Reading and Walking

Walking, Reading, and Reading about Walking

Category: Reading

Avril Bell, Relating Indigenous and Settler Identities: Beyond Domination

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I ran across a mention of Avril Bell’s Relating Indigenous and Settler Identities in a call for papers that referred to the term “settler imaginary,” and I was surprised that I hadn’t encountered the book in any of the reading I did for my comprehensive exams. So—since libraries are closed because of the pandemic—I ordered a copy and, when it arrived, sat down to read and take careful notes. What exhausting work! How did I manage to do this for a year while I was reading for my comprehensives? The way I wrote a summary of this text, I suppose—by slogging through.

Like the summaries I wrote for those examinations, this one is very long and detailed, mostly because Bell covers a lot of ground in this book, and I want to be sure that this summary is useful for me in the future. I found the posts I made while studying for my comprehensives became a kind of searchable database, which made writing those examinations easier—certainly much easier than if I had relied on scribbled notes, inscrutable marks in the margins of books, and folded-over pages. Because I’m likely to use Bell’s book later on, I thought I would follow the same procedure. If this summary is useful for anyone else, all the better.

Bell’s book begins with a discussion of the movie Avatar, a parable about colonialism: miners extracting “unobtainium” from the planet Pandora, soldiers fighting (but unable to defeat) the planet’s inhabitants, the Na’vi, and scientists learning about the flora and fauna, as well as the Na’vi, with the goal of getting the Na’vi to move away. To accomplish that goal, Bell writes, “the scientists need to get close to the Na’vi, to learn their language and interact with them” (1). In order to get close to the Na’vi, “each scientist has an avatar, a second body made out of the combination of Na’vi and human DNA. While the human body sleeps in a ‘pod’ on the company’s base, the avatar is awake and studying life on Pandora” (1). Some of the scientists, including the movie’s protagonist, Jake Sully, empathize with the Na’vi and admire them, because they “live an authentic life, spiritually connected to both nature and their ancestors” (1). The Na’vi are based on this planet’s Indigenous cultures, and the representation of their culture “draws on long-standing stereotypes of Indigenous peoples that contrast their values and way of life sharply with those of capitalist modernity” (1). “The Na’vi live in harmony with nature, in contrast to the destructiveness of the humans’ capitalist and technological engagement with the natural world,” Bell writes. “While the human society is driven by insatiable desires for more wealth, Na’vi society appears static, unchanging, maintaining balance with the natural world and with the spirits of their ancestors” (1-2). In addition, human and Na’vi societies are “distinctly incompatible”: to get what they desire, the humans will destroy the Na’vi, and to maintain their way of life, the Na’vi will have to get rid of the humans. “The two—indigenous people and colonizers/settlers—are drawn dichotomously in incompatible contrast to each other,” Bell notes, and the film thus “tells the well-worn story of colonization and exploitation as romance and is testimony to the continuing power of the archetypes of noble, authentic indigeneity and rapacious modern, capitalist development” (2). The humans romanticize the Na’vi way of life even as they destroy it, but in the film, despite “the implicit critique of capitalist development, its destructive forces are given full reign here. The Na’vi social order is shattered and their village destroyed, before the narrative takes a less common twist that results in the banishing of the mining company” (2). The Na’vi are left hoping that they can rebuild their society, and the film’s audience, “[l]ike colonizing settlers,” end up looking nostalgically at, and identifying with, what they have destroyed (2).

For Bell, Avatar “recounts a classic settler colonial fantasy,” in which some settlers are “redeemed by conversion to the indigenous way of life” (2). “It is Sully, rather than the miners and their supporting forces, who represents the settler colonial subject”: he falls in love with the Na’vi princess, abandons his human body for his Na’vi avatar, and uses his knowledge of humans to defeat their attack and rebuild Na’vi society (2). “Sully’s conversion and redemption tracks the recurring settler fantasy in which the difference between indigenous and settler peoples disappears and the two are united as one,” a split that Lorenzo Veracini (in a book I need to read) point out “follows a specifically American version of this fantasy,” in which American settlers are distinct from the colonizing British, who are banished after the Revolution (2). Bell writes,

This tale is wearyingly familiar to any student of settler colonialism. For me, a settler descendant myself, it is depressing that this romance can still be told and lauded, despite the very real earthly correlates to the destruction of the Na’vi way of life. I am stunned at how little we, settler peoples, have learnt about ourselves, our histories and our relations with indigenous peoples, that this story can be repeated and, more particularly, celebrated so widely, in the twenty-first century. (3)

“The repetition of this double settler move—to continue to colonize and simultaneously to seek redemption—is at the heart of this book,” Bell continues. “So too are indigenous strategies of resistance and assertions of autonomy and survival. It is within this context that the juxtaposition of (indigenous) authenticity and (settler) modernity, so evident in Avatar, is a recurring theme in what follows” (3). That juxtaposition, which goes back to Enlightenment notions of the Modern Man and the Noble Savage, “continues to play out in the relationship between settler and indigenous peoples today”: that story “links the identities of indigenous and settler peoples as opposed characters in a modern narrative about lost authenticity,” a story “about indigenous being and settler becoming, indigenous stasis and settler dynamism” (3).

“One of the key tasks of this book is to demonstrate how settler societies remain caught in these tragic colonial dynamics in the present,” Bell writes. “In powerful ways that we are largely unconscious of, the unhappy identities and relationships evident in Avatar shape the way settler and indigenous peoples think about their cultural identities as national and indigenous subjects today” (3). For Bell, issues of authenticity and culture “lie at the heart of these unhappy colonial identities and relationships”: authenticity, in the form of the Noble Savage imported from Enlightenment thinkers, has become “a figure of both desire and incompatible difference with settler modernity” (3). “Variations of this early figure of authenticity continue to plague settler accounts of and responses to indigenous assertions of identity”; in addition, settlers also want to be “authentic,” and so “authenticity is claimed, used and denied on both sides in the conflictual relations over land and belonging that operate between settlers and indigenous peoples” (3). “The connected themes of temporality and agency also riddle these conflictual relations,” Bell continues. “The logics of authenticity frequently position indigenous ways of being as the ontologies of another time, incompatible with modernity” (3-4). Indigenous ways are seen within modernity as traditions that are “appropriate for symbolic and ceremonial occasions, but not appropriate to the management of economic life, the organization of social relationships, or the practice of government” (4). Tradition is frozen in the past, rather than alive in the present (4).

“The other key task of the book is to explore identity strategies and ways of thinking about identities in relation that provide us with new stories, new ways of thinking about indigenous and settler identities, new forms of indigenous-settler relationship—strategies and concepts that seek to escape the tragedy and violence of the colonizing romance,” Bell states. “Perhaps an alternative end to the story is possible. There may be ways in which indigenous and settler peoples might co-exist differently, ways that avoid the problematic of the settler romance that ends with their conversion to indigeneity” (4). Bell is interested in the “range of identity strategies indigenous peoples engage in to assert agency over their fates, outside of settler leadership and control,” but in addition, “one of the arguments of this book is that settler peoples also need to change”:

The assertion of indigenous agency, or self-determination, calls for an affirming response from the non-indigenous population of settler societies. If colonial dynamics are relational, requiring both colonizing and colonized figures, new forms of both indigenous and settler subjects are necessary to break out of these colonial patterns. This book draws on the philosophy of Emmanuel Lévinas to identify changes in thinking about settler subjectivities and relations with indigenous peoples that can support the development of new possibilities in the narratives of settler societies. (4)

Bell acknowledges that her book is about identity politics, “about what and how identities are made to mean and the effects of their articulation,” and who articulates those identities in what contexts (4). “Ongoing settler propensities to define and delimit indigenous identities—to declare which are correct, to judge who is or isn’t a ‘real’ indigenous person—are crucial signs of the ongoing existence of colonial relationships,” she writes (4). So how can Bell, “as a settler subject, speak about indigenous identities? The book maps the discursive field of settler and indigenous identities, setting out a range of ways in which both are constructed and relate to each other,” and in doing so, she intends “to assess the political effects, the limitations and achievements, of specific constructions of indigenous identities (and settler identities), but with the aim of identifying the work of colonialism and resistances to it, rather than to identify the truth of indigenous identities” (4-5). For Bell, mobility and change “are the truth of all identities, the signs of their vitality,” and she wants “to defend and promote . . . relationships between settler and indigenous peoples that facilitate indigenous self-determination and self-representation,” and so the book ends “with a focus on the changes required on the part of settler subjects to minimize their propensity for judgement of indigeneity” (5).

One of Bell’s basic premises, she writes, “is that we are all significantly the products of our cultural and political histories,” and in the book she explores “some of the items of the colonial ‘inventory’—authenticity, modernity, universalism, the linear relationship of past, present and, liberalism—that are sedimented into settler ways of thinking, and looks at how they have contributed to shaping indigenous-settler relations” (5). Such ideas have had “a massive impact” on Indigenous peoples, and “[i]dentifying these traces of history is the first step to assessing them and determining what is worth holding on to and what is holding us back” (5). The Settlers’ belief in their superiority is the beginning of “[t]he tragedy of our colonial histories: superiority because of their religion, civilization, and skin colour (5). “Today, despite a degree of widespread acceptance of cultural difference, it is the mix of ideas associated with the civilization/primitivism binary that are the most tenacious in maintaining colonial relations and that will be the central focus of this investigation,” she continues. “Constructions of race will constitute a minor theme only. The civilization/primitivism binary highlights the problematics of authenticity that continue to vex the constitution of settler nationhood” (5-6).

People sometimes challenge Bell over her use of the word “settler” to refer to contemporary white Canadians, New Zealanders, Australians, and Americans. Some argue that “the settlers are historical figures and this term is not applicable today” (6). Others feel that “it is too benign a term, disguising the harsh violence of colonial invasions of indigenous homelands” (6). Her response to the first point is to quote Patrick Wolfe’s contention that colonization “is a structure, not an event” (qtd. 6). “Structurally, present-day white New Zealanders, Americans, Australians and Canadians occupy the positions in our societies that were created by the labour of the early settlers,” she continues (6)—and, of course, not just labour, but theft of land and displacement of Indigenous inhabitants. “We still constitute the dominant culture of our societies, and our political and economic institutions are largely governed by people like us,” she writes. “And this is the case whether or not we are actually descended from early settlers or our families arrived much more recently” (6). That comment suggests a question: why does Bell consider only white Canadians (for example) to be Settlers? Are racialized people not also living on Indigenous land? I realize that is complicated—as Black Lives Matters protests across Canada have demonstrated, Canadians of African origin do not govern this country’s political and economic institutions—and yet if whites who arrived recently are also Settlers, isn’t anyone who has come here an inheritor of the history of settlement and the structure of invasion that constitutes colonialism? 

“This ‘we’ that I am invoking here is a flexible and open category,” Bell continues. “Who ‘occupies’ the position of ‘settler’ and to what degree is a shifting and mutable issue” (6). She cites the work of Ghassan Hage on white Australian national identity, who “argues that national belonging is a form of symbolic capital that can be accumulated,” and that it is “a matter of knowledge, practice and position rather than intrinsic being” (6). For that reason, what Hage calls “Third World-looking people” “can accumulate a degree of settler national capital and national belonging,” in part through “the adoption of particular discursive positions in relation to indigenous peoples or more recent or racially/culturally distinct immigrants” (6-7). In addition, Hage argues that “all non-indigenous citizens within settler societies are implicated in the colonial dynamics of those societies” (7). “While there are differential positions of power in the national field, there are no positions of innocence,” Bell writes. “At the most basic level, all whose families arrived after colonial settlement occupy a position in a set of social structures created by that settlement. It is this sense of the complicity of all of us with colonialism that motivates me to explore the politics of contemporary settler and indigenous engagements” (7). Of course, those who arrived in a colonizing society unwillingly—as enslaved people, for instance—or who are racialized and therefore structurally disadvantaged by the dominant group, might disagree with Bell on this question. It is, as she suggests, complicated and “mutable.”

“The other criticism is that ‘settler’ is a term that itself hides the violence of colonization,” Bell continues. “From this perspective it is more accurate and honest to use ‘colonizer,’ or ‘invader’ as is often used in Australia in particular” (7). However, for Bell the term “settler” “specifies, as it hides, the particular forms of violence—physical, legal, epistemological, symbolic—inflicted on indigenous people in this form of colonial relationship” (7). “Settler,” she writes, “most precisely identifies the form of colonization under discussion” (7). “What distinguishes settler colonialism from other forms is that it was driven by desire for the land itself,” she notes. “Settlers are a particular kind of colonizer, those who seek to make a new home on the lands of others,” and “this primary desire for indigenous land as a settler homeland sets up a particular relationship between settlers and indigenous peoples, one in which the settler seeks to replace the indigenous as the people of the land, to become indigenous themselves” (7). Indigenous peoples must disappear, literally or symbolically, or Indigenous peoples must merge with Settlers—and for some, those two things amount to the same thing (7). “Thus, claims to place and valuations of (both indigenous and settler) morality and worth are complexly interwoven in these settler strategies, providing a rich field for analysis within settler cultural forms,” Bell writes. “The politics of authenticity are crucially bound up with these struggles for belonging and right, the discourse of nationalism requiring that only one people can be the authentic (and sovereign) people of the nation-state” (7).

However, despite the desire of Settlers that Indigenous peoples disappear in one way or the other, Indigenous peoples in Settler societies are making a comeback—“demographically, culturally, politically, economically, morally”—and Bell locates her book at that particular historical juncture, “in which the morality of the settler project has been subject to renewed challenges form indigenous communities for justice and self-determination” (7-8). While one response to this comeback is new variations of the old strategies of forcing Indigenous people to disappear, “there are also exciting moves to establish new, respectful relationships with indigenous peoples, relations founded on acknowledgement of indigenous difference, equality and autonomy” (8). Bell writes this book to encourage other Settlers to see the comeback as an opportunity, rather than a threat (8). 

Bell notes that the term “indigenous” also needs clarification. It is often used in “two quite distinct if overlapping ways”: in one sense, “to be an indigenous person can purely mean to be ‘native’ to a place, in the sense of someone who was born there, rather than an immigrant,” which would make many Settlers indigenous (8). I doubt that’s the way Bell uses the term. On the other hand, “indigeneity can be used to refer to the particular status of peoples who occupied a territory at the time of colonization and who remain historical, often tribally articulated, connections to place” (8). That is how Bell will use the term, the way it is used in the United Nations’ Declaration of the Rights of Indigenous Peoples. That use of “indigenous” carries three meanings at the same time: Indigenous people have a “temporal priority” over others living in a place, they have a “specific sense of identity and belonging,” and their status “is linked to the experience of colonization” (9). “These three meanings point to two ‘sources’ of indigenous identity,” Bell continues, citing Francesca Merlan’s categories, the “criterial” and the “relational”—which, she suggests, also apply to Settlers (9). Indigeneity “is defined in (colonial) relation to the settler people,” she suggests; that is the “relational category,” and the term “settler” “invokes a specific location and role within the colonial relation” (9). Paraphrasing Stuart Hall, she suggests that the “specificity of settler peoples points to the limitations of any universalized understanding of colonization involving only two distinct groups, ‘the West and the Rest’” (9). Settlers were both agents of power in the colony and colonial subjects themselves, “at a remove from the culture and power of the imperial centre, and subject also to that power, if in exponentially different forms from those experienced by indigenous peoples” (9). “But the other side of this colonial relationality has not disappeared,” she notes. “Settler peoples are still located in specific colonial relations to indigenous peoples and remain vexed by their own origins as colonials and migrants” (9-10). Settler nationalisms bear the traces of these “doubled and dilemmatic histories,” which “bear the historic concern for political and cultural distinction from the mother country and the ongoing concern with how to incorporate the relationship to indigeneity in settler identities” (10). 

“At the same time, neither settler nor indigenous peoples are reducible to the colonial relation,” Bell writes. “Both have prior histories and bring bodies of philosophy, law, values and practices with them to that relationship” (10). For that reason, they can be defined in relation “to particular ‘criteria’ or ‘content’” (10). The identities of Settlers and of Indigenous peoples are not reducible to a relation (10). In particular, indigenous peoples “have their own autonomous sources of law, values and practices that survive and continue to enliven their identities and ways of live,” and which “continue to animate their claims to their homelands” (10). Against those claims, “the settler imaginary seeks to reduce indigenous identities to its own terms” (10). At the same time, Settlers “cannot be fully accounted for by their position within the colonial relation,” since they too “bring prior histories, philosophies, legal systems, values and practices to the colonial encounter” (10). One of Bell’s basic assumptions is that the Settler peoples of Australia, New Zealand, Canada, and the U.S. all share “a ‘criterial’ commonality that can be traced back to the originary influence on them of the British legal and cultural traditions and the European philosophical traditions they brought with them to their ‘new worlds’” (11). Those traditions shaped the identity of those nations, as well as “their projections of indigenous identities and relations with their developing nation-states” (11).

One of Bell’s key arguments, she writes, “is that the settler peoples of Australasia and North America share a ‘settler imaginary’—the set of ideas and values that underpin a peculiarly settler discourse of nationhood, identity and indigenous-settler relations” (11). In developing this term, she draws on philosopher Charles Taylor’s notion of “social imaginaries.” A social imaginary provides “an implicit ‘background’” that grants people—Settlers, in this case—a common understanding and a sense of legitimacy about their society’s “form, practices, and social relations” (11). The social imaginary also creates a sense of legitimacy “about the form, practices and social relations of a particular society” that is shared among its members (11). Social imaginaries can change over time, as new ideas penetrate and transform them, and that leads people to take up (or be inducted into) new practices (11). According to Bell, we are living in a moment when new ideas are changing our social imaginary: “the settler imaginary that developed in the experience and practice of establishing colonial relations with indigenous peoples—and necessary to the continuation of those relations—is in a process of transformation” (12). The challenges to the Settler imaginary posed by Indigenous rights movements is the reason, according to Bell, because they are leading to responses “via a range of policies of recognition of indigenous land, and of resource and cultural rights. These policies both concede rights and resources to indigenous communities and work to contain the challenges indigenous being presents to the ideas of universality, such as ‘one law for all,’ that are engrained in the settler imaginary” (12). But as those communities are empowered by such changes, they further challenge the settler imaginary:

Settler assumptions about the nature of their societies . . . are coming up against new assertions of indigenous property rights and political and cultural projects that unsettle these understandings. Effectively a new theory of indigenous sovereignty is percolating its way into community life, empowering indigenous individuals and communities to act in new ways, to institute new social relations with their neighbours. (12)

The response of Settlers “is mixed and grudging,” but a transformation is nonetheless taking place in “their settled imaginary,” leading to new understandings and the possibility of “a relational imaginary” (12). 

Bell’s book focuses on Canada, Australia, New Zealand, and the United States—the so-called CANZUS countries—because they were the only nation-states to vote against the United Nations Declaration of the Rights of Indigenous Peoples in 2007. “While typically priding themselves on their global role as defenders of human rights, oddly these four nation-states found the Declaration was more than they could countenance,” she writes, noting that their shared rejection of the Declaration “points to shared sets of social relations and orientations” (13). “For these states, the relationship between culture and politics is at the heart of the problem of indigenous peoples’ rights,” she continues. “These our settler states are happy to recognize their indigenous communities as culturally distinctive, but have trouble with these communities’ claims to political distinction and distinct rights as indigenous peoples” (13). That’s because Indigenous nationhood “represents a challenge to settler nationhood, and indigenous rights to settler rights” (13). For that reason, this book will explore the relationship between cultural and policy in the trouble relationships between Settlers and Indigenous peoples (13).

Bell’s interest is in the “specifically colonizing/settler imaginary” in these societies, which is “shaped by the broader influence of European thought more widely shared than in Britain alone,” despite their historical antecedents in the United Kingdom (14). She cites Gayatri Chakravorty Spivak’s use of the term “worlding” to “describe the joint processes of destruction and substitution by which colonists set out to transform the indigenous worlds they entered (‘new’ only to them) into their visions of a better version of the societies they had left” (14). Plants and animals were transplanted to make the “new and alien world” more like home. “Effectively, settler colonization is a project of creating a new world, rather than a project based on the finding of one, she writes,” citing Nicholas Thomas’s argument that colonization is a creative project (14). Colonization is transformative, making new societies and identities through projects that are both discursive and material, “propelled by aims and intentions and underpinned by ‘a particular imagination’ of the colonial situation” (14). It is an exercise in self-fashioning (14). “The settler imaginary is crucial to the project of making both indigenous and settler peoples as colonial projects,” she continues (14). In addition, colonial projects are often not realized, and their impact falls short of their desired aims “in the fact of their own overreach and internal contradictions,” along with “the counter-projects of others, including those of indigenous communities” (14-15). Colonialism isn’t something located in the past, but it “continues to inflect the present” (15). “The idea that the CANZUS societies are engaged in an ongoing—incomplete, contested, hopefully diminishing—colonial project is one of the key claims of this book,” she states (15).

Bell goes on to defend her use of colonial discourse analysis as a methodology against charges that it “over-generalises, ignores indigenous agency and over-emphasises binary oppositions between colonizer and colonized” (15). Her comparative approach, she contends, “allows us to identify common discursive resources and strategies that have often been deployed in similar ways and at similar times” (15-16). At the same time, she suggests that she has remained attentive to differences between these societies (16). But, at another level, she notes that focusing on “the analysis of structural locations within discourse—points of identity, of settler and indigene as figures constructed within discourse” (16) risks other kinds of generalizations:

I am interested in the logics by which these discursive categories operate, and the ways they mark structural positions within a field of social relations. Actual indigenous and settler individuals are distributed more widely,, identifying with, deploying, crossing, and resisting these categories from day to day and context to context, and are further divided and joined by gender, class, age, sexuality, and so on—no one is “purely” an indigenous or settler subject. When we analyse examples of discourse that construct settler and/or indigenous identities in particular ways, we are looking at the work of these individual or collective human agents, but never capturing these agents themselves in their totality. They have “moved on,” leaving these discursive traces of moments of their struggles with categories of identity. (16)

That limitation does not necessarily discredit discourse analysis, Bell argues, because “the discursive formations under study, while they do not entirely capture human agents, do powerfully shape our imaginations, understandings and possibilities” (16). Discourse analysis does not exclude human agency, according to Bell. “As agents, individuals make use of and position themselves in relation to discourses,” she writes. “At the same time, within discourse, subjects are positioned and these positions are granted varying degrees of legitimacy and agency. . . . The issue of agency is a central concern in this work and the agency of indigenous individuals and collectives in constructing their own identities and actively resisting the subjection of colonial discourse is a key theme” (16). 

Bell acknowledges that colonial discourse analysis focuses on binaries and tends “to cast settler and indigene in opposition to each other and to abstract these categories out from the cross-cutting complexities of gender, social class and so on,” an abstraction of which this book is guilty, she admits (16-17). However, “oppositionalism in the construction of settler and indigenous identities is the very problem this work addresses, particularly oppositionalism around issues of authenticity” (17). In addition, the later sections of the book “deal with attempts to overcome the imposition of colonial binaries” (17). I got that reaction from an audience member when I gave a paper on settler colonialism in Guanajuato, Mexico, last October; a woman—a fellow Canadian—wanted to know when we could stop defining ourselves in opposition to each other. Nevertheless, Bell continues, “the ‘solution’ to the problematic binaries explored in this book is not unity/uniformity. The problem with binaries is not the existence of difference per se, but the hierarchical valuation of difference and the either/or assumptions involved” (17). For instance, the denial of Indigenous modernities and of the value of traditional Indigenous life ways both position the Indigenous “as ‘out of place’ and ‘out of time’ in the modern settler state” (17). “Overcoming colonial binaries requires overcoming the problematic demand for unity/singularity, the demand that there is only one way to be modern and only one way to belong to these settler nation-states,” Bell suggests (17). However “developing a theory of coevalness is not a simple task,” she continues, citing Johannes Fabian, because the temptation to see “‘the time of the other’ as in the past—and to see present time as singular, unitary, the time of modernity—is deeply engrained in western modes of thought. The resulting ‘absence of the Other from our Time’ means that indigenous people appear in western discourses ‘as an object and a victim’” (Fabian qtd. 17). The solution is to abandon the idea of the unity of time; that way, coevalness would become “the experience of the co-existence of indigenous and settler Time” (17).

The next chapter, “Indigenous Authenticity and Settler Nationalisms,” begins with the Settler expectation that Indigenous peoples will be traditional whereas Settlers themselves will be modern, a “discourse of indigenous authenticity that is foundational to the settler imaginary” (25). “Settler nationalisms and their ambivalent relations with indigenous peoples were shaped by modern understandings of peoplehood and identity and the dilemmas of authenticity that modernity brought with it,” Bell writes. “Authenticity became a problem–and the site of desire—in modernity. It became entangled with ideas of primitivism and projected onto indigenous peoples. It is also a concept complexly located in relation to concepts of time and place—one that powerfully locates peoples as ‘in’ or ‘out’ of time and ‘in’ or ‘out’ of place” (25-26). Identity became a problem in modernity, as people became more mobile and their identities were no longer fixed. As identity became a problem, so too did authenticity: “what constituted an authentic, or genuine, identity and what inauthentic? How was the new, modern individual to ground their identity in the flux of this new era of change?” (26). “The dynamism of modern society made inauthenticity possible, as disembedded individuals could fashion and re-fashion their identities to suit their circumstance,” Bell continues. “This general problematic of authenticity takes particular, pernicious and intractable forms in settler societies” (26). That is because, for Indigenous peoples, authenticity became “a problem projected on to them” by the modern imaginaries of Settlers (26). “The importance of this point cannot be overstated—authenticity is not a property of indigenous cultures, but a value attributed to them out of the concerns of European modernity,” Bell insists. For modern Europeans—after the eighteenth century, that is—Indigenous cultures and peoples “represented an earlier, primitive human state through which their own societies had already passed on their way to civilization” (26). Because authenticity had not been a problem in the past, the logic goes, and because Indigenous peoples are part of the past through which Europe has already moved, then Indigenous peoples are authentic (26). “According to this way of thinking, authenticity was a characteristic of the past, a mode of being that only survived in modernity as a hangover of a lost age,” Bell writes. “Authenticity was projected onto indigenous cultures at the very moment it was under threat in the maelstrom of change brought on by colonial contact. Indigenous authenticity then was both the object of desire and at risk, and very much a means to imagine modern/western as well as indigenous identities” (26-27).

The problems of authenticity were connected to ideas about place, particularly during the Romantic period, when “national cultures came to be understood as arising organically over time from the relationship between people and place,” and the “authentic people of a place were those who ‘belonged’ there, those whose place it was, those who had effectively arisen from its soil” (27). There would be room for only one such people in each place (27). In the new Settler societies, “the problems of authentic peoplehood and the relationship between people and place” became an important issue (27). For Bell, “modernity was the era of the dominance of white/European societies and all other ways of life were seen as both inferior and anterior—of lesser value and belonging to an earlier era of human history” (27). However, “at the same time that the supposed superiority of European modernity provided justifications for colonization, imaginings of authenticity and peoplehood created irresolvable dilemmas for the colonizing settlers,” because they were moving away from their authentic place and taking over the homelands of others (27). “By the logics of authenticity, the settlers were themselves double inauthentic—bothy modern and out of place—while indigenous peoples were cast as the site of this desired authenticity—both primitive and the people of the land” (27). Bell argues that the ideas of authenticity, primitivism, and essentialist notions of cultural identity “continue to haunt the construction of indigenous and settler identities and their relations,” and this chapter examines both “settler imaginings of nationhood in the nineteenth and into the early twentieth centuries,” in which Indigenous peoples were believed to be both passing away (disappearing) and passing on the mantle of authenticity to Settlers, and the “new strategies of appropriation” that worked “to underpin the settlers’ claim to indigenous authenticity” and belonging (27-28). 

“The concept of authenticity has always been freighted with valuations of originality and truth,” Bell writes, so it’s not surprise that authenticity “has had such a powerful place in the identity politics played out between settler and indigenous peoples” (28). Being authentic “can be a matter of being oneself, of being true to what one already is in effect, or a matter of becoming, a process of discovery and ‘self-realization’ through an individual’s life course” (28). The idea of authenticity “as already determined, existing in some fixed, core quality of characteristic of being, is a form of essentialism,” and that essentialist idea “is most pervasive and has been most powerful in the history of indigenous-settler relations” (28). Authenticity is always valuable and desired, and this “positive valuation” is just one way that Settlers “have accounted for the difference of indigenous peoples and cultures” (28). The opposite of authenticity is the inauthentic, “the debased and degraded,” which means “the ‘originality’ projected onto indigenous peoples has been simultaneously viewed as a state of purity and innocence and as one of brutishness, these paradoxical valuations co-existing and co-dependent, each being drawn on as required to serve the political ends of the moment” (28-29). The ideas of originality as authentic, and its shadow, are both “central to the dilemmatic orientation of the settler to the indigene” (29). 

Nineteenth-century Romantics reacted against the Enlightenment’s optimism about change, and thus they sought authenticity in tradition and in the past; in this way, “the search for authenticity became intertwined with already existing primitivist thought, which viewed New World peoples as living relics of the human past” (29). “The primitivism projected onto New World peoples was viewed in both positive and negative terms,” Bell writes. “They were simultaneously Noble and Ignoble Savages” (29). They were both authentic (according to the Romantics) while also representing “an earlier state of human development” (29). “Contact with the modern world was inevitably corrupting” for Indigenous peoples, and it always “meant a loss of authenticity” (29). For that reason, “[t]he authentic Savage . . . was always already the object of nostalgia, ‘passing away’ in the face of civilization as soon as contact was made” (29). Bell notes that the Romantics also saw European peasant cultures—the Folk—as more authentic, closer to nature, and more true than city dwellers (29-30). “To serve as the cultural source for the nation (the main function of this variation of primitivist authenticity) the Folk had to adhere to their traditions, while the urban bourgeoisie were free to develop theirs from that cultural base,” Bell contends. “In other words, the idea of an original authenticity as source for some depended on it being a ‘prison’ for others” (30). This idea depended “on the translation of distance into time”: since the Folk lived away from the city, in the countryside, they were far from modernity (30). “In settler nationalisms . . . the Noble Savage and the Folk come together and indigenous peoples become caught up in these logics of traditionalism, purity and temporal and spatial incarceration,” Bell suggests (30).

“Authenticity was (and is) always about modernity and its discontents,” including the methods that are used in looking for it (30). The Romantics, whom Bell describes as “the ethnologists and folklorists of their day,” collected the songs and poetry of the peasantry and of Indigenous peoples and then cleaned them up, restoring them to what they believed to be their original forms (30). “Thus, even geographical incarceration on reservations, reserves or untouched hinterlands could not guarantee indigenous or peasant cultural purity,” she states, “and the modern European elite set themselves up as the arbiters of the authenticity of others” (30). The idea of primitive authenticity became “a standard against which to critique the inauthenticity of modernity” and at the same time “a source of authenticity with which to replenish modernity’s losses” (31). This logic is present in New Age movements, which identify Indigenous cultures as an authentic standard against which to critique “a debased modernity” (31). In addition, peasant authenticity “served as a cultural source for the development of European national cultures” (31). In the Settler context, though, these functions take on different forms. “In the early stages of development of the settler nation-states in particular, the primitivized indigene as external other served as a foil to the modernity of the settler society,” Bell writes, a move that celebrated rather than (as in the European homeland) critiqued modernity (31). “In asserting their modernity the settlers sought to demonstrate their standing in relation to Europe and to justify colonization as bringing civilization to the savages, a process seen as sometimes regrettable, but as both inevitable and progressive,” she continues (31). However, once the frontier closed, “the identity of the new settler society became an issue,” and Settlers used the Noble Savage stereotype to provide “the authenticity that could serve as the resource for the construction of settler nationhood” by “constructing narratives in which the ‘passing away’ of the Noble Savage involved the ‘passing on’ of their patrimony and heritage” (31). In that way, “settler mythology internalized indigenous authenticity,” in a way that is distinct from the European context, because “in settler societies it is another people’s cultural traditions that are appropriated, involving complex strategies of denial and justification to claim them as the settlers’ own” (31-32). At the same time, Settlers also seek “the restoration of a lost innocence,” and “[i]ndigenous authenticity is deployed to secure settler redemption from the role of colonizer” (32). These two functions—appropriation and redemption—“remain apparent in contemporary constructions and appropriations of indigenous authenticity across the CANZUS societies” (32).

Next, Bell summarizes the development of nationalist sentiment, or a concern with national identity, in Canada, New Zealand, Australia, and the U.S. In each case, “the early development of settler nationalism involved the romantic construction of the indigenous people as primitive,” and because primitivism and civilization are incompatible, Indigenous peoples “were seen to be ‘passing away’ or ‘vanishing’ before the march of civility,” an idea that was “a mix of reality, romance and race” (33). “Disease, war and displacement resulted in major declines in indigenous populations throughout these societies, making the eventual disappearance of indigenous peoples seem a likely reality, not just a colonial desire,” Bell notes (33). However, her point is “the way in which primitivism and race theory provided explanations for this seeming disappearance . . . worked to absolve the colonizers of responsibility and was incorporated as an origin story in settler identity narratives” (33). Settlers were therefore innocent of the consequences of colonization (33). In addition, “[a]s indigenous peoples ‘passed away,’ so too they ‘passed on’ their patrimony to the settlers, frequently via the imagining of a familial connection” (33). I wonder if Bell is referring to the common notion in southwestern Ontario, where I grew up, that there is a Mohawk grandmother somewhere in the family tree.

From here, Bell moves to specific examples from the countries she is discussing. For reasons of time (there is never enough), I decided to focus on what she has to say about Canada. “Settler identity in Canada was from the outset defined in contrast to that of the USA,” she begins. “In emphasizing their Britishness in the early years of the Confederation, Anglo-Canadian settlers deemed themselves superior to both Americans and French Canadians. Key to these constructions was the idea of Canada as the ‘true north’ and the positioning of Native Canadians in the nationalist narrative” (36). In the rhetoric of the Canada First Movement, “the north was seen in environmentalist and racial terms as foundational to white Canadian character, the site for the construction of superior, masculine virtues, in contrast to the immorality of the south/USA” (36). The north was seen as timeless and outside of history, and this idea is closely associated “with indigenous authenticity” (36). The relationship between Indigenous peoples and Settlers is tied to the development of what Eva Mackey calls “‘the benevolent Mountie myth,” in which “the North-West Mounted Police paved the way for white settlement in the Canadian west with minimal force and with the superior morality of British justice” (36-37). In this story, Indigenous peoples are “Ignoble Savages, wild and violent—and made worse by contact with less virtuous white men,” usually Americans (37). “This narrative worked both to distinguish Canadians from Americans and as a redemptive narrative for white Canadians, their presence justified by the construction of a paternalistic relation to the indigenous peoples,” Bell suggests (37). Meanwhile, Indigenous peoples remained “caught within the discourse of primitivism—first the wild Savage, then the Savage as the child of mankind, on the path to civilization,” and “the Savage in the Mountie myth works to legitimate the white settler presence,” particularly by their gratitude for “the settler presence and the peace and justice that they brought,” which is compared to the violence of the U.S. frontier (37). She suggests that Charles Mair’s 1886 play Tecumseh suggests the Noble Savage “endorsing the settler presence” and the replacement of the Indigenous people by Settlers (37).

“In the ‘benevolent Mountie myth’ and in Tecumseh, all three strands of English Canadian nationalism are brought together,” Bell writes. “The Mountie stands for the best of the British heritage, guiding the child-like Natives to civilization, in contrast to the malevolent Americans. In Tecumseh, both the Shawnee chief and the British General are noble figures, providing the new nation with a combination of Canadian authenticity and British political traditions” (37-38). These “nationalist mythologies provide origin stories, carving out a space of moral virtue to the new nation in contrast to its British and indigenous antecedents and its large, and resented, neighbour” (38). Bell’s other example is the painting of Emily Carr, in which Indigenous peoples are both “Vanishing Canadians” and “First Canadians,” “providing the mythic origins and cultural heritage on which the culture of the modern settler nation could be built” (38). Of course, this is all too brief and simple, and three examples (one without concrete textual evidence) are insufficient, but it rings true nonetheless.

“The appropriation of indigenous symbolism in the service of settler national identities has waxed and waned since the early era of settler nationalisms,” Bell writes (42). However, the extent to which Settler “strategies of appropriation” have changed since the 1960s, when Indigenous rights movements began challenging Settlers “to face up to their colonial history and to rethink their relationships with indigenous peoples,” is arguable (42). “While no longer the ‘dying savage,’ the authentic/inauthentic binary works to divide and discipline indigenous identities in the present,” she contends. “At the same time, indigenous peoples are now firmly narrativized as the (settler) nations’ ‘First Peoples’ in the contemporary version of the familial ‘passing on’ metaphors of the earlier era” (43). She notes that the use of Indigenous language and symbolism is “particularly apparent in national branding and marketing,” especially in sports and tourism (43). Such appropriations remove Indigenous artefacts and symbolism from their “specific histories and cultural identifications” and instead they come “to stand in for an abstracted authentic national indigeneity” (43). One of her main examples is the appropriation of the inukshuk in Canada (43-44). “At one level these examples of the incorporation of indigenous symbolism within settler national imaginaries can be taken as a sign of an inclusive cultural pluralism, although it has to also be acknowledged that . . . some indigenous peoples insist on their separation from the settler nation,” Bell continues. More broadly, though, these examples “point to the way in which the practices of inclusion of indigenous symbolism can represent settler over indigenous interests and can be accomplished on settler terms, not in partnership between peoples” (47). “[T]hrough a range of disembedding and appropriative strategies, settler narratives and practices of identity construction have sought to separate the markers of authenticity from indigenous bodies and communities and to make them their own,” she states, noting that “such possession is never finally secured” because the gap “between settler and indigeneity” can never be entirely closed (47). 

“Settler appropriations of indigenous cultural authenticity rely on the continual production of that authenticity, and—most destructively for indigenous communities—its Other, indigenous inauthenticity,” Bell continues. “While authenticity remains constructed in terms of purity, originality and unsullied traditionalism—settler modernity’s Other—contemporary indigenous culture remains at risk of denigration as not ‘real’ indigenous culture” (48). I thought Settlers had moved beyond that idea, given the success of contemporary Indigenous musicians (A Tribe Called Red, Tanya Talaga, William Prince), to give one example, but perhaps not. Indigenous authenticity depends on spatial separation—Indigenous peoples need to be somewhere other than in cities—and when “they become urban, indigenous people are expected to be either ‘just like us,’ or are seen as problematic troublemakers and welfare recipients” (48). Bell cites Patrick Wolfe’s notion of “repressive authenticity”—part of the Settler “logic of elimination”—which “‘seeks to replace indigenous society with that imported by the colonizers.’ Authentic indigeneity is constructed as a ‘pristine essence’”—one “that most actual indigenous individuals cannot embody” (qtd. 48). Thus, she continues, “while producing and appropriating authentic indigeneity to serve settler identity projects, repressive authenticity also involves ‘the positive production of genetic or cultural inauthenticity,’” and through assimilation and intermarriage, actual Indigenous people disappear “while the disembedded signifiers of indigenous authenticity remain to serve the settler nation” (48). 

According to Bell, Wolfe’s distinction between genetic and cultural inauthenticity is important. “The authentic indigene imported into settler nationalism represents cultural authenticity via the symbolism of tradition, the cultural wellspring for the migrant settler identity,” she writes. “Genetic tradition, on the other hand, is constructed in the language of race, blood and descent” (48). The point about cultural inauthenticity, though, is that “repressive authenticity works as a set of divide-and-rule strategies to simultaneously produce and discredit ‘inauthentic’ indigenes,” while Settler society appropriates “a disembedded indigenous cultural authenticity” (48). Bell cites critics of Wolfe, such as Elizabeth Povinelli, who “rightly points out that the elimination of the indigene is ‘always deferred’ because of the necessary role indigeneity plays in securing the identity of the white settler subject” (49). The figure of “the indigene” is both desired and rejected by Settlers, and for that reason “the final ‘death’ of indigeneity never comes, but the logics of authenticity remain a powerful means to police and discipline indigenous identities” (49). Thus Wolfe’s “logic of elimination” has a necessary limit, although “the repressive and divisive dynamics” he identifies operate in the four Settler societies Bell is considering. For instance, notions of cultural inauthenticity are “used to discredit activists and rights claimants,” because according to “the logics of primitivism,” Indigenous peoples cannot be traditional and contemporary (50). Nor can they or their cultures be dynamic: “traditions must be invariant and fixed, the same today as in the past” (50). While academics accept the dynamic nature of all cultures, “the opposition between modern and primitive cultures, between dynamic and static cultures, continues to circulate in the public arena,” Bell states (51).

In the chapter’s final section, Bell suggests that indigenous authenticity “has proven a vexed identity strategy for both settlers and indigenous peoples,” although “it remains a potent and alluring ideal that troubles both indigenous and settler identities and the relationships between them” (54). Settlers never become indigenous; they are always in a state of becoming, and the closest they get at arriving at their goal is through their “anxious repetitions” (54). “Beyond such assertions the settler remains prone to ontological uncertainty about their identity,” Bell states (54). In addition, “the politics of settler identification with indigenous culture and tradition is a direct follow-on from the romantic primitivism that was an integral component of the initial justification for colonization” (55). Romanticism gave the colonial project “an ambivalent ground,” because it valued something destined to “pass away,” but since Indigenous peoples remain 200 years after predictions of their demise began, the “ending of the romantic settler tale has thus had to be revised” (55). Now it’s the Avatar story, in which a white man saves Indigenous people and, in the end, becomes Indigenous himself (55). However, for Indigenous peoples, “claims to authenticity do have clear positive dimensions, providing a crucial cultural space form which to claim ownership of their self-representation and from which they can speak. Indigenous peoples are the guardians of their own authenticity, the logics of purity and originality offering ready grounds for excluding and discounting settler claims to speak in their name” (55). In that way, “the logic of authenticity provides a ground for the exercise of indigenous agency and resistance, and a point of stability within the violence and oppression of the colonial relation” (56). In addition, “to speak in the voice of authenticity is to speak in a voice that the colonizer recognizes as indigenous and hence one that is more likely to be ‘heard’” (56). However, authenticity has drawbacks, especially for Indigenous political projects, because it plays into “repressive authenticity,” and because such claims to authenticity “remain on the ontological terrain of the settler imaginary,” where Indigenous people are expected to perform “authentic indigeneity” (56). It is also subject to theoretical critique from post-structuralists and postmodernists, although Bell suggests that the west abandoned essentialism “just as indigenous people were finally beginning to make use of it to serve their own political resistance” (56). She suggests that one response to those theoretical developments is “strategic essentialism,” while another is to point towards the multiple meanings of “authenticity” (57). Authenticity, she suggests, “has more than one guise,” and it can be understood as either being or becoming (57). She cites the work of David Moore, who suggests that in the work of Indigenous writers and philosophers, “native authenticity . . . is dynamic, a matter of translating the contemporary experience of living native lives in twenty-first-century America in written form” (57). “Those native lives are modern and American and continue to draw on distinct, indigenous epistemological/cultural resources, pointing to the fact that there is something indigenous that remains ‘outside’ the incarceration of colonial ontologies and epistemologies,” she suggests (57). 

Bell’s third chapter, “Hybrid Identities and the ‘One-way Street’ of Assimilation,” begins by stating, “The most remarkable, but frequently taken-for-granted, feature of the politics of hybridity is settler societies is that hybridity is an indigenous ‘problem’ only. Like race—and for related, highly racialized reasons—hybridity is not a problem for the settler” (58). That’s because, despite the “many sources of hybridity within the settler population (mixed descent and histories of migration and of culture contact with indigenous and other peoples) . . . white settler identities have become sponges that can typically absorb any amount of cultural difference” (58). Not only is hybridity not a problem for Settlers, but “‘properly diluted’ indigenous blood actually works to ‘enhance, ennoble, naturalize and legitimate’ white settler identity” by grounding and legitimizing it,” Bell suggests, citing Strong and Van Winkle (58)—the Mohawk grandmother mythology so common where I grew up. “In contrast, being of mixed descent, or being anything other than ‘pure’ and ‘authentic’ . . . has persistently been a problem for indigenous peoples across these settler societies,” Bell writes, noting that “cultural hybridity has been integrally linked with various strategies of assimilation instituted on the part of settler governments” (58-59). For Bell, “the history of hybridity in the settler imaginary is one that problematizes claims to indigenous identities while representing the success of assimilation and adding a touch of exoticism when linked to claims to settler identities” (59). 

The focus of this chapter, according to Bell, is “how the tension between purity and mixture is straddled by indigenous peoples in particular,” and the central concept, hybridity, is used “to categorize mixed identities” (59). She notes that state-sponsored assimilation strategies took place in the 19th and 20th centuries, and that those policies “formed the backdrop to the resistance movements of the 1960s and 1970s as the young, urban and educated generation reacted against the assimilation mindsets forced onto their parents’ generation, and against the racism of their environments, to re-assert their identities and reclaim their cultural difference as indigenous peoples” (59). Despite the promise of equality inherent in western liberalism, people who were not white, or who could not pass as white,  “continued to be subjected to racist and exclusionary practices” (59). 

Hybridity, Bell notes, is usually the solution to “the problematics of essentialism” in identity theory literature (60). The argument, she continues, is 

that no culture is “pure” and no identity self-originating. Rather than seek territorial rootedness we must remember our histories of migration. Rather than assert “racial” and cultural purity, we must acknowledge our mixed ancestry and cultural syncretism. Rather than hybridity being conceived of as a problem, threatening a loss of identity, the answer is to embrace and celebrate the hybrid nature of all identities. (60)

However, this “positive politics of hybridity has always been shadowed by a suspicion of ‘mixture’ and a valuation of ‘purity’” (60). “Within the context of indigenous-settler histories of forcible assimilation and miscegenation, these negative connotations of hybridity have had particular salience and their legacy is apparent in the issues discussed in this chapter,” she continues (60).

The idea of hybridity comes from the work of Mikhail Bakhtin, Bell argues, but her own notion of hybridity focuses on “various themes of resistance and combination, maintenance of difference and fusion, and the element of choice evident in Bakhtin’s references to intention and conscious mixing” (61). Forms of hybridity as a mixture, for Bell, are “ontological hybridities” because “they involve the mixing of ‘substances,’ elements, forms of being—biological elements characterized in terms of ‘race,’ descent, ancestry on the one hand, and cultural elements, arising out of culture contact and migrations on the other” (61). “It is the existence of more than one racial or cultural element that provides the (limited) option to assert a hybrid identity,” Bell writes:

The individual of “mixed” origins has a choice of identifications within the strict limits of the ontological “substances” of their parentage and cultural milieu. Ontological hybridities then reflect constructionist theories of identity in two senses: they point to the historical processes by which identities come into being out of prior origins, and they point to an element of human agency in constructing/choosing a particular identity. (61)

“While the historicized origin of ontological hybridities points to change over time, the development of a new identity label also represents a moment of stability,” she continues. “Out of processes of cultural mixture, hyphenated or doubled identities . . . or new ‘fused’ identity labels . . . are formed,” and these “foreground and maintain the distinctions between their origins, while with fused hybridities the distinct ‘parents’ of the new identity are less easy to trace” (61). Such hybridities are sometimes called “synthetic” or “syncretic” (61). 

Before she moves on to discuss hybridity in connection to Indigenous identities, though, Bell explains how the idea of “race” figures in her argument. She writes, “it is now commonly accepted that there is no such thing as ‘race’ in a biological sense. Rather, ‘race’ is understood as a flexible socio-political concept of European/western origin used to categorize people in particular ways that work to support white dominance” (62). For Bell, the idea of “race” is “un/real”: “real in its effects because of the way that people believe in it and act on it,” but “scientifically ‘unreal’ in that it lacks empirical foundation” (62). “The metaphor of ‘blood’ is intimately linked with ‘race’ and ontological hybridities,” she continues. “‘Blood’ is construed in race discourse as a substance that can be mixed and diluted, that can be divided in fractional terms to precisely categorize descent,” and in that way it can be used to “weaken an individual’s claim to an identity” (62). “The result is crucial for the categorization of identity and group belonging, leading to individuals of mixed descent being categorized as caught between, neither one thing nor the other, or both/and, and, significantly, not ‘real’ (authentic) Indians/Māori/Aboriginals,” Bell writes (62). She suggests that it is useful to compare this way of thinking, which “has long since become societal commonsense throughout the CANZUS societies,” with alternatives, such as the Māori concept of whakapapa, which “works according to an opposite, inclusive rather than divisive, logic” (62). In Māori society, she explains, people look for common ancestors or close points of connection, and “if you share one ancestor, no matter how many generations ago, your whakapapa connects you” (62-63). The idea of whakapapa also “provides the basis for a claim to tribal belonging—one, rather than all, ancestors being the minimal requirement for a tribal identity” (63).

“Diverse links between ontological hybridities, indigeneity and assimilation are evident in the histories of the CANZUS states,” Bell continues. “In racial terms, individuals of mixed descent were viewed in contrary ways, sometimes as lost and adrift, belonging to neither settler nor indigenous worlds, and at other times as ‘half-way’ to ‘civilized’ and eminently civilizable” (63). They sometimes became the “targets of a number of assimilatory policies, locating them on one side or the other of the indigenous/settler binary as it suited the colonizing, assimilatory strategy” (63). In Canada, for example, under the 1876 Indian Act, “mixed-descent children of indigenous mothers . . . were excluded from band membership and recognition as status Indians” (63). “Indigenous peoples were also assimilated according to the logics of cultural hybridity,” she writes. (63). For instance, states pursued strategies of “individualizing land title to introduce the ‘civilized’ way of life via European-style farming and landholding,” as well as assimilative educational practices and removing Indigenous children from their families (64). “Beyond these links between hybridity and assimilation there are some key differences in the categorization of indigenous identities in the four settler states that are necessary to understand to make sense of the contemporary politics of hybridity,” Bell continues. In Canada, for instance, status Indians have government-issued cards “that validate their native identities and entitle them to various benefits and privileges,” even though they may not be recognized as members of specific First Nations, while non-status Indians “claim indigenous identities on the basis of descent and cultural identification, but . . . fall outside of government-imposed definitions” (64). Such policies have been divisive, leading to a situation where “the contemporary politics of hybridity is almost entirely dominated by struggles to be indigenous, struggles for recognition from tribes, bands and/or governments” (65). The existence of the Métis nation in Canada is another complexity, with some being recognized by the federal government, and others not (65).

However, Bell suggests, “the pressure continues for individuals of mixed descent to make an either/or identity choice—to be indigenous or to assimilate into the settler community,” and pressure to make that decision can come from both Indigenous and non-Indigenous communities and be exerted in either direction (68). It is rare for someone to claim “a doubled indigenous-settler identity,” she contends, although many people might reasonably do so (68). The notion of hybridity “encapsulates the experience of multiple identifications as well as the strategies of negotiation and points of tension that are involved in living between/across/within two (or more) cultural worlds” (68). She summarizes the ways that writers (in particular) identify themselves, but notes that people “who fit the phenotypical stereotypes of indigenous peoples are subject to racism and more broadly to the assumption that they are native, despite their legal or tribal status, or how they may self-identify” (72). “The message form the settler community is—as ever—mixed,” she notes. “On the one hand, indigenous people are exhorted to abandon their claims to a distinct identity and ‘join the mainstream community’; on the other, on the basis of appearance they are frequently denied equality and inclusion” (72). As a result, many “individuals of mixed descent” will “claim an indigenous identity as an act of resistance and positive affirmation of indigenous being, in addition to being an expression of their lived sense of self” (72). “One expression of resistance is the assertion of ‘wholeness’ and a singular indigenous identity, against any idea that they are made up of ‘parts’ and neither one thing nor the other,” Bell continues (72). Other people remain “committed to both sides” of their heritage (73). For still others, “a desired transition to an indigenous identity can be made difficult or impossible by the loss of connection with family and heritage” (74). Some who look white are challenged by other members of Indigenous communities, while others are encouraged to identify as Indigenous “as part of the political project of resisting and reversing the effects of assimilation” (75). Some communities are inclusive, and others maintain “strict, even essentialist, criteria for membership” (75-76). “Either way, it is clear that as a result of historic and contemporary assimilatory pressures, the maintenance of a clear demarcation between indigene and settler (wherever drawn) is crucial for the survival of distinct indigenous peoplehood,” Bell continues (76). She quotes Linda Tuhiwai Smith: “‘Fragmentation is not an indigenous project, it is something we are recovering from’” (qtd. 76-77). 

