceptance of punishment is understood as a matter of political efficacy. In some cases, the willingness to accept punishment is understood as a matter of duties to oneself as well, as in the thought of Mahatma Gandhi. For examples of Gandhi’s views, see, e.g., Anthony Parel, ed., Gandhi: Hind Swaraj and Other Writings (Cambridge: Cambridge University Press, 2009), 88–97. 12. The most famous formulation is that of Thomas Hobbes, Leviathan (Oxford: Oxford University Press, 1996), chs 13–18, but similar views can be found in, e.g., the very different work of Immanuel Kant, The Metaphysics of Morals, ed. Mary Gregor (Cambridge: Cambridge University Press, 1996), }43–9. These arguments are consistent in banning all revolutions, including those in conditions that would generally be judged tyrannical by most observers. Those who endorse extralegal revolutions in some cases cannot easily make a blanket rejection against lesser forms of illegal action for moral purposes. If they wish to reject more prosaic forms of illegality in the name of justice, the burden rests on them to show very precisely why violent revolution is acceptable but peaceful illegality is not. 13. Those who fill these offices will often be well-motivated and will seek to instantiate a generally plausible set of moral values when these are framed at a general level. They may nonetheless couple these values with mistaken factual beliefs, or they may fail to recognize the complex ways in which those values must inevitably be instantiated within human societies, or exhibit any of a myriad other kind of mistaken beliefs. Some of those who historically undertook profoundly damaging policies in relation to American Indian nations in the United States, for example, were strongly animated by deep aspirations toward racial

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15. 16.

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equality. See, e.g., Richard Henry Pratt, “The Advantages of Mingling Indians with Whites,” in Francis Paul Prucha, ed., Americanizing the American Indians: Writings by the “Friends of the Indian” 1880–1900 (Cambridge, MA: Harvard University Press, 1973), 260–71. This is a general problem of social moral epistemology. See, e.g., Allen Buchanan, “Philosophy and Public Policy: A Role for Social Moral Epistemology,” Journal of Applied Philosophy 26 (2009): 276–90 and Allen Buchanan, “Political Liberalism and Social Epistemology,” Philosophy and Public Affairs 32 (2004): 95–130. For a richly detailed discussion of this constitutional law and its relationship to literatures in political theory and philosophy, see S. Ronald Stevenson, The Political Theory of Aboriginal Rights in Canada: Prospects for Reconciliation (PhD Thesis, Faculty of Law, University of Ottawa, 2015). Article 1, Section 8, clause 3. The doctrine of congressional “plenary power” was originally articulated in United States v. Kagama (1886) 118 U.S. 375. For an analysis of the doctrine, see, e.g., David E. Wilkins and K. Tsianina Lomawaima, Uneven Ground: American Indian Sovereignty and Federal Law (Norman: University of Oklahoma Press, 2002), ch 3. For detailed discussions, see the excellent work in Laura E. Evans, Power from Powerlessness: Tribal Governments, Institutional Niches, and American Federalism (Oxford: Oxford University Press, 2011). See also Laura E. Evans, “Expertise and Scale of Conflict: Governments as Advocates in American Indian Politics,” American Political Science Review 105 (2011): 663–82. For an overview of some of the ways in which judicially focused political opportunity structures differ from more legislatively oriented structures, see, e.g., Ellen Ann Andersen, Out of the Closets and Into the Courts: Legal Opportunity Structure and Gay Rights Litigation (Ann Arbor: University of Michigan Press, 2006), ch 1. Aboriginal political action in the United States also differs from that of many other social actors because it involves government-to-government relations, which often take place in relatively nonpublic forums. The political opportunity structure of Aboriginal nations thus remains quite different from that of, say, African American communities. This is not at all unusual: while social movement scholars often focus on highly visible forms of contentious politics, most political action takes place in relatively nonvisible environments. Scholars working in the Canadian context generally do not seem to realize this difference, though for one acknowledgment and analysis of the different political opportunities following from these conditions,

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20.

21.

22.

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Strategies of Justice see, e.g., John Borrows, Freedom and Indigenous Constitutionalism (Toronto: University of Toronto Press, 2016), 165–6. Indian Law Research Center, Restoring Safety to Native Women and Girls and Strengthening Native Nations: A Report on Tribal Capacity for Enhanced Sentencing and Restored Criminal Jurisdiction (Helena, Montana, 2013), 1–3. The area indicated by the ellipses includes most of page 2, since this seemed to make the force of the statistics most transparent. For a fictional but legally accurate—and visceral—account of the jurisdictional chaos surrounding sexual assault on reservation lands, see Louise Erdrich, The Round House (New York: Harper Perennial, 2012), especially 1–12. For an overview of this judicial morass, see, e.g., Stephen Pevar, The Rights of Indians and Tribes (Oxford: Oxford University Press, 2012), ch 8. For examples of contestation over this judicial morass at the local level, see, e.g., Thomas Biolsi, Deadliest Enemies: Law and Race Relations On and Off the Rosebud Reservation (Minneapolis: University of Minnesota Press, 2007), especially 141–52. Aboriginal people in Canada experience very high levels of violence as well, with even higher rates of incarceration than is typical of Aboriginal peoples living under American law. Aboriginal communities in Canada have only very limited forms of jurisdiction on reservation lands under the Indian Act, treaties, or the Constitution Act of 1982. See, e.g., David Milward, Aboriginal Justice and the Charter: Realizing a Culturally Sensitive Interpretation of Legal Rights (Vancouver: UBC Press, 2012), ch 3. Unsurprisingly in light of his Canadian context, Milward argues for changed policies through the lens of Aboriginal culture, with a focus on judicial interpretations of Aboriginal rights. In the United States, arguments are likely to be targeted at legislation, with a central focus on sovereignty rather than culture. For an account that relies on international law rather than Canadian constitutionalism in defending legal space for Aboriginal justice, see Larry Chartrand, “Eagle Soaring on the Emergent Winds of Indigenous Legal Authority,” Review of Constitutional Studies/Revue d’études constitutionnelles 18 (2013): 49–88. For an argument that Aboriginal legal traditions themselves require careful interpretation and revision to reduce gender violence among members of Aboriginal communities themselves, see Emily Snyder, Val Napoleon, and John Borrows, “Gender and Violence: Drawing on Indigenous Legal Resources,” UBC Law Review 48 (2015): 593–654. See, e.g., the rhetoric described in Kevin Bruyneel, “The Colonizer Demands its ‘Fair Share,’ and More: Contemporary American AntiTribalism from Arnold Schwarzenegger to the Extreme Right,” New Political Science 28 (2006): 297–321 at 305–8.

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24. The notorious case of Jack Abramoff did not actually involve tribal lawbreaking, although in some quarters it was perceived that way. For a concise overview of Abramoff ’s activities and their broader place within Aboriginal politics in the United States, see, e.g., Steven Andrew Light and Kathryn R. L. Rand, “The ‘Tribal Loophole’: Federal Campaign Finance Law and Tribal Political Participation After Jack Abramoff,” Gaming Law Review 10 (2006): 230–9. There are of course complex issues here about how gaming operations are best operated, and what their relationship (if any) should be to Federal law. See, e.g., Kathryn R. L. Rand and Steven Andrew Light, “How Congress Can and Should ‘Fix’ the Indian Gaming Regulatory Act: Recommendations for Law and Policy Reform,” Virginia Journal for Social Policy and the Law 13 (2006): 396–473. 25. Aboriginal readers who know United States law are likely to recognize that I have in mind Title IX of the 2013 Violence Against Women Act, which granted tribes who complete a variety of procedural steps the authority to try non-Aboriginal spouses or domestic partners of Aboriginal women living on reservations for sexual assault or domestic violence. This legal change was narrowly tailored, reaching only a small segment of crimes, but it nonetheless faced substantial Congressional opposition. For an overview of the law and examples of the Congressional rhetoric it provoked, see Sarah Deer, The Beginning and End of Rape: Confronting Sexual Violence in Native America (Minneapolis: University of Minnesota Press, 2015), 101–6. Deer’s book as a whole is an excellent overview of many of the difficulties that Aboriginal communities face in trying to prevent sexual violence. 26. See the kinds of complex political challenges that many ghetto communities face as outlined in Shelby, Dark Ghettos. 27. The deliberative system of the United States has certain strengths for Aboriginal political action relative to that of Canada that should be acknowledged clearly. In Canada, as I noted in Chapter 3, Aboriginal rights debates are primarily judicial debates, so that large constitutional issues must frequently be resolved before even small policy changes occur. In the United States, the legislative supremacy of Congress allows laws and policies relevant to Aboriginal peoples to be changed in more nuanced and experimental ways, which are not clearly anchored into larger patterns of constitutional interpretation or wide national conversations about the political future. Thus the American regime of Aboriginal rights maintains a kind of flexibility and pragmatism that the Canadian system lacks. In Canada, politics has to run virtually the other way—one often needs a justification for a policy before one even knows what it does. As Evans, Power from Powerlessness, (e.g.,

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28. 29.

30.

31.

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33.

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Strategies of Justice 12–13) has shown in detail, Indian tribes in the United States have been most successful when they have been able to push for micro-changes over time, often by building relationships and capacities in slow step-bystep fashion, without any sort of grand plan to explain what they are doing to outsiders. See, e.g., Evans, Power from Powerlessness; most concisely, 12–13 and 201–4. Some of the most interesting thoughts about the ways in which methods of political action may foreclose certain kinds of goals are found in the work of Mohandas Gandhi. For an overview, see, e.g., Karuna Mantena, “Another Realism: The Politics of Gandhian Nonviolence,” American Political Science Review 106 (2012): 445–70. For an example of Gandhi’s thinking on this topic, see, e.g., Gandhi: Hind Swaraj and Other Writings, 77–85. Michael Walzer, in “The Problem of Dirty Hands,” Philosophy and Public Affairs 2 (1973): 160–80, argues that many kinds of political strategies should be regarded as intrinsically wrong but also as necessary to the greater good. For skepticism about the misuses of arguments from political necessity, see, e.g., Peter Digeser, “Forgiveness and Politics: Dirty Hands and Imperfect Procedures,” Political Theory 26 (1998): 700–24. For an argument about moral pride in relation to inner-city African Americans, see Shelby, Dark Ghettos, 99–100. This is something like the “eyeball test” outlined in Philip Pettit, Just Freedom: A Moral Compass for a Complex World (New York: WW Norton, 2014), xxvi. Aboriginal scholars who take this position are cited later in the chapter. See, e.g., NPR, “Key Moments in the Dakota Access Pipeline Fight: The Two-Way,” February 22, 2017, available at http://www.npr.org/se ctions/thetwo-way/2017/02/22/514988040 (accessed August 6, 2018). For an overview of the litigation, see, e.g., Earth Justice, “The Standing Rock Sioux Tribe’s Litigation on the Dakota Access Pipeline,” available at https:// earthjustice.org/features/faq-standing-rock-litigation (accessed August 6, 2018). See also Whyte, “Dakota Access Pipeline.” See, e.g., the timeline of the movement’s first year in Kino-nda-niimi Collective, eds., The Winter We Danced (Winnipeg: Arbeiter Ring Publishing, 2014), 389–409. These kinds of limits are generally accepted by those considering armed resistance in Aboriginal communities. See, e.g., the member of a Warrior society interviewed by Taiaiake Alfred (Wasáse: Indigenous Pathways to Action and Freedom (Peterborough: Broadview Press, 2005), 273): “I don’t think you can justify doing things like blowing up buildings or killing innocent people. We can’t justify initiating

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armed activity . . . . Our weapons are strictly, strictly, for self-defense.” See also the deliberative framing of this activity by this individual’s partner later in the same interview (277): “I think the real battlefield is in the arena of educated opinion . . . . Your battlefield is the process of getting people to believe your ideas.” 35. Such action may continue to be normatively permissible for some groups categorized as “indigenous” elsewhere in the world, given the frequent violence with which they are faced everyday. For a partial defense of even terroristic violence in conditions of extreme disadvantage, see, e.g., Saul Smilansky, “Terrorism, Justification, and Illusion,” Ethics 114 (2004): 790–85 at 797–8. See also, e.g., Andrew Valls, “Can Terrorism Be Justified?” in Andrew Valls, ed., Ethics in International Affairs: Theories and Cases (Lanham, MD: Rowman and Littlefield, 2000), 65–79 and Cécile Fabre, “Cosmopolitanism, Just War Theory and Legitimate Authority,” International Affairs 84 (2008) 963–76. 36. This is not to say that one cannot imagine conditions in which Aboriginal peoples’ recourse to liberatory violence of this kind would be appropriate, but it is probably better that one does not try to imagine them—in the end, the consequences of such imaginings seems likely to far outweigh their benefits. For concerns about the relationship between justified violence and the mistaken ways in which violence is often adopted in practice, see Smilansky, “Terrorism.” For a textured argument for the legitimacy of targeted violence by Aboriginal peoples in North America in the present day, see J. Angelo Corlett, Terrorism: A Philosophical Analysis (Boston: Kluwer Academic Publishers, 2003), ch 7. Corlett’s work unfortunately came to my attention only as the book was in its final stages of revision, so this chapter was written without the benefit of his work. While I find his proposed normative standards for the use of targeted violence toward those responsible for brutalities against Aboriginal peoples plausible, I do not think many examples could meet the requirements of proportionality under current conditions. Given the frequent normative misfires of such efforts noted by Smilansky and the apparent lack of interest in such means by Aboriginal political actors, it seems best to set such possibilities aside here. 37. I have written on the topic of full Aboriginal separation from countries such as the United States and Canada elsewhere. See Burke A. Hendrix, Ownership, Authority, and Self-Determination: Moral Principles and Indigenous Rights Claims (Penn State: University Park, 2008). I am now more skeptical of the practical potential for independent Aboriginal political units than I once was, and where complete independence is impossible questions about the effective operation of legal structures like those considered in this chapter remain central.

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38. I have in mind the flooding of most of the Seneca reservation in western New York in 1964. See, e.g., Joy A. Bilharz, The Allegany Senecas and Kinzua Dam: Forced Relocation Through Two Generations (Lincoln: University of Nebraska Press, 1998) and Laurence Marc Hauptman, In the Shadow of Kinzua: The Seneca Nation of Indians since World War II (Syracuse: Syracuse University Press, 2013). Many Aboriginal communities in Canada have faced similar plans, with conflict over hydroelectric developments in northern Quebec leading to Canada’s first modern treaty-like agreement in 1975. For a capsule overview, see Borrows, Freedom and Indigenous Constitutionalism, 61–5. 39. This was the primary concern of the Standing Rock blockade, which sought to prevent the completion of the Dakota Access Pipeline where it would run under the Missouri River, which serves as the Standing Rock reservation’s primary water supply. See Whyte, “Dakota Access Pipeline”; see also Carla F. Fredericks and Jesse D. Heibel, “Standing Rock, the Sioux Treaties, and the Limits of the Supremacy Clause,” University of Colorado Law Review 89 (2018): 477–532, sect. VI. Many similar kinds of concerns have been raised by Aboriginal communities against Canadian pipeline plans. See, e.g., Thomas R. Berger, Northern Frontier, Northern Homeland: Report of the Mackenzie Valley Pipeline Inquiry (Ottawa: Minister of Supply and Services Canada, 1977); Gordon Christie, “Indigenous Authority, Canadian Law, and Pipeline Proposals,” Journal of Environmental Law and Practice 25 (2013): 189–215; and Glen Coulthard, “Place Against Empire: The Dene Nation, Land Claims, and the Politics of Recognition in the North,” in Avigail Eisenberg, Jeremy Webber, Glen Coulthard, and Andrée Boiselle, eds., Recognition Versus Self-Determination: Dilemmas of Emancipatory Politics (Vancouver: UBC Press, 2014), 147–73. 40. For brief details, see, e.g., David A. Rossiter and Patricia Burke Wood, “Neoliberalism as Shape-Shifter: The Case of Aboriginal Title and the Northern Gateway Pipeline,” Society & Natural Resources 29 (2016): 900–15 at 902–4; see also Jennifer Huseman and Damien Short, “A Slow Industrial Genocide: Tar Sands and the Indigenous Peoples of Northern Alberta,” International Journal of Human Rights 16 (2012): 216–37. It is, of course, not the case that Aboriginal peoples are always opposed to energy extraction. See, e.g., Ezra Rosser, “Ahistorical Indians and Reservation Resources,” Environmental Law 40 (2010): 437–550. What they seek instead is control over the terms by which it occurs. For an overview of attempts by Aboriginal peoples in the United States to gain control over oil and coal extraction on their lands, and the alliance politics that this involved, see James Robert Allison III, Sovereignty for

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Survival: American Energy Development and Indian Self-Determination (New Haven: Yale University Press, 2015). 41. As with debates about the proposed nuclear waste storage facilities at Yucca Mountain; see, e.g., Danielle Endres, “Sacred Land or National Sacrifice Zone: The Role of Values in the Yucca Mountain Participation Process,” Environmental Communication: A Journal of Nature and Culture 6 (2012): 328–45. See also Doug Brugge, Jamie L. deLemos, and Cat Bui, “The Sequoyah Corporation Fuels Release and the Church Rock Spill: Unpublicized Nuclear Releases in American Indian Communities,” American Journal of Public Health 97 (2007): 1595–600. For the more ambiguous case of storage on Goshute lands at Skull Valley, see, e.g., Noriki Ishiyama, “Environmental Justice and American Indian Tribal Sovereignty: Case Study of a Land–Use Conflict in Skull Valley, Utah,” Antipode 35 (2003): 119–39. 42. So-called “man camps” composed of large numbers of male construction workers on or adjacent to Aboriginal lands seem to lead to increased levels of sexual assault and other forms of violence, given the legal gaps described earlier in the chapter. See, e.g., Deer, Beginning and End of Rape, 78. 43. Taiaiake Alfred and Lana Lowe, in their study for the Ipperwash Inquiry, found no evidence of aggressive violence by Aboriginal warrior societies in Canada: Violent confrontations between warrior societies and police and other government agents have only ever occurred when the state agencies have employed violence in the first instance against indigenous people on their own lands. In the modern era, indigenous peoples, including warrior societies, have never initiated violence nor advocated armed aggression against the non indigenous population. Taiaiake Alfred and Lana Lowe, “Warrior Societies in Contemporary Indigenous Communities,” Background Paper Prepared for the Ipperwash Inquiry, 2005 available at: http://www.attorneygeneral.jus. gov.on.ca/inquiries/ipperwash/policy_part/research/pdf/Alfred_and_ Lowe.pdf, 56 (accessed August 6, 2014). 44. For accounts of this conflict, see, e.g., Donna Goodleaf, Entering the War Zone: A Mohawk Perspective on Resisting Invasions (Penticton, BC: Theytus Books, 1995); Geoffrey York and Loreen Pindara, The People of the Pines: The Warriors and the Legacy of Oka (Toronto: Little, Brown, and Company, 1991); Amelia Kalant, National Identity and the Conflict at Oka: Native Belonging and Myths of Postcolonial Nationhood in Canada (London: Routledge, 2004); and Harry Swain, Oka: A Political Crisis and Its Legacy (Vancouver: Douglas & McIntyre, 2010).

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45. For a concise overview of several recent encounters between police and Aboriginal protestors (not always armed), see, e.g., Edward J. Hedican, Ipperwash: The Tragic Failure of Canada’s Aboriginal Policy (Toronto: University of Toronto Press, 2013), 97–134 and 155–88. For a discussion of the Caledonia encounter within the framework of the rule of law, see, e.g., Laura DeVries, Conflict in Caledonia: Aboriginal Land Rights and the Rule of Law (Vancouver: University of British Columbia Press, 2011). For an accessible description of land occupations in Canada through 2005 by both Aboriginal peoples and the Canadian state, see John Borrows, “Crown and Aboriginal Occupations of Land: A History & Comparison,” Background Paper Prepared for the Ipperwash Inquiry, 2005 available online at: http://www.attorneygeneral.jus.gov.on.ca/inquiries/ipperwash/policy_ part/research/pdf/History_of_Occupations_Borrows.pdf (accessed August 6, 2018). For Aboriginal arguments about the longer-term value of the blockade at Oka, see, e.g., the textured accounts gathered in Leanne Simpson and Kiera L. Ladner, eds., This is an Honour Song: Twenty Years Since the Blockades (Winnipeg: Arbeiter Ring, 2010). 46. For one interpretation of why those larger patterns have the structure they do, see, e.g., Christie, “Indigenous Authority, Canadian Law, and Pipeline Proposals.” See also Christie’s arguments about how challenges from outside of Canadian law might have a catalytic effect on broader environmental and economic struggles. 47. I have in mind here the continued effects of the nineteenth-century policy of Allotment, which created extremely fractured arrangements for land ownership within many reservation communities, leading to severe difficulties in economic activity. See Shoemaker, “Like Snow in the Spring Time.” Something similar exists on Canadian reserves. For a discussion of the problem and one proposal for overcoming it, see, e.g., Tom Flanagan, Christopher Alcantara, and André Le Dressay, Beyond the Indian Act: Restoring Aboriginal Property Rights (Montreal and Kingston: McGill-Queens University Press, 2010), part 3. Flanagan has often been an unhelpful voice in Canadian Aboriginal policy, but the book’s arguments mirror much of what tribes in the United States have sought to achieve. See, however, the complexities noted in Jamie Baxter and Michael Trebilcock, “‘Formalizing’ Land Tenure in First Nations: Evaluating the Case for Reserve Tenure Reform,” Indigenous Law Journal 7 (2009): 45–122. 48. For detailed descriptions of concerns of this sort, see, e.g., DeVries, Conflict in Caledonia, 18–21. 49. See, e.g., DeVries, Conflict in Caledonia, 22–4.

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50. An analysis of settler-state law as a tool of domination rather than protection and the steps that might be taken in countering it forms the central topic of Alfred, Wasáse. For the role of direct forms of opposition, see more concisely Alfred and Lowe, “Warrior Societies in Contemporary Indigenous Communities,” and more concisely yet Taiaiake Alfred, “What is Radical Imagination? Indigenous Struggles in Canada,” Affinities: A Journal of Radical Theory, Culture, and Action 4 (2010): 5–8. 51. Alfred himself generally rejects armed nullification in favor of unarmed nullification through noncooperation that stops short just at the boundary of violence. Alfred, Wasáse, 77. Alfred is following many others in making this argument, including most importantly Gandhi. See, e.g., Gandhi, Gandhi: Hind Swaraj and Other Writings, 88–97. 52. This does not mean that such planning should always go on through the tribal governments that Canada and the United States already recognize, which many Aboriginal activists reject as co-opted. Using other institutions for planning purposes, however, by no means reduces the need for procedural safeguards: ensuring that acts of nullification are not attempted simply by angry young men remains important under all circumstances. Given the gendered dimensions likely to be associated with such ill-considered action, procedural mechanisms that include women and older people seem especially important. Strong roles for women seem to be common in many blockades and occupations. See, e.g., the discussion of Oka/Kanesatake in Goodleaf, Entering the War Zone; Kalant, National Identity and the Conflict at Oka, 185–6. See also Kahente Horn-Miller, “Otiyaner: The ‘Women’s Path’ Through Colonialism,” Atlantis 29 (2005): 57–68. 53. Alfred, Wasáse, 74. This is not an implausible claim. For a richly detailed account of the Oka crisis from the perspective of the Canadian military, see P. Whitney Lackenbauer, “Carrying the Burden of Peace: The Mohawks, the Canadian Forces, and the Oka Crisis,” Journal of Military and Strategic Studies 10 (2008): 1–71. 54. Alfred, Wasáse, 74. See also Alfred’s interview with Joan and Stewart Philip in Wasáse, 182–3: To me, there are two kinds of war: wars of offense and wars of defense. We have every right to defend ourselves against an aggressor. . . . When we talk about being prepared, it’s being prepared to fight against that kind of oppression, because it happens right here, in Mohawk territory, in Gustafson Lake, and at Ipperwash. 55. Alfred (Wasáse, 203) argues that “delegitimizing the regime is the most fundamentally radical act one can perform.”

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56. Alfred’s debt to Gandhi’s formulation of satyagraha (truth-force) as a central political value is clear throughout his work, and openly acknowledged. See, e.g., Wasáse, 204: Can we envision a politics of resurgence that is authentically cultured, spiritually rooted, and committed to non-violence in its strategy and that leads to the creation of a credible threat to the colonial order? For guidance in thinking through this question, we must travel from [North America] to the site of the only mass movement that was founded on the premises we are advocating: India, the site of the Satyagraha . . . campaign against British imperial rule inspired and led by Mohandas K. Gandhi. Alfred’s concept of Aboriginal self-determination is in many ways analogous to Gandhi’s use of the term swaraj to refer both to Indian home rule and (more deeply) to individual self-control and self-rule. See, e.g., Wasáse, 55–6, 268–9, and 282. It is surely no accident that the final intellectual figure mentioned in Alfred’s book is Gandhi (citing a notion drawn from his own recurrent study of the Bhagavad Gita). 57. Glen Sean Coulthard, Red Skin, White Masks: Rejecting the Colonial Politics of Recognition (Minneapolis: University of Minnesota Press, 2014), argues that forms of direct action allow for “prefigurative” kinds of social experimentation and revitalization in ways that are free of state domination. Such actions “are prefigurative in the sense that they build the skills and social relationships (including those with the land) that are required within and among Indigenous communities to construct alternatives to the colonial relationship in the long run” (166). 58. Alfred (Wasáse, 232) clearly conceptualizes communicative success as a foundational element of the political strategies he defends: “The first sign of victory will occur when we define the moral terrain of politics, creating norms of judgment and expectation by which [non-Aboriginal people] will begin to judge and evaluate their own behaviors and choices.” 59. Indeed, a simple refusal to deliberate about an issue is often itself an important communicative move. Demonstrating the importance of nonverbal communication in a theory of deliberative democracy is the central goal of Tobold Rollo’s doctoral dissertation, Enactive Democracy: Decolonizing Democratic Theory (Department of Political Science, University of Toronto, 2014). For the importance of refusals to engage in deliberation, see, e.g., Joel Olsen, “The Freshness of Fanaticism: The Abolitionist Defense of Zealotry,” Perspectives on Politics 5 (2007): 685–701 and Joel Olson, “Friends and Enemies, Masters and Slaves: Fanaticism, Wendell Phillips, and the Limits of Democratic Theory,” Journal of Politics 71 (2009): 82–95.

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60. Consider this description of armed resistance from a member of a Warrior society interviewed by Alfred (Wasáse), 273: “Us Mohawks, particularly the Warrior Society, got a bad name because we were always associated with cigarette smuggling and super bingos. I’ll tell you something, when I was out there, it wasn’t for cigarettes and bingo. I was defending the people and the territory.” In conditions as they are, there are few reasons to believe that cigarette smuggling raises troubling moral issues: even if formally illegal, it represents one method of gaining increased resources in conditions of generalized disadvantage. For an evaluation of “smuggling” through the lens of sovereignty, see Audra Simpson, “Subjects of Sovereignty: Indigeneity, the Revenue Rule, and Juridics of Failed Consent,” Law and Contemporary Problems 71 (2008): 191–215. Nonetheless, these kinds of actions can feel petty and unseemly to those who engage in them, and are frequently perceived that way by others. That is rarely the case with blockades and other forms of stand-offs, where individuals are directly putting their bodies on the line to express an argument. 61. See, e.g., Alfred, Wasáse, 104: [T]he legalist approach has created within indigenous struggles an inauthentic, guilt-ridden, condescending, and degrading agenda full of cries for redemption, groveling for pity, and begging for a merciful end to mistreatment at white hands . . . . [W]e must advance an agenda of social equality and political pluralism by shining the light of radical truth through the fog of racial prejudice and overwrought attachment to colonial institutions that make up the state and culture of colonial society. 62. See in five volumes Canada, Report of the Royal Commission on Aboriginal Peoples (Ottawa: Canada Communication Group, 1996). 63. It seems unlikely that long-term nullification could be a long-term solution for more than a handful of Aboriginal peoples even with very careful organization, despite the hopes of the activist cited above. For any foreseeable future, Aboriginal nations will continue to be surrounded by a vastly larger non-Aboriginal population that controls many of the material goods needed to make life bearable. While some reservations in the United States are quite large, none of them is self-sufficient economically, and few have, for example, sufficient water supplies to be able to get by without striking detailed agreements with the non-Aboriginal government agencies controlling lands and resources beyond their borders. In Canada, many band reserves are very small spaces. While some have at least limited prospects for surviving on international trade (e.g., those on coastlines), it is hard to imagine how this could be managed for more than a few months when

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64. 65.

66.

67.

Strategies of Justice faced with the hostility of surrounding countries. Parts of the Canadian North are more promising in terms of the resources they hold, but their very size makes them unpromising as locations for armed nullification: there are simply not enough people to blockade state agents in a meaningful way. I was more hopeful about the possibility of full Aboriginal political independence in Hendrix, Ownership, chs 7–8, than I now am. See Alfred, Wasáse, e.g., 201–3. Alfred (e.g., Wasáse, 87–9) seems to believe that the virtues necessary for effective political contention are also, in general, the virtues necessary for a well-lived life (in, e.g., his discussion of the importance of spirituality, avoidance of “essentially meaningless” (88) forms of life, and simplicity), though at some points he acknowledges that those engaged in contention may be overstrained in their need for courage (52). At a minimum, his position seems to be that those who train themselves for contention will come very close to a fully realized human life, and that most of the virtues he describes will be necessary for a good life even by those who do not engage in contention. It is not obvious to me, however, that the sets of virtues necessary for successful contention really do hold so closely together with those suiting a well-lived life in noncontentious conditions. For the argument that some contextually specific virtues may burden those who hold them, see Lisa Tessman, Burdened Virtues: Virtue Ethics for Liberatory Struggles (Oxford: Oxford University Press, 2005), chs 1, 5–6. If contention and negotiation with hegemonic political structures both entail some loss of ideal personal character and human flourishing, then the decision between them may be less obvious, depending upon judgments about relative chances of success rather than on the harm to the individuals involved themselves. Here I draw from Tessman’s analysis of anger and other potentially self-harming characteristics that may nonetheless be necessary for some kinds of political struggles. See Tessman, Burdened Virtues, 117–31. Alfred (Wasáse, 27) offers reasons to reject violence that also may apply to long-standing forms of nonviolent contention: I find it very difficult to see any value in asking our future generations to form their identities on and live lives of aggression: would this not validate and maintain the enemy colonizer as an omnipresent and superior reality of our existence for generations to come? This is not the legacy we want to leave for our children.

Given the degree to which political contention calls into play some virtues and not others, many of the same problems seem likely to occur with persistent forms of nonviolent political action as well.

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68. The evidence here is mixed, and the long-term mix of costs and benefits may look much different than I presume, especially in cases where the non-Aboriginal pressure put on blockades is relatively limited, particularly in its physical form. The example of the long-running blockade by Grassy Narrows First Nation in Ontario suggests that the act of creating and maintaining a blockade can provide multiple benefits in allowing communities to rebuild a sense of agency. For a positive account of this long-running action, see Anna J. Willow, Strong Hearts, Native Lands: The Cultural and Political Landscape of Anishinaabe Anti-Clearcutting Activism (Albany: SUNY Press, 2012). 69. For textured stories about the complex interpersonal dynamics in her own experience with unarmed nullification and beyond, see Val Napoleon, “Behind the Blockades,” Indigenous Law Journal 9 (2010): 1–14. For an account of many of the interpersonal dynamics of the Oka standoff, see Goodleaf, Entering the War Zone, especially ch 5. 70. See e.g., Coulthard, Red Skin, White Masks, 113: [ U]nder certain conditions Indigenous peoples’ individual and collective expressions of anger and resentment can help prompt the very forms of self-affirmative praxis that generate rehabilitated Indigenous subjectivities and decolonized forms of life in ways that the combined politics of recognition and reconciliation have so far proved [themselves] incapable of doing. 71. For a nuanced view on both the dangers and necessity of such action, see, e.g., Peter H. Russell, “Oka to Ipperwash: The Necessity of Flashpoint Events,” in Simpson and Ladner, eds., This Is an Honour Song, 29–46. 72. For a similar position, see, e.g., Borrows, Freedom and Indigenous Constitutionalism, 53–4. 73. Borrows, Freedom and Indigenous Constitutionalism, 74–84, argues that the armed blockades at Oka and Burnt Church did not benefit the communities that undertook them, but that they did benefit other communities by changing broader political discourses. 74. Indeed, the palette of political strategies suggested in this chapter is only a small slice of the larger field available. For an overview of the Idle No More movement and many of its wide-ranging strategic choices, see Kino-nda-niimi Collective, The Winter We Danced. This volume includes a detailed chronology of many of the movement’s key events.