Syncretic identities—the result of cultural contact between different Indigenous nations—are a form of “‘internal’ cultural dynamism” that is often not recognized (78). “From a political perspective, syncretic hybridities offer the means to construct a more inclusive identity,” Bell writes. “Rather than seek to ‘forget’ colonization by a turn to essence (as though colonization did not happen or did no harm, created no change), hybridity acts an important reminder of the colonial ‘break’ in the historical trajectory of identity” (78). She suggests that, along with Métis, “the identities of ‘Indian,’ ‘Aboriginal’ and ‘Māori’ . . . must be remembered as colonial constructs, as categories that didn’t exist before contact with Europeans imposed these terms onto the diversity and complexity of indigenous cultures, tribes, clans, nations and language groups across the CANZUS states” (78). I would imagine that Métis people would take great offence at that claim. Nevertheless, because of the history of such collective terms, “some are suspicious of their value to contemporary indigenous peoples, for whom the connection to pre-colonial indigenous communities depends on categories from within their own cultural frameworks—family, skin, tribe, village, nation” (79). At the same time, she suggests that the counter-argument—“that pan-tribal concepts can unite diverse tribes around shared interests, particularly agains the forces of colonization”—is understandable (79). She notes that Indigenous thinkers and writers disagree about these ideas (79-80). However, even opponents of “pan-tribal concepts,” such as Elizabeth Cook-Lynn, do find “the generic labels” useful “to encompass shared tribal experience and positioning” (80). According to Bell,

The multiplicities that constitute Indian, Māori and Aboriginal identities are sites of struggle between those suspicious of the colonial origins of these pan-tribal terms and those who acknowledge their unifying power, between those who seek to order indigenous diversity in the name of a normative (“authentic”) definition and those who seek to emphasize the differences within indigenous collectivities. These tensions between singularity and diversity are made fraught in the context of colonization, where the dangers of assimilation provoke a protectionist reaction against the recognition of diversity. (83) 

However, “[d]espite these tensions, the assertion of indigenous diversity can also be seen as ‘talking back’ to settler attempts to confine indigenous peoples to a singular image of traditionalism and racial purity” (83). Bell suggests that the coexistence of both traditional and hybrid forms of Indigenous culture suggest not only its survival, but also its dynamism and its refusal to be excluded from modernity (83). 

“The lens of hybridity can also be applied in various ways to the settler peoples,” Bell notes (83). In terms of syncretism, “white Canadians,” for instance, are made up of a variety of European cultural and linguistic groups (83). But her primary interest, she continues, “is the way that settler-indigenous hybridity works for those who claim a settler identity,” which is “not only unproblematic for the settler, but a positive affirmation of settler being and belonging” (84).”This settler hybridity has its biological/descent and cultural dimensions, both underpinned by the desires they represent—for redemption, for belonging, for the right to inherit the authority and legitimacy of the indigene,” she writes (84). For settlers, hybridity “is always a choice, and a choice made only when hybridity is enhancing and affirming of settler being” (84). “In North America, the ‘wannabe,’ the white person claiming some real or fictitious indigenous descent, is a well-known and disparaged phenomenon,” she continues (84-85):

Critics of this phenomenon point to the ease with which the white settler subject may take up and drop such identity claims, in contrast to the difficulties of such choice for most indigenous peoples. In addition, wannabe identifications serve to meet some need or lack on the part of the settler subject—again appropriating indigeneity for their own ends—rather than supporting indigenous interests. Finally, wannabe hybridization applies only in situations where the individual stands to benefit. (85).

However, beyond the “wannabe” phenomenon, “the influence of indigenous cultures on the cultural practice of everyday lives within settler cultures is also apparent” (85). Indigenous words enter the English language, for instance (85). Settlers are “a crucial market for the works of indigenous artists and designers” (86). “To some degree such appropriations are a mark of respect and admiration for indigenous cultures,” Bell suggests. “However, the problematic point is the way in which such appropriations are divorced from any support for, or understanding of, the wider political issues of indigenous struggles for survival and recovery, or the rights of indigenous sovereignty” (86). “The problem lies in the asymmetry in the way in which indigenous-settler hybridity works for each side, problematizing indigenous identities and enhancing settler ones,” Bell concludes (86).

“Ontological hybridities offer a contrast to essentialist accounts of identity in that the involve the introduction of change and diversity into the ways in which identities are conceptualized,” Bell continues in the chapter’s last section. “Thinking of identities in ontologically hybrid terms, then, does at least offer individuals a limited degree of choice in how they identify themselves. However, it is equally clear that there are powerful social influences that work to ‘determine’ the choices individuals make” (86). For colonized people, opening up identities in the context of “the logics of the settler imaginary carries the dangers of assimilation and loss of identity” (86). In addition, ontological hybridities “do not ‘escape’ essentialism, but represent its flipside,” because they “rely on the combination, rather than dismissal, of essence/s” (86-87). She cites Charles Hale’s call “to analyse specific identities and their politics” and suggests that “politically speaking, both essentialism and hybridity can be used in the service of colonial domination or in resistance to it” (87). 

“The legacy of the settler imaginary for indigenous peoples is the fraught oscillation of arguments for and against essentialism and for and against hybridity,” she writes, asking her readers to remember that those arguments take place within a “colonial environment” (87). “[W]e need to acknowledge the language of ‘blood’ as ‘a discourse of conquest with manifold and contradictory effects, but without invalidating rights and resistances that have been couched in terms of that very discourse,’” she states, quoting Strong and Van Winkle (qtd. 87). Indigenous peoples “are frequently caught in an invidious position in relation to the legacies of colonialism, legacies that include the internalization of ideas of authenticity, blood and race—and the struggle for survival against the odds” (88). She notes that Stuart Hall argued for the need to remember the “colonial break,” while also contending that it is impossible to entirely do away with, or undo, “the intertwining of European with indigenous worlds” (88). We also need to remember that “indigenous diversity and mobility has always existed,” that Indigenous societies “were never static and should never be expected to be” (88). “There was no era of ‘tradition’ before ‘modernity’; this too is a modern colonial construct,” she argues. “Colonization has greatly complicated the histories of indigenous diversity in ways that sought deliberately to undermine and destroy indigenous communities and ways of being. These colonial complications cannot be wished away or constructively denied” (88). Therefore, an Indigenous recovery “requires the combination of tradition and change, tradition and mixing, tradition and mobility, tribalism and pan-indigenism, to enable dynamic indigenous cultures to be the lifeblood of indigenous futures” (88). 

Chapter Four, “Performative Hybridity in the ‘Ruins of Representation,’” begins by describing Homi Bhabha’s theory of hybridity as “the most thoroughgoing alternative alternative to the ontological versions” of hybridity (93). Years ago I tried to read Homi Bhabha’s work, and I was stymied by his impenetrable prose; perhaps Bell’s discussion will function as an explication. Bhabha, she writes, 

is rigorously anti-essentialist in his approach to cultural identity, arguing that identity and culture are both practices without any essential foundation as such. No identity has an originary essence. Rather, all are constituted in and through difference. Here hybridity refers to the necessary instability and impurity of all identities, the figure of migration no longer the bearer of ontological mixture, but signifying movement itself, conceptualizing identities as forever in process, unstable, nomadic and “uprooted.” Rather than attend to the substance (hybridized or essentialized, “open” or exclusionary) of identity claims, Bhabha’s focus is the process by which identities are uttered, reiterated, performed. (93)

For Bhabha, culture is only a problem “‘at the point at which there is a loss of meaning in the contestation and articulation of everyday life, between classes, genders, races, nations” (qtd. 93-94). The purpose of culture, in such situations of conflict, “is to negotiate or disguise the conflict through appeals to community that work to exclude some and marginalize others,” and this “dominating operating of culture, and colonial culture in particular,” is what “Bhabha aims to expose and undo” (94). Bhabha “seeks out the weakness internal to such practices of domination and the scope for the play of resistant agency that this weakness offers”; he is interested in “power relations in the play of cultural identities, with practices of domination and resistance of the terrain of culture” (94).

Bhabha’s ideas are rooted in an understanding of culture and identity as systems of representation (94). “The instability and hybridity of identities arise out of two aspects of representation,” Bell writes. First, the gap between signifier and signified in language (as understood by semioticians), which is also a gap “between the asserting/speaking of identity and its reception and interpretation” (94). That gap “is a space, or time, of undecidability,” which Bhabha describes as both “Third Space” and “time-lag” (94). Second, “the notion of the ‘time-lag’ also points to the work of repetition in the construction of identity,” because “each iteration or re-presentation of identity differs from each previous iteration,” and that difference in repetition “adds to the inherent instability and lack of foundation in all acts and expressions of identity” (94). For Bhabha, “this mobility and repetition” is the source of “the opportunities for resistant agency” (94). “All subjects are migratory—in motion, contingent, moving between past representations of identity and enunciation in the present, and between enunciation and meaning,” Bell writes, and as a result, she uses the term “performative hybridity” to distinguish Bhabha’s ideas from the ontological forms of hybridity she discussed in the previous chapter (94).

According to Bell, Bhabha’s work focuses on the relationship between national and minority cultures and, more importantly for her purposes, the relationship between colonizer and colonized (94). His primary interest is in British colonialism in India, rather than settler colonialism, so he focuses on “the imperial colonizer, in the figure of the colonial administrator, and the colonized, and particularly . . . the possibilities of resistant forms of agency that the practice of representation allows,” but other scholars have applied Bhabha’s work to an analysis of settler identities as a way of illuminating and unsettling “the dynamics of colonial identity politics” (94-95). Bell’s focus is on Bhabha’s arguments “about the practice and menace of colonial mimicry, on how the ‘substance’ of cultural difference is situated in this theory, and on his use of Freud’s concept of the uncanny to describe the experience of the instability, or difference, of cultural hybridity” (95). She then examines how these ideas have been used to analyze settler and Indigenous subjectivities, particularly “the ‘doubled’ nature of the settler subject, located ‘in-between’ indigenous and metropolitan peoples” (95). However, Settler mimicry can do the work of domination, suggesting a limitation of Bhabha’s theory for thinking about settler colonialism (95). At the same time, though, “Bhabha’s performative hybridity allows us to identify possibilities of indigenous resistance,” although it “cannot acknowledge the value of the moment of ‘fixity’ in identity for indigenous peoples, which marks survival, presence, continuity, the border between indigenous self and colonizing other” (95). Bell also intends to think about “Bhabha’s uses of time and disjunction together with the very different ideas about time and indigenous identities outlined in Chapter 2 that have evolved from the disjunction of primitivism and civilization, tradition and modernity” (95). She argues that “the analysis of the indigenous presence in terms of the uncanny works by misrepresenting the co-existence of ‘indigenous time’ with ‘settler time’ as the Freudian return of the repressed” (95). According to Bell, “[p]erformative hybridity and the accompanying cluster of concepts from Bhabha’s work continue to operate on the terrain of the settler imaginary. They ‘speak back’ to this imaginary, but do not escape it. They cannot account for the existence of an autonomous indigenous ‘outside’ to colonial discourse” (95).

First, Bell tackle’s Bhabha’s notion of colonial mimicry. “The time-lag between one iteration and the next is the moment of undecidability in which the lack of essential foundation and the weakness of colonial authority are exposed and the possibility of resistance made visible,” she writes. “The practice of colonization as ‘civilizing mission’ incites the colonized subjects to make themselves anew, to become ‘civilized,’ to ‘speak’ a new ‘civilized’ identity via a process of colonial mimicry,” a process which “involves a process of doubling in which the English, for example, are repeated as the anglicized indigene, ‘almost the same but not quite’” (96). “Sameness and difference are simultaneously produced in a contradictory and ambivalent operation in which the colonial demand for mimicry points to the very difference it seeks to disavow and simultaneously insists on the retention of difference—the difference between the ‘mimic’/colonized and the ‘original’/colonizer,” she continues. “Colonial discourse is thus shown to be inherently ambivalent and the practice of colonial mimicry threatens colonial authority in two ways” (96). First, mimicry can be interpreted as a sign of respect or as mockery, “thus creating a sense of unease for the colonizer” as well as “a troubling equality between colonizer and colonized” (96). That mimicry also undermines the claims to originality of the colonizing identity by suggesting that original is not complete or finished, that it is open to translation and imitation (97). There is also a slippage between metropolitan orders and colonial imitation, which suggests that the colonizer, or settler, is also “a mimic subject, mimicking the authority of the centre” (97). Both kinds of mimicry, Bell continues, “work to undermine colonial authority, destabilizing the colonizing settler and empowering the resistant native. Thus Bhabha links the civilizing (but not quite) mission of colonialism to the deconstructionist recognition that every act of representation betrays its lack of identical-ness” (97). The “interplay of reiteration of identity and difference” is, for Bhabha, the possibility of “a resistant discursive agency which, through repetition, can disrupt colonial authority and these opposed colonial identities” (97).

Bell acknowledges that Bhabha’s focus on the imposition and mimicry of imperial authority refers to a historical situation rather than a contemporary one, that imperial authority no longer operates the way it did previously. However, it has been replaced by settler colonial authority, which “makes its own demands on indigenous peoples—that they be ‘civil’ in the sense of being Americans, Canadians and so on, while retaining their ability to ‘mimic’/perform cultural authenticity as required for cultural and symbolic purposes” (97). The desire or need for Settlers to imitate the imperial culture has been replaced by the desire or need to imitate Indigenous culture and hybridity, which suggests that performative hybridity may be a way to think about Settler appropriations of Indigenous difference (97-98). Bhabha acknowledges cultural difference, but he insists on “the undecidability of culture”: “What we identify as ‘culture’ is always a retroactive achievement; it comes after enunciation rather than providing the ground for it” (98). Culture is a matter of process, a becoming rather than a being, and for Bhabha cultural difference is not a challenge to colonization. That challenge lies elsewhere, “in the production and proliferation of a mobile, unstable and indecidable hybridity that speaks/articulates cultural ‘substance’ ‘otherwise’” (98-99).

According to Bell, “[t]he moment of difference . . . that appears in the enunciation of colonial identities is then a disturbance in the practice of colonial authority, a moment in which things threaten to escape the demands of colonial discourse,” and Bhabha uses Freud’s notion of the uncanny, which “describes a particular form of ambivalent anxiety,” to define that disturbance or unease that is “produced by the representation and disavowal of difference” (99).  The uncanny is a defining colonial and post-colonial condition which “marks the disruption and unsettling of binary logics and systems of discursive domination” and is “to be embraced for its insights into the workings of dominating power and as a disruption of that power, through bringing to light what has been disavowed” (99). Bell suggests that the application of the idea of “the time-lag to the moment between the demand from the colonizer and the response from the colonized” as uncanny “seems to foreground the experience of the colonizing subject,” since they are likely to find “this opening to resistance and change” to be “‘unsettling’ or troubling” (99). 

“Bhabha’s work leaves us with a cluster of concepts—performative hybridity, the time-lag, mimicry, the uncanny—that have been drawn up on by many subsequent scholars exploring the interface of colonial cultural contact,” Bell continues. In that work, “[b]oth settler and indigenous subjects are treated . . . as ‘doubled’ subjects—caught between the binaries of colonial discourse, although in distinctly different ways and with different effects” (100). Of particular importance is the work of Alan Lawson—whom I met once, 30 years ago, and who told me a story about cane toads in his Brisbane garden—“and his argument for the specificity of the settler subject as ‘in-between’ the authenticity and authority of empire and indigene” (100). According to Lawson, for Settlers “the practice of performative hybridity is unsettling but also settling,” and “the mimicries of the settler subject . . . work in support of the project of colonial domination” (100).

According to Bell, “Bhabha insists on the inherent ambivalence and ‘unhomeliness’ of colonial subjectivities. Ultimately colonialism fails to make the colonizer feel ‘at home’ in the colony, or the settler ‘at home’ in settler society” (100). Settlers are “out of place” (100). Lawson draws on Bhabha’s work to argue that “identifying the specificity of the settler subject is both ethically and hermeneutically important,” because avoiding doing so means disavowing the processes of settler colonialism (100). For Lawson, Settler cultures are “the ‘Second World,’” and he argues they are characterized by a doubleness, “at once colonizing and colonized, colonizing and other,” and thus the Settler subject is “the place where the operations of colonial power as negotiation are most intensely visible” (qtd. 101). Bell writes, “Lawson extends Bhabha’s analysis to the peculiarities of the settler subject, caught between the imperial centre and the indigene, between two sets of contending authenticities and sites of authority” (101). Both the Indigenous subject and the “imperium” are authentic (in the Romantic sense) and forms of moral authority, “the authority of ‘civilization’ in the case of the former, and of belonging and originality in the case of the latter” (101). Caught between these “contending positivities,” Settlers are figures of inauthenticity and “moral lack” which mimic “both the authority of the empire and the indigene” (101). 

Bell now moves to Daniel Coleman’s work on “white civility” as “a project of peaceful and progressive settlement, bringing civilization and order to the new society,” although the borders of that project are “maintained with uncivil violence and unfair exclusions” (qtd 102). Indigenous people, for instance, are denied within the project of white civility (102). “Coleman utilizes Bhabha’s and Lawson’s insights to ‘undo’ the authority of various figures of civility in Canadian literature,” Bell writes, but he concludes that such civility also “encapsulates positive values” and which can be encouraged to extend its borders (102). That project needs to be pursued “in a knowing and self-critical way” according to a stance Coleman calls “wry civility,” a play on Bhabha’s “sly civility” of the colonized subject (102). I’ve met Daniel, too, and I admire his book Yardwork very much; I have White Civility here somewhere, and Bell’s discussion has convinced me to read it, finally.

Next, Bell returns to Lawson and his argument that “the ambivalent location of the settler manifests itself in the ‘old tripled dreams’ of the colonizer”:

The first is the dream of effacement of the indigene and evacuation of the land, which allows the practice of settlement. The second is the now familiar dream of authentic indigeneity, which in an important sense also denies that colonization occurred, or that it did no harm since indigenous authenticity remains, seemingly untouched. The third is the familiar dream of inheriting indigenous authority or rights to the land, the dream of inheritance. (102-03)

Through these dreams, Settlers disavow “the colonial relation and their role in nit, narrating their own redemption and seeking to translate their doubled-ness into the singularity of settlement and homeliness” (103). However, “the settler’s simultaneous denial of, and dependence on, the presence of indigeneity means that these dreams of replacing the indigene as ‘first people’ (authentic and authorized can never be fulfilled” (103). For that reason, settlement is “always an anxious practice of repetition that can never be final, never ‘settled’ as the settler seeks to ‘stand in for’ the indigene who can never be replaced” (103). Lawson reverses Bhabha’s theory, though, by arguing that “settler mimicry works to serve domination and settlement rather than resistance to colonization” (103), which only makes sense given the different context Lawson is discussing. Bell suggests that in an era of Indigenous cultural and political resurgence, the dream of effacement Lawson describes is a historical phenomenon. I wonder if that’s true. It is, as Bell notes, key to narratives of settlement (103), but those stories continue to be told. In any case, I’ve downloaded Lawson’s article and plan to read it when I finish with this book.

Next, Bell turns to Eva Mackey’s discussion of contemporary Canadian nationalist narratives, which “provide examples of the workings of the settler dreams of innocence and inheritance, and also show how Coleman’s project of extending the borders of settler civility might continue the work of settler colonialism, albeit in a new, inclusive form” (104). She’s referring to Mackey’s book The House of Difference, which I probably should read—with libraries closed, research is getting expensive, because I end up buying books I could have borrowed (assuming they are in the library’s collection, which is never a reasonable assumption to make, I’ve discovered). Mackey argues that “the contemporary era of reconciliation and the reconstruction of settler nationalisms to incorporate rather than deny the indigenous presence can also work to redeem the settler, to secure their innocence in the ‘postcolonial’ national present and into the future” (104). Douglas Cardinal’s design for the Museum of Civilization is Mackey’s example, because it suggests (somehow—I don’t understand the argument, although I’ve been in the building) that Settlers give to the land rather than take it, thus mimicking Indigenous authenticity and “dreaming themselves as hybridized inheritors o indigenous right” (104). Another example is the Land, Spirit, Power exhibition at the National Gallery of Canada in 1992, in which the inclusion of Indigenous art serves to reconstruct Canadian national identity and tolerance, “so that the celebration of indigenous cultural vitality and diversity becomes a celebration of the nation’s redemption from the sins of colonization” (104). 

For Bell, these examples “illustrate how viewing settler subjectivities through the lens of performative hybridity has significant analytic power, identifying the uncertain ontological status of the settler subject” (105). “Practices of settler mimicry,” she writes,

mark the complex doubleness of settler subjectivities and point to the work that has to be done to keep colonial history at bay. Such analyses of the settler self as the “bearer” of colonial authority open up the possibility of the work of mourning for this occluded history and a new form of settler agency as self-critique. (105)

Bell cites Stephen Turner’s work on Settler self-knowledge as a way to disrupt ongoing colonizing strategies (105)—another article I need to read: “A ‘mournful’ confrontation with history and with the losses entailed can allow new ‘versions of historic memory’ and the possibilities of a post-settler imaginary to surface” (Bhabha, qtd. 105-06). Nevertheless, she suggests that “while these analyses highlight the troubling and undoing of colonial settlement and settler claims to identity and belonging, they also highlight the endless, iterative work of settlement that maintains the conflictual colonial relations between settler and indigenous peoples” (106). I wonder if those conflictual relations are really that complicated; perhaps they’re over land—land Settlers have taken and currently occupy, land which ought to be returned to Indigenous peoples.

Bell now turns to Indigenous resistance and performative hybridity. “The colonized indigene is also a doubled subject within colonial discourse, caught between the twin injunctions previously discussed—to become ‘civilized,’ to take on the culture of the colonizer, and to be the authentic indigene,” she writes:

As with the settler subject, this in-between position of the colonized indigene allows for and necessitates various forms of identity as reiteration in the service of indigenous resistance. The performance of authenticity can work as a site of resistant indigenous agency, serving indigenous political projects. And indigenous civility can take menacing forms, if no longer the form of mimicry of imperial civility that was Bhabha’s focus. As with the declining significance of mimicry of imperial authority in the case of the settler subject, the “menacing” connotations of indigenous civility take a somewhat different form in contemporary settler societies. Rather than unsettling colonial authority by pointing to its lack of foundation as Bhabha would have it, the non-indigenous communities of settler societies today are comfortable with indigenous peoples being “just like us”—workers, consumers, individualist, modern. Where it becomes problematic is where modernity—modern skills, economic forms, educational qualifications, sophisticated legal arguments—is put to the service of indigenous, communal, collective interests, where modernity/civility is used to resist rather than embrace assimilation. In such instances “indigenous civility” can still be a menace. (106)

Bell proceeds to give two examples of such menacing civility: Patricia Wald’s analysis of the famous Cherokee Nation vs Georgia court case, and Stephen Muecke’s account of the life of David Uniapon, a Ngarindjerri man from South Australia. “Indigenous mimicry, or performance of authentic tradition, has been a frequent focus of scholarship, with ‘playing native’ often being seen as a form of acquiescence to settler demands for indigenous authenticity,” while it can also be seen as providing “a space and time in which indigenous difference is ‘recognized’ rather than disavowed and hence a site for indigenous agency” (108). She discusses the differences between Philip Deloria’s and Gerald Vizenor’s accounts of the life and writing of Charles Eastman, coming to agree with Vizenor’s association of sovereignty and agency with mobility of identity (108-10). She also discusses Simone Drichel’s analysis of Patricia Grace’s short story, “Parade,” and Stephen Pritchard’s work on contemporary Māori tattooing (110-11). 

“For indigenous subjects Bhabha’s approach to hybridity draws attention to forms of resistant agency on the terrain of colonial identity politics—both a means to resist and undermine settler/colonial authority and the reclamation of indigenous cultural space under the sign of an indigenous authenticity that, by definition, excludes the settler,” Bell writes. “However, for indigenous peoples Bhabha’s theory is problematic at the very point of its strength in relation to the settler—in the focus on difference as undecidability, and on mobility over cultural substance. In a context in which a fractured and destabilized identity is understood as the outcome of colonization, the idea that this is a condition to be embraced is a difficult sell” (111). She concludes that “Bhabha’s call to indecidability is not enough,” and while it “may represent a powerful and crucial mode of resistance on the terrain of identity politics,” it doesn’t “offer any ‘ground’ for projects of indigenous recovery, which are themselves crucial forms of resistance to domination” (112). Thus it might be better to focus on the problematics of practices of Settler judgement of Indigenous authenticity and cultural difference in order to “consider how we might abandon or challenge them” (112).

In the chapter’s final section, Bell thinks “about the issue of an indigenous ‘outside’ not fully captured by colonial discourse” through a discussion of the notion of ghosts as figures for “the presence or emergence of unwelcome signs of indigeneity” that appears repeatedly in Settler literatures (112). This discussion is intended to extend Bhabha’s work “in ways that are helpful in thinking further about the continuing existence and presence of indigenous difference” (112). She discusses Renee Bergland’s work on Indigenous ghosts in early 19th-century American texts, in which “the indigene is incorporated into the time of settler history and their becoming as national subjects,” with the haunting becoming “another mode of appropriation,” as such ghosts become “the ‘ancestral spirits’ of the Americanized settler subject” (113). “Crucially though, while the indigenous ghost that haunts the settler is conceived by them as a figure from the past, a figure ‘out of time,’ for indigenous writers the indigenous ghost may mark the continuing presence of indigenous culture in time,” Bell continues (113). Such ghosts “work as ‘reconstructive agents’ that combine memory and imagining,” or tradition and recovery (113). “Other writers identify the same disruption to the settler imaginary and settler modernity by these unassimilable ‘chunks of difference’ without resort to the language of the ghost and the uncanny,” thereby refusing to reduce “indigeneity to ghostliness, to the status of relic from another time, and seek to properly register these continuing differences” (113-14). Stephen Turner’s work “on the persistence and inassimilability of Māori indigeneity,” for instance, “centres on the ongoing presence of what he calls Māori history of place, of Māori in Aoteoroa New Zealand, and on the settler inability ever to know or incorporate that history” (114). For Turner, the figure of the ghost is totally inadequate; he uses the Māori term tapu to suggest “the inassimilable ‘chunks’ of indigenous difference that lie outside and before the imposition of colonial settlement” and which “continue to exist alongside it” (114). “It is not a matter of a ‘return’ of a repressed history—that is, our own forgotten/denied history—but a matter of the co-existence of indigenous differences that are unencompassable within the worldview of western modernity, but must be reduced to ghosts, myths and dreams to be accounted for at all,” Bell writes (114). Of course, those differences could just be accepted as something beyond Settler understanding rather than reduced to anything. Why not?

“Each of these writers point to an indigenous ‘outside’—knowledges, temporalities, ontologies, life-worlds—that, while Bhabha doesn’t deny its existence (although he would deny it any foundational essence), is not his focus,” Bell continues. “Bhabha’s concern is to undo colonial discourse and colonial authority from within, to point to the internal fissures that deconstruct them,” and “the troubling repetitions of disavowed traces of difference” are central to his project (114-15). He is interested, in other words, in “how this cultural difference troubles colonial authority, rather than the ‘ground’ it provides for indigenous autonomy and persistence,” no doubt because he is not interested in settler colonialism, where “the colonizers have never left and have staked their own presence on the disappearance of any autonomous indigenous existence beyond their own categories of knowledge and evaluation” (115). For Bell, “[r]eclaiming the ground of indigenous autonomy, the indigenous outside, is . . . crucial for indigenous peoples” (115). Performative hybridity thus has limitations in the settler colonial context, particularly because its “field of operation remains the settler imaginary” and because his ideas “cannot account for the equal importance of the indigenous ‘outside’ to indigenous agency” (115). She quotes Linda Tuhiwai Smith: “the native does have an existence outside and predating the settler/native identity” (qtd. 115). That seems so obvious that it doesn’t bear repeating, but perhaps given the ways that settler colonialism have warped our perceptions, it needs to be said.

Chapter 5, “Strategic Essentialism, Indigenous Agency and Difference,” begins with a quote from Leonie Pihama about the survival of Māori identity even in a post-colonial era. “This is a position that Bhabha’s performative hybridity cannot account for,” Bell notes (116). (I wonder, then, why bother with performative hybridity at all?) Strategic essentialism, like performative hybridity, is a “central identity concept of postcolonial identity politics,” and it “aims to describe identity practices of resistance to dominant groups’ impositions,” although “unlike performative identity, it is a concept that brings us more firmly back to the ‘substance’ or ‘essence’ of identity claims” (116). The notion of “strategic” essentialism, she writes, “foregrounds the suspicions of all claims to essence evident within post-structuralist and postcolonial theories”:

On the one hand, there is the theoretical rejection of essentialism that arises out of post-structuralism and constructionist theories that view representation as constitutive, rather than expressing an already existing reality. This is the kind of theorizing evidence in Bhabha’s account of “culture as enunciation,” as something brought into being in practices of expression and reception. (116)

Such theories have the advantage of refusing “the ‘freezing’ of identities of ‘others’ that has been one of the practices of domination” (116). 

“On the other hand,” Bell continues, “critical analyses of identity politics have adopted an anti-essentialist stance, pointing to the violence involved in practices of representation that inevitably reduce and exclude and hence involve forms of domination” (116-17). When boundaries are drawn around an identity in such a way that people who might choose to define themselves that way—in other words, “where self-ascription and social ascription don’t match”—it is a problem (117). “At the same time, articulations of identity are necessary, and no more so than for indigenous peoples who are struggling for their very survival,” Bell writes (117). She turns, again, to Stuart Hall for an acknowledgement of the difficulties involved in identity politics in the context of constructionism and anti-essentialism. Hall argues that the encounter with anti-essentialism is “dangerous” to Black (and, Bell adds, Indigenous) identity politics, because it leaves “claims to essence” standing “on shaky and contestable ground,” and thus such claims “can only be self-consciously ‘knowingly’ made” (117). For that reason, arguments about the “strategic use of essentialisms have been developed in acknowledgement of their continuing necessity to the politics of subordinated groups” (117). Bell suggests that strategic essentialism “is a way of having your cake and eating it too, effectively—of accepting the theory of anti-essentialism and constructionism while, as a political strategy, asserting identity claims on the basis of some ‘essence’ shared by the collective united by the name” (117).

This chapter only discusses “the encounter between the concept of strategic essentialism and assertions of ‘essential’ differences as the basis of indigenous identities,” and does not discuss the politics of Settler identity, because as dominant peoples, Settlers “grant themselves the privilege of internal diversity and flexibility—their culture is ‘normal,’ they are individuals, barely collectives at all—allowing them to largely escape the problematics of essentialism that modern western theories have imposed upon others (the authenticity of settler national identity aside” (117). Okay, but why not then recognize the “internal diversity and flexibility” that is part of Indigenous groups? 

According to Bell, strategic essentialism is associated with the work of Gayatri Chakravorty Spivak, and so she begins by presenting Spivak’s argument before discussing its limitations and impact, followed by a proposal for rebuilding Indigenous identities from the autonomous foundations of Indigenous difference (118). That proposal, she writes, “combines ‘essence’ and dynamism, continuity and change” (118). Accepting Indigenous knowledges and ways of being, she continues, “raises the question of the possibilities for non-colonizing relationships between these and those fo the western settler subject” (118). Bell believes that “the invocation of a dynamic, rather than static, cultural ‘essence’ as the basis for indigenous claims to autonomous difference is crucial to the assertion of full human agency. To be self-determining is to be a producer of culture and political and social orders, not just a register of domination” (118). Settler peoples can no longer deny self-determination to others; autonomous or self-determining Indigenous difference, she continues, “represents a first step towards shifting indigenous and settler relations ‘beyond’ the settler imaginary,” a “beyond” that “must be a site of epistemological pluralism, in which indigenous ways of knowing and being are accepted as equally valid as those of the west” (118).

Unlike Bhabha, Spivak is suspicious of celebrations of hybridity (118). Hybridity, for Spivak, is “‘the benign rusing face’ of the dominance of global capital,” and it “continues the domination of the colonial past” (118). Although she translated Jacques Derrida, Spivak argues that deconstruction cannot be the basis of a political program; it can only be an anti-essentialist critique, and its anti-essentialism necessarily sits alongside “the need to continue to use essence, because without essence there can be no politics” (119). For Spivak, Bell writes, “there can be no political representation . . . without the discursive representations . . . that claim an essence—‘the worker,’ ‘the woman,’ ‘the indigenous’ or ‘the colonized’” (119). Such essentialism is a strategy that is necessary to political action (119). “She is concerned with the construction of a subaltern agency through strategic recourse to the humanist subject,” Bell continues (119). However, she writes, “[o]ne of the key limitations of strategic essentialism . . . is that it cannot account for the place and role of the now subordinated Aboriginality itself, except as a political strategy in resistance to domination” (119-20). In contrast, Bell argues for “the continuing place of indigenous ontologies and epistemologies (in other words, the ‘facticity’ of indigenous difference) in the practice of indigenous agency” (120). “Indigenous knowledge systems constitute a counter-archive to the colonial archive that has been the source of domination,” she states (120).

For Bell, there are three critiques to be made about the limitations of strategic essentialism in relation to the politics of Indigenous peoples:

Firstly, there is the suggestion in Spivak’s work that essentialism is a “good” strategy only when it seeks to undo the very terms it invokes; a logic that I argue has its limitations for indigenous identity politics. . . . For indigenous peoples, essentialist claims (to cultural authenticity) may have a deconstructive element . . . but are also importantly about claiming and protecting some autonomous space, a space in which indigenous rather than settler peoples judge what is correct and appropriate or not. Secondly, in ignoring the content of identity claims in favour of their strategic uses, the concept ignores the point that the “substance” claimed in the practice of political representation does matter. Finally, strategic essentialism remains anti-essentialist in that it holds that the “essence” underpinning an identity claim is not true, not real, not authentic, but a claim made for political purposes—as a strategy. (120)

For Spivak, Bell continues, “the ‘good’ use of essentialism can only be in the pursuit of a deconstructive project, a political project whose aim is to overcome the very terms it invokes,” such as “Marx’s invocation of class consciousness to fight capital in the ultimate interest of overcoming class altogether” (120). The “political aim of the subaltern subject is to critique the very form of subjectivity they invoke (because the foundations of these subjectivities are not ‘real’ but arise from antagonistic social relations” (121). However, applying this idea to the colonized, Indigenous subject is complex. “What is it about the form of this subject that is being critiqued?” Bell asks, noting that, unlike the example of class consciousness, “the claiming of indigenous identities is not aimed at ultimately dismantling indigeneity” (121). Rather, “indigenous peoples crucially desire to maintain their difference and autonomous existence” (121). It is colonization that is to be dismantled—“colonial relations and the colonial identities of colonizer and colonized”—while maintaining “the difference of indigeneity” (121). “Any politics of recovery for colonized people requires more than the deconstruction of colonial relations,” Bell argues; instead, it requires “the survival and recovery of the remnants of the ‘Aboriginal dominant’” (121). She suggests that “a crucial part of the indigenous project is not only the destruction of colonialism but the ‘recovery’ of those fragments of indigenous ontologies and epistemologies” (121). “Hence, Spivak’s support for the use of essentialism as resistance to domination does not translate exactly to the situation of indigenous identity politics,” Bell continues (122). Indigenous political agency involves a positive politics of resistance and resurgence,” she states, citing Taiaiake Alfred and Jeff Corntassel (122).

In the chapter’s next section, Bell explores the problems of anti-essentialist positions for the recovery of “the indigenous ‘outside’” (123). She concludes that “two crucial features [are] necessary to decolonizing identities: agency and the cultural remnants from the ‘Aboriginal dominant’—memories, traditions, languages, concepts, everyday practices that survive from the time before colonization” (127). These are intertwined: “to be a producer of culture is to be a creative, sovereign agent” (127). According to Bell, “Indigenous writers throughout the CANZUS societies are integrally involved in projects of cultural regeneration within their own communities and are clear in their assertion of a distinct and autonomous source or ‘essence’ in the construction of indigenous identities” (127). She cites Linda Tuhiwai Smith’s discussion of Indigenous spirituality and M. Scott Momaday’s notion of “blood memory” as examples (127-28). “In invoking indigenous forms of spirituality, or forms of connection to past and place that lie outside of western frameworks of knowledge, Smith and Momaday point to both dimensions of projects of indigenous recovery,” Bell writes. “Such a project requires a space of autonomy, a boundary between the indigenous and non-indigenous, in which to act. Within that space indigenous communities can pursue the project of reclaiming and rebuilding the cultural fragments that found distinctly indigenous ways of life” (128).

“As the terminology suggests—recovery, resurgence, re-inhabiting, re-membering, re-making—the foundations of autonomous indigenous identities cannot take the form if a static traditionalism as represented in the settler imaginary,” Bell continues (128). Indigenous people, in other words, can be just as dynamic, diverse, and contradictory as Settlers, and if Indigenous identities are based on pre-colonial foundations that doesn’t mean “they are unsullied” or “come to the present ‘whole’ and untouched by history” (128). In fact, “[t]hat passage through history is indicated by the use of terms such as ‘fragments’” (128-29). She discusses Eva Marie Garroutte’s notion of “radical indigenism” as one way that Indigenous communities might approach the project of recovery “on dynamic foundations” (129). Garroutte “argues for the importance of forms of indigenous self-construction for two primary reasons”: first, the desire for recovery of Indigenous traditions as something living and in which to live, and second, the idea that Indigenous knowledges have value for the rest of the world (129). Bell quotes Garroutte’s definition of “radical indigenism”: “rebuilding traditional knowledge from its roots, its fundamental principles” (qtd. 130). “This is a firmly indigene-centric project, founded on the traditions, values, knowledges, practices and stories that persist within indigenous communities,” Bell writes. “Fundamental to the project of radical indigenism is that indigenous cultural resources be taken seriously as bodies of scholarship, equal to those of western science” (130). Their spiritual elements need to be retained and taken seriously, rather than being understood as merely symbolic (130). She cites Anthony Appiah’s statement that it isn’t obvious how much spirituality intellectuals must give up or understand as merely ceremonial as an issue for scholars of radical indigenism as well (130). Garroutte advocates that Indigenous communities engage in a method of inquiry that “begins from the ‘Original Instructions’ of the cultural tradition” (130). This argument doesn’t seem too far from John Borrow’s insistence that Indigenous stories contain legal principles, and Garroutte does discuss punishments for social transgressions, such as banishment, and the fact that “kinship obligations in American Indian communities extend beyond the human world to the animal and natural worlds” (131). 

“Acceptance of the living difference of indigenous knowledges and ways of being—and of their necessity to the survival of indigenous peoples, as peoples—raises the issue of the ‘proper’ relationship between these indigenous knowledges and western knowledge, and between western/settler people and indigenous knowledges,” Bell continues. “How can or should settler peoples relate to indigenous difference in ways that do not continue the politics of erasure and assimilation canvassed earlier in this book? What might it mean to take indigenous epistemological and ontological and temporal differences seriously—as something lived, to relate to as equal but different forms of rationality, as something to ‘encounter?’” (131-32). Those are excellent questions, ones I struggle with when I am asked to accept the notion of a Creator by an Indigenous Elder, and as Bell suggests, they “relate to the larger question of how settler and indigenous peoples might co-exist in non-colonizing ways”:

What relationships between indigenous and settler knowledges and ways of being will support the project of decolonization? Are these bodies of knowledge entirely distinct? Are they incommensurable? Is it possible for settler peoples, with their problematic legacies of “knowing” indigenous peoples as a means of assimilation, to learn from indigenous peoples and engage with indigenous knowledge in ways that are not colonizing? (132)

Bell begins with the question of whether Indigenous and western knowledges are incommensurable, beginning with the Australian scholar Dick Moses, who criticizes the idea that they are incommensurable. For Moses, a Settler scholar, arguments about “the radical difference of indigenous knowledges and ways of being” and “their untranslatability and pristine difference from the orders of western thought and being” is that “such positions are linked to the tendencies to idealize pre-colonial indigeneity and hence to render that indigeneity beyond critique, including self-critique” (132). That kind of orientation also limits Indigenous agency by blaming everything on the colonizer (132). He suggests that the work of Indigenous scholars, such as Garroutte, whom he argues see Indigenous difference in less absolute terms, indicates an openness to engagement by outsiders (133). However, Bell notes that while Garroutte does see Indigenous scholarship as something that is open to all, she contends that Settlers “must be prepared to ‘enter tribal philosophies’ and ‘enter tribal relations’” (qtd. 133); in other words, they must be willing “to abandon any idea of the superiority of western systems of knowledge and to accept indigenous philosophies as legitimate and operating according to their own rationalities,” as well as becoming “primarily accountable to the tribe, to make a commitment to the indigenous community with which one works, to accept their authority at the price of lessening one’s own academic authority, and also to accept the tribe’s requirements that some knowledge not be made public” (133). For many Settler academics, these demands might be difficult to accept.

It’s clear, then, that for Settlers, engaging with Indigenous knowledge, on Garroutte’s terms, “is not simply a matter of book learning, but of living and experience, and also, crucially, of entering into relationships of responsibility and reciprocity with indigenous communities” (133). “This demand for a high standard of commitment from non-indigenous individuals seeking to engage with indigenous knowledges seems reasonable in the face of the history of colonization and the role that the assimilation and reduction of indigenous knowledge has played in that history,” Bell continues (133-34). Allowing Settlers to engage with Indigenous peoples remains dangerous for the latter, because of the danger of Settler mimicry: “if settlers can know and do it too, what happens to the authority and autonomy of indigenous knowledges and ways of being?” (134). 

“Finally,” Bell writes, “while the divide between indigenous knowledge and non-indigenous individuals is not unbridgeable,” in one instance, “this divide is at times absolute, and at least more difficult to straddle . . . and the ontological difference . . . apparent”:

While the western mind is capable of learning indigenous ways, or learning to walk in an indigenous world (with much effort and time and the right orientation to engagement), indigenous and western knowledges cannot be ‘held’ or ‘lived’ at the same time. In some crucial sense, and at some crucial points, the two cannot be combined or brought together; it is one or the other. (134)

For instance, one might see a rock as “a sedimentation of organic compounds,” or as a spiritual being, “but not both at once,” or a river can be either “a resource to be exploited” or an ancestor, but not “both at once” (134). “There are times—when it comes to practice, to living—where it must be either/or,” Bell writes. “This is the meaning of the saying that indigenous people have to ‘walk in two worlds. As non-indigenous peoples we can learn to walk in two worlds also—if we are willing. But the question of how the two worlds themselves co-exist remains” (134).

In the chapter’s conclusion, Bell returns to the concept of strategic essentialism, suggesting that it foregrounds the notion that all identity claims are inherently political (135). However, she continues, “the ‘substance’ of identity claims are a crucial part of those politics—what is claimed to found a particular identity does matter,” because such claims “rely on the articulation of some ‘substance,’ some positive content” (135). To claim that all claims about content or substance are essentialist “is of little political or analytic assistance” (135). “The historicized and constructionist approach to identity,” she suggests, “avoids the assertion of essence in terms of fixity and purity, allowing for the interweaving of elements of continuity and change,” allowing for a “dynamic construction of identity” that allows Indigenous people “the freedom to be self-defining and to be both traditional and modern,” something Settlers assume for themselves (135). “This is precisely one of the gains of constructionism over assertions of purity and stasis,” she continues. “The narratives of history and the choices and emphases made in practices of identity construction, and living an identity, are always subject to revision and remain sites of contestation” (135). Accepting “the living difference of indigenous epistemologies and ontologies raises important challenges for the non-indigenous members of settler societies,” however, because of the claims to universal truth that are deeply rooted in Western thought (135). “The provocation that other knowledges and ways of being lay at the door or the west is to accept the equal validity and value—at times even superiority—of ways other than the west’s own,” Bell writes. “The challenge of not reducing unassimilable indigenous beliefs and practices to the status of myth and superstition, of grappling with other cultures’ standards of evidence and truth, is not to be underestimated” (135). Decentering the the West, she states, citing Salman Sayyid, means abandoning any notion of the universality of the Western project (136). The third part of Bell’s book “aims to provide some insight into the complexity of this challenge and possibilities for engaging it” (136).

Chapter 6, “‘Deep Colonizing’: The Politics of Recognition,” begins with the announcement that this chapter, and the next, will “centre on modes of settler responsiveness to the co-existing, living difference of indigenous communities” (139). “If settler peoples accept the rights of indigenous peoples to establish the boundaries of their own communities and collective identities, and their rights to pursue their own ‘ways of life,’ then how to settlers respond to indigenous claims and assertions as neighbours and co-citizens?” she asks (139). What do Settlers need to do “to support indigenous projects of repair and recovery”—or at least “not to hinder and thwart them?” (139). “What kinds of future relationships might we envisage between indigenous and settler peoples that would support indigenous flourishing, and avoid repeating the colonial patterns of misrecognition of indigenous cultures and peoples as authentic or inauthentic, primitive or civilized?” she continues. “And, at the heart of all these questions is another—what changes in settler self-identities and entrenched patterns of thought and behaviour are required to support the development of new, decolonized relationships between indigenous and settler peoples?” (139-40). These are the questions at the heart of my research, and I don’t know how to answer them; my hope is that Bell can provide some ideas.

She notes that Settler state responses to Indigenous political struggles have generally taken the form of a politics of recognition: “Through a range of legal and political processes—courts, tribunals, commissions of inquiry—settler governments have sought to ‘recognize’ indigenous cultural difference and indigenous persistence, and to ‘reconcile’ or ‘settle’ the rights claims made by indigenous communities” (140). The focus of Indigenous communities has been on reparations for injustices and “securing the land and resources to ensure the continuing life of the community”—including “forms of self-governance, sovereignty, self-determination” (140). Those claims are supported by two different kinds of argument: “that the group has survived colonization and continues to exist, and that they have experienced injustice as a result of acts of commission or omission of the settler state” (140). In other words, those claims are underpinned by “claims to peoplehood and debates over history” (140). Recognition politics takes a variety of forms, but it typically involves negotiations between Indigenous communities and governments (140-41). “The focus of this chapter will be on the legal arguments and processes that adjudicate on issues of collective indigenous rights and redress,” both Indigenous and Settler—the latter represented by Charles Taylor, Will Kymlicka, and James Tully (141). Then the chapter will consider the achievements and limitations of the politics of recognition for Indigenous communities, before finally discussing “what desires of the settler subject are highlighted by theories and politics of recognition” (141).

First come the different theories of recognition of cultural difference (141). Taylor’s account of cultural difference “is based in a theory of identity” and thus “most closely follows the concerns around which this book is structured” (141). Kymlicka, on the other hand, “begins from the reality of multiculturalism and a concern to work through the possibilities of multiculturalism being accommodated within liberal political theory” (141). Tully also begins with multiculturalism, and asks if the British common law tradition can accommodate cultural plurality (141). “These theories of recognition then arise from attempts to develop the philosophical bases on which liberalism can be modified to encompass collective forms of difference,” Bell writes. “How can liberalism, fundamentally based on the equality and freedom of rational individuals, be transformed to account for collective forms of life and group rights?” (141). Each theory “turns our gaze back on the western liberal subject and what changes are required of, and can be accommodated within, settler liberalism in response to the claims for justice of culturally distinct communities” (141-42).

First up is Charles Taylor’s theory, “founded on a Hegelian argument that identity is intersubjectivity constituted” (142). In other words, identity is not an essence but is developed socially, through interaction with others, which means that a successful or secure individual identity depends on recognition from others (142). Culture is therefore “a requirement of human flourishing and a multicultural liberal society needs to be able to recognize cultural diversity” (142). But for Taylor there are limits to liberalism’s ability to recognize cultural difference; some forms of culture will be incompatible with and unrecognizable to a liberal polity (142). At the same time, “the demand that cultural difference be recognized as of equal worth cannot be easily dismissed” (142). Taylor explores the debate over expanding the literary canon to include women and nonwhite authors, which requires a revision of judgements of literary value: “calls for changes to the grounds for cultural judgement amount to the demand for the recognition of the equal worth of the claimant culture” (142). Quick judgements run the risk of ethnocentric outcomes, to before granting recognition of equal worth we need to study the cultures in question and judge their contributions to human society (142-43). In the meantime, we owe claimants the “‘presumption of equal worth,’ grounded in the assumption that ‘cultures that have provided the horizon of meaning for large numbers of human beings . . . are almost certain to have something that deserves our admiration and respect, even if it is accompanied by much that we [liberals] have to abhor and reject” (qtd. 143). For Taylor, Bell writes, “relations of recognition are fundamentally epistemological; they are a matter of knowledge, relations formed in learning about each other,” and each side must remain open to the possibility of learning form the other (143). The epistemological relation on which we base our judgements about cultural value are “construed as mutual and reciprocal, rather than dominating and reductive,” and it results in a transformation and fusion of the epistemological frameworks of both sides (143). 

For Bell, there are three fundamental problems with Taylor’s theory for those who want to “conceptualize a non-dominating relation with indigenous cultural difference” (143). First, despite Taylor’s emphasis on “reciprocal engagement and a willingness on the part of each group to be transformed by the study of the other, from the outset there is a degree of inequality in the roles of the parties to the recognition relation; there is a ‘recognizer’ and a ‘recognizee’” (143). The Western liberal subject and society do not need to be recognized, in other words: “Only the culture and identity of one side of this engagement is subject to judgement by the other” (143). The side that makes judgements is the Western liberal side. In addition, Taylor is “clear that there are limits to what the judging (western) self will accept,” and the “asymmetry of the relationship suggests that the only ‘displacements’ likely to occur for liberal, western subjects in this exchange will be freely chosen expansions of their existing ‘horizon of value’” (144). “Anything too discomforting or ‘abhorrent’ to that liberal culture would result in the claimants’ case being rejected,” Bell writes (144). Second, “the outcome of successful struggles for recognition would be ‘inclusion’ within broadly existing liberal frameworks” (144). The claimant for recognition is thus one that implicitly comes from outside those frameworks (144). Desires for self-determination are not addressed in Taylor’s theory (144). In addition, “the logic of the relationship in this account is one in which the claimant of recognition ‘arrives’ from the outside, reversing the historical relations of colonization which began with the arrival of those who established the liberal state on indigenous lands” (144). Applying this theory to Indigenous-Settler relations would involve a “crucial amnesia around issues of first occupation and prior right” (144). I doubt, though, that Taylor is considering Indigenous-Settler relations in his theory; isn’t his concern with the cultural claims of immigrants to Settler society? Finally, Bell argues that “there is a problem with Taylor’s view of recognition as a fundamentally epistemological relation of ‘getting to know’ each other”: it presupposes that culture is “a unified, discrete—and fairly static—totality” (144). This suggests that essentialism has snuck back into Taylor’s theory. Moreover, the “assumption that a culture is a knowable whole problematically repeats the form of epistemological domination by which the west has studied and consumed difference. Indigenous people, and non-white people generally, are weary and wary of being studied and subjected to western categories of evaluation” (144). “In sum,” Bell concludes, “for colonized peoples Taylor’s vision of social inclusion as a ‘fusion of horizons’ sounds suspiciously like assimilation and the continuing loss of culture and identity already familiar after centuries of colonialism and domination” (145).

Next, Bell takes on Will Kymlicka’s theory of recognition, which “is grounded in political theory rather than a theory of identity” (145). In addition, relations between Settlers and Indigenous peoples are central to Kymlicka’s argument. “Like Taylor, Kymlicka argues that individual freedom requires membership of your own ‘societal culture,’” and such cultures give us “‘contexts of choice’ within which  individual life choices are offered and lives are made meaningful” (145). Kymlicka believes that “the right of indigenous communities to recognition is based on their existence as ‘national minorities,’ defined as ‘historical communit[ies] more or less institutionally, complete, occupying a given territory or homeland, sharing a distinct language and culture,” and on the basis of that definition, those communities can be granted “‘group-differentiated rights’—to self determination and to special representation at national levels of government” (145). For Kymlicka, then, Indigenous peoples would have to meet the criteria of a national minority, “with all the inherent pitfalls of defining and then trying to establish historical continuity and cultural distinctiveness after centuries of colonial pressures aimed at destroying indigenous communities” (145). Kymlicka does recognize this problem, and he “argues that even a severely decimated culture can be rebuilt and that it is up to individuals and groups whether or not that is what they want” (145). Therefore, “the primary requirements of Kymlicka’s definition are the desire, or political will, to assert cultural distinctiveness and the occupation of an appropriate territory” (145). Occupation of territory, for Kymlicka, means being the majority in a specific geographical enclave; “groups who do not live in such distinct territorial enclaves” have “no other avenue to the recognition of their indigeneity in this theory” (145). For Kymlicka, “claims for collective rights can be based on either appeals to equality (the right to live within your own societal culture and therefore for your culture to receive special protections if it is disadvantaged in the ‘cultural market-place,’” or on “the existence of ‘historical agreements’” (145-46). He notes that not all Indigenous nations joined Canada voluntarily, “but considers this renegotiable in the present to make the basis of their federation ‘more voluntary’” (146). 

As with Taylor, Bell writes, “in Kymlicka’s account there is a ‘recognizer’ and a ‘recognizee’” (146). That relationship is “fundamentally asymmetrical,” and while he acknowledges colonial injustice, “he is pragmatic about the existence of the settler state and the fact that indigenous communities are now ‘inside’ that state and hence must negotiate their existence within it” (146). Any recognition therefore “must ultimately be compatible with liberalism” and “the legitimacy of the settler state is not subject to question” (146). Again, “only one side is set up for judgement of their identity and rights” (146). In addition, “the terms of what might be granted if those rights are recognized are already preset for both Taylor and Kymlicka—effectively a mix of policies aimed at cultural protection and, in Kymlicka’s case, limited forms of self-government” (146). Neither suggests that the dialogue between the Settler state and Indigenous nations “might include an open-ended discussion of what they want, in which anything might be considered,” including “the legitimacy of the settler state itself” (146).

Finally, Tully “begins with the fact of cultural difference in contemporary Canadian society but, rather than framing his argument in terms of the relationship between liberalism and multiculturalism, explores the history of British constitutional law for historical forms of recognition” (146). He compares “ancient constitutionalism” to “modern constitutionalism,” which “encompasses liberalism, communitarianism and nationalism” (146). Tully sees the ancient version as supporting cultural diversity (146-47). It “rests on three ‘conventions’—mutual recognition, consent and continuity”—guides to action which become norms over time, through repeated use, “and hence provide a negotiated and already tried foundation on which to pursue justice in cultural recognition” (147). Bell suggests that consent and continuity are straightforward and represent improvements over Taylor’s politics of recognition: consent is “the fact that a constitution requires the consent of all parties,” and continuity holds that a peoples’ culture and forms of government continue even after conquest unless they explicitly agree to change them (147). “Mutual recognition is fundamentally recognition of peoplehood and rights to self-government,” but it is different from Taylor’s and Kymlicka’s version of recognition, because rather than “an end state to be achieved or settled in any way once and for all,” it is “a form of ongoing commitment to a relationship, with any settlements and agreements being understood as moments that over time will need to be revisited and adapted to present ends” (147). That resembles the Indigenous understanding of treaties, I think. For Tully, dialogue is a “multilogue,” a term he uses to “highlight the multiplicity and cross-cutting nature of diversity” (147). “The nature of multilogue depends on two key orientations or understandings of the nature of the parties to the relationship,” Bell writes (147). First, “cultures cannot be conceived as discrete wholes, but are rather overlapping, and internally diverse” (147). Tully’s “implicit assumption” regarding culture is “that groups seeking recognition are defined by their historical existence and political will for distinction, as in Kymlicka’s account” (147). Recognition isn’t “recognition of a knowable cultural whole,” as Taylor suggests (147). Second, in a multilogue between peoples, the participants must be able to speak in their own languages and according to their “‘customary ways’” (147). “Participation in the multilogue takes place on an intercultural ‘middle ground’” made up of “‘the overlap, interaction and negotiation of cultures over time’” (qtd. 147-48). 

According to Bell, Tully’s theory is better than Taylor’s or Kymlicka’s: “His conceptualization of cultures as overlapping and intertwined is an advance on Taylor’s conception of cultural difference in particular,” and his “emphasis on the need for mutuality and an ongoing commitment to relationship counters the asymmetrical terms of Kymlicka’s and Taylor’s theories” (148). However, “potential shortcomings are evident” in Tully’s fundamental argument “that the western tradition of constitutional law has the capacity to embrace legal pluralism,” since that capacity has rarely been acted upon (148):

So despite the possibility and ideal of mutuality and pluralist participation in the law, what is going to motivate the settler legal system to enact the pluralism Tully calls for? Participation in itself is not enough. Indigenous peoples have participated in legal processes in settler courts for hundred of years but, until recently, have rarely won or, where they have, governments have overruled or ignored the decisions. Tully’s argument suggests the need for fundamental changes in the orientations of courts and legal frameworks when it comes to engaging with indigenous difference. (148)

For Bell, this discussion “highlights two key and interconnected dimensions” of recognition politics in CANZUS states (148). One is the issue of “asymmetry versus mutuality” and “the extent to which indigenous communities are empowered or judged within relations of recognition, the extent to which their political agency and will are foregrounded, their assertions of identity accepted on their own cultural terms, or their claims assessed by the standards of settler frameworks of judgement” (148). Is a middle ground possible? What can recognition offer? Does recognition enable self-determination? The second issue is assimilation versus pluralism (148). Can Settler states “embrace and give equal respect to indigenous worldviews, indigenous difference” through recognition (148)? Do “recognition politics mark a new form of assimilation of indigenous ways of life to those fo the settler majorities?” (148-49). Those are the questions Bell takes up next.

The issue of recognition involves “the work of courts, commissions of inquiry and governments that respond to indigenous rights claims,” Bell states (149). The literature on this topic is huge, and her “necessarily incomplete overview is intended to identify some crucial features of what has been achieved as well as the limitations of the politics of recognition as it currently exists” (149). “Are the terms of engagement such that indigenous worldviews and conceptions of identity are treated on equal footing with settler frames of reference?” Bell asks. “And is the practice of recognition such that new forms of pluralist accommodation are made with indigenous lifeways and epistemologies?” (149). “Throughout the CANZUS states, indigenous difference and autonomy is now accepted as a ‘social fact,’” Bell continues, although the “forms and extent of self-governance, practice of treaty-making and recognition of indigenous rights vary widely” (149). This summary will focus on Canada, which, Bell notes, is the only one of the four states “to have recognized indigenous rights in its constitution,” in Section 35 (151). However, in Canada land rights and governance rights are treated separately (151). The 1973 Calder decision accepted that Indigenous land rights exist unless explicitly extinguished, and it “ushered in a new era of indigenous rights claims,” defined as either “specific claims” (in which the Crown had failed to discharge its duties according to previous treaties) or “comprehensive claims” (in which no treaties previously existed) (151). The 1997 Delgamuuku v. British Columbia decision was the next breakthrough; there, the Supreme Court extended recognition of Indigenous rights beyond land use to rights to Aboriginal land title (151). At the same time, some First Nations have been able to negotiate modern treaties through the comprehensive claims process (151). Bell’s main example is the territory of Nunavut, which led to self-government, as did the 200 Nisga’a Final Agreement (151). 

From here, Bell moves to critiques of the politics of recognition, beginning with the work of Elizabeth Povinelli, who, as a result of her experience in Australia,  “argues that legal recognition . . . involves the inspection and examination of Aboriginal ‘being’ and ‘being worthy’ that ‘always already constitutes indigenous persons as failures of indigeneity as such,’ judging living Aboriginal persons against a standard of indigenous tradition and authenticity that is not in fact theirs” (153). The first question the juridical bodies of Settler states must decide is whether a person or group fits their categories of valid Indigenous claimants (153). Indigenous descent is one criterion; representing an Indigenous community is another; historical continuity a third (153). That final criterion is the most vexed, given the effects of colonialism. “In each jurisdiction before any engagement over the substance of recognition proper can begin, the standard of indigenous ‘being’ is set by the settler legal and political system rather than indigenous people themselves,” Bell writes (154). “Most stringently, indigenous ‘being’ is frequently assessed by various standards of continuity to determine whether or not the claimant group are the ‘traditional’ owners of the lands under claim” (155). Usually, an Indigenous community “cannot have a broken or disrupted narrative of identity, despite the pressures of living under colonialism” (156). Thus, “[s]ettler state practices of recognition of indigenous rights work in various ways . . . to judge indigenous ‘being,’ to create winners and losers, and to re-shape indigenous communities into a ‘recognizable’ form” (156). “One assumption,” Bell notes,

is that pre-contact communities were discrete and located in clearly defined geographical territories. Settler law cannot encompass overlapping groups and territories, or fluid and dynamic boundaries between peoples. Against that assumption, indigenous communities were frequently layered and fluid in constitution. (156)

That was certainly true in southern Saskatchewan, where multilingual and multinational communities of Cree and Saulteaux people, or Cree, Saulteaux, and Nakoda, were commonplace. However, “[i]n legal and political rulings on Aboriginal identities, traces are evident of the persistent demand for a static authenticity (and the parallel production of inauthenticity)” (157). In the past, Settler states demanded change and assimilation; now they demand that Indigenous peoples “demonstrate the unchanging nature of their traditions,” and where they denied Indigenous peoples a land base by forcibly removing them from traditional lands, Settler states now demand that “they demonstrate their continuous relationship with those lands” (157). Bell cites Povinelli’s words: “taking a claim before tribunals and courts opens Aboriginal subjects up to becoming the ‘wounded subjects’ of settler state recognition, forced to ‘recite’ their traditions, a process that inevitably marks their difference from their ancestors and exposes them to accusations of inauthenticity” (157).

“The central focus of Povinelli’s critique of the ‘cunning of recognition’ is the relationship between recognition and liberalism,” Bell writes (157). Legal judgements in Australia, for instance, which “appear to represent legal pluralism” actually “establish a hierarchical relationship that subordinates Aboriginal customary law to the common law” (157-58). “Aboriginal law is only recognizable because the common law says so—and as long as it is not too ‘repugnant,’ too different from or ‘inconsistent’ with the principles of the common law,” Bell continues (158). Povinelli argues that “the politics of cultural recognition are fundamentally a response to a crisis in the legitimacy of liberalism itself,” which has in recent decades had to face the illiberality of its history in relation to “a range of cultural others, so that the claims to equality and freedom that underpin liberalism are at risk” (158). The politics of recognition is a response, and it “turns a crisis for liberalism itself into a ‘crisis of culture’ and creates the challenge of how to ‘fit’ cultural difference into liberalism without rupturing it” (158). It does so by treating culture as a think and making “others (indigenous peoples) ‘speak’ that thingification” (158). Recognition is a way of warding off “the dangers of rupture to liberalism that indigenous rights claims represent” and it constitutes “a further set of limits to the practice of recognition” and points out “the blockages to the adoption of legal pluralism” (158). “To date, the practice of recognition has involved the establishment of clear limits to how far the liberal settler state will go to accommodate indigenous difference,” Bell writes, noting that in Canada “judges have commented on the limits of recognition in terms of the need to ensure there is no ‘strain’ or ‘fracture’ in the law” (158). Such limits “are in line with the assertions both Taylor and Kymlicka that there is a limit to liberalism’s ability to accommodate cultural difference and support the criticism that recognition politics operate as strategies of containment” (159).

In the U.S., recent court decisions have found that Indigenous nations were “too late” in pursuing their rightful claims to land and other forms of redress (159). The same is true in Australia (159). In Canada, the emphasis seems to be on “constraints and limits” on the recognition of Indigenous rights (160). Courts in this country “struggle with the sui generis nature of native title and the extent and limits of accommodation with it within the common law” (160). Even in the Delgamuukw v. British Columbia decision, the recognition of equal status for the Gitksan and Wet’suwet’an peoples was limited by accommodation must not “‘strain’” the Canadian judicial system (161). Thus, legally speaking, Indigenous peoples must fit into the existing Canadian legal and constitutional structure, and translate their claims, evidence, and history into that framework (161). Delgamuukw is really about Canada’s legal system judging the Gitksan system, rather than a dialogue, and the recognition it offers is a one-way process (161). 

Legal pluralism, according to Tully, “requires the recognition of the autonomy and validity of indigenous systems of law, which then meets in ‘multilogue’ with the common law” (162). However, the Supreme Court has treated Indigenous oral traditions “as evidence to be judged, failing to acknowledge that they are an expression of a distinct indigenous legal tradition” (162). Such processes subordinate Indigenous peoples because they do not recognize that there is more than one system of law in Canada (162). Moreover, legal pluralism requires “active indigenous participation in the legal processes that adjudicate over indigenous claims—the incorporation of Aboriginal elders, judges and counsel, she writes, citing John Borrows. Only those with the adequate indigenous knowledge base are qualified and equipped to deal with indigenous oral histories respectfully and knowledgeably” (163). That argument moves towards Tully’s call for “a ‘middle ground’ of cultural overlap, interaction and negotiation,” where each side “gets to speak and be recognized in their own languages and according to their own customs, although a genuine equality in power-sharing that is difficult to envisage in settler legal contexts would be crucial to such a ‘middle ground’” (163). 

To this point, Bell acknowledges, her emphasis has been “on the limitations of the politics of recognition,” and she suggests that “[i]t must also be noted that very real gains have been made by indigenous communities across the CANZUS states as a result of these new forms of political engagement,” with “millions of acres of land . . . returned to indigenous control and many millions of dollars . . .  paid in compensation for losses not able to be restored” (165). Supports for endangered languages have been negotiated, and the economic development of Indigenous communities has been supported with settlements over land and resource rights (165). Some nations have achieved self-government, and while such sovereignty is always limited, it can lead to “government-to-government relations” being established between Indigenous nations and the central government (165). In addition, the practice of negotiated settlements has been brought about through the efforts of Indigenous peoples, rather than “any magnanimous shift in sentiment on the part of the settler states” (166). Nevertheless, Settler governments “retain most of the cards at the table and largely continue to set the rules of the game” of negotiation (166).

Bell’s assessment of the practices she has been discussing is mixed. For the communities that have succeeded in these processes, “the balance between asymmetry and mutuality has certainly tipped towards the mutual pole, even if it remains far short of the desired self-determination and equality” (166). Cultural difference provides “the glue of community cohesion and the foundation of the demand for recognition,” but “successful claimants of recognition run the risk . . . of becoming ‘unrecognizable’ to the liberal state” (166-67). “The successful exercise of indigenous sovereignty can paradoxically put its future at risk as indigenous communities no longer take the form and occupy the social location that made their need recognizable,” Bell writes. “Settler backlash against the ‘special privileges’ of indigenous communities is a symptom of this danger” (167). Within Indigenous communities there can be tension over following capitalist forms of development as well (167). But “indigenous sovereignty and cultural difference can be mutually reinforcing” (167).

Have recognition politics led to “a new form of indigenous assimilation within settler regimes,” or have they “resulted in shifting and decentering those regimes in substantial ways” (167)? For Bell, the results are, again, mixed. “Settler sovereignty and the liberal framework of law and politics remain the ‘bottom line’ across the CANZUS states,” she writes, and while in some instances “indigenous worldviews and values have been inserted into the liberal law . . . indigenous legal systems have yet to achieve anything like equal status on a ‘middle ground’ of pluralist engagement” (168). “Overall, the politics of recognition is a game that indigenous communities cannot not play, its ‘messy actualities’ representing the latest turn in the project of colonization,” she suggests, citing Bargh and Otter (168). Settler responses to Indigenous assertions of sovereignty and difference are important: “The tensions of the ‘double-binds’ of recognition are clearly apparent. Settler peoples continue to sit in judgement, denying indigenous self-determination while demanding indigenous difference, but only of a tolerable/compatible sort” (168). 

Next, Bell looks at “settler subjectivity in relations of recognition” through the work of Patchen Markell, who looks at what recognition does for the one doing the recognizing (168). For Markell, practices of recognition offers the dominant group “‘an imperfect simulation of the [sovereign] invulnerability they desire” (qtd. 169). For Markell, both Taylor and Kymlicka exhibit “a recurring desire for mastery” in their theories (169). Part of the problem is the notion of cultural wholes, which reassure members of the dominant group “that the demands of cultural recognition will be finite and manageable” (169). Along with fantasies of mastery, “the liberal subjects of recognition” also seek “to secure redemption from their illiberality—to maintain their view of themselves as masterful and ‘good’ actors in the world” (170). They also, according to Povinelli, wish to be reassured that no lasting harm has been caused by settler colonization—that is the reason for the emphasis on Indigenous traditionalism in processes of recognition (170).

In her conclusion, Bell writes, “As currently enacted, relations of recognition between settler and indigenous peoples remain asymmetrical, and legal systems only minimally pluralistic. At the heart of the difficulties involved lies the unwillingness and/or inability of the settler societies to recognize indigenous sovereignty/self-determination” (171). The Settler “desire for mastery, the expectation of always being in charge, thwarts and truncates moves to engage with indigenous communities as sovereign agents” (171). Perhaps this expectation is the root of the “settler futurity” which Eve Tuck and Rubén A. Gaztambide-Fernández argue must be replaced by Indigenous futurity? I’m not sure. In any case, “[t]he desire for finality in settlements evidences the persistence of this desire, and also the failure to grasp the reality that the entanglement of settler and indigenous lives means that a final settlement can never come” (171). Committing “to an ongoing relationship—and therefore ongoing negotiation and revisiting of the grounds of relationship—is both more realistic and supportive of the project of decolonization” (171). In addition, Bell contends, “relations of recognition are about more than knowledge, judgement and rights” (171). Identity is “never purely rational or epistemological,” and calls that it be those things—like Taylor’s—are a problem (171). “Ethics and obligation are displaced in the practices of recognition, but resurface in the settler desire for redemption,” which means (according to Povinelli) that “indigenous individuals and communities bear the effects of this displacement in the demands that they meet the standards of settler judgement” (171). Legal institutions need to take responsibility for creating a meeting place with Indigenous law, which “points to obligation and commitment to relationship,” but they also need to acknowledge the limits of the common law, which “both points to the abandonment of the need for mastery and to the acceptance of an ‘outside’ of the common law, a space in which indigenous law exists and where the two systems of law might meet” (172). “Effectively, settler insistence on the universal applicability of their worldview, their way of life, their legal and political systems, is the problem blocking relations of equality and recognition between indigenous and settler peoples,” Bell concludes. “The practice of recognition needs to be underpinned by a shift in the self-understanding and orientation to relation of the settler subject” (172). The politics of recognition, in other words, needs to be “shadowed by ethics,” and it is to ethics that Bell turns in her next chapter (172).

Bell’s final chapter, “Ethical Obligation and Relationality,” aims to respond to James Tully’s question: “How can a non-Aboriginal person, after centuries of appropriation and destruction of Indigenous civilizations, free himself or herself from deeply ingrained, imperious habits of thought and behaviour and approach this [indigenous] symbol in the appropriate way?” (qtd. 173). That’s an important question, one my own work asks. How can we free ourselves from “ways of thinking and acting that are our inheritance from the centuries of colonial modernity?” (173). Bell’s focus in this chapter is “the responses and responsibilities of settler subjects as individual actors” (173). “What can each of us do?” she asks. “How can we re-think our relationships with indigenous people—individually and collectively—and how can we live those relationships in ways that respect indigenous autonomous personhood and ways of being and knowing?” (173). Her argument is “that the way to begin this task of re-imagining our/settler relationships with indigenous people(s) is through attention to the ethical dimensions of those relationships,” and “attention to our ethical obligations can interrupt our will to mastery and certainty, and open settler subjects to the possibilities of relations of mutuality rather than domination” (173-74). She acknowledges that it is not easy to abandon the desire to be in control, but nonetheless we must accept “that our ability to control is limited . . . and that always being in control points to injustice” (174). “The challenge is to recognize our limits, rather than to deny them and live with a destructive fantasy of our abilities to always be in command and the possibilities of complete, unfettered understanding and judgement,” Bell continues. “To do so, we need to attend to the ethical dimensions of our relations with others, as well as the political and epistemological” (174). 

Ethics, Bell writes, “is the domain in which narrow calculations of individual and collective ‘interests’ are trumped by the place of obligation and responsibility in human relations,” rather than “a set of fixed moral prescriptions that guide behaviour” (174). She intends to argue for “the value of Emmanuel Lévinas’s theory of ethics in providing guidance as to how we might interrupt relations of domination” (174). Lévinas “reminds us that our response-ability to others can involve relations of care and obligation, rather than violence and domination,” and the other “‘interrupts’ the settled horizons of the self and ‘puts the self into question’” (174). This may sound threatening, but she intends to argue that such questioning has a positive value for Settlers. “Further, the ethical obligation offers some guidance to action in our relations with others, although this guidance is marked by openness and uncertainty,” she continues:

For Lévinas, we can never fully live up to or discharge the obligations of ethics. These obligations are never over. Nor is there any prescription for ethical action that can ensure our goodness and the justice of our social relations. Rather, ethics and politics are distinct (but also crucially connected) spheres of intersubjective relations. Thus ethics cannot prescribe our political (and social) engagements with others. (174-75)

For that reason, some argue that ethics as Lévinas describes them are useless to political life, but Bell agrees with Derrida’s argument about “the value of the gap or ‘hiatus’ between ethics and politics in Lévinas’s philosophy” (175). For her, the crucial gap is between identity politics and ethics (175).

“Lévinas’s philosophy begins from an awareness of the violence of relations based on knowledge,” Bell writes. “To know the other is to reduce them to our existing categories of thought. Against the possibility of knowing the other, Lévinas insists on the centrality and singularity of the human other. For Lévinas, ethics is respect and care for this alterity, or unknowable difference, of the other” (176). Lévinas reverses Taylor’s argument by contending that, first of all, “respect is owed to others from the outset, in recognition of their singularity, rather than the end result of a process of learning and judging,” and secondly, that “our social engagements begin with an acknowledgement that human others necessarily escape our horizons of understanding” (176). “The alterity of the other comes from ‘beyond being,’ beyond our existing ontological categories,” such as “man,” “woman,” “Indian,” and so on (176).

To make alterity concrete, Lévinas describes our first encounter with someone else, using the terms “‘nakedness’ and ‘face’” (qtd. 176). “It is in the nakedness/face of the other that their unknowable difference is signified,” Bell writes. “In the face we see both humility and ‘height,’ both an appeal to our care and a challenge to our existing horizon of being. The human other ‘arrives’ at the juncture between horizontal and vertical planes, as if a bodily being such as ourselves and also absolutely other, from beyond our horizons of being and modes of understanding, and hence beyond our ability to fully ‘capture’” (176-77). Even though our subsequent relations with others will involve “the exchange of knowledge and the passing of judgements, ethical engagement with the unknowable difference, or alterity, of the other points beyond the limits of our capacity for understanding” (177). We can never know the other fully; we can never “categorize and understand others who from the outset also demand our respect as agents/subjects,” rather than as representatives of a category. Our response to the interruption of the alterity of the other could be violent or negligent, but it could also be “an ethical response of endless obligation and responsibility, an interruption of self-certainty and our settled horizons, a response that unsettles and decentres the self” (177). 

Bell notes that there are dimensions to that obligation that “require unpacking” (177). First, “the demand of the other is itself the foundation of subjectivity”—the “I” is constructed through a response to the other (177-78). Second, “the alterity of the other is the catalyst for the development of social life” (178). “Lévinas seeks to unseat the autonomous individual of liberal philosophy, replacing it with an individualism founded in responsibility for the other,” she writes. “Thus the ethical obligation is an unpayable debt to the other form which no one can be excused, a debt for sociality itself” (178). For Lévinas, “ethics is ‘first philosophy’; the ethical dimension of our encounters with others is primary—both prior and most significant” (178). He contends that politics and identity come after ethics, and that while politics and ethics coexist, they do so the way that the act of speaking coexists with what is said (178-79). That metaphor describes his claim about the relation between ethics and politics: saying—ethics—always precedes what is said—politics (179). Similarly, there can be no identity without agency, which is a responsiveness to the other (179). For Lévinas, “all our engagements with others have an ethical dimension that we can either honour or ignore” (179).

For Lévinas, a response to the other that honours the other’s alterity would be “‘radical generosity,’” an openness that is not concerned with “any project of the self” (179). “Thus the ethical response is distinct from learning about or judging the other, or engaging in political dialogue and negotiation,” Bell writes. “It is an engagement outside of self-interest” (179). In addition, according to Lévinas “we owe this ethical obligation to all others equally,” since deciding who is worthy would be an interruption of ethics (180). “Lévinas sees ethical obligations as a profoundly unsettling appeal, that ‘shames’ and ‘persecutes’ the self and [is] a responsibility that can never be discharged,” Bell continues (180). Politics, on the other hand, “requires judgement between competing demands”—it is “the sphere of dialogical engagement around substantive issues where agreement is sought via reasoning” (180). It is also a relationship of “the many,” of more than a dyad of self and other (180). Some argue this means that Lévinas’s ethics are useless for political engagements, but Derrida suggests that “the gap between Lévinasian ethics and politics” is both “a break and a necessary connection” (180). “While the gap is ‘silent’ on the rules to be deduced from ethics that might inform political decisions, it ‘whispers’ of the necessity to deduce a politics from ethics,” Bell writes. “The connection between ethics and politics can provoke and incite us to better forms of political engagement, while stopping short of providing any prescriptions” (180). So, from that perspective, “the value of Lévinas’s ethics lies precisely in the break between ethics and politics,” a break which points to “their undetermined co-existence” (180). No system of justice is perfect, but since “indigenous peoples have their own systems and standards of justice . . . imposing either an indigenous or a settler system on all inevitably involves the creation of new injustices for some” (180-81). Thus, “there can be no universal prescription for justice” (181).

For Bell, Lévinas’s “assertion of the primacy of ethics over politics reminds us that the abandonment of self-interest, and the care for the other’s difference of the ethical moment, are what founds the desire for justice” (181). The “ethical relation” offers “a guide to justice,” and justice itself is “‘for the other’” (181). Moreover, “the ethical obligation demands of us an ongoing vigilance against the potential for injustice in any system of laws and a readiness to revise our political prescriptions” (181). “This insistence on the undecidability of politics, rather than a reason to dismiss Lévinasian ethics, is precisely its strength,” Bell writes. “It is the lack of prescription that provides the guard against totalization and domination. Political action is, in this view, risky and underdetermined; it is undecidability that keeps our political responses ‘unfinished’” (181). The break between ethics and politics requires that politics be self-reflexive, that each political decision stay open to further challenge on the basis of ethics (181). How might this work in practice? Bell asks (182). “To remember the link between ethics and politics in this way would seem to require a critical stance towards all political and philosophical positions, including, and especially, our own,” Bell notes. “But it does not mean the abandonment of politics. Rather it means holding politics in ‘generative tension’ with the ethical commitment to justice,” she states, citing James Clifford (182). The notion of “generative tension” suggests “the limitations of all our political attempts to secure justice and the limitations of all our systems of thought,” she continues. “What is then required, while pursuing knowledge and justie, is an ongoing vigilance, reflexivity and openness to the dangers of violence inflicted on others, all others—a preparedness to decentre one’s own views and assumptions” (182).

The rest of the chapter presents examples, organized around “three related themes—interrupting domination, welcoming otherness, and relations of co-existence” (182). The first theme “attends to what is required to interrupt the desire for mastery that is sedimented into the settler imaginary, and the ethical value that can arise from such interruption”; the second “provides exemplars of welcome to indigenous difference that offer guidance on orientations to difference that enable rather than block the work of ethics”; and the third “points to the new relations of co-existence between indigenous and settler communities that can arise from such ethical interruptions and acts of welcome” (182). “In each case,” Bell writes, “the emphasis is on the concrete ground of experience, bringing Lévinasian ethics down to earth and providing insights into its real productivity ‘on the ground’” (182).

Bell’s first example is the collaboration between Alison Jones (Pākehā) and Kuni Jenkins (Māori), teaching a course in feminist education (182-83). The Māori students were unimpressed by their first attempt, because “the interests of the Pākehā teacher and students continued to dominate the classroom. From their perspective, liberal dialogue and inclusion continued to favour the settler students’ interests” (183). The following year, Jones and Jenkins decided to split the class in two: one group of Māori, the other Pākehā (183). This time, the Māori students enjoyed the experience, while the Pākehā students “were resentful and alienated” and felt marginalized because another cultural framework was centred in their educational arrangements, and that they were being told they didn’t belong (183). Jones wrote two papers about the Pākehā responses, meditations on Settler discomfort, and she problematizes her desire to work with Māori colleagues (who eventually set up a separate Māori Education department at the university) “and the related liberal call for dialogue and unity” (184). That call, according to Jones, “is underpinned by a metaphor of space in which the indigenous subject is to be brought in from the margins so that her voice can be heard. However, the deconstructive focus of claims to indigeneity is in colonization; the aim is to dismantle colonial relations and the colonial identities of colonizer and colonized while maintaining the difference of indigeneity” (184). 

But the problem is not, as Povinelli observes, a lack of Indigenous voice; instead, it is a lack of ability on the part of Settlers to hear that voice (184): “When faced with an indigenous teacher speaking in her own voice/language/terms, the Pāhekā students couldn’t listen and couldn’t hear what was being said. Rather, they wanted the indigenous students and teacher to speak in their voice/language and on their terms” (184). Jones concludes that “the Pāhekā desire for dialogue involves a powerful colonizing romance of unity with the colonized other. Where this desire is thwarted . . . the underlying desire for mastery and unfettered access to the other is exposed. ‘Unity,’ it turns out, means consumption, the reduction of difference, epistemological violence, domination” (184). In addition, the desire to be taught by an Indigenous instruction “is a desire for redemption from the morally culpable position of the dominating colonizer” (185). In other words, “[t]he desire for indigenous inclusion turns out to be the desire for reassurance of settler liberality and redemption from the injustices of the past” (185).

Jones “doesn’t want to end up paralysed or to completely give up on the possibility of cross-cultural dialogue,” but that “cross-cultural understanding needs to begin with dominant group members developing the ‘ears to hear,’ a learning that does not require the embodied presence of the indigenous other in the dialogical classroom—and in fact seems to be impossible in such a classroom” (185). Rather, Settlers “need to both learn about their own histories and privileges, and about the value of the limits of their ability to know the indigenous other” (185). Jones advocates for the adoption of a “‘politics of disappointment’ that includes a productive acceptance of ignorance of the other” (185). The pursuit “of learning about difference should be tempered by an acceptance that others can never finally be ‘known’ and that we must maintain a self-reflexive and open relationship to knowledge” (185-86). According to Bell, Jones’s writing (while it doesn’t refer to Lévinas) is about “openness and reflexivity”; she doesn’t dismiss her Pākehā students, but rather “identifies herself with them and uses their challenge to her pedagogy as an opportunity for self-reflection and learning” (186). “Pāhekā discomfort at Māori autonomy” became, for Jones, an opportunity “for new learning about the white/settler/liberal settler relationships with indigenous others,” Bell continues. “And these suggestions—new learning about the inevitable complicity of the settler self, the ‘politics of disappointment’ and the ‘productivity of ignorance’—themselves echo Lévinas’s arguments for the responsibility ofd the self and the need for non-totalizing orientations to the possibilities of politics and knowledge” (186). I know that at some point in the last couple of years I’ve read at least one of Jones’s articles on this experience, but Bell’s summary has convinced me to return to those texts.

However, Bell tells us that Jones isn’t the only one to develop “such insights into the changes required of settler subjects committed to decolonization and transformed relationships with indigenous peoples” (186). Molly Blyth writes about “decolonizing pedagogy with indigenous Canadian students,” David Moore discusses “the practice of literary criticism and the ethics of reading in the face of ‘silences’ within Native American literature,” and Deborah Rose Bird argues for an “‘open anthropology’ that can include accounts of other-than-rational knowledge-based learning and transformations that occur in anthropologists’ relationships with cultural others” (186-87). Blyth, a Settler who found herself teaching Indigenous literature to Indigenous students, writes about “the ‘destabilizing’ experience of teaching in situations where she is the only white Canadian, or where white Canadians are a minority,” and notes that she finds herself in a “contradictory position” where “she is at once the ‘expert’ and also ‘outside the circles of cultural knowledge within these rooms’” (187). She learns about the importance of humility about her ability to master the texts she teaches (187). And humility is not easy, particularly for a university teacher who is called upon to know and to be in authority (187). She describes herself as “the ‘tool of the enemy’ that the students used for their own ends” (187). Other factors affected the work: she didn’t teach in a standard classroom, for instance (188). Her “lack of mastery in these pedagogical relations” and her “repeated passivity” act “as the necessary welcome” that left space for her Indigenous students (188).

David Moore, a Settler who reads Native American literature, “points to the limits of the knowledge of the white reader/subject,” and “the place of silence around aspects of indigenous knowledge within Native American literature” (188). He advocates for “an orientation of ‘unreasonable fallibility’ in approaching Native American literature, a concept that invokes both non-rational modes of engagement and awareness of the limits of settler ability to access indigenous knowledge in truth” (188). He also calls for “a ‘critical ethics’ for academic interpretation of indigenous literature” which is attentive to the values of uncertainty, ignorance, lack of domination, and fallibility as welcome elements “‘in mode of communication that would tolerate the unknown in a continuing, pragmatic process’” (qtd. 188). The outcome of an attention to “‘positive silence’” is, for Moore, “‘radical understanding’” of difference (188-89). 

Deborah Bird Rose’s work “intertwines a concern with the ethics of relationships between humans and the environment and the ethics of indigenous-settler relations” (189). She writes about the need for an “‘open anthropology’ that decentres epistemology to foreground the ‘ethics of experience’” (189). In her essay, Rose describes her relationship with an Aboriginal friend and teacher, and her experiences after Jessie’s death, including experiences that are more-than-rational (189-90). Rose’s description of those experiences echoes “the orientation to alterity that Lévinas calls for—action without intention, responsiveness to unknowable difference,” and to “the transformative power of such experience, which she calls “‘threshold learning’” (190). As a result of those experiences, she became more aware of the silences in the academy, “in which to speak outside of rationality and knowledge is almost impossible” (190). 

“The insights of each of these scholars reiterate and build on Jones’s arguments and connect with Lévinas’s philosophy,” Bell writes (190)—and I intend to read the texts she discusses in this chapter, including (I hesitate to say) Lévinas himself. “Like Jones,” she continues,

Blyth and Rose point to the inevitable complicity of the settler subject who is the “tool of the master” and “situated” by the histories they bring with them to the encounter with indigenous people. While the particular histories of settler complicity with colonial violence are not Lévinas’s concern, his insistence that we are all already obliged, we are all already responsible, and must act from this position, resonate easily with the situation of the settler subject. Each of the authors develops the theme of the limits of knowing in different ways, pointing to the need for humility, uncertainty, vulnerability in the face of indigenous peoples and knowledges, and the value of those limits. Paradoxically, there is much to be learnt from the acceptance of the limits of our capacity to know. Most importantly, abandonment of the expectation of knowledge as “product” as Moore puts it, shifts the focus of engagement to experience and non-rational modes of engagement and to relationship itself—Moore’s “truth as relationality,” Rose’s “methods for intersubjective encounter” and Jones’s “indigene-colonizer hyphen.” This shift acts as a welcome to difference that leaves space for indigenous agency in Blyth’s classroom and can recognize it at work in indigenous literature. Finally, Rose in particular, as someone who has had decades of experience in relation to Aboriginal people of the Northern Territory, gives us an insight into the transformations of the self that can result from this openness to indigenous difference. The welcome to difference is productive for both indigenous and settler subjects, enabling new forms of action and relation. (190-91)

Sami scholar Rauna Kuokannen argues for the need “to replace the problem of ‘knowing the other’ with that of ‘learning to “see” the existence of epistemes that have long been rendered invisible’” (191). Kuokannen’s “important and radical point,” Bell continues, 

is that indigenous epistemes co-exist with those of the west. Indigenous time exists alongside settler time. Indigenous relational ontologies and distinct temporalities, in which past and present are not divorced, co-exist with the realist ontology and linear temporality in which westerners continuously shed the past behind us striving relentlessly towards the future. The time of indigeneity co-exists with the time of capitalist modernity and crucially underpins indigenous modernities in the present. They are not the sign of the “primitive mind” superseded by our own sophisticated sciences and philosophies.  (191) 

I have a copy of Kuokannen’s book somewhere, and clearly I need to read it. And, frankly, this chapter of Bell’s book is the one I think I’ve been waiting to read; it’s a good thing I ended up buying this book, because I have a sense that I’ll be returning to it.

Bell also discusses the work of Te Kawehau Hoskins, which “provides a glimpse of the productive possibilities of such engaged, ethically informed relationships between indigenous and western/settler modernities” (192). Hoskins’s work brings a Lévinasian ethics to bear on arguments for decolonized Indigenous-Settler relations and “non-dominating forms of authority and relation that can support Māori desire to ‘live as Māori’ and provides insights into the ‘productivity’ of ethics in fostering new forms of engagement and possibilities for social life” (192). Hoskins’s PhD research was a case study of an urban school co-governed by a state-mandated Board of Trustees and a parallel Māori board; that school, Bell writes, “is an exciting and important example of what is possible when settler individuals and communities are able to interrupt their sedimented practices of mastery and control and welcome engagement with indigenous difference” (192). The co-governance structure, which has lasted 10 years, continues because of ethical relationships and a respect for autonomy (193). The intersection of ethics and politics at the school “produces concrete effects,” including “open relationships that valorize difference” and “the decentring of Pākehā/settler ways within the school” (193-94). 

The emphasis on face-to-face relations at the school might seem to contradict Jones’s argument “that settler/non-indigenous peoples do not—and crucially cannot—require the embodied presence of the indigenous other to develop the ‘ears to hear’ the voice of indigenous difference,” but Bell points out that each author is pointing “to a distinct phase in the development of a relational imaginary on the part of settler subjects”:

Jones’s analysis points to the need for settler peoples to spend time getting to know themselves and their own histories, uncovering the sedimented practices of domination and the imaginary that accompanies them, before they can engage in a different kind of relationship with indigenous colleagues and communities. Similarly, indigenous communities need their own separate time and space to pursue their projects of recovery and development. (195)

For Bell, Lévinas’s concept of proximity helps to explain this apparent contradiction. Proximity is not a spatial category; rather, it “refers to an ethical . . . dimension to the relationship between self and other. It represents the ethical concern for the alterity of the other” (196). So, when “Jones accepts the desire of Māori for autonomous pedagogical and institutional spaces, she is not severing her relationship with Māori, or ‘washing her hands’ of any concern for them” (196). Instead, “that spatial—and crucially, epistemological—distancing is compaatible with the notion of ethical proximity. Respect for the alterity of the other, which is the characteristic of relations of proximity, involves an epistemological ‘distancing’” (196). A recognition of “the unknowability of alterity” is foundational to that respect (196). “Hence relations of proximity can balance the tensions of distancing and relationality required for a relational imaginary,” Bell continues. “On the one hand, they preserve the epistemological distance necessary for indigenous autonomy and disrupt the categories of settler epistemological domination. On the other hand, they ground a relation of ethical concern for the other. Proximity thus combines a form of ‘distance’ (epistemological) with a form of ‘closeness’ (concern)” (196).

In the chapter’s conclusion, Bell argues for the applicability of Lévinasian ethics “to the situation of settler subjects . . . in calling for the interruption of the sedimented practices of domination that accompany the everyday practices of knowing and judging” (196). Such practices may be deeply rooted, unconscious and invisible (to us), and they “will not be easily dislodged,” but she suggests that her examples suggests it is possible to do so (196). The scholars whose work she has considered “escape settler/western frameworks of knowledge and practice and need to be related in ways that honour that reality” (196). “For settler/western subjects, relating to the difference of indigenous ways of being and living is unsettling,” she continues. “It means giving up on the idea of unity, of a day when we will all be ‘one people.’ It is challenging and discomforting—and exciting” (196). 

In her afterword, Bell cites Tully’s notion of “‘strange multiplicity’” (qtd. 198) “as a condition of co-existence with others” (198). “We need to give up seeking agreement at the level of principle and seek situated, local agreements over particular issues, where the different groups involved may come to agreement for completely different reasons, but agree on the particular at hand nonetheless,” she writes (198). Then, she turns to the idea that we don’t understand the effects of the “tendencies of the settler imaginary to equate indigenous ways of being and knowing with the past” (199). “The settler imaginary,” she continues, “is also a liberal imaginary and the double-sided nature of liberalism is worth focusing on” (199). On the one hand, the positive aspects of liberalism has made CANZUS countries “world leaders in recognizing indigenous rights”—really?—but the commitment to individual equality that is central to liberalism arguably led those states to shy away from signing onto the Declaration on the Rights of Indigenous Peoples because that declaration arguably “demanded that they prioritize indigenous rights over those of other citizens” (199). “On the other hand, liberalism involves beliefs in universalism, progress and individualism, all of which have been powerful stumbling blocks in relating to indigenous difference,” Bell continues (199). 

Finally, she turns to identity theories and the way her discussion of these “has highlighted a range of strategies of resistance—and domination—that characterize what is known as ‘identity politics’” (199). “For indigenous peoples, maintaining a distinct identity that marks indigenous communities out from the surrounding society is crucial,” she writes. “For settler peoples also, identity politics are crucial to their claims to being and belonging” (199). But the project of Settlers becoming Indigenous is impossible (199). “Instead, acceptance of indigenous autonomy is the first step in unsettling the settler imaginary and moving towards a new, relational imaginary,” Bell states. “Rather than focus on an end to contestation and a final achievement of unity that will never come, a focus on the messy reality of relationality is more productive and a necessary step towards decolonization” (199-200). That “orientation to relationship” features “a shift in attitude to learning about indigenous difference,” she continues. “The settler propensity to accumulate knowledge to then mould into a fantastical image of indigenous authenticity and wield as a weapon of domination need to be replaced by an understanding that indigenous peoples, like all peoples, can never be finally ‘known’” (200). Indigenous peoples deserve the same freedom Settlers have “to change, to be contradictory, to be fully, annoyingly and fascinatingly human” (200). That freedom “is a necessary first step in a re-orientation to relation, to attending to the relationship that lies between (joining and separating) settler and indigenous modernities” (200).

Bell’s book is important for my work, particularly her descriptions of the settler imaginary and the relational imaginary. I’m glad I read it. It’s going to take some time—and more certainly reading—to come to terms with her arguments and to begin to formulate clearer responses to them. I do wonder about her use of Lévinas when there are Indigenous thinkers on relationality who could be brought alongside the French philosopher, but perhaps her reluctance to discuss those thinkers together is part of her notion (through Lévinas) of proximity. I’m not sure. I will have to think more about that point. In any case, completing Bell’s book feels like a step forward in my research.

Works Cited

Bell, Avril. Relating Indigenous and Settler Identities: Beyond Domination, Palgrave Macmillan, 2014.

Tuck, Eve, and Rubén A. Gaztambide-Fernández. “Curriculum, Replacement, and Settler Futurity.” Journal of Curriculum Theorizing, vol. 29, no. 1, 2013, pp. 72-89. 

Trevor Herriot, Grass, Sky Song: Promise and Peril in the World of Grassland Birds

grass sky song

I bought this book when it came out eleven years ago—I know that’s true, because my copy is a hardcover edition—but I haven’t read it until now, perhaps because I was afraid of what I’d learn. It’s an important book—I can see the way it is going to influence my current research—and it’s a good thing I finally put aside my fear and opened the book. It’s essential reading. All of us who make our homes on the prairies ought to read it.

Strangely, though, I already knew part of this book: the introduction is in the anthology I use to teach first-year English courses, and I’ve taught that essay, “A Way Home,” several times. It tells the story of how Herriot became interested in grassland birds, and what those birds mean to his conception of southern Saskatchewan. They are, he writes, “the presiding genius of the northern Great Plains . . . a presence that animates the grass and sky in the absence of the bison” (13). Bison, of course, are grassland obligates, like the songbirds, although their numbers today are a fraction of what they once were, after being nearly driven to extinction in the nineteenth century; we might have considered the bison the “presiding genius” of the grassland, except that bison now exist behind fences, on ranches and in parks and refuges. Herriot’s use of the word “genius” is slightly anachronistic; in this context, it means a guardian spirit associated with a place (O.E.D.). 

If you hear a sense of the sacred in Herriot’s words, you would be absolutely correct. Grassland birds are “the embodiment of a spirit” one can feel “as an almost imperceptible tug” (13); there is something “good and holy in these birds,” which he hopes we will discover before it’s too late, before those birds (like so many other species) are extinct (3). “True grassland birds—species that cannot tolerate trees or cropland—bear witness to the world in their own particular way,” he writes. “It is a testimony as worthy as any other in Creation; not loud enough to attract busloads of tourists, perhaps, but all the more rewarding for the attention it cultivates in any who try.” (13). The word “Creation” is used repeatedly in Grass, Sky, Song; not in an orthodox Christian way, but rather as a way to imbue the world with a sense that it is sacred. He employs the word “mystery” for the same reasons, I think. Unlike most of us môniyâwak, Herriot has a sense of the land as sacred, and also unlike most Settlers, he has come into a relationship with it. 

Those notions of sacredness and relationship are connected to belonging. Coming to know grassland birds is a way “to find out how we might belong to a place, to find a way home” (4)—to come into a relationship with the grassland. He advocates lying down on a patch of wild grass and looking up at the sky: “With grass blades waving overhead and the sky beyond, the human spirit has half a chance to come to its senses. If there are birds singing in the air, all the better. They will tell you where you are and, if you listen long enough, they may tell you who you are in the bargain” (4). Even though he was born in southern Saskatchewan, Herriot suggests that he did not truly know the place, or belong here, until he began to learn about the beings that live here—that can only live here: to know their names, not as a way to possess them, but rather as a way “to call things forth from generality into a particularity that allowed for admiration, familiarity, even wonder” (12). “The influence of beings as unprepossessing and elusive as grassland birds is something like gravity, a weak though persistent mystery that holds us in place,” he concludes. “The heart recognizes such a gentle force, knows that in simply becoming aware of its pull we take a small step toward belonging here ourselves” (13). My students are, I think, shocked to read those words; the idea that knowing something about a place, that apprehending something of its mystery, is a way to belong to it surprises them, because most of them know little about the creatures we share the prairie with, or that the prairie is more than a flat horizon, that it is a complex ecosystem that is in grave danger.

That grave danger resonates throughout Herriot’s book, and it is what makes Grass, Sky, Song such a difficult read. One of the things that is in danger is the prairie: that treeless landscape defined by grass. “I live in one of the only prairie cities built upon utterly treeless grassland,” he notes. “Most cities on the northern Great Plains were founded on large rivers, where ravines sheltered a few poplars and willows, but the stretch of Wascana Creek where Regina sprang up did not incise deeply enough into the tableland of its glacial lake bed to allow woody growth of any kind” (17-18). Every single tree in this city has been planted; Herriot describes the neighbourhood where he lives—not far from our house—as a place “where seventy-foot-high white spruce host red-breasted nuthatches and red crossbills year round. These birds think they are in a forest and they are right. To see the prairie and its birds I have to get out of town” (18). The “woody growth” that has encroached on the grassland here has led to many changes: the arrival of mountain bluebirds, for instance, is the result of the planting of trees (and fence posts) here, although most of us now accept that species as a prairie bird (18). Many common birds around this city are species that “live in tree and shrubland: house wrens, flickers, least flycatchers, orioles. These are all wonderful creatures worthy of anyone’s attention, but they are the common woodland species you can find almost anywhere in the populated regions of North America,” Herriot writes. “The birds that are distinctive in this part of the continent, having come to their place in the sun along with the buffalo and the grasshopper,” require grass, not trees (22).

But that grass is almost gone: a recent study suggests less than 14% of the original grassland of southern Saskatchewan remains (Sawatsky). Herriot describes “[t]he unparalleled destruction” that has come to the world of grassland birds since the arrival of Settlers in the 1880s:

When I am on a jet flying over the prairie, I search for fragments of grassland below and try to extrapolate them into the original horizon-to-horizon world of grass that once covered the plains. I wish away all the scars and uniformity of the drawn-and-quartered farm landscape and try to imagine flying north like a hawk in spring over the whole of the Great Plains in their pre-settlement splendour. High enough to view thousands of square miles at a glimpse, the journey begins above the Gulf Coast grasslands of Texas, then takes in the oak savannah of hill country north of San Antonio. Next comes the tallgrass of Oklahoma and Kansas, the bisected plateaus of Nebraska, the drier plains and badlands of the Dakotas, the vast wheat grass and June grass prairie drained by the Missouri, the Oldman, the Saskatchewan, and the Qu’Appelle Rivers, and finally the northern fescue prairie on the flanks of the Peace River Valley. The vista below unfurls in softly shaded wrinkles, folds, and dimples that shift without visible boundaries from one texture or colour to another in an impossibly complex and subtly brocaded fabric. But more than fabric, the earth shimmers and vibrates like something lit from the inside, as erotic and radiant as any living thing. (22-23)

That sea of grass now exists in fragments. The largest fragments are in the southwestern part of the province, “in big ranches, community pastures, and conservation land,” Herriot writes (23). The land where Herriot shares a country property with several other families, south of Indian Head, is on the borderland between two eco-regions—aspen parkland and moist mixed-grass prairie—“on the rim of the Great Plains,” and that is where he conducts much, but not all, of his birdwatching research (23). It is, he writes, “a good place to be: in the shifting, indeterminate territory that eases us out of the trees and into the dream of a grassland that is all but forgotten, and awaiting its chance to return” (24). The survival of grassland birds will depend on that dream becoming a reality—among other things.

  The boundaries of grassland ecosystems are “particularly mobile,” growing and shrinking as woody species encroach on the grass, and as fire pushes them back. Herriot imagines an invisible weaver using “four primary tools” to make the grassland’s tapestry: “soil variability, climate, grazing, and fire” (25). Soil quality differs from place to place, “according to geological history, drainage, elevation, parent material, and so on, but it takes centuries to change significantly in any one location” (25). Climate—precipitation and temperature—moves within a certain range (25): until the onset of anthropogenic climate change, that is. Those factors are relatively stable. However, before Settlers arrived here, “the remaining two factors—grazing and fire—responded to opportunities presented by weather and soil in creating brief disturbances at random intervals. Fire and grazing events in turn fostered a complex mosaic of irregularly shaped patches of various grassland habitats” (25-26). Those various habitats became “ecological niches in large and small patches, determining which creatures would live where for this or that season” (26). “The spirit of the plains, its air of motion and freedom, has always depended upon this dance choreographed by the rhythms of earth, weather, fire, and buffalo,” he continues (26). 

Those disturbances are necessary if grassland is to remain healthy. Herriot describes standing “next to a pile of lichen-covered boulders on a little knoll on the neighbour’s pasture south of our place” (35). Those boulders are the remnants of buffalo drive lanes, one of the ways that Indigenous people hunted bison (35). The land has never been ploughed, “but without the disturbance patterns that buffalo and fire provide, weeds and brushy vegetation have moved in and are taking over large patches” (35). That invasion makes this particular prairie remnant unsuitable for most species of grassland birds. Nevertheless, Herriot continues,

While it is sadly diminished and more difficult to see today without the roaming herds and wildfire, the life of grasslands from season to season and from macro-habitat to micro-habitat retains something of its original spirit, the old dance of grass and earth, vagrant and free as the clouds passing overhead. It moves through the air in the flight and song of the birds that still dwell within the graces of whatever comes on the wind. (36)

The language here is worth noting: Herriot’s use of words like “spirit” and “graces” is a sign of the way he understands the grasslands as a sacred space.

But even without grazing and fire, the grassland continues to provide habitat for its birds. Herriot describes reports he has received about the dickcissel, a grassland songbird that suddenly began to appear in Saskatchewan in greater numbers than before. “The miracle of the dickcissel is that it has adapted enough to survive the loss of the prairie it loved best and has figured out how to use other kinds of grass, native and introduced,” he writes (46). Because the dickcissel lacks any attachment to the places where it was bred, it “testifies to the liberty at the heart of grassland ecology” (46). “When. fire and bison were still choreographing the dance, dickcissels may have arrived here on the northern plains in years when drought, grazing, or fire in the core of their range south of the forty-ninth parallel forced them to wander in search of taller grass,” Herriot suggests (46). The appeared here during the droughts of the 1930s, for instance. But in 2006, after heavy spring rains produced “thigh-high alfalfa,” these birds were seen in greater numbers, particularly in southeastern Saskatchewan, than ever before. “What are these birds trying to tell us?” Herriot wonders. “With many species thinning out and disappearing from apparently suitable habitat across the northern plains, believing in the restorative powers of prairie requires a faith that is getting more difficult to make as the years go by. Then we get a summer of dickcissels, prairie evangelists canvassing for believers” (47). Those birds are doing their best “to show us that the dance is not over yet” (47). 

Herriot cites the eco-philosopher David Abram’s book The Spell of the Sensuous to suggest that becoming aware of birds, “life that moves in the invisible realm of air,” might have been “the very exercise that led to human consciousness” (52). “Though it is articulated here in fresh prose, this kind of philosophy is what we expect from the Aboriginal peoples who came into their identity within the open, airy landscapes of the west,” he continues. “The surprise in Abram’s account comes when he goes on to demonstrate that deep in our own religious traditions there is a similar reverence for the air, though lately it has been reduced to the symbolic or merely metaphorical” (52). The sources of words like spirit, psyche, soul, anima, and atmosphere, Abrams argues, suggest that even for our civilization “the air, in breath and holy wind, has been the very medium of our interconnectedness and the source of our awareness” (52). “Is it possible that we first became aware of that communion”—that interconnectedness—“by seeing it manifest in the creatures that live in the air and give it a voice?” he asks (53). Birds, Herriot contends, 

put flesh upon, incarnate the soul of the land they inhabit, bringing it to our senses in ways that mammals, insects, or reptiles cannot match. Remove the forest’s warblers, thrushes, and owls, and the truth of what a forest is, and the wisdom it offers is rendered insensible. In the presence of birds, something in Creation keeps us back from the brink, mindful of a spirit that is ascendant and yet available to our ears and eyes. What happens to a civilization that loses contact with birds? Will we forget what we ever meant by soul and mindfulness? (53)

He considers flight itself, but more importantly, flightsong—“the spiralling notes of a pipet three hundred feet into the sky, the rapid windchimes of longspurs fluttering above their brooding mates”—which, like all music, “bypasses our reasoned categories and comparisons and plays directly to the heart, where desire and imagination offer the deeper witness that makes us human” (54). Flightsong is also known as “skylarking,” and Herriot recalls his first experience standing in a pasture full of skylarking birds. Above the songs of the Baird’s sparrows and meadowlarks, “the swirling song of Sprague’s pipits fell to the earth in streams. I lay in the grass beneath a sky that was inhaling and exhaling song” (55). Herriot was “immersed in sound more than hearing it, powerless to name the truth it bore” (55).  “Consider the birds of the air,” he writes:

They fly over the prairie, bearing messages to the Creator, and promises to all creatures below. Just now, their voices hand briefly on the wind, each song a passing testimony to the sacramental presence that rises and falls in every living thing. Should we ever set aside our sowing and reaping long enough to listen, might we remember that we too share in the spirit that animates all life? And, what is more, that we are bound by its daily promises? (56)

The spirituality here, the sense of the land as sacred, might have its roots in Christianity, but it seems (to me) broad enough to encompass other faiths, and, more importantly, to suggest that Herriot’s love of the land is perhaps close to that expressed by Indigenous peoples.

Herriot is not alone in his efforts to build relationships with birds. As the host of the local CBC Radio One show Birdline, he hears stories of people who love the birds that live beside them. One fellow tells Herriot that if the barn swallows who share his workshop disappeared, he would miss their friendship (66). But grassland birds have a harder time coexisting with humans. It would be easy to give up on those species, Herriot writes, to “write them off as the collateral damage of our civilization’s blitzkrieg advance” (68). But every spring, he is “amazed that the birds themselves have not given up. They come back, set up on a patch of grassland, sing, court, build nests, lay eggs—even if the grass is all wrong, the grasshoppers are scarce, and there isn’t the right kind of cover to protect nestlings from predators. They fail, re-nest, fail again, then leave for the winter” (68-69). For Herriot, the birds express the same thing farmers always say: “Next year, next year. There is always next year” (69). In this, he sees the power of writer Wallace Stegner’s adaptation of Jesus’s statement that if a sparrow falls to the ground, God knows and cares about it (69). “The power of Stegner’s adaptation is in the shift it makes from God to land,” Herriot writes. “Not only God, but the land itself keeps watch, keeps faith—for in prairie we sense an abiding awareness and attention that may be more obscure in other landscapes. God knows the sparrow. The land knows the sparrow. The trick of remaining here is to become a people who know the sparrow too, who will not give up on creatures who ask only for a place in the grass” (69).