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CHAPTER 5 Self-Care and Proportionality

I have argued throughout the book so far that political action must be undertaken within the limits of proportionality, but have so far deferred discussion of this complex topic. At one level, the idea is straightforward: the permissions outlined in the previous chapters must be exercised with due care for others, rather than simply serving as a blank check to behave however one wishes. One should not behave as what the Anishinaabe call a wiindigo, by acting in voracious and self-seeking ways, without regard for how others are affected.1 The permissions outlined earlier are intended to facilitate escape from conditions of persistent injustice, and they exist only for those who are pursuing this goal. Yet recognizing what “due care” for the interests of others entails is difficult not only in specific cases, but in principle as well. How much self-priority is permissible for those who are seeking to escape injustice, and at what potential costs to others? These are the central questions of the chapter. I want to evaluate proportionality with relation to a painful kind of situation that is unfortunately too common in practice: that of conflict between two or more groups who both suffer from persistent injustice. Dominant political institutions are often structured in ways that create direct conflicts between different groups of the disadvantaged, and even when they do not create such conflicts directly, they often generate them in indirect ways. This focus can both illustrate the character of proportionality where it matters most, and give a clearer view of the social structures that often make political action normatively troubling for those who engage in it. The decisions that must be taken in these conditions are often brutal

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ones that those seeking an escape from persistent injustice for themselves frequently cannot avoid. They must decide how heavily to count themselves against others and how to calculate the costs and benefits that their actions will produce. In other words, they must calculate whether specific choices fit the requirements of proportionality, whether they wish to do this or not. Given the troubling nature of political conflicts among those facing conditions of injustice, coupled with the attractions of ideal theory, it is common for Anglo-American political philosophy to avoid such questions by imagining instead how society could be restructured to overcome such conflicts altogether. While this is an important intellectual project (see Chapter 2 and Chapter 6), such imagined ideals can easily distract from an examination of the means by which they are to be brought about. As a related intellectual move, it is common to argue that those facing such conditions should join together to mutually change the circumstances that they face.2 Because such invocations of shared political action often fail to take seriously the difficulty of such action, and the costs that it often entails for those who are exhorted to engage in it, I will have much to say about such exhortations here. I will argue that joint action is often structurally difficult, so that it is overdemanding to expect Aboriginal peoples and others in similar conditions to act together politically in many instances. I will argue instead that those facing persistent injustice are frequently permitted to give priority to selfcare, in which they seek to protect the moral interests of their own members first of all, despite the normative discomfort that this position entails. Careful attention to the appropriate calculation of proportionality in such circumstances will show why this is so. Before proceeding to the discussion itself, I want to be clear about how this chapter should be approached. An inquiry into the ethics of competition among the disadvantaged could easily become an excuse for complacency by those of us who are not directly involved in these conflicts, but it must not be allowed to become so. Those of us who are not Aboriginal or facing persistent injustice in other ways must recognize the conditions that create political conflicts among the unjustly disadvantaged; we must also do what we can to change them. The arguments of this chapter, as with the book as a whole, are thus not intended as a full theory of how to combat morally deficient

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social institutions. They are instead intended as one component among many. The responsibility for the majority of political work that must be done continues to rest with we who are not experiencing such injustices—and who are often benefiting from them—even if Aboriginal political actors are in practice likely to bear the vast bulk of that load themselves.

5.1 Land Claims and Competition In this section, I want to show how conflicts among the disadvantaged may come about, and why shared political action is often both difficult and overly demanding. It is, of course, obvious why shared political action among multiple groups facing conditions of persistent injustice would be appealing. If multiple groups who are suffering from injustice are able to act together in effective ways, they will form a more powerful political force than each could acting separately. In this way, they can better meet their mutual interest in improved political conditions. Yet there are also specifically normative reasons to prefer strategies of shared action when they are readily achievable: all people have duties to help other people realize justice in the world, when they can do this without excessively damaging their own moral interests. It is obvious that these duties press most heavily for action by those who are already politically powerful, and especially on those who benefit by existing injustices.3 But where they are already failing to act as they should, the burdens of escaping injustice are thrust onto those who suffer from it, who have duties to help not only themselves but also others when they can reasonably do so.4 It may therefore seem natural to exhort the unjustly disadvantaged to act in alliance with one another, and to charge them with objectionable selfishness or shortsightedness when this fails to emerge. Exhortations of this kind, however, seem to me to demand more of those in conditions of injustice than it is appropriate to ask them to bear. To illustrate the difficulty of such shared action in many cases, and the need for difficult decisions about proportionality, I will examine a relatively direct kind of political conflict in this section, in which one group can only pursue its important moral interests at the expense of another similarly placed group given the institutional

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channels within which political action must be pursued. In instances of such political conflict, two groups (or more) find themselves treated less well than they would be entitled to under some satisfactory theory of justice, and find themselves in conditions where one group’s success in partially escaping this condition forecloses the other(s) from doing the same, at least for the time being. Although there are likely few cases in which there is literally only one mechanism for pursuing improvements to their status, many cases have this basic structure given the dearth of plausible channels within what social movement scholars call the political opportunity structure. In schematic form, such conflicts have this shape: both parties A and B are suffering from persistent injustice, and a particular political process will give each a chance to improve their condition, but to the partial or even full exclusion of the other.5 How are groups permitted to act in competitive conditions of this kind? Given Anglo-American political philosophy’s central concern with disagreement, there is a temptation to assimilate conflicts of this kind to other forms of political conflict, and, therefore, to see them as unavoidable in any form of human society and thus uninteresting. This understanding is encouraged by theories of the social contract that call for government to act as a “neutral judge,” and by the image that courts foster of themselves as instantiating such neutrality, sitting as dispassionate arbiters above the unruly (and, it is usually suggested, unsavory) conflicts of others. Yet neutrality is an aspiration, not an achievement, and conflicts between those facing persistent injustice should not be naturalized in this way, as if they were simply features of any political world rather than specific features of our own. The conflicts with which I am concerned are politically induced by structures that could be designed otherwise. They can also be described as injustice-preserving: the outcome that results will lead to relative improvements for one party, but it will nonetheless fall far short of what ideally should happen. Social conflicts of this form occur only because powerful actors insist that background social features must remain fixed rather than malleable, so that already-disadvantaged social actors must compete for an artificially limited pie if they are to pursue political action through the mechanisms open to them. Alternatively, they must join together in risky forms of shared action in hopes of changing these structures, with high odds that these attempts will ultimately fail.

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For readers familiar with Aboriginal politics in the United States, the bargaining structures that tribal gaming law sets up are an obvious example of such politically induced conflict, in which state governors recurrently pit tribes against one another for the legal permission to offer gaming in particular locations or conditions.6 Because the nature of this competition would take some time to explain to those unfamiliar with the political terrain, however, I will focus instead on a theme already discussed in Chapter 3: land claims processes in (or, if one prefers, against) Canada. Many parts of Canada, especially British Columbia, continue to have large areas where Aboriginal peoples are legally acknowledged to hold areas of unalienated land, but where the geographical scope and specific content of this continuing title remains deeply uncertain. (These conditions stem from earlier failures by Canada to follow its own legal procedures for land transactions.) Having clear title to the lands they live on and use is essential for often-devastated Aboriginal communities to extract themselves from conditions of poverty, vulnerability, and anomie. If Aboriginal groups fail to undertake land claim processes, on the other hand, the results are likely to be changes to the lands that they live on and use anyway. Governments usually see these lands as sites of natural resource extraction, often undertaken with limited concern for the consequences to Aboriginal communities themselves. In the absence of actions to claim land, governments are able to move forward swiftly, more or less as they see fit, with little legal leverage held by Aboriginal groups to slow or benefit from these processes.7 If they refuse to engage with land claims processes entirely, Aboriginal groups are likely to condemn themselves to conditions of permanent poverty and vulnerability. These processes are thus essentially “the only game in town.”8 The bargaining system thus set up does not lead to generous outcomes under any conditions. Any claims made to unalienated lands will be foreseeably bargained down by state institutions to only a fraction of the original claim area, since state institutions have effective veto powers over any proposed agreements.9 An Aboriginal group may receive meaningful control over 5 percent of the land to which it had unalienated title at the beginning of the process, for example, and these lands may not be well-structured for use, or to prevent spillover harms from nearby extractive industries, given the capacity of governments to choose what they will offer and the

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inducements by resource-extraction industries to continue many ongoing or projected activities.10 In this context, Aboriginal groups have structural inducements to make geographically extensive claims to improve their own bargaining position, so that the final fraction they receive will be relatively larger. If two Aboriginal groups claim the same set of lands in these circumstances, state institutions are likely to give preponderant attention to whichever group brings suit most proactively.11 Multiple Aboriginal groups thus have strategic motivations to move rapidly in asserting title to a very broad area, and to downplay the claims of their competitors to any potential overlaps.12 In a sense, each side contends with the other for the right to engage in asymmetric bargaining with the Canadian state on somewhat better or worse footing. (These claims may not subjectively feel strategic, given the ways in which legal regimes impact those involved in political action. I will say more about this below.)13 They have been set up by these structures to compete against one another. In this case and in others of this kind, existing political structures create conditions in which the leaders of Aboriginal groups treat one another as obstacles to be strategically overcome as part of their efforts to escape conditions of persistent injustice. Communities that secure somewhat better outcomes (of either more extensive or more well-structured legal rights to land) will have a better foundation for escaping generations of poverty, vulnerability to harmful resource extraction, hopelessness, and many other continuants of colonialism. In some cases, the outcomes of land claims processes will be sufficient to put Aboriginal peoples on a quite positive trajectory, while in other cases, they will remain insufficient to do so, but will nonetheless represent a substantial improvement. Aboriginal leaders must thus decide, when they begin to engage in such processes and in all the strategic decisions that follow, what their responsibilities are to their fellow Aboriginal competitors for these outcomes.14 If a particular kind of action will make it harder for a neighboring Aboriginal community to bargain effectively, should they engage in it anyway? What if it will not only blockade improvements but actually worsen their condition, by, for example, increasing the vulnerability of the nearby community when a polluting resource-extraction project moves into an area with newly cleared Canadian land title? Political action always involves questions of

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whether the goals pursued show due proportional weighting for one’s own moral interests compared to those of others, but these questions are profoundly acute where both parties are already experiencing persistent injustice. Where both parties are receiving less than their moral due, proportionality is not simply a matter of deciding whether decisions are within some bounds of tolerability for a wellfunctioning society. They involve instead harder questions about how one’s own moral standing should be balanced against the moral interests of others who are also badly treated by the existing social order. It is not difficult to recognize political changes that could vastly reduce conflict in cases of this kind, or that could at least alter it so that it was no longer injustice-preserving. Perhaps most straightforwardly, Canada could bargain less aggressively against Aboriginal claimants, such that land claims resulted in more than just a fraction of the original area asserted, with greater territorial coherence, usefulness, and protection against extractive harms.15 A broad variety of deeper institutional and procedural changes is easy to conceptualize as well. Designing such solutions in imagination is worthwhile, and as in earlier parts of the book, I encourage non-Aboriginal political philosophers who do not know existing processes well to investigate them and propose revised practices. But such changes are likely to be difficult on the ground. Even setting aside questions of material interest, different branches of the state see their roles in distinctive ways that do not easily allow other outcomes. Courts will view decisions about how bargaining takes place as beyond their purview, while government litigators will see their responsibility as defending Canada’s existing prerogatives, and so on. While requiring Canadian negotiators to be more generous in what they offer might not require formal legal changes, it would require substantially changed presumptions within several bureaucratic branches, and these are rarely easy to bring about. Injustice-preserving outcomes, in this instance as in so many others, are thus politically naturalized by deeply anchored institutional structures that are very hard to dislodge.16 Because it is not a strict impossibility to bring about changes to injustice-preserving structures of competition of this kind, it remains imaginable that those involved might adopt a strategy of alliance instead of competition, in which they jointly seek to change

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the conditions that pit them against one another. Where land claims are concerned, this might require jointly eschewing the use of current institutional structures while laboring instead for fundamental changes to the legal structures bringing such competition about. In the case of Canadian land claims, this would likely involve switching the locus of political action from the courts to electoral institutions, to find legislators willing to fundamentally reshape institutional practices that are now deeply established, or something similar. Although specific institutional mechanisms may vary, what matters is the general strategy of striving to change existing social institutions through alliance among those suffering from them, rather than making use of the competitive channels they currently allow.18 Despite the initial appeal of alliance in cases of this kind, it is hard to see how duties of justice could be so stringent as to require it. Actions of this kind are likely to operate over a long time horizon in seeking these changes, and their success will be uncertain. In many cases, it will be deeply unlikely, and history will show many attempts at the same goal that already failed. These efforts will be time- and effort-intensive, requiring the acquisition of new skills, new resources, new social networks, and so on, in ways that move energy away from other kinds of political and social projects. While such efforts are attempted, the members of one’s own community will in the meantime continue to live in poverty and vulnerability, remaining unable to plan for a meaningful future in the absence of clear legal rights. The costs of attempting alliance can thus be quite high, and the success of these efforts will often be doubtful. Selfhelp in these circumstances should be conceptualized not as careless disregard for the interests of others, but as due care for the lives of oneself and those with whom one is most closely connected exercised in highly unsatisfactory conditions. The continued suffering of others is a painfully foreseeable outcome of these efforts at self-protection, but not its goal.19 It thus seems to me that alliance is too demanding in these instances (if pursued only on the basis of duties of justice rather than expectations that it will maximize success, which seems unlikely here). Aboriginal leaders instead seem permitted to compete with one another to do the best they can for their own people, despite the normative discomfort that this position inevitably creates.

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5.2 Self-Help and Proportionality While the above example should make the basic nature of such conflicts and the normative claims that I want to make about them clear, unpacking the normative logic in more depth unavoidably pulls the argument into relatively technical waters. I recognize that the discussion of this section may seem especially dense to readers approaching it from an Aboriginal Studies perspective, but I will aim to keep technical language limited where possible, so that readers approaching the topic from this direction will be better able to evaluate its claims from within their own normative viewpoints. The argument proceeds in stages intended to keep its logic clear. Each piece of the argument is likely to be controversial for readers approaching it from Anglo-American philosophy, and those readers should think about how they themselves would unpack and evaluate each of the normative claims, and whether alternate theoretical conceptions might lead to substantively different normative conclusions. (My sense is that they will not.) First, I presume that all individuals have natural duties to help in the realization of justice for others. These duties require that we make efforts to repair injustices where they exist. Although it is often difficult to recognize what an ideal system of justice would entail, it is easier to recognize profound patterns of mistreatment and political failure, and these will usually demand immediate political attention (even if they rarely receive it). Where individuals are directly involved in causing or maintaining such mistreatment, duties of justice require that they change their actions swiftly. These are duties to cease the perpetration of injustice. There will be many injustices for which a given individual has no direct causal responsibility, however, which they will be able to recognize nonetheless. Natural duties of justice require positive efforts to aid in bringing about more just conditions in cases of this kind, or efforts to prevent the worsening of conditions where this seems imminent. Individuals thus have duties to aid in the creation of justice, even when they are not directly involved on either side. Although the line between the two kinds of circumstances will be unclear in many cases (and judgments, therefore, often controversial), it is duties to aid in the creation of justice that I will examine here. Duties of the latter sort require that citizens of the United States or Canada who have no direct causal role in the injustices facing

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Aboriginal peoples to act to repair these conditions. They require, in the same way, that Aboriginal peoples contribute to repairing the damages suffered by other Aboriginal communities where they can, and likewise, to repairing the injustices faced by other groups in similar conditions (e.g., many African American communities in the United States, about which I will say more below). Positive action in this way helps to respect the personhood of those who are suffering maltreatment, by bringing about the conditions in which they are more appropriately protected. Second, however, these duties to aid must be balanced against another set of normative concerns: the permissions that individuals have to care for themselves and those to whom they have close connections. While duties to desist from perpetrating injustices are generally binding despite the costs to those who must do so,20 duties to aid in the creation of justice are less stringent. Anglo-American philosophy commonly holds that individuals have permissions to give substantial priority to their own well-being and that of those to whom they have close connections when evaluating how much to aid others. While moral duties to aid others may require more activity than most people now engage in, they nonetheless do not require that one’s preponderance of time or energy go to such efforts: even when great injustice continues to exist in the world, one is entitled to the chance to live a meaningful life. All people thus have substantial permissions of self-care, which take into account that one does not live one’s life at a third-party remove, and that no one should be expected to behave purely as an instrument for the pursuit of justice.21 For similar reasons, it is common to attribute substantial moral weight to those with whom we have strong relationships, since relationships are typically essential elements of human flourishing.22 Thus it is commonly seen as permissible to give attention to those with whom one has close ties first, such as, for example, funding an educational opportunity for one’s own child even if two children of another family could be educated for the same expense. One can reasonably favor one’s own community in similar ways, especially when it is knit together by many overlapping kinds of relationships as is true of most Aboriginal communities.23 One might term these as permissions of relationship-care. In conditions of persistent injustice, the scope of these permissions is increased relative to the demands of duties to aid. Most discussions

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of the relationship between duties to aid and permissions of self- and relationship-care presume an audience that is not currently experiencing profound forms of mistreatment. They thus focus on the role of these permissions in maintaining, rather than creating, the conditions for flourishing individual lives.24 Yet matters are different for those who are already experiencing persistent injustices, since these injustices are likely to already frustrate fully flourishing lives.25 Those who are suffering injustice are both people with ordinary permissions to protect their own flourishing and people who deserve aid from others. While their efforts to improve their own condition could be taken as a way of fulfilling their duty to aid in the creation of justice (in this case, relative to themselves), it seems more straightforward to conceptualize these efforts as falling within more expansive permissions to self-care and relationship-care, in light of the unjust hindrances to flourishing that must be navigated in cases of substantial injustice.26 Exactly how much space these expanded permissions allow against duties to aid in the creation of justice for others is more difficult to say. These permissions clearly cannot be so strong as to leave no grounds for concern about others who are also mired in conditions of persistent injustice. Giving priority to self-care and relationshipcare cannot mean that duties to aid have vanished entirely. As a general principle, we would want to say this: the worse the conditions of any particular individual or group, the heavier their permissions weigh against their duties to aid others in realizing justice.27 When acting as representatives of individuals in such conditions, by extension, the leaders of groups (e.g., elected Aboriginal chairpersons) have at least a permission, and often a responsibility, to give preferential weight to reducing their own members’ disadvantage.28 But how should the meaning of these permissions be conceptualized in more detailed terms? Here we enter extremely difficult moral terrain that is nonetheless central to the current inquiry. Questions about the relative weight of different moral concerns are often referred to using the language of proportionality, and I use that language here.29 Proportionality can be calculated both in a third-party way, and in an agent-relative way. The two forms are interrelated, and most easily conceptualized as elements of a twopart model. Third-party evaluations of proportionality examine the different moral interests that individuals have (e.g., in physical

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security compared to aesthetic enjoyment), and seek to determine how the impact of a particular political decision on one person compares to its impact on another, with the goal of determining whether or not its distribution of burdens and benefits is fair. This often involves the specifying of different kinds of moral interests, and then relatively intuitive (rather than formal) acts of deciding how to weight them against one another across those involved. Proportionality calculations are commonly carried out in this way by judges and mediators, who are routinely called upon to neutrally weight the moral interests of the individuals before them, in hopes of giving due respect to all. Proportionality calculation of the sort carried out in these instances focus on the interests of others, without specific reference to the interests of the deciding person. If Aboriginal leaders were considering which nonmember groups to lend their aid, for example, they would engage in proportionality calculations of this kind to determine who was most in need. When weighting one’s own duties against one’s own permissions, however, the resulting proportionality calculations are agent relative: one decides first how the moral interests of other people should be weighted in the abstract, and then how much that weighting can be discounted in light of one’s permissions to self-care and relationshipcare. In this way, the disadvantages of oneself and one’s own group appropriately “count for” more than those of others. Agent-relative proportionality calculations thus entail weighting the moral interests of others at a first stage, and then at a second stage, deciding how to act given the weight of self-care and relationship-care that permissions allow. Circumstances in which the success of one’s own unjustly disadvantaged group’s political action will foreclose or at least make much more difficult that of another unjustly disadvantaged group bring the stakes of these calculations into stark relief. In some cases, one’s own political efforts may blockade political improvements by these others. In other cases, political efforts may foreseeably worsen the condition of these others, given anticipated bad actions by other parties for which one is not directly responsible. What kinds of choices are appropriate in conditions of this kind? The basic character of agent-relative weighting can be seen most clearly with an artificial example. Imagine a 10-point scale of injustice, with 10 representing the absolute worst scenario of disadvantage. The weight provided by permissions to self-care and

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relationship-care suggests that it would be acceptable to improve the condition of one’s own group from 10 to 8 on this scale, even if this would require the failure of another group’s effort to go from 10 to 5 or 6.30 One can permissibly seek a smaller improvement for one’s own group over a larger improvement for another group in similarly bad conditions. This is a case in which one group’s actions do not have any sort of negative ramifications on the other group, but only prevent an improvement in its conditions. I will refer to this as blockading the efforts of the other party. By the same principle, it would seem permissible to improve the condition of one’s own group from 10 to 9, even if this foreseeably worsened the condition of another group from 9 to 10.31 Although I find it troubling to state openly, it also seems to me that more substantial setbacks to the moral interests of the other group are permissible, as when one improves the condition of one’s own group from 8 to 5, even when foreseeing that this will lead dominant institutions to act in ways that worsen the condition of the other group from (say) 8 to 10. The numbers are of course only ways of rendering schematic the nature of these choices, but the basic point is clear: the stronger the permissions relative to duties to aid, the greater the acceptable disproportion between the numbers on each side. Those who are uncomfortable with these specific judgments should think about how they would evaluate permissibility in cases of this kind instead, preferably with distinctive numerical weightings in mind. Readers should think about where they already tacitly draw these lines in their own lives and political practice, and about the parameters of the answers that they find roughly plausible and implausible. There is no obvious way to model proportionality in more than approximate ways, but it seems to me necessary to have clear beliefs in mind about stylized cases of this kind. No real examples have this kind of clarity, but since it is hard to make any political decisions that do not include a tacit view of such proportionality choices, some kind of weighting of this kind is likely to lie in the background of any political action. Each reader should thus determine where they are willing to draw the lines, and seek to articulate the set of standards underpinning this set of reactions as clearly as possible, so that the arguments throughout the remainder of the chapter can be evaluated more clearly. These kinds of questions are not, of course, the only ones significant to proportionality calculations. These

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include questions of numbers on each side. Should a substantial increase in protection of the moral interests of some small number offset small losses to a much larger number of the disadvantaged, for example, and if so, does this matter in the same way for blockading change as it does for worsening conditions? Questions of time also seem to matter. If some sets of persons are made worse off now, but potentially better off in the future, should this be weighted as a cost on balance, or an overall benefit? Finally, there are fundamental questions about how comparison across different kinds of moral interests can be carried out, once we move away from an imaginary scale to the realities of the complex and often-uncertain moral interests that individuals have. I will have more to say about this latter concern below. Clearly, these kinds of questions must have some kind of right answer, and those facing persistent injustice must decide among them in at least a tacit form when embarking on any political action at all, but the answers will not always be obvious. Non-Aboriginal philosophers who have written about notions of proportionality have often raised questions of the kind outlined above, but few have offered much in the way of concrete guidance.32 Nor, unfortunately, do existing political practices offer useful standards for working through questions of this kind: law courts, for example, have developed no clear standards for evaluating such questions either, despite their frequent invocations of standards of this kind.33 While proportionality judgments of this kind run throughout all aspects of political and social life, we have few intellectual tools for dealing with them, which we often hide by deferring to the particular decisions that judges and other similarly placed actors make about such matters. The decisions that Aboriginal leaders must make in these conditions are thus profoundly difficult ones, about which little can be said firmly. Yet they must routinely make decisions of this kind nonetheless. These are the painful and difficult decisions to which badly structured social institutions routinely embroil them. When will it be appropriate to attempt joint political action intended to change the structure of competition within the logic of this model of proportionality? Two different kinds of reasons are likely to blur together in practice, but it seems important to separate them analytically. Many political contexts will not induce conflicts of this kind, and in such cases, self-care and relationship-care will often

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be best served by strategic alliance creation with other groups aimed at longer-term policy or institutional change. Joint action will often be the most effective strategy for many concerned, so that Aboriginal peoples and others will have good grounds of selfcare and relationship-care to pursue it when viable. These could be referred to as win-win alliances. Joint actions undertaken primarily out of normative concern for others, on the other hand, are more distinctly normative. These might be described as duty-based alliances when undertaken specifically because they will aid others rather than one’s own group. Normative accounts that call for joint action about those facing conditions of injustice often fail to distinguish between these two grounds for action, but they rely on quite different logics of proportionality: win-win alliances are essentially a form of self-care and relationship-care, whereas duty-based alliances are driven by duties of justice themselves. Joint action has obvious appeal for all sides where political opportunity structures do not pit groups against one another, and it is likely to be common insofar as limited capacities and political energy allow. Duty-based alliances among those suffering from persistent injustices, on the other hand, are likely to be more difficult and less common, even in cases where there are no obvious grounds of conflict. Duty-based alliances require that groups act to aid others because their moral duties require this, but the additional weight given to permissible self-care and relationship-care means that such action will rarely be morally required of multiple parties at the same time, given the costs that action to aid others will entail. Groups facing persistent injustice will be normatively required to undertake such actions only when the costs to themselves are low and the benefits to others high. Most kinds of joint action, then, will take place only in win-win conditions, where this is beneficial to those on multiple sides. Where the political opportunity structure directly creates conditions of competition, duty-based joint actions are reasonably likely to be rare.

5.3 Land Claims Again What do these theoretical arguments mean for real cases? Let us return now to the case of competing Aboriginal land claims. While

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the idea of the relatively transparent 10-point scale outlined above may seem intrinsically misleading, competing land claims often do in fact take place where the parties involved know each other well enough to anticipate costs and benefits in relatively precise ways. Aboriginal communities who compete over land claims are neighbors, and, therefore, they often share a great deal in common. In many cases, they share a long history of precolonial connections, often with historical languages that were closely related or at least mutually intelligible. They were often engaged in frequent trade or in ongoing political alliances before colonial institutions began to divide them up, force them into restricted spaces, and orient them primarily toward interactions with domineering Canadian institutions. Aboriginal communities nearby to one another will generally have experienced the same kinds of disempowerment, impoverishment, and social fragmentation under Canada’s Indian Act, and will face similar kinds of challenges today. In most cases, the kind of futures that they envision will share many similarities as well. Aboriginal leaders in such cases thus face an information-rich environment when evaluating the proportionality of their induced struggles with one another, with both knowledge of the challenges facing the other community and an understanding of what its members see as most valuable and pressing in their own lives. In cases of this kind, proportionality calculations are not undertaken in the dark. They are instead undertaken with a very good sense of what is at stake, and a strong capacity to imagine the impacts that choices will have on one another. Decisions in these circumstances will not reduce to relative weightings on a 10-point scale, but they will come recognizably close to this kind of clarity: each side will usually know exactly what is at stake for the other. Relatively clear stakes do not thereby make the decisions themselves any easier. Rather, Aboriginal leaders are faced with real and vivid choices that may often be quite painful. Should they press land claims that may include disputed lands with their neighbors, and if they initially lodge such claims, should they thereafter finalize treaty agreements on this basis, even if doing so makes it more difficult for their neighbors to bargain for an improvement to their own conditions? Whatever the process leads to exactly, both sides are likely to remain in conditions of persistent injustice afterward, just less severely so. Should the leader of an Aboriginal group seek a stronger

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outcome for his or her community, even if the actions of neighbors are blockaded or their conditions are worsened in certain ways? Should he or she seek to reach some sort of limited accord between the two groups, to ensure the most equal balance possible, so that both groups are left equally disadvantaged? Or should these groups seek to band together in stronger relationships of alliance instead, in seeking to change the conditions that pit them against one another in the first place, despite the unlikelihood of even long-term success?34 In my view, it is permissible for Aboriginal leaders to seek a better deal for their own community in these conditions, so long as they are in fact mired in conditions of deep injustice at present, even when they foresee that the condition of others will be blockaded or even worsened. This is, in many ways, a distasteful conclusion to state openly, because it leads to a result in which others get less than they deserve. But these are not circumstances of mere greed, but of seeking to build the conditions for one’s own flourishing and that of one’s own community, while recognizing that existing social structures will not allow this to occur for all sides. Entering relationships of alliance with other Aboriginal peoples is, in practice, profoundly unlikely to alter the basic political structures that create such competition, and, even if it does so, the effort is likely to take decades. Delaying an exit from conditions of profound vulnerability and disadvantage by a generation or two, for example, will devastate many lives in the meantime. Nor will groups always have options to wait, given the structure of existing claims processes, or much certainty that relations of alliance can ever be formed with sufficient strength. Joint action is appealing in principle, but is less appealing once one examines its actual implications for those facing real acts of political choice. It is important to acknowledge, however, the consequences that acting on such permissions can have not only for the moral interests of others but on relationships and the potential for future cooperation with them as well. Because the groups involved here are often neighbors who have acted together in the past, self-help in these cases is likely to be felt as a kind of treachery, with anger directed at other Aboriginal peoples rather than at the state institutions that create such conditions in the first place. Aboriginal leaders are likely to begin regarding one another as both personal and political enemies, rather than to see themselves as struggling within structures of

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induced competition. If this occurs, it is likely to lead to some overreaches beyond what those involved would regard as proportional in cooler-headed conditions. Other members of Aboriginal communities, less deeply caught up with state institutions, may often find it necessary to remind them insistently of the moral interests that they share with their competitors, and leaders may sometimes make troubling decisions despite this. It does not follow that Aboriginal leaders have simply been co-opted by state discourses or selfinterest when they choose to enter this competition rather than engage in attempts at alliance, however. These are conditions in which social institutions have created conditions of moral tragedy. A sense of betrayal thus seems difficult to avoid in many cases, even if the actions by both sets of the unjustly disadvantaged are fully appropriate. Before moving forward, I want to remind non-Aboriginal readers of their own responsibilities in conditions of persistent injustice. We who are not mired in such conflicts should do what we can to change the conditions creating them. At the same time, we should not charge Aboriginal leaders and others in similar conditions who forgo alliance with moral failure: they are trying to help those to whom they have the most intense responsibilities. Indeed, an awareness of the horrific decisions that existing institutions inflict on them should lead us to see additional costs to injustice that we might otherwise miss. Our own duties to help realize justice require that we play our own part in changing the injustice-preserving conditions that require such choices to be made.

5.4 Indirect Conflict and Political Contexts Given the ways in which direct competition makes joint action with others extremely difficult and often quite costly for one’s own group, it might seem that the better targets of alliance will be found at a somewhat greater remove, where there are no deeply anchored patterns of conflict, and where political action can be undertaken without the difficult work of proportionality calculations. Yet conflicts of similar structure frequently exist here as well, often with more complicated and uncertain proportionality decisions to be made.