But most of us don’t know about those creatures, let alone care about them, and their numbers are plummeting. Herriot thinks about William Spreadborough, a naturalist who travelled with naturalist-explorer John Macoun’s 1880 expedition across the northern plains. Spreadborough and Macoun kept notes about the vegetation and birds they saw. Their assignment, Herriot notes, “was to determine once and for all whether the grasslands between the forty-ninth parallel and what was then known as ‘the fertile belt’ (a band running south of the forest roughly from the North Saskatchewan River in Alberta to what is today southwestern Manitoba) were suitable for farming and settlement” (79). With his birding mentors, Stuart and Mary Houston, Herriot travelled the route Macoun and Spreadborough took through Saskatchewan. But even before they departed, a comparison of the range of species Spreadborough recorded, and the ones Herriot could see on the pastures where he goes to see and hear birds, was sobering:

I was sure that a patch that size would still be holding onto a relatively healthy bird community. After three mornings of good weather for birdsong, though, I had to face the truth: the pastures had a few Baird’s, savannah, and grasshopper sparrows, two or three pair of upland sandpipers, some meadowlarks and horned larks, and a handful of Sprague’s pipits. Not a single longspur, no burrowing owls, long-billed curlews, or shrikes. Once again, the birds that I depended on for a sense of home were losing their grip on the land. (80)

Following Macoun’s trail, which ran further south, closer to the birds’ breeding ranges, could take him “to grasslands where there were better numbers,” but he wanted to know why the birds closer to home were suffering (80). “On the trail of Macoun there would be the past, with its abundance and the irrevocable decision to hand the prairie over to ploughmen,” he writes. “But there would also be the present: human and ecological communities damaged by our engagement with the land, and farmers and biologists trying to make sense of it all. Looming over every fragment of wild grass, there would be a future no one talks about, a prairie where no birds sing” (80). Much of the second part of Grass, Sky, Song follows Herriot and the Houstons on their journey. 

Herriot has a sense of the miraculousness of these birds. Sprague’s pipits, for instance, make a sound that resembles what we might imagine a UFO would make as it flies—or, rather, plummets: “A male pipit comes to earth in a reckless freefall, an all-out wings-folded dive that must be seen to be believed” (86). The bird will fall hundreds of feet through the air, “plummeting toward the land in utter surrender to gravity,” and then, “at the last second, the pipit suddenly opens its wings, braking on the air and arcing gracefully to disappear into a tussock of spear grass” (86). “From bird to stone to bird again in a long line with a J-hook at the bottom, the pipit in this way stitches heaven and earth,” Herriot writes, “marking ever so lightly its small claim upon sky and grass” (86). Naturalists like Macoun and Spreadborough tended to miss these birds, though, because they are difficult to see (89-90). It wasn’t until a later expedition, in 1894, that they finally identified the bird making the strange noise they had been hearing (90). “All things considered, Macoun’s inability to see or hear the pipit is more symbolic than anything else,” Herriot writes. “He was, quite literally, the last naturalist to see the northern prairie as an uninterrupted sea of grass. Upon his return east, his recommendations sealed its fate, bringing the railway to the south and with it the ploughmen who began tearing at the ancient sod” (90).

Settlement had a dramatic and immediate effect on grassland birds. A.C. Bent, a field naturalist who travelled through southwestern Saskatchewan in 1905 and 1906 to study the area’s birds, noted that even during the two years of his study “‘the change was so striking as to indicate the passing away within the near future of nearly all the great breeding resorts of this interesting region’” (qtd. 88-89). The reason was cultivation—the ploughing under of the grassland by Settlers, and the conversion of that grassland to cereal agriculture—which was destroying the birds’ breeding grounds (89). Herriot imagines what might have been if Macoun had, “by some miracle seen the intrinsic value of vast stretches of natural grassland, had he even recommended it be used only as cattle pasture,” but he knows that “sooner or later the pressure to grow grain on every arable piece of land would have had its way” (90-91). Macoun, he continues, “was merely the instrument of a particular moment in history ordained by choices our civilization made long ago in taking up the plough” (91).

Herriot notes that he is not alone in his apprehension of the grassland as a place of sacred mystery. Ornithologist Stephen Davis, for instance, who works at the bird sanctuary at the northern end of Last Mountain Lake, reminds Herriot of grasshopper biologist Stephen Lockwood, who “talks about the need for reverence in his field research, and says that the prairie brings him to a kind of prayerfulness, in which he is forever petitioning for a question worthy of his life’s work” (92). I was moved by Herriot’s description of Lockwood’s essay, and I ordered it through interlibrary loan. It begins with a surprising statement: “I converse with grasshoppers” (Lockwood 14). Using recordings of grasshoppers, he would listen for their response “to decades of our blanketing the grasslands with broad-spectrum insecticides” (Lockwood 14). In doing so, Lockwood is developing a relationship of respect with these insects, typically reviled by farmers. “For an ecologist to relate to a prairie as a living being worthy of deep respect is to push the limits of modern science,” Lockwood admits. “I surely risk my professional credibility when I claim that I hear the creatures of the grasslands. Their speaking is neither literal nor metaphorical, but it is true in a way that transcends mere sensation and abstraction, reaching through and beyond the objective facts of ecology” (14). Moreover, Lockwood claims that he converses not only with grasshoppers but also with “the soil, grasses, and birds. I speak to the prairie and God answers. Well, sort of” (14). “The notion of transcendent ecology implies a complex relationship with the divine that can be troubling for both conventional science and theology,” Lockwood admits (14). He cites William James’s notion of divinity “as that which is enveloping and real, to which the individual responds solemnly and tenderly” (15). There’s another book I’m going to have to read, I think.

Lockwood suggests that “the hazards of excluding the divine from the scientific method are grave indeed,” and that by not “infusing scientific inquiry with meaning, we risk continued moral failure” (15). “For science to become a moral enterprise, it must subordinate itself to concerns that are larger than its own, concerns that cannot be heard without extending beyond its own limits of rationalism,” Lockwood continues. “If I can truly perceive biotic communities (including farms) as enveloping and real, if I can respond to ecosystems (including cities) with solemnity and tenderness, then my science is infused with the divine” (15). Practicing ecology might be a way of discovering “a gateway to the divine,” in which the ecologist “is guided—whether knowingly or unconsciously—into a dissolution of the self, of permanence, of separateness from the world” (16-17). “Ecological love is as much an act of humility as affection,” according to Lockwood:

The ecologist becomes mindfully connected to powers that shall never be comprehended or controlled. Like the mind of a lover, a grassland is complex beyond our capacity to imagine, let alone understand. Lovers and lands are forever mysterious, but they can be engaged and explored, touched and tended. We can enter into dialogue, find the right questions to ask, and thereby come to know more of both them and ourselves. (17)

But the love Lockwood feels is perhaps more than the analogy of a physical lover reveals, although he admits to having a passion for grasshoppers (19). “Upon returning to the grasslands after a winter of windchill and whiteness, I find myself engaged in a prayer of adoration,” he writes. “Walking through the brief blush of green in late May, searching fervently for early hatching of grasshoppers in order to delineate our field sites, it feels good to stop and be still. There is a rightness in lapsing into moments of hushed reverence, becoming keenly aware of the Place” (17). He experiences both ecstasy and objectivity in his work, and argues that “good science and deep prayer become a matter of seeing the essence of the world” (17). Lockwood describes himself as “a seminarian of the grasslands” (19).

For Herriot, scientists like Davis and Lockwood are like “the mendicants of old”: “their abbey is in the open air,” and they “beg questions not food, arming themselves to tend the mysteries of soil and leaf, grasshopper and bird” (92). Each question, he continues, “if it is worthy, is like a prayer, a respectful inquiry into a unity that will never yield enough answers to be completely possessed in the mind” (92). Of course, as a natural historian and avocational ornithologist, Herriot is one of those mendicants, I think; Grass, Sky, Song is the result of that kind of “respectful inquiry.” But along with that respect comes complicity, “for the millions of birds we sacrifice every year in the New World”:

in the south, where the coffee and banana plantations destroy millions of acres of rainforest, where slash-and-burn agriculture in the Amazon basin trades in the world’s richest avifauna for a few years of cheap beef, where the pampas of Patagonia are ploughed under and poisoned with pesticides long banned in northern nations; and here in Canada and the United States, where we do nothing to halt the commerce that drives destruction in the south, and where we continue to extract energy and resources, build our cities, and grow our food in ways that destroy marshes, grasslands, meadows, and forests. (96)

That destruction can be seen in the differences between the numbers of birds Spreadborough recorded and those Herriot sees. For instance, Spreadborough suggested that the chestnut-collared longspur was one of the most common birds around Indian Head, where Herriot’s country property is located; there are none living there today. The same is true of McCown’s longspurs, ferruginous hawks (now a threatened species in Canada), long-billed curlews, loggerhead shrikes, and burrowing owls (an endangered species) (101). “Other more resilient grassland species hang on for the time being,” he writes: Baird’s sparrows, grasshopper sparrows, Sprague’s pipits, Swainson’s hawks, bobolinks, short-eared owls, sharp-tailed grouse, horned larks, western meadowlarks, and upland sandpipers can still be found on the pastures south of Indian Head, “but roughly half of the grassland species that were common here in Spreadborough’s time have been extirpated from the area” (101-02). “We may find it hard to imagine the abundance of bird life that greeted prairie naturalists like Spreadborough—the fullness of song reigning over long miles of grass—but we are heading for a day when it will be hard for anyone to imagine that prairie skies were ever anything but silent,” he writes (102).

That vision of the future leads to the question of whether there is any hope. “By ‘hope’ most seem to mean the calculated odds of a particular strategy of program succeeding, as though we need to know whether our efforts will be rewarded before we commit ourselves to anything,” Herriot suggests. “This is a tawdry kind of hope masking a wider despair that keeps us mired in the status quo, averting our eyes form the carnage all around, shrugging off responsibility with a sighing, ‘Well, what can you do?’” (102). However, another kind of hope exists, “one that sees things as they are”:

It bears witness to the complicity encompassing not only the way we feed and house our families, how we travel and make a living, but the whole history of our civilization’s engagement with the landscape—sees all of it and then, without knowing outcomes, gets down to the good work of setting things back to right. 

In the community of bird conservationists you will sometimes meet people who live out this hope, enacting an altogether unjustifiable faith by lending their labour to study and advocacy that come with no guarantee of success. Over the years of work they become creatures as rare and astonishing as the ones they serve. (102)

For Herriot, his friends Stuart and Mary Houston are examples of such people. Would that there more more like them; would that the rest of us could overcome the despair that books like this one tend to engender, despite Herriot’s emphasis on hope, on the argument that the future he imagines has not yet arrived.

Macoun’s journey across the prairie took place 60 years after naturalist John Richardson’s similar trek. “In that interval the great bison multitudes had been reduced to a few scattered herds, which were to disappear entirely by 1890,” he writes. “[T]he loss of the prairie’s largest animal, still fresh in Macoun’s time, was written in every landscape” he and the Houstons passed through in 2005 (109). Herriot notes that Macoun’s journey took place in unusually wet years, while Captain John Palliser’s 1857 expedition took place during a dry decade and led him to the conclusion that the land was unfarmable (109). Macoun was determined to prove Palliser wrong, and he “maintained that the precipitation was adequate and the soil fertile” (109-10). The result was the destruction—or perhaps near destruction—of the grassland ecosystem. As a result, populations of grassland birds have been in decline for more than 50 years, since the first Breeding Bird Survey took place in 1966 (116-17). Herriot describes the graphs published on the BBS website, each one showing a line sloping downwards from left to right. “In the simplifying logic of a graph, any downward slope points towards a future zero, but with certain species that future appears to be shockingly imminent,” he writes (117). “For a naturalist faced with the diminishing beauty of a beloved world, the job of seeing does not end with counting one bird instead of twenty,” he argues. “Seeing means opening your eyes to witness the mechanism behind the horror; lifting the veil of our myths—from blaming to denial to despair—long enough to glimpse the disfigurement and decay for what it is” (119).

What is causing populations of grassland birds to fall so dramatically? Biologists don’t know. It can’t be habitat loss, because a lot of grassland was destroyed before the BBS counts began. “We continued to have some land conversion [ploughing native grassland] in the seventies and eighties, but not enough to account for the changes in bird population we’re seeing,” Davis told Herriot. “Like anything else in ecology, it’s probably a number of interrelated factors contributing to the decline” (125). Other bird researchers told Herriot the same thing:

bird decline is accelerating even though habitat loss has slowed down. No single factor is responsible. It’s a combination of the original habitat loss, abetted by improper grazing and management, including fire suppression, which brings on invasive plant species and shrubby growth. Then you can throw into the mix a few other factors: toxins in the environment, West Nile virus, urban sprawl, damage caused by energy-extraction industries, and the compounding effect of drought brought on by global climate change. Most if not all of these destructive forces are also present where grassland birds winter in the southern states, Mexico, and the South American grasslands. (125-26)

I was surprised by Herriot’s inclusion of West Nile virus in this list, but it may be an important factor in the decline of sage grouse populations (206). 

“The steep declines we see now may be ripples echoing from that primary catastrophe”—the destruction of most of the grassland when Settlers arrived (127). The result is a “barely functioning environment that has become unnaturally vulnerable to local and short-term weather events: a late-spring snowstorm, drought, flood” (127). Fragmented habitats have powerful effects on birds (127-29). Grassland birds “need enough habitat to maintain a neighbourhood and, what’s more, they need enough neighbours to provide a functioning community in which pair formation and mate choice can foster a healthy, stable population” (130). A fragmented habitat, in which pieces of remaining grassland have a “high ratio of edge to interior,” will give an advantage to predators, “but when a community of longspurs has dwindled down to a lone male singing out to the sky, predation, food supply, disease, climate, and all the other limiting factors that play into population dynamics of grassland birds do not tell the whole story,” Herriot writes. “The very suddenness of the collapse may simply be a matter of females giving up on the pasture and moving out to a place with a larger population of males to choose from” (130). As that happens, population declines will accelerate (130). “That may sound bleak,” Herriot admits, “but discovering the reason why birds disappear from seemingly suitable habitat is a vital step toward knowing which fragments are the most important to conserve, as well as what must be done to restore, expand, and maintain the right mix of habitat within and between fragments so that a diversity of bird communities will be able to thrive” (130).

Recent innovations in farming which “depend on heavy herbicide use and larger machinery,” are making the situation worse (135). “These new weed control and seeding techniques, which now dominate conventional agriculture on the prairie, are having an indirect but very real effect upon a guild of grassland birds that until recently were thriving on and around cultivated farmland,” Herriot writes (135). Those species, more adaptive than others “and therefore able to subsist in the weedy margins of cropland,” include some waterfowl and raptors, and songbirds like the barn swallow, horned lark, savannah sparrow, western meadowlark, and bobolink; populations of all of these species have been in precipitous decline since 1980 (135-36). Stuart Houston told Herriot that the changes in farming he has seen during his long life—“the shift from human-scaled farming to industrialized agribusiness, with the labour of people and animals supplanted entirely by petrochemical-intensive machinery, fertilizer, and insect and weed control”—are “driving farmland birds from the prairie” (136). Road allowances—those sixty-six-foot-wide strips of land where roads would go if they were ever constructed—used to be left to grass, and meadowlarks and other species would be left with places to feed and nest as a result. “But now, with the cost-price squeeze farmers are under, they need to maximize and seed every inch of land so even the road allowances are under crop,” Houston stated. “And where there are roads on an allowance, the crop goes right to the edge of the road” (136). Practices like zero-tillage, which rely on herbicides and applications of artificial sources of nitrogen such as anhydrous ammonia, allow farmers to improve the fertility and productivity of their land “without having to rest it as summerfallow or keep animals for manure” (137). But the specialized equipment needed for zero-tillage means farmers have to crop several sections of land. The expenses involved—new machinery, fuel and chemicals, and land—“force more farmers out of business every year and drive those who remain on the land to increase the scale and ‘efficiency’ of their operations” (139). “These pressures lead to further changes in farming methods that, taken together with continuous cropping, are creating a landscape that is becoming hostile to any life form that does not contribute directly to the bottom line,” Herriot notes (139).

“Meanwhile, a lot of bird habitat on the edges of fields, aspen bluffs, sloughs, and rocky hilltops is being ploughed under in the efficiency compromise that happens when you have to manoeuvre large equipment around obstacles,” he continues. “Conservationists shake their heads when they see a farmer bulldozing bush, filling a slough, or levelling a grassy ridge, but the economics of large-scale grain farming have turned any natural land in the path of machinery into a drain on cash” (140). Together, all of these practices are “a net loss for wildlife despite the benefits they may bring in soil and water retention and in providing nesting cover for a few ducks,” and “these new agricultural practices are eliminating some of the last vestiges of habitat within and around cropland” (141). In addition, nobody really knows what the effects of herbicides, pesticides, and chemical fertilizers might be on the soil—on “the small living things it contains, the microbes that everything else depends on”—or “the insects and other creatures the next level up” (141). Glyphosate herbicides in particular have toxic effects on soil microbiology (141-42). “It may be decades before we know what glyphosate and other chemicals are doing to the overall health of the prairie, but I know what I have seen as the land around Regina has been given over to zero-till practices,” Herriot writes. “Yes, it is ‘merely anecdotal,’ but where I once saw meadowlarks and vesper sparrows on the edges of every field and McCown’s longspurs and horned larks singing above black summerfallow, the land today is alarmingly empty and silent” (142). 

All of this constitutes what an ornithologist working for the provincial government once described to Herriot as “‘a pathology in the landscape’” (142):

Not naming or even describing that pathology in any way keeps the peace in a place where agriculture provides the founding myth of our very entitlement to the land. That foundation spans the moral divide between what farmers want to do (grow food and make a living) and how they do it (with industrial technologies, methods, and marketing systems), convincing them that they have a responsibility to “feed the world,” that the land is properly to be used as its owner sees fit, and that nature is an obstacle, or at best a fringe benefit of farm life. (142-43)

“Hidden by that founding myth, a malignancy threatens the very wholeness and health of the prairie,” Herriot continues. “Its causes are multiple and masked by a complex interplay that compounds their effect. No one can say conclusively how it operates, and the most insidious factor in the pathology is also the most difficult to bring into the light of day” (143).

The word “malignancy” is deliberate, because the next chapter discusses Herriot’s wife Karen’s experience with breast cancer, an illness she shared with many farm women. The farmers in the hospital waiting room talked about the insecticides they were using to kill pests in their fields; the women were wondering about the effects of all of those chemicals. “I felt like I was watching a badly written docudrama on pesticides and cancer,” Herriot recalls. “There were the two sides in front of me: the men who believe the chemicals are harmless and the women who are not so sure. I decided I was not so sure, either” (152). 

The freefall in the populations of grassland birds, Herriot continues, began after 1987. The 1980s were a bad time for farming on the prairie, a time of low prices and drought. In 1985, plagues of grasshoppers devastated grain crops. The response: spraying pesticides. “It was 1987 before I heard anyone suggest that burrowing owls and perhaps other birds were being hurt by grasshopper sprays that were popular at the time,” he remembers. “Burrowing owls, like sage grouse and loggerhead shrikes, eat larger grasshoppers and, in particular, feed their young a lot of grasshoppers” (155). The pesticides that farmers used in their war against the grasshoppers, Herriot suggests, were part of a war on “nature itself” (155). Provincial governments provided rebates to help farmers poison grasshoppers. In Saskatchewan, the provincial minister of agriculture assured his citizens that almost every inch of public land would be sprayed with grasshopper poison, including highways, ditches, railway rights-of-way, road allowances, and provincially operated community pastures (156). Farmers sprayed places that had nothing to do with crop production, such as pastures, on the grounds that they were breeding grounds for grasshoppers (156). 

“As I read through the history of the grasshopper outbreak and the accounts of pastures being sprayed—some entirely, others only at the margins—I thought about the pipits, sparrows, longspurs, owls, and shrikes using that land and feeding tainted grasshoppers to their nestlings,” Herriot writes (157). One of the most popular grasshopper poisons was carbofuran, a powerful neurotoxin (157). “A quarter teaspoon of the liquid form is enough to kill a human being,” he notes; “a single grain of the granular form will kill a songbird” (157). The granules of carbofuran are the same size as the grit birds swallow to help with their digestion (157). A document prepared for Agriculture Canada reported that a single cornfield in Utah was treated with carbofuran; researchers found 479 dead horned larks in those 160 acres, and “[t]he median number of granules in the birds’ gizzards was two” (158). That field, Herriot notes, was just one “out of the millions of acres of canola on the northern Great Plains treated with carbofuran to protect against flea beetles—in addition to the millions of acres treated to kill grasshoppers” (158). “When Canada’s Pesticide Management Regulatory Agency (PMRA) finally got around to searching for carcasses on sample fields and extrapolating the results, the estimated annual kill of songbirds on prairie farms was staggering,” he continues—as many as one million birds every year (158). Meanwhile the liquid form of carbofuran “was killing birds and reducing nest success throughout the region” (158). 

Granular carbofuran was finally phased out in the 1990s, and the liquid form was banned for some but not all applications (159). Supplies remain on farmers’ shelves, though, in case the grasshoppers return—not surprisingly, “there has not been a major outbreak since the 1980s” (159). “Meanwhile, other highly toxic insecticides remain on the market, registered by the very American and Canadian agencies that originally approved carbofuran despite the manufacturer’s own supervised field trials in which at least forty-five species of birds died,” Herriot writes (159). One chemical, terbufos, is half as lethal as carbofuran, which means that only half of birds die after ingesting a single grain of that poison (159). “Eating two grains of terbufos evens the score, yet until 2004 it remained a registered pesticide legal for use on canola where migrating flocks of longspurs, horned larks, and sparrows congregate to feed in spring,” he points out (159). In addition, “songbirds often eat the small canola seed itself, which, until recently, was treated with another powerful chemical, lindane,” an “older, very persistent toxin that has made its way around the globe by travelling in the atmosphere. It can now be found in water in the remotest regions of the Arctic. It occurs in everything form polar bear fat to human breast milk, and has been linked to breast cancer” (159-60). Lindane was deregistered in Canada as a treatment for canola seed in 2001, but the manufacturer, Crompton Corporation, appealed (160). Herriot notes that it took almost 20 years to get carbofuran partially deregistered, partly because the PMRA and other agencies exist to assist the processes of conventional agriculture—but they aren’t alone in their responsibility: “For every scientist who says he is just doing his research, there are hundreds of farmers who will say they are just growing food, and millions of consumers who will say they are just buying and eating it” (161). “I thought again about the risk-benefit trade-off that secures our modern comforts, the gamble we forget but which comes to mind whenever someone is diagnosed with cancer,” Herriot continues. “I began to feel for the first time that the gamble is not mine to make or unmake on my own. In effect, government agencies are quietly rolling the dice on my behalf, justifying the risk of cancer and the killing of birds and other creatures to ensure that high-yield agriculture continues on its inexorable path” (161). 

That form of agriculture exists to make sure that food prices are low: “This is the moral compromise that since World War II has kept us going to the supermarket and the restaurant instead of to the garden or the cold room. If it has brought us any security, it is the dubious sense of ease that goes with having been liberated from our responsibility for the quality of our engagement with the earth” (162). Herriot notes that one document he discovered calculated crop losses and additional costs to farmers of $17 million per year if farmers were prevented from using carbofuran (163). Not surprisingly, the millions of birds killed by the pesticide were not assigned a dollar value (163); they were mere externalities, as I learned in my first-year economics course. “I felt as if I had been fogged by an elaborate smokescreen of reasonability that showed costs and benefits being carefully balanced, but obscured the cold truth no one wants to face,” Herriot writes: “specifically, that human beings receive the benefits by enjoying relatively cheap food grown by a few farmers who do the dirty work on our behalf, while the real costs are borne entirely by the wild creatures we keep out of sight and out of mind” (163). He admits that he is one of those consumers who depends “on industrialized systems to grow, process, package, and deliver much of my food, taking advantage of the big machine that keeps agricultural decision making in the boardrooms and laboratories of people who can legitimately claim to be serving the public interest by ensuring food systems security” (164). However, he continues, “[b]eyond the smokescreen of pesticide review, we all have to answer for the agriculture that is destroying the grasslands of this continent and contaminating our food” (164). Without that kind of agriculture, more of us “would have to be willing to leave the city to grow food” (165). 

The near extinction of burrowing owls is one of the legacies of the use of carbofuran. “Before the crash in the 1990s, the level plains south of Moose Jaw and southwest of Regina still had good numbers of burrowing owls in colonies ranging from two to twenty-five pairs each,” he recalls (165). Then they disappeared. During his 2005 trip with the Houstons, Herriot learned that much of the land where the burrowing owls had nested had been cultivated and planted to crops. Despite programs intended to facilitate their return, they appeared to be gone for good. Rachel Carson’s Silent Spring, a book about the effects on birds of one particular pesticide, DDT, was published in 1962, the year before I was born. We seem to have taken the wrong lesson from that book: not that pesticides are destructive and kill forms of life other than those they are aimed at, but that DDT itself was the problem. Indeed, DDT was a problem, but so are carbofuran, lindane, and the rest of the horrors Herriot describes in Grass, Sky, Song.

One retired geologist who has been surveying birds on a BBS route told Herriot that the disappearance of grassland birds might just be part of the planet’s sixth extinction. “Geologists take the long view,” he told Herriot. “The earth has had big extinctions before. This could be another one. No one knows for sure” (171). “I had been hoping for a more encouraging response, but I appreciated his candour,” Herriot writes. “At least he is out there looking and listening. There are naturalists on the prairie who would rather avoid the unpleasantness of grassland bird decline altogether. After a few depressing outings at increasingly silent pastures, birdwatchers just stop going. There is more to see in the city with its artificial woodlands and wetlands” (171). 

Herriot talked to an entomologist, Dan Johnson, who is the Canada Research Chair in Sustainable Grassland Ecosystems at the University of Lethbridge. He pointed out that there are many species of grasshoppers, many of which don’t affect crops, and noted that he was trying to educate farmers to distinguish between destructive and benign grasshoppers (172). After a career at Agriculture Canada, Johnson felt freer in a university setting, but it was difficult to get funding for his research: “Agribusiness is not interested in studying the effects of farming on grassland ecologies, and Agriculture Canada is reluctant to sponsor any program not endorsed by the industry” (173). Johnson told Herriot, however, that he has been able to study the way pesticides affect “non-target species,” such as grassland birds (174). “This got my attention,” Herriot writes, “along with some research he has been doing on the ‘sublethal’ and indirect effects of pesticides”:

For many years I have been hearing from the anti-pesticide lobby that one of the great shortcomings of the PMRA and its American counterpart in the Environmental Protection Agency is that when they study the risks of a pesticide, they restrict themselves entirely to direct and lethal effects. If sixty-three sage grouse die in a small Idaho alfalfa field sprayed with dimethoate, as they did in 1986, the kill gets duly noted. Meanwhile, several hundred more sage grouse and other animals in the area may fail to breed successfully; their young may die at unusually high rates before fledging; both young and adults may become more vulnerable to predators for a period; they may experience a serious disruption in their endocrine and immune systems; and all of these effects may be compounded by the chemical’s conjunction with other toxins in the environment. Some or all of this may happen, but no one notices. Long-term population decay caused by pesticides is never even considered by the approving agencies, let alone studied. (174-75)

“There are reasons for this omission,” Herriot continues:

Sublethal effects and population decline from pesticide use are notoriously difficult to prove, especially with modern chemicals that break down faster than first-generation organophosphates such as DDT and dieldrin. Dan told me that a bird can die of poisoning but show no trace of the chemical that killed it, unless the carcass is found quickly. Even so, the dose required to kill is many times greater for the modern, fast-degrading poisons used today. (175)

And yet, it seems fair to assume that the chemicals currently on the market “have some serious sublethal effects on birds who eat contaminated insects or who are sprayed directly”:

Summer is short and the life of a prairie bird is unforgiving. One or two days of impairment—the typical dizziness, nausea, blurred vision, and shaking caused by these pesticides—might be enough to give a predator the upper hand or to chill neglected nestlings in cool or wet weather. (175)

In addition, we have no idea what long-term exposure to these chemicals will do to a bird’s endocrine function or immunology (175). We don’t know what such exposures do to humans, let alone other creatures:

No one is studying what happens to the health and reproductivity of birds after officially approved farm chemicals go through their bodies, which are already carrying a load of the same cocktail of DDT, PCBs (polychlorinated biphenyls), lindane, benzene, and other persistent wonders of modern chemistry known to be causing tumours int he one species with access to cancer treatment facilities. (176)

Then there are the indirect effects of herbicides and pesticides, Herriot continues: “Eliminating the insects and weeds that birds use as food and habitat is the most obvious direct effect, but what are farm chemicals doing at the foundation of prairie life, where soil microbes create mysterious webs of interrelationship with invertebrate and plant communities that we cannot begin to comprehend?” (176).

If we are going “to choose technologies worthy of our goal of feeding ourselves without passing on undue costs to grassland communities,” we need to consider these sublethal and indirect effects (176). However, the results of the research have been inconclusive, partly because “there are limits to what science can say conclusively about cause and effect within chaotic systems” (176). “Science is good at proposing reductive, linear, cause-and-effect scenarios and at making predictions that can be tested under laboratory conditions,” Herriot writes. “Yet most scientists know that at some level this is all a charade. The actual, multi-dimensional mystery in which birds live, rear their young, and die is nothing like a laboratory, and the very act of eliminating factors guessed to be extraneous to the question at hand renders the results suspect” (176-77). Unlike a laboratory, “[e]cosystems are borderless, chaotic, and ultimately unfathomable” (177). “Do I want to rely entirely on technology for my wisdom, my judgment, my understanding of what it means to be alive?” Herriot asks. “Should I expect science on its own to regulate the relationships I believe to be holy—between the individual and the community, between the body and the earth, between creatures and the rest of Creation?” (178). 

“Science provides some of the testimony, gathering the evidence of bird decline and examining the mechanisms of decay and dysfunction in a species’ population,” Herriot writes,

but if we choose a comfortable blindness over moral courage, the data, no matter how impressive, cannot make us see. Beneath the aspirations of biology, of all science, there is the power of a deeper way of knowing, a knowledge that has intuitive and moral dimensions too important to abandon merely because science is unable to provide incontrovertible evidence. Each of us knows that it is not good to kill creatures wantonly. Each of us knows that it is not good to pour poison on the land that feeds us. Any child can tell you these truths. (181).

“We have made this land and ourselves unhealthy, justifying immoral means—pesticides and other abuses of the earth—by pointing to the ends: high-yield agriculture, low-cost food, and the economic growth these offer,” he continues. “Questions worth the intelligence and time of our biologists and ecologists would fall out of the larger moral questions we have been avoiding as we push the prairie towards its own lethal-dose rating. How do we live within the limits of the prairie? What can we do to restore our health and the health of the land that welcomed our ancestors?” (181).

Herriot is not interested in assigning blame, however. After the Macoun trip, he recalls, “I had lost the knack for blaming the ‘agri-industrial complex’ and the comfort that comes with being able to point at something specific and say, ‘This is what is destroying the land’” (212-13). Instead of such misplaced certainty, he continues, “was the sad confusion of history, imperfectly recollected and interpreted, the inadequacy of science, and a hunger for ways of knowing that we are worthy of this land” (213). He recalls a visit to an abandoned homestead, where he thought about what drove those Settlers from the land, and the failure of the myths of settlement that have shaped the Settler imaginary (214). “Seven thousand years of living with the grassland and its creatures has been sacrificed to make way for a civilization that skins the earth alive,” he laments. “Like most people, I can only take small draughts of my anterior responsibility for that founding sacrifice, my ancestral connection to it, and my continuing benefit from it” (214-15). “In the end, the trail of our exploring and colonizing testifies that everything in nature that suffers from human agency is a victim of our desire to accuse the other and deflect blame from ourselves,” he continues (217). We blame nature, we blame the land, we blame each other—everything except ourselves: “The sooner we admit that we have all been living off the avails of the original violence done to these plains, the sooner we might begin to accept that we have to learn new ways of drawing life from a land where grass likes to grow” (217). I think that’s true, but that phrasing downplays the fact that part of that “original violence” was the dispossession of Indigenous peoples, who by and large have not profited from the destruction of the grassland, by Settlers, the way that Settlers have done. I know that Herriot is aware of this fact, and I’m not criticizing his desire to move from accusation to community, but I wonder how difficult that kind of move would prove to be. Indeed, as I read this book, I wondered why Indigenous peoples don’t express a more certain hatred for Settlers—not only for what we have done to them (residential schools, deliberate starvation, the Pass System, incarceration, the apprehension of children) as for what we have done to the land that sustained them for so many thousands of years. 

Herriot believes that if we step away from blaming each other, we might discover “a humble re-entry into community and creation. There is a healing, gathering force in grassland, and in all natural landscapes, that can bring us together into a circle of shared responsibility for one another and for the health of other beings” (218). The land doesn’t require our management—in fact, it resists our attempts to manage it—but it asks “that we receive and honour it as an invitation to set aside our orientation toward death so that we might open ourselves to participate in the livelihood of this place. Were we ever to undergo such a transformation, imagine what might be achieve in us, breathed into us, quickened and declared in the life we draw from prairie” (218-19).

The last section of the book sets out to provide readers with some sense of hope that all is not lost. “I want to believe that if enough people are moved by the faithfulness of grassland birds, by the way they continue to follow the promptings in their blood to make more of ourselves, we might find ways to lay out a proper reception for them, to spread a banquet of grassland as near as possible to the original bounty prepared by the traditional masters: buffalo, fire, soil, and weather,” he writes. “It would begin with protecting all the different kinds of native grassland we have, restoring them to health, and then making room for a lot more grass, the closer to native the better” (229). Note the conditional phrasing of this desire; I could be wrong, but I sense a struggle between hope and despair in this part of the book. Herriot does point to efforts to protect and restore grassland: the Old Man on His Back Plateau in southwestern Saskatchewan (229), Grasslands National Park (230), the scientists working towards these goals (230-31), the Northern Mixed Grass Transboundary Conservation Initiative (231), the popularity of bison as food (232), the possibility that consumers might purchase grass-fed beef as a way of protecting grassland bird habitat (232). The growing importance of Indigenous people is another sign of hope, particularly if they are able “to bring something of the ethics, grounded wisdom, and reverence of their traditions into modern economics and agriculture,” which would “help us all to discern what kind of prairie we want to leave our children and grandchildren” (237). Some farmers in areas with lighter soils, he continues, are seeding cropland back to native grass, although rising grain prices would put a stop to that movement (and probably have) (238-39). Herriot acknowledges that there are considerable obstacles facing these possibilities, but suggests that “[t]he two sides, of opportunities on the one side and obstacles on the other, hang in a rough and uneasy balance that may shift in the coming years” (241). 

One initiative he praises is the Longspur Prairie Bison and Beef cooperative, a group “made up of private landowners, consumers, livestock producers,” and the Carry-the-Kettle Nakoda First Nation, which is restoring grassland, in part through the efforts of people who join the coop and exchange labour for meat (251-53). The cooperative’s work gives Herriot hope. “To live in honest hope is to live well in your own body, in your family, in your community, and in the land that feeds you,” he writes. “It begins in sensuous contact with the world as you find it—whole and broken, familiar and strange, resilient and imperilled. From there, hope feeds advocacy, the passionate defence of the life beloved, and that experience inevitably leads to an encounter with the forces, inside others and yourself, that threaten to bring you crashing back to earth” (253-54). Hope can survive that fall “by joining itself to a wider forgiveness and becoming something more grounded,” he continues (254). “If I eat and take for the earth in ways that keep faith with it, I replenish myself and the earth in the same movement,” he concludes. “The truth of this harmony eludes us most days but lives within every small gesture of forbearance, generosity, and care, from the decision to eat healthy and local food to the farmer who sets aside his pesticides for the last time” (254). We need to become more like our prairie surroundings: “Listen. The grass accuses no one, the sky bears no grudge, and the song—forsaken, repudiated, still waiting to be received—is a timeless benediction welcoming us into a freedom, a community, and a landscape that may yet bring us home” (255).

hope in the dark

I want to believe in the hope with which Herriot ends his book, although at the same time I find myself overwhelmed by the story he tells about carbofuran and other poisons and their effects, and I am prone, for good reasons and bad, to see darkness and futility where others see light and possibility. So I turn to a book I read, or at least started to read, a year ago, Rebecca Solnit’s Hope in the Dark: Untold Histories, Wild Possibilities. “It’s important to say what hope is not,” Solnit writes: “it is not the belief that everything was, is, or will be fine. The evidence is all around us of tremendous suffering and tremendous destruction” (xiii). Instead, she says, “[t]he hope I’m interested in is about broad perspectives with specific possibilities, ones that invite or demand that we act. It’s also not a sunny everything-is-getting-better narrative, though it may be a counter to the everything-is-getting-worse narrative. You could call it an account of complexities and uncertainties, with openings” (xiii-xiv). “Hope locates itself in the premises that we don’t know what will happen and that in the spaciousness of uncertainty is room to act,” she contends. “When you recognize uncertainty, you recognize that you may be able to influence the outcomes—you alone or in concert with a few dozen or several million others. Hope is an embrace of the unknown and the unknowable, an alternative to the certainty of both optimists and pessimists” (xiv).

Hope, Solnit continues, is “the belief that what we do matters even though how and when it may matter, who and what it may impact, are not things we can know beforehand. We may not, in fact, know them afterward either, but they matter all the same, and history is full of people whose influence was most powerful after they were gone” (xiv). She quotes the theologian Walter Brueggeman: “Memory produces hope in the same way that amnesia produces despair” (qtd. xix). “It’s an extraordinary statement, one that reminds us that though hope is about the future, grounds for hope lie in the records and recollections of the past,” she states (xix). We can tell a story about incessant defeat and loss, or one about a golden age now lost, “or we can tell a more complicated and accurate story, one that has room for the best and worst, for atrocities and liberations, for grief and jubilation. A memory commensurate to the complexity fo the past and the whole cast of participants, a memory that includes our power, produces that forward-directed energy called hope” (xix). Amnesia, on the other hand, forgets the progress that has been made, the changes that have taken place (xix). “One of the essential aspects of depression is the sense that you will always be mired in this misery, that nothing can or will change,” she suggests. “There’s a public equivalent to private depression, a sense that the nation or the society rather than the individual is stuck. Things don’t always change for the better, but they change, and we can play a role in that change if we act. Which is where hope comes in , and memory, the collective memory we call history” (xix). 

Perhaps I need to reread Solnit’s book, and to take the hope Herriot searches for in the last section of Grass, Sky, Song seriously. It’s hard to imagine, say, conventional agriculture moving away from its reliance on poison. But anything can happen. Two weeks ago, I would have said that it was impossible to imagine, for instance, the NFL saying that was wrong for it to refuse to allow players like Colin Kaepernick to protest, too, and that’s happened (“Colin Kaepernick”). Solnit’s point seems to be that the future is unwritten, and that hope is an acceptance of the possibilities that idea implies. I need to hold onto that, especially when I look at the destructions wrought by Settlers on this place and its inhabitants. 

Works Cited

“Colin Kaepernick: How the NFL Made Its U-Turn.” BBC Sport, 6 June 2020. https://www.bbc.com/sport/american-football/52948942.

Herriot, Trevor. Grass, Sky, Song: Promise and Peril and the World of Grassland Birds, HarperCollins, 2009.

Lockwood, Jeffrey. “Prayerful Science.” Earthlight: Journal for Ecological and Spiritual Living, no. 52, 2005, 14-19.

Sawatsky, Katy Doke. “The State of Native Prairie in Saskatchewan,” PrairieCommons.ca, 1 October 2018. http://www.prairiecommons.ca/?page_id=300.

Solnit, Rebecca. Hope in the Dark: Untold Histories, Wild Possibilities, 3rd edition, Haymarket, 2016.

Nicholas Luard, The Field of the Star, and Alicia Elliott, A Mind Spread Out On the Ground

When the pandemic began, I began finding it difficult to finish books. I would start reading something and then get distracted and put it aside. I just didn’t have the concentration to read anything longer than an article in The Guardian or The New Yorker. It was surprising, and worrying, and I suddenly found myself wondering if I was sharing this experience with my students, many of whom find reading books next to impossible. Attention spans have changed, it seems, and although I’m no expert on the phenomenon, I would guess that those changes are related to the ubiquity of ways of getting information and entertainment other than reading books. Like anything else, reading books takes practice; the more books one reads, the easier reading books becomes.

In any case, as the stress of the pandemic’s first days has receded, I’ve found myself able to read books again. In the past couple of days, I’ve finished two very different books: Nicholas Luard’s The Field of the Star, an account of a walk on the Camino Francés in the early 1990s, and Alicia Elliott’s collection of autobiographical essays, A Mind Spread Out On the Ground. Little connects these books, or their authors, except my interests in walking, pilgrimage, and colonialism, and one formal quality that might hold true for most memoirs that are worth reading.

field of the star

The Field of the Star is, as I suggested, Luard’s 1998 account of a 1,000 mile walk from Le Puy, France, to Santiago de Compostela, Spain, on the Camino de Santiago or, in France, Le chemin de St. Jacques. I ran across a mention of this book in The Vintage Book of Walking, edited by Duncan Minshull—one of the books I started in the pandemic’s early days and then put down—and the excerpt I read was so compelling that I decided to read the book from which it was taken. That excerpt doesn’t appear until the very end of Luard’s memoir, in an appendix that gives advice to those who would embark on a long journey on foot:

Give your feet tender loving care both before you begin and along the Way. The soles, the heels and front pads don’t need to be hard. Paradoxically as it may seem, hard feet on a long tramp are a hazard—the skin tends to crack and bleed. What one needs is an underpinning of skin that is soft and supple, that can bend with the rocks and absorb their impact. The best way to achieve it is with lavish applications of a good lanolin cream. (237)

That’s pretty good advice, and although I have no idea where to find “a good lanolin cream,” I have used both petroleum jelly and Vick’s Vaporub on my feet with good results. But that advice is only a tiny part of Luard’s book. The bulk of it is an account of his journey, which he undertook with his sister, Priscilla, and his sister’s friend Hillary, over three years. They are part-time pilgrims, according to Nancy Louise Frey’s definition, walking for a couple of weeks at a time when they can free themselves of other obligations, rather than making the entire journey in one go (see Frey 20). That journey is juxtaposed against the reason Luard is walking to Santiago—his eldest daughter, Francesca, has contracted HIV/AIDS and, in a time before antiviral drugs, has a short time left to live. (She dies partway through Luard’s pilgrimage.) It might seem strange that his reaction to Francesca’s illness is to walk in France and Spain rather than making arrangements to be with her during the time she has left, but Luard’s relationship with Francesca is rather fraught, and she sounds, from his description of her, like a talented but difficult person. One might say the same of Luard himself. I had never heard of him, but I found an obituary published after his death in 1994 which explained that he was a soldier, that he started a satirical nightclub with Peter Cook in the early 1960s, and that he was a professional writer throughout the 1970s and 1980s. The Field of the Star was his last book. The story of his walk is sometimes interrupted by Luard’s ruminations on political and theological topics. He is a rather cranky old Tory, unhappy with the changes in politics and the Anglican Church he has experienced during his lifetime, and despite (or because of) his experiences as a traveller and explorer in Africa, prone to casual expressions of racism. He dislikes Germans on principle because of the Second World War; he is apparently a supporter of Margaret Thatcher, even though he is also a conservationist; and he dislikes the European Union and complains about bureaucrats in Brussels, which suggests he might’ve been a Leave supporter if he were alive today.

Luard’s account of his journey reinforces something I’ve learned from similar books: the more miserable and difficult the journey is, the more engaging and interesting the writing about the journey will be. During the first leg of their walk, for instance, Luard and his companions experienced long, difficult days of walking in pouring rain; they got lost frequently; and Luard himself had to go home early when he contracted pneumonia. And yet his account of this part of their pilgrimage is much more alive than his narrative of the last part of the journey, which Luard finished by cadging rides from truckers and cab drivers. He had good reasons for taking those shortcuts—he was in mourning for his daughter, and he was physically exhausted by the pilgrimage, interrupted though it was—and yet, it makes for rather dull reading.

a mind spread out on the ground

One reason I enjoyed Luard’s book is that it has little to do with my academic research. I can’t say the same about Elliott’s A Mind Spread Out On the Ground, which I read partly because I’m looking for a memoir that might be appropriate for a class of first-year students at my university, and partly because I was curious about what she has to say about colonialism in Canada—a lot, as it turns out. Unlike The Field of the Star, there is no through line or narrative in Elliott’s book; it’s a collection of essays, primarily autobiographical, but after reading the book, I have an understanding of what life was like for Elliott growing up as a white-looking, half-Tuscarora kid whose impoverished family was sometimes homeless, whose white mother suffers from uncontrolled bipolar disorder, and who, after moving to be near her father’s family at the Six Nations of the Grand River reserve in southwestern Ontario, lived in a trailer without running water. For Elliott, her family’s poverty wasn’t just the result of her mother’s illness or her father’s tendency to relocate the family; it was the result of the racism and white supremacy that are part of colonialism, and that tends to limit economic opportunities for people whose skin is black or brown. We might understand that in a general way from statistics about income and unemployment, but A Mind Spread Out On the Ground puts flesh on those dry bones. For instance, until she moved away from her family’s trailer, Elliott had head lice—years and years of scratching—because there was no running water for shampooing, and no money for medicated shampoo, and no washing machine for sheets and pillowcases, and no time to vacuum the trailer’s carpeted floors. She also had to hide the infestation from teachers and other authorities, because of the chance that social services would apprehend the children (Indigenous children are taken into foster care at astounding rates, because poverty is considered to be parental neglect rather than an effect of colonialism). Elliott also describes her own struggles with depression, which she might have inherited from her mother, and her efforts to escape poverty and mental illness through education and writing.

Elliott now lives in Brantford, my home town, and she might have attended Pauline Johnson Collegiate while my sister Pam was teaching English there, but in every other way we come from different worlds. My grandparents were not rich, and they struggled, but they weren’t sent to the local residential school, the Mohawk Institute (also known as the Mush Hole because of the food served to the children incarcerated there), nor was my grandfather murdered by a white man (as Elliott’s grandfather was). Nothing Elliott says in her book should be a surprise, given what we know about the effects of colonialism, but it’s a testament to the power of her writing that I found myself sometimes catching my breath at the truths I found in this book. For example, she explains the connection between colonialism and depression in a way that helps me to understand the suicide epidemic on some First Nations:

“Can you imagine going to a funeral every day, maybe even two funerals, for five to ten years?” the chief asks. He’s giving a decolonization presentation, talking about the way colonization has affected our people since contact. Smallpox, tuberculosis, even the common cold hit our communities particularly hard. Then, on top of that, we had wars to contend with—some against the French, some against the British, some against either or neither or both. Back then death was all you could see, smell, hear or taste. Death was all you could feel.

“What does that type of mourning, pain and loss do to you?” he asks. We reflect on our own losses, our own mourning, our own pain. We say nothing.

After a moment he answers himself. “It creates numbness.”

Numbness is often how people describe their experience of depression. (6-7)

She continues:

Both depression and colonialism have stolen my language in different ways. I know this. I feel it inside me even as I struggle to explain it. But that does not mean I have to accept it. I struggle against colonialism the same way I struggle against depression—by telling myself that I’m not worthless, that I’m not a failure, that things will get better. (12)

She writes about the privilege of being able to pass as white (22) and about the way racism, sexism, and colonialism keep Indigenous women out of the literary community (25-26). She considers the connection between colonialism and gentrification, the way that early settlers looked at the land “with the eyes of enterprising tourists,” forcing out “the lands’ native inhabitants” and then going about “realizing this land’s ‘potential,’ laying roads and constructing buildings, later putting up condos and converting old restaurants into cafés” (49). She reflects on Colten Boushie’s death and how she felt when a Saskatchewan jury found his killer not guilty of anything, not even manslaughter, and how she felt when Tina Fontaine’s killer was allowed to walk out of a Winnipeg court, a free man. She compares racism to the physicists’ dark matter:

Racism, for many people, seems to occupy space in very much the same way as dark matter: it forms the skeleton of our world, yet remains ultimately invisible, undetectable. This is convenient. If nothing is racism, then nothing needs to be done to address it. we can continue on as usual. . . . We can keep our eyes shut inside this dark room we’ve created and pretend that, as long as we can’t see what’s around us, there’s nothing around us at all. After all, there’s no proof of it. (70)

She recalls the aftermath of being sexually assaulted and the way that “[u]nder capitalism, colonialism and settler colonialism, everything Indigenous is subject to extraction”:

Words from our languages are extracted and turned into the names of cities, states, provinces or, in the case of Canada, an entire country. Resources from our traditional territories are extracted and turned into profit for non-Indigenous companies and strategic political donations. Our own children are extracted so that non-Indigenous families can have the families they’ve always wanted, so our families will fall to ruin and our grief will distract us from resisting colonialism.

Then, after all of this extraction, the nation-state has the audacity to tell us we should be glad, that the theft was for our own good. Or, more recently, politicians will admit that awful things were done, but that they happened in the past and should be forgiven, despite modern-day equivalents still taking place all around us. (213-14)

Elliott’s book is tough, but it’s an important and even necessary read, I think. It won’t matter if you don’t read Luard’s story of his long walk; but it will matter if you ignore the truths Elliott has to tell.

It almost goes without saying that Elliott and Luard have almost nothing in common; he would dismiss her work as political correctness, and she would see him as yet another colonizer despite (or even because of) his honorary membership in the Zulu Nation and his support of the San people of the Kalahari Desert. And I think she would be right. However, both books have something to teach about writing creative non-fiction, about writing memoir: one’s own story needs to be placed alongside another story, another context. For Elliott, that context is Canadian colonialism and racism. For Luard, it is the story of his daughter’s short life and painful death. One might accuse him of constructing a hagiography of his daughter, although surely that is a grieving father’s privilege, but the letters to Francesca that interrupt his account of walking to Santiago de Compostela are essential; they lift his book above mere travelogue, and his walk becomes an expression of sorrow. Other works of creative non-fiction I’ve read recently—Don Gillmor’s To the River: Losing My Brother is another example—all juxtapose the personal against something larger in a similar way. I need to remember that as I write about my walks to and near the Regina Bypass.

Works Cited

Elliott, Alicia. A Mind Spread Out On the Ground, Doubleday Canada, 2019.

Frey, Nancy Louise. Pilgrim Stories: On and Off the Road to Santiago, U of California P, 1998.

Gillmor, Don. To the River: Losing My Brother, Vintage Canada, 2018.

Luard, Nicholas. The Field of the Star: A Pilgrim’s Journey to Santiago de Compostela, Penguin, 1999.

Minshull, Duncan, ed. The Vintage Book of Walking: An Anthology, Vintage, 2000.

 

George Macaulay Trevelyan, “Walking”

GM_Trevelyan_by_Beresford

(George Macaulay Trevelyan as photographed by George Charles Beresford in 1926)

British historian George Macaulay Trevelyan’s long essay “Walking” was published in the collection Clio, A Muse and Other Essays Literary and Pedestrian in 1913. Clio, A Muse must have been a popular book; it was in its third impression within the year. I’ve heard about Trevelyan’s essay before, but it took comments on this blog, and the selections included in Duncan Minshull’s anthology The Vintage Book of Walking, to motivate me to find a copy online and dig into it. 

“Walking” begins with two quotations: one from Rousseau’s Confessions, and the other from—surprise!—Leslie Stephen’s “In Praise of Walking.” They situate Trevelyan’s thinking on this subject within the Romantic tradition, I think, but Trevelyan’s first words are less about the experience of sublime landscapes than the psychological benefits of walking:

I have two doctors, my left leg and my right. When body and mind are out of gear (and those twin parts of me live at such close quarters that the one always catches melancholy from the other) I know that I have only to call in my doctors and I shall be well again. (56)

Walking helps Trevelyan when “[t]hat combination of mind and body which I call my soul is often so choked up with bad thoughts or useless worries,” and it is at those times that he calls on his “two doctors” to carry him “off for the day” (57). Often mental exercises, such as those recommended by Arnold Bennett in his book The Human Machine, are insufficient to shift Trevelyan’s thoughts away from “general misery”:

On these occasions my recipe is to go for a long walk. My thoughts start out with me like bloodstained mutineers debauching themselves on board the ship they have captured, but I bring them home at nightfall, larking and tumbling over each other like happy little boy-scouts at play, yet obedient to every order to “concentrate” for any purpose Mr. Bennett or I may wish. (57-58)

Trevelyan’s repetition in these first pages isn’t simply garrulousness, I think; rather, it’s his way of emphasizing the psychological benefits he finds in walking.