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Aboriginal peoples frequently do manage to act together in relation to the institutions of the United States and Canada, by lobbying together for changes to legislation, supporting one another in court cases, jointly building new arrangements with bureaucracies, and so on.36 These efforts are driven by a mix of overlapping moral interests and mild mutual sacrifices intended to help other Aboriginal peoples realize just conditions. It is often shared action this kind, showing occasional patterns of success, that leads non-Aboriginal observers to call for further levels of alliance, and to react with confusion or even disgust where they see Aboriginal peoples come into conflict with one another. The point, then, is not that joint action never occurs, but that it is frequently difficult. It is especially difficult where it will be extended to others not on the basis of anticipated benefits, but despite them: where alliance is undertaken on the basis of duties to help others realize justice, rather than other reasons. These are the kinds of reasons that matter most for this chapter’s discussion. While it is tempting for a book on persistent injustice and Aboriginal politics to focus only on the ways in which states foster competition between Aboriginal communities, a full normative portrait requires a broader conception.37 Aboriginal groups that seek state assistance or forbearance often compete not only with one another but with groups of the non-Aboriginal disadvantaged as well, if not directly than in more indirect ways. Conflicts of this more indirect kind will most commonly occur not within restrictive institutional contexts such as land claims (or, e.g., gaming negotiations in the United States), but within the broader field of legislative politics and the associated lobbying, persuading, and opposing associated with it. An examination of competition among the disadvantaged should thus take account of patterns of competition even if they are indirect or among groups with very different self-understandings or unmet moral interests. These can raise especially complex issues of proportionality. For this reason, I want to consider the indirect conflicts that can exist between the moral interests of Aboriginal communities and those of unjustly treated African American communities. These might occur within relatively local contexts, where the two might for example share a state and therefore a common governor, or at a broader level within American legislative institutions, or at the

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broadest level within public discourse. Although there will rarely be direct conflicts between Aboriginal and African American communities through mechanisms like land claims procedures as seen above, there is likely to be competition for the political attention of those who can make legislation or oversee bureaucracies. The resources and policies that will improve conditions for Aboriginal and African American communities are unlikely to come without action from governmental institutions at some level (even if only to remove restrictive laws), but those institutions preferentially distribute attention to already-powerful social forces instead. In these conditions, disadvantaged social actors frequently compete for an artificially restricted quantity of attention from those in governing institutions and, thereby, a restricted supply of policy energy and creativity.38 When Aboriginal leaders are able to capture the attention of nonAboriginal legislators and judges from this unjustly constrained supply, they will often make it more difficult for non-Aboriginal political actors in difficult circumstances to be heard, and vice versa. This is a problem of general form: disadvantaged groups that manage to claim the attention of powerful institutions will often unintentionally make success more difficult for other disadvantaged groups in ways that neither is responsible for creating. Alliance would, in cases of this kind, involve acting together either to fundamentally alter the political structures that bring this about, or in more limited ways coordinating political activities to ensure that efforts build off one another rather than collide. This is much easier said than done. When examining the everyday realities of injustice, Aboriginal communities and inner-city African American communities often have much in common. Both face problems of poverty, absent or violent forms of policing, fine-grained networks of laws structured to frustrate acts of political or economic initiative, increased vulnerability to environmental harms, low levels of governmental services, broken educational institutions, and so on. Perhaps most obviously, both communities have been brutalized on the ground of purported racial inferiority, with policies of political domination excused for centuries on the basis of claims about skin color.39 It is not absurd to refer to many inner-city African American communities as urban reservations, or to refer to Aboriginal reserves as rural ghettos: there have been many commonalities both throughout history and into the present day, and language of this kind helps to bring out these

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similarities. Many of the same kinds of policies are likely to help members of both communities, such as policies enforcing prohibitions on racial discrimination, or those requiring affirmative action in hiring and university admissions, or those ensuring properly funded local control over education, giving communities greater control over police, and so on. It is common for academics and others with such difficulties in view to call for alliance on grounds of this kind.40 Yet there are deep sources of difficulty for such alliances given the realities of the political world as it is now ordered, since the legal and political revisions necessary to create improvements in both cases are likely to be quite different in their details. Even if there are broad similarities between the conditions faced by Aboriginal communities and those faced by inner-city and other unjustly disadvantaged African Americans, the specific laws that impact them arose from divergent routes of historical development, which now leave them lodged within quite different background institutional structures. Indian law in the United States is much different in detailed content from the laws and policies that instantiate persistent injustice for African American communities, and changing law for one side does not thereby change it for the other. Rather, repairing the conditions of Aboriginal communities and of African American ghettos will require alterations to very different sets of legislative codes, judicial interpretations, Federal agencies, and so on. Very different kinds of policy experts are necessary here, with legislators and others dedicating time and political capital to each set of changes separately. This means that relations of alliance can be maintained only when each side is willing to tolerate additional slowness and unpredictability in policy changes. In most instances, this would occur only when they are driven by considerations of duty alone, and duty often cannot require anything so strong. An accurate understanding of the stakes for each side is likely to show that both are justified in pursuing self-help, despite many features of shared circumstances. Perhaps the most severe challenge to effective alliance in these conditions comes not only from the details of specific laws, but from the framing effects associated with them. Powerful ways of framing a political issue can make it hard to conceptualize different kinds of problems and solutions at the same time, and patterns of political framing can divide people into different categories of concern, so that two groups facing similarly dire conditions may not be

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mentally cognizable at the same time. These diverse ways of framing the politics of each are not simply accidents of history, but understandable responses to the intimate relationship between patterns of discourse and particular features of the institutions constituting the relevant political opportunity structures. Divergent historical experiences have led to very different touchstones for political action and organization (e.g., the Worcester decision on Aboriginal nationhood compared to the Declaration of Independence and the Civil Rights Movement), so that the languages of political protest and contention used by each group is quite different.42 But this is not simply a matter of historical inertia. Because the detailed grid of restrictive or harmful laws or policies will look and feel different in each case, responses to its specific components will naturally be described in ways that attach to particular legal arrangements, historical processes, or political actors. Anger at the Oliphant decision involving tribal policing capacities, for example, is likely to have little resonance within African American communities; similarly, stop-and-frisk policies may have little resonance within Aboriginal communities (at least those on reservations).43 Political history and existing background political conditions create strong inducements toward particular ways of describing injustice and seeking to counter it, which do not easily translate from one discourse to another. Consider the ways in which the legal structures associated with Aboriginal land claims generally require issues to be framed. These claims generally focus on broken or absent treaties and patterns of large-scale territorial displacement. To convey this clearly, Aboriginal leaders usually have to speak to the public (and to state institutions) in relatively simplified terms: the United States or Canada behaved treacherously in the past, and rectifying this past mistreatment entails the recognition of rights that continue to exist within ignored portions of the law, so that they can therefore be revivified and put into practice. (Absent such continuing legal structures, it is usually impossible for land claims to get off the ground in the first place.) The injustice thus described is injustice between peoples, which should culminate in the recognition of communities that maintain a separate existence into the future. This vision puts a strong value on local self-determination, and envisions a future status that might plausibly be described as “separate but equal.”44

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All of these ways of framing salient injustices fit awkwardly with the conditions of disadvantaged African Americans, and with the channels of political action that might be taken to improve their lives. African American communities do not have continuing legal rights as communities (there were, for example, no treaties with such communities), so that the rights on which they often insist are the rights supposed to be common to all Americans. African American communities were not deprived of lands that are now ruled by the United States and Canada, but were deprived of their labor and freedom instead, with the historical lands in Africa from which their ancestors came holding no attraction for purposes of reclamation.45 Many African American communities will be wary of a language of local self-determination,46 given the ways in which such language was historically used in Southern defenses of slavery and Jim Crow laws.47 And for obvious reasons, policies with resonances of “separate but equal” are likely to raise painful resonances of decades of segregation.48 On the other hand, the language of constitutional equality for individuals that has resonated within African American discourses for more than two centuries seems to undercut the relevance of the very legal tools on which Aboriginal peoples seek to draw. Surely, there are ways of describing the shared experiences of Aboriginal peoples and African American communities that do not undermine one another’s logic.49 But none of these alternative framings has clear anchoring points within the existing political opportunity structure or long-standing traditions of political action associated with them. While there is no logical reason that legislators and the public more broadly cannot give serious attention to patterns of mistreatment that vary in their exact content and texture, distinctive discursive patterns make this predictably difficult to achieve this in practice.50 The cognitive and affective capacities of legislators and others who shape law and policy are limited, and they will often be unable to hold different kinds of framings in mind at the same time. This is much more so with the broader public who is supposed to hold these legislators to account, since they lack the experience that legislators have in moving from one committee meeting to another. Given the effects of political framing, indirect patterns of competition of the kind described here may even be difficult to recognize because the two kinds of political struggles never seem to be put on a common

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plane. Yet such competition often exists nonetheless. In some cases, clever leadership can find new ways of framing issues that allows alliance to emerge.51 But this is often difficult, as evidenced by the small number of Aboriginal–African American alliances seen in everyday politics. Some version of the account above seems to make sense of why such alliance is difficult. There is much more that could be said here, but I hope the basic point about the existence of indirect conflicts and the difficulty of undertaking shared action in these conditions is clear. Determining if relationships of alliance can work will often require considerable time and a willingness to accept flaws and disagreements.52 It will also frequently entail working together on specific issues of agreement, rather than seeking all-encompassing visions of what the political future may look like.53 In practice, Aboriginal leaders and leaders of other disadvantaged groups are usually skilled at constructing such partial alliances, which sometimes form into very strong bonds. Doing so is always difficult, however, and there is likely to be an inverse relationship between the density of existing ties and openness to new patterns of shared action, so that Aboriginal communities and others will find ways to cooperate with a small number of alliance partners over the long term, usually with relatively few resources and through great exertion. One of the common concomitants of persistent injustice is the difficulty of achieving coordination and cooperation with others, given the absence of routinization and resources, along with structural inducements toward conflict. It is thus reasonable to expect that joint action will only be possible in some instances, even when each side can recognize the profoundly difficult conditions and claims of justice of the other. How should proportionality be evaluated in these more ambiguous and openended cases?

5.5 Proportionality and Diverse Moral Interests Determining proportionality in conditions of indirect conflict is likely to be more difficult than in cases of direct conflict because the stakes involved on each side are likely to differ. This is especially so where they involve parties with divergent kinds of experiences and challenges, as with Aboriginal communities and disadvantaged

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African Americans. (Many members of white communities may count as the victims of injustice in relevant ways as well; the pairing here is not intended to be exhaustive.) In many cases, there will be little reason to attempt proportionality calculations at all, because the blockades or worsenings that may occur through relatively more effective access to legislators will be so diffuse or uncertain that little determinate could be predicted either way. Given generalized permissions to protect the moral interests of oneself and one’s own group first, this suggests that proportionality calculations are normatively required only in conditions with specifiable stakes, even though competition is likely to exist in other conditions. It would be too much to expect those facing persistent injustice to search out all of the possible ways in which their actions might impact others. But where, for example, one’s legislative contact is attempting to revise laws for two groups at once, or a specific funding decision is likely to transfer fiscal resources from one location to another, or something else recognizable is involved, proportionality calculations seem required to see how permissions should be weighted against duties to help others realize justice. How should proportionality be calculated in more complex conditions of this kind, where the stakes for each side are likely to be confusingly dissimilar? The most obvious place to begin is with the detailed disaggregation of different kinds of moral interests on all sides, so that evaluation can happen in relatively more systematic ways. Such disaggregation does not tell us how to weight the various moral interests at stake, but it does make it easier to think transparently about what one is doing. Aboriginal peoples are disadvantaged on multiple fronts: they are generally poor, have been racialized by others, are underrepresented in political institutions, have had their status as political collectives disregarded, have been culturally denigrated, have been territorially uprooted in many cases, have often been treated as subjects for medical or educational experimentation by state institutions, and so on. Other groups face different patterns of persistent injustice, often with a similar complexity but differing elements, as in the case of the African American communities.54 One of the first steps in calculating proportionality, then, might be to specify as well as practical the elements of disadvantage that a specific strategy or political activity is intended to overcome, while at the same time specifying the specific axis of disadvantage on which

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others who are also disadvantaged overall may have their efforts blockaded or their condition worsened. The goal is to specify the nature of the conflict as clearly as possible for clearer understanding. When disaggregated in this way, it will be easier to recognize the degree to which specific groups are disadvantaged along some axes and less disadvantaged or not disadvantaged at all along other axes. It can also help to recognize the degree to which disadvantages along some axes may overlap in reinforcing ways, or in which they may be compensated by advantages along other axes. Consider a hypothetical case in which an Aboriginal community has treaty rights to an area that have been long violated, and that it now has a likely legal mechanism to reclaim a substantial area of public land on the edges of a small township, as well as to exercise increased authority over land use and environmental regulations in a larger area surrounding the township. Although the Aboriginal community itself is based some distance away, this land—near a major highway—has commercial potential that may be helpful for reducing the community’s poverty, while increased input into regulatory decisions will allow greater protections for the nearby wild rice crop on which many of its members rely. Regaining this land is thus likely to have a variety of benefits for this community. The township’s inhabitants, however, are primarily members of a longstanding African American community, who moved to the area decades ago while fleeing from the Jim Crow–era South. The educational institutions in the township are underfunded, policing is— mirroring the practices of many inner cities—often violent and arbitrary, and residents struggle with poverty and the racism of nearby white communities. Young people who leave the township usually go to the poorer sections of the nearest large city, and they have brought back patterns of substance abuse and gang violence with them. The community has long used this public land in a variety of ways, and it has recently been lobbying the state government to fund a new high school and youth center on what they regard as the most promising unused land in their vicinity. The state government has been considering this proposal since using this land would bring costs down to levels that it has deemed affordable. If the Aboriginal community has a strong enough legal claim to win in this instance, should it do so? Would the choice be appropriately proportional?

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It is of course reasonable to hold that no actual cases have this form or that there are surely other options that allow such decisions to be avoided. Given the frequency of persistent injustice in countries like the United States and Canada, however, and the broader array of populations facing such conditions (e.g., many Hispanic communities in the United States, certain refugee communities in both countries, some poor white communities, and so on), this example seems worth pursuing as a tool for further thinking. In the case above, we would, presumably, want to know more. How poor is the Aboriginal community at present, and what would the proceeds of potential commercial operations be used to provide? Are there other options for gaining the same kinds of revenues if operations are not pursued in this location? How serious are the current ecological dangers facing wild rice areas and the community more broadly? How badly off is the African American community, and are there other options beyond new buildings for its needed educational facilities? How severe are the current problems among its youth? The kinds of moral interests involved on both sides may turn out to be quite different, if, for example, the commercial operation is expected to generate funds for elder and health care within the Aboriginal community, while the high school and youth center are intended to break the African American community’s children out poverty and a sense of hopelessness. Weighting health against the hope and happiness of children in this way is not easy in either practice or theory. Even if one held that the gaming facility would improve the health of tribal members from 10 to 8 on a scale of disadvantage, while the youth center would improve the sense of hope by the African American community’s children from 10 to 6 or 7 on this scale, it would not be obvious which set of moral interests is more weighty, all things considered, even before the discounting effect of permissions are included. Yet there is no obvious alternative, in cases of this kind, to attempting to recognize as clearly as possible what is at stake on each side. One can envision a kind of table of different moral interests involved, weighted by expectations about centrality to a flourishing community, the degree to which each might be impacted by particular outcomes, and so on. Careful evaluation in this way might often reveal that the normative stakes are lower than they may seem or are more clearly weighted to one side or are nearly equal. Given

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permissible preferences for one’s own community, it would likely be permissible to pursue one’s preferred outcome in most cases, but in some cases, detailed evaluation would surely lead communities to conclude that continued action was disproportionate, even when greater weight to one’s own community was factored in. It seems to me that it would often be useful for Aboriginal groups contemplating political actions that seem to foreseeably blockade or cause losses to others to engage in disaggregation processes of this kind, by, for example, asking tribal officials to compile impact reports for internal use by decision makers. There can be dangers of false precision in attempts to disaggregate the relative extent of unmet or endangered moral interests in conditions of this kind, of course, since different aspects of social life often fit together in complex ways. Moreover, attempts at formalism about such disaggregation and the associated proportionality calculations may sometimes hamper political action and moral judgment by rendering the political stakes intellectually dry and, therefore, less immediate. Nonetheless, this is the kind of task that tribal professionals might be well placed to carry out, or allied academics or others who are better resourced, and it might often be useful to do so. As noted above for land claims, the best source of knowledge about potential harms to others comes from knowing them at a deep level, so that one can feel deeply what they will also feel to be at stake. In this light, it may be that proportionality calculations should often be undertaken in ways that draw on imaginative and empathic capacities rather than, or in addition to, such formalism, to make vivid the potential stakes for others in one’s own decision. This would entail seeking to put oneself imaginatively in the position of those who might be affected by possible kinds of political change, and to ask how one might feel when any given change occurs. For this kind of process to be useful, it is probably not sufficient to imagine some “generalized person,” or simply to imagine oneself in different conditions with all the values, expectations, and beliefs that one already has. One would have to ask instead what it would feel like to be the other person, as they actually are, given the things they actually believe and value, the communities they actually live in, and so on.55 In doing this, one would have to take as seriously as possible the other party’s existing patterns of frustration with the current political world, their expectations about how political life will go

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wrong based on past experience, the ways in which they might maintain hope in their own lives, and so on.56 This approach might thus also bring on board the social knowledge that these others already have about patterns of political experience and the operation of existing institutions.57 African American populations in the United States often have quite different political experiences than those of Aboriginal populations, for example, and imaginative acts of this kind might help tribal leaders to recognize where unanticipated kinds of harms might result from particular kinds of political action, or where unrecognized avenues of shared action exist, and so on. This will make the decisions themselves no easier, of course, but it may make their terms of decision more transparent to both sides. This kind of imagined identification is often difficult, however, and it is important to acknowledge its limits and its implications for political relationships more broadly. Imaginative tests are not likely to work especially well when one does not actually know much about the others in question. As noted above, it is not always easy for Aboriginal peoples, the inheritors of long generations of forcible displacement and cultural disrespect, to put themselves in the experiences of African American communities, the inheritors of enslavement, forcible segregation, and unyielding racial denigration.58 To understand more richly how particular political choices might affect other communities, it will often be helpful to speak to those others when possible, so that one knows from their own words what they believe, what they care about, and what they politically fear most. Attempted relations of alliance or more temporary alliance may thus help to generate some of the knowledge necessary to carry out proportionality tests with more effectiveness. This kind of engagement is obviously not easy for tribal leaders and others operating with limited resources, difficult time horizons, and deeply uncertain futures in the ways outlined earlier, however. More importantly, ties of alliance and communication are necessarily difficult to maintain when communities really do find themselves competing over resources made scarce by more powerful actors. As noted earlier, decisions to pursue self-care at the expense of those who have shared many interactions are likely to be especially illreceived, even if they are morally justified and created ultimately by background decisions of the more powerful.59 Cultivating the ties of association that are helpful to proportionality decisions is thus likely

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to be perpetually difficult, and it may increase feelings of betrayal when self-help is ultimately undertaken. As with more direct forms of conflict, there are few ways to make politics in these circumstances less unpleasant. Induced competition among the disadvantaged can create ugly politics, and there are few ways to smooth its sharp edges in many instances. The kinds of tradeoffs between capacities for imaginative identification and feelings of betrayal are, at least, recognizable, so that both those inside of the conflict and outside can have some better understanding of what is occurring. As above, there is an important role for the ordinary citizens of Aboriginal peoples in proportionality decisions of this kind, both because they will view their leaders’ decisions from some distance beyond the horizon of daily politics and because they may often hold important sources of information about how others will be impacted. Ordinary Aboriginal individuals will often be able to see ways in which political leaders have framed a conflict too narrowly or have become overzealous in their actions. They will often also have their own experiences with other groups facing disadvantage (e.g., nonAboriginal spouses or other relatives, long-time residence in other communities, and so on), and these sources of knowledge can help with recognizing political decisions that may be particularly problematic in their effects for others. The processes of bringing these concerns to the table will often themselves be painful and fraught, especially when tribal leaders are focused on achieving goals that may require quick action: those who fear the effects on others may be seen as raising needless quibbles or as failing to understand political realities. But where profoundly difficult moral tradeoffs of this kind are involved, it seems appropriate for non-leaders to bring their weight to bear as well, and to try to generate a richer portrait of those who might be blockaded by an outcome the tribe’s leaders pursue, or even have their condition worsened. I do not want to give the impression by this discussion that Aboriginal peoples and others facing conditions of persistent injustice must be consumed with proportionality calculations or considerations of potential alliance patterns, so that they have little time for the actual hard work of protecting their own members. Permissions for self-help in conditions of injustice would be self-defeating if all available time were spent worrying about the interests of others. As I noted above, most Anglo-American philosophers believe that

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individuals can reasonably give priority to themselves and those with whom they have close connections, even when they are not facing injustice. This is because people have a right to live their own lives, and not to be consumed by a focus on the well-being of others to whom they lack relationships. I have argued that these permissions are substantially stronger where important moral interests are already going unmet. In many cases, it will be unclear whether conflicts exist, or their range of impacts on other communities will be so uncertain or limited that proportionality calculations would have little with which to work anyway. It would be very difficult, for example, for Aboriginal communities to have a sense of when their engagement with the time and energy of legislators might be blockading improvements for inner-city African Americans or even indirectly worsening their condition. In most cases, then, Aboriginal communities can act without careful examinations of proportionality where indirect conflicts are concerned. But most cases are not all, and in some cases, where the potential consequences for others who are already suffering are easily predictable and potentially significant, the duty to assist in bringing about justice requires that political action be more rigorously evaluated. This is not out of respect for “the law” or out of deference to the feelings of the already advantaged, but out of respect for the humanity of others who are also suffering from patterns of social brutality.

5.6 When Do the Permissions Cease? Acknowledging the moral permissibility of self-help in conditions of persistent injustice is often difficult for morally concerned bystanders who are themselves relatively advantaged (e.g., academics and others). There is an understandable tendency to call for broadly shared political action again and again, or to imagine increasingly ornate proposals for more ideal structures or forms of political life, in hopes that multiple kinds of disadvantage can be rectified at once. Those who are relatively advantaged can often have valuable roles to play in facilitating relationships of alliance, by providing financial or other resources such as expertise, and in using their influence to change some features of the political environment more broadly. But there is a tendency sometimes for bystanders to blame members

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of disadvantaged groups for either greed or shortsightedness when relations of alliance break down. Given the difficulties of constructing joint forms of political action, and the kinds of suffering caused by most kinds of disadvantage, I have argued that this reaction is usually unfair. Those who are to blame for conditions of disadvantage are not those who suffer from it, whether or not they fail in their attempts at shared action or self-care, so long as they act within the bounds of proportionality. Those who bear responsibility are instead those who hold the levers of power, and who fail to bring about better political and social arrangements. Those who are relatively advantaged should not blame the disadvantaged for the difficulties of their political struggles or for making use of the permissions normatively available to them. Rather, we should do whatever we can to change the structures that make those conflicts so abiding. There is another kind of objection to claims for self-help by the disadvantaged that deserves evaluation before concluding this chapter, however. This is the question of when those who are unjustly disadvantaged can be said to join the category of the relatively advantaged, so that they no longer have permissions to behave strategically in deliberation or toward law, or to compete politically against groups of the disadvantaged in ways that they previously could. It is not obvious that those who have such permissions will easily recognize when they should relinquish them. There is a natural human tendency to seek exemptions for oneself from common rules, and people are inevitably shaped by the course of their history. Because Aboriginal groups (and inner-city African Americans, and so on) have been unambiguously the victims of persistent injustice for a very long time, it is reasonable to suspect that a sense of experienced injustice will often continue for some time even if social changes that bring about justice or something very close to it have occurred. Some Aboriginal peoples are doing quite well economically, for example, and some seem substantially on the way to escaping most aspects of long-persisting injustices. How should they or others determine whether permissions to strategic action continue to exist for them or not? This is not only a problem of psychology, but of ambiguity about what justice means as well. As I noted in Chapter 2, and will return to in Chapter 6, it is often unclear precisely what can be accomplished in terms of social change given the complexities of a social world that

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we do not always understand well. There are certainly limits to what can be brought about; some kinds of political worlds simply do not seem to be possible ones, however much one might wish to achieve them. Social arrangements are not infinitely malleable, nor are human skills, attitudes, and views of the world. Some kinds of social institutions (e.g., many kinds of elections and markets) seem to be essential to a livable human social order, and these may produce kinds of conflicts that are unavoidable within their bounds. If an ideal society includes market competition, for example, someone will always be the least well off, and all groups seem eligible to compete to avoid this status.60 Because this is the most just world realizable, however, it seems that everyone is bound to compete on the same fair terms.61 Yet human reasoning skills are sharply limited, and so are the methodologies of social science. This makes it difficult to distinguish, in many instances, between cases where attempts to reduce inequalities further will do more harm than good and straightforward cases of avoidable institutional failure.62 How does one judge, then, whether patterns of apparent injustice that one notices really can be improved upon or whether it they are patterns that would exist even in the best of achievable social worlds? It seems hard to believe that conditions of the latter sort exist for most Aboriginal peoples in the United States and Canada, or for most inner-city African American communities, or for many others in these countries who do not necessary break down along such determinate group lines. It seems clearly the case that many of the current arrangements for Aboriginal land claims can be made more coherent and effective, and it is unambiguously the case that criminal law enforcement on reservations could be made massively more effective. (See the discussion of arrangements for the latter in Chapter 4.) Yet it is not true that all Aboriginal peoples are struggling. Some are now doing quite well economically, whether through gaming in the United States or resource extraction in Canada, and many others seem to be on trajectories that will similarly remove them from the category of persistent injustice in due course. It is not an existential truth that Aboriginal peoples are locked into conditions of injustice. How, then, should Aboriginal leaders and others know when such permissions no longer apply? This is a real question, and the straightforward answer seems to be that their judgments in this regard will not be very reliable, but that

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no one else is likely to be very reliable in their specific judgments about when justice has been realized either. Given the difficult and profound ways in which historical experiences of brutality have shaped Aboriginal communities and many others, it seems reasonable to hold that most forms of apparent overreach should be regarded as morally excused, even when mistakenly decided: Aboriginal leaders deserve no censure if they continue to operate on the presumption that they face persistent injustice even when this is no longer so, so long as they have acted carefully and thoughtfully.63 Nonetheless, the stakes for others mean that it is important to try to get the calibration right. Because permissions to behave strategically and (especially) to compete against the unjustly disadvantaged weaken over time as one gets further from conditions of persistent injustice, there should often be noticeable markers that indicate that the permissions are at least weakening. For Aboriginal peoples, who usually have governmental bodies of their own, a general increase in institutional capacities to carry out proportionality analyses is likely to serve as an important indicator in its own right. Formal evaluations of the relative costs and benefits to groups of the disadvantaged of the kind outlined above would also be of help here, since they are likely to show multiple axes on which other groups are worse off, and a series of such evaluations would begin to make clear that permissions stemming from persistent injustice were weakening in substantial ways. Non-Aboriginal academics, legal advisors, and others can likewise play a role in evaluating relative treatment along multiple indicators to aid in these evaluations. But there are nonetheless no guarantees that decisions will be made correctly here. Once we abandon the idea that courts and existing institutions are already doing their job perfectly well—something that is manifestly untrue wherever persistent injustice remains in a society—we must admit that there is no escape from human judgment, with all of its unavoidable flaws. Here again, there is an important role for the ordinary citizens of Aboriginal communities: sometimes they will have to tell their leaders that they have achieved enough that duties of justice require primary attention to the moral interests of others for a while. Presumably, most Aboriginal individuals will not regret this achievement. Over the long run, bringing existing societies closer to justice is likely to be possible only when those who are unjustly disadvantaged

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by existing political structures are able to bring about multiple local, proximate changes that improve their status without strongly worsening that of others. Evidence about what is socially possible is likely to emerge primarily through the trial and error of political action in a variety of conditions. In the rough ground of political contestation, it would be unfair to expect Aboriginal leaders and other disadvantaged social actors to forecast the effects of their actions with much accuracy. But it does seem appropriate to ask them to evaluate the proportionality of outcomes wherever they are able to do so, especially since few other social actors are likely to be undertaking this activity in appropriate ways. Where persistent injustices continue, it seems essential not simply to trust judges, legislators, and other already-advantaged parties with moral care of social life. Powerful actors have no greater toolkit for thinking about the proportionality of political arrangements than do the disadvantaged, and they often seem uninterested in making use of the evaluative capacities that they do have. Someday many Aboriginal peoples are likely to join their ranks, and then they will deserve equal criticism if long experiences of injustice have not taught them to do better. For most, however, this is likely to remain some ways off. In the meantime, Aboriginal peoples and others are likely to have good grounds to compete against one another to escape justice. We who are non-Aboriginal must recognize their circumstances and evaluate their choices accordingly. We also must act to change the conditions that bring about unjust disadvantage in the first place.

Notes 1. For a concise explanation of this term, see, e.g., Leanne Simpson, Dancing on Our Turtle’s Back: Nishnaabeg Stories of Re-Creation, Resurgence, and a New Emergence (Winnipeg: Arbeiter Ring, 2011), 70. For an extended use of this concept, see Jack D. Forbes, Columbus and Other Cannibals: The Wétiko [Wiindigo] Disease of Exploitation, Imperialism, and Terrorism (New York: Seven Stories Press, 2008), ch 3. I find a great deal more that is valuable in market-based industrial societies than does Forbes, but the basic image of one who lives by cannibalizing the lives and well-being of others is a valuable one for which English lacks a ready equivalent.

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2. See, e.g., Nancy Ehrenreich, “Subordination and Symbiosis: Mechanisms of Mutual Support between Subordinating Systems,” UMKC Law Review 71 (2002): 251–324. Ehrenreich (319) argues against the kinds of proportionality weightings evaluated here from an idealized view of what political action can accomplish: If the concerns of various [social groups] do not necessarily conflict, then it is unnecessary to choose among the groups, or to assess their relative oppression. If all subordinated groups need to work together against a single, complex set of structures and ideologies, then comparative assessments of relative suffering/ deprivation/subordination become superfluous. For a sympathetically disagreeing response to Ehrenreich, see, e.g., Robert S. Chang and Jerome McCristal Jr. Culp, “After Intersectionality,” UMKC Law Review 71 (2002): 485–92. 3. It is not an analytical truth of the term “injustice” as I use it that anyone must benefit from it whatsoever. It may be that deeply harmful institutions exist primarily because of the self-interest of the powerful, or because of their sloth, or because of their ignorance, or for a variety of other reasons. What matters for evaluating the existence of injustice is substance rather than intent. Those who benefit are nonetheless under stronger duties to repair injustices, whether they originally intended to benefit or not. 4. Feminist scholarship has an extensive record of engagement with questions about how those who face persistent inequities but who otherwise occupy quite different circumstances can work together. See, e.g., Iris Marion Young, “Gender as Seriality: Thinking about Women as a Social Collective,” Signs: Journal of Women in Culture and Society 19 (1994): 713–38 and Sally J. Scholz, “Feminist Political Solidarity,” in Lisa Tessman, ed., Feminist Ethics and Social and Political Philosophy: Theorizing the Non-Ideal (New York: Springer, 2009), 205–22. Young sought to broaden her work into ways of conceptualizing shared political action in other circumstances. See for example the discussion of “differentiated solidarity” in Iris Marion Young, Inclusion and Democracy (Oxford: Oxford University Press, 2002), 221–8. See also Sally J. Scholz, Political Solidarity (University Park: Penn State University Press, 2012) and Ehrenreich, “Subordination and Symbiosis.” 5. Political theorists and philosophers who are unfamiliar with land claims may find the conflicts described here difficult to conceptualize. To envision a more easily recognizable case within the language of distributive justice, imagine a hypothetical society with a “Board of Wealth Distribution,” which ensures that material resources are distributed according to some ideal theory of distributive justice. (Readers should

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pick their own preferred theory here.) This Board rules that parties A and B should each receive an extra $50,000 for the upcoming year. The actual government of the society, however, decides to make only $20,000 available in total, with parties A and B now permitted to compete for it. In circumstances of this kind, what are the responsibilities of A and B in relation to one another? Can each try to claim something closer to what the best theory of justice entitles them, or must they seek to split this available pot equally among themselves? What factors determine our thinking for either option? This chapter is thus not concerned with what governments should do, but with what the unjustly disadvantaged should do when governments fail to act correctly. My thanks to Nir Eyal and Shmulik Nili for asking for an example more familiar to those working outside of Aboriginal politics. American Indian tribes have opportunities to operate for-profit gaming operations in certain circumstances in the United States, and revenues from these operations can be used to fund a variety of services, including medical or educational facilities, police training, drug and alcohol recovery programs, environmental restoration, low-cost housing, and many other kinds of programs besides. For communities that continue to suffer overlapping effects of poverty, dispossession, and long-standing hopelessness—as most do—these increased services can bring substantial improvements in quality of life. Gaming law is structured to give state governors a great deal of leverage in relation to tribes, however. To operate “casino style” gaming operations, tribes must strike compacts with the surrounding state, which cannot be forced to agree to them. State governors can thus hold out for a better deal, and can pit tribes against one another by demanding a substantial percentage of gaming proceeds in exchange for favorable locations or for other benefits that will move clientele from one tribe’s gaming operation to another. The United States government has thus adopted, as its primary mechanisms for overcoming centuries of brutality, a mechanism that often directly pits tribes against one another in bargaining with state governments. For an overview of these legal structures, see Stephen Pevar, The Rights of Indians and Tribes (Fourth Edition) (New York: Oxford University Press, 2012), ch 16. Christopher Alcantara, Negotiating the Deal: Comprehensive Land Claims Agreements in Canada (Toronto: University of Toronto Press, 2013), 30–1. Alcantara, Negotiating the Deal, 30. While the original Aboriginal title area may be substantial, the rights that ultimately result are likely to be far more restrictive, resulting in “a quantum of settlement land [i.e., land actually owned], access to Crown lands, fish and wildlife harvesting, heritage resources, financial

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compensation, and participation in the management of public resources.” British Columbia Treaty Commission Annual Report 2014 (Vancouver, BC, 2014), 26 (emphasis added). See Alcantara, Negotiating the Deal, 27: “In essence . . . the federal, provincial, and territorial governments have become rights-granting entities while Aboriginal groups have become petitioners, forced to prove the validity of their claims to the government before they can ask the governments to cede to them land, rights, self-government, and jurisdiction.” Generally, both cannot have legal title to the same sets of lands, at least without additional and complex levels of adjudication that may leave yet another generation with deeply uncertain land rights and all of the social indeterminacy that this involves. For a discussion of the results of overlapping areas on the self-understandings of communities in Yukon Territory, see, e.g., Paul Nadasdy, “Boundaries Among Kin: Sovereignty, the Modern Treaty Process, and the Rise of EthnoTerritorial Nationalism Among Yukon First Nations,” Comparative Studies in Society and History 54 (2012): 499–532 at 510–15. See the description of Nisga’a claims in Neil J. Sterritt, Susan Marsden, Robert Galois, Peter Grant, and Richard Overstall, Tribal Boundaries in the Nass Watershed (Vancouver: UBC Press, 1998), 4: “[I]n the process of pursuing their land claim, the Nisga’a, first at the negotiation table, have used this privileged position to claim territories in excess of twice their legitimate territory.” Because I have not studied the full evidence in this conflict, I am unable to make a judgment for or against this portrayal. I present these words instead to testify to the reality of conflict and the perceived strategic value of acting first. These conflicts can be intense and deeply felt. See, e.g., the reaction of former Gitskan-Wetsuwetan tribal leader Neil Sterritt, “The Nisga’a Treaty: Competing Claims Ignored!” BC Studies 120 (1998/1999): 73–98. The article begins this way (73): The land area claimed by the Nisga’a in their treaty was greatly expanded at the expense of their tribal neighbours. In the prophetic words of Dr. Peter Williams, President of the Gitanyow . . . “this is not an overlap the Nisga’a are talking about, it is an act of aggression.” For a broader overview these objections, see Sterritt et al, Tribal Boundaries. For a more recent overview of the conflict within a broader legal context, see, e.g., R. G. Christopher Turner, “‘Overlap’: Causes and Implications of Contested Indigenous Claims to Territory in the Context of the BC Treaty Process,” Master’s Thesis, University of Northern British Columbia, 2011, especially 55–60 and 69–72; see