However, those walks, if they are to have any “medicinal use,” need to be rural walks. Trevelyan describes the benefits he has found in walking: 

a Sunday spent with both legs swinging all day over ground where grass or heather grows. I have often known the righteous forsaken and his seed begging their bread, but I never knew a man to go for an honest day’s walk, for whatever distance, great or small, his pair of compasses could measure out in the time, and not have his reward in the repossession of his own soul. (58)

These need not be solo walks—“companionship is good, and the more friends who join us on the tramp the merrier” (58)—and their effect on the self will be limited to resetting the walker’s mood:

For there is not time, as there is on the longer holiday or walking tour, for body and mind to attain that point of training when the higher ecstasies of Walking are felt through the whole being, those joys that crave silence and solitude. And indeed, on these humbler occasions, the first half of the day’s walk, before the Human Machine has recovered its tone, may be dreary enough without the laughter of good company, ringing round the interchange of genial and irresponsible verdicts on the topics of the day. For this reason informal Walking societies should be formed among friends in towns, for week-end or Sabbath walks in the neighbouring country. I never get better talk than in these moving Parliaments, and good talk is itself something. (58-59)

Here is the Romanticism that Trevelyan’s epigraphs led me to expect: “the higher ecstasies of Walking,” “those joys that crave silence and solitude.” He is focused on a different kind of walking: a practice that is essential to mental health.

However, there are criticisms to be made of such a practice, Trevelyan admits, presenting a long quotation from Arthur Sidgwick’s Walking Essays complaining about the insensitivity of such walkers and the starvation of “their immortal being” between “the blind swing of the legs below and the fruitless flickering of the mind above” (qtd. 59). Sidgwick sounds like an impossible snob, but Trevelyan suggests that these remarks demonstrate a thorough understanding of “the high, ultimate end of Walking, which is indeed something other than to promote talk” (60). For Trevelyan, though, a day’s walk every couple of weeks can only refresh the body and exercise the mind. The kind of walking Sidgwick describes, he suggests, “requires longer time, more perfect training, and, for some of us at least, a different kind of scenery. Meanwhile let us have a good talk as we tramp the lanes” (60). Trevelyan is defending a rather unromantic, even prosaic, kind of walking against the nearly impossible demands of Sidgwick’s romanticism. He quotes Thomas Carlyle’s claim that walking and talking is “one of the highest of human functions” (60), but he also sees a connection between convivial and conversational walking and a more solo and Romantic approach in Carlyle’s walking practice:

because he talked well when he walked with others, he felt and thought all the more when he walked alone, “given up to his bits of reflections in the silence of the moors and hills.” He was along when he walked his fifty-four miles in the day, from Muirkirk to Dumfries, “the longest walk I ever made,” he tells us. Carlyle is in every sense a patron saint of Walking, and his vote is emphatically given not for the “gospel of silence”! (60-61)

Because Carlyle was good at conversational walking, he was good at reflective walking, and he might not be the only exemplar of that connection; surely the Wordsworths and Coleridge conversed while they made their walks together, and yet those walks led to a particular form of Romantic poetry.

Nevertheless, Trevelyan continues, his idea of “the perfect walk” involves both silence and solitude:

When you are really walking the presence of a companion, involving such irksome considerations as whether the pace suits him, whether he wishes to go up by the rocks or down by the burn, still more the haunting fear that he may begin to talk, disturbs the harmony of body, mind, and soul when they stride along no longer conscious of their separate, jarring entities, made one together in the mystic union with the earth, with the hills that still beckon, with that sunset that still shows the tufted moor under foot, with old darkness and its stars that take you to their breast with rapture when the hard ringing of heels proclaims that you have struck the final road. (61)

However, even at such times “a companion may be good, if you like him well, if you know that he likes you and the pace, and that he shares your ecstasy of body and mind” (61-62). Proclaiming that solitary walks are “perfect” makes him feel disloyal to such companions. He recalls walks in Italy with an unnamed friend in which they shared “the goodness and harmony of things, our bodies an animated part of the earth we trod” (62). 

“Central Italy is a paradise for the walker,” Trevelyan writes (62). He praises the “hills and mountains, unenclosed, open in all directions to the wanderer at will, unlike some British mountain game preserves” (63). It’s not just the scenery, then, but the way that walkers are not considered to be trespassers that is important: “even in the plains, the peasant, unlike some south-English farmers, never orders you off his ground, not even out of his olive grove or vineyard” (64). He likes the fact that it’s possible to find lodgings in Italian towns even if you arrive at midnight, and the way that the locals will guide strangers “without bargain or demur” (64). From here, he shifts to practical concerns: the need to carry water, the importance of a siesta during the heat of midday. However, he never loses sight of the sensuous pleasures of walking in Italy: walking at night, or the chorus of frogs, which he describes as “one of the grandest tunes to walk by” (65), or the song of nightingales.

However, walking is also a way for a person—especially a young person—to learn “that the world was not created to make him happy”:

In such cases, as in that of Teufelsdröckh, grim Walking’s the rule. Every man must once at least in life have the great vision of Earth as Hell. Then, while his soul within him is molten lava that will take some lifelong shape of good or bad when it cools, let him set out and walk, whatever the weather, wherever he is, be it in the depths of London, and let him walk grimly, well if it is by night, to avoid the vulgar sights and faces of men, appearing to him, in his then daemonic mood, as base beyond all endurance. Let him walk until his flesh curse his spirit for driving it on, and his spirit spend its rage on his flesh in forcing it still pitilessly to sway the legs. Then the fire within him will not turn to soot and choke him, as it chokes those who linger at home with their grief, motionless, between four mean, lifeless walls. (65-66)

At first I thought Trevelyan was writing about those physically arduous walks (because of length or difficulty) that test one’s resolve, but then I realized he’s actually writing about walking as a way of addressing psychological or even existential depression:

The stricken one who has, more wisely, taken to road and field, as he plies his solitary pilgrimage day after day, finds that he has with him a companion with whom he is not ashamed to share his grief, even the Earth he treads, his mother who bore him. At the close of a well-trodden day grief can have strange visions and find mysterious comforts. Hastening at droop of dusk through some remote byway never to be found again, a man has known a row of ancient trees nodding over a high stone wall over a bank of wet earth, bending down their sighing branches to him as he hastened past forever, to whisper that the place knew it all centuries ago and had always been waiting for him to come by, even thus, for one minute in the night. (66)

What is this grief that propels Trevelyan forward? It must be related to that feeling that leads him to call his legs his doctors, but I know little about his life or whether he did suffer from depression or not.

That grief is not Trevelyan’s sole walking companion, however:

Be grief or joy the companion, in youth and in middle age, it is only at the end of a long and solitary day’s walk that I have had strange casual moments of mere sight and feeling more vivid and less forgotten than the human events of life, moments like those that Wordsworth has described as his common companions in boyhood, like that night when he was rowing on Esthwaite, and that day when he was nutting in the woods. (66-67)

Those moments only come to Trevelyan after 25 miles of walking, but he notes that they came more easily to Wordsworth, “together with the power of expressing them in words!” (67). Those moments are the goal of one form of walking—a Romantic form of walking—which is separate from but linked to the more practical form of walking Trevelyan sees as essential to mental health.

But those aren’t the only two ways to walk: “There are many schools of Walking and none of them orthodox” (67). Some walk on roads, “the Puritans of the religion” (67). They have learned that “[t]he road is invaluable for pace and swing, and the ideal walk permits or even requires a smooth surface for some considerable portion of the way” (68-69). However, for Trevelyan, “twenty-five or thirty miles of moor and mountain, of wood and field-path, is better in every way than five-and-thirty or even forty hammered out on the road” (69). “The secret beauties of Nature are unveiled only to the cross-country walker,” he argues (69):

On the road we never meet the “moving accidents by flood and field”: the sudden glory of a woodland glade; the open back-door of the old farmhouse sequestered deep in rural solitude; the cow routed up from meditation behind the stone wall as we scale it suddenly; the deep, slow, south-country stream that we must jump, or wander along to find the bridge; the northern torrent of molten peat-hag that we must ford up to the waist, to scramble, glowing warm-cold, up the farther foxglove bank; the autumnal dew on the bracken and the blue straight smoke of the cottage in the still glen at dawn; the rush down the mountain side, hair flying, stones and grouse rising at our feet; and at the bottom the plunge in the pool below the waterfall, in. place so fair that kings should come from far to bathe therein—yet it is left, year in year out, unvisited save by us and “troops of stars.” These, and a thousand other blessed chances of the day, are the heart of Walking, and these are not of the road. (69-70)

The experience of those “secret beauties of Nature” are, to a great extent, the purpose of walking, according to Trevelyan. He doesn’t deny the role of “the hard road” in getting walkers to and from those “secret” spaces, and he praises what he calls “the ‘soft’ road”:

The broad grass lanes of the low country, relics of mediaeval wayfaring; the green, unfenced moorland road; the derelict road already half gone back to pasture; the common farm track—these and all their kind are a blessing to the walker, to be diligently sought out by help of map and used as long as may be. For they unite the speed and smooth surface of the harder road with much at least of the softness to the foot, the romance and the beauty of cross-country routes. (70-71)

Where I walk, it’s rare to find “the ‘soft’ road,” never mind those “cross-country routes” Trevelyan prefers. Pavement and gravel are the surfaces I walk on. And, in my most recent experience walking in the UK, farm tracks have mostly been paved as well. 

Along with his preferences regarding road surfaces, Trevelyan advises searching for “as much variety as is possible in twelve hours”—the time span of the walking he seems to recommend: “Road and track, field and wood, mountain, hill, and plain should follow each other in shifting vision” (71). He praises George Meredith’s poem “The Orchard and the Heath” for its depiction of “the effect of variation in the day’s walk” (71). Some districts naturally possess such variation, but variety can also “be obtained by losing the way—a half-conscious process, which in a sense can no more be done of deliberate purpose than falling in love. And yet a man can sometimes very wisely let himself drift, either into love, or into the wrong path out walking” (71-72). I am reminded here, strangely, of the psychogeographical trick of walking somewhere with the wrong map as a way of experiencing space differently. For Trevelyan,

there is a joyous mystery in roaming on, reckless where you are, into what valley, road or farm chance and the hour is guiding you. If the place is lonely and beautiful, and if you have lost all count of it upon the map, it may seem a fairy glen, a lost piece of old England that no surveyor would find though he searched for it a year. I scarcely know whether most to value this quality of aloofness, and magic in country I have never seen before and may never see again, or the familiar joys of Walking-grounds where every tree and rock are rooted in the memories that make up my life. (72)

But certain places provide better walking territory than others: the western part of England is better than the eastern; Wales is good; the coasts of Devon and Cornwall meet with his approval. 

Scrambling up hills “is an integral part of Walking, when the high ground is kept all day in a mountain region” (74). Indeed, “[i]t may be argues that scrambling and its elder brother climbing are the essence of Walking made perfect,” although Trevelyan acknowledges that, since he’s not a mountain climber, he cannot judge (74). However, climbers have no reason to envy walkers. “On the other hand,” he continues, “those stalwart Britons who, for their country’s good, shut themselves up in one flat field all day and play there, surrounded by ropes and a crowd, may keep themselves well and happy, but they are divorced from nature” (74-75). Hunting “does well when it draws out into the heart of nature those who could not otherwise be induced to go there,” but hunters should instruct their gamekeepers to allow walkers onto the land “when they themselves are not shooting” (75). “The closing of moors is a bad habit that is spreading in some places, though I hope it is disappearing in others,” he writes, suggesting that closing off land because of the presence of grouse and deer means that it has “ceased to belong to Britain” (75). “One would have thought that mountains as well as seas were a common pleasure ground,” Trevelyan continues. “But let us register our thanks to the many who do not close their moors” (76). In turn, walkers have responsibilities “not to leave gates open, not to break fences, not to walk through hay or crops, and not to be rude to farmers,” as well as to burn or bury their garbage, since “all nature is sacred, and in England there is none too much of it” (76). In addition, when walkers trespass on private property, they should do it “only so as to temper law with equity. Private gardens and the immediate neighbourhood of inhabited houses must be avoided or only crossed when there is no fear of being seen” (76). The guiding principle, he continues, is “‘Give no man, woman, or child just reason to complain of your passage’” (76). 

Tea is an essential addition to walking, and as British, by adoption, as wine is Italian. When he is tired and hungry, he states, he hopes that “a lane-side inn” will be able to provide him with three boiled eggs and a pot of tea (77). “Then, for an hour’s perfect rest and recovery, while I draw from my pocked some small, well-thumbed volume, discoloured by many rains and rivers, so that some familiar, immortal spirit may sit beside me at the board,” he writes. “There is true luxury of mind and body! Then on again into the night if it be winter, or into the dusk falling or still but threatened—joyful, a man remade” (77-78). For Trevelyan, walking at night is the best part of walking: “Indeed the only reason, other than weakness of the flesh, for not always walking until late at night, is the joy of making a leisurely occupation of the hamlet that chance or whim has selected for the night’s rest” (78). He praises the after-dinner walk at sunset—I’m surprised that after walking 12 hours anyone would want to walk some more—and suggests that “[a]fter a day’s walk everything has twice its usual value,” including food, drink, and books (79). He also advises taking a day off during a lengthy walking tour: “All day long, as we lie perdu in wood or field, we have perfect laziness and perfect health. . . . Our modern life requires such days of ‘anti-worry,’ and they are only to be obtained in perfection when the body has been walked to a standstill” (79-80). Even longer walking tours, it seems, are motivated by the need for psychological and physical health, at least as much as for their less prosaic effects.

Variety in weather is as welcome as variety in scenery, according to Trevelyan:

I love the stillness of dawn, and of noon, and of evening, but I love no less the “winds austere and pure.” The fight against fiercer wind and snowstorm is among the higher joys of Walking, and produces in shortest time the state of ecstasy. . . . Still more in mist upon the mountains, to keep the way, or to lose and find it, is one of the great primaeval games, though now we play it with map and compass. (80)

He recalls a week of walking in the Pyrenees, when he saw the sun for only half a day: “Yet I enjoyed that week in the mist, for I was kept hard at work finding the unseen way through pine forest and gurgling Alp, every bit of instinct and hill-knowledge on the stretch. And that one half-day of sunlight, how I treasured it!” (80-81). “So let us ‘love all changes of weather,’” he continues (81).

Trevelyan’s conclusion is perhaps rather abrupt. “I have no set down my own experiences and likings,” he writes. “Let no one be alarmed or angry because his ideas of Walking are different. There is no orthodoxy in Walking. It is a land of many paths and no-paths, where every one goes his own way and is right” (81). That lack of dogmatism—or at least that professed lack of dogmatism—is perhaps the thing I like best about this essay. Despite Trevelyan’s deep Romanticism, he acknowledges that there are other kinds of walking, and other reasons to walk. That openness is welcome. I’m also fascinated by the way that Trevelyan seems to be addressing a fairly large walking public. Was walking that popular in England at the turn of the twentieth century? Were people really going out to walk 25 or 30 miles on a Sunday? Were the concerns about access and exclusion that Trevelyan writes about widely shared? I can’t say. Answering those questions would take more research. 

Works Cited

Minshull, Duncan, ed. The Vintage Book of Walking, Vintage, 2000.

Trevelyan, George Macaulay. “Walking.” Clio, a Muse and Other Essays Literary and Pedestrian, third printing, Longman, Greens and Co., 1914, pp. 56-81. http://www.tbm100.org/Lib/Tre14.pdf.

Leslie Stephen, “In Praise of Walking”

NPG L238; Sir Leslie Stephen by George Frederic Watts

Portrait of Sir Leslie Stephen by George Frederic Watts, 1878

Sir Leslie Stephen’s essay “In Praise of Walking” was published in his four-volume collection of essays, Studies of a Biographer, which first appeared between 1898 and 1902. I found it on the Internet; I would rather have read a print edition, but the university library is closed because of the ongoing pandemic. This essay is the work of an elderly man looking back on his life and, more specifically, his pedestrian adventures; it begins with the idea that, as we grow older, we “may find consolation for increasing infirmities in looking back upon a well-spent life.” For Stephens, walking is one of the innocent pleasures he can look back on:

Walking is among recreations what ploughing and fishing are among industrial labours: it is primitive and simple; it brings us into contact with mother earth and unsophisticated nature; it requires no elaborate apparatus and no extraneous excitement. It is fit even for poets and philosophers, and he who can thoroughly enjoy it must have at least some capacity for worshipping the “cherub Contemplation.”

Walking isn’t about athletic excellence, although Stephens notes that he retains his youthful admiration for rowers and cricketers, and he acknowledges the abilities of cyclists and golfers. Even though there are professional pedestrians “making records and seeking the applause of the mob,” he writes, 

The true walker is one to whom the pursuit is in itself delightful; who is not indeed priggish enough to be above a certain complacency in the physical prowess required for his pursuit, but to whom the muscular effort of the legs is subsidiary to the “celebration” stimulated by the effort; to the quiet musings and imaginings which arise most spontaneously as he walks, and generate the intellectual harmony which is the natural accompaniment to the monotonous tramp of his feet.

The “celebration” generated by walking consists of “the quiet musings and imaginings” which “arise most spontaneously” as we walk, and for Stephen, there is an ironic harmony between the monotony of walking and the variety of those musings and imaginings.

Those “quiet musings and imaginings” produced by walking are perhaps the reason Stephen is so drawn to it. “[T]he true pedestrian loves walking because, so far from distracting his mind, it is favourable to the equable and abundant flow of tranquil and half-conscious meditation,” he writes. He compares memories of walking to other memories of “‘well-spent’ moments”: most memories “coalesce into wholes,” and become general impressions (of friends or experiences); however, he continues,

The memories of walks . . . are all localised and dated; they are hitched on to particular times and places; they spontaneously form a kind of calendar or connecting thread upon which other memories may be strung. As I look back, a long series of little vignettes presents itself, each representing a definite stage of my earthly pilgrimage summed up and embodied in a walk.

Writing books is one form of memory which tends to “coalesce into wholes”: “The labour of scribbling books happily leaves no distinct impression, and I would forget that it had ever been undergone; but the picture of some delightful ramble includes incidentally a reference to the nightmare of literary toil from which it relieved me.” For Stephen, walking is a relief from writing, rather than (or perhaps in addition to) being a source of inspiration.

Indeed, Stephen suggests that his “pedestrian enthusiasm” ties his days together. “The day on which I was fully initiated into the mysteries is marked by a white stone,” he writes, describing a hike Heidelberg through the Odenwald:

Then I first knew the delightful sensation of independence and detachment enjoyed during a walking tour. Free from all bothers of railway time-tables and extraneous machinery, you trust to your own legs, stop when you please, diverge into any track that takes your fancy, and drop in upon some quaint variety of human life at every inn where you put up for the night. . . . You have no dignity to support, and the dress-coat of conventional life has dropped into oblivion.

He recalls George Borrows’s walks with Roma people in England as a model of the kind of social freedom he found in his walks, and that social freedom must have been revolutionary for a Victorian English gentleman. Stephen remembers all of the details of such journeys: “I kept no journal, but I could still give the narrative day by day—the sights which I dutifully admired and the very stage of my bootlaces. Walking tours thus rescue a bit of one’s life from oblivion.” “The walks are the unobtrusive connecting thread of other memories,” he continues, “and yet each walk is a little drama in itself, with a definite plot with episodes and catastrophes, according to the requirements of Aristotle; and it is naturally interwoven with all the thoughts, the friendships, and the interests that form the staple of ordinary life.”

“Walking is the natural recreation for a man who desires not absolutely to suppress his intellect but to turn it out to play for a season,” Stephen contends. He claims that “[a]ll great men of letters” have “been enthusiastic walkers,” including Shakespeare, Jonson, Coryate, Bishop Hooker, Swift, John Wesley, Fielding, Samuel Johnson, De Quincey, Coleridge, Wordsworth, Scott, Byron, Hobbes, Bentham, James Mill, John Stuart Mill, Carlyle, Ruskin. “The great men, it is true, have not always acknowledged their debt to the genius, whoever he may be, who presides over pedestrian exercise,” he continues. “Indeed, they have inclined to ignore the true source of their impulse. Even when they speak of the beauties of nature, they would give us to understand that they might have been disembodied spirits, taking aerial flights among mountain solitudes, and independent of the physical machinery of legs and stomachs.” Walking, not nature, is the true source of writerly inspiration, Stephen suggests, and I like his emphasis on the grounded nature of walking. For example, he fell in love with the Alps because of Ruskin’s Modern Painters. “I hoped to share Ruskin’s ecstasies in a reverent worship of Mont Blanc and the Matterhorn,” he writes, but instead “[i]t stimulated a passion for climbing which absorbed my energies and distracted me from the prophet’s loftier teaching.” Stephen’s “passion for the mountains had something earthly in its composition”:

It is associated with memories of eating and drinking. It meant delightful comradeship with some of the best of friends; but our end, I admit, was not always of the most exalted or aesthetic strain. A certain difficulty results. I feel an uncomfortable diffidence. I hold that Alpine walks are the poetry of the pursuit; I could try to justify the opinion by relating some of the emotions suggested by the great scenic effects: the sunrise on the snow fields; the storm-clouds gathering under the great peaks; the high pasturages knee-deep in flowers; the torrents plunging through the “cloven ravines,” and so forth. But the thing has been done before, better than I could hope to do it; and when I look back at those old passages in Modern Painters, and think of the enthusiasm which prompted to exuberant sentences of three or four hundred words, I am not only abashed by the thought of their unapproachable eloquence, but feel as though they conveyed a tacit reproach. You, they seem to say, are, after all, a poor prosaic creature, affecting a love of sublime scenery as a cloak for more grovelling motives. I could protest against this judgment, but it is better at present to omit the topic, even though it would give the strongest groundwork for my argument.

The conflict between sublime spaces and grounded walking leads Stephen to suggest that it may be better “to trust the case for walking to where the external stimulus of splendours and sublimities is not so overpowering.” He refers to the division in aesthetics between the sublime and the beautiful—“A philosophic historian divides the world into the regions where man is stronger than nature and the regions where nature is stronger than man”—and suggests that “[t]he true charm of walking is most unequivocally shown when it is obviously dependent upon the walker himself.”

For that reason, he turns away from his memories of hiking in the Alps to walks in England:

Walking gives a charm to the most commonplace British scenery. A love of walking not only makes any English country tolerable but seems to make the charm inexhaustible. I know only two or three districts minutely, but the more familiar I have become with any one of them the more I have wished to return, to invent some new combination of old strolls or to inspect some hitherto unexplored nook.

He tells us that likes walking in the Fens as much as he likes walking in the Lake District: “In a steady march along one of the great dykes by the monotonous canal with the exuberant vegetation dozing in its stagnant waters, we were imbibing the spirit of the scenery.” He also enjoys walking by the sea, but not because the sea suggests, to him, sublimity:

Another set of walks may, perhaps, appeal to more general sympathy. The voice of the sea, we know, is as powerful as the voice of the mountains; and, to my taste, it is difficult to say whether the Land’s End is not in itself a more impressive station than the top of Mont Blanc. The solitude of the frozen peaks suggests tombstones and death. The sea is always alive and at work. The hovering gulls and plunging gannets and the rollicking porpoises are animating symbols of a gallant struggle with wind and wave.

The scenery of various places on the English coast is always delightful, but walking makes it moreso: 

When you have made an early start, followed the coast-guard track on the slopes above the cliffs, struggled through the gold and purple carpeting of gorse and heather on the moors, dipped down into quaint little coves with a primitive fishing village, followed the blinding whiteness of the sands round a lonely bay, and at last emerged upon a headland where you can settle into a nook of the rocks, look down upon the glorious blue of the Atlantic waves breaking into foam on the granite, and see the distant sea-levels glimmering away till they blend imperceptibly into cloudland; then you can consume your modest sandwiches, light you pipe, and feel more virtuous and thoroughly at peace with the universe than it is easy even to conceive yourself elsewhere. I have fancied myself on such occasions to be a felicitous blend of poet and saint—which is an agreeable sensation. 

Note that Stephen isn’t suggesting that he became either a poet or a saint by walking; rather, he imagined himself to be a blend of both. That “agreeable sensation,” however imaginary, is one of the benefits of walking for Stephen.

That “agreeable sensation” is produced by walking on paths or through fields, rather than by walking on roads, and it is “confined to the walker”:

I respect the cyclist, as I have said; but he is enslaved by his machine: he has to follow the highroad, and can only come upon  what points of view open to the commonplace tourist. He can see nothing of the retired scenery which may be close to him, and cannot have his mind brought into due harmony by the solitude and by the long succession of lovely bits of scenery which stand so coyly aside from public notice.

In sentences that echo my friend Matthew Anderson’s work on walking trespassing laws, Stephen boasts that he pays no attention to laws against trespassing: 

To me it was a reminder of the many delicious bits of walking which, even in the neighbourhood of London, await the man who has no superstitious reverence for legal rights. It is indeed surprising how many charming walks can be contrived by a judicious combination of a little trespassing with the rights of way happily preserved over so many commons and footpaths.

Of course, without a tradition of commons or footpaths, and with punitive trespassing legislation, walkers in this province are unfortunately confined to roads.

Stephen provides an account of a recent walk with a companion near London. He is surprised to find rural spaces so close to the metropolis, but he also finds that walking with others stimulates conversation: “Nowhere, at least, have I found talk flow so freely and pleasantly as in a march through pleasant country. And yet there is also a peculiar charm in the solitary expedition when your interlocutor must be yourself.” From here, he shifts to thinking about walking in the city itself, and the effect of the noise and activity of the city on a walker’s thinking. For Stephen, the city’s distractions “become so multitudinous that they neutralise each other. The whirl of conflicting impulses becomes a continuous current because it is so chaotic and determines a mood of sentiment if not a particular vein of reflection.” “[W]hat I please to call my ‘mind’ seems to work more continuously and coherently in a street walk than elsewhere,” he writes. “I do not defend my insensibility nor argue that London walks are the best. I only maintain that even in London, walking has a peculiar fascination.” Perhaps because he is so influenced by Victorian Romanticism, Stephen feels it necessary to apologize for his interest in urban walking:

I can often find occasions in the heart of London for recalling old memories, without any definable pretext; little pictures of scenery, sometimes assignable to no definable place, start up invested with a faint aroma of old friendly walks and solitary meditations and strenuous exercise, and I feel convinced that, if I am not a thorough scoundrel, I owe that relative excellence to the harmless monomania which so often took me, to appropriate Bunyan’s phrase, from the amusements of Vanity Fair to the Delectable Mountains of pedestrianism.

That is where Stephen’s essay ends, with the apparent moral improvement that walking, including urban walking, has had on his character. The word “monomania” suggests an unhealthy obsession with walking, even though he suggests that obsession is “harmless.” I think we would have to know something about Victorian cities—the dirt and smoke and noise of them—and the degree to which Stephen’s intellectual world was suffused by Romanticism (represented, perhaps, by Ruskin’s Modern Painters) in order to understand how odd Stephen’s defence of urban walking actually was. I find myself wondering what Stephen would make of walking along grid roads in Saskatchewan. Would he see parallels between rural Saskatchewan and Victorian London? Rural Saskatchewan is quiet and anything but chaotic, but it is thoroughly shaped by industrial activity in a way that would have been hidden by the beauty of the rural English spaces in which he walked. And yet, the scale of the open landscape, the size of the fields of wheat and canola, the immense sky overhead—all these suggest a form of the sublime. These comparisons point towards the disconnection between English writing on walking, and attempting to walk in this space: the experiences are very different, because of the scale, the colours, the flatness, the lack of footpaths. And yet, I find Stephen’s defence of walking in ordinary places reassuring. He’s a Romantic, but he’s in the process of becoming something else. That something else might be connected to the spaces in which I walk. That’s not to claim Stephen as a precursor to contemporary practices of psychogeography or mythogeography—that would be silly—but at the same time, I don’t think we can simply reject Stephen’s walking as mere Romanticism.

Works Cited

Stephen, Sir Leslie. “In Praise of Walking. Studies of a Biographer, vol. 3, Duckworth, 1902. https://en.wikisource.org/wiki/Studies_of_a_Biographer/In_Praise_of_Walking.

 

Walking from Pamplona to Logroño

My friends and I are walking virtually through northern Spain. We’re hoping to get to Logroño (I think that’s where we’re headed) by Monday. I think we can do it, but I’m going to have to get walking if I don’t want to get stuck taking a virtual bus to catch up.

Here are some pictures (including my first-ever selfie) from my first walk between Pamplona and Logroño, an 85-kilometre walk through Navarre and Rioja that took several days to complete:

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It was a beautiful walk; the further west we got from the Pyrenees, the hotter and drier the landscape got. We walked through groves of olive trees and vineyards, slept in hostels on bunk beds, ate whatever we were offered and drank cheap and delicious local red wine. There was constantly something new to see, but at the same time, I think we were coming to know the places where we walked with our bodies: the hills, the wind, the hot sun. We made new friendships and chatted with other people we never saw again. I don’t know if I’ll ever have another experience like it.

 

Some Things to Read While Self-Isolating

A lot of us are stuck at home right now–or at least don’t feel comfortable going out, particularly those of us living in cities with icy sidewalks, as I do. What are walkers supposed to do?

Well, we can at least read about walking. Here is a lovely short essay on walking as an art practice by Julie Poitras Santos on walking as an art practice. If you are at home self-isolating but hankering to get outside, you might enjoy it.

And here is a whole lot of writing about walking by Phil Smith. This would be an excellent time to read his book on “armchair pilgrimage”–and you can request a .pdf on that site.

Stay well!

Erling Kagge on CBC Radio’s “The Current”

This morning, host Matt Galloway interviewed walker, writer, and philosopher Erling Kagge on CBC Radio’s “The Current.” If you’re interested, follow this link. You might also be interested in my summary of one of Kagge’s books on walking, posted here last summer.

Place and Space in Walking Pilgrimage

My latest publication is now online, a discussion of place and space in walking pilgrimages, which just appeared in the International Journal of Religious Tourism and Pilgrimage. I’m happy to see it. Thanks to the editors, who worked hard all weekend to get this issue out.

If you’re interested, here is a link to the article.

126. John Borrows, Canada’s Indigenous Constitution

borrows canada's indigenous constitution

A brief unscheduled pause: perhaps a respite, or an opportunity? The latter, I hope: I’m waiting for the questions I’m going to be asked on my comprehensive examinations to be formulated, and while I thought I was finished with my reading, I’ve decided to use this time to carry on, addressing one of the absences in my reading with John Borrow’s book, Canada’s Indigenous Constitution. Borrows is an Anishinaabe legal scholar who teaches at the University of Victoria, and I assume the argument he presents in this book will be quite different from John Ralston Saul’s claim that Canada (its government and law and culture) is essentially Métis—a suggestion that makes the Métis people I’ve talked to pretty angry. That’s my opening assumption; let’s see what Borrows himself has to say. Oh, I want to point out before anyone (other than myself) reads any further that this book is lengthy and the arguments detailed and, frankly, sometimes over my head, so this summary is, in turn, quite long as well.

The book begins with Nanabush. He’s writing and watching birds and otters feeding on a beach on Vancouver Island and longing for his home reserve in Ontario. “The words of power he is most familiar with are found in the law,” Borrows writes of Nanabush (who appears to be a stand-in for Borrows himself):

He hates them. He loves them. They are just like him: conflicted, cross-cutting, double-edged, and inconsistent. They hold the ability to heal and they have the potential to destroy. . . . The law is a vicious, delightful thing. Yet he also knows the law can be like the diamond-crested waters beyond the shore, teeming with life and purifying in its potential. The law is a nurturing, hopeful being too. Yes, he thinks to himself, the law is just like him—a trickster—simultaneously full of charm and cunning, good and evil, kindness and mean tricks. (4)

Nanabush “writes to destroy and he writes to create, though he can never be quite sure if he is destroying or creating the things he cares about. He often wonders if, in the end, his words will help or hurt what he most deeply cares for and treasures. Sometimes he even forgets to be concerned. He takes so much pleasure in being a transformer that he occasionally forgets what he really loves” (4). He considers becoming a bird, but an eagle feather falls onto the grass in front of him:

It whispers of peace. The message sinks deep into his heart,” Borrows continues. “He changes course, once again. He thinks to himself, I don’t want to be an eagle or a crow today. I’ll be my truer self. I’ll be an otter. That is my “dodem”: nigig. They have taught me better than anything else today. I will write about power from their perspective, that of my clan, kin, and people, working together, for sustenance, in harmony. Four otters and the law . . . (5)

I’m not quite sure what to make of this “Retroduction,” as Borrows calls it: the association between the author himself and Nanabush in particular. But it indigenizes what follows, I think. If Borrows’s interest is in harmony and sustenance and peace, if the four otters suggest the four directions, if the otter which is the vehicle for his exploration is the name of Borrows’s clan, then from the outset Borrows is locating his discussion of the law—a positive one, it seems, with generous ambitions—the book is going to be deeply implicated in Indigenous worldviews and methodologies.

The book’s first chapter, “Living Legal Traditions,” begins with a statement of purpose: “This book examines the standards that we consider authoritative in making judgments about the law in Canada. It asks questions about the criteria we use in measuring the regulation of activities and in guiding the resolution of disputes” (6). Despite the peace and prosperity generated by Canadian law, we “continue to suffer from conflicts rooted in long-standing disputes about the legitimacy of its origins and the justice of its contemporary application” (6). Indigenous peoples do not believe “that the rule of law lies at the heart of their experiences with others in this land. In this respect, Canada’s legal system is incomplete” (6). More importantly, the laws of Indigenous peoples “are often ignored, diminished, or denied as being relevant or authoritative in answering these questions,” and this situation “has led to important queries about the sources of Canada’s law, as well as its cultural commitments, institutional receptiveness, and interpretive competency” (6). Law is essential to Borrows, but “while it may be challenging to ask deep questions about the underpinnings of Canada’s legal system, we should not regard these inquiries as being without value. In fact, such searching questions can be crucial to our societies if they reveal ways of organizing ourselves that draw us even closer to our collective aspirations” (7). According to Borrows, this book “suggests that we can do a better job of building our country upon our highest ideals,” and that “Canada needs to be constructed on a broader base, recognizing Indigenous legal traditions as giving rise to jurisdictional rights and obligations in our land” (7).

There are different definitions about what constitutes law, and it “can simultaneously produce peace and chaos, depending in whose name it is administered and from whose perspective is is processed” (7). Law includes formal and informal elements and “pivots around deeply complex explicit and implicit ideas and practices related to respect, order, and authority” (7). Legal traditions are cultural phenomena, and a legal tradition “can be distinguished from a state’s legal system if a national system does not explicitly recognize its force” (7-8). A state can have multiple legal traditions, or one legal tradition can overlap between different states, a situation known as legal pluralism (8). Canada is “a legally pluralistic state: civil law, common law, and Indigenous legal traditions organize dispute resolution in our country in different ways” (8). “When recognized, provided with resources, and given jurisdictional space, each legal tradition is applicable in a modern context,” Borrows writes (8). Each of Canada’s three legal traditions points us beyond itself, and each “continues to grow amidst changing circumstances” (8). 

Traditions, Borrows continues, “can be positive forces in our communities if they exist as living, contemporary systems that are revised as we learn more about how we should live with one another,” but they can also “be destructive if they become static and frozen in their orientation, interpretation, and application,” if “they are overly romanticized, essentialized, and fossilized in an inflexible framework” (8). For that reason, “[t]he keepers of Canada’s legal traditions must guard against rigidly fundamentalist and oppressive ideas and practices,” because (for example) a “dogmatic intolerance of the civil law or Indigenous legal traditions” on the part of those who practice common aw “could damage these traditions too” (8-9). “We often tend to regard other traditions as potentially threatening, despotic, or severe, if our own ethnocentrism prevents us from seeing problems arising in our own systems,” Borrows writes. “We must ensure that we turn a critical eye on each legal tradition, including our own, to ensure it promotes respect and dignity for those who depend upon it” (9). 

Recent social science research has revealed “imbalances between legal traditions in Canadian life” (9). But that research also “exposes scholars’ historic lack of regard for, interest in, knowledge of, and predisposition towards the contemporary nature of Indigenous law throughout the last century” (9). The lack of research on Indigenous legal traditions “means more extended and respectful quantitative and qualitative research is required to evaluate their positive and negative effects and potential,” an analysis that is necessary “to ensure that each of our traditions does not slip into archaic, oppressive fundamentalism” (9). Our legal traditions can be helped to “remain open to new and healthy influences” by regarding them “as being situated within interpretive communities in which those who are affected by them are able to participate in their continued construction” (9-10). “In contrast with the social science research on Indigenous legal traditions, there is a nascent law review literature beginning to explore them from a normative perspective,” Borrows writes, and “[t]his book flows in this tide. It explores the potential scope of Canada’s interpretive communities in relation to its varied legal traditions” (10). “It is my hope that this work represents a further invitation for those interested in this topic to join with me and other willing scholars, practitioners, politicians, policy analysts, Elders, chiefs, and leaders in the identification, recognition, questioning, and further development of our legal traditions,” he continues (10):

In keeping with this approach, this book suggests that Indigenous peoples’ laws hold modern relevance for themselves and for others, and can be developed through contemporary practices. While Indigenous legal traditions have ancient roots, they can also speak to the present and future needs of all Canadians. They should not be just about, or even primarily about, the past. They contain guidance about how to live peacefully in the present world. (10)

At the same time, Indigenous legal traditions are imperfect. “There is no romantic time of pre-contact which was an idyllic existence for Indigenous societies,” Borrows continues, and “[v]iolence, tension, creation, destruction, harmony, and tenuous peace have always been with us in varying degrees” (10-11). Colonization has “compounded the challenges Indigenous peoples have always faced” (11). But his primary point here is that “Indigenous laws incorporate certain deficiencies related to their societies’ imperfections,” just like other legal traditions, and for that reason, “we should not idealize Indigenous laws in our attempts to constructively apply their precepts” (11). Nevertheless, “in dealing with disharmony, Indigenous laws may contain some guidance in curtailing our worst excesses,” and they “are especially relevant when Indigenous peoples are involved” (11). “Disputes within Indigenous communities and with other societies could potentially be reduced if their laws were more widely applied,” he writes (11).

The Supreme Court of Canada has recognized the existence of Indigenous legal traditions, and although “the implications of this recognition have been largely ignored,” “a nascent framework is in place for extending their reach” (11). And, “[t]hough negatively affected by past Canadian actions, Indigenous peoples continue to experience the operation of their legal traditions in such diverse fields as, inter alia, family life, land ownership, resource relationships, trade and commerce, and political organization” (11). “Indigenous legal traditions are inextricably intertwined with the present-day Aboriginal customs, practices, and traditions that are now recognized and affirmed in section 35(1) of the Constitution Act, 1982,” Borrows writes. “In this respect, they are also a part of Canadian law” (11). 

However, Borrows writes, “[d]espite their potential to answer pressing questions, Indigenous laws have an uncertain status in Canada’s formal legal system” (12). Some commentators argue that Indigenous people had no laws before Settlers arrived in North America; rather than laws, they claim that Indigenous people only had customs, and that “centralized authority and explicit command are necessary for a legal system to exist” (12). For Borrows, such views “potentially replicate troubling stereotypes” about Indigenous societies (12). He suggests that “[w]hile some Indigenous law is customary, it can also be positivistic, deliberative, or based on theories of divine or natural law” (12). Even if Indigenous laws were customary, “it is misleading to regard customary laws as holding only moral force” (12). Borrows first encountered such assumptions about Indigenous laws as a student at the University of Toronto, where he was taught that there is a hierarchy of laws, with customary law, the kind Indigenous people were presumed to have, at the bottom (13). Most parliamentarians, lawyers, and judges have not questioned the assumption that Indigenous laws were legally inferior or primitive (13). Canadian law was (and is) thought to have been received from the former imperial powers, Britain and France, and this “doctrine of reception does not incorporate Indigenous peoples’ wisdom and learning to formulate the basic rules of our legal system” (14). The doctrine of reception was central to Borrows’s legal training. However, he “believed ‘reception’ also requires some form of interaction with Indigenous peoples to be a peaceful process” (14). He knew from his own family’s history “that the Crown often sought Indigenous agreement before it settled and started governing its own people in our traditional territories” (14). Where such agreements had not been secured, Borrows “viewed reception as being incomplete, thus requiring future action” (14). Most legal texts, however, proceeded from the myth that “law only arrived in the country with the first colonial legislatures or governors,” a myth that presents practical and theoretical problems: “Colonization is not a strong place to rest the foundation of Canada’s laws. It creates a fiction that continues to erase Indigenous legal systems as a source of law in Canada” (14).

“This fiction lies at the root of conflict between Indigenous peoples and the Crown,” because its Eurocentrism “ignores the prior presence and laws of Indigenous peoples in Canada and disregards them as a potential source of law in the country today” (14). The legal hierarchy Borrows was taught “has generated an incorrect and impoverished view of Canadian law,” which this book sets out to address (15). “My thesis is that Canada cannot presently, historically, legally, or morally claim to be built upon European-derived law alone,” he writes. “In this work I attempt to develop conceptual language to strengthen the law’s foundation and contemporary status in this country” (15). Writing about Canada’s constitutional foundations without considering Indigenous law is a mistake: “You cannot create an accurate description of the law’s foundation in Canada by only dealing with one side of its colonial legal history. When you build a structure on an unstable base, you risk harming all who depend upon it for security and protection” (15). “This book,” he continues, “is about attempting to put Canadian law on a stronger footing. Acknowledging the traditional and contemporary place of Indigenous law in this country—alongside the common law and civil law—is a necessary step in this process,” and “crucial to creating a healthier and more accurate conception of Canada’s broader constitutional order” (15-16). “Judicial opinions based on the supposed ‘cultural inferiority’ of Indigenous peoples have not withstood scrutiny,” he notes, and “[l]egal scholars have also rejected the placement of Indigenous laws on a lower level” (16). However, despite “philosophical and judicial statements rejecting ideologies of Indigenous peoples’ inferiority, the so-called European discovery of Canada continues to provide a troubling justification for the diminishment of Indigenous legal traditions,” which “perpetuates the myth of inferiority” (17). For Borrows, this problem reaches into the claim that underlying title to the land in what is now Canada vested in the Crown (as stated in R. v. Sparrow), a conclusion “drawn despite substantial doubts about the Crown’s claims relative to Indigenous peoples’ lands and governments at the ‘outset’ of their relationship” (17).

Despite rulings such as R. v. Sparrow and R. v. Guerin, which upheld the doctrine of discovery, “it is factually apparent that at Canada’s formation there was no first discovery on the part of the Crown that would justify displacing Indigenous law. Indigenous peoples had already discovered most land within their territories and exercised jurisdiction over it prior to the arrival of Europeans” (17). Any legal consequences flowing from “‘discovery’ . . . should vest in favour of Indigenous peoples, not the Crown” (17). “The doctrine of discovery should only give the Crown the ability to claim exclusive or pre-eminent legal authority in areas that were terra nullius, literally ‘barren and deserted,’” but the territories of Indigenous peoples at the time that the Crown arrived in North America were anything but barren and deserted (17). “Discovery should not be accepted as a basis for diminishing Indigenous law,” because the doctrine of discovery is “‘legally, morally, and factually wrong,’” according to the Royal Commission on Aboriginal Peoples (17). Another, related justification for discounting Indigenous legal traditions which should also be rejected is occupation, the notion that “[o]ccupation by a political grouping on a territorial basis is one reason for recognizing broad legal rights over a territory” (17-18): “if the doctrine of occupation were applied without bias, most people would likely conclude that at Canada’s formation the Crown had not effectively occupied Indigenous lands in this manner such as to justify displacing their laws” (18). “Regrettably, the concept of occupation is often applied in an ethnocentric manner to read Indigenous people out of occupation,” Borrows writes, citing the case of R. v. Marshall; R. v. Bernard as an example (18). “Ethnocentric standards concerning occupation”—such as the claim (from John Locke) that Indigenous people had not worked the soil and were therefore not owners of the land, or (from Blackstone) that Indigenous peoples were not organized in such a way as to claim group occupation—“should be discarded as a basis for diminishing Indigenous law” (18).

Another way “to justify the demotion of Indigenous legal traditions” is “by reference to the passage of time and the growth of the common law and civil law in relation to them” (19). According to Borrows, “this argument is analogous to the property law doctrine of prescription,” which “permits a subsequent claimant to acquire rights if they openly occupy an area over a period of time and the original owner acquiesces to the subsequent presence” (19). However, “Indigenous peoples have not generally acquiesced to the common law’s purported replacement of their laws,” and historically “the relationship of the common law and civil law to Indigenous legal traditions has not been peaceful and unchallenged,” since “Indigenous people shave frequently objected to the common law’s presumptions of complete displacement” (19). “Indigenous activism and opinions have been resolutely turned against the displacement of their cultures, laws, and traditions,” Borrows continues (19). The notion of conquest is related to the idea that “Indigenous legal traditions were minimized through adverse common law and civil law application” (19). However, the belief that “Indigenous laws were displaced through conquest” is “contrary to law”: “Despite conflict between Aboriginal peoples and the Crown in Canada, the country’s legal framework does not treat Indigenous peoples as conquered peoples” (19). The Supreme Court of Canada has said so, and Canadian history does not support a claim about conquest, and so “the doctrine of conquest cannot persuasively be relied upon to argue that Indigenous legal traditions are without force in Canada (20). In addition, “the doctrine of conquest is not a morally sound concept upon which to build our legal system,” because it would “potentially set Indigenous peoples in perpetual opposition to the state” and generate “bitter feelings of resentment towards the country” (20). (As if the behaviour of Settlers has not already created bitter feelings of resentment!) “The application of the doctrine of conquest to Crown-Indigenous relations would be the framework that would most likely create continued conflict and future confrontation,” Borrows writes (20).

“Thus, there are problems with theories of discovery, occupation, prescription, and conquest when considering the place of Indigenous legal traditions in Canada’s legal hierarchy,” Borrows continues. “Fortunately, there is an alternative. We do not have to abandon law to overcome past injustices. In placing our country on firmer footing, we only have to relinquish those interpretations of law that are discriminatory” (20). Developing “at least one strand of Canadian law” could repudiate “these damaging doctrines” (20):

Working out the fuller implications of treaties between Indigenous peoples and the Crown is a way out of the impasse created by the rejection of other legal theories. Treaties have the potential to build Canada on more solid ground. Since First Nations legal traditions were the first laws of our countries and were not extinguished through discovery, occupation, prescription, or conquest, they could be viewed as retaining their force. Furthermore, when treaties are made they can be seen as creating an inter-societal framework in which first laws intermingle with Imperial laws to foster peace and order across communities. (20-21)

According to Borrows, treaties “could allow for the peaceful reception of common law and civil law traditions within Canada” (21). They would make it possible to say that while the Constitution Acts and other imperial legislation partially created Canada, so too did First Nations laws (21). First Nations laws modified the operation and force of imperial law through treaties (21). “The Constitution Acts and First Nations laws continue to construct our countries as they develop through time,” Borrows writes, “but treaties also continue to construct them as new agreements are signed and historic treaties interpreted. Without treaties, the so-called reception of the common law remains an act of forced dispossession” which “is antagonistic to peace, friendship, and respect” (21). “Imperialism wanes when the Constitution Acts are seen as consistent with the preservation of Indigenous legal traditions and the creation of inter-societal norms in their relationship with the common law and civil law,” Borrows argues, and “[w]hen constitutional instruments are regarded as resting upon treaties, then Canadian law is firmly on the path to becoming truly Indigenous—home-grown in its place of application” (21).

Borrows concludes the chapter by stating that “this book will argue that there is a strong case for recognizing Indigenous legal traditions in Canada,” a recognition that “requires the ongoing cultivation of solidarity within, between, and across legal cultures throughout the land” (21). “As such, the common law, civil law, and Indigenous legal traditions must grow beyond their trial roots, even as these roots continue to nourish the country’s ongoing constitution,” he writes. “We must come to see that we are free to modify ourselves and how we are constituted. Our society is not insular, one-dimensional, monocultural, or complete. Relationships can be strengthened as we affirm the overlapping, interacting, and negotiated nature of our traditions through time” (21). One dimension of this “effective constitutionalism” involves “cultivating and refining laws that implement Indigenous peoples own aspirations and perspectives, alongside the common law and civil law, and in harmony with international human rights standards” (21-22). In this way, Indigenous legal traditions “would expand and improve Canada’s legal system and benefit Aboriginal peoples along with our society as a whole” (22).

Borrows’s second chapter, “Sources and Scope of Indigenous Legal Traditions,” begins with the possibility that states can embrace the traditions of all of their peoples to become stronger and more unified. “The blending and/or coexistence of legal traditions is possible,” he writes, noting that Canada is a multi-juridical country since it embraces common law, civil law, and Indigenous legal traditions; even though Indigenous legal traditions are often unrecognized, they “can have great force in people’s lives despite their lack of prominence in broader circles” (23). “Indigenous legal traditions are a reality in Canada and should be more effectively recognized,” despite the “many negative stereotypes in circulation regarding Indigenous law” (23). For Borrows, understanding Indigenous laws can help lead to their recognition. “The underpinnings of Indigenous law are entwined with the social, historical, political, biological, economic, and spiritual circumstances of each group,” he writes, noting that they are also “based on many sources, including sacred teachings, naturalistic observations, positivistic proclamations, deliberative practices, and local and national customs” (23-24). In addition, “Indigenous peoples hold many different views about the character and practice of law” and what gives law “its binding force” (24). “Indigenous legal traditions can be just as varied and diverse as Canada’s other legal traditions, although they are often expressed in their own unique ways,” he continues. “This chapter will explore Indigenous legal traditions by focusing on their varied sources. It is hoped that by categorizing Indigenous laws in this way readers will be better able to grasp their complexity and understand the choices available to Indigenous peoples when they exercise their laws,” as well as allowing others “to see the choices they have in relation to Indigenous law in Canada” (24). 

Some Indigenous laws have sacred sources: they come from the Creator, or from creation stories “or revered ancient teachings that have withstood the test of time” (24). “Legal traditions based on spiritual principles form an important part of most every culture’s legal inheritance,” Borrows writes. “While Canada’s legal traditions are becoming increasingly secularized, one cannot deny the role of the metaphysical in our law’s formation. For example, the civil law and the common law have been significantly influenced by ideas about religion. The receipt of evidence and the test for truth often rests on appeals to the divine” (24-25). Canada’s Constitution’s preamble “states that Canada is ‘founded on principles that recognize the supremacy of God’” (qtd. 25). In Indigenous legal traditions, creation stories are often a source of sacred law: “These accounts contain rules and norms that give guidance about how to live with the world and overcome conflict. Their reach can be quite expansive because they contain instructions about how all beings should relate to specific territories” (25). Sometimes these stories are specific to individual territories, and other times they are universal. “Due to their broad reach and revered nature, laws that have sacred aspects at their source may be less flexible than laws flowing from other sources,” Borrows notes. “Similarly, their recognition, enforcement, and implementation can often be regarded as foundational to the operation of other laws” (25). 

When Borrows worked with Elders in Saskatchewan, “[t]hey spoke of their treaties as being sacred because they brought Canada into existence within their territories” (25). (How unfortunate for me that Borrows’s 2005 report for this province’s Treaty Commissioner remains unpublished.) When the Elders spoke of the legally binding promises to maintain peace and order in the treaties, 

it was clear that they regarded the treaty as flowing from a sacred source. They did not rely on the written text of the treaty to arrive at this conclusion. Because First Nations followed their own legal traditions in creating treaties, their interpretation was that treaties were made with the Creator as well as with the Crown. First Nations felt encouraged in their view by the presence of Christian missionaries during the negotiations. (25-26)

The Elders he worked with told Borrows that it was the Creator’s will that Settlers came to live among them, and that the Creator expected “‘the white man’” to live by the treaty and to revive the treaty relationship with First Nations (qtd. 26). “The laws surrounding Canada’s formation in many treaty territories are profound because they are meant to encourage the spiritual, moral and legal capacities of all the people who would come to live here,” Borrows continues. “The sacred nature of the treaties is one reason why many First Nations would not consider abandoning them despite generations of government neglect. It would be a violation of the Creator’s law, sacred law, to turn away from their promises to him and others in maintaining peace and order throughout the lands on which they lived” (26). 

This view “challenges the approach of some critics who may regard Canada’s existence in treaty areas as a transgression of rather than an application of Indigenous law,” Borrows writes (26-27). I am reminded of Leanne Betasamosake Simpson’s argument that the Williams Treaties are instruments of settler colonialism, and that they were “processes designed to clear Michi Saagiig Nishnaabeg bodies from the land to the extreme benefit of settlers” (99). For Borrows, though, “the fact that treaties helped to bring Canada into existence within certain areas should not for that reason alone be regarded as contrary to Indigenous law. Many things, including treaties, can be considered sacred even if they are not given the respect they deserve” (27). Some Indigenous peoples do “regard Canada’s creation as profane,” he continues, such as the Haudenosaunee of the eastern Great Lakes, who “do not regard themselves as participating in the creation of Canada. Instead, they regard their treaties as bringing their Confederacy into an alliance with the Crown” (27). For that reason, “many Haudenosaunee people wold resist being labelled as Canadian citizens because of their distinct status” (27). Another exception is in British Columbia: there, “First Nations . . . would have a hard time accepting claims that Canada was formed through promises to the Creator by reference to their laws,” because “other people moved into their territories and established governments without their formalized participation and legal consent” (27). That kind of settlement could hardly be considered sacred. In addition, 

a sacred view of the treaties might also be problematic from a certain government perspective, as demonstrated by arguments often made by government lawyers who give treaties the narrowest possible technical interpretation in order to increase the Crown’s authority relative to the Indians. Some might even view treaties as filled with fraud, duress, and manipulation—or as expedient temporary bargains, designed by the Crown to separate Indians from their lands and resources for the lowest possible price. (27)

However, “there are large areas of the country where treaties between Indigenous peoples and the Crown referenced Indigenous traditions,” and “[f]or people in these spaces, treaties can be regarded as sacred creation stories about Canada’s formation if placed in their best light” (27). For Borrows, though, “treaties an be regarded as a sacred creation story,” and for that reason, “they join other Indigenous laws that flow from sources that are revered or most highly respected” (28).