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also Chris Turner and Gail Fondahl, “ ‘Overlapping Claims’ to Territory Confronting Treatymaking in British Columbia: Causes and Implications,” The Canadian Geographer/Le Geographe Canadien 59 (2015): 474–88. For a range of positions on whether it is appropriate to compete in these conditions, and on some of the other complexities to which overlapping claims give rise, see the interviews in British Columbia Treaty Commission Annual Report 2014, 5–15. Indeed, the Canadian state could lend its weight and expertise to charting in detail different kinds of future scenarios by which Aboriginal peoples might use the unclaimed lands—indicating, for example, potential fifty-year trajectories of different options—and then facilitate extended deliberative processes with Aboriginal community members and other nearby communities in determining final title. See, e.g., Marcus B. Lane, “The Role of Planning in Achieving Indigenous Land Justice and Community Goals,” Land Use Policy 23 (2006): 385–94. Many Aboriginal communities in the United States and elsewhere are now engaging in extensive adaptation plans for climate change, which would also be required in evaluating future scenarios. See, e.g., Pacific Northwest Tribal Climate Change Project, “A Tribal Planning Framework – Climate Change Adaptation Strategies by Sector,” available at http://tribalclimate.uoregon.edu/files/2010/11/Tribal_CC_ framework_April_2013-25wov2q.pdf (accessed August 6, 2018). This project was cofounded by the United States Forest Service. I am simplifying the strategic and legal situation somewhat for purposes of clarity. For a general overview of the negotiating conditions of Aboriginal peoples in regard to land claims, see, e.g., Alcantara, Negotiating the Deal, 5–32. Legal procedures for land claims in Canada generally require that competing bands attempt to strike bargains among themselves about contested land boundaries before any agreements are finalized. However, variations from this practice in the British Columbia treaty process have caused challenges of their own. See, e.g., Turner and Fondahl, “ ‘Overlapping Claims.’ ” Turner and Fondahl note that conflicts in British Columbia are often created by legal expectations of territorial exclusivity themselves, which leave limited possibilities for resolution where Aboriginal use patterns were traditionally shared. My use of the term alliance corresponds in most ways to what Avery Kolers describes as “teleological” solidarity, which is motivated primarily by a common desire to combat injustice through shared action, rather than the more deferential kind of solidarity that he describes as “political action on others’ terms.” See Avery Kolers, A Moral Theory

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of Solidarity (Oxford: Oxford University Press, 2016), 29–38, 63–9. As will become clear, however, proportionality will often require giving substantial weight to others’ perceptions of the political world, even when these may seem alien or mistaken. For this reason, duty-based alliances as described here are thus more complex epistemic and psychological phenomena than simply working together against structures of injustice that are already fully understood. 18. Political scientists may see the basic structure of a Prisoner’s Dilemma in this situation. There are differences from a classic Prisoner’s Dilemma, however. Aside from the precise form of the conflict involved, the normative stakes are also different. Given the arguments of this chapter, there is a normatively preferred outcome in this instance, rather than simply a rationally preferred one for each party. Both disadvantaged groups have duties to help in bringing about a just world, even if these duties are substantially outweighed by their interests in securing justice for themselves. The choices of each party must thus be made in light of the normative stakes for each other, and not simply by the pursuit of their own self-interest with no regard for others. Moreover, the ultimate goal of normative action will often be for the disadvantaged parties not only to cooperate at this particular moment, but ideally to change the unfair structure of the game and its payoffs. My thanks to Will Terry for asking for explication of this difference. 19. In using the terminology of foreseeable harms here, I draw on the Doctrine of Double Effect, which arises from the European just war tradition. This principle regards foreseeable harms to bystanders as permissible when undertaking self-defense against aggressors. See, e.g., Thomas Hurka, “Proportionality in the Morality of War,” Philosophy and Public Affairs 33 (2005): 34–66 at 60–3; Michael Walzer, Just and Unjust Wars (Third Edition) (New York: Basic Books, 2000), 151–4; and Brian Orend, The Morality of War (Peterborough: Broadview Press, 2006), 115–18. The earliest version of this chapter was framed through the lens of just war theory, which may still leave some traces on its logic. 20. There is room for debate about how stringent these duties are where they involve injustices in the distribution of property or other complex social phenomena of this kind. Philosophers have sought to navigate these complex questions through reference to the idea of “legitimate expectations,” often suggesting that individuals have important moral claims to social arrangements that have become established and publicly supported, even if these institutions are not defensible on their own terms. The idea originates with John Rawls, who used it to

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Strategies of Justice describe legal entitlements that do not (for reasons of feasibility) match with merit. See John Rawls, A Theory of Justice (Cambridge, MA: Harvard University Press, 1971), 313–15. It is often used to apply to property holdings or other kinds of expectations that were at one point said to be consistent with the requirements of justice, but turn out not to be so. See, e.g., Alexander Brown, “Rawls, Buchanan, and the Legal Doctrine of Legitimate Expectations,” Social Theory and Practice, 38 (2012): 617–44 and Lukas H. Meyer and Pranay Sanklecha, “How Legitimate Expectations Matter in Climate Justice,” Politics, Philosophy & Economics 13 (2014): 369–93. Note that the question of legitimate expectations is different from the question of changing entitlements of ownership, as described in, e.g., Jeremy Waldron, “Superseding Historic Injustice,” Ethics 103 (1992): 4–28. For a very demanding argument about what justice requires that nonetheless contains limitations on action to protect the worth of one’s own life and those with whom one has relationships, see Peter Singer, The Life You Can Save: Acting Now to End World Poverty (New York: Random House, 2009), 39–40, ch 9. For an argument that individuals are permitted to give those nearby such greater weight, see, e.g., Samuel Scheffler, Boundaries and Allegiances: Problems of Justice and Responsibility in Liberal Thought (Oxford: Oxford University Press, 2002), ch 3. For acceptance that individuals must have legitimate spaces of moral prerogative so that they do not simply become instruments of justice, see G. A. Cohen, Rescuing Justice and Equality (Cambridge, MA: Harvard University Press, 2008), e.g., 10 and 61. For my own conception of the relationship between rights, responsibilities, and political authority, see the account of natural duties to assist others outlined in Burke A. Hendrix, Ownership, Authority, and Self-Determination: Moral Principles and Indigenous Rights Claims (University Park: Penn State University Press, 2008), chs 5–6. As Benedict Anderson has argued, most nations are “imagined communities” created largely by narrated forms of belonging through, for example, newspapers and other forms of media that describe shared nationhood even in the absence of dense webs of social connection among those who identify themselves together. See Benedict Anderson, Imagined Communities: Reflections on the Origin and Spread of Nationalism (Second Edition) (London: Verso, 1991), 6–7. Aboriginal communities in North America are generally knit together in stronger ways, however, given their smaller population sizes, distinctive cultural practices, frequently intense kinship traditions, and so on. See, e.g., Singer, The Life You Can Save, 15–19.

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25. Injustices generally make flourishing difficult, but it does not therefore follow that all failures of flourishing, even by large groups, are due to injustice. They may also be due to mistaken choices, as would be true for a religious group that deprived itself of enjoyment in hopes of pleasing a vengeful God that did not actually exist. Given the clear processes by which Aboriginal peoples were put into their current conditions of relative poverty and powerlessness, it seems implausible analogize them to such groups. See the discussion in Joseph Carens, Culture, Citizenship, and Community: A Contextual Exploration of Justice as Evenhandedness (New York: Oxford University Press, 2000), 93–6. 26. Working to escape one’s own unjust circumstances could be understood as a way of fulfilling one’s general duty of justice by focusing on improvements in a specific case, which only happens to be one’s own. This way of framing the issue does not seem quite right, however, because duties understood in this way would often require looking for those worse off than oneself before pursuing such actions. It thus seems to me that it is more accurate to conceptualize what is at stake as expanded permissions for self-care. Those who disagree with this formulation should think about how their preferred framework would deal with issues of the same kind. 27. It is important to remember that the harms here are not caused by Aboriginal peoples or other disadvantaged actors themselves in any simple sense: when broader social changes could occur that could reduce the advantages for multiple groups at once, those who have primary causal responsibility are the powerful social actors who do not bring about the relevant changes. The causal role of Aboriginal peoples is thus secondary at best. 28. Those who go out of their way to act as leaders for a particular community have special obligations to those for whom they claim to speak. If they have been authorized through some clear political process—as with elected or otherwise legitimately selected leaders of Aboriginal groups—they have undertaken a special obligation to represent the moral interests of their constituents, including the permissions that these constituents have to live their own lives and to give additional normative weight to those close to them. Authorized leaders thus hold the amalgamated permissions for self-care of those who they represent. Because these are permissible choices of self-care, rather than mandatory forms, such leaders may be authorized to exert themselves politically in the interests of nonmembers even at great cost to the wellbeing of members (as, e.g., if members are especially moved by the suffering of some other community). Those who undertake political

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action on behalf of a group when they have not been authorized through some process, on the other hand, may have a duty to act only in ways that the group’s members could authorize in better circumstances. Since group members might be anticipated to exercise the permissions that they have, in cases of this kind it seems reasonable to suggest that leaders have a duty rather than a permission to aid nonmembers in less burdensome rather than more burdensome ways. Group leaders may thus have either a permission or a duty to give priority to the well-being of members, depending on the nature of their leadership and its relationship to those represented. My thanks to Avery Kolers for pressing for an account of these special obligations. 29. Specifically, I draw this notion from the just war tradition. Although there is a great deal of distance between warfare and political competition among the disadvantaged, wars in which both armies are composed of unwilling conscripts have many features like those considered here. See Hurka, “Proportionality in the Morality of War.” The numerical weighting used in this chapter is especially influenced by Hurka’s article. 30. I do not assume that there is anything morally important about groups as such within this numerical system. Rather, each number is intended only as an averaging of the group’s overall condition, which necessarily masks many variations in condition within the group. Since laws and public policies routinely target groups of people who may be quite diverse in detail, this simplifying assumption is likely to cause fewer difficulties than it may seem. In the case of land claims, for example, Aboriginal groups are treated as wholes in this way. If one rejects the notion of averaging in this way, the numbers here could be taken to represent the status of the worst-off strata within each group, or the status of its average member, depending upon one’s leanings. I agree with Janna Thompson’s reasoning here: Justice in a society is best measured by comparing groups and not individuals. How a particular individual fares is determined by many factors, some of which are irrelevant to justice. But if members of a group are worse off or more heavily burdened than members of another group . . . an issue of justice is likely to be at stake. Janna Thompson, Intergenerational Justice: Rights and Responsibilities in an Intergenerational Polity (London: Routledge, 2009), 104. 31. The difference between blockading and worsening arguably does not track the difference between doing and allowing, because it is more powerful parties who are causally responsible for whatever harms occur. In both cases, the results to other disadvantaged parties are

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foreseeable but unwanted outcomes of self-care given the actions of others. I have not discussed the doing/allowing distinction within the chapter’s text because debate about the distinction is vast and philosophically difficult. The canonical formulation of this distinction, and the puzzles that it creates in a variety of cases, can be found in Judith Jarvis Thomson, “Killing, Letting Die, and the Trolley Problem,” The Monist 59 (1976): 204–17. For an overview of the distinction, see Fiona Woollard, “The Doctrine of Doing and Allowing I: Analysis of the Doing ⁄ Allowing Distinction,” Philosophy Compass 7 (2012): 448–58 and Fiona Woollard, “The Doctrine of Doing and Allowing II: The Moral Relevance of the Doing/Allowing Distinction,” Philosophy Compass 7 (2012): 459–69. One of the better discussions of proportionality and permissible selfpreference is that of Hurka, “Proportionality in the Morality of War.” Much of my own thinking has been shaped by that of Hurka. For a broader treatment of the notion of proportionality, see, e.g., David R. Mapel, “Prudence and the Plurality of Value in International Ethics,” Journal of Politics 52 (1990): 433–56. The main benefit of courts is that they can make “binding” decisions while accessing multiple kinds of information. Once we relax presumptions about the legal force of courts and ask how decisions about proportionality are to be made in principled terms, there are in fact very few tools to be found within legal practices. See, e.g., the Supreme Court of Canada’s brief invocation of the notion in Tsilhqot’in Nation v. British Columbia, 2014 SCC 44 at para 87. For more principled examinations, see, e.g., Bernhard Schlink, “Proportionality in Constitutional Law: Why Everywhere but Here?” Duke Journal of Comparative & International Law 22(2012) 291–302 and T. Alexander Aleinikoff, “Constitutional Law in the Age of Balancing,” Yale Law Journal 96 (1987): 943–1005. The courts of non-Aboriginal political structures are thus neither reliably competent deciders for questions of proportionality nor strong sources of insight about how such decisions should be made. In many cases, hybrid strategies are often possible, but this is surely not true in all or even most cases. To avoid the unclarifying suggestion that all strategies should be pursued at once, I have artificially restricted the range of possibilities here so as to isolate the chapter’s normative concerns. There is evidence from negotiation scholarship that varying ways of conceptualizing what negotiation entails can lead to better and worse outcomes. In short form, beginning with the presumption of zero-sum conflict is often a way of creating it, while beginning from a presumption

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that innovative solutions can be found more often leads to such solutions. For a discussion of this literature in regard to Aboriginal negotiations with the Canadian state, see Michael Coyle, “Negotiating Indigenous Peoples’ Exit from Colonialism: The Case for an Integrative Approach,” Canadian Journal of Law and Jurisprudence XXVII (2014): 283–303. Many situations under unjust institutions really do have this conflictual character, however, so those who begin with this expectation will often be correct in their beliefs. 36. Relationships of alliance often become viable when common challenges are framed at certain levels of generality, where many more localized and politically induced conflicts can be at least in part avoided. The category of “Aboriginal peoples” itself has operated as a mechanism of alliance in this way, both within countries such as the United States and Canada and across them at the international level. While this terminology elides much of the different historical and contemporary experiences of, say, Navajos and Mohawks and Anishinaabe, it calls attention to specific commonalities of experience, similar patterns of disadvantage, and legally interlinked political futures. The terminology of indigenous peoples plays a similar role at the international level, even if the experiences and patterns of current disadvantage are deeply divergent between North American Aboriginal peoples and indigenous populations in Africa or India or even (despite the common legal heritage) Australia. For discussions of the international category itself, see, e.g., Benedict Kingsbury, “ ‘Indigenous Peoples’ in International Law: A Constructivist Approach to the Asian Controversy,” American Journal of International Law 92 (1998), 414–57 and Alan Bernard, “Kalahari Revisionism, Vienna and the ‘Indigenous Peoples’ Debate,” Social Anthropology 14 (2006): 1–16. 37. This kind of wider lens seems entailed within most Aboriginal ethical theories. Aboriginal traditions often call attention to the ways in which all persons are all related in broader communities of mutual fate, and that is certainly the case when we examine the impacts of political action at a broad level. Recognizing where patterns of competition are fostered by flawed societies is thus fundamental to reclaiming a space for Aboriginal political action based on Aboriginal principles. For a vision of moving forward in these conditions, see, e.g., Leanne Betasamosake Simpson, As We Have Always Done: Indigenous Freedom Through Radical Resistance (Minneapolis: University of Minnesota Press, 2017), 6–10 and throughout. See also, e.g., Jake Swamp, “Kanikonriio: ‘Power of a Good Mind’,” in Lynne Davis, ed., Alliances: Re/Envisioning Indigenous-non-Indigenous Relationships (Toronto: University of Toronto Press, 2010), 15–24. For an ambitiously

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syncretic attempt to think about living together well in urban spaces, see William Woodworth Raweno:kwas, “Iroquoian Condolence Practiced on a Civic Scale,” in the same volume, 25–41. 38. The importance of creative thinking by the powerful should not be underestimated here. Improvements to the conditions of the disadvantaged may often involve the removal of existing programs, as well as the addition of or extension of programs. Some programs may stifle Aboriginal choices, create mistaken incentives for unhelpful choices, or otherwise work against the goals they are intended to achieve. The removal of programs in this way nonetheless takes an equally careful hand as the addition of new programs. Even if improvements do not literally require additional monetary budgeting, they will still require the budgeting of time and thought in this way. 39. The United States has asserted itself to be a single unified nation, unlike Canada, which acknowledges multiple nations within the Canadian state. Debates in the United States have thus tended to focus less heavily on nation or culture than those in Canada. At the same time, the struggle of African Americans for fair inclusion in the United States has often led progressives in the United States to have ambiguous feelings and confused understandings about how to envision Aboriginal political claims, and to recurrent use of the language of “inclusion” despite its awkward fit with many Aboriginal aspirations. See, e.g., David Temin, “Custer’s Sins: Vine Deloria Jr. and the SettlerColonial Politics of Civic Inclusion,” Political Theory 46 (2018): 357–79. 40. See, e.g., Brian Barry, Culture and Equality: An Egalitarian Critique of Multiculturalism (Cambridge, MA: Harvard University Press, 2001), 11–12: There is no better way of heading off the nightmare of unified political action by the economically disadvantaged that might issue in common demands than to set different groups of the disadvantaged against one another . . . . If political effort is dissipated in pressing for and defending special group privileges, it will not be available for mobilization on the basis of broader shared interests. This argument in favor of solidarity would be more compelling if structural forces did not create competing pathways for many kinds of change, and if the groups at stake did not often have varying moral interests that would be waived when such solidarity is attempted. 41. Many of those concerned with the status of racialized minorities such as African Americans worry that discussions of cultural rights or selfdetermination may do more harm than good in many cases. See, e.g.,

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Strategies of Justice Clarissa Rile Hayward, “The Difference States Make: Democracy, Identity, and the American City,” American Political Science Review 97 (2003): 501–14 at 503: State actors helped forge the black American ghetto, through the legal institution of racial zoning during the early part of the twentieth century, then through the enforcement of racially restrictive covenants, and, finally, through zoning laws that, although not explicitly racially targeted, function to maintain established patterns of racial segregation. Constructing racialized places in which its citizens live and work – in which they experience the social world and develop their interpretations of it – the state has been instrumental in racializing the processes through which people perceive their relations with others and form their social identities.

Hayward argues that processes of “recognition” of this kind of difference will often leave these power structures intact rather than challenging them. 42. See, e.g., Tommie Shelby, We Who Are Dark: The Philosophical Foundations of Black Solidarity (Cambridge, MA; Harvard University Press, 2005), 240–1. 43. See Oliphant v. Suquamish Indian Tribe (1978) 435 U.S. 191. This case held that Indian tribes lacked legal authority over non-Aboriginal individuals, and thus worsened many of the problems of tribal law enforcement described in Chapter 4. For details of this legal regime, see Pevar, Rights of Indians and Tribes, ch 8. As Philip Frickey notes, the Oliphant case itself was not promising territory for tribal rights— the reservation itself was actually inhabited by a very large majority of non-tribal members—but the case could easily have been decided on less sweeping grounds. See Philip P. Frickey, “Transcending Transcendental Nonsense: Toward a New Realism in Federal Indian Law,” Connecticut Law Review 38 (2005): 649–66 at 658–9. 44. See, e.g., Steve Russell and Terri Miles, “One-Sided Interest Convergence: Indian Sovereignty in Organizing and Litigation,” Wicazo Sa Review 23 (2008): 7–24 at 7: “‘Separate but equal,’ anathema to African Americans, with good reason, would please us greatly.” The United States Supreme Court describes Aboriginal individuals as members of specific political institutions, rather than racial minorities: membership rather than racial background is what matters most. This policy has not been applied to Native Hawaiians by the Court, however, since it judges them to lack this political status. Policies intended to apply specifically to them have thus been seen as incidents of illegal

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46.

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racial discrimination. See Rice v. Cayetano (2000) 528 U.S. 495, especially 518–22. Conflict between Aboriginal and African American scholars have sometimes become quite intense over this issue of ties to land. See, e.g., Jared Sexton, “The Vel of Slavery: Tracking the Figure of the Unsovereign,” Critical Sociology 42 (2016) 583–97; Bonita Lawrence and Enakshi Dua, “Decolonizing Antiracism,” Social Justice 32 (2005): 120–43; and Zainab Amadahy and Bonita Lawrence, “Indigenous Peoples and Black People in Canada: Settlers or Allies?” in Arlo Kempf, ed., Breaching the Colonial Contract: Anti-Colonialism in the US and Canada (New York: Springer, 2009): 105–36. For an attempt to bring these two perspectives onto a shared axis, see Eve Tuck, Allison Guess, and Hannah Sultan, “Not Nowhere: Collaborating on Selfsame Land,” Decolonization: Indigeneity, Education & Society (June 26, 2014): 1–11. See also Simpson, As We Have Always Done, 35, 228–31. Perhaps problematically, my characterization here sets aside the history of Black Nationalism. Doing justice to this complex historical and contemporary phenomenon is beyond the bounds of this book, but there are substantial possibilities for overlap with Aboriginal political efforts on some ways of conceptualizing this notion. For contrasting views on the moral plausibility of Black Nationalism, see, e.g., Tommie Shelby, “Two Conceptions of Black Nationalism,” Political Theory 31 (2003), 664–92 and Andrew Valls, “A Liberal Defense of Black Nationalism,” American Political Science Review 104 (2010), 467–81; for more detailed explorations that touch on many of the concerns raised in this chapter, see, e.g., Shelby, We Who Are Dark. The complex political changes arising from slavery, segregation, and the civil rights movement rendered publicly illegitimate most arguments for localized self-rule against national authorities in the United States. These arguments were generally used as defenses of racially brutal policies by Southern white authorities, in ways that were rarely tied to any plausible claims of cultural or linguistic difference, so that claims for fair treatment by minorities in the United States have often become seen as claims for “inclusion”: claims to be treated according to the same set of laws that apply to everyone else. For an overview of American efforts against segregation and their intellectual impacts on conceptualizations of multiculturalism, see, e.g., Will Kymlicka, Multicultural Citizenship (Oxford: Oxford University Press, 1995), ch 4. Even policies that focus on problems of racism may raise complex challenges of framing. If the primary political problem to be overcome is framed as racial discrimination, then the status of Aboriginal citizens

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who are not racially recognizable to others is likely to raise confusion and controversy in the broader public sphere. Since Aboriginal is primarily a political, cultural, or relational category, there is no obvious reason why one should have to have a particular physical appearance to be a member on an Aboriginal nation, yet explaining membership by people who do not “look Indian” becomes more difficult when racial arguments take center stage. In principle, one need not have any particular ancestry to be a member of an Aboriginal community—see, e.g., Douglas Sanderson, “Overlapping Consensus, Legislative Reform, and the Indian Act,” in Patrick Macklem and Douglas Sanderson, eds., From Recognition to Reconciliation: Essays on the Constitutional Entrenchment of Aboriginal and Treaty Rights (Toronto: University of Toronto Press, 2016), 320–56 at 344–52. The United States Supreme Court appropriately describes Aboriginal individuals as members of specific political institutions, rather than racial minorities. See Rice v. Cayetano, 518–22. 49. One angle of comparison, for example, focuses on the extension of cultural rights arguments developed with Aboriginal peoples in mind to many African American communities. See, e.g., Valls, “Liberal Defense of Black Nationalism.” See also, if less effectively, Vine Deloria, Jr., We Talk, You Listen: New Tribes, New Turf (Lincoln: University of Nebraska Press, 2007). 50. Difficulties in conceptualizing two divergent kinds of issues at once have often led even nuanced philosophical thinkers to overgeneralize about social conflicts. See, e.g., suggestions that there may be an inherent conflict between Aboriginal rights (and the rights of other minority peoples) and women’s rights in Joshua Cohen, Matthew Howard, and Martha C. Nussbaum, eds., Is Multiculturalism Bad for Women? (Princeton: Princeton University Press, 1999). While there are indeed profound gender difficulties surrounding existing structures of Aboriginal rights in Canada and the United States, these are often created by badly structured institutions rather than anything deeply cultural, and often reflect disagreements about viable strategies in regard to state institutions. See, e.g., Monique Deveaux, Gender and Justice in Multicultural Liberal States (Oxford: Oxford University Press, 2006), ch 5 and Anne Phillips, “Dilemmas of Gender and Culture: The Judge, the Democrat and the Political Activist,” in Jeff Spinner-Halev and Avigail Eisenberg, eds., Minorities within Minorities Equality, Rights and Diversity (Cambridge: Cambridge University Press, 2005), 113–34. 51. Often alliance patterns can take surprising form. See, e.g., Andrea Smith, Native Americans and the Christian Right: The Gendered Politics of Unlikely Alliances (Durham: Duke University Press, 2008),

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for multiple interesting examples. See also the many detailed examples of solidarity-building efforts in Davis, ed., Alliances and the documentary evidence of non-Aboriginal supporters of Idle No More in Kinonda-niimi Collective, eds., The Winter We Danced (Winnipeg: Arbeiter Ring Publishing, 2014), where they are listed under the category of “friendships.” 52. Andrea Smith (Native Americans and the Christian Right, x) relays this story: “During a United Nations Conference on Racism in Durban, South Africa, conflict arises between the indigenous caucus and the African descendant caucus over the issue of reparations. One member of the indigenous caucus states, ‘You can have the mule, but the forty acres are ours.’ ” Smith notes that both groups went on to collaborate after some time had passed, but these kinds of intense divisions in envisioning how injustices can be overcome are often difficult to work past. 53. The need for this flexibility is especially obvious in Aboriginal alliances with environmental groups. Though most environmental groups are not disadvantaged in the sense used here, they nonetheless find themselves fighting many uphill battles, and often find alliances with Aboriginal groups attractive. Maintaining these alliances fairly is not always easy, however. For an accessible ground-level discussion, see, e.g., Rick Wallace, “Grassy Narrows Blockade: Reworking Relationships between Anishnaabe and Non-Indigenous Activists at the Grassroots.” International Journal of Canadian Studies/Revue internationale d’études canadiennes 41 (2010): 37–68. 54. Many members of Aboriginal groups will face disadvantages of other types and along other axes. Aboriginal women are generally discriminated against both as members of Aboriginal peoples and as women, and the same is true of, e.g., sexual minorities, the disabled, those of divergent racial groups even if members of an Aboriginal nation, and so on. Often these patterns of discrimination will cross the boundaries of groups in intersectional ways, and members of these groups will often receive unfair treatment within their own broader group, as well as beyond (e.g., Aboriginal women as women are likely to receive discrimination from both Aboriginal and non-Aboriginal men, and as Aboriginal, they are likely to receive discrimination from both nonAboriginal men and non-Aboriginal women). For a useful description of how such patterns may work, see, e.g., the discussion by Charles Mills in Carole Pateman and Charles W. Mills, Contract and Domination (Malden, MA: Polity Press, 2007), 173–91. (For some of their ambiguities, see, e.g., Phillips, “Dilemmas of Gender and Culture.”) Where patterns of disadvantage crosscut in this way, there may

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55.

56.

57.

58.

59.

60.

Strategies of Justice be more options for alliances across cultural groups specifically, but the layers of competition and alliance may become bafflingly complex to both outsiders and insiders. This means that one cannot imagine these others as Rawlsian contractors behind a veil of ignorance or anything of the sort. For the notion of the “veil of ignorance,” see John Rawls, Theory of Justice, 11–17. Rather, they must be understood as they are, with the particular values, beliefs, and weaknesses that they have. In part, this is necessary to respect the existing visions of what is worthwhile held by others, and, therefore, a way of respecting their basic human dignity, but it is likely to facilitate an increased understanding of what justice requires over the long run. For an argument that experiences of disadvantage frequently convey important information about flawed social institutions, see Avery Kolers, “Justice and the Politics of Deference,” Journal of Political Philosophy 13 (2005): 153–73. Coyle (“Negotiating Indigenous Peoples’ Exit,” 289) suggests that this kind of openness is fundamental to effective negotiation methods, so in this regard the demands of envisioning proportionality are likely to offer greater chances of alliance, as well as accurate moral decision-making. For an argument that solidarity in this way can convey information about where injustice lie, see concisely Kolers, “Justice and the Politics of Deference,” 161–2, and more extensively, Kolers, Moral Theory of Solidarity. Aboriginal peoples, of course, have been treated as racially different. But this racialized treatment has often been a subsidiary element of arguments about “cultural” or “civilizational” difference, with less hard boundaries between Aboriginal individuals and those identified as “white” in comparison to the racialization of those with African ancestry. The United States often tried to force Aboriginal individuals to become citizens, even as it denied effective citizenship to most people of African descent. My point is not to play down the scope of racism toward Aboriginal peoples, but to suggest that its character has been different and often combined with other elements. My thanks to Andrew Valls for insisting on the intense feelings of apparent betrayal that can occur when attempts at solidarity give way to self-help, and the moral costs that these extract. The production of inequality within a market society is generally seen as acceptable, even by those who wish to approximate equality as much as possible, given the importance of incentive structures to the operation of markets. See canonically Rawls, Theory of Justice, 75–90. See also, e.g., Joseph Heath, “Ideal Theory in an Nth-Best World: The Case of Pauper Labor,” Journal of Global Ethics 9 (2013): 159–72.

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61. Or at least, this is arguably true. For views that contest this position, see, e.g., Jeffrey Edward Green, The Shadow of Unfairness: A Plebeian Theory of Liberal Democracy (Oxford: Oxford University Press, 2016), especially ch 4, and Kolers, Moral Theory of Solidarity, 128–33. 62. There are doubtless multiple reasons for individuals to be overpersuaded of the status quo’s permanence. To take one kind of example, long-term residents of rural areas often experience the natural world as largely beyond human control, and, thereby, seem likely to make similar presumptions about the social world. Long-term residents of urban areas, on the other hand, are more likely to see the surrounding physical world as the product of human action, and, therefore, to conclude that it is relatively more malleable, perhaps overpersuading them in the opposite direction. 63. My thanks for Avery Kolers for calling attention to the continuing weight of past injustice in this way.

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CHAPTER 6 Envisioning the Future

In this chapter, I want to shift to a somewhat different question of political ethics: that of how Aboriginal peoples and others facing conditions of persistent injustice should envision the future for those who will come after them. While this question operates on a somewhat different axis than that of the previous chapters, it arises from the same political circumstances, and involves many analogous questions of normative permission and political transformation, along with complex questions of social science and predictive efficacy. Living people are always faced with conditions in which they must take actions that will shape the lives of future generations, often in unpredictable ways. Those who experience persistent injustice must usually act in conditions of even greater uncertainty, if they hope for future generations to escape such circumstances and all of the damaging effects on the capacity for flourishing that they entail. Many kinds of political action thus cannot be avoided, but their effects cannot be predicted with much certainty either. While all people face these uncertainties when acting politically, the stakes are much higher for those in conditions of persistent injustice. How should one envision the future in conditions of this kind? James Youngblood Henderson has argued that it is a moral duty for Aboriginal peoples to dream utopian dreams. Overcoming persistent injustices will only be possible when colonial assumptions are unthought and colonial social structures overturned, Henderson argues, and this will only be possible when alternative visions are pursued by self-aware actors, acting on the best elements of Aboriginal traditions and pursuing just societies in which everyone, Aboriginal and non-Aboriginal, is treated fairly and appropriately.

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For Henderson, anything less than envisioning the apparently impossible will be insufficient: For five centuries we have experienced the colonial order, and we know its contradictions, its wretchedness and its pain. We must begin to create a postcolonial legal order that respects Indigenous law and thought and a distinct destiny to carry us through the next five centuries. . . . If Indigenous peoples want a better life, we must not be afraid of dreaming the seemingly impossible. Every impossible dream grows out of our spiritual and cultural teachings. We must articulate the visions that guide us and the visions that flow naturally from our teachings and ecology, as we understand them.1

While Henderson is especially concerned with the ecological harms facing Aboriginal peoples and others in the modern world, the central argument is a powerful and appealing one: overcoming colonial histories requires that one see alternatives, and that those alternatives be pursued intensively and passionately, despite their apparent unlikeliness at the present moment. For Henderson, one must “not be afraid of dreaming the seemingly impossible,” since many appealing political possibilities will appear foreclosed by existing institutions and legal structures, along with their accompanying discourses: Dreaming the overtly impossible is a particularly onerous task for Indigenous peoples who are lawyers and who are trained in a colonial legal order. Yet this is part of our responsibilities, our duties. To gain the freedom to make alternative futures for Indigenous peoples, we must imagine them, talk about them, and act them out for others.2

Henderson argues that legal and political changes often happen in deeply unpredictable ways, with seeming opposites merging to form new views of the world and changes often happening in unexpected and counterintuitive directions.3 It is exactly the taken-for-granted nature of the colonial system that leaves it overwhelming and immovable, and any project of pursuing full political justice must replace this imagined inevitability with a new and better sense of possibility.4 The purpose of a political vision, for Henderson, is ultimately to realize a full conception of justice that draws from and improves on traditional Aboriginal law, culture, and political practice, to create a world that is better for both Aboriginal and non-Aboriginal peoples.5 “The purpose or spirit of this search,”

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Henderson argues, “is to create an equitable society that never has been and yet must be.”6 For justice to be realized, new visions must be created that are clear and powerful, and that refuse to bow to existing political “realities.” Henderson’s argument raises complex empirical and normative questions. For those enduring patterns of persistent injustice, political change often will require deep rethinking of not only political structures but also the patterns of thought and discourse to which they are attached. Yet some apparently impossible visions really may be impossible to reach from the social world in which we now live, and the costs of pursuing such visions may be high for those who attempt them. Recognizing what will be possible in the future is extraordinarily difficult, especially where one’s own actions are intended to bring it about from within existing conditions of persistent injustice. When one’s community is impoverished, fractured, beset by violence, and continually vulnerable to political interference, most political decisions will be fraught with uncertainty and contention. What paths are opened up by particular political choices, and what paths are foreclosed? How should these questions be approached to do the most good, and the least harm, for those who will come after? These are the central concerns of this chapter. The chapter proceeds in five sections. First, it examines the kinds of duties and permissions that those now living have in relation to future people, both for people in general and for those experiencing conditions of persistent injustice specifically. Second, it outlines some of the goals and limitations of Rawlsian ideal theory as often deployed in Anglo-American philosophy. Third, it examines an institutional proposal for anarcho-indigenism by Mohawk political theorist Taiaiake Alfred, and fourth, a vision of revived Aboriginal traditions by Inuvialuit philosopher Gordon Christie. Finally, it argues for the value of self-determination as an open-ended form of “utopianism” that allows for continual readjustment in aspirations and expectations over time. I expect that the first half of the chapter will be more accessible to Anglo-American political theorists, while the second half will be more familiar territory to those working within Aboriginal Studies. Both kinds of inquiry seem necessary to a fuller portrait of the chapter’s topic, however, and I hope that the chapter will provide deliberative tools to both for grappling with these often-ambiguous questions.