Another source of Indigenous law is natural law: law developed “from observations of the physical world” (28). Laws derived from the physical world “can be seen to flow from the consequences of creation or the ‘natural’ world or environment. . . . these laws may be regarded as literally being written on the earth” (28-29). It’s important to note, however, that “Indigenous definitions of natural law may at times have a somewhat different emphasis than what is found in many leading natural law theories within Western jurisprudence” (29). “For many Indigenous people, the casebook for learning natural law requires an intimate knowledge of how to read the world; understanding natural law from this point of view does not require an intimate knowledge of how to read legal philosophy,” he continues (29). He notes that his mother is an Elder and that she “studies and interprets nature’s laws for her family’s benefit” (29). “Not all legal traditions within Indigenous societies are immediately state-focused,” he writes. “Authority can be based upon kinship and family networks” (29). His mother’s experiences on the land guide the family’s actions; when they don’t follow her judgements, they often find themselves “in breach of important environmental laws” (29). A public example of law derived from the environment can be found in Delgamuukw v. Attorney General (British Columbia), in which “Gitksan Chiefs from Gitwangak described their relationship to the land in natural law terms”: they used analogies of territories to animals to draw lessons that could “legally regulate behaviour and minimize disputes” (33). While the judge in that case “did not rely upon these accounts to formulate his opinion in the Delgamuukw case,” the Gitksan continue to reference their legal traditions “to regulate and guide their relationships” (35).

Another source of Indigenous law is “processes of persuasion, deliberation, council, and discussion” (35): “While sacred and natural law might sometimes form the backdrop against which debate occurs, the proximate source of most Indigenous law is developed through people talking with one another,” which means “that recognition, enforcement, and implementation make them subject to re-examination and revision through the generations” (35). “Indigenous law is not static and can move with the times,” Borrows writes:

The deliberative nature of many Indigenous laws means they can be continuously updated and remain relevant in the contemporary world. When Indigenous people have to persuade one another within their traditions, they must also do so by reference to the entire body of knowledge to which they have access, which includes ancient and modern understandings of human rights, due process, gender equality, and economic considerations. While contemporary concepts will modify and be modified by very old principles and processes, they will also remain distinct by virtue of their particular cultural-legal contexts. Thus, since deliberative Indigenous laws draw upon historical and current legal ideas, they can also more explicitly take account of (and even incorporate where appropriate) legal standards from other legal systems. They can be harmonized with or distinguished from the laws around them based on what counts as persuasive to the group involved in the debate. (35-36)

“Deliberation aimed at making Indigenous law can occur in formal and informal meetings and gatherings,” Borrows continues, and “in these settings laws can be constructed through highly structured or ad hoc means” (36).

According to Borrows, “[t]he deliberative nature of the Indigenous legal tradition is also a key to resisting fundamentalist or dogmatic legal practices and ideas” (36). He notes that many Indigenous communities face challenges, most of which are the result of colonialism, which “make it difficult for certain communities to administer their legal traditions in healthy ways” (36). “The remedy for this problem lies in helping those communities to heal themselves so that they are in a better position to develop constructive and dynamic laws,” he writes. “Persuasion is most effective when people have confidence in one another’s personal and social integrity; thus, healthier relationships can create stronger legal systems because of the increased social capital upon which they can rely” (36). Social capital, “the resource generated in group relationships,” can “foster trust and goodwill, and can engender mutual obligations necessary for effective group action” (36). As with any society, socio-economic health strengthens the effectiveness of community deliberation, and “[h]ealthy participatory legal processes are an important bulwark against oppressive leadership and overbearingly inflexible laws” (36). However, “Indigenous peoples are very aware of foundational principles of civil, political, social and economic rights and responsibilities upon which legal systems rest,” and “they call on these ideas all the time in their fight against colonial state domination” (37). “For Indigenous peoples to be persuasive in declaring and developing law they must incorporate human rights principles in some form within their legal systems,” Borrows continues. “The problem with the Indian Act for many years has been its failure to incorporate human rights standards. While the application of the Canadian Human Rights Act may help to partially remedy this deficiency, a fuller solution would allow Indigenous peoples to develop their own legal traditions consistent with international human rights standards” (37-38). In fact, Borrows states, “Indigenous legal traditions will more likely facilitate dignity and freedom if people inside and outside of our communities drop stereotypes about the timeless, past-tense nature of First Nations life and laws”:

Indigenous traditions are syncretic, and fused with ideas and practices from many sources. They adapt to changing circumstances in accordance with the needs and priorities of their members and in response to external pressures. Tradition is not abandoned as new ways are introduced. In fact, it is renewed as it combines with vibrant healthy influences from other worthy sources. (38) 

“Indigenous law must continue to engage in conversations with other legal traditions to stand any chance of continually being embraced by a sufficient number of people within our communities,” Borrows contends (38).

Because Indigenous laws are based on deliberative processes, dissenting viewpoints can be taken into account as laws are formulated, often through the use of circles “to invite participation in developing legal standards. Circles are considered sacred and represent the bringing together of people in an atmosphere of equality, as they do not raise one person above another” (38-39). Borrows cautions that “[r]elationships of power and hierarchy do not necessarily disappear when people make decisions using a circle format,” but “much deliberative Indigenous law development can be conducted through circles—such as talking circles, healing circles, and reconciliation circles—if protective procedures are present” (39). Some Indigenous peoples “prefer gatherings such as feasts and other large public assemblies to encourage discussion and resolution of issues,” particularly in the Pacific northwest, where feast structures “contain elaborate protocols to engage communities in important celebrations and decision-making issues” and use “narrative, dance, music, and gift-giving” to address a variety of disputes, including issues related to property law, family law, commercial disputes, and criminal law (40-41). “There is tremendous potential for the continued operation and development of feasting structures and other large gatherings to develop law through the exercise of Indigenous deliberative practices,” he writes (41). But there are other ways of making law. The Haudenosaunee, for instance, use “structured deliberations” to “build and maintain their Great Law of Peace on the consensus and agreement of six different nations” (42). “The reinvigoration of Haudenosaunee law is one of the reasons the Canadian and Ontario governments have had to work differently with the Six Nations community near Brantford, Ontario in recent years,” Borrows suggests, “and their laws’ influence was especially evident in the disputes concerning subdivision land in the Caledonia dispute in 2006-9” (42).

“Today, perhaps the most visible example of Indigenous legal tradition developed through deliberation and persuasive debate occurs in band council settings,” Borrows writes. “Although the full expression of their laws is constrained by the harsh overlay of non-Indigenous rules under the Indian Act, bands often, though sometimes inconsistently, use traditional legal teachings to conduct their business and regulate their communities” (42). The Indian Act’s strictures “unnecessarily restrict and occupy jurisdictional space and thus hinder healthier law-making procedures and patterns,” and therefore Indigenous law-making is “a poor reflection of what would be possible if this restrictive legislation were repealed” (42-43). Borrows notes that “band councils cannot properly claim to administer Indigenous legal traditions . . . because they are a creation of the Canadian government and therefore only function as a non-Indigenous law-making body,” but he states that “it must also be acknowledged that many continue to be recreated through community participation” (43). Some elected chiefs and councillors do “reference their own First Nation’s legal values in debating and making decisions,” and “many so-called bands pre-existed the Indian Act and find their inherent governmental power in their pre-Confederation authority” (43). “Thus, some band councils are well situated to apply Indigenous legal traditions and have a long history of implementing their own community’s procedures and principles in their decision-making, despite the Indian Act’s strictures,” Borrows writes. “Other band councils, such as those found on the Six Nations reserve in Ontario, have very little legitimacy in administering Indigenous legal traditions because the government’s imposition of the band council has never been broadly accepted by their community” (43). Because the Indian Act allows First Nations “to organize their affairs in accordance with their own customs,” it can be argued that, “rather than extinguishing Indian governance, the Indian Act could be interpreted as explicitly recognizing and affirming pre-existing law-making powers” (43). Nevertheless, “further steps should be taken to remove First Nations from the Indian Act’s suffocating embrace. Operating as a custom band under the Indian Act does not adequately facilitate the growth and development of Indigenous law because the surrounding legislative framework largely assumes a relatively low level of decision-making ability and authority” (43-44). Still, band councils “are a rich source of Indigenous law, despite the problems that exist” (44).

These examples show “that many Indigenous legal traditions develop in a deliberative fashion, through councils, circles, feasts, and other informal and formal meetings and gatherings” (44). Many Indigenous societies are “radically egalitarian,” enabling everyone “a legal right and practical opportunity to assist in the development of their laws,” while others restrict participation because of rules about status, heredity, or “Canadian legal impediment” (44). One must remember that Canadian legal traditions involve pragmatic limits before criticizing the limits in Indigenous participation in law-making (44). “Canadian legal process may be considered somewhat analogous to the special positions, ceremonies, and hard work required by some Indigenous legal traditions,” Borrows continues (44). In any case, “many criticisms related to the scope of disclosure and participation within Indigenous societies can be successfully addressed if widespread deliberation remains the heart and focus of a community’s legal system” (45). If a community’s legal traditions are “undemocratic and thereby restrictive of deliberation,” he argues, those traditions “should be renounced and discarded,” as has happened in the case of slavery, for instance (45). “Where participation in the creation of Indigenous law is restricted in inappropriate ways, it is usually because some powerful individual or group has used positivistic law to usurp authority from a community,” Borrows states, noting that “one of the most profound sources of restrictions on broader participation within Indigenous legal regimes today is Canadian law itself,” both through the Indian Act and the attitudes of lawyers, judges, and parliamentarians that Indigenous law doesn’t even exist (46). 

By positivistic law, Borrows means “the proclamations, rules, regulations, codes, teachings, and axioms that are regarded as binding or regulating people’s behaviour”—legal traditions that have weight “because proclamations are made by a person or group regarded by a sufficient number of people within a community as authoritative” (46-47). Legal positivism is based on command, and in an Indigenous context, “positivistic laws may be formally proclaimed in feast halls, council houses, wampum readings, band council chambers, and other such public settings” (47). “Some positivistic Indigenous legal traditions may once have been explicitly connected to a larger normative system, but the reasons underlying their original adoption might have been deliberately abandoned or forgotten as circumstances change,” so that “laws that once drew their authority from deliberation or creation may now be followed for different reasons—because some group or individual has garnered enough power (through respect or fear) that others will now follow their pronouncements without considering the reasons behind the law’s development” (47). Borrows is concerned about the use of “positivistic law as a source of authority,” both in Indigenous traditions and in civil and common law as well (47-48). He worries that “if a prominent leader or group rules through this form of law for too long, without the restraining influences found in the other sources identified to this point, this could lead to great corruption,” and he hopes that positivistic law “will constantly be tempered by other factors to ensure that those who proclaim law do not become a source of oppression to those who follow them” (48). Borrows suggests that it is rare to see positivistic law operating in Indigenous communities “without other sources of law being studied and followed,” though, and notes that one criticism of Indigenous law is the lack of “a so-called recognizable sovereign who can pronounce laws and command obedience to them” (48).

Positivistic laws are “followed by people with little understanding of why they are binding, beyond their trust in or fear of the individual or group who gave them the rules” (48). “Many societies often obey such laws because they are regarded as necessary to the proper maintenance of order within their jurisdictions,” Borrows writes. “When someone breaks a law, our concern is not usually whether the law-breaker was persuaded at some point to support the law but that they had failed to obey it. When we know someone is flaunting the law, we may not immediately care whether that person sees the law as being in harmony with some broader sacred, natural, or deliberative source” (49). Instead, “most people who witness the disobedience are more concerned about their own safety and self-interest, and with that of their neighbours,” and therefore “they may not immediately be concerned about larger questions of legitimacy surrounding the law” (49). For that reason, “in understanding positivistic law’s legitimacy, it is important to remind ourselves that such power flows from a leader or group’s claim or endowment of reason and responsibility” (49). If that leader or group is abusing their authority, they can be removed “without offending other legal traditions that may flow from deliberation, nature, or the community’s sense of the sacred” (49). “Thus, if an Elder named chief or clan mother suffers from a loss of reputation, people could cease to follow their rules without dire consequences,” Borrows states, although “the consequences of a leader’s loss of reputation may be more complex and the subject of much greater conflict” (50). In fact, “[i]t might be difficult to disentangle a powerful group’s claims to authority from laws flowing from the Creator, nature, or from the functioning of a deliberative council,” and “[t]he challenge of separating political power from legal sources should not be underestimated” (50). Application of the law “tends to be messier in mingling the practice of politics and law,” Borrows admits, and “there is always the danger that changes in leadership or group dynamics may make it more difficult to abandon rules that seem, at first glance, to be tied to a person’s or group’s will-to-power through their proclamations” (50-51). Nevertheless, Borrows contends that these political dynamics should not lead to an overestimation of “the problem of leadership conflict or change within Indigenous legal systems where positivistic law is in force,” since “[t]he availability of appeals to the Creator, the environment, and reasoned consensus or custom greatly assists communities when an individual or group’s proclaimed rules or formerly binding teachings become less compelling for reasons related to their reputations” (51).

Custom, the final source of law Borrows discusses, “is the label that most people would likely give Indigenous law if they were unfamiliar with the complexity of these societies’ social organization,” although non-Indigenous societies rely on customary law as well (51). “Customary law can be defined as those practices developed through repetitive patterns of social interaction that are accepted as binding on those who participate in them,” Borrows explains. “Customary laws are often inductive, meaning that observations of specific behaviour often lead to general conclusions about how to act; as a result, the obligations they produce are regularly implied from a society’s surrounding context” (51). Customary law “rests heavily on an individual’s unspoken agreement about how rights and obligations will be regulated between community members,” and the intuitive nature of this form of law “means that disputes are often regulated through social pressures that distribute incentives and disincentives to act or refrain from acting in certain ways” (51-52). Customary laws are often implicit and initially more difficult to recognize, interpret, or enforce, but this fact doesn’t mean they “should give way to other sources of Indigenous legal tradition” (52). “[I]n its proper context,” customary law “can be very effective in producing strong and healthy community relationships” (52). Indigenous customary law is most strongly recognized in marriage and family relationships in Canada (52). Recent land claims agreements also rely on customary law, as n the Labrador Inuit Land Claims Agreement, which explicitly recognizes that customary law can exist in oral or written traditions, observances, or practices, in the opinions of Elders, or in community consensus (52-55). 

In the chapter’s conclusion, Borrows notes that “the distinctions between the different sources of law” he has outlined “can be defined too formally and separate from one another. In the real world, Indigenous legal traditions usually involve the interaction of two or more of the sources” he has described (55). “Indigenous peoples have choices when they turn to their laws for answers,” he stresses. “While complexity and choice might make working with the law appear more complicated, it should also provide greater opportunities for those interested in recognizing, interpreting, enforcing, and implementing these laws” (56):

Understanding that a source of law is natural, deliberative, positivistic, or customary might help those people who think of Indigenous legal traditions as static to see a much greater space for their application and development in modern Canada. If Indigenous legal traditions are going to expand and be a creative source of authority in Canada, we must reject the view that Indigenous law lies at the bottom of the legal hierarch, labelled as simply customary. . . . Indigenous legal traditions can be regarded as living systems of law, open to human choice and agency, within the context of the communities who will use them. (56)

One way Indigenous societies can keep their legal traditions alive “and connected to broader normative bases” is by emphasizing “the oral transmission of their laws” (56). “For many Indigenous societies, the spoken word ensures the law’s vitality because it sustains connections to their community’s underlying cultural foundations,” Borrows writes. “It also ensures that laws remain connected to a living community” (56). The oral transmission of law “is an important protection against narrowing influences because it allows for a stronger weaving of the past and the present” (56). It is “bound up with face-to-face persuasion, reason, the configuration of language, political structures, kinship, clan, economic systems, social relations, intellectual methodologies, morality, ideology, and the physical world,” Borrows continues, factors which “assist powerful individuals and groups in knitting legal memories more tightly in their adherents’ minds, keeping the laws living in places other than dusty old books full of overly technical rules” (57). Oral recitation also “allows issues from non-Indigenous systems to be incorporated with flexibility,” because it leads to Indigenous law becoming “intermixed with ideas from other sources” (57). 

“[A]ll of these strands of oral law, whether ancient or more recently incorporated, can be woven together and reinforced by mnemonic devices or other cultural practices, which also encourage broader participation and normative links,” Borrows concludes (57). Memory aids—including “wampum belts, masks, totem poles, medicine bundles, culturally modified trees, birch bark scrolls, petroglyphs, button blankets, land forms, and crests”—can record legal ideas, and those mnemonic devices “can be supplemented by practices which include such complex customs as pre-hearing preparations, ceremonial repetition, the appointment of witnesses, dances, feasts, songs, poems, the use of testing, and the use and importance of place and geographic space” (57). “The existence of these formalities and processes can help to ensure that certain legal traditions are accredited within a community,” Borrows argues, and oral tradition often blends sacred, natural, deliberative, positivistic, and customary sources of law together, keeping “Indigenous legal traditions alive and growing” (58).

In the third chapter, “Indigenous Law Examples,” Borrows describes many systems of Indigenous law within their specific social frameworks. He notes that there are dangers to focusing on specific groups when trying to understand Indigenous law: there is the risk of oversimplifying Indigenous societies “by presenting each group’s laws as completely isolated and self-contained,” and ignoring the fluidity and permeability of both legal traditions and cultures (59). He emphasizes the revisionist character of healthy legal systems, and suggests that “[t]he authenticity of Indigenous law and governance is not measured by how closely they mirror the perceived past, but by how consistent they are with the current ideas of their communities” (59-60). In addition, disagreements over interpretations of law “could be a signal that the tradition is vibrant and strong”: “As long as there is a way to temporarily resolve inconsistencies for the finite moments when decisions actually require deference, legal systems can live with a great deal of variation” (60). 

First, Borrows discusses Mi’kmaq legal traditions. “[M]embers of the Mi’kmaq confederacy, or Awitkatultik, see their contemporary territory as being divided into districts or sakamowati,” he writes. The sakamowati exist “to acknowledge family rights to certain hunting grounds and fishing waters,” and decisions made within the sakamowati “are based on what members have learned from other living beings within their territory” (61). “Building upon the earth’s teachings in this manner, the Mi’kmaq people seek to apply natural law to their relationships with others,” he continues (62). Mi’kmaq tradition “aspires to give everyone an opportunity to participate in decision-making (wikamou) during certain seasons,” and periodically the people gather to form a Grand Council, or Santé Mawíomi, where issues are discussed (62). Mi’kmaq laws are flexible and holistic, and they change as circumstances change: “The dynamic nature of Mi’kmaq law means that great care should be taken not to freeze the interpretation or application of these laws in an artificial past” (63). Many Mi’kmaq legal traditions come from the sacred, “from their views of creation and their explanations about their sacred responsibilities in the world” (63). Because everything has a spirit, or mntu, “[r]ocks, plants, insects, birds, and animals have a more central role in Mi’kmaq law”:

The need for respect, demonstrated by an awareness of the natural world’s participation in forming Mi’kmaq life, has deep legal implications for these people. It gives higher priority to stories, dreams, and visions than is the case in the common or civil law. This approach more freely accommodates the protection and facilitation of life forces that we do not fully understand or contain. As such, Mi’kmaq law does not shy away from discussions based on experiences that occur outside linear legal argumentations. (64)

But Mi’kmaq laws “can also embrace ideas based on positivistic processes,” through regular wampum readings, or Inapskuk, for example (64-65). However, wampum belts are often misinterpreted or misunderstood by Canadian courts as faulty history rather than law (65-70). “Just as precedent is measured by the most recent cases, rather than by their first formulation, so Mi’kmaq legal tradition must be considered in its most recent light,” Borrows writes. “It is freely accepted that law as a living, interpretive engagement between the past and the present is a necessary part of other legal traditions. The same acceptance should not be denied to Indigenous legal traditions” (70). “Indigenous legal traditions must be understood in the context of their own interpretive rules, just as common law and civil law are understood in accordance with their own distinctive cultural traditions,” he concludes (72).

Next, Borrows discusses Haudenosaunee legal traditions. “Law lies close to the heart of the Haudenosaunee’s genesis as a unified people,” he writes (72). “Although disrupted by U.S. and Canadian attempts to eradicate this tradition, the Great Law of Peace continues to be the most important legal tradition guiding these communities today” (73). The Great Law of Peace, the Kaianerekowa, “bound the Iroquois nations together into a confederacy of considerable strength,” Borrows continues. “Its narrative and principles brought peace, power, and righteousness to generations of Iroquois people, and continues to be important to Haudenosaunee people today” (73). According to Borrows, “[t]he Great Law of Peace is one of North America’s most recognizable Indigenous constitutions,” and “it’s primary authority continues to reside in its spoken version,” rather than in its numerous written descriptions (73). Borrows briefly tells the story of the Peacemaker and the instructions he gave to chiefs about how to live and how to run their councils (73-75). Like most legal traditions, the symbols the Peacemaker gave to the chiefs “are subject to wide interpretation and reinterpretation because their framing encourages listeners to broadly apply their messages,” and the Great Law “also communicates laws relating to adoption, emigration, individual rights, and international relations” (75). Once the Peacemaker taught the principles of the Great Law of Peace, he left, promising to return (75).

“The Great Law is built on the agreement and creativity of many Haudenosaunee people,” Borrows continues. “Future generations are considered in deliberations under the law, and their anticipated needs were to be a significant part of any resolution” (75). Agreements are reached through unanimity, and any of the Six Nations can request a meeting of the council of the confederacy (75). “The Haudenosaunee developed intricate diplomatic traditions in their relations,” he writes, noting that the agreements they reached “continue to resonate with many Indigenous people today,” such as the Gus Wen Tah, or Two Row Wampum, which was the basis of agreements between the Haudenosaunee and the Dutch, the French, and the English (75-76). Another symbol related to the Gus Wen Tah is the Silver Covenant Chain, which binds nations together without causing them to lose their independence (76). “Those holding the Covenant Chain are responsible for keeping their relationships bright and preventing them from breaking Haudenosaunee law seems to maintain an independence from other legal traditions that prevents its assimilation or integration,” Borrows writes, and this independence means that “the Haudenosaunee are the least likely of any Indigenous group to support or embrace the application of their laws as part of the Canadian legal system,” although “many Haudenosaunee would welcome seeing their legal traditions given greater recognition” (76). Because the Haudenosaunee tend to see themselves as allies of Canada rather than as Canadian citizens, Borrows’s “conclusions about the nature of Canadian multi-juridicalism will likely be rejected by many people of the longhouse. They would not want to see their legal traditions as part of Canada’s Constitution, unless they consented to such an arrangement through a treaty with their confederacy, which is unlikely in the present circumstances” (76-77). However, “many Haudenosaunee would likely accept renewal of the Gus Wen Tah and the Silver Covenant Chain, both of which symbolize their ancient treaty relationship with the Crown and affirm their decision-making powers and distinctiveness,” and “Haudenosaunee law has a continuing and significant influence on how Canadians organize their affairs” (77).

Borrows now turn to Anishinabek legal traditions. “Historically, the Anishinabek lived in communities as clans organized in a loose confederacy, which more recently was called the Council of the Three Fires,” he writes (77). They “often manage their resources through kinship allocations, agreed upon through discussion and consensus,” and “these kin-based allocations have been confirmed, overlain or displaced by band council-sanctioned certificates of possessions under the Indian Act” (77). Clan systems “assist in regulating behaviour and resolving disputes,” and “[p]ersons who are not Anishinabek by birth may be granted citizenship and legal standing to participate in community life through an adopted clan” (77). A person’s clan, or dodem, “creates reciprocal obligations among fellow clan members, thereby establishing a horizontal relationship with different communities and creating allegiances that extend beyond the confines of the home village” (78). Clan obligations help “the Anishinabek allocate resources to their hunting grounds, fishing grounds, village sites, and harvesting/gathering sites,” and “[a] conservation ethic is apparent in resource allocations under Anishinabek practitioners using this system” (78). 

According to Borrows,

The Anishinabek people have a number of legal principles that guide their relationship with other living beings in a conservationist mode. For example, humans and others have rights relative to the earth, and they also have duties. Duties or obligations are central to relationships under Anishinabek law. This is demonstrated in formalized patterns of speech. For example, when Anishinabek people historically met, they would first ask one another: “Weanaesh k’dodem?” (“What is your totem?). Once clan and family were determined, people would be asked: “Ahniish aen-anookeeyin?” (“What do you do for a living?”). Both of these questions are related to a person’s responsibility within the community. A person’s dodem indicates more than their lineage: obligations are attached to their clan affiliations. Like a dodem, a person’s anookeewin also connotes ideas of duty and right (daebinaewiziwin). Anishinabek peoples have obligations (daebizitawaugaewin) to their families and community: to support them, to help them prosper, and to exercise their rights to live and work. In an Anishinabek legal context, rights and responsibilities are intertwined. (78-79)

“The Anishinabek have strong legal traditions that convey their duties relative to the world,” Borrows continues, including “stewardship-like concepts (bimeekumaugaewin) and apply to their use of land, plants, and others” (79). “Principles of acknowledgment, accomplishment, accountability, and approbation are embedded in the Anishinabek creation epic and associated stories,” he writes:

Ojibway legal traditions concerning bimeekumaugaewin speak of how the world was created and how beings came to live on the earth. They tell of how they depended on the earth, plants, and animals for their sustenance and survival once they arrived. The Ojibway’s acknowledgment (gaamiinigooyang) of a Creator and an appreciation of their reliance on their relationship to the world comprise the first principle of bimeekumaugaewin within Ojibway societies. (79)

The second principle of bimeekumaugaewin deals with accomplishing “the Creator’s vision in setting life in motion” (79). “The stories convey the manner in which plants, animals, and humans should relate to and respect one another,” Borrows writes. “They obtain important teachings about the preparation necessary for living a good life. They talk of principles that must be followed so that all the orders of creation can live together in peace and friendship” (79-80). The third principle of bimeekumaugaewin is accountability: “As with the pipe, ceremonies are often performed in conjunction with these stories to communicate to the Creator, and to acknowledge before others how one’s duties and responsibilities have been performed. Dancing, feasting, and singing sometimes accompany these rituals as a way to ratify legal relationships” (80). Finally, stories explain “the consequences of living in accordance with, or contrary to, these principles” (80). “The idea of approbation received for proper performance of duty, or disapprobation (tubuhumahgawin) flowing from failure to fulfill a responsibility, complete the Ojibway circle of bimeekumaugaewin,” Borrows continues. “These are the enforcement mechanisms of Anishinabek law” (80). 

Legal remedies in Anishinabek law “are not usually punitive,” although “examples can be found in which drastic action had to be taken against individuals to preserve community safety” (81). One was recorded by William Jarvis, Superintendent of Indian Affairs, in 1838. In that incident, a man named Mayamaking began drinking his own blood (despite the availability of other food), tearing off his clothing (despite the winter weather), and eating ice and snow. The community feared he would eat their children, and unanimously agreed that Mayamaking would have to die. His best friend shot him, “‘not wishing any other hand to do it’” (Jarvis qtd. 82). “This real life historical case is an interesting example of Anishinabek law,” Borrows writes. “The community dealt with the issue in accordance with their own legal traditions. The community had no other resources for their protection but themselves, their extended family and friends. They used their law to deal with a pressing issue” (82). When it became clear that the man’s threats “were becoming a matter of life and death,” the community “went to council together rather than take action individually” (82). “This is an important Anishinabek legal principle,” Borrows continues. “Their method of making judgments was a collective, not an indiviualized one. They relied upon one another’s viewpoints. They were deliberative. They clearly felt that this method of deciding was very important because they travelled through heavy snow to meet together” (82). The legal principles that led to the man’s death were focused on defence and compassion, and his death had restorative aspects: “The father received gifts from the community, and the man who killed the son stepped into his role, also performing restitution. Even the man who lost his son seemed to be satisfied with the council’s decision” (82-83). For Borrows, this example shows the differences between Indigenous and non-Indigenous law: “Imagine what our legal systems would be like if judges or lawyers had to take the place of those they prosecute or send to jail” (83). 

Of course, today Mayamaking’s mental illness would be handled very differently, but for Borrows, the point is “to focus on the process and principles that guided the actions, rather than on the specific outcome” (83).  “Even today,” he writes, “people can still”: “wait, observe, and collect information,” “consult with their friends and neighbours when it is apparent something is wrong,” “help the person who is threatening or causing imminent harm,” remove the individual “so that he or she does not harm others (though, to re-emphasize, the act does not involve what the common law has labelled capital punishment),” “help those who rely on that person by restoring what might be taken from them by the treatment,” and “invite both the community and the individual to participate in the restoration (83). These legal principles “show what can be learned from looking at the past,” Borrows contends, and “Anishinabek peoples will likely find similarity with many of these approaches in their contemporary lives” (83). “For the Anishinabek, windigos come in different forms, even today,” he continues. “There are other harmful forms of cannibalistic consumption that destroy lands and people. The principles that underlie the practice in the Mayakiming case are important for dealing with these problems” (84).

Borrows now discusses Cree legal traditions. The Cree homeland is vast, covering both boreal forest and prairie, and for Borrows, who is only including the Plains Cree, Woods Cree, and Swampy Cree in this discussion, “the diverse ecologies of this terrain influence their laws” (84). Those who keep the law are known, in Cree, as “Onisinweuk,” Borrows writes (84)(probably onisinwayak, in Standard Roman Orthography, although I can’t find that word in the dictionary; oyasiwéwin means law, though). Legal principles are encoded in Cree language, expressing fundamental principles in the words wâhkôhtowin, miyo-wicêhtowin, pâstâhowin, ohcinêwin, and kwayask-itôtamowin, and understanding these words provides a glimpse into Cree legal traditions (84). wâhkôtowin is “the overarching law governing all relations,” and it is said “to flow from the Creator who placed all life on earth” (84). According to Borrows,

A body of stories describes what people have learned from observing the natural world; the stories are used to facilitate order in Cree law. The sun, moon, winds, clouds, rocks, fish, insects, and animals all provide illustrations of wahkohtowin, which the Cree interpret into law. Wahkotowin has implications for individuals, families, governments, and nations. For example, in the family law context, wahkotowin is said to require different levels of conduct: parents are to nurture and care for their child with loyalty and fidelity; brothers and sisters are to live close but separately in an atmosphere of non-interference; cousins and other relatives are to be treated respectfully in a non-coercive manner. (84)

Unrelated people apply the principles of wâhkôhtowin “in accordance with the ideas found in miyo-wicehtowin, pastahowin, ohcinewin, and kwayaskitotamowin” (84).

miyo-wicêhtowin, Borrows writes, “is said to have originated in the laws and relationships that Cree people have with their Creator”: it directs Cree people to behave in a way that is conducive to the creation of good relationships (85). miyo-wicêhtowin “is an important legal principle because it speaks to maintaining peace between people of different places and perspectives,” and the “maintenance of mutual good relationships, through positive support and assistance,” is “often represented by the circle in Cree law” (85):

Circles are considered sacred and represent the bringing together of people. They are meant to remind people of Mother Earth and their journey through life: from the earth, to infant, to child, through adulthood to old age and back to the earth. Cree legal traditions can be conducted in circles, such as talking circles, healing circles, and reconciliation circles. (85)

pâstâhowin and ohcinêwin, on the other hand, are about the consequences of failing to abide by the law:

Pastahowin is used to describe something that goes against natural law. If such an offence occurs, negative consequences will follow, making the concept of ohcinewin relevant. Ohcinewin is part of the concept of pastahowin and means to suffer in retribution for an action against creation. Pastahowin and ohcinewin can apply to any circumstance in which the law is not followed, either through action or omission. (85)

Retributive aspects of Cree law include “meskotsehowin” (redress), “kakweskasowehk” (reproval), “apehowin” (revenge), “naskwawin” (reprisal), “pasastehokowisowin” (retributive justice), “naskwastamasowin apo apehowin” (vengeance), “pasihiwewin” (vindication), “atameyimew” (blame), “sihkiskakewin” (obligation), “masinahikepayowin” (indebtedness), and “tipahikewin” (recompense) (85) (all in quotation marks because I’m not sure of Borrows’s spelling and can’t find any of these words in the dictionary). Examples of pâstâhowin and ohcinêwin can be found in relationships between animals and humans: “Animals are regarded as persons in their own right; the relationship between the Cree and animal-persons is governed by the same legal considerations that govern human relationships” (85). “If animals are not treated appropriately,” Borrows writes, “pastahowin and ohcinewin can result: something bad will happen. Many stories interpret the law relating to animals in these terms” (85-86). Borrows notes that a Cree-speaking judge, Gerald Morin, was appointed to preside over a Cree court in northern Saskatchewan in 2001, but suggests that this court “does not represent anything close fo a fully functioning Cree legal system” and that it “only faintly affirms Cree legal traditions,” since “[t]he substance and procedures of Canadian law continue to contain many cultural incongruities that are considered incompatible with Cree legal traditions” (86).

Borrows turns to Métis law next. He notes that in 1840 the Métis living on the prairies developed buffalo hunting laws to organize that economic and social activity (87). The captain of the hunt could impose penalties if the rules of the hunt were broken (87). However, “this set of laws was not a complete code for the hunt. There were, in addition, significant customary legal principles involving the respectful killing and use of animals. Métis law also extended to trade, family obligations, political organization, and land use” (87). Without the order created by Métis law, “the fur trade would have floundered, and political and economic development on the St Lawrence River and easter Great Lakes would have been severely delayed or restricted” (87). Métis “legal presence” was also instrumental in opening western and northern Canada up for settlement (87-88). According to Borrows, “Métis legal traditions were most prominent when the Dominion Parliament attempted to unilaterally survey the old North-West Territories around the Red River in 1869” (88). Because the Métis did not want to become part of the Dominion without their consent and participation, they prevented surveyors from doing their work, and “[t]his prevented Canada’s expansion into the region and compelled the government of Sir John A. Macdonald to negotiate with them” (88). This situation led to the creation of a Métis Provisional Government, which negotiated an agreement embodied in the 1870 Manitoba Act (88). After the terms of that agreement were broken by Canada, “a group of Métis established a democratically elected government in St Laurent, near Batoche, Saskatchewan,” where Gabriel Dumont and eight councillors “passed rules, patterned after their ancient buffalo hunt laws” (88). Borrows includes a long ist of the laws passed at St. Laurent (89-91), and notes that these laws “have survived in customary form, and still have relevance today” (91). In addition, “Métis legal traditions . . . survive in Canada as positivistic law. In Alberta, Métis people operate a quasi-judicial system to deal with disputes about membership, land dealings, surface rights, and any other matter to which the parties agree” (91). This body, the Métis Settlement Appeal Tribunal, was created in 1990 by provincial legislation, and “[i]t has developed an extensive body of jurisprudence as a living legal tradition” (91). Métis living in other parts of Canada “have also enacted their laws in a contemporary context” (91).

Borrows writes about Carrier legal traditions next. The Carrier people organize themselves in houses, with house groups led by a head chief, subsidiary wing chiefs, and house members; a group of houses constitutes a clan (92). Membership in a house or clan is determined by matrilineal descent (92). “Carrier legal traditions contain principles of societal organization,” Borrows states. “These laws are central to the proper distribution of decision-making power” (92). “An integral part of Carrier legal heritage,” Borrows continues,

is their kungax, or “own spirit power.” Kungax tell of the land’s creation, the people’s earliest history, territorial boundaries, major battles, and the origins of house crests, titles, names, and significant past events. Kungax are often performative, using song and dance to communicate major themes and specific principles. Kungax are first taught to children when they are quite young. As they grow and mature, children are expected to deepen their memory and understanding of the kungax until they can recite them accurately. While every attempt is made to ensure that those with proper authority perform the kungax in official gatherings, parallel or divergent accounts often circulate. (92)

According to Borrows, 

Kungax teach specific principles for regulating behaviour as well as outlining remedies for breaches of social order. Several fundamental principles intended to govern individual conduct have been identified within Carrier law. These are respect, responsibility, obligation, compassion, balance, wisdom, caring, sharing, and love. (92)

None of these principles is more important than the others; all are of equal weight. One example of a principle found in a kungax is the obligation to treat animals with respect; if they are not, they will leave Carrier territories or exact retribution (92). “To mark respect for fish, the Carrier enact a ceremony each year to honour the salmon’s return,” Borrows writes. “Honour continues throughout the salmon’s cyclical visits with rules governing its allocation, catch, use, preparation, and disposal” (92). These rules are enforced “by proving commentaries about consequences for mistreatment” (92). For the Carrier, “[f]eelings are an important part of the law; reason is not separated from emotion in making decisions and taking action. Reason and emotion operate together to motivate proper conduct” (93). “The kungax also teach proper rules of respect, love, and obligation towards others,” Borrows writes. “If people are not well treated, they are said to transform into animals and leave their partners” (93). 

The kungax provide “a principled context,” but “Carrier people regulate their society through the bah’lats or Potlatch laws” (94). “The bah’lats,” Borrows writes,

are the legal basis for succession and inheritance, territorial laws and resource management, family law (including marriage, divorce and mourning), dispute settlement, village governance, special rules of conduct for women, and principles of justice taught to children. The bah’lahts are administered through head clan and subclan chiefs who determine their questions of Carrier law. Hereditary chiefs receive their authority from matrilineal clan assignments in the bah’lahts, if they live in a way that merits the honour. Wealth, service, generosity, wisdom, respect, family and community support all qualify people for the authority. Without living in accordance with these principles, a person cannot expect to be effective in interpreting and adjudicating disputes. (94)

However, if head chiefs do have the respect of the community, they are “responsible for determining breaches of Carrier law and, in consultation with wing chiefs, adjudicate an appropriate remedy” (94). Remedies “are administered by a clan member known as a ‘whip man’” (94). “Formal business within the bah’lahts takes place in the feast hall,” Borrows notes, and feasts are guided “by a major legal tenet, dinii biits wa aden, or ‘the way the Feast works’” (95). “Practices and principles must be followed when a hereditary chief’s name is being assigned, when law is solidified, when shaming occurs, and when a birth, marriage, or adoption is announced,” he continues. “Precise legal procedures are followed within the feast” (95).Borrows describes those procedures, which include the distribution of eagle down after decisions are made, and the proper calling of witnesses (95-96). Witnesses are important, “because they may be called upon at a future feast to verify past actions” (96). “The recording of the bah’lahts proceedings ensures that the witnesses are specifically prepared to testify in the event of a potential conflict over what has transpired,” Borrows concludes, noting that in this respect, Carrier legal structures are similar to those of other northwest coastal nations, including the Nisga’a, to whose legal traditions he turns next.

The Nisga’a are divided into four clans or pdeek, and historically they were also organized into wilps or house groups, each of which “had its own chiefs, territories, rights, history, stories, songs, dances, and traditions. These customs are handed down through matrilineal succession” (96). “Wilps are matrilineal and matrilocal,” Borrows states. “The highest ranking woman in a wilp is called the sigidimnak’; she makes the final decisions on names and inheritance,” and when she dies, the position is assumed by her oldest sister or daughter (96-97). The highest-ranking man in a wilp, the sim’oogit, is “responsible for passing adaawks and associated prerogatives from one generation to the next,” usually through feasts in which these prerogatives are made public and are validated by other chiefs. “Each wilp has an adaawk that describes how their ancient territories were acquired; they can take the listener back to the beginning of time,” Borrows writes. “The adaawk will also describe the wilp’s ancient migrations, territorial defence,” and the major events of its history (97). “The adaawk records property rights such as fishing sites, hunting territories, and gathering grounds. It also details rights and responsibilities in family law,” he continues. “For example, adaawk convey information about how ancestors were given animals to be used as crests by each wilp and to show them how to live, eat, and prepare food. They also relate details about how these entitlements and obligations should be passed on to the next generation” (97).

“The Nisga’a people remember their adaawk by referring to their ayuukhl,” an “ancient legal code that has guided Nisga’a social, economic, and political relationships” for centuries before Canada proclaimed itself a nation (97). “The ayuukhl, in conjunction with the adaawk, historically governed land ownership, education, succession, citizenship, and the institutions of the chieftain and matriarch,” Borrows writes. “The laws also governed marriage, divorce, war, peace, trading relationships, and restitution, though these laws have been modified in some degree by a recent treaty” (97). Some ayuukhl are related to the Nisga’a origin story and are believed to have been placed “in Ginsk’eexkw by k’amligihahlhaahl who is regarded as the Supreme God,” while other ayuukhl “are founded upon K’amligihahlhaahl’s teachings to Txeemsim, the trickster, who identified central legal tenets for Nisga’a peace and order. His deeds and misdeeds illustrate consequences that can flow from certain behaviours” (98). Still other ayuukhl “seem to come from the direct experience and observation of the people. There are many cases of people being rewarded or punished because of the respect or disrespect they showed in following the ayuukhl” (98). Sanctions and restitution are an important part of the Nisga’a legal tradition, including shaming and public cleansing. “Nisga’a legal traditions, therefore, cover many significant aspects of human behaviour,” Borrows continues. “The ayuukhl and adaawk are an important part of Nisga’a legal traditions because they connect the people to their territories, families, and past. They teach them how to live in relationship with the earth around them” (98). However, Nisga’a laws have been modified by their 1999 treaty with Canada and British Columbia; that agreement brings Nisga’a legal traditions into a contemporary Canadian context (99). 

Finally, Borrows discusses Inuit legal traditions. “Among the most important legal terms in Inuit law are maligait, piqujait, and tirigusuusiit,” he writes:

Malagait refers to things that have to be followed. It is a relational term focusing on the results of a request (the obligation to obey). Piqujait deals with things that have to be done. The obligation that is the focus of piqujait is the wish of an authorized person about something that is to be done. Tirigusuusiit refers to things that have to be avoided. If a person transgresses tirigusuusiit, he or she will have to face the consequences of his or her actions. (102)

While these traditions are ancient, they “have the potential to be applied to present-day circumstances” (102). Tirigusuusiit, for instance, “could be used as an Inuit legal device to highlight inappropriate actions,” and while all tirigusuusiit might be followed today, “they could be compared and contrasted with other Canadian legal traditions to create a better future” (102). For instance, “tirigusuusiit requires that campsites be kept clean out of respect for the land and the animals,” suggesting that it is “an important foundational idea for creating environmental and land use planning regimes” (102-03). “There are tirigusuusiit related to visiting peoples in other lands, clothing, hunting, and other life activities,” Borrows continues (103). Another important Inuit legal concept is Inuit Qaujimajatuqangit, which includes unwritten traditional knowledge, family and political structures, education, and even knowledge of weather (103). “It has also been described as a living technology for rationalizing thought and action, organizing tasks, managing resources and family, and seeing society as a coherent whole,” Borrows writes (103). I’m not sure what the Inuit Qaujimajatuqangit might be, but I’m wondering if they are oral narratives. Borrows notes that “the Nunavut territorial government is one of the most important institutions implementing Inuit legal traditions in Canada,” and states that the government “has taken great guidance from Inuit Qaujimajatuqangit to structure its legislative and administrative agenda and actions” (103). There are no political parties, and the cabinet operates by consensus (103). He provides a long list of Inuit legal principles, and suggests that the government of Nunavut “has taken many opportunities to apply these and other Inuit legal traditions to their statutes, regulations, and government procedures” (104).

In his conclusion, Borrows emphasizes his contention that these eight legal traditions require debate, “because such debate cold lead to further clarification and more refined applications of the law at issue. . . . Further discussion and development of these descriptions are essential to ensure that Indigenous legal traditions do not become withdrawn from critical inquiry or become lost in mythologies of the past” (104). Therefore, “it is vitally important that Indigenous laws remain relevant through their continual interaction with the contemporary facts of life” (104). Without such interaction, “they could become detached from the everyday concerns and experiences of Indigenous peoples today” (104). Borrows also asserts that:

significant problems can develop if too much deference is given to how traditions (including common law, civil law, and Indigenous law) were practiced in past eras. While ancient understandings can give significant guidance to present practitioners, problems develop when traditions are held hostage to historical interpretations that do not take into account the modern contexts. In these circumstances, placing too much weight on the “hallowed” nature of traditions can become an obstacle to their present-day applications. If an overexalted view of a tradition is applied, it could limit ordinary people from connecting to it when faced with their messy and often mundane circumstances. Legal traditions must have an air of reality about their present-day applications. People will have trouble making their laws work for them if a hard-edged realism is not combined with the necessary idealism that underlies most legal systems. (105)

For that reason, “traditions should not be frozen in some past-tense state because of misplaced notions of reverence and respect” (105). In fact, those notions “could be exceedingly disrespectful” if they lead to the belief “that one’s legal tradition cannot intermingle with other ideas to provide guidance in circumstances that differ from the past” (105). “Respect should not be equated with non-use,” Borrows argues (105). Nor should traditions become the property of an elite (105). “Resistance to ‘non-approved’ ideas that come from other sources can allow elites to selectively shield themselves from complicated counter-narratives,” he continues. “This can only lead to a narrowing and can threaten a tradition’s relevance in a complicated world” (105). “Legal traditions must be brought out of the past and into the present to increase their scope and vitality,” he writes, a statement he believes is true for common law and civil law as well as Indigenous law (105-06). The remainder of the book, he concludes, is about how laws “might learn from and interact with other approaches to regulation and decision-making” (106). In other words, the rest of the book is an argument in favour of legal hybridity.

Borrows’s fourth chapter looks at what can be learned from the coexistence of civil law and common law in Canada, a phenomenon known as “bijuridicalism” (107). However, that term is not inclusive enough, since “numerous Indigenous legal traditions continue to function in ways that are integral to Canada’s legal system” (107). For that reason, it would be better to think of Canada’s legal system as multi-juridical (107). His intention in this book is “to build on bijuridicalism and take a more pluralistic approach to recognizing and affirming our country’s rich legal inheritance” (107). “In this vein, this chapter will explore how the continued development of Indigenous legal traditions can take guidance from the relationship between the common law and civil law in Canada,” he continues (107). “A more thorough understanding of the development of common and civil law will demonstrate the historically fluid, socially constructed, and culturally contingent nature of legal traditions in Canada,” and it will also provide “an important reminder not to stereotype or overexaggerate the positivistic nature of non-Indigenous legal traditions” (107-08). Without that context, common law and civil law often appear to be natural, and Indigenous law to be an exception to the legal norm (108). Like Indigenous law, common law and civil law “waxed and waned depending on sociocultural factors,” knowing about their conditional development “increases awareness of the need for choice and moral agency in the broader adoption and adaptation of Indigenous legal traditions” (108). 

“When comparing Indigenous and Western legal traditions, it is tempting to make broad, nearly irreconcilable distinctions between them because of their different histories, social organization, and values,” Borrows writes (108). That is the reason it’s important to see the unwritten cultural assumptions of those traditions (108). The unwritten constitutional principles behind Canada’s constitution have been recognized by the Supreme Court. “If the similarities between our legal traditions are not appreciated, their differences can give rise to misconceptions and stereotypical ideas about Indigenous legal systems,” Borrows continues (108). Those ideas, such as the notion that Indigenous law is educational in nature, cause problems, “because they neglect the role of civil and common law as cultural mediums that educate, communicate, and socialize” (109). “It is too easy to detach the civil and common law from their cultural contexts and this must be avoided,” particularly since the cultural components of common law and civil law “seem almost invisible precisely because they correspond with the values of a wide portion of society” (109). Neither common law nor civil law is removed from society: “The development of the civil and common law flows from, and is embedded in, the cultures of specific groups of Canadians” (109).

First, Borrows discusses the civil law tradition, which begins with Roman law and then spread around the world in codified and uncodified forms (109). “Civil law is a highly structured tradition; it is based on broad declarations of general principles that provide guidance to its adherents,” he notes (109). It first arrived in North America in New France, because King Louis XIV decreed that the laws that governed the colony would be the same as those that governed the Île de France, the region around Paris (109-10). That kind of centralized transplantation of laws from one part of the world to another “is a feature of principle-based laws” (110). The laws of New France were hierarchical, with “royal ordinances, edicts, and decisions from the Conseil Souverain (Sovereign Council) proclaiming the laws by which people would live” (110). However, there was some recognition of the need for law to reflect local values, and so the code was changed several times “to accommodate the particular cultural circumstances of New France” (110). After the British conquest in 1763, civil law in New France was abolished, but it continued to exist in practice, and therefore it was reinstated by the 1774 Quebec Act (110). Since then, civil law has survived in Canada: “Civil law remains a powerful legal tradition in Canada because of its historical use and its relationship to the society and culture in which it is applicable” (111).

Common law began to be practiced in Canada about the same time as civil law, Borrows continues (I would’ve thought it started later). “Those who settled the land outside Quebec brought a cultural preference for this legal tradition and made a conscious choice to adopt this system,” he writes. “Much like some Indigenous legal traditions, common law has a strong customary law component” (111). In other words, its origins “are not grounded in any text” (111). Common law “grew out of a society in which a bewildering diversity of courts, from a broad array of cultures, enforced a wide variety of laws” (111). It was born “when the use of writs expanded at the expense of these other legal jurisdictions” (112). Those writes were “‘forms of action’” that “were the procedural devices used by courts to give expression to the theories of liability recognized by common law,” and the uniformity writs provided “allowed for the more centralized control of the entire common law structure, and the sovereignty of the Crown expanded as the jurisdiction of common law became more widespread” (112). Common law first appeared in Prince Edward Island, New Brunswick, and Nova Scotia after the expulsion of the Acadians in 1756, and it expanded into other British colonies (and Canadian provinces) afterwards. “Of course, many Indigenous people wonder how these colonies came to be viewed almost exclusively as common law jurisdictions when Indigenous legal traditions continued to apply in all of them,” Borrows writes. “Nevertheless, the common law tradition in contemporary Canada operates through stare decisis and a hierarchy of courts. Stare decisis is the principle by which decisions in previous cases are applied to current cases that are materially similar,” and the hierarchy of courts refers to the fact that lower court decisions can be appealed to higher courts, whose decisions “are binding on inferior tribunals” (112-13). “The culture of common law is of incremental development on a case-by-case basis,” he continues (113). 

The point of these summaries is to demonstrate that “the development of civil and common law traditions is based on specific historical and cultural circumstances,” along with choice and “moral agency” (113). For Borrows, “[c]hoice and agency will be as important to the adoption and continued adaptation of Indigenous legal traditions. Since legal traditions are subject to human intervention, they can change, grow, and develop” (113). Part of that development is the way that these legal traditions have influenced each other. For most of Canada’s history, common law has been dominant, but Borrows says that more recently civil law has become more prominent. “The growth of Indigenous legal traditions may follow the same course if appropriate measures are taken,” he writes (113). 

Common law and civil law have interacted with each other, and these interactions “may hold lessons for Indigenous laws’ growth” (114). Civil law “has been inordinately influenced by common law and still maintains its authority,” and the same might apply to “Indigenous traditions influenced by the other legal traditions,” which may “maintain their power despite being heavily and inappropriately overshadowed by other legal traditions in the courts, parliament, and provincial legislatures” (114). For years, courts, Parliament, and legislatures outside Quebec paid scant attention to civil law, and during that time, “civil law did not enjoy the same weight as common law in the Supreme Court of Canada” and it seemed in danger of assimilation (114). There was a lack of reciprocity between the two systems—a failure to understand that “the Civil Code was a founding document of Quebec’s legal system” (114)—and this situation left many worried about “the continued vitality of civil law tradition” (114). However, things have changed, particularly after the Supreme Court of Canada replaced the Privy Council in the U.K. as the country’s highest court. Despite the dominance of common law, however, “civil law has at times affected common law,” and Borrows cites several examples “in which the Supreme Court has referred to civil law in common law decisions” (114). “The dialogue between these two legal traditions has proved beneficial,” he writes. “Greater reciprocity has facilitated access to a richer body of laws with which to answer legal questions” (115). Each tradition, then, influences the other in Canada (115). That mutual influence has worried some lawyers, who were concerned with the purity or authenticity of civil law. “This approach fails to recognize that the integrity of a legal system is not solely dependent on its relative isolation, internal logic, or doctrinal purity,” Borrows writes. “Integrity also depends upon the system’s recognition, from within and by others. Recognition secures a jurisdictional space for its operation that encourages the respect of the public and facilitates access to resources” (116). When legal systems are recognized as valid, “they are much freer to interact with other systems without fear of assimilation” (116). The broad recognition of civil law was a factor in its survival. “Once the courts and Parliament acknowledged the authority and scope of civil law, it became easier for its influence to grow,” Borrows continues. “Because it has been more firmly recognized by Canada’s dominant legal institutions, civil law ahs been revitalized” (116).