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6.1 Duties and Permissions As with Chapter 5, this chapter presumes that all people have duties to help bring about just political arrangements, when they can offer aid in this way without undue burdens to themselves. (At least so long as they are not directly creating injustices, in which case they should cease doing so much more directly.) These duties extend not only to now-living people, but to future generations as well, and duties toward these future people will be the chapter’s primary topic. For the reasons outlined in the previous chapter, I will also assume that all people can give special attention to realizing justice for members of their own communities, so that communities facing persistent injustice can focus primarily on normative improvements for their own future members, subject to the constraints of proportionality (see Chapter 5). The chapter focuses primarily on the ways in which visions of the future should be conceptualized if these duties are to be met in appropriate ways, given the interplay between aspirations for the flourishing of future people and the unpredictability of actual political outcomes. It thus focuses substantially on the relative costs and benefits of what Anglo-American political philosophy describes as “ideal theory” and cognate ideas as guides to political choice about how those duties are best fulfilled. The centrality of duties to help future people realize justice does not mean that living people have no permissions in relation to future generations. I take it as given that all people have permissions to try to produce future people who are similar to them in many ways, with many similar valuations about relationships, concepts of beauty, worthwhile human goals, and so on. I will not try to outline the reasons for these permissions in detail, because few argue against them, and their grounds seem overdetermined in any case. Such permissions allow people to engage their full personality with their children; they allow people to pass on intrinsically valuable human projects that naturally continue for more than one generation; they increase the chances that current generations will not feel like disconnected exiles in the world as they grow older; and they allow generations to link to one another across long time-scales, so their lives are not “little better than the flies of a summer.”7 These permissions are not unlimited, of course, since duties of justice may require that many values and practices are not passed on, as, for example,

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misogyny, religious hate, or environmental destruction. Differing ways of conceptualizing the exact character of these permissions will lead them to have varying scope in their relation to duties of justice, but the scope seems relatively extensive nonetheless. I take it as given here that Aboriginal peoples have permissions to seek to continue Aboriginal communities into the future, and that outsiders generally have duties not to interfere with these efforts in coercive ways.8 At the same time, it seems to me that those who currently experience persistent injustice have additional permissions of political choice. The permissions outlined in previous chapters allowed those in conditions of persistent injustice to act in ways that are not morally permissible to others, as tools to counteract the harms created by unjust arrangements. For purposes of this chapter, I presume that those facing conditions of persistent injustice have a somewhat different kind of permission of the same basic structure, toward a kind of social and institutional experimentation with their own near-future generations in a way that is not available to those in conditions that more closely approximate justice. This permission may seem somewhat odd at first glance, but it seems to me to fit within a broader understanding of the ethics of socialization. In circumstances where communities already experience political institutions that protect individuals tolerably well, older generations seem bound to maintain those institutions and to socialize their children into something close to the institutional status quo, to ensure the continuance of an institutional structure that operates in already appropriate ways.9 Those who face conditions of persistent injustice often experience institutions in a much more fractured way, however, with educational institutions that function poorly, criminal law enforcement often counterproductively ill-structured or violent, family structures blockaded rather than facilitated by background structures, and so on. In conditions of this kind, it seems that such communities have relatively broader permissions to attempt more extensive social experiments in these ill-functioning areas where they can acquire the capacities to do so, in hopes of constructing more satisfactory kinds of social organization in the future. Sometimes this will involve moving relatively straightforwardly toward the social patterns that prevail for the already advantaged; in many cases, however, building better conditions will require experimentation to build what they regard as workable.

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Some readers may prefer to frame this as simply a part of general duties of justice, properly contextualized. Yet it seems to me preferable to use the language of permission here, to make clear that outsiders to communities facing persistent injustice do not have the same kinds of permissions to institutional experimentation vis a vis these communities. That is, I think there are good reasons to hold that outsiders do not have moral permissions to attempt experimental interventions of this sort in such communities, such as the kind that Aboriginal peoples faced historically in the form of boarding/residential schools, or Allotment of reservation land with the goal of changing family structures, or attempted religious change expected to alter relationships to the natural world, and so on. Inner-city African American communities have often faced similar kinds of interventions, as with the creation of housing projects, the construction of laws seeking to reshape family patterns, educational prohibitions on “speaking black,” and so on.10 Outsiders to such communities rarely have a sense of what their members value, and they fare poorly in facilitating intergenerational connections, the continuance of intrinsically valuable intergenerational projects, and the provision of other intergenerational goods, as well as often making counterproductive decisions in more prosaic ways. Rebuilding communities in conditions of persistent injustice is likely to be navigated most coherently by members of the groups themselves, who can better seek to balance institutional change and continuance in ways that are satisfactory to them. Readers who prefer to locate this experimentation under the rubric of the duty toward justice instead should keep in mind the asymmetry that I intend to mark here. Greater permissions to institutional experimentation in seeking to bring about improved conditions for future generations, of course, do not mean that any choice whatsoever can be justified or that all choices are equally likely to succeed. There are real normative stakes here, and that is what makes decisions of this kind unavoidably difficult, contentious, and often quite painful. I will focus on the role of visions of future social orders and of a well-lived human life in this chapter, but there are other hard ethical questions surrounding duties and permissions toward future generations as well (e.g., the weighting of present people versus future people for resource stewardship) that may face those in conditions of persistent injustice in especially acute ways.11

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Institutional experimentation is likely to be linked to visions of what the future should hold, but those visions can be worked out in quite different degrees of detail and precision, and with quite different degrees of confidence. The content of these visions and the ways in which they are used are likely to matter a great deal for whether such experimentation succeeds or fails. As I noted in earlier chapters, political action commonly transforms those who engage in it. In this case, the goal of institutional experimentation will be to create transformation in some intentional direction. Yet transformations do not always (or even often) happen as intended, and there are reasons to think that many political actions or experiments will create profound surprises in their actual results. In this case, the ethics of political action must be concerned with the complex interplay between actions taken now and the uncertain flourishing of future generations. It thus is likely to matter a great deal what these visions are like and how they are used in political action. For that reason, I want to give some attention to the one specific kind of “vision” before moving on to Aboriginal examples themselves.

6.2 Ideal Theory and Political Prediction Non-Aboriginal political philosophers will find many features of Henderson’s position familiar, in its arguments that one must have a vision of the best-possible achievable society to make social progress. In this section, I want to consider, with Anglo-American readers primarily in mind, some of the costs and benefits of political visions when they take a particularly detailed form, so that the specific proposals by Aboriginal political theorists outlined below can be better evaluated. The work of John Rawls (discussed in Chapter 2) has been central to Anglo-American philosophy for the past several decades, and Rawls’s work focused centrally on what he described as “ideal theory,” meaning theorization about the basic principles and fundamental social structures needed for the most ideal realizable society.12 Rawls sought to develop a systematic conception of what an ideal society should look like, beginning with basic presumptions about the equality of all citizens, and seeking to evaluate the kinds of protections and social supports that they would need to live autonomous and flourishing lives. His work was concerned with the justice

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of social institutions, especially a society’s fundamental social and legal structures. Ideal theory considers “the way in which major social institutions distribute fundamental rights and duties and determine the division of advantages from social cooperation. By major institutions [one should] understand the political constitution and the principle economic and social arrangements.”13 Ideal theory is concerned with the ways in which different arrangements of legal rights, authorities, and powers affect the quality of human lives, and with evaluating how the elements of these basic social structures could fit together to construct a system that individuals would strongly prefer if they were able to once experience it.14 Ideal theory, Rawls believed, was the only systematic mechanism for gaining clear perspective on the failings of current political life,15 so that an ideal theory was logically necessary for pursuing justice in our flawed world: one could not hope to pursue reforms in such a world effectively without a clear sense of what the ideal outcome should look like.16 Ideal theory’s goal is to conceptualize a “realistic utopia,” which acknowledges those elements of human character that are fixed, while seeking to discover the most fair form of social structure given human capacities to be socialized into specific patterns of action and organization.17 While basic human needs are relatively unchangeable, human social habits are presumed to be relatively flexible, and institutions are expected to have many forms of potential realization that are consistent with background certainties of social science. With a focus on the character of the modern welfare state, Rawls sought to develop a conception that he called “justice as fairness,” which entailed what he called the “difference principle” as its most distinctive element. The difference principle held that economic inequalities were acceptable only insofar as they improved the lives of the worst-off group within any society. Rawls sought to outline a field of institutional structures that would achieve this outcome in stable, effective ways if it could once come into being. Those who have come after have sought further refinements, often in intricate detail.18 Working within a framework of this kind, one might seek to develop a parallel Aboriginal ideal theory, arguing, for example, that Aboriginal traditions have within them fully developed concepts of a how a well-lived, successful human life should go, and that attention to traditional principles of education and social interaction

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(among other elements) can help in outlining the kind of society toward which Aboriginal peoples should strive with all their force. The basic set of concerns for both Henderson and Rawls are quite similar. The world is unjust; it should be made more just; we will only know how to achieve this with a vision of what could be instead. An ideal theory along Rawlsian lines, one might imagine, could be developed as specific to a particular Aboriginal people or tradition, but it might also be framed more generally, as an ideal for non-Aboriginal populations as well: it might illustrate the reasons for valuing particular kinds of persons and practices, in terms that would plausibly give non-Aboriginal people reasons to pursue them as well, and show in detail how social practices should be structured to achieve this goal.19 At its broadest extension, an Aboriginal ideal theory of this sort would be likely to end in clear blueprints for a coherent and integrated alternative society.20 In the next sections of the chapter, I will examine in some depth the work of Aboriginal political theorists that has some elements of ideal theorizing along these lines, to think about the costs and benefits of this model for guiding experimentation in conditions of persistent injustice. Despite the appeal of ideal theory for many within AngloAmerican philosophy, the purpose of ideal theorizing within Rawls’s work and Anglo-American philosophy more generally remains uncertain. There are two broad ways of understanding the point of ideal theory, and they are likely to operate quite differently for those who make use of them in political action. Examining their divergences can help to make sense of (some of) the very different ways in which political visions can be used. One approach is to treat an ideal, once conceptualized, in a comparative-evaluative way, as a tool for evaluating the relative failings of existing social orders by showing what laws and policies would look like if they were structured in the best way possible.21 On this view, one uses an ideal theory of how society could be organized to identify variances between the ideal and existing practices, to help with the identification of needless suffering under existing arrangements. Taken this way, those creating ideal theories need not imagine that the ideal will actually come into being in the future. Rather, they use the ideal as a tool for more proximate evaluation here and now, with the ideal serving as a kind of checklist for evaluating how far existing arrangements are from the best possible arrangements.

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While a detailed ideal set of institutional structures might seem useful in this way in principle, it will often be extremely difficult to know whether the imagined set of institutions would work or not, so that one could gauge if the comparison between actual arrangements and theorized arrangements was meaningful. I will have more to say about this below. Even if one was sure that the ideal was correct, however, it does not seem either necessary or sufficient to have such a developed framework to evaluate most kinds of injustices. It is not necessary to have a fully detailed ideal of what criminal law enforcement on Aboriginal reservations should look like to recognize proximate changes that would represent improvements, for example, and it is certainly not necessary to have a strongly worked-out set of ideal institutions for Aboriginal peoples in North America in some broader sense to evaluate an issue of this specific kind.22 Nor would having a worked-out theory of ideal institutions be sufficient for guiding specific political choices because an achievable secondbest outcome may look quite different than a template taken from ideal institutions might suggest. Multiple institutions often interact in complex ways, and creating some institutions in an apparently ideal form may deepen difficulties if other institutions remain flawed. It might seem best for Aboriginal communities to have full authority over law enforcement among their own members, for example, but one could not say with certainty whether a policy to this effect was beneficial on balance without knowing a great deal more about anticipated funding and training levels and many other changes. When institutions interlock in complex ways, changes to one may be positive or negative depending on what else is likely to change around it, and the specific effects emerging from the conjunctions will often not be obvious from an examination of idealized arrangements. Imagining an ideal set of institutions thus would leave a great deal of the difficult intellectual work yet to be done, and much of this work would seem more useful for shaping political action than the development of the ideal itself. This does not mean that attempts at theorizing about ideal social arrangements within Aboriginal communities or between Aboriginal communities and surrounding states lacks value from a comparativeevaluative perspective, since there are useful functions that such theories could play. Perhaps most obviously, detailed attempts to articulate the best possible institutions might help to clarify various

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parts of one’s own thinking, by setting out clearly one’s beliefs about how different values and social structures interact. Yet one would usually not need to aim for a perfectly ideal vision of alternative social structures to gain these goods of clarification and deliberation; a vision that entails substantial improvements will often be enough, and of more immediate use. Midrange proposals for reform will often be most useful in such a comparative-evaluative process, where they can be taken as flexible tools to facilitate thinking and conversation about why one political choice in the present may be better than another, rather than as rigid templates to guide action. I will have more to say about this below. For current purposes, the relevant point is that the comparative-evaluative model suggests that we may do better by looking for proximate improvements and general political aspirations, rather than by seeking to articulate the best social model possible. The second model of ideal theory’s purpose is navigational.23 On this view, ideal theory is intended to set a long-term goal toward which all political strategies should cumulatively build. This approach holds that ideal institutions should be worked out in fairly extensive detail, given the complex relationships between institutions noted above, so that political actors can strategize about how to construct them fully through coordinated political action over time (say decades or longer). Without a strongly worked-out ideal, those who adopt this approach argue, it will be easy to fall into policy changes that lead to short-term improvements, but which blockade longer-term improvements by reinforcing institutions that will eventually require removal for the ideal justice to be achieved. While one might not need to know much about the ideal to recognize whether a specific policy change increases or reduces persistent patterns of injustice taken on its own terms, one does need to know more about the features of the ideal if one is to strategize a multistage move toward a much different kind of social world. This kind of ideal theorizing seems clearly relevant for political action that involves future generations, and thus it may seem uniquely suited to guide those facing conditions of persistent injustice in their political choices. Yet this apparent strength fades on further examination. Perhaps the most obvious problem for this vision of ideal theory lies in the difficulty of determining the longterm ideal with any kind of useful precision. There has been a great

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deal of disagreement about Rawls’s claims for his own central topic of interest: the status of the welfare state within stable democratic countries. There have been deep questions about whether the vision he imagines would be achievable under any circumstances given human character, whether it would be stable over time given the same concerns, whether its core institutional structures really fit together, whether it would be determinate enough to guide real policy and law, and so on. The essential problem here is not only normative disagreement about how to weight different kinds of human moral interests, but deep empirical disagreements about the operation of social institutions.24 The latter is perhaps the most profound problem: since social science is notoriously bad at predicting political events, the idea that its tools can be used effectively to determine how now-speculative institutions will function seems highly doubtful. Moreover, political action takes time, often on the scale of decades or longer. Using an ideal theory as a navigational tool would thus require the determination not of the ideal for today’s conditions, but the ideal given tomorrow’s circumstances. The predictive challenges here are immense. What should a well-structured human society look like fifty years from now in terms of its major social institutions, for example? Consider the question not just in vague, general terms, as a society in which all individuals, families, and communities are treated fairly, but in its specific details. What will specific laws on property ownership look like, for example, and how will these fit with concerns about living a life of conscience, about ecological sustainability, and about the control of social actors that might in various ways subvert this system’s stability? How will children and others be socialized so that they learn to understand the conditions under which they should live and how will the value of the system be explained to them when they ask why their society is structured as it is? What kinds of technological, ecological, economic, and demographic changes will have occurred which require different institutional mechanisms for protecting moral interests than we now rely on?25 What tests will we use in calibrating our judgments about the operation and stability of the world that we hope to bring about? Given the difficulty of engaging in meaningful predictions of this kind, and the likely need for continual recalibration over time, it

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seems unlikely that ideal theories could serve a central role as navigational aids for the difficulties of political life. Rather, ideal theories as guides to future goals seem likely to fare best when they are treated more like ideal theories under the best uses of the comparativeevaluative mode: as mechanisms for making clear to oneself and one’s audience the relative weight of different values and principles, and the different empirical beliefs about the world that one now holds, even if one expects them to alter in the future. Approached this way, we might see the primary value of envisioning the future as one of pursuing self-knowledge about what we hope to accomplish and what we think now stands in the way of those aspirations, not one of strategizing to an already-understood ideal destination. Visions of the future understood as aids to self-understanding about aspirations, normative values, and tacit presumptions about the world thus seem like useful tools. If they are understood as guides to a future that one actually expects to come about, however, they seem likely to go astray. I recognize that this may have been somewhat dense ground for readers approaching these questions from the discourses of Aboriginal Studies, since the discussion unavoidably engages with a deep set of ongoing debates in Anglo-American political philosophy about the costs and benefits of ideal theory. I now want to turn more directly to the question of Aboriginal visions of what the future should hold politically, to evaluate some of the potential costs and benefits that specific ideals may hold. Aboriginal readers are likely to find many things with which to disagree (as well as, I hope, much with which they agree), which I hope will provide additional tools for democratic deliberation about how longer-term visions of political goals should be structured to maximize the benefits of the permissions for political experimentation that I believe Aboriginal peoples and others in conditions of persistent injustice have.

6.3 Strategy, Political Action, and Anarcho-Indigenism Why might Aboriginal peoples feel called upon to develop relatively determinate visions of an ideal political future? There are two potential audiences for such visions. One is the non-Aboriginal audience (or perhaps more accurately, multiple and often competing non-Aboriginal

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audiences of varying kinds), while the second lies in Aboriginal communities themselves. I will consider the non-Aboriginal audience first, to think about the ways in which existing political opportunity structures may call for such visions. There are good reasons to believe that determinate visions will be useful strategic leverage for Aboriginal actors when they want to persuade non-Aboriginal actors of the desirability of a particular social change. Visions of this kind may be dangerous for Aboriginal actors themselves if they are taken too literally, however. Many of the arguments in this regard parallel those outlined in Chapter 3, on the ethics of political deliberation in constrained conditions. Non-Aboriginal populations often insist that Aboriginal peoples should offer them blueprints that describe their “idealized” political future, but which are likely to be narrowly constrained in a variety of ways. Non-Aboriginal Canadians and Americans, like most people, are deeply conservative about established social and political relationships, and are likely to resist forms of change that seem to them uncertain or open-ended.26 Because they dwell so firmly within their own political institutions (in most cases), they are likely to regard their own social structures as necessarily solid and unchanging, and, therefore, to insist that Aboriginal plans come to match their own degree of “certainty.”27 They are thus likely to want reassurance that any likely changes are not so deep after all, and to want clear details about what a revised political order will look like and how precisely it will operate, including exact specification of institutions, constitutional provisions, methods of adjudication, and so on. They are, in short, likely to demand that aspirations be reduced to narrowed blueprints that can be fitted within existing political boundaries and specified with precision. It is precisely these kinds of deflationary dreams that worry Henderson: those who have studied the law and existing politics are likely to stay too narrowly within alreadymalfunctioning institutional parameters, rather than to see new possibilities that should come about instead. In conditions of this kind, it may often be politically useful for Aboriginal peoples to provide “utopias” of this relatively constrained sort. Such constrained “visions” can play a strategic role in bringing about real changes in certain instances, particularly when articulated in especially new and powerful ways. When presented with a potentially threatening kind of political change, one of the best

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palliatives is an explanation of how the change is not so deep at all, and of how it fits well with the already-existing values of those who would prevent it. In this regard, highly detailed conceptions of an Aboriginal future can help to allay many kinds of non-Aboriginal fears, by making at least somewhat different political orders imaginable and predictable.28 Such visions may even create a sense of positive attraction toward such futures for non-Aboriginal individuals, by illustrating ways in which the suggested social changes might reflect and deepen values or principles that non-Aboriginal peoples already hold.29 A positive vision is thus potentially of great value for deliberatively influencing the reactions of non-Aboriginal audiences,30 even if it is rarely a sufficient political lever on its own.31 Visions that are currently socially “impossible” may become possible precisely because they no longer seem alien or threatening to powerful social actors when conveyed with force and clarity. Developing clearly structured institutional descriptions is for this reason important and difficult strategic work for Aboriginal social actors. These should not, however, be mistaken for visions of a more foundational kind. There are obvious dangers that these strategically structured visions will be taken for the real thing, while compromising far too strongly with the existing social order to be helpful.32 In conditions of this kind, the desire for visions of the future that are developed free of such compromises is obvious and powerful. Many Aboriginal political actors are not interested in one-sided conversation with non-Aboriginal populations but in recognizing and describing as clearly as possible what decolonization should entail when realized, with Aboriginal audiences as their primary focus.33 These are the kinds of visions for which Henderson advocates. If one wishes to articulate ways of life that seem intrinsically worthy of allegiance and that give the clarity of vision that Henderson endorses, they must be discussed, and often written about. In the process of writing about such visions, there is a natural tendency to move toward arguments with many elements of ideal theory as carried out by Rawls and discussed above.34 For Aboriginal scholars in the fields of philosophy, law, and political science, the terminology of ideal theory will itself be familiar, and it may therefore be intellectually appealing on its own terms.35 In general, Aboriginal scholars have not sought to articulate blueprints of this kind, but there have been moves in this

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general direction, particularly as Aboriginal conversations about potential futures develop and formalize in academic contexts. Since worries about ideals are difficult to evaluate in the abstract, I want to consider an example that could be taken as a template for the character of future Aboriginal societies. Though it has not been developed to the extent of a Rawlsian ideal theory, it has multiple elements of such an approach. Taiaiake Alfred has argued that real decolonization would require not only that new spaces be opened for Aboriginal peoples within political systems roughly as they exist, but that profoundly different forms of political and social life are necessary to reflect the best aspirations of traditional Aboriginal political values36: Translating [the desirable] ethical sense and idea on a way of being into a concise political philosophy is difficult, for it resists institutionalization. I might suggest, as a starting point, conceptualizing anarchoindigenism. . . . How might this spirit be described in contemporary terms relating to political thought and movement? The two elements that come to my mind are indigenous, evoking cultural and spiritual rootedness in this land and the [Indigenous] struggle for justice and freedom, and the political philosophy and movement that is fundamentally anti-institutional, radically democratic, and committed to taking action to force change: anarchism.37

Alfred is skeptical of any form of political entanglement with states as they currently exist, and with broader features of the current world economic and social system. In his most developed work, the book Wasáse, Alfred outlines a demanding set of ideals for the individuals who will inhabit his preferred alternative social system, describing the kinds of personal and interpersonal virtues that they must develop if they are to realize their own freedom and to live fully flourishing lives. His political vision is one of complex social relationships in which coercive law is avoided, in which multiple and overlapping forms of legal jurisdiction allow individuals and groups to pursue their own social goals without mutual interference,38 and in which individuals have developed the necessary personal capacities to manage these complex social lives in peaceful and communally rich ways.39 The vision, then, is of a radically different, essentially stateless future, in which individuals generally live together on the basis of free association rather than highly organized patterns of coercive regulation, having realized the value of this way of life and

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having developed the combination of personal fortitude, tolerance, and empathy necessary to allow it to exist. Alfred is by no means alone among Aboriginal political theorists in arguing for political arrangements of this noncoercive and complex kind.40 The vision that emerges from his argument is appealing on many levels: traditional Aboriginal principles of social and political organization already emphasize consent, negotiation, and interdependence and, therefore, point naturally toward a politics that is relatively free of bureaucratic and coercive organization, while including instead pervasive forms of deliberative consultation. There is a great deal of complexity across traditional Aboriginal political structures, of course, and when examined in detail, these structures usually have less resemblance to anarchism than it can be made to appear.41 One might nonetheless suggest that these traditions, when rightly interpreted, point forward toward the development of such anarchism, given their resonance with the goals Alfred articulates. (Henderson suggests that such ideals may create worlds that have not yet existed, but that are implied by the best features of Aboriginal traditions.) There is much that nonAboriginal peoples may find attractive in this vision as well, in imagining a world with less coercion and a fuller development of all human capacities. I argued above that Aboriginal peoples and others facing conditions of persistent injustice have moral permissions to engage in relatively broader forms of political experimentation than seem permissible for those living within less harmful institutional contexts.42 Given the damage that Aboriginal communities have sustained from surrounding states, and the resonance that many organizational elements like those Alfred describes continue to have within Aboriginal communities, it seems reasonable to see efforts in this direction as falling within the bounds of that permission. Given the historical experience of Aboriginal peoples with social orders including many of the elements that Alfred describes, there are reasons to suspect that the odds of achieving such social orders are higher than for most non-Aboriginal populations, even if the latter feel equally drawn to this set of aspirations.43 Alfred’s approach holds out the promise of an escape from the policy choices of surrounding states not only externally, but escape from these state practices and presumptions within the bounds of Aboriginal communities as well. In the long

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run, he hopes for something like this vision to spread to all people, though he does not expect that it will. Despite their attractions, I believe that visions of this kind should be treated with a great deal of caution. Many of the difficulties are familiar from other kinds of ideal theory, where ideas that are distant from the present can have ambiguous or even counterproductive effects given strongly anchored features of the existing social world. Even if one is convinced that some form of anarchism would be achievable, and socially stable once achieved, such a vision can make it more difficult to recognize and accept more imperfect improvements over the short term.44 This is especially so in conditions of persistent injustice, where the political institutions of surrounding states are likely to make options of this kind exceptionally difficult to pursue, given the past practices and current expectations of the political leaders and bureaucrats who manage these states. This is especially important to take into account if the relatively dominant social position of non-Aboriginal populations seems likely to remain in place, either for demographic, economic, or other reasons.45 If blockades of this kind are likely to continue in place over the long term, then Alfred’s vision of anarchism may fail to operate well either as a comparative-evaluative tool or as a navigational mechanism, even if it would represent the most ideal form of social organization if it could somehow (counterfactually) be achieved.46 If Aboriginal peoples are likely to continue to grapple with nonAboriginal populations in seeking political space for the foreseeable future,47 such that some form of Aboriginally inflected anarchism will be possible only in the very long run if at all, it will be necessary to think carefully about flawed options that would still represent improvements over the status quo (the comparative-evaluative dimension), and about how one might plausibly strategize toward the ideal (the navigational dimension). Utopian visions such as Alfred’s anarcho-indigenism are not always a great deal of help in comparative-evaluative terms, because they travel at a level quite distant from ongoing politics, and they can at the same time lead those who hold them to downplay the work of those who struggle to improve existing policies.48 Consider the evaluation of fine-grain funding relationships between Aboriginal political structures and the American or Canadian state, for example. Will an anarchist vision help with choosing among particular legal doctrines or policy

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specifications that may have subtle but unpredictable and important ramifications over the long term? Often it will not. It is likely to reject all involvement with these coercive state structures as inherently corruptive instead, and encourage those involved to work toward a radically different future as directly as possible. In this way, the vision can occlude the importance of this specific choice, while offering limited resources for thinking about how it should be made: the utopia that it posits is so different from the proximate possibilities to be evaluated that they become almost indistinguishable. Most of the usefulness of a comparative-evaluative vision lies in its hoped-for capacity to evaluate the relative normative benefits of one kind of proximate goal rather than another. Anarcho-indigenism will be helpful or not helpful, on this standard, insofar as it can provide distinctive criteria of evaluation that would not be otherwise visible.49 What about anarcho-indigenism as a navigational ideal? Here much hinges on whether such a social order would be stable once established, as well as on questions about whether it can actually be reached through any means available given existing constellations of political power. Some kinds of conceivable human social orders must inevitably be impossible given limits on human cognition, socialization capacities, institutional coherence, or other restrictions, and anarchism may fail on at least some of these grounds. Indeed, it seems to me that it is very likely to fail in this way, even when attempted within Aboriginal communities who may have some institutions and practices that might support it better than elsewhere. Of course, social scientific claims are often of uncertain reliability, and we have no fully certain way of knowing whether radically revised social orders are possible until they come about. There are, nonetheless, quite high risks in setting something as distant from current political practice as anarcho-indigenism as an ideal to be pursued. In conditions where future social possibilities are uncertain but some of them are closer to existing realities than others are, one takes substantial risks with the well-being of future generations when positing a radically different form of social order as an ideal to be pursued through political navigation. Forms of social order relatively close to those that already exist at least have the merit of being recognizable and determinately achievable, even if this fact also threatens to bring with it many of their injustices and other flaws. The more distant an ideal is from the present, the more profound the

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kinds of navigational steps that are likely to be necessary to achieve it, carried out through incremental political actions that build toward this goal over time. If an ideal of this kind is to serve a strong navigational role, it is likely to link together many kinds of political action that seek to build upon one another’s effects over time, in hopes that the correct institutional field can be sequentially built in small pieces.50 Given the challenging nature of political action in conditions of persistent injustice, pursuing one kind of imagined future may foreclose or make more difficult other kinds of outcomes. Some social orders that would be ideal if realized would fare worse than the status quo if their institutional or other goals were only partly realized. This is especially true for social orders that diverge strongly from those that currently exist, as with anarchism: those who work toward developing the social practices necessary to live in a stateless way may leave aside knowledge and experimentation of how to live more effectively with states or forms of political organizations similar to them. Since current actions make it more likely that future generations will have values and commitments to match the future they are seeking to build, it seems important for their well-being that they are not persuaded to value and attempt social systems that cannot, all things considered, actually be brought into being, or meaningfully approximated in partial form.51 Arguably, this is the case with something like Alfred’s anarchism. All of the arguments here are of course debatable, since they hinge on complex and uncertain questions about social scientific evidence, institutional possibility, cognitive skills of political evaluation, the relative value of partially realized institutions, and so on. This helps to make vivid the profound difficulty of the political decisions faced by those experiencing conditions of persistent injustice when they seek to develop visions of the future that will be both appealing and useful as political guidance, however, and illustrates the difficult questions faced by those who have permissions to political experimentation. These uncertainties, of course, might be taken to vitiate such permissions for experimentation, but that would be an overreaction, since experimentation can take many forms. Rather, I think concern about these uncertainties is better taken as a ground for holding visions loosely, and for keeping flexibility and adaptation centrally in mind as values in such visions.

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Consider as an alternative to anarcho-indigenism a more protean and open-ended set of aspirations that are framed in ways that emphasize the importance of agency and self-defense, without seeking to specify the institutional forms in which they should be instantiated. The notion of “self-determination,” for example, is indeterminate and protean by nature. The notion focuses on the capacity of a group to make its own choices, but says nothing about the character of those choices or the institutional outcomes that they will entail. In practice, the terminology’s existing uses have been shaped by a number of conflicting and ambiguously related notions, often oriented around the rejection of very specific forms of mistreatment. The language of self-determination itself says little about specific political endpoints, and leaves many other matters ambiguous as well.52 What exactly is the “self” at stake, for example, and what exactly is it determining? What institutional structures should these choices lead to, and how will one know if its goals have been achieved? Self-determination is an ideal that seems specific and concrete at first glance, but it is more accurate to see it as offering an inchoate sense of basic valuations about what ought to be achieved by some mechanism or another, without specifying in detail ways in which they might be brought about. The character of those choices, and the institutional mechanisms by which they are to be made, are left unspecified, so that they can emerge through practical experimentation and probing at the bounds of political possibility. In this way, it encourages and empowers individuals in specific political locations to make decisions and to pursue institutional outcomes in ways that seem best to them given their particular forms of expertise and experience. It can thereby present a common language for multiple located discussions, without commitment to a given future outcome. I will return to this idea below, after examining another way of envisioning the future: one that focuses more directly on visions of the good life that future people should hold than on the institutions necessary to achieve justice.

6.4 Aboriginal Traditions and Human Flourishing Predicting the future is difficult not only because it is hard to tell what is possible institutionally, but because it is not easy to tell what is necessary for future people to believe if they are to flourish: what

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future persons should desire, pursue, and hope to achieve for their lives to go well.53 The uncertainties involved here are in many ways deeper and the stakes more intimate, so that the engagement here is necessarily tentative. I remind readers again that I am not an insider to any Aboriginal tradition. The caveats that apply to the book as a whole apply especially to this section of the chapter: the arguments made here should be taken only as one tool for thinking, and be disregarded where they seem unhelpful. Current people cannot avoid having at least some influence on what future persons believe a well-lived human life to contain, and they have permissions to reproduce many of the things they value in these future people. Much of the brutality of colonialism came (and still comes) from state policies that blockade Aboriginal peoples from following ways of life that they understand as intrinsically valuable. A broad range of social practices, from spiritual practices to resource use patterns and languages themselves, have been treated as unworthy of political respect by countries like the United States and Canada, and aggressive efforts have been made to stamp them out. As has often been remarked, lives do not go better when being controlled “from the outside” by alien values, and this kind of outside control has been the experience of Aboriginal peoples far more pervasively than it should.54 Given the history of harm and disrespect by non-Aboriginal populations, it is reasonable that Aboriginal political actors often see meaningful decolonization as requiring the survival of traditional social and cultural values not only in the present but in the future as well. Future persons must be “Aboriginal” not primarily in a biological sense, or even in a political sense, but more fundamentally in terms of their visions of what makes life worthwhile and meaningful. It is obvious why it would be important to living individuals to pass on traditions that seem to them intrinsically valuable, such that they would want to exercise the permissions they have to shape others to be like them. Those who love their ways of life usually cannot bear the thought of them disappearing without a great deal of pain, especially when this comes about as the result of pervasive and unjustified coercion by others.55 Yet future people do not yet have any attachments to Aboriginal traditions, and their lives can go better or worse in a variety of ways. Those who exercise such permissions should do so with care to ensure that justice toward these future

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people is given its proportionate due; duties toward future generations may sometimes require that living persons endure losses for the sake of those yet to come.56 It thus matters whether particular practices and valuations to be conveyed to future people will enhance their flourishing on its own terms or not, even if this does not fully decide the question of whether they should be conveyed. The strongest argument to be made is that traditional Aboriginal practices and values are more effective at creating meaningful lives than the other available options are, so that carrying them forward is necessary for the flourishing of future Aboriginal individuals (as well as for any others who might also adopt those practices and values). Thus, one might argue, many Aboriginal traditions are close to optimal for human beings, such that change in any direction is likely to lead away from well-lived human lives rather than, say, sideways toward a different way of life that is nonetheless equally valuable. Inuvialuit philosopher Gordon Christie, for example, has suggested that Aboriginal traditions have within them precisely this knowledge of human flourishing, when writing in response to liberal theories of justice (i.e., those that are based around creating social space for individuals to construct their own vision of the good life)57: [F]undamental principles underlying liberalism are alien to the belief structures of Aboriginal peoples. Emerging from a combination of wisdom gleaned from mythological time and thousands of years spent reflecting on the best ways to live are visions of ways of life which are considered completely adequate to the task at hand. Reasons liberal theorists advance for structuring society around the notion of a “context of choice” are absent in Aboriginal communities. While some experimentation in living is both inevitable and worthwhile, within Aboriginal societies the broad strokes of how to live the good life have been worked out.58

On this portrayal, Aboriginal traditions already contain objectively correct knowledge about the values and practices necessary for human lives to go very well.59 When thinking about duties to future generations, the conclusions to be drawn seem straightforward if adherence to traditional visions of the good life will lead to maximal human flourishing, subject to some minor revisions around the edges.60 If accurate knowledge human flourishing really does exist in Aboriginal traditions, then it seems clear that present generations should help to bring about

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conditions in which future persons will live by these practices, so that their lives will go as well as they possibly can. This is likely to entail not only that future generations receive these values and practices through socialization, but that they are told of the near optimality of these ways of life as well, and that it is thus their duty to pass these traditions along intact to future generations in their own turn. Traditions are, so to speak, likely to come with a proviso that substantial variations will make the lives of future generations go worse, rather than better.61 I believe that there is reason for deep caution here.62 At one level, it is not clear why this portrayal of the optimal character of Aboriginal traditions (or any other set of traditions) would be correct, though such descriptions may be strategically valuable in countering noxious colonial caricatures.63 But even if it is the case that precolonial Aboriginal social worlds had within them accurate knowledge of the requirements of fully flourishing human lives for the conditions then prevailing, it does not follow that reviving those traditions would lead to maximal flourishing in the present day.64 There may have been social changes in, for example, demography, territoriality, ecology, technology, and political order that lead to too much dissonance between traditional Aboriginal ways of being in the world and surrounding social structures to allow those who hold traditional Aboriginal views to flourish effectively.65 One of the primary features of longstanding patterns of injustice has been a political blockade to the in-practice refining of Aboriginal traditions with changing circumstances. The need for adjustment to conditions is not something unusual about Aboriginal traditions, of course; all views of the good life struggle to make sense of social change, and there are obvious reasons for strong concern about the visions of a well-lived human life held by non-Aboriginal individuals who are connected with the prosecution of long-term colonial projects. But Aboriginal traditions have been frequently blockaded from change by conditions of persistent injustice in a variety of ways nonetheless. Thus they have not been allowed to adapt to changing circumstances as they naturally would.66 Insofar as visions of a flourishing life require specification to their circumstances, intellectual and social tools that previously worked may no longer do so as well without experimental revision. Moreover, as Christie acknowledges,67 the practices of countries such as the United States and Canada have generally fractured

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Aboriginal social structures, and with them, many patterns of traditional Aboriginal knowledge and practice.68 The causal forces here are multiple: destruction of Aboriginal languages, premature deaths of political and social leaders, forcible prohibitions of ceremony, territorial displacement, missionary rule, off-reservation schools,69 and so on.70 Most Aboriginal intellectual traditions have not been impacted so severely that they have lost all earlier conceptions of human flourishing, but it will not always be clear where they have been subtly altered or where elements have become missing entirely. It does not seem necessary for a large number of elements to change for a coherent vision of the human good to be deeply undermined, since aspects of human life sometimes fit together into complex wholes.71 If Aboriginal intellectual traditions are allowed space to rebuild themselves over the long term, there are plausible grounds for believing that their erroneous elements can be recognized by their practical social effects over time, as the elements associated with real flourishing are sorted from those that are not. If this kind of experimentation is required, however, then encouraging future Aboriginal persons to maintain confidence in the full sufficiency of traditional visions of human flourishing may be a mistake—it may make those persons worse off than they might have been had colonialism never occurred. Future individuals are likely to fare best instead when continually reminded to seek for errors that must be discovered—to be encouraged to carefully (though with humility) examine the judgments of at least their recent forebears, and to be more strongly attuned to current evidence of flourishing than apparent evidence of traditional practice. Finally, it seems essential to acknowledge that many traditional Aboriginal views of the good life may be mistakenly intertwined with morally problematic social practices, as visions of the good life are in all other known societies. Some Aboriginal traditions included elements that were themselves colonialist or otherwise tended toward violence and patterns of domination (e.g., slavery along the Northwest coast, subordinate roles for women in some societies, and so on), and some of those elements may play anchoring roles that need to be sorted out carefully.72 Given the diversity of Aboriginal traditions, it seems clear that at least some must have been mistaken about how the human good is best secured, and about how to most appropriately treat other persons with respect and reciprocity. In many cases, undergoing colonialism may itself have already alerted

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Aboriginal peoples to these sources of injustice, given parallels with the damage caused by invading outside societies. But there is no obvious reason to expect that all of these problematic practices have been recognized, particularly in conditions of colonial blockade, where solutions and alternatives have not had a chance to be freely tested. In conditions of this kind, it seems likely that present generations may overestimate the degree to which they can pass along reliable knowledge about human flourishing to future generations, and, therefore, it may be potentially harmful to those future generations to encourage them to adhere to Aboriginal traditions as they are currently understood in rigid ways. It seems likely that future people should instead be encouraged to approach questions of this kind with an experimental attitude, and to test the value of specific kinds of ideas in practice. In general, I do not regard this as an unusual position: Aboriginal scholars and political actors are often critical evaluators of Aboriginal tradition as it is understood by people now living, and there are other elements of Christie’s work that show this concern in substantial ways.73 Given the damages of colonialism, the blockades that it has put on change, and the fragility and fallibility of all conceptions of a flourishing human life, this seems to me the right approach. Christie’s portrayal of Aboriginal traditions seems to me plausible and even essential as a strategic claim, in seeking to estop many kinds of political inference within Aboriginal societies, and this may be his primary intention. I think the argument holds dangers if taken as literal description, however. Stepping away from a rigid position that presumes the complete sufficiency of Aboriginal traditions does not thereby entail an abandonment of their central valuations, or that there are no important stakes for future people in having access to these ways of seeing the world. Given the degree to which the primary non-Aboriginal ways of valuing the world dominant in the United States and Canada are entangled with colonialism, environmental destruction, difficulty dealing with pluralism, and, for many, an abiding malaise about the meaningfulness of life in general, there are plausible reasons to believe that people socialized into many elements of Aboriginal ways of valuing the world may indeed flourish more effectively. Nor do hesitations about the sufficiency of Aboriginal traditions lead

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automatically to liberalism,74 at least as it is understood in the daily life of people in Canada and the United States: there are other ways of respecting difference, pluralism, and choice than this, especially when one examines actual practices rather than the more evocative aspirations of liberal writers, and it is the actual practices that matter.75 An alternative model of socialization would focus not on the completeness and sufficiency of Aboriginal traditions, but on their richness, beauty, and capacities to facilitate inquiry into what makes life worth living.76 In this sense, one would socialize children to see the tools found in Aboriginal traditions precisely as “contexts for choice,” which encourage deep immersion to gain understanding, coupled with creativity, evaluation, and (where socially necessary) bootstrapping to build increasingly livable orders within Aboriginal communities,77 and perhaps eventually beyond.78

6.5 Self-Determination and Unpredictability Before concluding the chapter, I want to turn to another way of imagining what the future should hold, which has been the primary way of framing Aboriginal action in both the United States and Canada for some time. It seems to me to represent the best approach to complex questions about the well-being of generations of Aboriginal people, even if other conceptions may be needed for other groups facing conditions of persistent injustice. This is the goal of self-determination, as noted above, which has been the central motivating goal of most Aboriginal political actors in the United States and Canada for a long time. For many generations, it appeared a distant vision indeed, given the ways in which the United States and Canada for a long time blockaded almost any kind of Aboriginal political choice. Since the 1970s, the United States has acknowledged a form of self-determination as an appropriate goal for Indian tribes, and Canada has moved more gingerly in that direction over the past few decades as well. In practice, self-determination remains deeply incomplete, with many older forms of state manipulation and interference still continuing, and Aboriginal communities lacking many kinds of capacities that past restrictions prevented them from forming. The goal of most Aboriginal political action in the present is thus to build political, legal, and practical capacities to protect individual

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Aboriginal people from mistreatment, poverty, and alienation, and to create conditions that will facilitate their capacity to choose lives that have value to them in conjunction with other members of the community. In many ways this is a defensive conception of politics, which focuses on the prevention of specific kinds of mistreatment, but it also entails a multiplicity of interactions with surrounding states that can go well or ill in providing services, clarifying control over land, generating economic activity, and facilitating ecological sustainability. Much of Aboriginal political action is thus prosaic and quotidian: seeking to build, in small and incremental ways, spaces where political and social life can flourish rather than be fractured. Can self-determination be taken as the right kind of vision to guide political action into the future? It is understandable that it may seem either deflationary or ambiguous, but it seems to me that it represents a vision of the correct sort for current conditions. Given the primarily defensive uses of self-determination to argue against political interference and other forms of persistent injustice, it is natural for those who are used to ideal theorizing in the Anglo-American mold to inquire further into what self-determination is itself supposed to achieve. In either responding to these inquiries or seeking clarity for themselves, it is natural for Aboriginal scholars such as Alfred and Christie to develop their own visions of what the future should hold. However, given the comparative-evaluative and navigational limits of such visions and, therefore, their potential to hamper the goals of justice and flourishing that underpin such ideals, I want to suggest that self-determination actually can serve as an “ideal theory” appropriate for facilitating political choice and building political structures for future generations. Self-determination, on my reading, is a kind of ambiguous and open-ended vision that seeks to make clear certain goals and values, without specifying exactly the institutional forms through which they will be realized. It has general background use for comparative-evaluative purposes, because it assigns high value to policies that continue to build space for Aboriginal choice, but beyond that, it encourages detailed examination of the moral interests at stake in particular policy areas, with a focus on the institutional structures necessary to protect members of Aboriginal communities in appropriate ways. Similarly, its navigational aspiration is toward increased political capacities, but the open-ended nature of the goal makes it difficult to plot a long-term course with

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any precision, and, thereby, it is unlikely to lead political actors into too-ornate forms of political strategy. At the same time, it gives central focus to ensuring that future Aboriginal people will be able to shape their own lives in ways that are of value to them. Perhaps most importantly, the notion of self-determination does not set out to describe in advance a set of institutions, practices, attitudes, and virtues that fit together into an already-understood coherent whole. Rather, it allows institutions, practices, attitudes, and virtues to accrete together over time, and to be adjusted where this seems necessary to achieve the goal of self-ruling, flourishing Aboriginal communities. It is hard to tell what is politically possible from the present, since this depends on the kinds of political actions outlined in previous chapters, and on a variety of contingent and imperfect decisions undertaken in the face of reasonable disagreement among community members about permissible and effective strategies (even when they agree on goals). In the face of persistent injustice, existing political opportunity structures often strongly channel political action in certain directions, so that one must seek to jury-rig effective outcomes among policy areas that may not have much natural coherence between them. In these cases, it will be difficult to plot a political course toward overall institutional outcomes with much effectiveness. Even where this is possible, it is hard for anyone under any conditions to tell what kinds of institutional configurations will be tolerably effective at protecting individuals until they actually come about: political possibilities are frequently surprising to those who attempt to predict the political future. Nor will it always be obvious how well individuals will flourish under particular policies and political arrangements, even if those arrangements seem to achieve what was originally intended for them. A vision like self-determination does not say a great deal that is specific about how all of these details should work out, but it does allow for a kind of conceptually unified normative goal, which remains open to ad hoc and combinatory institutional forms that can be tested and abandoned where necessary. It is, in a sense, a way of setting a goal for the future without confidence that one can predict what it will entail in detailed ways, and without imagining that its field of possibility is already understood. If this argument is plausible, then what is the relation between a utopian vision like Alfred’s anarcho-indigenism and a more

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open-ended, ambiguous idea like self-determination? My own judgment is that visions such as Alfred’s are an essential part of long-term political action, but that they should be seen as methods of highlighting the importance of certain values in vivid ways, rather than as institutional outcomes to be realized. If this is correct, then it is not the right detailed vision of the future that is needed, but multiple detailed visions that can open the imagination and provide spurs to normative evaluation. It does not seem misguided for Aboriginal political theorists and others to conceptualize deeply different political orders, but it does seem prudent for visions of this kind to be held loosely and in self-consciously tentative ways that are intended to make vivid the beauty and appeal of certain possibilities, without seeking to show that other visions of the future are necessarily inferior: as tools for opening the imagination to new political possibilities, rather than offered as programs to be directly pursued. In many ways, it may be best to regard these visions as something akin to literary works, or to longstanding practices of storytelling found within Aboriginal oral traditions: as means for thinking about what is important and beautiful, rather than as blueprints for ideal institutions or roadmaps to a determinate future. Traditional Aboriginal methods of storytelling are often deliberately open-ended and ambiguous, in seeking to prompt each individual listener into thought and judgment. These forms of storytelling are usually narratively rich, with layers of meaning and vivid descriptions of differing conditions into which persons (including nonhuman animal-persons) might fall. Philosophical arguments may do the most good when treated as if they were literary works of this kind, which often give more insight when read together rather than in conflict with one another. Seen in this light, there is again a plausible division of labor between different parts of Aboriginal communities: it is appropriate for Aboriginal political theorists and other academics to imagine ideals, as it is for novelists and storytellers to seek to open the political imagination, so long as these ideals are treated with some caution by those building self-determination on the ground in everyday ways. Whether or not this argument is correct, I do not believe that it diverges far from many of the main currents of Aboriginal political thought, which often focus on learning, adaptation, and unpredictability. Despite some of the more certain-sounding moments of text that I have drawn on, both Alfred and Christie are alive to the need

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for continued revision of traditional or purportedly traditional social practices as generations and contexts change. Many other Aboriginal scholars seem to have similar expectations. One of Henderson’s formulations of how utopian visions of the future should be understood seems to me to capture a common thread in this regard: [We] have to be patient toward all that is unresolved. We must approach our issues as visions that must be lived and conflicts that must be shared. Gradually each of us will live our issues into equitable solutions. A vision is right when it tends to preserve the integrity, stability, diversity and beauty of a place or ecology; it is wrong if it tends otherwise. . . . And so our visions demand our courage. We must breathe spiritual meaning into our daily lives and actions.79

It seems to me that this is best achieved when one does not hope to strategize for a future that is already known, but instead approaches political action with certain goals to be realized, an open imagination, and a spirit of experimentation. In conditions of persistent injustice, at least, it seems likely that more certain kinds of visions are likely to go further astray. 6.6 Experimentation and Uncertainty The central question of this chapter has been about normative responsibilities to future generations, and the ways in which these may be best met by Aboriginal peoples in the present day when articulating visions of a different social and political world. I have proposed reasons for hesitation about highly specified visions of the future, while accepting the importance of utopian visions in freeing the imagination from the grip of non-Aboriginal domination. In my view, visions should be deployed as imaginative tools for making vivid certain kinds of normative principles, political possibilities, models of a good life, and so on, but not as actual descriptions of a world that is expected to come about. They should instead spark the moral imagination and encourage political experimentation within the world as it is now known. The experiences of daily life will help to illuminate where possibilities for change are real and wise, and where they are not so. Political change will ultimately be the result of reiterated hard work by Aboriginal peoples and others, in some cases leading to new and surprising changes, and in others, to fine-tuned

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alterations to what already exists. The degree to which this model applies to others in conditions of persistent injustice is less clear, given the different histories and aspirations of Aboriginal groups compared to other communities (e.g., inner-city African American communities), but it may be fruitful for readers to mentally work through the axes of similarity and difference for their own purposes. Although I have focused on Aboriginal peoples and political change from conditions of persistent injustice in this chapter, it seems to me that similar kinds of concerns about the unpredictability of the future should apply to other forms of ideal theory as well, whether Rawlsian or otherwise. A “realistic utopia” (as Rawls sought to build) for future generations can be sketched out only by presuming a great deal about how political institutions now operate and can be made to operate after specific changes, and there are few reasons to believe that social science is up to the task. Unpredictable changes happen (e.g., in ecology or technology) that fundamentally shift fields of possibility, and future generations may shift their conceptions of a flourishing life in ways that we cannot now anticipate. Where institutions already work well, this suggests the need for a kind of watchful ethic of preservation, coupled with targeted efforts to respond to patterns of political failure or brutalization where they are recognized. Ideal theories may play a useful role here in making vivid certain kinds of principles, aspirations, or empirical expectations, but—if this argument is correct—they are likely to fare best when held relatively lightly, with an expectation that future people will make choices of their own that we do not foresee, so that our primary goal should be to ensure that they have such capacities. Often, this may mean that philosophical attention is best given to the evaluation of proximate political decisions and policy changes, rather than to distant future ideals: evaluation of the practices of actual institutions and the choices they make available or blockade, rather than of of how imagined institutions might function. The basic presumption of this chapter, and of the book as a whole, is that Aboriginal peoples and others facing conditions of persistent injustice are likely to have to do most of the work of improving their circumstances for themselves, since the rest of us will fail to carry out the work that our duties of justice require. I have sought to sketch out one understanding of how duties and permissions toward future generations can be balanced where utopian visions are concerned.

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This is, of course, only one possible answer, and many others are surely available. Even if one finds my particular answer implausible (as many will), the need for decisions about how these duties will be navigated remains. As with other chapters in the book, much of my goal has been to illustrate the existence of particular kinds of normative questions, and to show some ways in which they might be answered. Aboriginal readers and others may find my recommendations here deeply mistaken, and should draw on them only insofar as they seem appropriate. The relationship between permissions for political action and transformation of one’s own community is irrevocably deep here, and, for that reason, the arguments are necessarily more tentative, given the degree to which presumptions about psychology, institutional possibilities, experimentation, and so on are involved. Those who disagree should think in detail about what their preferred methods of envisioning the future presume instead, and what they risk or fail to risk by this approach. Whatever one’s views about the correct balances here, the implications for morally concerned non-Aboriginal persons seeking to make sense of Aboriginal political action seem much less tentative. At a minimum, the considerations outlined in this chapter suggest that there may be a range of understandable positions for how utopian one should seek to be in conditions of persistent injustice, and they help to illustrate the reasons why disagreements about matters of this kind may be unavoidable. It should not be surprising when those involved on the Aboriginal side disagree among themselves about how best to meet their obligations to those who are not yet born. This by itself makes it difficult to expect that there will be a single Aboriginal vision of the political future. The stakes here are high and real, and not everyone will be persuaded by any specific set of positions on this issue. In conditions of longstanding disadvantage, colonial blockages to social and political experimentation, and difficult questions about the scope of the possible, non-Aboriginal observers should not expect Aboriginal social actors to agree among themselves on what they are seeking to achieve in the near term or even over the very long term. This makes it very hard for them to answer clearly and honestly when those of us who are nonAboriginal ask “What exactly is it that you want?” Moreover, if the arguments I have made here are persuasive, then one should expect visions of the future to shift over time, even if

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everyone involved comes to agree on the appropriate approach to such visions: visions will vary over time, as well as across persons. This is an area in which we who are not Aboriginal must think seriously about our own expectations and social practices if we are to do justice (or something approaching it) to Aboriginal peoples over the longer term. Insisting on specificity and fixity may be reassuring, and it may feel as if we are calling carefully and reasonably for clear and transparent forms of political thinking. Often, however, we will be doing something else, either voluntarily or involuntarily. We will be asking Aboriginal peoples to predict what cannot in practice or in justice be predicted, in ways that we would not plausibly expect of ourselves or of our own political leaders.

Notes 1. James (Sákéj) Youngblood Henderson, “Postcolonial Indigenous Legal Consciousness,” Indigenous Law Journal 1 (2002), 1–56 at 53. I have omitted a sentence addressing specific legal recommendations to highlight his methodological claim about the importance of utopianism. 2. Henderson, “Postcolonial Legal Consciousness,” 53. 3. Henderson, “Postcolonial Legal Consciousness,” 30. 4. Henderson, “Postcolonial Legal Consciousness,” 14: “Eurocentrism and colonial thought still imprisons colonized Indigenous peoples and Indigenous lawyers. Eurocentric thought has dreamed imaginary societies that generate our cognitive prisons.” 5. Aboriginal scholars vary widely in their degree of trust in the sufficiency of Aboriginal traditions, at least as they are often portrayed. For at least partially deflationary views, see, e.g., Paul Chaat Smith, Everything You Know About Indians is Wrong (Minneapolis: University of Minnesota Press, 2009), e.g., 17–20 and 161–79; Scott Richard Lyons, X-Marks: Native Signatures of Assent (Minneapolis: University of Minnesota Press, 2010), e.g., ch 2; and Scott Richard Lyons, “Actually Existing Indian Nations: Modernity, Diversity, and the Future of Native American Studies,” American Indian Quarterly 35 (2011): 294–312. For uncertainties about the sufficiency of indigenous ecological knowledge, see, e.g., John Borrows, Recovering Canada: The Resurgence of Indigenous Law (Toronto: University of Toronto Press, 2002), e.g., 32–3. 6. Henderson, “Postcolonial Legal Consciousness,” 3.

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7. This phrasing is taken from Edmund Burke, Reflections on the Revolution in France (Indianapolis: Hackett Publishing, 1987), 83. I intend to signal only a concern with meaningfulness and social inheritance, not endorsement of Burke’s own broader views about justice. 8. Outsiders do, however, have permissions of their own to exercise noncoercive means of persuasion. Speaking strictly, then, people have claim rights to be free of coercion in exercising permissions to shape the character of their children, but not claim rights to be free of disruption by those who might provide other models of life that will attract those children, and so on. The specific lines of permissions versus claim rights could be worked out in greater detail here and elsewhere in the book, but these do not seem necessary for present purposes. 9. See the concern with ensuring that new citizens develop an appropriate conception of justice that matches the society in which they live in John Rawls, A Theory of Justice (Cambridge, MA: Harvard University Press, 1971), 490–504. As societies approach closer to justice, there are arguably fewer permissions for continued social experimentation, given the risks of undermining what already exists. Given ongoing technological and economic changes, of course, some experimentation would continue to be necessary in even the most just world, but one would presumably want to minimize this wherever possible. 10. See discussion of the “medical model” of intervening in African American communities in Tommie Shelby, Dark Ghettos: Injustice, Dissent, and Reform (Cambridge, MA: Belknap Press, 2016), 222, and more generally the vision of community-engaged reform in his book as a whole. 11. See, e.g., Janna Thompson, Intergenerational Justice: Rights and Responsibilities in an Intergenerational Polity (New York: Routledge, 2009), chs 8–11. Thompson draws in part on Rawls, Theory of Justice, 284–93. 12. The arguments of this chapter draw on elements of Burke A. Hendrix, “Where Should We Expect Social Change in Non-Ideal Theory?” Political Theory 41 (2013), 116–43. 13. Rawls, Theory of Justice, 7. 14. Justice as fairness “generalizes and carries to a higher level of abstraction the traditional idea of the social contract,” and is thereby addressed to individuals, even if Rawls later refers to “representatives” when using the formal device of the original position. Rawls, Theory of Justice, 3. See more broadly the view of political philosophy described in John Rawls, Lectures on the History of Political Philosophy (Cambridge, MA: Harvard University Press, 2007), 1.

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15. Rawls believed that systematization was necessary to overcome unhelpful forms of intuitionism. For a brief discussion of these aspirations, see, e.g., G. A. Cohen, Rescuing Justice and Equality (Cambridge, MA: Harvard University Press, 2008), 4–5. Cohen offers plausible grounds for rejecting this aspiration as misplaced, though his own alternative has difficulties of its own. 16. See, e.g., Rawls, Theory of Justice, 8–9. 17. The idea of a “realistic utopia” is most clearly laid out in John Rawls, The Law of Peoples (Cambridge, MA: Harvard University Press, 1999), 6–7, where the description is retroactively assigned to Theory of Justice as well. 18. Compare, e.g., the in-depth philosophical criticisms in Cohen, Rescuing Justice and Equality, with the detailed evaluations of specific Rawlsian ideas in Martin O’Neill and Thad Williamson, eds., Property-Owning Democracy: Rawls And Beyond (Malden, MA: Blackwell, 2012). For broader views of how Rawls’s work has been understood and used, see, e.g., Samuel Freeman, ed., The Cambridge Companion to Rawls (Cambridge: Cambridge University Press, 2002). 19. Cf. Henderson, “Postcolonial Legal Consciousness,” 4: In this [decolonizing] process, I look to teachings from the “Indigenous Humanities” of every continent for guidance. Comprehending “Indigenous Humanities” generates an alternative intellectual context capable of enhancing core values such as parity, freedom, justice, and human rights. Its fundamental premise is that at one time the entire human realm was Indigenous. 20. Pablo Gilabert distinguishes between political plans and political projects, with the latter conceptualized as more open-ended and subject to multiple forms of institutional realization. See Pablo Gilabert, “Justice and Feasibility: A Dynamic Approach,” in Michael Weber and Kevin Vallier, eds., Political Utopias: Contemporary Debates (Oxford: Oxford University Press, 2017), 95–126 at 116. In his terminology, a “project” refers to a basic normative conception of how we should appropriately respect one another, which emerges from protean and open-ended political visions as I describe them here. 21. Rawls, Theory of Justice, 9. For an argument that ideal theory is rarely helpful for comparative evaluations of actual social orders, see, e.g., Amartya Sen, “What Do We Want from A Theory of Justice?” Journal of Philosophy 103 (2006): 215–38. For an argument that Rawls’s methods for evaluating ideals profoundly confused two quite different issues, see Ben Laurence, “Constructivism, Strict Compliance, and

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22.

23.

24.

25.

26.

Strategies of Justice Realistic Utopianism,” Philosophy and Phenomenological Research 97 (2018): 433–53. Generating useful comparative tools in ideal theory is much harder than my brief discussion here can convey. David Wiens argues in favor of an “institutional failure approach” to nonideal theorizing. I have followed a similar approach throughout the book. See David Wiens, “Prescribing Institutions Without Ideal Theory,” Journal of Political Philosophy 20 (2012): 45–70. I draw the language of “navigational” ideal theory from Ben Jones, “The Challenges of Ideal Theory and Appeal of Secular Apocalyptic Thought,” European Journal of Political Theory (2017), online prepublication. The navigational interpretation of Rawls’ original argument is most clearly articulated in A. John Simmons, “Ideal and Nonideal Theory,” Philosophy and Public Affairs 38 (2010): 5–36. See especially his use of the metaphor of Mount Everest at 35. See also the discussion of ideal theory’s role in “orientation” in Gerald Gaus, Tyranny of the Ideal: Justice in a Diverse Society (Princeton: Princeton University Press, 2016), e.g., 40–1. One could argue, of course, that there are problems specific to non-Aboriginal society that make it difficult to formulate a plausible future ideal, perhaps because there are unresolved tensions at the very roots of Anglo-American or other European thought. For an examination of some possibilities, see, e.g., see Burke A. Hendrix, “The Political Dangers of Western Philosophical Approaches,” in Jose Antonio Lucero, Dale Turner, and Donna Lee Van Cott, eds., The Oxford Handbook of Indigenous Peoples’ Politics (Oxford: Oxford University Press, published online 2013). Sometimes these possibilities take on characteristics that make thinking about them especially difficult. See, e.g., Allen Buchanan, “Moral Status and Human Enhancement,” Philosophy and Public Affairs 37 (2009): 346-381; see also David Chalmers, “The Singularity: A Philosophical Analysis,” Journal of Consciousness Studies 17 (2010), 7–65 especially 30–7. Substantial rights of sovereignty or territorial jurisdiction for Aboriginal peoples are often seen by non-Aboriginal populations as threatening precisely because they seem to alter what dominant parties understand as the existing order of things. Aboriginal actors have good reasons to find this self-understanding perverse, given the longstanding character of their rights, but it seems to exist nonetheless. As recurrent reactions of this kind make clear, non-Aboriginal peoples are generally conservative about what seems familiar to them, and much less so about that which seems unfamiliar. It is thus a mistake to view political conflicts between Aboriginal and non-Aboriginal peoples as

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debates over something very broad such as “tradition” or “modernity.” For an attempt to systematize the notion of tradition, see, e.g., Kwame Gyekye, Tradition and Modernity: Philosophical Reflections on the African Experience (Oxford: Oxford University Press, 1997), 217–23. For arguments that the fixed nature of institutions is frequently overstated, see, e.g., Gerald Berk, Dennis Galvan, and Victoria Hattam, eds., Political Creativity: Reconfiguring Institutional Order and Change (Philadelphia: University of Pennsylvania Press, 2013), especially the editors’ introduction. A highly specified version of the Aboriginal future gives nonAboriginal populations a greater ability to begin to adapt their thinking and practices to the revised political and social order before it actually comes to exist. A relatively determinate vision also minimizes the potential for rhetorical invocations of particularly nightmarish conceptions, in which a change from the status quo is seen as mere anarchy or the “death of Western civilization” or other such overwrought fears. For an example of this rhetorical overreaction, see the section titled “Flight from Enlightenment,” in Brian Barry, Culture and Equality: An Egalitarian Critique of Multiculturalism (Cambridge, MA: Harvard University Press, 2001), 9–17 (which ironically accuses others of such overreactions). For an evaluation of Barry’s response to multiculturalism, see Jacob T. Levy, “Liberal Jacobinism,” Ethics 114 (2004): 318–36. It is perhaps telling that Vine Deloria Jr. began his writing career as a kind of humorist, writing in popular venues. This capacity to engage non-Aboriginal readers allowed him to reach a broader audience with Custer Died for Your Sins: An Indian Manifesto (New York: Collier Macmillan, 1969) and other work, which then gave him a basis for making many other arguments of increasing complexity and seriousness. John Borrows (Recovering Canada) is one of the most effective Aboriginal writers in this regard who writes in the vein of legal studies and political philosophy. His tone is often capacious, intended to make space for a North America that includes both settler societies and robust Aboriginal communities. It is interesting, in this regard, that he has recently begun working in a clearly literary genre as well, as a means of conveying the same ideas. See John Borrows (Kegedonce), Drawing Out Law: A Spirit’s Guide (Toronto: University of Toronto Press, 2010). Martin Luther King Jr., for example, relied rhetorically on some of the deepest sources within the American political tradition and within Christian history and theology to draw out a kind of story of normative

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inevitability: the great sources of American identity were, in their basic structure, always dedicated to the recognition of individual rights and citizen inclusion. Unfortunately, these are not easy rhetorical resources for Aboriginal peoples to draw on, since they generally uphold the dominance of American presumptions that were deeply imbricated with colonialism historically. See, e.g., David Temin, “Custer’s Sins: Vine Deloria Jr. and the Settler-Colonial Politics of Civic Inclusion,” Political Theory 46 (2018): 357–79. For one historical attempt to deploy deep American touchstones as a tool against colonialism, see, e.g., William Apess, “An Indian’s Looking-Glass for the White Man” and “Eulogy on King Philip” in On Our Own Ground: The Complete Writings of William Apess, a Pequot, ed. Barry O’Connell (Amherst: University of Massachusetts Press, 1992), 275–310. 32. For one of the more concise arguments of this form, see, e.g., Glen Coulthard, “Indigenous Peoples and the ‘Politics of Recognition’,” New Socialist 58 (2006), 9–12. For more extended versions of this argument that are more deeply anchored within theoretical literature on cultural recognition, see Glen Coulthard, “Subjects of Empire: Indigenous Peoples and the ‘Politics of Recognition’ in Canada,” Contemporary Political Theory 6 (2007): 437–60 and Glen Sean Coulthard, Red Skins, White Masks: Rejecting the Colonial Politics of Recognition (Minneapolis: University of Minnesota Press, 2014). See also Taiaiake Alfred, Wasáse: Indigenous Pathways to Action and Freedom (Peterborough: Broadview Press, 2005) and Taiaiake Alfred, Peace, Power, Righteousness (Oxford: Oxford University Press, 1999). Alfred has published two versions of the latter text. Unless indicated, I cite the original rather than the second edition. 33. Visions of this kind can be appealing for their clarity and openness in communication as well: if asked for a political alternative, it is difficult and grating to settle for less than full and frank speech. But that is not usually the motivation of those who seek strongly revised political visions. See, e.g., the intense rejection of fruitless engagements in Coulthard, Red Skins, White Masks. For a powerful argument that Aboriginal peoples must simply create futures on their own, without waiting for the reform of colonial states, see Leanne Simpson, Dancing on Our Turtle’s Back (Winnipeg: Arbeiter Ring Publishing, 2011), e.g., 17: “We need to be able to articulate in a clear manner our visions for the future, for living as Indigenous Peoples in contemporary times. . . . We need to do this on our own terms, without the sanction, permission or engagement of the state, western theory or the opinions of Canadians.” See even more strongly Leanne Betasamosake Simpson,

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As We Have Always Done: Indigenous Freedom Through Radical Resistance (Minneapolis: University of Minnesota Press, 2017). 34. There are aspects of Henderson’s work that point in this direction. See, e.g., “Postcolonial Legal Consciousness,” 13–14: Creating and rethinking a postcolonial legal order is our shared vision; getting past existing colonial thought is our actuality. . . . As our teachings reveal, we are not able to use our vision of a postcolonial legal order or society until after we have mapped and articulated the vision for people to see and visualize. 35. For a cogent application of some aspects of Rawlsian theory to Aboriginal rights issues, see Douglas Sanderson, “Overlapping Consensus, Legislative Reform, and the Indian Act,” in Patrick Macklem and Douglas Sanderson, eds., From Recognition to Reconciliation: Essays on the Constitutional Entrenchment of Aboriginal and Treaty Rights (Toronto: University of Toronto Press, 2016), 32–56. 36. It might be suggested that anarchism, by its very nature, cannot be put within the same category as Rawlsian ideal theory, since Rawlsian theory is focused on institutional structures and limits, while anarchism is opposed to most institutional structures. Yet this seems incorrect: defenses of anarchism that suggest that it leads to generally good normative results have the same structure as Rawlsian defenses of states, even if their conclusions are different. For a systematic discussion of different categories and elements within ideal and nonideal theory, see Alan Hamlin and Zofia Stemplowska, “Theory, Ideal Theory and the Theory of Ideals,” Political Studies Review 10 (2012): 48–62. For their characterization of anarchism, see footnote 11 at 61. 37. Alfred, Wasáse, 45. Alfred cites, as a work that illustrates the connections between many Aboriginal traditions and some strains of anarchism, Richard Day, “Who is This We That Gives the Gift? Native American Political Theory and the Western Tradition,” Critical Horizons 2 (2001): 173–201. 38. Anarchist theories need not reject legality. Anarchist theories instead reject conceptions of law that permit coercive enforcement, rather than enforcement through reason and habituation. See, e.g., Alfred, Peace, Power, Righteousness, 25. 39. Alfred rejects the notion of individual rights, for example, because it has a destructive effect on relationships. The problem is not with rights’ protection of autonomy, but with their tendency to divide individuals even when they are unavoidably interrelated. In this view, speaking in terms of “rights” falsifies the realities of human social relationships, even if the moral the aspirations behind this

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40.