According to Borrows, Indigenous law could benefit from a similar process. Indigenous legal traditions “could grow stronger through greater recognition by the courts and Parliament,” and “Indigenous legal practitioners might consider the civil law experience and identify potential dangers that could develop from an exclusively inward-looking approach to tradition” (116). However, “it is important to contemplate the idea that perhaps the formal separation of Quebec as a civil law jurisdiction has been the strongest reason for its growth, more so than the normative strength it acquired from interacting with the common law,” so both separation and harmonization of legal traditions could be important (116). “Greater discussion is needed within Indigenous communities about the benefits and potential problems of trying to purify Indigenous traditions by the removal of the ‘contamination’ from common law and civil law traditions,” Borrows writes. “Those wishing to live solely by their traditions could usefully ponder whether disproportionately negative effects flow from attempts to completely isolate themselves from surrounding relationships” (116-17). “There are compelling arguments that Indigenous traditions could be strengthened by their separation from and interaction with the principles and approaches that are found in Canada’s other legal traditions,” he continues (117). Also, it’s possible that the history of civil law may not be the best guide: 

Indigenous traditions are somewhat different from Canada’s other legal systems. Indigenous peoples are a much smaller proportion of the population than those living under civil law in the province of Quebec. These smaller numbers might give less political weight to the recognition of Indigenous legal traditions nationally. Furthermore, the Quebec government (which protects property and civil rights through civil law), has specific protections in the Canadian Constitution, whereas Indigenous governance may not have the same status. It may be implicitly protected under section 35(1) of the Constitution Act, 1982; but, so far, this recognition has been less than optimal. Additionally, the fact that civil law and common law both stem from European cultures may make their harmonization easier than would be the case with the interface of Indigenous and non-Indigenous legal traditions. (117)

These differences must not be used as an excuse to avoid potential recognition, Borrows continues, and Indigenous traditions must not be subordinated to European ones “on disguised grounds that they are somehow less civilized” (17). Also, international legal systems favour common law and civil law. Therefore, one must be cautious in using the history of civil law as a model for what might happen to Indigenous law. And, finally, “civil law is limited to matters of private law, whereas Indigenous legal traditions also deal with aspects of public law” (118). The differences between Indigenous and non-Indigenous law need to be acknowledged, and they need to “form part of any strategy designed to preserve and develop Indigenous legal traditions” (118).

“In order to have the common law, civil law, and Indigenous law work together in a more harmonious way, we will have to find better words, phrases, and frameworks to acknowledge and facilitate their coexistence,” Borrows states. “The search for such congruence will take us deeper into the realm of interpretation, dialogue, and argument” (118). Like all legal traditions, Indigenous legal traditions need to be interpreted—Borrows uses the word “translated” (118)—in order to be understood, although it’s important that such translations not “always flow one way, to the benefit of the dominant systems” (118). Canada’s other legal traditions, like Indigenous laws, are “embedded in a culture of argument,” and “[e]ach contains a degree of ambiguity that requires judgment beyond its initial formulation”: by courts, judges, and lawyers, through case law, and by Parliament and legislatures, which “promulgate administrative regulations to further implement and clarify statutory grants of power” (118), on the one hand, and by other methods of interpretation, on the other. The methods of interpretation proper to Indigenous law are unfamiliar to Canadians, which presents a challenge for Canadian law, “especially when ambiguities exist not only within legal traditions but also between them” (118). For Borrows, “the most important step we can take in developing a culture of argument in relation to the place of Indigenous legal traditions in Canada is to develop a framework that does not subordinate them to the common law and civil law” (119). When Indigenous law (and Indigenous peoples) have equal status, ways to coordinate the three legal systems will be revealed (119). In other words, “Indigenous law will more fully permeate the consciousness of common law and civil law practitioners and theorists when it is regarded as a real source of rights and obligations in our country. The expansion of our conventional conceptions of Canadian law will also require greater participation by Indigenous peoples” (119). 

To illustrate this claim, Borrows turns to a Cree story about a meeting between the Creator and the animals, prior to the creation of humans. He suggests that this account “will draw on Cree law to point out the general principles that can help to bridge the ambiguities between the civil/common law and Indigenous legal traditions” (119). The great gift humans will possess, the Creator tells the animals in the story, is the ability to dream, which will make them creative. They will also possess the gift of the knowledge of truth and justice, humans will have to search for that gift, the way they must search for their identity. The Creator asks the animals to help him find a good hiding-place. All of the animals make a suggestion, but none of them are good enough. Finally, the Mole speaks: “‘Put it inside them because then only the wisest and purest of heart will have the courage to look there’” (121). And that’s what the Creator does. Borrows suggests that this account demonstrates “the importance of participation and equality in the interpretation of Indigenous legal traditions,” because all of the animals, the greatest and the least powerful, are able to contribute to the discussion with the Creator, who is put on an equal footing with them (121). “If we apply these principles to Indigenous traditions, we can conclude that powers of interpretation and judgment should not all be vested in legislators or judges,” Borrows writes. “If we extended them to the coexistence of each of Canada’s legal traditions, we would also acknowledge that the common law and civil law should not be the only reference points in the country’s legal lexicon. Those with less formal power in society should also have a role in deciding how law should be interpreted and should apply to them” (121). Decision-making between legal traditions “should not presume a hierarchy that places Indigenous legal traditions lower in force or authority,” and each tradition should be brought into contact with the other on an equal basis (121-22). 

Such equality would help to prevent the erosion of Indigenous law, which has two negative effects: it “destabilizes normative order within Indigenous communities,” causing confusion and disrespect for “the law,” which creates “a significant challenge for peace, order, and development” (122), and it “diminishes Canada as a nation,” weakening its culture of law and causing it to lose the wisdom those legal traditions “could provide about how to organize relationships and reduce disputes,” while also causing us to miss “the underlying justice of Canada’s creation and development” (122). “The recognition of Indigenous legal traditions could connect Aboriginal and other Canadians to land in ways not possible under the current administration of common or civil law,” Borrows continues, reminding his readers that there was no discovery by the Crown that could justify extinguishing Indigenous legal jurisdiction, and no conquest that could have extinguished Indigenous peoples’ “jurisdictional rights over their own affairs” (122). “The Crown’s claims of effective occupation and adverse possession over lands where Indigenous peoples still reside are not very persuasive doctrines when they are used to undercut pre-existing and contemporary Indigenous laws,” he writes (122-23). However, “[l]egal certainty is strengthened when Canadian law is built on doctrines that acknowledge the flaws of these other justifications”:

The recognition of Indigenous legal traditions places Canadian law on a firmer foundation because Indigenous law provides ways to allocate or alienate or share land within their communities and with others in ways that are more consistent with the demands of justice. When land and power is transferred in harmony with Indigenous law, all people of Canada can claim a relationship to land and jurisdiction that rests on consent and mutual respect. (123)

Even in parts of Canada where treaties establish a ground for sharing land, the flaws in the ways those treaties were negotiated makes them, at least potentially, doubtful ways to justify the presence of Settlers or their governments here, as Sheldon Krasowski’s book No Surrender: The Land Remains Indigenous, suggests; if Borrows is right, and recognition of Indigenous law would lead to relationships of consent and mutual respect, then such recognition is essential.

Borrows notes that Canada has recognized the “reserved rights” doctrine, which “implies that anything not agreed to or expressed in the treaty remains vested in Indigenous populations, and cannot be claimed by the non-Indigenous governments as a general right that flows from the treaty negotiations,” in relation to Indigenous title (123). “The ‘reserved rights’ doctrine highlights the inherent nature of Aboriginal rights,” he states. “It builds upon the fact that when the Europeans arrived in North America, the Indians were already here, living in organized societies and occupying their lands as they had done for centuries” (123). This, according to Borrows, is the reason treaties are so important to Canada’s legal framework:

They can draw the common law, civil law, and Indigenous legal traditions together. Treaties recognize Indigenous peoples’ right to make decisions in accordance with their laws to share or give land to others. They recognize non-Indigenous peoples’ right to do the same thing, to share and give land in accordance with their legal traditions. Such mutuality should make it obvious that Indigenous peoples are not the only beneficiaries under the treaties. Non-Indigenous peoples also have treaty rights. Both groups are recipients of the promises made in the negotiation process. The mutuality of the treaties is often overlooked because Indigenous peoples are those most often striving to assert their rights. Yet there are a number of potential inheritors of treaty rights other than Indigenous nations, bands, and individuals. The British and Canadian Crown certainly received many benefits from the treaties. Their citizens were able to peacefully settle and develop most parts of the country by consent. In those parts of the country where there are no treaties (such as British Columbia, Quebec, Labrador, and parts of the North), Indigenous consent is now being negotiated. Where there are treaties, Canadians can trace many of their rights in this country to the consent that was granted to the Crown by Indigenous peoples in the treaty process. (123-24)

“Yet the notion that non-Indigenous peoples might trace certain rights to land or governance through the treaties is, for many, still an emergent concept,” Borrows continues. “Because people have not been exposed to Indigenous understandings of law or the treaties, they are only now beginning to consider them in this light” (124). Unlike countries without treaties, where people struggle “to create better regimes without the advantage of shared ideological roots of intercultural understanding and association,” in Canada that understanding and association was, in many places, “created through multi-juridical meetings that mediated differences throughout most of the land,” and Canada continues to be created in this way through contemporary treaty-making (124). Treaties, Borrows states, are living examples of multi-juridicalism, and “Canadians are fortunate to have agreements that provide mutually recognized conventions for the resolution of disputes between peoples that draw on different legal traditions. New policies or norms need not be invented” (124). The treaties “provide a common starting point of poly-juridical connectivity,” he continues. “Much of the world is not founded on such high principles” (124). Canada has much to learn from its bijuridical experience, and “[r]ecognizing and affirming Canada’s legal structures within a framework of multi-juridical diversity is one more step in this learning” (124).

In his fifth chapter, “Recognizing a Multi-Juridical Legal Culture,” Borrows begins by suggesting that “[t]he operation of multiple legal systems is a Canadian tradition, though its full diversity has been largely hidden from the country’s common law and civil law communities” (125). Nevertheless, the country “has strong aspirations towards tolerance and respect for difference,” as shown by, among other things, our federal system of government and the Charter of Rights and Freedoms (125). “Canada’s founders rejected the idea of forced cultural coercion, at least as it related to the most critical challenges they encountered: French and English, juridical, cultural, religious, and linguistic differences,” Borrows writes. “Although this framework was not broadly extended to Indigenous peoples”—well, it wasn’t extended to them at all, was it?—“it is not too late to do so” (125). Borrows suggests that Canada’s constitutional history suggests analogies to this objective. The British North America Act, 1867 was designed to allow “French and English speakers to continue their unique political, religious, cultural, linguistic, and legal traditions within provincial frameworks,” and it enshrined minority educational rights as well (126). While the BNA Act was “an incomplete governance instrument,” it was “nevertheless sufficient to unite disparate peoples” (126). These “historically deep, constitutionally protected rights and traditions should not be ignored,” he continues, because their aim is “to foster unity amidst difference” (126). They have “great potential for application to Indigenous issues”:

Each of Canada’s legal traditions must remain strong to ensure peace, order, and good government. Canadians must therefore strive to develop and extend societal cohesion through common allegiance to Confederation’s historical and legal framework. At the same time, differences in traditions must not be sacrificed to overreaching attempts to enforce civic solidarity. The country’s constitutional goal is to reconcile unity and diversity, to recognize continued interdependence even in the face of a measured independence. Canada’ democracy is fundamentally connected to these substantive goals. (126-27)

For Borrows, the benefits of these constitutional arrangements “should be more widely available to Indigenous peoples” (127).

Borrows’s optimism about Canada isn’t naive. He knows that many people disagree with his argument. Some advocate for enforcing “a greater commonality” and conformity through various means. Others who are “concerned about difference” see the answer in assimilation. “Of course, the question of who should assimilate whom is not easily answered,” he notes. “The normal assumption is that minorities should be assimilated,” but “it is hard to justify why one group should be entitled to dominate and absorb others on solely numeric terms” (127) The melting pot metaphor might be attractive to some, but it “underestimates the inappropriate pressures this can place on individual identities and national development. This has particularly been the case with Indigenous peoples” (127). He notes that assimilation of Indigenous peoples “has been an astonishing failure,” and that “assimilation is the most hated and resisted policy for Indigenous peoples” (127). “Nothing will turn Indigenous peoples from the Canadian state with greater force than policies designed to assimilate them,” he states (127-28). To push strongly for such assimilative policies, he warns, could destroy the country, as the history of secessionist movements in Quebec suggests (128). He further points out that section 35(1) of the 1982 Constitution Act “safeguards Indigenous peoples as one of the country’s founding political and legal groups. The embedding of Indigenous diversity in Canada’s central legal texts provides a sound justification for recognizing their legal traditions” (129). Of course that recognition isn’t keeping the RCMP away from the Wet’suwet’en First Nation, or allowing them to determine whether pipelines will be built across their territory. It’s more than possible to be too sunny about Canada’s laws and Indigenous peoples.

Borrows suggests that recognizing Indigenous legal traditions “alongside other legal orders has a historic precedent in this land,” and that prior to the arrival of Europeans, “a vibrant legal pluralism sometimes developed amongst First Nations,” with treaties, intermarriages, contracts of trade and commerce, and mutual recognition as “legal arrangements that contributed to extended periods of peace and helped to restrain recourse to war when conflict broke out” (129). “When Europeans and others came to North America, they found themselves in this complex socio-legal landscape,” he continues, and although it has not always been acknowledged, “contemporary Canadian law concerning Indigenous peoples partially originates in, and is extracted from, these legal systems” (129). Diplomacy and treaties were important; Borrows gives the 1701 Dish With One Spoon treaty between the Haudenosaunee and Anishinabek as an example. That agreement, which shared resources around the Great Lakes, is still remembered by the two nations today (130). Intermarriage and adoption were important, as were games, contests, dances, and feasts (130-31). Boundaries and neutral zones could be developed to separate nations from each other (131). Blockades could prevent other groups from gaining access to a particular locale (131). “These tools were embedded in a wider framework of law,” Borrows states. “Indigenous peoples’ occupation of areas to which they maintain or claim rights is not merely a modern phenomenon” (131). Finally, war was a last resort, although conflicts tended to be localized and “based on Indigenous justice systems that required a life for a life” (131). The disastrous war between the Haudenosaunee and the Wendat in the 1640s, which led to “the near extermination and brutal dispersion of the Wendat peoples from their traditional territories in southern Ontario,” demonstrate “the extreme consequences of armed confrontation if other forms of conflict resolution break down and the application of law breaks down” (131-32). According to Borrows, “Indigenous peoples have long sought ways to avoid such calamities, thereby placing Indigenous law and diplomacy at the heart of much Indigenous experience with others in North America”(132).

When non-Indigenous peoples arrived in North America, “they encountered peoples with well-developed laws and duties related to land and resource use,” and they adapted themselves to Indigenous protocols, using “many of the same institutions with which Indigenous peoples were familiar: councils, feasts, ceremonies, orations, discussion, treaties, intermarriage, adoption, games, contests, dances, spiritual sharing, boundaries, buffer zones, occupations, and war” (132). Treaties were made between the newcomers and Indigenous peoples, using Indigenous legal traditions (132). “If their rights were not recognized, Indigenous peoples would take direct action and re-occupy areas recently claimed by others,” and they were “willing to enforce their rights to land if necessary” through war (132). The war between Indigenous peoples and Britain that began in June 1763 led to the British recognition of and agreement to preserve Indigenous land and resources through the Royal Proclamation of 1763 and the subsequent Treaty of Niagara of 1764. “The British approach committed the Crown to entering into treaties with Indigenous peoples if their lands were to be occupied by non-Aboriginal people,” Borrows writes. “Indigenous peoples’ actions and perspectives were important to this policy formulation. They persuaded the government to peacefully settle conflicts over land and resources in North America through treaties. The Crown was bound to secure Indigenous consent before occupying Aboriginal lands” (133). Since then, hundreds of treaties and agreements have been made in Canada, “with many of them drawing on some form of Indigenous legal tradition, even in later eras when they enjoyed less political influence” (133). The continuation of treaty rights and obligations today “entrenches the continued existence of Indigenous legal traditions in Canada” (134).

Treaties are not the only way that Indigenous law influenced, and continue to influence, Canada’s Constitution. “From the 1500s onward, a number of European individuals submitted themselves to Indigenous legal orders,” Borrows states: fur traders, for instance (134). In 1867, “the Quebec Superior Court affirmed the existence of Cree law on the prairies and recognized it as part of the common law,” applying a legal doctrine known as “the doctrine of continuity” (134-35). This doctrine recognized “the continuity of Aboriginal customs, laws, and traditions upon the Crown’s assertion of sovereignty,” and the Crown recognized “Aboriginal rights to occupy and use their traditional territories and to conduct civil affairs” (135). Over time, though, “these diverse forms of reconciliation and resistance at least partially founded on Indigenous legal traditions were attenuated,” and interactions between Indigenous and non-Indigenous peoples “became more dependent on non-Aboriginal cultural and legal norms” as non-Indigenous people became stronger and more numerous (135). However, “Indigenous peoples never completely surrendered their approaches to law and conflict resolution,” and Settlers “have never achieved absolute dominance over Indigenous peoples in Canada in these matters” (135). “Indigenous peoples’ agency continues to exist,” Borrows writes. “As such, Indigenous legal perspectives and traditions continue to shape Canadian law by being part of it” (135). Supreme Court decisions—Haida Nation v. British Columbia, R. v. Mitchell—include “strong endorsements of the need to determine, recognize, and respect Aboriginal rights in Canada, and they reveal that Indigenous law is important to this venture” (135-36). For Borrows, “there are sound arguments that Indigenous rights, obligations, and conflict resolution procedures are compatible with the Crown’s assertion of sovereignty” (136). Since their rights were not surrendered by treaties or by “clear and plain government legislation,” Indigenous peoples “believe that their laws coexist with common law and civil law traditions, and that they are a strong part of Canada’s constitutional inheritance” (136).

As the next chapter indicates, there are both challenges and opportunities in recognizing Indigenous law. “One of the first challenges to the recognition and development of Indigenous legal traditions is the fact that law is never as tidy as we would wish,” Borrows writes (137). The law is always open to interpretation (137). While Borrows argues that the law “can accommodate Indigenous legal traditions,” there are contrary arguments (138). It is not possible, he writes, 

to definitively declare what “the law” is or should be in the relationship between Canada’s legal traditions. Such answers will always be open for question and reinterpretation; that is the nature of legal reasoning. Therefore, in arguing for a greater respect between traditions, I must at the same moment be open to the view that Indigenous legal traditions do not or should not exist in Canada. (138)

For that reason, “this chapter will consider reasons why we should not recognize Indigenous legal traditions within Canadian law today, although it will be my conclusion that each of these objections can be overcome,” Borrows writes (138). What he’s doing, then, in this chapter is introducing what Gerald Graff and Cathy Birkenstein call a “naysayer” into his text: an opposing argument that will, in the end, strengthen his own position.

The first naysayer is intelligibility: “some people might question the intelligibility of Indigenous law. They may argue that Indigenous legal traditions are not precise enough to affect an individual’s conduct. They may contend that it is not possible to foresee the consequences of inappropriate behaviour” (138-39). For Borrows, this objection needs to be taken seriously. “Since some Indigenous laws are framed as stories, songs, practices, and customs, they may be criticized as being too unintelligible as a prescription of conduct,” and “too-open-ended to function as legal standards” (139). Borrows suggests that there are several approaches to this question. Some Indigenous laws may have to be reframed to make them clearer and easier to understand (139). However, any legal system struggles with intelligibility, and Indigenous legal systems are not an exception to that rule. “There is nothing inherently unintelligible within Indigenous laws but there may be a need to articulate, translate, or reinterpret some of them in particular instances to reduce their vagueness or imprecision,” Borrows suggests (139). In addition, since law is a cultural phenomenon, “what may be unintelligible to those inexperienced with Indigenous culture may be quite intelligible to those familiar with it” (140). For that reason anyone evaluating “the meaning, relevance, and weight of Aboriginal legal traditions must therefore appreciate the potential cultural differences in the implicit meanings behind explicit messages if they are going to draw appropriate inferences and conclusions” (140). “Third, Indigenous peoples might also approach the issue of intelligibility by questioning the detail necessary for a formulation to be ‘prescribed by law,’” a term that suggests that sometimes the law should be left somewhat vague as an aid to flexibility in interpretation (140). I’m not sure I understand this point—I’m not a lawyer—but it seems to suggest that courts need flexibility and discretion in interpreting the law, an issue that the Supreme Court of Canada has dealt with. “If broader Canadian law can describe ‘debatable’ legal standards as intelligible, Indigenous legal traditions should surely be given the same courtesy,” Borrows writes. “Care must be taken to ensure that Indigenous legal traditions are not held to a higher standard of intelligibility than non-Indigenous law” (142).

Intelligibility is related to accessibility, Borrows’s second naysayer. “Laws are accessible when people know where to find them, how to learn them, and who to speak to if they have questions about them,” he states. “If too many people have difficulty understanding Indigenous laws because they are not readily available, steps should be taken to make them more accessible” (142). Indigenous people would benefit from this increased accessibility, as would other Canadians, who “would see that these laws can be learned and applied” and “would develop a greater appreciation for the nature and scope of these laws” (142). Colonialism has alienated Indigenous people “from both broader Canadian society and from their own Indigenous communities,” which “makes questions of accessibility very real” (143). “Such disconnections may make it difficult for an Indigenous legal authority to clearly communicate laws to its citizens,” a problem that “may lead to a lack of information amongst those to whom such laws are meant to apply” (143). “At the same time, accessing Indigenous law is an issue for other Canadians, too,” he suggests. “If the overall population is not able to easily learn about Indigenous law, it will be more difficult for our different legal traditions to coexist” (143). Therefore, increasing the accessibility of Indigenous law is necessary. Indigenous law “could be codified and made available in written form,” and “decisions of Indigenous councils, courts, and traditional gatherings could be broadcast or publicized in a regularized and systematic way” (143). “[E]nhancing both the written and oral distribution of Indigenous laws would make them easier to learn,” but “the way these laws are communicated must be balanced and calibrated to the type of law being described or interpreted” (143). Not all Indigenous laws should be written down; doing so could sometimes deprive those laws of their force, and “[i]n such instances, oral foundations must be maintained” (143). When oral traditions are written down, “it is important that steps be taken to ensure that their flexibility is not lost to preserve greater context” (144). That’s not an impossibility; “Quebec’s Civil Code has maintained an openness and flexibility despite its written nature,” and flexibility can be secured “by making laws for med through oral tradition paramount over written laws,” as in the Labrador Inuit Land Claim Agreement (144). “Indigenous peoples might also decide to make their laws more accessible by creating broader learning opportunities,” something that could be done “through both general and detailed legal education programs which could take many forms: workshops, apprenticeships, classroom learning, written textbooks, public performances, and so on” (144). Law schools could offer courses on Indigenous law, and new law schools focusing on Indigenous law could be created (144). “Indigenous laws also become more accessible when the government recognizes Indigenous law-making powers through treaties,” Borrows suggests, citing the creation of Nunavut as an example (147). 

There are dangers in making Indigenous law more accessible, though: “Indigenous peoples have many reasons to distrust the sharing of their ideas with greater numbers of people. Past attempts to communicate their laws to others have generated misunderstandings in some non-Indigenous communities” (148). Those misunderstandings have led to a loss of trust and to Indigenous people being placed in a defensive position, leading “to an inordinate amount of time being spent clarifying or justifying their legal position,” which can be exhausting (148). Indigenous knowledge has also been (and continues to be) appropriated and stolen, Borrows continues, and “[s]ome Indigenous peoples will be very hesitant to share their legal knowledge with people not of their community because of the potential for its inappropriate use. . . . People will not want to share their legal traditions if they believe that any exchange will only lead to appropriation, criticism, and extinguishment” (148-49). In addition, “certain Indigenous legal knowledge can form part of a tradition that should be considered intellectual property,” and such knowledge “cannot be shared without following elaborate protocols that may purposely limit accessibility” (149). “In making Indigenous law more accessible, close attention must be paid to the specific cultural contexts in which it operates, and solutions must be crafted which skilfully address those contexts,” Borrows writes. “Accessibility must be extended in accordance with a respect for the intellectual property of each Indigenous legal tradition” (149).

Equality is Borrows’s third naysayer. “Some might view the recognition of Indigenous legal traditions as creating inappropriate special treatment for Aboriginal people within Canada’s legal system,” he writes (150). In addition, “Indigenous peoples themselves have suffered in precisely such a manner because of attempts to segregate and separate them from the rest of Canada’s population through the Indian Act and other such laws” (150). However, “the Supreme Court of Canada has acknowledged that the recognition of difference can be a mechanism to achieve equality,” Borrows continues. “Differential treatment does not always signal a denial of the equal benefit and protection of the law” (151). It can be argued that difference does not necessarily lead to “concerns about equality, fairness, certainty, and so on” (151). But Borrows is not arguing that recognizing Indigenous legal traditions alongside common law and civil law means a separate legal system for Indigenous peoples. Instead, 

[t]he recognition of Indigenous legal traditions alongside common law and common law traditions should be regarded as part of the  same system. There is plenty of room for these traditions to interact within one framework It is not segregation to more tightly associate Indigenous legal traditions with Canada’s other tradition. A prominent idea in this book is that the failure to recognize the existence of Indigenous legal traditions as a part of Canadian law is in itself discriminatory. Indigenous peoples have constantly adjusted their laws to take into account the common law or civil law, but Canadian judges and lawmakers have rarely done the same when it comes to Indigenous legal traditions. With one side resisting adjustment to their legal relationships, and thus preventing further harmonization, it might be said that the resistant party is the one who is engaging in discrimination. Equality is not well served by denying Indigenous societies equal participation in the ongoing formulation of Canada’s legal system. (153)

Connecting our legal traditions “does not imply absolute convergence and fusion” between them, and “Indigenous legal traditions should no more be subject to forced assimilation than the common law is to the civil law. Each can operate in conjunction with the other, and be harmonized to some degree” (153). 

Also, as a federal system, different provinces and territories have different legal rules, some of which contradict each other; this situation does not lead to inequality. “The law in Canada unites uniformity with diversity,” Borrows writes. “It is appropriate to want the country’s laws (including Indigenous legal traditions) to be interconnected, balanced, and harmonized, and it is inappropriate to regard the law as undifferentiated and insist that exactly the same legal principles should apply to everyone in the same way when to do so would foment inequality” (153). “It is important to judge the recognition and affirmation of Indigenous legal principles by equality standards,” Borrows concludes. “However, it is just as important that equality not be interpreted in a manner which is contrary to Canada’s Charter of Rights and Freedoms as well as international human rights principles” (155). A wider acceptance of “differential Indigenous legal traditions and their existence within a singular framework” would actually promote equality (155). “As long as we do not create distinctions that have as their purpose or effect the idea or practice that Indigenous peoples are inferior or superior to other Canadians, equality need not be sacrificed in our law to recognize Indigenous legal traditions,” he states (155).

Borrows’s fourth naysayer is applicability. To whom would Indigenous laws apply? Where would they apply? “One of the major issues surrounding applicability is that people could be obligated to follow laws over which they have no influence,” which would be undemocratic (155). “Connecting the applicability of law with its administration is one of the reasons for this book,” Borrows argues. “For too long, Indigenous peoples have been expected to follow laws over which they had little influence. As Indigenous legal traditions gain greater recognition throughout the country, Canada’s democratic character is enhanced because Indigenous peoples will secure greater input over the common law and civil law’s reach into their lives” (156). However, while Indigenous peoples are gaining greater participation and recognition, it’s important that “other Canadians . . . not be unduly prejudiced by this development,” and that “the application of Indigenous law does not sever other Canadians[’] democratic relationship to the laws which govern their behaviour” (156). For that reason, “Indigenous peoples must be responsive to broader democratic values,” and “[t]hose who administer the common law and civil law should likewise judge the reach of their laws into Indigenous peoples’ lives by similar standards” (156). Every citizen of a reserve, then, would be obliged to obey Indigenous laws. The question of people without Indian status living on reserves is more complicated. Borrows writes, “it is my contention that First Nations should terminate definitions of citizenship that are based on the Indian Act. It is contrary to Indigenous constitutional values. Citizenship shold be extended more broadly” (157). He argues that First Nations “should not deny people citizenship if they are willing to abide by First Nations citizenship laws and be fully participating members of our communities. This could enable many more people to become dual citizens of a First Nation and of Canada” (157). He quotes the Royal Commission on Aboriginal Peoples: “Aboriginal people are not racial groups; they are organic political and cultural entities” (qtd. 157). “Since Indigenous peoples have historic rules for adopting others into community, they could build upon these principles to grant people citizenship in the present day,” he continues. “The modernization and extension of citizenship to people form all parts of the world is a strong basis upon which to build the applicability of our laws” (158). He notes that “the recent Dogrib and Innu treaties recognize Indigenous peoples’ authority to make their own citizenship decisions, and thus significantly depart from the Indian Act” (158). The Tlicho Constitution states that citizenship is the purview of their government and that the Tlicho assembly can establish criteria for citizenship. Such laws “make room for others who are not defined as ‘Indian’ by the federal government” (158).

“Indigenous groups should therefore loudly and clearly assert that they are not seeking race-based laws,” Borrows continues. “This would help to overcome most problems of applicability of Indigenous legal traditions to those who are permanently living within Indigenous communities” (159). However, non-citizens living on reserves who have no interest in becoming First Nations citizens would still have to abide by that nation’s laws, the way residents of one province have to abide by the laws of another province to which they may travel (159-60). Moreover, applying Indigenous laws to non-Indigenous reserve residents “does not mean non-citizens would lack influence over the recognition of laws,” because “[t]here will be a pervasive persistence of Canada’s other legal traditions in their influence over Indigenous law no matter what we do,” because of “the colonial nature of Canada’s history,” which will remain “even as we try to decolonize our constitutional framework” (160). Borrows hopes that common law and civil law will be strengthened through the adoption of Indigenous legal traditions: “This interdependence should be the nature of legal discourse in a multi-juridical country. In fact, many Indigenous peoples will demand that protections developed through the common law and civil law’s approach to regulation and dispute resolution be integrated into Indigenous law’s application” (160). He hopes that non-Indigenous people do the same thing, “and insist that protections developed from Indigenous law’s insights be embedded within their laws” (160). The challenge, he suggests, “is to ensure that connections between the traditions are positive and constructive within Indigenous communities, rather than negative and destructive as they have been in the past” (160).

If Parliament accepted the scope of Indigenous law on reserves, greater democratic authority would be accorded to the application of such law to Canadian citizens who happen to be on reserves or other recognized Indigenous spaces (160). “This could be done through a constitutional amendment, a national treaty, or a Parliamentary act or statement of policy from the government of the day,” he suggests. “If Canada’s democratically elected officials were to acknowledge the scope of Indigenous law-making authority on reserves, this would ensure that Canadians had a representative voice in the application of First Nations law to non-citizens” (160-61). In addition, “First Nations could also provide non-citizens of surrounding municipalities and provinces opportunities to comment on the development of their laws as they are being drafted,” and formalized mechanisms for such mutual consultations could be developed (161). Policing agreements could ensure that people from one jurisdiction could be detained in another if suspected of criminal activity (161). 

For Borrows, “Indigenous laws are best administered within Canada’s constitutional framework on a territorial basis, giving strict heed to its broader democratic basis. On this principle, I would suggest that First Nations citizens and other people who reside on or visit the reserve should be obligated to follow the laws formulated for the reserve” (162). At the same time, “Indigenous peoples could continue to have provincial or federal law apply on their reserves in accordance with currently recognized rules under section 91(24) of the Constitution Act, or section 88 of the Indian Act, which makes all provincial laws or general application extend to Indians” (162). Some First Nations might opt not to develop criminal courts, for instance, due to a lack of capacity or resources (162).

Would Indigenous laws apply to Indigenous people living off reserve? “There are a few issues to sort out in answering this question,” Borrows states. Reserves were taken from traditional territories without consent, “through the blunt force of colonial law” (163). In other cases, as with the Métis and Inuit, no lands were set aside for them (except for Métis settlements in Alberta). “Thus, the severing of Indigenous peoples from their traditional territories without making provision for the extent of prior Indigenous legal relationships on them is something we are still trying to resolve,” he writes. “Indigenous territories must be significantly expanded to address the injustice of past losses at the hands of a voracious colonial state” (163). For that reason, “Indigenous laws must also be used to enlarge the spaces within which Indigenous law operates. We should concede that there is much work ahead to more fully address the bounds in which Indigenous peoples would have recognized jurisdiction in applying their law off reserve” (163). However, he suggests that off reserve, provincial or federal laws “should create the main obligations for Indigenous people and other Canadians, though these obligations will hopefully be influenced by Indigenous legal traditions” (163-64). This position is consistent with his argument that laws are applicable within territories “to ensure the facilitation of a more fully democratic framework in Canada’s legal system” (164). However, this argument does not foreclose the possibility of mutual interaction between legal systems. “For example, Indigenous laws should have direct application off reserve in those cases related to the exercise of Aboriginal or treaty rights that spill over into provincial or federal spheres,” he argues. “Furthermore, Indigenous laws should have an indirect and varying influence off reserve consistent with Canada’s multi-juridical nature, just as the common law and civil law should influence laws on reserve” (164). This approach “attempts to reinforce the territorial nature of law’s application within Canada’s constitutional framework” while it “recognizes the interpenetrating nature of Canada’s legal traditions” (164). For Borrows, “[t]his is the nature of multi-juridicalism” (164). “It is my belief that this approach most appropriately reconciles Canada’s legal traditions, maintains a strong culture of certainty in securing law and order, and enhances the democratic relationship of citizens with their legal system,” he concludes (164-65).

Borrows’s final naysayer is legitimacy, a “catch-all category [that] addresses broader sociopolitical difficulties people might have in accepting Indigenous law” (165). This includes “psychological and emotional objections to recognizing Indigenous legal traditions that must be addressed if Indigenous law is going to be more broadly received” (165). He cites an article by Jennifer Nedelsky called “Embodied Diversity,” in which Nedelsky argues that judgement is formed through intellectual and emotional processes working together (165). “Thus, in being attentive to how people might feel about the ideas developed in this book, readers might want to identify whether they have strong negative or positive feelings that are not easily connected to logical argumentation,” he continues:

The identification of such feelings might reveal further issues that should appropriately defeat or support this book’s thesis. Emotion can be a powerfully positive force if it leads us to identify lucid, cogent, rational arguments concerning a given course of action. I welcome the identification of such issues to the extent that they are based on fair and balanced argumentation. On the other hand, if our feelings cannot find a root or connection to intellectually persuasive justifications for denying or accepting the existence of Indigenous legal traditions, it may be we should harness such emotions in favour of a different approach. (165-66)

Borrows suggests that identifying “some of the negative feelings people have expressed concerning the recognition and growth of Indigenous legal traditions” would be helpful (166):

Some people may fear for their safety if Indigenous peoples exercise greater lawmaking power. They understand that Indigenous people are over-represented in the country’s jails and that Indigenous communities sometimes experience higher levels of interpersonal violence. They may worry that such violence would spill over into other communities if Indigenous peoples are unable to properly administer their law. Both Indigenous people and other Canadians are likely to express this concern. (166)

Others fear that recognizing Indigenous law will cause division and strife. “Some Canadians might feel Indigenous peoples will be entitled to something they are not if Indigenous law grows stronger,” Borrows writes, noting that such feelings “could generate irritation, fear, or bitterness towards Indigenous law” (166). Other negative feelings, including greed, apprehension, discomfort, anxiety, envy, or “paternalistic affection” might cause people—and I think he primarily means Settlers here—to reject the recognition of Indigenous law. “Any strategy to more widely recognize Indigenous law must address these emotional reactions,” he suggests (166).

Others might worry “about the legitimacy of working with Canadian legal systems when these structures have been so disrespectful of Indigenous traditions and ignored or denied their force. They may feel that Indigenous peoples cannot overcome oppression by working with the very instruments that help to create oppression” (167). Borrows cites Audre Lord’s suggestion that “you cannot use the master’s tools to take down the master’s house” (167). However, Borrows contends that few Indigenous peoples want to secede from Canada. That would mean losing parts of their traditional territories, he suggests, as well as “separating themselves from their neighbours, when trade, intermarriage, and environmental independence characterize many relationships” (167). First Nations usually talk about “creating better relations,” not “severing their relations with others” (167). “It may even be contrary to many Indigenous legal systems to take this approach, given the emphasis on peacemaking, harmony, and reconciliation found in many Indigenous laws,” he states (167). In any case, Borrows has never had much use for the “master’s tools” metaphor: “A hammer, saw, and backhoe are instruments of creation and destruction. It is possible to use these tools to undo or renovate the thing that has been created” (167). Moreover, “if we judge reform or political change against the standard of perfection, then any action we take will always fall short of this unrealistic ideal” (167). Nevertheless, “there will be some people who regard the interaction of Indigenous law with other laws as illegitimate,” and this position “may lead them to seek or support Indigenous peoples’ complete separation from Canada’s legal system because they feel that it would not be right to work with a country that has hurt Indigenous people so deeply” (167).

Borrows’s position is a pragmatic one, he states. He acknowledges that recognition of Indigenous law within Canadian law won’t solve every problem. Some of the objections he has listed “all too clearly foreshadow problems that will occur if we do not act in accordance with our highest traditions” (168). Indigenous legal systems could be used “to disrupt our country’s aspirations for unity,” he suggests (168). Some Indigenous legal systems “are and will be badly administered,” which could hurt those subject to them or who live near their jurisdiction, “just as Indigenous peoples have been harmed by Canadian law” (168). Indigenous peoples could gain influence and power at the expense of other groups or individuals, which would cause distress, even if it is just (168). Miscarriages of justice will happen in Indigenous systems of law, generating doubts about the wisdom of his ideas, because “[n]o society is immune from error, miscalculation, vice, corruption, and distortion” (168). “This is the reason all societies, including Indigenous societies, have need of law”:

Law should be one of the tools we use to deal with issues of secession, maladministration, and injustice. Even though grave injustices periodically arise within Canada’s other legal systems, similar injustices may be regarded more severely if Indigenous people create them. It is difficult to prevent Indigenous peoples from being held to a higher standard when they seek to administer their own affairs. (168)

We have seen such higher standards applied to First Nations elected councils, and the same racist attitudes that motivate them would almost certainly appear in relation to the recognition of First Nations legal systems as well.

However, Borrows argues that we should not give these objections “wider scope or weight than they deserve. While our eyes should be wide open to the difficulties that lie before us, we should also be clear about the consequences of not opening our legal system to reflect Indigenous participation, norms, and values” (168). “The recognition of Indigenous legal traditions could extend benefits to Indigenous peoples which others already enjoy, and simultaneously provide greater benefits to all Canadians,” he argues (168). “[W]e must at least ensure we do not base future decisions about Indigenous legal traditions on unexamined feelings that have questionable roots,” he continues. “The Supreme Court of Canada has noted that racism against Aboriginal peoples is a part of the Canadian experience” (169). But, for Borrows, there is a more formidable challenge: “potential feelings of resentment about the injustices” Indigenous peoples “have endured in Canada. Deep and bitter feelings of anger, distrust, and betrayal reside in some Indigenous communities because of the centuries-long denial of their rights and traditions” (169). For that reason, 

it would be quite understandable if Indigenous peoples rejected this book’s ideas. Canada’s suppression of Indigenous rights and traditions has gone on for so long that Indigenous peoples might wonder how this book’s arguments could possibly turn the tide. These views might be especially strong if Canada’s past treatment of Indigenous law is denied as being real or relevant in moving forward in our relationships. (169)

The potential objections of Settlers to recognizing Indigenous law, which would be based in racism, are less important to Borrows than the potential objections of Indigenous peoples, which are based in bitter experience. The trauma Indigenous peoples have experienced, he notes, which includes “the suppression of Aboriginal institutions of government, the denial of land, the forced taking of children, the criminalization of economic pursuits, and the negation of the rights of religious freedom, association, due process, and equality” (170), has never “been sufficiently accounted for in our legal system” (170). (Since this book was published prior to the release of the Truth and Reconciliation Commission of Canada’s final report, I wonder if Borrows’s position on this issue has changed.) 

In addition, “[t]he Canadian state continues to benefit from Indigenous losses through their possession of Indigenous lands and the exercise of virtually unconstrained legal power over them,” Borrows continues:

The failure to acknowledge and remedy this situation is perhaps the underlying cause of conflict between Indigenous peoples and the Crown in this country. This conflict goes to the heart of why Indigenous legal traditions are not more widely recognized by courts, Parliament, and other Canadians. As such, this conflict reveals the central issue that lies at the foundation of our legal system: what is the meaning and significance of the past as it related to the present configuration of law in Canada today, and who gets to determine the answer to this question in our official legal narratives? (170)

Canadian courts and legislatures control the interpretation of the past through official legal discourse, Borrows points out, and because those institutions “test Indigenous history and law against common law standards of proof,” they also “measure Indigenous societies against non-Aboriginal sociopolitical norms and economic priorities,” in the process ignoring or diminishing “Indigenous legal perspectives” and not giving “sufficient space for the operation of Indigenous legal traditions” (170). In this way, Canadian courts and legislatures have placed themselves in a position where they can control the country’s past—and therefore, Borrows argues, the future as well. This situation is likely to lead to continued conflict unless Indigenous peoples “are not given some measure of control over interpretations of the past” (170). “Since a contributing cause of our problems is the past denial of Indigenous legal traditions, this has prevented them from controlling their own interpretations of how the future should unfold,” he states. “This approach has injured Indigenous societies, and Canada as an entire country. The acknowledgement and remedy for that harm has great significance for how we reconfigure the relationship between our legal traditions in Canada today” (170-71).

Borrows goes on to apply trauma theory (using the work of Judith Herman) to this situation. Her argument that denial or forgetfulness is a typical response by perpetrators to the trauma experienced by victims, he suggests, “helps explain why Indigenous grievances regarding Canadian law can rise to the point of conflict” (172):

There is little awareness in Canada’s official history of the lived experience of trauma by Indigenous peoples and how this continues to consume present generations. There is a tendency to take the side of the Canadian government when viewing Indigenous claims, much as it is often easier to take the side of the perpetrator in other situations of abuse. (172)

“Indigenous peoples often fact situations in which they are told the thing they complain of never happened,” Borrows continues: they never owned the land they are claiming, or are exaggerating or lying, or that they have brought their grievances on themselves, and that in any case “it is time to forget the past and move on,” because “past injustices cannot be cured today” (172-73). “These reactions can cause Indigenous peoples to feel marginalized within Canadian society and turn away from constructive engagement with the state,” he suggests, and this situation might cause them to reject his book’s thesis (173). 

What is required, Borrows continues, drawing on Herman’s work, “is a social context that affirms and protects the victim, and reconnects him or her with healthy relationships in the present. Three things are required: action, engagement, and remembering” (173). Such a response could be facilitated “through the recognition and affirmation of Indigenous legal traditions,” because that recognition and affirmation “reconnects Indigenous peoples and other Canadians”:

These interactions have the potential to involve more people in a process of active engagement that acknowledges Indigenous experiences. This can create more respectful spaces where Indigenous peoples can tell their stories and extract meaning from them. In these circumstances, their grievances can be taken more seriously and not shuffled off to places where they have no control over their outcomes. Most Indigenous peoples do not feel it is safe to go to the courts as they are currently constituted. Their testimony and history are subject to discrediting cross-examinations and harsh burdens of proof. Their legal traditions do not form standards for judgment in relation to their testimonies. Furthermore, Indigenous peoples do not find peace or security when raising their issues in the political sphere. They are outnumbered in the political process, and thus votes alone do not carry their concerns into action. In fact, some political parties are regarded as displaying outright hostility to any acknowledgement of Indigenous peoples’ legal rights in Canada. (173)

Indigenous people, Borrows continues, tend to feel the same way about the media, unions, churches, and other social organizations. This situation must change, he writes, “if Indigenous peoples are going to more strongly connect with Canada and overcome acute trauma,” and such a change would require “a sociopolitical context that is more supportive of Indigenous peoples’ perspectives” (173-74). “This is a major reason why I believe we should embrace multi-juridicalism in Canada,” he states. “Indigenous peoples should be able to apply their laws within their own communities and have them influence broader Canadian legal analysis” (174). A wider acceptance of Indigenous legal traditions could set us on a road towards peace (174).

In the chapter’s conclusion, Borrows notes that appeals to reason are unlikely to change anything, and that emotional and psychological aspects of human relationships will affect how his thesis is accepted despite the rationality of his arguments (174). “It is deeply important to our peace and order that we attend to these broader issues in a positive manner, with a constructive approach, devoted to problem-solving and reconciliation,” he writes (174). He recounts an insight a former student offered him. She had interviewed for a clerk’s position at the Supreme Court of Canada, and during that process, she told the interviewing judges that she wanted to work in the field of Aboriginal law (174-75). Each of the judges asked her, “‘Is there any hope?’” (175). “The student reported that she felt the question was heartfelt, honest, sincere, and searching,” Borrows states:

She thought it was posed in the most professional manner and with the utmost respect and dignity. She said she felt their goodness and understood more deeply the decency and honour that these people brought to their office. And yet, at an advanced and highly accomplished stage in their legal careers, an important question for them remained unanswered in relation to Indigenous peoples’ relationship with the Canadian state. (175)

The purpose of this book is “to give reasons why I believe there is hope in our law as it relates to Indigenous peoples,” Borrows continues. “While hope is only one part of the answer to finding our way out of the mess we are in, it is often the part we pay the least attention to in our formal legal circles. This must change” (175). He acknowledges that there are many issues to be resolved if Indigenous and non-Indigenous peoples “are to enjoy the full benefits that a vibrant multi-juridicalism can offer Canadians,” but at the same time, he believes that Canadians “have the means to overcome these challenges if we draw upon one another’s creativity and goodwill in addressing honest questions and in acknowledging our deepest fears. If we can take this path in further refining our legal relationships, there is hope—not just for INdigenous peoples, but for other Canadians as well” (175-76).

Chapter Seven turns to “The Role of Governments and Courts in Entrenching Indigenous Legal Traditions” (177). “How can governments and courts best facilitate the development and extension of Indigenous legal traditions in Canada?” Borrows asks (177). He notes that this book has answered that question in different ways: through “the fuller recognition of treaties (Chapter 1); through an understanding of the various sources of Indigenous law (Chapters 2 and 3); through an understanding of the culturally contingent nature of the authority of the country’s other legal traditions (Chapters 4 and 5); and by explaining that “Indigenous legal traditions could be more fully entrenched if we recognized their intelligibility, enhanced their accessibility, and understood that their implementation does not undermine but strengthens equality rights in our country” (177-78). Chapter 7, he continues, “focuses on the specific role of governments and courts in strengthening legal traditions. These bodies are important in implementing Indigenous law in a Canadian context” (178). Governments formulate and administer laws, but courts interpret and enforce them, and when they function properly, both are essential to communicating about role of law in society (178). However, when governments and courts are unresponsive, when they “do not reflect a people’s obligations or facilitate their participation,” the results can be “[s]ociopolitical chaos and disorder” (178). “With few exceptions, Indigenous peoples in Canada experience these difficulties,” Borrows writes. “They are not permitted to sufficiently control decisions within their own sphere. They rarely see their legal traditions reflected with sufficient strength across the country. Thus, they do not feel the same sense of obligation citizens usually experience when ruled by laws which strengthen social bonds” (178). The result is that they “do not enjoy the degree of peace, order, and security potentially available to them,” and this must change: “Indigenous and other Canadian governments and courts can become a catalyst for constructive change if they appropriately build upon their highest traditions” (178).

If the power of Indigenous legal traditions “is acknowledged by official state and community institutions,” they will “more positively permeate our societies” (178). For that reason, Chapter 7 “examines steps that can be followed by governments and courts to implement Indigenous law,” although Borrows cautions that his focus on “formal state institutions should not cause us to discount the role of non-governmental organizations, families, or individuals in creating, interpreting, and enforcing Indigenous law” (178). “There is a tremendous danger that official state organs can overwhelm other institutions of civil society if they are regarded as exclusive legal agents in Canada,” Borrows contends. “This would be a mistake and would undermine the vitality of Indigenous law” (178-79). In fact, governments should be regarded with suspicion given their ongoing history of dispossessing Indigenous peoples (179). The “broad dispersal and decentralized force” of Indigenous law is one of the reasons it has “survived colonialism’s onslaught”; legal traditions that were “intensely concentrated in highly formal offices” would have been easier to erase (179). “Indigenous law is often at its strongest when Elders, families, house systems, and other bodies have communicated their traditions in more diffuse and centralized ways,” Borrows continues. “This experience teaches us that we must be careful that Indigenous law’s formal implementation by governents and courts does not undercut Indigenous civil society” (179). For this reason, “governments and courts will likely work best for Indigenous peoples when they are strong but limited in their powers and jurisdiction” (179). “At some level, state-like institutions must be restrained because they tend to usurp vital functions that are often best performed by Elders, families, clans, and other bodies within Indigenous societies,” he contends. “Governments and courts should not be trusted with more power than is necessary to create a sphere of recognition and enforcement for underlying community values” (179). Governments and courts, then, “are supplementary and not at the centre of the resurgence of Indigenous law” (179). 

Nor should “academic works or other commentaries . . . displace the essential role of individuals, kin, clan, families, and community in making the most important judgments about how Indigenous law is lived” (179-80). Borrows acknowledges that his book is about how and why Indigenous legal traditions should be affirmed, but he argues that “Indigenous peoples will be poorly served if works like this become the standard against which Indigenous legal traditions are ultimately measured. People trained in multi-juridicalism should be somewhat distant from the daily identification, creation, interpretation, and enforcement of Indigenous law in Canada” (180). Lawyers are “poor substitutes for drawing peace and order from the living relationships and teachings found in families and communities,” and the presence of lawyers “may foster an unhealthy reliance on so-called legal experts” which could “fatally frustrate grass-roots community organization and family activism that should essentially drive regulation and dispute resolution within Indigenous communities” (180).

Nevertheless, Borrows suggests that governments, courts, lawyers and academics “can play an important ancillary role in supporting individuals, families, and communities in the preservation and implementation of Indigenous legal traditions” (180). “Because of the strongly hierarchical nature of Canada’s other legal traditions, Indigenous laws could be overlooked and undervalued if they are not championed by more centralized institutions within Aboriginal communities and Canadian society as a whole,” he states:

Indigenous legal traditions will not receive the respect they deserve if governments, courts, lawyers, political scientists, and law professors fail to more fully articulate their place in our country. Effective governance and judicial decision-making thus requires that formal institutions work alongside Indigenous individuals and families to recreate a supportive context for Indigenous law’s implementation. A strong yet limited role for governments, courts, and lawyers can help ensure that Indigenous legal traditions do not get lost in their interactions with the common law and civil law. Governments, courts, and lawyers should therefore help create the conditions for the more explicit implementation of Indigenous legal traditions and community values. Such action could unburden families and communities, thus enabling them to plan their lives according to their own priorities, freed from the Indian Act and other colonial fetters. (180-81)

In the remainder of this chapter, Borrows writes, he will suggest that “both Indigenous and other Canadian governments could enact legislation or undertake similar official acts that recognize and harmonize Indigenous legal traditions with the common law and the civil law,” and that “Indigenous courts, along with federal and provincial courts, could better implement Indigenous law by developing appropriate interpretive mechanisms and ensuring that at least some of those who are appointed to the bench have a knowledge of or receptivity to Indigenous legal traditions” (181). He advocates that Parliament pass “Indigenous law recognition legislation to facilitate the rule of law’s development in Canada,” that that such legislation be developed along with Indigenous peoples (181).

The last point—the need for what Borrows calls “Recognition Acts” to be passed by Indigenous communities—is the subject of the chapter’s next section (181). “Indigenous peoples do not require formal recognition to possess and exercise law,” he states, and the point of Recognition Acts “would be to once more prominently bring Indigenous law to a society’s attention” (181). “Formal recognition would remind Indigenous peoples of the Indigenous source of their rights and obligations,” he continues. “It would also make these facts more widely known to the various constituencies Indigenous governments regularly serve” (181). Formal recognition would identify Indigenous law “as a primary source of regulation, decision-making, and dispute-resolution powers,” and that identification “might even take the form of a constitution for some communities” (181). Indigenous communities might decide to participate in Recognition Acts or create their own constitutions “because they want other governments to understand the basis of their law-making authority,” Borrows continues. “In this light, such acknowledgement could demonstrate to municipal, provincial, and national governments that an Indigenous community has occupied a field of law-making power appropriate to its jurisdiction” (181-82). In addition, “the passage of Recognition Acts by Indigenous communities could provide a basis for subsequently harmonizing their laws with other legal traditions in Canada. There are many valid reasons why Indigenous peoples might want to pass laws recognizing the source and scope of their laws in their territories and beyond” (182). In addition, Indigenous governments might want to include within their Recognition Acts a statement affirming the civil law and/or common law’s “scope of authority” within their territories (182). “As part of this declaration, communities might decide to recognize the Crown’s role as a source for other Canadians to whom they relate,” he suggests. “Some Indigenous governments may even take the step of acknowledging that they have certain obligations to the Crown within their territories and that these obligations have a relationship to their own laws” (182). 

Such recognition would be a challenge to Indigenous communities “who have struggled under the weight of colonial oppression,” Borrows acknowledges, and therefore “most communities would feel appropriately justified in choosing to withhold recognition of Canada’s other legal traditions until the Crown takes steps to be more respectful of Indigenous law” (182). At the same time, though, some communities “might appropriately seize the initiative and demonstrate to Canadian governments the generosity of spirit that Recognition Acts could encompass. Indigenous peoples could take the path of justice in their relations with others even in the face of the injustice they continue to experience” (182). Such recognition could be “a generosity of heart that recognizes ‘all our relations,’ a concept which undergirds many Indigenous legal values” (182-83). Borrows notes that those relations now include Settlers (183). “Embracing broader aspects of recognition would demonstrate the interdependence of Canada’s legal traditions,” and it would also “perhaps alleviate fears that the recognition of Indigenous law would threaten other laws that aspire to create peace, order, and good government in the land” (183). It would also enable Indigenous peoples “to explicitly articulate their views about the sources of legal order in Canada,” and that “could be important to subsequent Crown recognition of Indigenous legal traditions,” which “could generate constructive alternatives, building Canada on an even firmer legal foundation” (183). This kind of recognition “would also be a legally accurate gesture” that “could help facilitate a culture of order and respect for people’s entitlements and obligations no matter what the source in their lands might be” (183). In that way, it could “kick start the process of expanding the possibilities for the more formal interaction of laws in Canada” (183). Borrows’s use of the word “recognition” leaves me wondering what Glen Coulthard, whose book Red Skins, White Masks has the subtitle Rejecting the Colonial Politics of Recognition, would have to say about his argument. I wonder if Coulthard addresses Borrows directly, or if he means something different by the word “recognition.” There’s only one way to know, of course: take Coulthard’s book off my bookshelf and read it.