41.

42.

43.

44.

45.

Strategies of Justice language are understandable. See, e.g., Alfred, Peace, Power, Righteousness, 140. For an argument that equal dignity is what matters normatively, rather than equal rights, see Menno Boldt, Surviving as Indians: The Challenge of Self-Government (Toronto: University of Toronto Press, 1993), 150–3. For an argument that human dignity can only be protected by noncoercion conceived in ways more robust than those usually associated with “rights,” see Simpson, As We Have Always Done, e.g., 7–8. For an argument against coercion as an organizing principle of politics with an illustration from gender practices, see Simpson, As We Have Always Done, ch 8. The legal structures of West Coast Aboriginal nations in Canada are probably the best documented of Aboriginal governance institutions in North America, given the requirements of Canadian courts that such documentation be provided in land claims adjudications. See, e.g., P. Dawn Mills, For Future Generations: Reconciling Gitxsan and Canadian Law (Saskatoon: Purich Publishing, 2008); Antonia Mills, Eagle Down Is Our Law: Witsuwit’en Law, Feasts and Land Claims (Vancouver: UBC Press, 1995); and Antonia Mills, ed., Hang on to These Words: Johnny David’s Delgamuukw Testimony (Toronto: University of Toronto Press, 2005). For a detailed analysis of one legal tradition, see Valerie Ruth Napoleon, Ayook: Gitksan Legal Order, Law, and Legal Theory (PhD Thesis, University of Victoria, Faculty of Law, 2001). For a discussion of methods for rendering these legal systems transparent to outsiders (as well as more transparent for insiders), see, e.g., Hadley Friedland and Val Napoleon, “Gathering the Threads: Developing a Methodology for Researching and Rebuilding Indigenous Legal Traditions,” Lakehead Law Journal 1 (2015–2016): 16–44. I have argued for experimentation of this kind elsewhere, though on different grounds. See Burke A. Hendrix, Ownership, Authority, and Self-Determination: Moral Principles and Indigenous Rights Claims (College Park: Penn State University Press, 2008), 173–80. For a detailed account of the relationship between longstanding Anishinaabe values and less-coercive political practices, see, e.g., Leanne Simpson, Dancing on Our Turtle’s Back. To reach political goals that are relatively distant from existing political practice, it may often be necessary to take circuitous and surprising routes. This is often referred to as the “problem of the second best.” See Robert E. Goodin, “Political Ideals and Political Practice,” British Journal of Political Science 25 (1995): 37–56 at 46–55. There are reasons to think that the dominant position of nonAboriginal populations is made more likely by the economic and

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47.

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other social institutions that have historically created such damage to Aboriginal communities. It is quite possible, for example, that the economic systems of settler societies are reliably more productive than those favored by many Aboriginal peoples, even if these systems fare much less well in their treatment of vulnerable members. Capacity to exercise power and institutional justice need not be related to one another, though we have obvious reasons to hope that they are. See, e.g., the discussion of capitalism as a necessary but normatively troubling social system in Joseph Heath, “Ideal Theory in an Nth-Best World: The Case of Pauper Labor,” Journal of Global Ethics 9 (2013): 159–72. Many Aboriginal scholars and activists reject Heath’s claim about the necessity of capitalism. See, e.g., Simpson, As We Have Always Done, 17 and ch 5, where it is viewed as inextricably linked to other patterns of domination. It is unclear what precisely Simpson’s preferred alternative looks like, though it seems to retain substantial space for home businesses and, therefore, presumably markets. If the term justice refers to the best set of social practices that it is possible to bring about in the world as we know it, it may make sense to use the term for more limited ideals that stand a good chance of being achieved. For an argument that using the terminology of justice in this way concedes too much to the world as we know it, however, see, e.g., Lisa Tessman, “Idealizing Morality,” Hypatia 25 (2010): 797–824. Henderson, “Postcolonial Legal Consciousness,” 23 notes that “Among the Plains Indians, the rite of the black stem pipe is used in times of distress. Indigenous lawyers have learned to live as legal warriors, as a black stem pipe society. . . . We live in a time of the black stem sensibilities.” Given the long-standing social practices of non-Aboriginal societies, it is quite possible that “black stem pipe societies” must remain a permanent feature of Aboriginal political life, even far into the future. Highly developed portraits of ideal social institutions are often not very effective in ranking the relative priority of the elements within them because their coherence in a single scheme tells us little about secondbest solutions when any given part of that scheme is missing. For a discussion of the problem of the “second best” more generally, see Goodin, “Political Ideals and Political Practice.” For a defense of comparative evaluation where questions of justice are concerned, and its frequent superiority to styles of argument that seek a single best ideal, see Sen, “What Do We Want from A Theory of Justice?” Visions of a vastly better future can also lead one to overlook social changes that are necessary within Aboriginal communities themselves, by promising that all will be ideal once self-determination or something

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else is achieved. See vividly Val Napoleon, “Aboriginal Discourse: Gender, Identity, and Community,” in Benjamin J. Richardson, Shin Imai, and Kent McNeil, eds., Indigenous Peoples and the Law: Comparative and Critical Perspectives (Portland: Hart Publishing, 2009), 233–55 at 233–4. 50. Within debates about ideal and nonideal theory, John Simmons (“Ideal and Nonideal Theory”) has argued that multiple academic fields must work together in devising and strategizing toward a future ideal social order. My own response to Simmons’s argument is found in Hendrix, “Where Should We Expect Social Change,” 131. 51. There also is a danger that such visions can become a kind of political orthodoxy, in which those who dissent from them are seen as simply acceding to colonialism with no resistance whatsoever. There are elements of this in Alfred’s work. See, e.g., his discussion of the Native Women’s Association of Canada in Peace, Power, Righteousness: An Indigenous Manifesto (Second Edition) (Oxford: Oxford University Press, 2009), 55: Those who challenge the status and style of the entrenched elite may do so on a moral basis, as the Native Women’s Association of Canada (NWAC) did during the 1992 negotiations to revise Canada’s Constitution, when they were excluded by the Assembly of First Nations (AFN). But they lack an indigenous philosophical base. And without solid grounding in traditional values, such critical opposition is incapable of asserting indigenous rights; it becomes just a lever for those who want to replace the entrenched leaders and wield power for themselves, still within a non-indigenous framework. As phrased, this suggests both that no legitimate moral claims can exist outside of an indigenous framework, and that NWAC was merely the dupe of other power-seeking political actors. Both arguments seem implausible. These elements of problematic orthodoxy are uneven throughout Alfred’s work, however, and many revisions to this second edition suggest increased wariness about such claims of automatic cooptation. 52. See, e.g., Alfred’s interesting interview with a Mohawk representative to international institutions in Peace, Power, Righteousness (Second Edition), 133–8, which moves across multiple ways of conceptualizing self-determination. See also self-determination conceptualized as a kind of refusal to be determined by others—including in the concept’s meaning itself—in Audra Simpson, Mohawk Interruptus: Political Life Across the Borders of Settler States (Durham: Duke University Press, 2014).

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53. Rawls and his intellectual descendants have referred to these matters as “ideas of the good,” which go deeper than equitable and mutually protective principles of justice to basic claims about what makes life worth living. Rawls argued that an ideal theory of justice should aim to be neutral about such matters, while giving priority to equal protection of rights. See, e.g., John Rawls, “The Priority of Right and Ideas of the Good,” Philosophy and Public Affairs 17 (1988): 251–76. If we do in fact have knowledge about the conditions of human flourishing, however, it is hard to say why this should not be instantiated in the character of social order, especially since there are reasons to doubt that meaningful neutrality can be secured here in strong ways in any case. 54. By the language of “from the outside,” I intend reference to Will Kymlicka, Multicultural Citizenship (Oxford: Oxford University Press, 1995), 81: “The first [precondition for living a good life] is that we lead our life from the inside, in accordance with our beliefs about what gives value to life.” For a further exploration of this notion, with some variations beyond the views Kymlicka expresses, see Andrew M. Robinson, Multiculturalism and the Foundations of Meaningful Life: Reconciling Autonomy, Identity, and Community (Vancouver: UBC Press, 2007). 55. For a powerful argument about the importance of the future to our capacity to find meaning in life, see Samuel Scheffler, Death and the Afterlife (Oxford: Oxford University Press, 2013), Lecture I. Scheffler asks how our lives would be different if we knew that all human life would be extinguished thirty days after our deaths, no matter what choices we make. Scheffler argues that many of our projects would lose meaning to us because they are inherently transgenerational, in seeking to protect things we authentically value across the span of multiple human lives. If this argument about the pervasiveness of intergenerational projects correct—as I believe it is—the agony of political choice for many Aboriginal peoples should be clear: many individuals fear that no one will remain to carry on the intergenerational projects intended to protect things of authentic value, but that these will instead be buried under the aggressions of colonial forces. In a profound sense, the human goods long sustained by themselves and their ancestors will be expunged without later descendants to carry them on. See, e.g., the focus on intergenerational relationships in Simpson, As We Have Always Done, e.g., 7–8. See also Thompson, Intergenerational Justice, chs 4–5, and Rawls, Theory of Justice, 522–5. 56. Many Aboriginal individuals have voluntarily sacrificed more than strict morality required of them for the good of those who will come

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57.

58.

59.

60.

Strategies of Justice after, both currently and in the past. These past sacrifices were sometimes made in what now seem mistaken ways, but that does not invalidate the profound efforts made by these earlier people. Colonialism’s history created many bad choices that no one could have hoped to navigate well. For one attempt to think about the positive features of these choices, see, e.g., Lyons, X-Marks, 2–3. See also Thompson, Intergenerational Justice, chs 5 and 7. Liberal practices must do more than simply “protecting” individual freedom, since they must socialize individuals into the basic principles of the society, as well as into whatever principles of shared social practice are necessary to social stability more broadly. Liberal theorists generally hope that such socialization can occur primarily through attachment to the principles around them, but recognize that more interventionist ways of shaping individuals may also be needed. See, e.g., Rawls, Theory of Justice, ch 8. Whatever might be empirically possible in the best conditions, actually existing liberal societies tend to exercise substantial control over the young, and often adults as well, in seeking to produce the desired kind of social order. Gordon Christie, “Law, Theory, and Aboriginal Peoples,” Indigenous Law Journal 2 (2003): 67–115 at 91; emphasis added. See relatedly the image of liberalism as a snare in Gordon Christie, “Culture, SelfDetermination and Colonialism: Issues Around the Revitalization of Indigenous Legal Traditions,” Indigenous Law Journal 6 (2007): 13–29 and the portrait of community socialization and deep agreement in Gordon Christie, “Obligations, Decolonization and Indigenous Rights to Governance,” Canadian Journal of Law & Jurisprudence XXVII (2014): 259–82 at 279–81. Christie defends the importance of rights to exit from Aboriginal communities, on the ground that those who do not accept the value of Aboriginal traditions have failed to recognize that which is objectively good, so that their exit should be viewed with sadness, as indicating individuals with impaired capacities to recognize the needs of human flourishing. See Christie, “Law, Theory, and Aboriginal Peoples,” 111 at footnote 118: “An Aboriginal community would likely not stop an attempt at exiting, but not because they saw value in a right to exit, but because they would find the individual lacking in moral sense.” At the same time, however, see the description of disagreement within actually existing Aboriginal communities in Christie, “Culture, Self-Determination, and Colonialism,” 21–2. See, e.g., the discussion of ancestors and descendants in Christie, “Law, Theory, and Aboriginal Peoples,” 113. Christie (e.g., 113–14) combines concerns about intrinsic flourishing with concerns about maintaining

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61.

62.

63.

64.

65. 66.

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the conditions for a separate Aboriginal identity, which operates on a substantially different normative axis than concerns about flourishing as such. Christie also addresses future generations in “Culture, SelfDetermination, and Colonialism,” e.g., 22–8. There is more overlap between the visions of Christie and Alfred than can be indicated here, though these overlaps are somewhat asymmetrical—Alfred seems to endorse most forms of Aboriginal tradition more strongly than Christie endorses anarchism. Many Aboriginal traditions might themselves warn against long-term visions of this sort. Many traditions focus on the need for continued negotiation among varying communities, for example, on the unpredictability of the world and its deep tendency toward change, and on the importance of remaining intellectually open to the world’s capacity for surprise. See, e.g., Vine Deloria, The World We Used to Live In: Remembering the Powers of the Medicine Men (Boulder: Fulcrum Press, 2006), ch 8. Anishinaabe philosophies, in particular, often give a great deal of attention to this kind of flexibility. See, e.g., Lyons, XMarks; Borrows, Drawing Out Law; Simpson, As We Have Always Done; Gerald Vizenor, Fugitive Poses: Native American Indian Scenes of Absence and Presence (Lincoln: Nebraska University Press, 1998); and Jill Doerfler, Niigaanwewidam James Sinclair, and Heidi Kiiwetinepinesiik Stark, eds., Centering Anishinaabeg Studies: Understanding the World Through Stories (Lansing: Michigan State University Press, 2013). For a discussion of the appropriateness of strategic assertions about the character of “law” and its content, see Gordon Christie, “Indigenous Legal Theory: Some Initial Considerations,” in Benjamin J. Richardson, Shin Imai, and Kent McNeil, eds., Indigenous Peoples and the Law: Comparative and Critical Perspectives, (Portland: Hart Publishing, 2009), 195–231 at 209–10. For worries about the dangers posed by claims about the “timelessness” of Aboriginal cultures, see, e.g., John Borrows, Freedom and Indigenous Constitutionalism (Toronto: University of Toronto Press, 2016), 3–12. Borrows’ work falls within a broader Anishinaabe tradition of focusing on change and unpredictability as central to human life. Christie acknowledges the difficulty of this task in “Law, Theory, and Aboriginal Peoples,” 114–15. While a great deal of ecological and other traditional knowledge seems to rest on solid epistemic foundations, there are reasons to expect epistemic limits in at least some spots, particularly those dealing with meta-scientific methods. Most traditional knowledge was created through patterns of long-term social experimentation, often with high

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67. 68.

69.

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Strategies of Justice social stakes for knowledge failure, so that there are reasons to expect it to be broadly accurate for the conditions under which it was created. However, the same long-term experimental methodologies may not allow for swift forms of retesting when conditions change. For work on Aboriginal ecological knowledge and its role in contemporary management practices, see, e.g., Kyle Powys Whyte, “What Do Indigenous Knowledges Do for Indigenous Peoples?” in Melissa K. Nelson and Dan Shilling, eds., Traditional Ecological Knowledge: Learning from Indigenous Methods for Environmental Sustainability (Cambridge: Cambridge University Press, 2018), 57–84 . See also, e.g., Kyle Powys Whyte, Chris Caldwell, and Marie Schaefer, “Indigenous Lessons about Sustainability Are Not Just for ‘All Humanity’,” in Julie Sze, ed., Approaches to Environmental Justice and Social Power (New York: NYU Press, 2018), 149–79 . Whyte’s work as a whole focuses on questions of Traditional Ecological Knowledge and its relation to Aboriginal methods of inquiry and governance from the perspective of both theory and practice. Christie, “Culture, Self-Determination, and Colonialism,” e.g., 17–18. Though some aspects of knowledge may be harder to fragment than others. For an empirical inquiry into the persistence of traditional knowledge across patterns of social change, see Kyle Powys Whyte and Nicholas Reo, “Hunting and Morality as Elements of Traditional Ecological Knowledge,” Human Ecology 40 (2012): 15–27. The authors rightly note that normative traditions usually entail patterns of flexibility and resiliency that can fit easily with multiple technological or organizational formations. In the United States, the term boarding school is generally used to refer to schools off-reservation that were intended to foster strong forms of assimilation. In Canada, the term residential schools is generally used instead. Other forms of colonial damage may have been less direct. See, e.g., Henderson, “Postcolonial Legal Consciousness,” 16: Eurocentric education forces Indigenous peoples to live according to imposed Eurocentric scripts . . . We live most of our life in someone else’s dream world . . . We resist imitation of these colonial scripts, but we are partially complicit in maintaining them even as we seek to change them.

71. There are several intellectual levels at which Aboriginal conceptions might have been impacted by colonial ideas. Non-Aboriginal conceptions of epistemology, ontology, and scientific judgment structure the broader intellectual world in which Aboriginal peoples live, and each of

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these can have potentially important ramifications for understanding Aboriginal traditions. I have sought to consider the implications of these distinctive locations of colonial influence in Hendrix, “The Political Dangers of Western Philosophical Approaches,” though this inquiry has less depth and nuance than I now wish that it did. 72. Paul Chaat Smith (Everything You Know About Indians, 173) notes that his Comanche ancestors were often extraordinarily dangerous toward those who were not Comanche: On good days, my ancestors were some of the finest people you would ever meet: generous and friendly and fun to be around, especially at parties. But we also were world class barbarians, a people who for a hundred and fifty years really did all that murdering and kidnaping and burning and looting, against Mexicans, Apaches, Utes, Pawnees, Pueblos, Americans, Poncas, Tonkawas, well, yes, pretty much anyone in our time zone. Smith is characteristically playful here, but his basic description seems intended as literal rather than ironic. Smith seems unwilling to blame the acts of his ancestors on colonial tendencies imported from elsewhere: these were instead authentically Comanche practices of conquest. 73. For example, Christie is sensitive to the difficulty of recovering longstanding Aboriginal legal principles for many communities, given the damages of colonialism. See, e.g., Christie, “Culture, SelfDetermination and Colonialism,” 17–18. 74. See Christie’s discussion of liberalism’s overvaluation of individual choice in “Law, Theory, and Aboriginal Peoples.” See also, e.g., the worries about liberalism as an intellectual frame in Borrows, Freedom and Indigenous Constitutionalism, 47. Borrows’s broader project can be read as an attempt to defend practices of freedom without confining these practices to those currently used by self-understood “liberal” states. Of course, one could frame Borrows’s work as a search for new social mechanisms to achieve broadly liberal ends. See also Boldt, Surviving as Indians, 150–3. 75. Both countries exert a great deal of institutional force (e.g., through educational institutions) to shape their rising generations according to nationalistic and cultural-uniformity templates that have little to do with the aspirations of liberal theory itself. See, e.g., the discussion of state projects of nation-building in Kymlicka, Multicultural Citizenship. When liberal practices are examined closely, they tend to fall short of liberal aspirations in predictable ways. In general, I agree with Claude Denis, We Are Not You: First Nations and Canadian

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76. 77.

78.

79. 80.

Strategies of Justice Modernity (Peterborough: Broadview Press 1997), 152: “Liberal ideology is, in some sense, the West at its best – the West as it likes to dream itself. . . . But liberal ideology is not, by any means, an accurate description of life anywhere on this planet.” See the discussion of these elements in Christie, “Law, Theory, and Aboriginal Peoples,” 58. A thick field of non-Aboriginal influences is surely consistent with deep and meaningful engagement with Aboriginal traditions. For a richly descriptive and irony-sensitive account, see the introduction in Lyons, X-Marks. John Borrows, for example, has argued that Aboriginal law must eventually be extended to non-Aboriginal peoples in many instances, both as a way of respecting Aboriginal peoples and to ensure that nonAboriginal lives go better. See, e.g., Borrows, Recovering Canada, chs 1 and 6. Henderson, “Postcolonial Legal Consciousness,” 56. The title of Faye Ginsburg and Fred Myers’s article “A History of Aboriginal Futures,” Critique of Anthropology 26 (2006): 26–45) is usefully evocative, and it reminds us that visions of the future themselves change through time. The future we arrive at is virtually never the future that was predicted and imagined, and it will often be fruitful to see how such patterns of imagining have shifted and flexed over time.

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CHAPTER 7 Conclusion: Political Philosophy and Political Change

This book began through engagement with the work of Anishinaabe philosopher Dale Turner. Turner argues that Aboriginal intellectuals must act as “word warriors” in their struggle with the institutions of Canada and the United States, training themselves for a kind of political combat with institutions that retain many features of their earlier colonial legacies. Because the non-Aboriginal political, intellectual, and social institutions that hold in place patterns of persistent injustice require careful navigation and strategic evaluation for areas of possibility and threat, word warriors must act with a careful sense of what they are up against, often training themselves in non-Aboriginal politics, law, and philosophy to better compete in the “Olympic language games” that structure their range of political action.1 Strategic success often requires skills and orientations that would not be necessary in other conditions, as well as a careful understanding of how to use these to best effect and least danger: The knowledge and skills required to participate in the legal and political discourse of Aboriginal rights in Canada are now, for better or worse, a significant part of Aboriginal life . . . [I]f Aboriginal peoples want to survive as distinct political communities, they will need to use these intellectually imposed landscapes more effectively.2

The political environment to which Aboriginal people must respond has been constructed by others, and it does not respond easily or quickly to deliberative calls for change. Rather, it must be navigated instead, despite the distaste associated with doing so. “This imperative

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may be unjust,” Turner argues, “but our survival as independent and self-determining nations demands that we bow to it.”3 Turner’s work sets a particular kind of framework for investigating politics: one that approaches political power from the bottom up, with the expectation that many aspects of social and political life must be navigated rather than easily changed. It presumes that persistent injustice will not vanish simply by naming it as injustice or describing its details in clear ways, because powerful social structures and the intellectual presumptions associated with them make such change difficult. Instead, change will occur only through carefully strategic action that seeks to use political leverage where it is found, and prepares in advance for opportunities that may arise. For Turner, Aboriginal political action must be set within a long-term colonial context, in which countries such as the United States and Canada continue many policies and practice associated with earlier patterns of overt brutality and neglect. Political action in these conditions is not easy, and is sometimes painful and humiliating, but it is necessary nonetheless. This basic portrayal seems to me true of many political circumstances beyond those of Aboriginal peoples, as well, and something that is deserving of greater analytical attention than it has generally received within Anglo-American political thought. Thus, the arguments of the previous chapters have sought to outline some of the difficult choices that persistent injustice may require of those who face it and some of the normative permissions that those in such conditions hold.

7.1 Permissions and Their Exercise The portrait of political life that emerges from the inquiry of this book is rather distant from that often found in Anglo-American works of ideal theory, or even within most forms of nonideal theory (see Chapter 2). This is not a world in which freely contracting individuals come together to shape their common future on terms equal to all, or in which normative inquiry is focused primarily on detailed evaluation of the institutions that we might desire if we were beginning the world anew.4 As I noted in Chapter 2, there is a tendency for Anglo-American normative philosophy to take the imagined position of social architect, speaking either to the already powerful or to “ordinary citizens” who are expected to act as they

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should to bring about a more just world. But often, and predictably, those who are already powerful choose not to act, and ordinary citizens (those who are not experiencing profound injustices themselves) are often more interested in their own lives than in the conditions of those who suffer under existing arrangements. Both groups are likely to see existing institutions as essentially just, even when detailed examination would show otherwise. In these conditions, ideal theorizations of politics often fall on mostly deaf ears, while those who directly face injustices continue to struggle against them with little philosophical assistance or attention to the difficult decisions that they often must make. I have argued that evaluation of the choices ethically available to those undertaking political action in conditions of persistent injustice constitutes a distinctive area of normative inquiry in its own right. Those who face conditions of persistent injustice, I have argued, seem to have distinctive normative permissions that other individuals lack. I have sought to outline some of the permissions that exist in these conditions, while also seeking to evaluate some of their limits. These include permissions for deeply strategic and sometimes straightforwardly deceptive speech within deliberative forums, when necessary to better approximate fair deliberation or to protect essential moral interests in conditions of discursive domination (Chapter 3); permissions to violate existing law through circumvention or nullification (Chapter 4); permissions to pursue self-help before aiding other groups who also face injustices, even for actions that may collaterally worsen the condition of those others (Chapter 5); and permissions to extended forms of political experimentation in shaping the fate of future generations (Chapter 6). Each of these permissions might be challenged on multiple grounds, or my particular interpretations of them rejected, or their limits located more or less broadly, and so on. Yet it seems to me that permissions of this basic character must exist, even if their details turn out to differ from the present interpretation. The set of permissions described in the book, of course, is not expected to be exhaustive. Investigation of further aspects of Aboriginal political life would likely spotlight further permissions, whereas examination of other instances of persistent injustice might show a further set. According to Tommie Shelby, for example, the condition of many inner-city African American communities in the present justifies

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permissions to avoid paid work,5 while recent work on Booker T. Washington’s role in the Jim Crow South provides rich terrain for further philosophical analysis of political action under extraordinarily restrictive conditions that (thankfully) have no parallel in the present.6 At the same time, attempts to evaluate permissions across a broad range of circumstances in a comparative way should be treated with caution, as it is likely to result in somewhat shallow evaluations. Often more may be gained by detailed investigations of particular political contexts than by the more abstracted overviews. The dangers of excessive generalization exist most clearly for ethical evaluation of political action in the broader sense, where it concerns the ways of being in the world of those who currently experience persistent injustice. As I noted in Chapter 2, careful attention to the political opportunity structures in which choices must be made can sensitize us to potential avenues of cooptation, or self-delusion, or disproportionate self-interest, or other kinds of unwelcome political outcomes. Dominant social institutions are always likely to exert a kind of gravitational pull to draw those who interact with them into their orbit, and where those institutions instantiate injustice, they are likely to pull Aboriginal leaders and others into their flawed practices, expectations, discursive patterns, and so on. An investigation of the ethics of political action cannot easily neglect evaluation of these kinds of dangers or other ways in which political action may transform those who engage in it—whether for good or ill—since these ultimately matter to the cause of justice also. At the same time, I have argued that a recognition of permissions to engage in certain kinds of action (e.g., deception or illegality) can often make problematic transformations less likely, by facilitating greater moral clarity about the ultimate goals that political action pursues. This may not be true in all political opportunity structures, however; one will be able to evaluate the dangers only with careful attention to differing social contexts. To think that particular strategies have the same effects on those who undertake them in all conditions (as, e.g., Gandhi believed about untrue speech) seems likely to mislead. There is thus a great deal of space for nuanced investigations, rather than seeking too quickly for thin generality. The need for focused evaluation of specific contexts is perhaps most obvious where deliberative engagement with those actually suffering from persistent injustice is concerned. Despite my efforts

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to be transparent, some aspects of this book may have seemed either unhelpful for readers coming to the book from Aboriginal Studies or insufficiently rich in detail, given their relatively schematic character. It is easy for experiences of political action to be occluded by analytical categories or theoretical constructions, such that Aboriginal peoples and others who directly experience the brutalities of persistent injustice do not feel welcomed into the conversations that concern them. I have sought to keep the discussion in this book accessible and useful to multiple audiences, but this is never easy to achieve. In seeking to bridge two academic fields with quite different patterns of discourse (Anglo-American philosophy and Aboriginal Studies), this book has already often entered into an imperfect middle zone in which neither side is likely to be satisfied with the character of the conversation. Yet there seems no way to avoid works of this difficult bridging kind if one seeks to take the realities of persistent injustice seriously. Anglo-American philosophers cannot begin to gain a sense of the realities and textures of specific instances of persistent injustice without engagement with those who experience it—in this case Aboriginal peoples—so that work which seeks to avoid such translational difficulties in the interest of philosophical generality is likely to render itself both dialogically disrespectful and normatively inaccurate. If this is correct, it may represent an additional reason to be wary of ideal theory’s frequent intellectual charms: they may occlude the deep engagement necessary to actually investigate and evaluate responses to injustice in the world as we know it. Put differently: where the lives of Aboriginal peoples are involved, having a conversation about injustice that does not invite their participation seems profoundly likely to go astray. If the latter seems true of the current work, I encourage readers to imagine how such an inquiry might be done more effectively, and to think about how this might structure future normative work.

7.2 Political Theory and Political Change Before concluding, I want to consider one final set of objections to the book’s basic inquiry: that of harmful deflationism and underdemandingness. Throughout the book, I have described a political

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world that remains relatively inflexible, in which non-Aboriginal peoples do not renounce in strong ways their socially dominating position. I have focused generally on political changes that are likely to improve the functioning of self-governing Aboriginal political units, without describing fundamental revisions to the basic structures that limit the scope of Aboriginal political action, and without presuming a fundamental end to the basic social order created by centuries of colonialism. The book’s examples have focused largely on reforms intended to make a system of self-determining Aboriginal political units function better, as with the creation of more satisfactory regimes of land rights in the Canadian case, or the reform of criminal law in the American case, or the increase of selfgovernment in both. Moreover, Chapter 6 argued for a careful treatment of utopian visions and focused on the value of self-determination as a protean goal that can be pursued in shifting ways as politics changes, hopefully for the better, but more likely under the continual shadow of settler state structures. In other words, I have presumed throughout that Aboriginal political action will remain difficult for a substantial time into the future, and that achievable forms of justice are likely to retain many commonalities with the present, even if they may change in surprising directions as well. The book has focused on specific patterns of injustice in part because this has made exposition easier, but also because it is often easier to recognize how to overcome injustices within specific policy or institutional areas, rather than overall. Insofar as I have put forward a generalized ideal, it has been the highly protean goal of self-determination. Although the language of self-determination has been historically associated with independence movements in the states of Africa and elsewhere, this language does not entail anything so fixed within Aboriginal political discourse. Rather, it focuses on opening space for choice by Aboriginal peoples on their own political terms, without being treated merely as subordinate subjects by the political structures now ruling them. As I noted in Chapter 6, this is a self-consciously open-ended conception, which expects that changes in goals and substantial institutional experimentation will occur over time. It is consistent with a great deal of interdependence between Aboriginal and non-Aboriginal communities, and with substantial permeability in the boundaries of community membership.7

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My presumption—given the centrality of political opportunity structures for political action—is that future possibilities will have to grow out of existing arrangements, in ways that may shift them in surprising directions but which nonetheless must work from what now exists. Aboriginal self-determination in the United States is more developed both legally and practically than are analogous policies in Canada, and some aspects of the American model will presumably serve as guideposts for some Canadian reforms moving forward.8 Aboriginal nations in the United States are recognized to have retained forms of inherent sovereignty in law, while, in practical policy, much of the day-to-day governance of Aboriginal communities comes through self-determination compacts between tribes and the Federal government. Aboriginal communities are part of dense networks of governance with Federal agencies (e.g., the Environmental Protection Agency) that spreads their influence wider than formally acknowledged reservation boundaries and, thereby, opens up the future prospect of broad consultative arrangements across many aspects of Aboriginal lives.9 The current system nonetheless retains profound and persisting problems, including the staggering failures of criminal law jurisdiction outlined in Chapter 4, and the tendency of Federal agencies to disregard Aboriginal moral interests when resources—especially extractable resources such as oil—are at stake. States, too, are deeply imbricated with daily Aboriginal governance, and their actions are sometimes more directly aggressive than those of the Federal government.10 Given this complex institutional background, it seems to me that time and energy are best spent on repairing specific kinds of failures, in ways that allow continued experimentation and bootstrapping toward a more just system over the long term. Aboriginal peoples under Canadian law and legislation will face different constellations of possibility and injustice, but I presume that future options will emerge along roughly similar lines. This portrait presumes that future arrangements will grow out of present arrangements, so that they will retain many features of the current world, with revisions happening primarily where Aboriginal peoples themselves work to bring them about. I have presumed that non-Aboriginal peoples are unlikely to do a great deal to facilitate this process, even if they sometimes go along with incremental Aboriginal proposals. For readers approaching this topic from Anglo-American political philosophy, this set of presumptions about the degree to which

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current patterns will continue to constrict future possibilities may seem to expect too little of normative argumentation. The world, after all, is always shifting, and some past changes have been quite sudden. Non-Aboriginal political philosophy has traditionally seen one of its basic roles as the systematic creation of alternate forms of possible social organization, along with the deliberative presentation of these forms to students, legislators, and ordinary citizens as options for them to consider within the unpredictable flux of the “marketplace of ideas.”11 To fulfill the social role of political philosophy well, one might hold that we should seek to design potential institutions for the future and take nothing for granted about the social world in the meantime, to open up the greatest range of deliberation about how the future should be shaped. Focusing on the political choices now available to specific political actors, and presuming that something like their current condition will continue to exist for an extended time, may seem to concede too much to the political world as it now exists. Perhaps, one might say, the set of political permissions I have described exists in the present, but intense theoretical argumentation should be able to persuade nonAboriginal populations to do better, so that the primary focus of philosophical works should lie in exhorting them to higher standards through compelling works of ideal theory. I acknowledge that the world perpetually continues to change and that ideal theories sometimes have played a central role in those changes (as e.g., with the role of ideas in the French and Russian Revolutions). I thus do not want to dismiss the potential causal power of transformative ideals, either in general or in the specific case of the relationships between Aboriginal peoples and the states that surround and currently claim authority over them. At least where Aboriginal lives are concerned, however, the changes wrought by the erstwhile ideal theories of non-Aboriginal people have not always been positive; indeed, in some cases, they have been devastating to those communities, as with past American policies of Allotment and Termination of Aboriginal lands and communities.12 The Anglo-American ideal theories that exist in relation to Aboriginal rights in the present day are, moreover, largely the product of theorizing about what has already arisen through political action by Aboriginal peoples and others in similar conditions, rather than portraits derived by reasoning from more speculative styles of

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philosophy. My sense, then, is that it is more fruitful to focus on improvements from where we are now than to aim for new philosophical tools that will persuade non-Aboriginal populations to behave in fundamentally different ways. My reading of history suggests that they are unlikely to follow such ideals as hoped, and that such visions are easily coopted or misapplied into harmful directions. In this light, it seems to me unwise to expect too much about the good that ideal theories oriented toward non-Aboriginal populations might do. Others, of course, may reasonably disagree. For readers approaching these topics from Aboriginal Studies, the book’s arguments may appear overly deflationary from a different direction: about what continued Aboriginal political action can expect to create in the future. The arguments of Chapter 6 are especially likely to be a topic of such concern. While earlier chapters focused primarily on the constraining political contexts set by nonAboriginal institutions and ideas, this chapter turned to Aboriginal utopian visions and to the role of imagination in achieving future justice. I have argued throughout the book that political possibilities will usually be constrained by existing social structures and fields of institutional possibility, and in Chapter 6 argued that clear visions of what the future should hold ought to be treated with a great deal of caution. The argument is not that theories aiming for a much different world are problematic in all circumstances, but only that they are dangerous if taken as anything stronger than visions intended to open up the imagination. I argued that these visions may often fare best when regarded as something like literary works, or even when presented explicitly in that form, rather than as blueprints for the future and roadmaps for how to reach it. I certainly understand if readers approaching this book from Aboriginal Studies or an Aboriginal philosophical perspective want to reject this argument in favor of theories of ideal social order intended to serve as literal guides to action and strategy. The arguments of Chapter 6 that such ideals can misfire are empirical claims, and one might reasonably regard them as mistaken, or as outweighed by concerns of another kind (e.g., moral clarity). Perhaps most pressingly, one might argue that a defense of fuzzy visions is dangerously convenient for non-Aboriginal peoples: if no profound alternatives to the current political order are described as requirements of justice to be achieved, then non-Aboriginal peoples can easily avoid

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actually having to do anything. Avoiding engagement with real alternatives can often be an effective way to avoid cognitive dissonance when encountering arguments that are philosophically plausible but demand changes that threatens one’s interests or self-conception. Perhaps, then, one might argue that setting forth self-determination as an “ideal” of appropriate precision, while suggesting that more demanding visions be treated as protean and imaginative rather than actual goals, is simply a way of setting the normative and motivational bar for non-Aboriginal peoples too low, while also robbing Aboriginal peoples of the clarity needed to proceed most effectively. For the reasons outlined throughout the book, I think there are deep reasons for caution here. The view of politics that emerges from this book as a whole is piecemeal, incremental, and cautiously experimental, with non-Aboriginal people too rarely persuaded by Aboriginal arguments, and Aboriginal visions themselves often structurally uncertain about what can and should be accomplished. As a motivational tool or inspiring vision of the good life, the arguments of this book may not be hopeful enough and, therefore, may fail Aboriginal peoples engaged in the hard work of politics, such that more transformative visions may be necessary to keep at this hard-grinding activity. Nonetheless, the description of political life outlined in this book seems to me broadly correct, and its articulation seems necessary to help morally motivated non-Aboriginal readers understand the difficult challenges that persistent injustice creates. Aboriginal readers are, for obvious reasons, under no obligation to seek to refute the arguments made in the book: those who find them unpersuasive should proceed in the way that seems most plausible and effective to themselves, and make use of elements of the arguments here where it seems appropriate to do so.

7.3 Political Philosophy as Public Deliberation This book is intended as a deliberative act, in hopes of providing a set of tools for non-Aboriginal and Aboriginal readers to think about their current political conditions and their future political choices. Because this is a work of political philosophy in a social context dominated by Anglo-American styles of inquiry, I have sought to show how Aboriginal political action in conditions of persistent

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injustice can be understood within the language of moral permissions and duties of justice, even if political action in these conditions may also be describable through other kinds of analytic frameworks (e.g., specific Aboriginal normative approaches). I have sought to locate Aboriginal political action within broader fields of debate about ideal and nonideal theory, deliberative democracy, legality, proportionality, and obligations to future generations, while calling attention to ways in which the circumstances faced by Aboriginal peoples may be shared with or divergent from the experiences other groups facing persistent injustice (e.g., many African American communities). In part, this is essential to help those of us who are non-Aboriginal recognize the continually difficult conditions into which our political institutions lock Aboriginal peoples, so that we can think honestly about where our own choices add to or subtract from those burdens. But it also seems essential to help in bringing debates about the persistent injustices faced by Aboriginal peoples into a broader ambit of philosophical inquiry that often overlooks the continuing normative failures of countries originally created by overwhelmingly violent colonial processes. There is much that Anglo-American political theory can engage with as part of its project of conceptualizing a more humane kind of social world. At the same time, I have sought to provide some tools that readers from Aboriginal Studies or Aboriginal political practice might use to articulate the political challenges and decisions they face to those in Anglo-American philosophy for whom their political efforts may appear obscure. Although Anglo-American philosophy is less socially powerful than American and Canadian law, it nonetheless often plays a role in shaping the imaginative and evaluative horizon of legal scholars and other powerful political actors (especially in the form of Rawlsian ideal theory). The hope is that the current project will provide some additional discursive tools for explanatory bridges between, for example, the ideas addressed here and the principles of political action found within many traditional Aboriginal political philosophies.14 Those philosophies are likely to overlap with many of the arguments made here and to conflict with others, and these conversations may, in time, help to construct greater intellectual transparency in these frameworks for those working in AngloAmerican political thought.15

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This book should, in the end, be understood and evaluated as one potential response to the continued legacies of colonialism in North America and, with suitable contextualization, similar colonial legacies elsewhere, along with other patterns of injustice that often mirror these patterns but sometimes also lay across them in complex ways (as, e.g., with the legacies of slavery). As I noted in the book’s introduction, the goal of the arguments here is not to “win” any philosophical or political debate, but to contribute toward fuller patterns of deliberation about what the political future should hold and how it is best brought about. I hope it will be received in that spirit of dialogue: used where it is helpful, revised where necessary, and set aside where mistaken.

Notes 1. Dale A. Turner, This is Not a Peace Pipe: Towards a Critical Indigenous Philosophy (Toronto: University of Toronto Press, 2006), 1. 2. Turner, This is Not a Peace Pipe, 89. 3. Turner, This is Not a Peace Pipe, 10. 4. This is essentially the method that John Rawls deploys when describing the original position, since those who choose in these conditions are not supposed to give any weight to already-existing arrangements in their deliberations. John Rawls, A Theory of Justice (Cambridge, MA: Harvard University Press, 1971), 118–43. 5. Tommie Shelby, Dark Ghettos: Injustice, Dissent, and Reform (Cambridge, MA: Belknap Press, 2016), ch 6. 6. See, e.g., Desmond Jagmohan, “The Machiavelli of the Black Belt” (unpublished manuscript, on file with author) and more broadly, Desmond Jagmohan, Making Bricks Without Straw: Booker T. Washington and the Politics of the Disenfranchised (PhD Thesis, Cornell University 2014). Desmond and I have been discussing the ethics of political action under conditions of domination for several years at this point, in ways that have surely shaped many of the arguments here. 7. For example, John Borrows subtitles his final chapter “An Indigenous Declaration of Interdependence” in Recovering Canada: The Resurgence of Indigenous Law (Toronto: University of Toronto Press, 2002). For arguments about permeability of membership, see e.g. Douglas Sanderson, “Overlapping Consensus, Legislative Reform, and the Indian Act,” in Patrick Macklem and Douglas Sanderson, eds., From Recognition to Reconciliation: Essays on the Constitutional Entrenchment

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Political Philosophy and Political Change

8.

9.

10.

11.

12.

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of Aboriginal and Treaty Rights (Toronto: University of Toronto Press, 2016), 320–56 at 350–1. This conception of self-determination is consistent with protection for a wide variety of internal minorities. See, e.g., Val Napoleon, “Raven’s Garden: A Discussion about Aboriginal Sexual Orientation and Transgender Issues,” Canadian Journal of Law and Society/Revue Canadienne Droit et Société 17 (2002): 149–71. See, e.g., John Borrows, Freedom and Indigenous Constitutionalism (Toronto: University of Toronto Press, 2016), ch 5. The American model is far from perfect, of course. It has many resemblances to the model described by, e.g., Alan C. Cairns, “The Royal Commission on Aboriginal Peoples: A Missed Opportunity,” in Sandra Tomsons and Lorraine Mayer, eds., Philosophy and Aboriginal Rights: Critical Dialogues (Don Mills: Oxford University Press, 2013), 210–31, though without the conceptual limits and distortions created by Cairns’ favored term “citizens plus.” See, e.g., Geoffrey D. Strommer and Stephen D. Osborne, “The History, Status, and Future of Tribal Self-Governance Under the Indian Self-Determination and Education Assistance Act,” American Indian Law Review 39 (2015): 1–75. See also Danielle Delaney, “The Master’s Tools: Tribal Sovereignty and Tribal Self-Governance Contracting/Compacting,” American Indian Law Journal 5 (2017): 308–45. There are problems here that the Federal government has unnecessarily created through the structure of laws governing tribal gaming, among other legal structures. See, e.g., Jeff Corntassel and Richard Witmer III, Forced Federalism: Contemporary Challenges to Indigenous Nationhood (Norman: University of Oklahoma Press, 2008). For a capsule version of the legal structures that create the gaming-related problem, see Stephen Pevar, The Rights of Indians and Tribes (Fourth Edition) (Oxford: Oxford University Press, 2012), ch 16. This is what I have described as a “Millian” conception of how justice should be pursued. See Burke A. Hendrix, “Where Should We Expect Social Change in Nonideal Theory?” Political Theory 41 (2013): 116–43. See also Allen Buchanan, “Political Liberalism and Social Epistemology,” Philosophy and Public Affairs 32 (2004): 95–130. It is a recurrent temptation to see policies of this kind as motivated simply by ill will, since this absolves us of discomfort about the errors to which well-meaning and morally motivated people may be prone. Yet it is simply wishful thinking to regard all past wrongs as the product of vicious people. See, e.g., the profoundly antiracist tone of Richard Henry Pratt’s call for the creation of off-reservation boarding schools in the United States: “The Advantages of Mingling Indians with Whites,” in Francis Paul Prucha, ed., Americanizing the

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American Indians: Writings by the “Friends of the Indian” 1880–1900 (Cambridge, MA: Harvard University Press, 1973), 260–71. Pratt was motivated by a distinctive ideal theory. See, e.g., Richard Henry Pratt, “A Vision,” American Indian Magazine 6 (1919): 187–9. 13. See, e.g., Will Kymlicka, Multicultural Citizenship (Oxford: Oxford University Press, 1995), 127. 14. For the importance of “intermediate examples” in normative translation, see James Tully, Strange Multiplicity: Constitutionalism in an Age of Diversity (Cambridge: Cambridge University Press, 1995), 108–13. 15. Not all “word warriors” have or should have interest in the creation of such transparency, of course, and the book, too, may provide an additional resource for refusing such acts of translation. See, e.g., the discussion of “ethnographic refusal” in Audra Simpson, Mohawk Interruptus: Political Life Across the Borders of Settler States (Durham: Duke University Press, 2014), ch 4. See relatedly Audra Simpson, “The Ruse of Consent and the Anatomy of ‘Refusal’: Cases from Indigenous North America and Australia,” Postcolonial Studies 20 (2017): 18–33.

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INDEX Aboriginal title, Canada 79–86, 166, 178, 185, 200nn.9–16 Aboriginal traditions 236, 260nn.59–68 Aboriginal women intersectional discrimination 213n.54 sexual assault of 125–6, 128, 153n.25, 157n.42 Abramoff, Jack 153n.24 African American communities 46–7, 118–20, 182–94, 209n.39, 210n.41, 211n.47, 214n.58, 221, 267–8 see also Civil Rights Movement, United States agent-relative proportionality 175–6 Alcantara, Christopher 109n.46, 201n.10 Alfred, Taiaiake 30n.35, 110n.50, 112nn.57,59, 115n.74, 159n.55, 160n.58, 254n.32, 261n.61 on anarcho-indigenism 231–6, 244–5, 255nn.37–9 on defensive armed resistance 140, 154n.34, 157n.43, 159nn.50–1, 53–4, 161nn.60–1 Gandhi and 160n.56 on Native Women’s Association of Canada 258n.51 on nonviolent political action 162n.67 on self-determination 258n.52 on virtues for political contention 162n.65 alliances see shared political action Allotment policy, United States 158n.47 Alsea Indians 29n.31 anarcho-indigenism 231–6, 244–5, 255nn.37–9 Anderson, Benedict 204n.23 Anishinaabe 22n.3, 164, 208n.36, 261nn.62,64 see also Turner, Dale

Apess, William 149n.8 appeal 120–1, 134–5 argumentative insincerity 93–5, 113n.66 Aristotle 68n.54 armed resistance 135–45, 154nn.34–6, 157n.43, 159nn.50–1,53–4, 161nn.60–1, 163n.73 Barry, Brian 209n.40, 253n.28 Black Nationalism 211n.46 black stem pipe societies 257n.47 blockading justice 175–6, 206n.31 Borrows, John 249n.5, 253n.30, 261n.64, 263n.74, 264n.78, 276n.7 Brassett, James 103n.13 burdened virtues 52–3 Burke, Edmund 250n.7 Canada 1–2, 11–14, 73, 124–5, 152n.22 Aboriginal title 79–86, 166, 178, 185, 200nn.9–16 Constitution Act (1982) 12–13, 73, 79, 101n.3 defensive armed resistance 135–6, 140, 143, 163n.73 elections 125 genocide 28n.25 Idle No More movement 104n.16, 134–5, 163n.74 Ipperwash Inquiry 157n.43 land claims 79–86, 166, 178, 185, 200nn.9–16 law and dominating discourses 78, 99–101, 114nn.68–9, 153n.27 Native Women’s Association of Canada (NWAC) 258n.51 Royal Commission on Aboriginal Peoples 143 self-determination 11–13, 27n.23, 242–3, 271 Supreme Court 79, 101n.2, 111n.54, 114n.72

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300

Index

Cherokee Nation 28n.26 Christie, Gordon 158n.46, 238–41, 260nn.59–61, 263nn.73–4 circumvention of laws 121–2, 124 civil disobedience 42–3, 59n.5, 64n.31, 65nn.38–44, 76–7, 116, 120–1, 150nn.9–11 Civil Rights Movement, United States 39, 42–3, 77, 105n.19 Cohen, G. A. 60n.10 Cohen, Joshua 74–5, 101n.5 Comanche 263n.72 concealed transgression 77–8 see also speaking untruth to power Confederated Tribes of Grand Ronde 29n.31 Confederated Tribes of Siletz Indians 29n.31 Congress, United States 124–5, 153n.27 Constitution Act (1982), Canada 12–13, 73, 79, 101n.3 constrained transgression 76–7 contentious politics 76–7, 120–1 Corlett, J. Angelo 155n.36 Coulthard, Glen 70n.70, 111n.56, 160n.57, 163n.70, 254nn.32–3 counter-law 88–9, 121, 135 Coyle, Michael 207n.35, 214n.56 Dakota Access Pipeline 134–5, 156n.39 Deer, Sarah 153n.25, 157n.42 defensive armed resistance 135–45, 154nn.34–6, 157n.43, 159nn.50–1,53–4, 161nn.60–1, 163n.73 deflationism 269 Delgamuukw v. British Columbia 79, 81, 114n.68 deliberation 14, 72–3 argumentative insincerity 93–5, 113n.66 Canadian law and dominating discourses 78, 99–101, 114nn.68–9, 153n.27 democratic deliberation and persistent injustice 74 field-specific transparency 87–9 harms of sincerity 86 insistent transparency 87, 111n.53

political philosophy as 274 speaking untruth to power 74–5, 77–8, 85–6, 90, 112n.59 strategic untruth 95–7 strategy and division of labor 97 transparent internal critique 91 veiled internal critique 91–5, 113n.62 Delmas, Candice 66n.41 Deloria, Vine, Jr. 102n.9, 253n.29 democratic deliberation 74 see also deliberation difference principle 223 discourse word warriors 3, 24n.13, 72, 112n.60, 113nn.64,67, 265–6 see also deliberation disruptive politics 76–7, 104n.16 division of labor 97, 132–3, 145 Double Effect Doctrine 203n.19 Dryzek, John 103n.12, 105n.21 duties see natural duties of justice duty-based alliances 177–8 ecological knowledge, Aboriginal 261n.66 Ehrenreich, Nancy 199n.2 electoral strategies 124 Emerson, Ralph Waldo 70n.63 environmental groups 213n.53 environmental harms 80–1, 85, 95, 118–19, 134–8, 149n.6, 156nn.38–41 envisioning the future see visions of the future Estlund, David 76–7, 103n.13, 104n.15 ethics of political action 32–4 ideal theory 7–8, 34, 55–6, 60n.9 self-transformation 48 unpredictability of politics and 56 see also permissions Evans, Laura E. 153n.27 evasion of harmful laws 44–5, 119–20, 123–4 Fanon, Frantz 65n.38 field-specific transparency 87–9 Fricker, Miranda 109n.42 Frickey, Philip 210n.43 future generations see visions of the future

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Index gaming see tribal gaming, United States Gandhi, Mohandas 42–3, 50–2, 66n.42, 70n.63, 154n.29, 160n.56 genocide 11, 13–14, 28n.25 Gilabert, Pablo 63n.26, 251n.20 Goodin, Robert 113n.63 Grassy Narrows First Nation 163n.68 Green, Jeffrey 67n.46 Guatemala 68n.53 Habermas, Jürgen 74 Hart, H. L. A. 149n.7 Hayward, Clarissa Rile 210n.41 Heath, Joseph 256n.45 Henderson, James Youngblood 216–18, 223–4, 230–1, 245–6, 251n.19, 255n.34, 257n.47, 262n.70 Hobbes, Thomas 60n.8, 150n.12 human flourishing 236, 259n.55, 260n.60 Hurka, Thomas 203n.19, 206n.29, 207n.32 ideal theory 7–8, 34, 55–6, 60n.9, 76–7, 222, 230–1, 255n.36, 259n.53, 272–3 Idle No More movement 104n.16, 134–5, 163n.74 illegality see justified lawbreaking insincerity argumentative 93–5, 113n.66 see also speaking untruth to power insistent transparency 87, 111n.53 institutional experimentation see political experimentation intergenerational projects see visions of the future internal critique transparent 91 veiled 91–5, 113n.62 intersectional discrimination 213n.54 Ipperwash Inquiry 157n.43 Jagmohan, Desmond 29n.29, 68n.52, 276n.6 Jefferson, Thomas 65n.37 joint political action see shared political action justice as fairness 223, 250n.14

301

justice substituting actions 44–5 justified lawbreaking 65n.37, 116–18, 145 appeal 120–1, 134–5 aspirations of legality 118 circumvention 121–2, 124 civil disobedience 42–3, 59n.5, 64n.31, 65nn.38–44, 76–7, 116, 120–1, 150nn.9–11 costs and benefits of 141, 146–7, 161nn.60–74 defensive armed resistance 135–45, 154nn.34–6, 157n.43, 159nn.50–1,53–4, 161nn.60–1, 163n.73 electoral strategies 124 evasion 44–5, 119–20, 123–4 nullification 121–2, 134, 141, 149n.8, 161nn.60–74 presumption in favor of existing legality 122–3 just war theory 68n.55, 203n.19, 206n.29 Kant, Immanuel 150n.12 King, Martin Luther, Jr. 39, 42–3, 51–2, 66nn.40,42, 253n.31 Kolers, Avery 202n.17 Kymlicka’s constraint 22n.4, 30n.33 Kymlicka, Will 7, 22n.4, 27n.24, 31n.39, 259n.54 labor, division of 97, 132–3, 145 land claims 79–86, 166, 178, 185, 200nn.9–16 lawbreaking see justified lawbreaking Leclair, Jean 114n.72 legal circumvention 121–2, 124 legality aspirations of 118 presumption in favor of existing 122–3 legal nullification 121–2, 134, 141, 149n.8, 161nn.60–74 liberalism 238, 241–2, 260n.57, 263nn.74–5 Locke, John 65n.37, 69n.59 Lowe, Lana 157n.43 Lyons, Scott Richard 249n.5

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302

Index

Mansbridge, Jane 108n.41 Marx, Karl 62n.25 Mashpee Indian community 149n.8 Mayan populations 68n.53 Miles, Terri 210n.44 Milward, David 152n.22 Mohawk 159nn.53–4, 161n.60, 208n.36, 258n.52 see also Alfred, Taiaiake moral permissions see permissions Nadasdy, Paul 108n.41, 111n.55 Napoleon, Val 23n.11, 163n.69, 257n.49, 276n.7 Native Hawaiians 210n.44 Native Women’s Association of Canada (NWAC) 258n.51 natural duties of justice 32–3, 45–6, 172, 203nn.20–2, 205nn.26–8 future generations and 219 Navajo Nation 125, 208n.36 negative critique 91 “neutral judge”, government as 49, 69n.59, 167 Nisga’a 201nn.12–13 nonideal theory 34–5, 40–2, 44–5, 61n.15, 64n.33 nonviolent political action 50–2, 159n.51, 162n.67 normative permissions see permissions nuclear waste storage 135–6, 157n.41 nullification 121–2, 134, 141, 149n.8, 161nn.60–74 offensive armed resistance 135 Oka blockade, Canada 135–6, 143, 163n.73 Oliphant v. Suquamish Indian Tribe 184–5, 210n.43 open transgression 76–7 oral traditions 244–5 permissions 1–3, 8–9, 13–14, 16–17, 26n.22, 29n.29, 31nn.38,40, 32–4, 39–40, 58nn.1–5, 64n.31, 67nn.45–56, 72–3, 86–7, 266 future generations and 219, 237–8, 247–8, 250nn.8–9 justified lawbreaking 65n.37, 116–18, 145

appeal 120–1, 134–5 aspirations of legality 118 circumvention 121–2, 124 civil disobedience 42–3, 59n.5, 64n.31, 65nn.38–44, 76–7, 116, 120–1, 150nn.9–11 costs and benefits of 141, 146–7, 161nn.60–74 defensive armed resistance 135–45, 154nn.34–6, 157n.43, 159nn.50–1,53–4, 161nn.60–1, 163n.73 electoral strategies 124 evasion 44–5, 119–20, 123–4 nullification 121–2, 134, 141, 149n.8, 161nn.60–74 presumption in favor of existing legality 122–3 political experimentation 220–2, 232–3, 235, 247–8, 250nn.8–9 self-care/self-priority 45–6, 164–6 competing land claims and 166, 178, 200nn.9–16 direct conflict and 166, 178 diverse moral interests and 187 indirect conflict and 181–94 natural duties of justice and 172, 205nn.26–8 political contexts 181 when permissions should cease 194 speaking untruth to power 74–5, 77–8, 85–6, 90, 112n.59 when permissions should cease 194 persistent injustice, characterizing 10 personal narrative 75–6, 103n.12 Philp, Mark 67n.44, 69n.58 pipelines 134–6, 156n.39 political experimentation 216 anarcho-indigenism 231–6, 244–5, 255nn.37–9 ideal theory and 222 permissions 220–2, 232–3, 235, 247–8, 250nn.8–9 revived Aboriginal traditions 236, 260nn.59–68 self-determination 236, 242, 258n.52, 269–71 uncertainty and 246 Political Liberalism (Rawls) 38–9

OUP CORRECTED PROOF – FINAL, 12/4/2019, SPi

Index political opportunity structures 49–50, 53–4, 69nn.57,60–1, 73, 178, 184–5, 244, 268, 271 political philosophy 6, 14 ideal theory 7–8, 34, 55–6, 60n.9, 76–7, 222, 230–1, 255n.36, 259n.53, 272–3 as public deliberation 274 see also ethics of political action Pratt, Richard Henry 277n.12 primary legal rules 119–20, 149n.7 Prisoner’s Dilemma 203n.18 problem of dirty hands 43–4 procedural circumvention 121–2, 124 procedural rules 119–22, 149n.7 property rights see land claims proportionality 96–7, 123–4, 135–7, 154nn.34–6, 164–6 agent-relative 175–6 competing land claims and 166, 178, 200nn.9–16 direct conflict and 166, 178 diverse moral interests and 187 indirect conflict and 181–94 normative logic of 172 political contexts 181 third-party evaluations of 174–5 when permissions should cease 194 Rawls, John 6–7, 26n.22, 31n.40, 34–6, 38–41, 56–7, 60n.10, 61nn.16,18, 62n.21, 64n.31, 67n.47, 76–7, 203n.20, 222–4, 226–7, 250nn.14–15, 259n.53, 276n.4 realistic utopia 35–7, 57–8, 62n.21, 223 relationship-care 173–8 religious arguments 39, 42–3 Reo, Nicholas 262n.68 resource extraction 80–1, 85, 95, 134–8, 156nn.39–40 revolution 59n.5, 138, 150n.12 rhetoric 75–6, 103n.12 Rollo, Tobold 160n.59 Rousseau, Jean-Jacques 35, 61n.16, 62n.21 Royal Commission on Aboriginal Peoples, Canada 143 Russell, Steve 210n.44

303

Sabl, Andrew 59n.5, 64n.31, 105n.19 satyagraha (truth-force) 50–2, 70n.63, 160n.56 Scheffler, Samuel 259n.55 Schwartzman, Micah 102n.6 secondary legal rules 119–22, 149n.7 self-care/self-priority 45–6, 164–6 competing land claims and 166, 178, 200nn.9–16 direct conflict and 166, 178 diverse moral interests and 187 indirect conflict and 181–94 natural duties of justice and 172, 205nn.26–8 political contexts 181 when permissions should cease 194 self-determination 27n.23, 30nn.33,37–8, 56, 81, 160n.56, 185–6, 210n.41, 211n.47, 236, 242, 258n.52, 269–71 self-help see self-care/self-priority self-priority see self-care/self-priority self-respect 142 self-transformation 1, 33, 43, 48, 69n.58, 141–2, 268 argumentative insincerity and 94–5 defensive armed resistance and 142–5 harms of sincerity 86 political experimentation and 216, 222, 247–8 strategic untruth and 95 “separate but equal” policies 185–6, 210n.44 sexual assault of Aboriginal women 125–6, 128, 153n.25, 157n.42 shared political action 164–6, 177–8, 202n.17, 208nn.36–7 competing land claims and 166, 178, 200nn.9–16 direct conflict and 166, 178 diverse moral interests and 187 duty-based alliances 177–8 indirect conflict and 181–94 political contexts 181 win-win alliances 177–8 Shelby, Tommie 58n.2, 63n.27, 67n.49, 267–8 Shoemaker, Jessica A. 148n.5 Simmons, John 258n.50

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304

Index

Simpson, Audra 161n.60, 258n.52, 278n.15 Simpson, Leanne 23n.11, 208n.37, 254n.33, 256n.45 sincerity harms of 86 see also speaking untruth to power Sioux community 134–5, 156n.39 slavery 43 Smilansky, Saul 155nn.35–6 Smith, Andrea 212nn.51–2 Smith, Paul Chaat 249n.5, 263n.72 Smith, William 103n.13 social experimentation see political experimentation sovereignty 15–16, 30nn.33,37, 79–80, 117–18 speaking untruth to power 74–5, 77–8, 85–6, 90, 112n.59 argumentative insincerity 93–5, 113n.66 strategic untruth 95–7 transparent internal critique 91 veiled internal critique 91–5, 113n.62 Spinner-Halev, Jeff 22n.2 Standing Rock 134–5, 156n.39 Statman, Daniel 26n.22 Sterritt, Neil 201nn.12–13 Stevenson, Ron 101n.2 storytelling 244–5 strategic untruth 95–7 substantive laws 119–20, 149n.7 Supreme Court, Canada 79, 101n.2, 111n.54, 114n.72 Tessman, Lisa 52–3, 70n.67, 110n.49, 162nn.65–6 Theory of Justice, A (Rawls) 34–6, 38–9, 64n.31, 67n.47, 148n.4 third-party evaluations of proportionality 174–5 Thompson, Janna 206n.30 Tomasi, John 62n.20 traditional ecological knowledge 261n.66 traditions, Aboriginal 236, 260nn.59–68

transformative effects of political action 48 transparency field-specific 87–9 insistent 87, 111n.53 transparent internal critique 91 treaty rights see Aboriginal title tribal gaming, United States 12–13, 28n.27, 69n.61, 125, 153n.24, 168, 200n.6, 277n.10 truth-force (satyagraha) 50–2, 70n.63, 160n.56 Tsilhqot’in Nation v. British Columbia 207n.33 Tully, James 103n.10 Turner, Dale 1, 3, 21n.1, 22nn.3–4, 23nn.9–17, 30nn.33,35, 72–3, 91, 112n.60, 113nn.64,67, 265–6 United Nations 28n.25 United States 1–2, 11–14 African American communities 46–7, 118–20, 182–94, 209n.39, 210n.41, 211n.47, 214n.58, 221, 267–8 Allotment policy 158n.47 Civil Rights Movement 39, 42–3, 77, 105n.19 Congress 124–5, 153n.27 Dakota Access Pipeline blockade 134–5, 156n.39 genocide 28n.25 legal circumvention 124 self-determination 11–13, 27n.23, 28n.26, 242–3, 271 sexual assault of Aboriginal women 125–6, 128, 153n.25, 157n.42 tribal gaming 12–13, 28n.27, 69n.61, 125, 153n.24, 168, 200n.6, 277n.10 unpredictability of politics 56 untruth strategic 95–7 see also speaking untruth to power utopian visions 216–18, 245–6 anarcho-indigenism 231–6, 244–5, 255nn.37–9

OUP CORRECTED PROOF – FINAL, 12/4/2019, SPi

Index veiled internal critique 91–5, 113n.62 violence 65n.38 defensive armed resistance 135–45, 154nn.34–6, 157n.43, 159nn.50–1,53–4, 161nn.60–1, 163n.73 sexual assault of Aboriginal women 125–6, 128, 153n.25, 157n.42 visions of the future 216–18, 273–4 Aboriginal audiences 230–1 Aboriginal traditions and human flourishing 236, 260nn.59–68 anarcho-indigenism 231–6, 244–5, 255nn.37–9 duties and permissions 219, 250nn.8–9 ideal theory and 222 non-Aboriginal audiences 228–30, 252n.26, 253nn.28–30

305

self-determination 236, 242, 258n.52, 269–71 uncertainty and 246 Waldron, Jeremy 63n.28 Walzer, Michael 43–4, 60n.7, 154n.30, 203n.19 Washington, Booker T. 29n.29, 68n.52, 267–8 Wenar, Leif 65n.35 Whyte, Kyle Powys 31n.39, 149n.6, 156n.39, 261n.66, 262n.68 Wiens, David 27n.24, 252n.22 wiindigo 164 win-win alliances 177–8 women’s rights 212n.50 word warriors 3, 24n.13, 72, 112n.60, 113nn.64,67, 265–6 Young, Iris Marion 103n.12, 199n.4