In any case, Borrows contends that Recognition Acts would protect Indigenous law and enable it to meet current community values and needs (184-85). “The most effective types of recognition will abandon traditions that do not agree with contemporary mores,” he writes. “Recognition will be the strongest when it accords with international human rights law and is the contemporary product of the self-determining choice of Indigenous communities” (185). Like other legal traditions, Indigenous law “will be the subject of continual revision in order to ensure compatibility with contemporary communities and consistency with human rights values,” a viewpoint that, he suggests, “Indigenous law Recognition Acts should explicitly reference” (185).

The next section of the chapter focuses on the need for Canadian governments to recognize formally Indigenous law. “In taking such steps, they should be guided by their own constitutional obligations to Indigenous peoples,” he writes, referring to Section 35(1) of the Constitution Act, 1982, which has “significant implications for the Crown’s adknowledgment of Indigenous legal traditions,” because as well as recognizing Aboriginal rights, it also affirms the Crown’s obligations as well (185-86). Borrows’s interpretation of Section 35(1) suggests that it “means that whenever Aboriginal ‘rights’ are invoked, governmental ‘duties’ are summoned,” a reading that “places the Crown more squarely in the picture if Aboriginal rights incorporate Indigenous law” and “appropriately shifts the focus from Aboriginal peoples to the Crown in a more significant way in working out the section’s content, and meaning” (186). He notes that the decision in R. v. Sparrow acknowledged limitations to the Crown’s power, and “[t]hese limitations must be prescribed by law and be consistent with Canada’s legal traditions” (186). Such constraints “are consistent with Canada’s democratic traditions,” because “[t]he Crown’s subjection to the rule of law is at the centre of the nation’s political values” (186). Limits on Crown sovereignty go back to the Magna Carta of 1215 and the Glorious Revolution of 1688, and “[c]onstraints on Crown actions under section 35(1) should be seen as flowing from this same tradition. The recognition of Indigenous law as potentially imposing limitations on the Crown could be viewed as a human rights triumph” (187). Constitutional limitations on the Crown’s power increase freedom, and “section 35(1) falls within this tradition” (187).

“In dealing with Indigenous peoples, Parliament must therefore organize itself in accordance with its constitutional principles to meet its obligations,” Borrows writes. “It would be a serious violation of the country’s highest law if the federal government did not order itself in this way. Governmental actions that do not accord with the Constitution violate our most fundamental tenets” (187-88). Recognizing and affirming Aboriginal rights and properly exercising federal responsibilities towards Indigenous peoples is not optional, he continues (188). Federal, provincial, and territorial governments “must organize themselves in relationship to Indigenous peoples to abide by these higher precepts,” which “will more fully structure our society in accordance with its constitutional order” (188). “Regrettably, this is an area in which Canada has seriously failed to abide by its highest laws,” Borrows states (188). However, “it would not be a completely groundbreaking stretch for governments to pass legislation recognizing the relationship between Canada’s Constitution and Indigenous legal traditions,” he continues, noting that a 1995 policy statement recognized the inherent right of self-government (188). Since self-government involves Indigenous law, this statement alluded to Indigenous legal traditions. Borrows concludes “that Indigenous legal traditions could be considered as existing Aboriginal rights in Canada, recognized and affirmed by section 35(1) of the Constitution Act, 1982. This shows that Canada’s recent past policy holds some promise for the recognition of Indigenous legal traditions, if it could be made more explicit, that is, by the inclusion of specific written provisions” (189). Parliament could pass legislation translating that policy statement into “a legally enforceable legislative instrument”: 

Such law could make explicit the relationship of Indigenous law to governance in Canada. In this vein, Parliament could affirm that Indigenous governance includes the right of Indigenous peoples to implement their unique laws in order to continually strengthen their cultures, identities, traditions, languages, and institutions and thereby nurture their special relationships with lands and resources. (189)

This approach would build on the conclusions of the Royal Commission on Aboriginal Peoples (189). “The point is to draft legislation that accords with Canada’s constitutional obligations, that implements Indigenous peoples’ democratic aspirations, and ensures that those who may be vulnerable within Indigenous societies are appropriately served and protected by Indigenous legal traditions as well as by other Canadian laws,” Borrows contends. “To further protect the political integrity of Indigenous communities, Indigenous law recognition legislation should create a framework for Indigenous communities within which to choose whether they want to accept the recognition offered by Parliament” (190). That would ensure that Indigenous peoples are not worse off after such recognition had been enacted (190). Such legislation would not be accepted by communities if it were to offload responsibilities onto Indigenous communities without “an adequate quid pro quo,” nor if it were regarded as an attempt by the government to do anything beyond formally acknowledging “inherent Indigenous legal and governmental powers” (190-91). “The rights recognized must be also regarded as vesting in the proper Indigenous authorities, which is a matter for Indigenous peoples to choose,” he continues (191).

International law contains norms “that recognize the connection between Indigenous governance and the law,” Borrows notes, including the UN Declaration on the Rights of Indigenous Peoples, which “is clear about this relationship and could provide direction to those developing Recognition Legislation” (191-92). Other international legal instruments acknowledge the connection between Indigenous governance and legal traditions, including the International Labour Organization’s 1989 Convention 169 and the Organization of American States’ 1997 Proposed Declaration on the Rights of Indigenous Peoples (192-95). “When international human rights law is added to Canada’s constitutional provisions, a strong argument can be made that the legal basis for the recognition of Indigenous legal traditions already exists,” Borrows argues (195). He suggests that the Final Report of the Royal Commission on Aboriginal Peoples is particularly important in this regard (195-96), although of course that was only a report and not legislation. “Indigenous peoples’ desire for good governance would be facilitated if Indigenous law could structure peoples’ internal community relations, their relations with the Canadian state, as well as Canada’s own internal structures,” he contends, and “[t]he Royal Commission’s observations are an important source of support for these aspirations” (196). Legislation could be built upon those recommendations, and “Aboriginal self-government could be implemented as an inherent right” (196). That form of recognition “would imply that Indigenous legal traditions could be more explicitly proclaimed and practised if the ideas found in this book were more widely accepted” (196). 

The Royal Commission on Aboriginal peoples also found “that Indigenous peoples already possessed governance powers in Canada because it found that such powers were never extinguished” (196). That conclusion was supported by Calder v. A.G. (B.C.), in which the court found that Indigenous powers of self-organization pre-existed the arrival of Europeans and “were not voluntarily surrendered when the Crown asserted its own sovereignty in Canada” (196). Indigenous peoples continue to live in organized societies, “governed by ancient and contemporary customs, laws, and traditions that give meaning and purpose to their lives despite the extensive regulation of these powers through instruments such as the Indian Act” (197). However, as R. v. Sparrow points, out, “[t]he regulation of Indigenous law-making power does not extinguish it” (197). Other Supreme Court of Canada decisions affirm the existence of Indigenous rights, including governance powers (197). “An Indigenous society’s legal traditions are inseparable from its governance powers,” Borrows argues. “The ability of Indigenous peoples to express their legal traditions through governance does not depend for its existence on any grant of authority form the executive or legislative bodies in Canada” (197). And, of course, had the Supreme Court of Canada not affirmed the existence of such governance rights, it would be incorrect—a position that Borrows, as a lawyer, doesn’t seem to hold and, frankly, doesn’t have to hold because of decisions that do affirm the existence of those rights. Finally, he states that Indigenous peoples “hold rights under their legal systems,” and an important one of those rights “for the health and vitality of their legal orders is their inherent governmental power” (198). “Canada’s multi-juridical status implies the existence of a multi-jurisdictional political order,” he continues, and Section 35(1) “can facilitate the connection, growth, and development between Indigenous governance and Indigenous legal traditions. The recognition of Indigenous governance within Canada’s Constitution is important because it can help heal the troubled relationship that Indigenous peoples have with the country” (198). Parliament could enact legislation acknowledging that fact (198). In fact, Parliament ought to enact such legislation.

However, Borrows cautions that section 35(1) “must not bear all the weight of reform in constructing recognition legislation,” because “Aboriginal rights as articulated by the courts when interpreting section 35 of the Constitution Act, 1982 can only go so far in building a harmonious nation state” (198). For Borrows, it’s necessary to mobilize broader sociopolitical forces, because “[e]ven within the constitutional sphere, section 35(1) is necessary, but not sufficient, to accomplish legal reform. Other opportunities for reform might be missed, particularly in regard to federalism, if too much reliance is placed on section 35” (198-99). That’s because, according to Borrows, “[s]ection 35 has not been sufficiently directed towards the larger project of nation-building” (199). “To put it bluntly, sections 25 and 35 have become focused on a few specific practices that the courts have decided were integral to Aboriginal peoples prior to the Europeans’ arrival in North America, and those related rights that have not already been extinguished,” he writes. “Furthermore, from an Aboriginal perspective, the provisions in section 35 are increasingly used to justify government infringements of Aboriginal rights” (199). A reliance on section 35(1) cannot be allowed “to sidetrack all Canadians from the more fundamental work to be done to harmonize Indigenous peoples’ relationships with their neighbours” (199). “Canada needs to move beyond narrow interpretations of the constitution relative to Indigenous peoples,” he continues, and Parliament should take a leadership role in this process (199): 

Section 35(1) as currently interpreted by the courts does not replicate jurisdictional powers for Aboriginal peoples as found in sections 91 and 92 of the Constitution Act, 1867. Aboriginal peoples do not have an Attorney General to protect their rights. There has been too little constitutional discussion of democracy, self-determination, and the role of Indigenous law as they relate to Aboriginal peoples in Canada. (199)

I was more than a little surprised by these comments. How could the BNA Act give Indigenous peoples greater jurisdictional powers than the 1982 Constitution, given that it allowed for the Indian Act and other legal horrors? 

The principles that underlie the ability of provinces to make their own laws “could be applied to Indigenous peoples if Parliament deferred to them in the realm of law and government by passing recognition legislation” (200). Canada’s federal system is “only partially complete in relation to Aboriginal peoples,” and Canada could fill in the caps of our Constitution by distributing appropriate powers to Indigenous governments (200). Borrows argues that “we need to further develop the implications underlying Canada’s constitutional framework in relation to Indigenous peoples. It is consistent with the country’s constitutional ideals to enhance a flexible political federalism that included recognition and cooperation between Indigenous peoples’ legal systems and those of other governments” (200). Canada’s federalism might be more fully developed “if we followed a process similar to that prescribed by section 37 of the Constitution Act, 1982, through which Canada’s first ministers and Aboriginal representatives convened to fill in the meaning of section 35, particularly relative to Indigenous law and governance” (201). That process failed, Borrows concedes, but “it at least put the definition of Aboriginal rights at the centre of political debate” (201). Since then, “the courts have been much too prominent in defining Aboriginal rights, although they have ultimately also provided little guidance on this issue as well” (201). “It is time that Canada’s elected leaders and Indigenous peoples’ chosen representatives did the necessary work in meeting to work out the contours of mutual recognition,” he concludes (201). He’s probably right, but ten years after this book was published, there appears to be little interest in the process he is describing—even with a Prime Minister who claims to be sympathetic to Indigenous peoples.

“After recognition legislation is enacted, other legislative mechanisms should be created to harmonize Canada’s other legal traditions with Indigenous laws,” Borrows writes. “Harmony is  value often associated with Indigenous societies. It can be a positive goal to Indigenous-Crown relations as long as it is not coercively applied” (201). Harmony was evoked by the Royal Commission on Aboriginal Peoples, which argued that “‘Canada is a test case for a grand notion—the notion that dissimilar peoples can share lands, resources, power and dreams while respecting and sustaining their differences’” (qtd. 201). But justice must accompany harmony. “Justice can be facilitated and peace thereby promoted through harmonization legislation,” Borrows continues. “If properly applied, harmonization mechanisms could ease communication between Canada’s other legal traditions and reduce conflict or inconsistencies between them” (201-02). Such mechanisms “could address questions about the relationship of Indigenous law to federal statutes and create interpretive principles to ensure Indigenous laws are read in a wide, liberal, and generous manner,” as well as provide ways to make sure that the acknowledgement of those laws “does not inappropriately disrupt settled interests under Canada’s other legal traditions,” and that “Canada’s other legal traditions do not inappropriately unsettle interests developed under Indigenous laws” (202). There are examples of such harmonization mechanisms, such as the 2001 Federal-Law-Civil Law harmonization Act (FLCLHA); Borrows argues that something similar “could be created for Indigenous legal traditions” (202). “Harmonization legislation could ensure that federal law provisions are brought into line with existing Indigenous law provisions acknowledged in the recognition process,” he suggests, thereby promoting “the equivalence of civil law, common law, and Indigenous law as equally authoritative sources of law for property and civil rights in Canada” (203). “Harmonization legislation could be developed jointly with Aboriginal governments and organizations,” Borrows posits, and he goes on to outline the principles that could be contained by the legislation’s preamble (203). There’s no reason such legislation couldn’t be developed, he argues, since “Indigenous legal traditions deserve the same respect that is given to civil law” (204). Other countries have harmonized their Indigenous legal traditions with their non-Indigenous legal traditions, and their examples “could provide appropriate mechanisms to secure Indigenous legal traditions while simultaneously protecting human rights” (204-05). 

“The harmonization process would also have to eventually deal with issues of protocol between Indigenous peoples and the Crown,” Borrows writes. “The act should also address the power imbalance that Indigenous peoples would encounter relative to the common law and civil law in the harmonization process” (205). For instance, it could direct decision-makers “to give Indigenous law a large, liberal, and generous interpretation, following the canons of construction developed by courts in dealing with treaties and statutes concerning Indians” (205). It would also have to come up with a process to address issues such as “the role of Elders in harmonization,” “concerns about appropriation and cultural property,” “the impact of colonialism on Indigenous laws,” “the problem of gender stereotyping, discrimination, or imbalance in Canadian and Indigenous laws,” and “the potential harm traditional laws and Canadian laws could cause for the vulnerable within Indigenous communities” (205). It is essential, he reiterates, 

that each of Canada’s legal traditions embraces contemporary human rights concerns, including those with a colonial origin that have negatively affected Indigenous peoples. It is also important that human rights concerns do not become an excuse to further colonize Indigenous societies. Human rights can be protected within Indigenous and other Canadian communities without further extending the discriminatory practices and attitudes of earlier imperial policies. This is best done by Indigenous peoples and non-Indigenous Canadians reformulating their traditions in a manner that respectfully integrates traditional and contemporary normative values, and also protects and harmonizes their laws with international human rights standards. (205)

“The more comprehensive recognition of Indigenous legal traditions in Canada through recognition and harmonization legislation could give Canadians significant expertise in working with and assisting other countries that have mixed legal systems (civil, common, and Indigenous),” Borrows continues. “This expertise in multi-juridicalism would allow Canadians to play an even greater role on the world stage” (205-06). It would also “provide an even greater source of answers to pressing questions faced by Canadians,” and their legislatures would better be able “to reflect the normative values of an increasingly diverse population” (206).

In the chapter’s next section, Borrows turns to the role of the courts in recognizing and harmonizing Indigenous law. Along with governments, “Indigenous dispute resolution bodies and Canadian courts could also act to facilitate healthier interactions,” he writes. “Because courts often stand on a society’s front lines in creating and interpreting law, they are important institutions in the recognition and harmonization of Indigenous law with other legal traditions” (206). Courts are special kinds of public assemblies, because they consider “arguments about the resolution of disputes in accordance with a formalized set of procedures” (206). “Each of Canada’s legal traditions convenes special assemblies to resolve disputes in different ways,” he notes (206). Common law assemblies run on an adversarial model, presenting a clash of opinions in order to establish the “truth” of a matter, with judges acting as neutral arbiters between the disputing parties (206). “As such, they can be at the mercy of parties in the gathering and receipt of evidence which forms the factual matrix of a dispute,” he suggests (206). In civil law, “courts are usually inquisitorial,” which means that “judges take a more active role in supervising the compilation of evidence and in testing that evidence before the parties to the dispute” (206-07). Indigenous dispute-resolution assemblies, in contrast, can take various forms, “neither wholly adversarial nor inquisitorial” (207). “There are as many different dispute resolution procedures and styles as there are Indigenous groups,” he states, and therefore, “Indigenous dispute resolution is in some ways distinct from the common law and civil law systems” (207). Nevertheless, Indigenous societies have dispute-resolution mechanisms, including more recently developed models “that have drawn on adversarial or inquisitorial models of the common law or civil law in resolving disputes” (207). 

“There is much that can be done by Indigenous peoples to further develop mechanisms for communication between their laws and the laws of others,” Borrows contends:

Indigenous governments could further encourage and empower dispute resolution institutions to take steps down this path. Indigenous dispute resolution bodies could exercise primary legal jurisdiction over matters that are both internal to their communities and crucial to their relationship with other peoples. They could articulate principles about how these matters relate to the common law and civil law. Indigenous governments and courts could affirm their powers in the manner most consistent with their diverse legal traditions. (207)

All of this is important, he suggests, “because Indigenous law must embrace a community’s deeper normative values” (207). It must also be seen to be “a fair and effective force in facilitating peace and order within Indigenous communities, so that it will be easier to convince others to eventually harmonize Indigenous and non-Indigenous laws” (208). “If Indigenous laws are not fair,” he states, “they should be challenged and changed,” but if they are fair, “they must be recognized and connected to our deepest legal structures” (208). Indigenous dispute resolution bodies might not be created by the Constitution, but they enjoy its protection, and therefore they must meet standards of participation and accountability in order to be accorded the same legitimacy that common law and civil law courts have (208). “This will help facilitate the harmonization process,” he suggests (208).

“The further development of Indigenous dispute resolution is necessary because Canada’s other legal traditions do not sufficiently engage Indigenous values and thus do not appropriately encourage Indigenous participation,” Borrows continues. “This problem would be corrected by Indigenous adjudicative institutions applying Indigenous principles” (208). The adjudicative institutions that currently exist “too often frustrate the participation of Indigenous people since those structures falsely rest on public institutions such as the Indian Act that are constitutionally questionable,” and this result “erodes Indigenous peoples’ confidence in the rule of law in Canada” (208). The Supreme Court has said that it will not tolerate “a legal vacuum” in any part of the country, but “[w]hen Indigenous laws are not recognized and harmonized, Indigenous peoples experience conditions that resemble a legal vacuum”: chaos exists because legal systems are ineffectual (208). “As a result, there is a mounting crisis in the rule of law within Indigenous communities,” because the Canadian law in force there “rests on shaky foundations” because it pays little attention to the values and participation of the people living in those communities (208). “If Indigenous peoples could start to see themselves and their normative values reflected in how they conduct their day-to-day affairs,” he contends, “some of the legal challenges within Indigenous communities would diminish” (208-09). In addition, “Indigenous governance would enjoy greater accountability and legitimacy if Indigenous peoples’ own dispute resolution bodies were properly recognized as being able to resolve their disputes” (209). “The power to hold their own members accountable for their actions could be considered an Aboriginal right that was integral to Indigenous communities prior to the arrival of Europeans,” and because that right was never extinguished, it “can be exercised in a contemporary form” (209). Indigenous peoples have the right, under section 35(1), “to sit in judgment of their own citizens,” and “[t]hey should be able to make them answerable for violations of rights and liable for failures to exercise appropriate responsibility and accountability. Indigenous dispute resolution bodies are in the best position to articulate legal principles that will have the deepest meaning and legitimacy in their communities” (209). I remember that, 10 years ago, the Harper government was all in a lather over this particular issue; perhaps they should have seen Borrows’s argument as a way to address it—although, of course, they probably had other motives rather than finding a resolution.

The approach Borrows is advocating “would be consistent with Indigenous legal values as well as with more general principles of Canadian constitutional law” (209). “Judging Indigenous peoples by norms that flow from within their legal traditions as well by norms of Canadian law is essential to the facilitation of normative order,” he writes. “It would create a regime in which legality and legitimacy would coincide and which would bolster the respect and effectiveness of regimes of accountability. The failure to permit Indigenous peoples to be governed and judged by principles that flow from their own normative prescriptions” has not provided them with stability, order, or predictability (209). Tribal courts exist in the United States, and they “have played an important role in allowing Indigenous peoples to live by their own laws” (209); that example demonstrates “what can happen when these traditions are given juridical space by a nation state” (210). “Thus, the development of Indigenous courts in Canada can lead to broader articulation of Indigenous laws, thereby increasing their intelligibility and accessibility,” he suggests (210), using a summary of Navajo legal traditions in contracts, government, property law, and family law as an example (210-13). That example “shows that the recognition of Indigenous institutions of dispute resolution can even have a place in broader Canadian legal developments and reform. Indigenous peoples can develop their own legal traditions and also participate in Canada’s other institutions” as legislators, parliamentarians, or judges, “because aspects of their legal participation are particular to their Indigenous citizenship (213-14). After all, Quebeckers are not prevented from participating in Canada because that province’s dispute resolution procedures are based on the Civil Code (214). “Similarly, the existence of Indigenous dispute resolution bodies should not preclude the acceptance and application of Indigenous legal principles in broader matters,” Borrows continues. “Indigenous law can influence the development of the common law and civil law and be an important source of guidance for other peoples” (214). 

“Canadian courts could also play an important role in recognizing and harmonizing Indigenous legal traditions,” Borrows writes (215). They could “further develop jurisprudence within section 35(1),” interpret recognition and harmonization legislation “if such instruments were passed by Parliament and Indigenous communities,” and “engage in the essential work of declaring the common law’s own position in relation to Indigenous legal traditions, as drawn from their inherent jurisdiction” (215). More Indigenous judges should be appointed to the bench, he suggests, which “would help to ensure that Indigenous traditions would develop by being understood and appropriately applied on a case-by-case basis,” the way that Quebec judges appointed to the Supreme Court have helped it understand civil law (215). Indigenous judges should be appointed to the Supreme Court, as well as other levels in the judicial system (215-16). “The most important reason for appointing people to the bench who have knowledge of Indigenous legal traditions is that they bring new ideas to their task in the context of a settled continuity of Canada’s other legal traditions,” Borrows argues:

A change of ideas when exercising judgment will bring broader reform than almost any other initiative. It is simply not enough to have Indigenous issues, individuals, and institutions become an integral part of the law. Until Indigenous ideas (ideologies) are part of the intellectual exchange, Canadians are just rearranging deck chairs on the Titanic as they deal with the ongoing problems of Indigenous peoples and the law. Nothing in the law changes if “reform” simply means adding a few more issues, individuals, and institutional variations to the mix. Profound legal change requires that questions be examined from perspectives that at least partially emerge from sources outside Western legal discourses and that are motivated by considerations from Indigenous normative orders. (217)

“Standards for judgement must not only flow from the common law but also from Indigenous legal values,” he continues. “Precedent should not be confined to dusty old law books; it should also be open to the authority of Indigenous teachings and law-ways” (217). In other words, “[t]he criteria for measuring what is considered just, fair, and equitable should not solely be drawn from non-Indigenous sources”:

Indigenous codes of conduct need to be part of the law’s formal and informal expressions. Indigenous codes of conduct need to be part of the law’s formal and informal expressions. Indigenous traditions should guide how Indigenous people and other Canadians answer the problems they collectively encounter. Indigenous laws are necessary to meet challenges that lie in Canada’s future. These traditions should be simultaneously compared, contrasted, combined with and distinguished from critical and constructive norms in the civl law and common law traditions. (218)

Judges who have been trained in Indigenous law could perform this role, which is one reason it is so critically important to appoint Indigenous people to the bench. “Their ideas could facilitate a unique exchange with Canada’s other legal traditions,” he concludes. “The exploration of new ideas may lead to answers not immediately apparent under conventional legal reasoning” (218).

Borrows’s next chapter discusses the development of Indigenous legal institutions. He states that “Indigenous peoples should not be forced to accept and integrate into institutions that are designed to conform to the current structures of the colonial state” (219). Instead, “Indigenous peoples must transform their relationships with Canada by practising their traditions throughout their territories, beyond the reserve and other colonial boundaries. Ancient teachings can be regenerated in a contemporary context if they are applied to all sites of struggle encountered by Indigenous peoples within their lives” (219). That doesn’t mean, Borrows continues, that tradition should be “frozen in a past tense or within a reserve-only framework,” but that “an Indigenous logic must infuse the personal and political choices made by Indigenous peoples in all their relations. This includes those relationships within the Canadian state that have an adverse effect on Indigenous legal traditions” (219). He cites the recommendation of the Royal Commission on Aboriginal Peoples that stated “Indigenous peoples should reconfigure their affairs within all levels of the Canadian state. This includes challenging public institutions that contribute to Indigenous peoples’ domination by not recognizing their identity, culture, and need for thoroughgoing participation throughout public life” (219). Unless Indigenous peoples participate in government policy making in relation to Indigenous peoples, those policies will be illegitimate and unjust (220). For Borrows, “the Canadian state must be more fully built upon Indigenous foundations,” and Canada “changes for the better when Indigenous values, perspectives, and legal traditions become a more prominent part of our constitutional fabric” (220). 

That’s what his book has argued up to this point, he states. However, “[t]his chapter takes this central insight one step further,” Borrows continues:

It suggests that Indigenous participation has to expand not only in relationship to the larger structures of the Canadian state, but it must also be facilitated in more localized legal affairs. In particular, law societies and law schools should reflect Indigenous participation because they are important sites in conserving and developing Canada’s legal traditions. Such institutions have important responsibilities in promoting high standards of legal education and conduct and these duties should extend to Indigenous legal traditions. (220)

Participation in these institutions, he continues, “could allow Indigenous peoples to see their laws more widely reflected in public life” (220). However, “[b]roader recognition of Indigenous law would also facilitate greater autonomy within Indigenous communities”:

If law societies and law schools were more attentive to Indigenous law, Indigenous peoples would have greater incentives to develop and expand their own traditions. This could add further weight to the push felt by Indigenous communities from their own members to more boldly articulate their laws. The creation of a healthy institutional space into which Indigenous law could flow might lead to more focused efforts within Indigenous communities to explicitly reference their own laws when making decisions. (220-21)

More respect for Indigenous law would give Indigenous peoples greater confidence in their interactions with other Canadians, leading to a growth of trust because they would know “that assimilation did not characterize their work with Canadian institutions” (221). That increased confidence is essential, “because Indigenous peoples will not give up wither deepest beliefs in order to work with others” (221). Policies of assimilation have failed, and recognizing and developing Indigenous law could provide “an important bulwark” against assimilation (221). To accomplish the goals of recognition and developing Indigenous law, “Indigenous peoples cold use their own legal norms and work with law societies and law schools as a way to guide their interactions beyond their reserves and settlements to they can reoccupy their traditional territories and bring them into harmony with other people living in Canada” (221).

First, regarding law societies, they need to “support the further extension of Indigenous law” by implementing “fair and efficient procedures for acknowledging Indigenous legal practitioners’ jurisdictional space for training, licencing, capacity, conduct, professional competence, complaints, and continuing education” (221). They would need to carry out those duties without taking responsibilities away from Indigenous legal bodies; instead, “they should search for ways to recognize and affirm Indigenous legal traditions in a manner that expands but does not compromise their central missions” (221). This change would require law societies to reform themselves, since “most do not have this experience in dealing with Indigenous legal traditions,” and so “they will have to make some significant changes to ensure they appropriately deal with the unique circumstances presented by Indigenous law” (222). Building this expertise “would have to be done with significant Indigenous participation”; there would be no other way to accomplish this task (222). There would be opposition to this proposal, from those who “will worry that law societies will not be sufficiently independent from legislatures to create a legal profession that is truly at arm’s-length from colonial governments,” as well as those who would worry about the difficulty of changing “the common law or civil law bias of law societies” (223). “Some may even regard the recognition of Indigenous law as a challenge to their monopoly over legal services in the provinces,” which would give lawyers “significant financial incentives to exclude Indigenous legal traditions as a recognized source of law” (223). However, if law societies did not move to address the existence of Indigenous legal traditions, “this would not prevent Indigenous peoples from creating their own law societies,” which would be “best organized in accordance with the legal structures and protocols that characterize their various systems” (223). Borrows came to appreciate the importance of Indigenous law societies when he was teaching in the United States, where Native American bar societies exist (223-24). “Despite the evident advantages in creating an Indigenous law society, its development may not be a priority within some communities because of the pressure to devote scarce resources to other more pressing matters,” Borrows acknowledges (225). The Indigenous Bar Association in Canada “could take on a role in the accreditation or coordination of lawyers or other practitioners who may be called on to participate in Indigenous legal systems,” he suggests (226). So could the Canadian Bar Association (227). Because these institutions are independent of government, “they could help to ensure that politics do not impede the healthy developent of the concepts discussed in this book” (228).

Other institutions in Canada that are independent of governments, such as universities, could play a role in the recognition of Indigenous legal traditions. Universities “could work with Indigenous peoples to create law schools to teach multi-juridicalism,” teaching Indigenous law alongside common law or civil law (228). Borrows acknowledges that it might be difficult “to generate the resources to establish” Indigenous law schools,” and so, in the short term, “existing law schools may be in the best position to develop multi-juridical education programs” (229). “The academic rigour and scholastic reputation of an existing law school could enhance the legitimacy of studying Indigenous law and ensure that such traditions are more widely understood,” he suggests (229-30). “Thus, building on existing practices, the day may soon arrive when a Canadian law school will develop a degree program focused specifically on Indigenous legal traditions in a contemporary setting,” perhaps drawing on McGill Law School’s civil/common law program “that integrates learning about the common law and civil law throughout its curriculum” (230-31). Another model would the the University of Victoria law school’s experience when “it conducted the Akitsiraq law school in Iqaluit, Nunavut” (231-32). Borrows goes on to outline what the program of an Indigenous law program might look like (232-37).

Borrows concludes by suggesting that “[t]here are many ways to constructively critique and respectfully change the current configuration of Canadian Confederation, in accordance with the rule of law. Indigenous peoples can work on their own, and with others, to transform their relationships by practising their laws and traditions throughout their territories” (237-38). “Canada’s rule of law is enhanced when our legal traditions are brought into authoritative conversation with one another for the purposes of applying them to resolve pressing disputes that face us as a country,” he continues. “In fact, those who work with Indigenous legal traditions may find themselves claiming that such knowledge makes them better common law or civil law lawyers in certain contexts. They may say they are more attentive to the assumptions and contrasts available within the law when they are practising in their field” (238). Such multi-juridical practitioners would “bring their insights to bear on our problems” and “be in a better position to articulate a solution that has persuasive resonance in common law, civil law, and Indigenous legal traditions. The value of challenging, understanding, and working within a multi-juridical methodology is the next chapter’s focus” (238).

Borrows begins that next chapter, “Living Law on a Living Earth: Religion, Law, and the Constitution,” by explaining that it “attempts to apply the insights found throughout this book by demonstrating what legal analysis might look like if multi-juridicalism was a moreprominent part of Canada’s Constitution” (239). The arguments of this chapter, then, “test the recognition and harmonization of Canada’s legal traditions in the context of whether Anishinabek beliefs concerning the Earth as a living being can be legally recognized and affirmed” (239). What might the answer to that question reveal “about the law’s source, cultural commitments, institutional receptiveness, and interpretive competency” (239)? “These questions explore matters that lay at the heart of Anishinabek spiritual life and at the centre of Canadian legal thought,” he writes. “Thus, this chapter further reveals where bridges and gaps, convergences, and inconsistencies exist within Canada’s constitutional order” (239). Juxtaposing Anishinabek law and “current formulations of Canadian constitutional law reveals the country’s profound legal pluralism at the same time that it highlights the law’s failure to foster broader coexistence and application” (239). In this chapter, Borrows argues “that Anishinabek and Indigenous legal traditions should stand beside the civil law and common law in order to organize and structure society’s relationships” (239). “Each tradition can provide guidance about how we should theorize, practise, and order our association with the Earth,” he continues. “It is therefore appropriate to address the Earth’s legal personality from both Indigenous and Canadian constitutional law perspectives because both operate within the territories we call home” (239). Civil law and common law have force “because Canadian legal authorities have chosen to bestow this authority upon them,” and they are “shaped by and subject to Canada’s Constitution” (240). But “Anishinabek law also has force when it accords with the earth’s biological rhythms and where individuals and communities recognize and abide by its order. This legal tradition is shaped by Anishinabek teachings regarding the Creator, observations from nature, positivistic proclamations, deliberative practices and local customs” (240). It’s “varied sources illustrate that not all legal power in Canada flows from legislation, regulation, and cases” (240). Law can have other sources of legitimacy.

Borrows also suggests that this chapter “reads a little like a lesson plan for highlighting the implications that legal pluralism might hold for Canadian constitutional law. In this respect, it builds upon the recommendations concerning Indigenous legal education in the last chapter,” while it also “highlights the significant challenge further development of multi-juridicalism presents to Canada’s constitutional order,” thereby representing self-reflexively critiquing his ideas (240). He emphasizes the fact that “law is always fright with conflicting and convergent ideas” (240). “This book is not a blueprint for Utopia; I do not believe the inclusion of Indigenous legal traditions in Canada’s legal system will lead to a future free from strife, misery, and distress,” he continues. “Conflict will always be with us,” and for that reason, 

it is important to further problematize the interaction of Canada’s legal traditions. While legal pluralism is a better way to frame our legal relationships, because Indigenous peoples at least get to participate in constructing our collective world, conflict is at least diminished under this approach by channelling it in ways that contests domination and facilitates agency. The test of this book’s thesis should not hinge on whether I have crafted a perfect solution to the problem addressed herein. Perfection is practice or theory is not my aim. I believe a more productive test of these ideas is whether they positively enhance or negatively reduce our responsibilities and freedoms in the real world. (240-41)

For that reason, this chapter sets out to think about “how Canada’s constitution could be improved if we more explicitly adopted a trans-systemic approach to legal interpretation” (241).

First, Borrows discusses Anishinabek spiritual beliefs, reminding us that he is a member of Anishinabek legal culture (241). “The Anishinabek regard Michee-Makinakong on the narrows between Lake Huron and Michigan near Lake Superior as the world’s centre, the place where the land above the water was formed” by Michabous in the Anishinabek creation story, he states (241). When the animals Michabous saved from the flood died, “the first Anishinabe arose from their corpses,” and their “identity and dodem or clan names” are taken from those ancestors” (242). “For the Anishinabek, creation of the Earth did not end with Michabous’ experience on the raft,” Borrows continues. “The Earth grows and develops or dies and decays because it is a living being subject to many of the same forces as all other living creatures. Many Anishinabek people characterize the Earth as a living entity who has thoughts and feelings, can exercise agency by making choices, and is related to humans at the deepest generative level of existence” (242). “The subject of the Earth’s personality is a profound religious, political, and legal issue,” he writes:

Since the Anishinabek consider the Earth a sentient being that helps to generate life, religion is implicated in their beliefs concerning her existence. While the Earth is considered sacred, Anishinabek do not worship the Earth as one would a Creator, but she is regarded with great awe, respect, and wonder because of her ability to live a good life and reproduce in numerous forms. Anishinabek people believe in a Creator, Kitchee Manitou, who gave form and meaning to the Earth following a vision. The first elements of Anishinabek creation stories explain how life came into being from a constellation of forces marshalled by the Creator. Later stories convey important spiritual insights by providing instruction about how the Earth must be honoured and respected. Within these teachings it the general recognition that the Earth has a soul (chejauk) that animates its many moods and activities. Many believe that the Creator, as the Great Master of Life, created a universal bond between all living things that placed the earth at the centre of a vast web of kinship relations. (242)

According to Borrows, “[g]reat power can be attached to these relationships because of the spiritual energy that flows between, from, and through them” (242).

Formal religious belief or membership in a formal religious community in Anishinabek society isn’t required in order to regard the Earth as a living being, because the structure of Anishinabemowin (the Anishinabek language) “depicts the Earth in this manner” (242-43). In addition, “there are strong and formalized structures to give this belief even greater coherence,” such as the Medewiwin Society, which “is regarded by some as the traditional Anishinabek religion” (243). “It teaches its members how to appropriately relate to the Earth and other living beings,” Borrows writes (243). In addition. many Anishinabek who are Christians “also hold a belief in a living Earth, either because it is taught within their congregations or because it is accepted as a syncretic practice within their belief structures and communities” (243). Other Anishinabek who are neither Medewiwin nor Christian “hold a strong conviction of the Earth’s agency and personality” (243). Borrows acknowledges that some Anishinabek do “regard the Earth as inanimate, without a soul or spiritual life force”; like any community, there are a variety of perspectives on religion and spirituality in Anishinabek society (243). “Yet despite diverse perspectives, the land’s sentience is a fundamental principle of Anishinabek law, one upon which many Anishinabek people attempt to build their societies and relationships,” and this idea remains “a present-day principle of central significance that has tremendous implications for how we live with one another on the Earth’s surface” (243). I find myself wondering how that belief, as a legal principle, could be harmonized with common law, which is based on a belief that the Earth is inanimate. Wouldn’t environmental laws produced by the two legal traditions be very different, given the extraordinary differences in their starting points? Perhaps Borrows addresses that point later in this chapter.

“Political issues are also implicated in the Earth’s legal personality for many Anishinabek because they regard themselves as striving to live in community with the Earth,” Borrows continues. “The political relationship between humans and rocks creates mutual obligations and entitlements that must be respected for this community to reproduce in a healthy manner. This governmental structure requires humans both to consult with the Earth’s Creator and to seek the Earth’s receptiveness before important decisions are made” (243). Those consultations take place through ceremonies or be observing the Earth’s interactions “with wind, water, fire, and other beings to which she relates” (243). Anishinabek practices also incorporate scientific understandings of how the Earth operates as a way of forming “an important benchmark for respectful behaviour as communities develop greater knowledge about her through time” (243). In addition, “obligations between Anishinabek and the Earth have territorial aspects”:

At one level, the political boundaries of Anishinbek relationships to the Earth coincide with the totality of the planet’s surface. An Anishinabemowin word that describes this relationship is aen-danee-yauk-kummikuak, which means “the nature of the land’s character form which all derive sustenance.” At this broadest level, we are all citizens with and of one land because we depend on its total existence to survive. (243-44)

However, “this wider political ordering does not preclude Anishinabek or the land from being citizens of smaller polities: watersheds, islands, valleys, countries, tribes, cities, reserves, and so on,” nor does it prevent “allegiances across global and smaller geographical units” (244). “Within Anishinabek thought is the encouragement to determine the Earth’s character to make decisions about how to best divide ourselves in ways that are most respectful of her,” Borrows writes. “The ability to relate to the Earth on different scales feeds a multiplicity of citizenship rights for Anishinabek people and the Earth” (244). So a person could simultaneously be a clan member, Anishinabek, Canadian, American, and a world citizen, while the Earth could be a planet, geological plate, continent, or pebble, all at the same time.

In the chapter’s next section, Borrows works through the connection between Anishinabek law and the Earth. He reiterates his argument that Anishinabek legal traditions (like other Indigenous legal traditions) “continue to grow and develop through observation, experience, and interaction with other people’s more recent presence within their territories” (244). “Anishinabek law is a living social order, developed through comparing, contrasting, accepting, and rejecting legal standards from many sources,” he contends, and for that reason, “Anishinabek legal traditions do not lose their Indigenous status if they adopt viewpoints that address matters not encountered before European contact” (244). In addition, there are usually a variety of interpretations of the way Anishinabek law “should be created, studied, and applied,” and these differences of opinion “illustrate the tradition’s vibrancy and vitality” (244). 

Borrows’s discussion of Anishinabek law’s relation to the Earth begins with rocks. “Rocks are animate or living in verb-oriented Algonkian languages, of which Anishinabemowin is one,” he states. “The very way in which Anishinabek people conceive of the land as alive is hardwired through language. You cannot even describe the world without acknowledging this fact” (245). Because rocks are animate, “they have an agency of their own that must be respected with Anishinabek people use them,” and that means “it would be inappropriate to use rocks without their acquiescence and participation because such action could oppress their liberty in some circumstances” (245). Because enslaving rocks “could lead to great calamities for the Earth and her people,” it’s important to make sure that “rocks and land are use appropriately” through ceremonies or legal permissions (245). “Under Anishinabek legal traditions, some rocks (or places on Earth) cannot be owned or allocated if such ownership or allocation implies control of the Earth without her involvement,” although a kind of ownership can take place “in accordance with appropriate Anishinabek principles” (245). “The pipe ceremony is a particularly important certification-like process preceding the appropriate use or ownership of land,” he states. “When one participates in a circle and handles the pipe under the guidance of proper leaders, the Earth’s legal personality is acknowledged” (245). It is believed that the smoke ascends to the Creator and thus demonstrates gratitude for existence, and “prayers of thanksgiving are expressed for the rocks, plants, animals, and other humans as the smoke rises from the pipe” (245). The pipe itself represents Earth’s different orders: earth, which makes up the pipe (in the form of pipestone, I would assume); plants, because tobacco is used; animals, because feathers and fur are added to the pipe; and humans, because they are the celebrants (245). 

“Use of the pipe is a token of peace between people and the land and between peoples settling on the land,” Borrows tells us. “The Earth is best used by celebrating her contributions and consulting with her creator in this way” (245). For this reason, when treaties between Anishinabek people and Settlers were reached, a pipe ceremony was used “to include non-Indigenous people in this relationship” and “to register their mutual agreement concerning the use of the Earth” (245). Because the Earth carries on while plants, animals, and humans die, “[i]t is contrary to certain interpretations of Anishinabek law to claim absolute ownership of the Earth, which is called a mother because of her role in bringing forth life” (246). “For many Anishinabek, ‘ownership’ is not regarded in the same light as in other Canadian legal traditions,” but trusteeship can be used as an analogy to explain “limitations concerning Anishinabek land use” and “in understanding Anishinabek law” (246). “A trust in equity, as merged through the common law, is a right held by one person (the trustee) for the benefit of another person (the beneficiary),” Borrows explains. “Under Anishinabek law, land is held by the present generation for future generations. Land does not ultimately belong to a person or people in the sense that they have absolute discretion and control; land is provisionally held for (con)temporary sustenance and for those unborn” (246). Such analogies, though, can “create confusion in understanding Anishinabek legal traditions if carried too far”:

Under Anishinabek law, while the Earth is somewhat dependent on other orders of life for its health and vitality, plants, animals, and humans are much more reliant on the Earth for their survival. In this sense, the Earth can be considered the trustee for its beneficiaries (plants, animals, and humans). This analogy may be a stretch for the common law legal imagination because, under the common law, the Earth is neither a living being nor does she possess a legal personality. Nevertheless, Anishinabek legal traditions recognize interdependence between rocks and humans because of their mutual agency. The concept of reciprocal obligations between rocks and humans is an important part of Anishinabek law. People are the beneficiaries of the Earth’s care, and under Anishinabek law this creates duties for the beneficiaries as well as for the Earth (as the so-called trustee). (246)

Borrows provides a contemporary example of these principles: a proposal to move the pow-wow ground on his reserve was made in the late 1990s, and when it became clear that this change would mean building a road over a significant rock formation, an alvar, that is important geologically, botanically, and spiritually, the community decided, after much deliberation and ceremony, that the change would not take place (246-48). “This brief review of Anishinabek law demonstrates that Anishinabek beliefs concerning the Earth as a living being can be legally recognized and affirmed,” Borrows concludes. “It also shows how Anishinabek law can lead to land being accorded political citizenship with its other close relations. Attentiveness to the land’s character and sacred power gives the Earth an important place within this jurisprudential system” (248).

Although Canadian constitutional law provides for freedom of religion, thereby protecting Anishinabek spiritual beliefs and practices, “there are also significant challenges in shielding Anishinabek spiritual beliefs from government interference,” Borrows writes at the beginning of the chapter’s next section. “These challenges are so profound that it is unlikely that courts would uphold Anishinabek beliefs unless they embraced broader conceptions of multi-juridicalism that have been developed in this book” (248). That’s not only because, historically, Indigenous beliefs have been ridiculed. It’s also because “law has a difficult time escaping its liberal context and understands its subject through its own values” (249). “[L]aw is a liberal god that creates religion in its own image,” Borrows suggests, and so “the Constitution will have difficulty protecting Anishinabek religious beliefs and practices if they are outside law’s central commitments to individual choice, autonomy, privacy, and personal conviction” (249). “Unfortunately, if beliefs about the Earth are not informed by a multi-juridical understanding, Anishinabek religion can be characterized as lying outside the Constitution’s informing commitments,” he continues. “They can be seen as being alien to Western law, politics, and religion” (249). “The fact that Anishinabek religion and law treat the Earth as a living being with the power of choice, requiring respect for its autonomy, privacy, and personal convictions,” but “the notion that the Earth is the individual possessing these characteristics probably propels Canadian constitutional law beyond its informing commitments,” stretching “the law beyond its cultural context” (249-50). Arguably the 2017 failure of the Supreme Court of Canada to rule in favour of the Ktuxana First Nation in British Columbia, which tried to block the development of a ski resort on a mountain it considers sacred to the Grizzly Bear Spirit, is an example of Indigenous beliefs being considered to be outside of the protections afforded by Canadian constitutional law (Fine A1).

Borrows summarizes arguments about whether or not the Anishinabek people might find religious protection under the Charter, including arguments that were presented before the Supreme Court of Canada (250-52). The problem is that interpretations of the Charter are not informed by multi-juridicalism, he suggests:

Without seeing the contemporary existence of Indigenous laws it may be hard for Canadian courts to detect the holistic religious practices of Anishinabek spiritual life. Anishinabek spiritual beliefs may not be labelled religious because they can lack many of the outward forms of other worship systems. They are not often taught in churches, synagogues, mosques, temples, or cathedrals. Of all Anishinabek religious experience, only the Medewiwin Society has a lodge where these teachings are more formally taught and practised. One can imagine the difficulty that an Anishinabek Christian would have in proving his or her religious beliefs where doctrines concerning a living Earth are submerged or not easily found written in a church’s doctrinal canon. For many courts, Anishinabek Catholicism or Anglicanism would overshadow Anishinabek beliefs and practices. Similarly, an Anishinabek person not affiliated with any organized religion would have an equally difficult time convincing a court that his or her spiritual views and practices are religious when the collective nature of his or her “worship” is difficult to pinpoint. Most Anishinabek spiritual expression differs substantially from what many people regard as religious, and this could prove problematic for protection under section 2(a) of the Charter. (252-53)

Borrows discusses cases related to religious belief that were argued before the Supreme Court of Canada to suggest that “definitions of the religious nature of Anishinabek spiritual beliefs may not necessarily prove fatal to their claims” (253). Even if those arguments were successful, though, “an Anishinabek person alleging government interference with his or her religion would have to show that the infringement was substantial or non-trivial” (253). Would the construction of a road over “old barren rock through an empty unused field” be considered trivial or insubstantial (253)? Borrows acknowledges that, in a legal environment in which “the Earth is left out of political citizenship and lacks legal standing,” it’s quite possible that such construction would be considered trivial (254). As the example of the Ktuxana case against the development of the ski resort suggests, it’s more than possible that the court would do so.

Even if the court found that the case was not trivial, an Anishinabek claimant would still have difficulty, since the Supreme Court of Canada has stated that freedom of religion is not absolute (254). If Anishinabek beliefs conflicted with the competing rights of others, then the Supreme Court might find that those beliefs must be limited in scope (254). “In other words, if another constitutional right conflicts or competes with Anishinabek religious rights, then those rights might not receive automatic protection,” he writes (254-55). Therefore, “Anishinabek religious beliefs can be infringed upon if the government meets certain standards” (255). However, it’s also possible that “[t]he focus on competing rights might help to protect Anishinabek religious rights from interference,” because contractual and property rights are not “directly protected in Canada’s Constitution,” and so “if protecting Anishinabek beliefs increased transaction costs in the alienability and use of land on and off reserve, then this should not be sufficient to defeat their automatic protection. It is not enough that Anishinabek religious rights may interfere with other people’s economic circumstances” (255). I wonder if the example of the Ktuxana case against the ski resort contradicts Borrows’s argument here. I’m not a constitutional lawyer and so I have a difficult time analyzing what he is saying in this section of the chapter. He does note that “social, political, and contextual factors might limit Anishinabek religion,” and that “courts will find it difficult to ignore the economic costs” of recognizing such religious rights “if they have social or political implications. Courts could find reasons to weigh and favour non-Anishinabek economic interests against constitutionally protected rights” by invoking the limitations to freedom of religion in matters of public safety, order, health, or morals (256). “Restraints on the alienability of land and the government’s ability to develop infratructure over what to others looks like barren rock could bring other interests to the foreground, thus justifying government infringements upon Anishinabek religious rights,” he admits (256). 

“The standard for proving whether the Crown has an important objective in passing legislation is often deferential in the government’s nature,” which “represents another hurdle for Anishinabek religious protection” (256). “The fact that law’s distribution of land after contact unjustly stripped Indigenous peoples of their land rights over an area might not enter into the court’s evaluation,” he notes:

In other words, the courts might not see government action in the creation of private property out of traditional Indigenous territories. If the government’s role in creating private property is not recognized, then non-Aboriginal property rights might become a surrogate for making certain activities more pressing and substantial for governments, thus potentially constricting the scope of Anishinabek religious freedom. The cultural context of constitutional law is visible only if one is reminded of this fact, which again demonstrates the value of working in a multi-juridical context to remind judges of this fact. (256-57)

The question of the minimal impairment of rights is also part of this issue. “In the circumstances of Anishinabek spiritual beliefs that are interfered with by road building, it would likely be easy for governments to show that the exercise of zoning or expropriation powers for roads is rationally connected to legislative objectives,” Borrows writes. “Presumably, all that the government would need to show is that the road connects point A to point B in a way that makes sense for its purpose” (257). The road could take up the smallest possible area, “and Anishinabek practices cold be respected through pipe ceremonies, permissions, and prayers” (257). “Although such measures resemble appropriate accommodation, one must not forget that the Earth might say no to the development of the road, and yet the government might still decide to go ahead with the construction,” he continues. “While the accommodation suggested is probably fair under Canadian law, one can see how it still likely offends religious beliefs. Thus, while minimal impairment might not be possible from an Anishinabek perspective, the Supreme Court’s own test would presume that a reconciliation of government objectives and Anishinabek beliefs could be accomplished” (257). That presumption “would likely favour non-Anishinabek governmental objectives over Anishinabek beliefs and reveal the culturally constraining character of Canadian constitutional law,” and “[t]he minimal impairment test may be an example of a place where the law shows its inability to travel beyond its own informing commitments” (257). My only quibble with Borrows’s argument here is his all-too-careful use of the word “may”: perhaps I’m cynical, but it would be hard to imagine any Canadian court siding with an Indigenous belief that the Earth is alive over a government that wanted to build a road.

“Finally,” Borrows continues, “Anishinabek beliefs may be infringed upon if the salutary effect of the road’s construction outweighs its deleterious effects on Anishinabek rights” (258). The damage to Anishinabek spiritual beliefs would be weighed against the practical benefits of the road and found wanting. A belief in the Earth’s agency “potentially threatens the core of North American economic organization in the twenty-first century”: “If the alienation and use of land are limited by one small group’s spiritual beliefs, it could impose unacceptable costs on the development for others” (258). Courts would also be cautious about the potential abuse that could arise from recognizing Anishinabek spiritual claims: some untrustworthy people “might claim power to speak exclusively for the Earth to fraudulently advance their economic, social, or political agendas” (258). How could the judiciary distinguish between legitimate and fraudulent belief? “As with many spiritual matters, beliefs are linked with faith, which is difficult to test in objective norms and should cause us concern,” Borrows states (258). “Thus, when measuring deleterious effects that Anishinabek people might experience,” he continues,

judges will have to resist the temptation to measure favourably the law’s salutary effects against their own cultural understandings of the law. Roads are generally seen as good or at least a necessary evil within Canadian society. They foster communication, commerce, and expansion. “Empty” land is often seen as unproductive, inefficient, and of less value if roads do not service such sites. One might legitimately ask: Why should Anishinabek beliefs trump the social conveniences of enhanced mobility, municipal planning processes, and economic efficiencies that roads create? While it is possible that judges might be able to check their cultural biases in making these evaluations, they must still provide reasons for decisions drawn from Canadian constitutional law cases. If the law itself has embedded certain cultural commitments concerning land use that largely accord with non-Anishinabek organization, then it may be difficult for the law to move beyond its own parameters in such judgments. (258-59)

That is, the law might find such movement difficult unless multi-juridicalism is present in the judicial analysis, Borrows contends (259). But, as things currently stand, it would be difficult for Anishinabek people to achieve the Charter’s protection of religion “without a more explicit call to incorporate Indigenous legal traditions into Canada’s constitutional framework” (259). “Thus, while Canadian constitutional law may on rare occasions transcend its cultural context and informing commitments, it continues to draw significant inspiration from its common law parentage,” Borrows concludes. “Constitutional law will remain limited in its application to Anishinabek spiritual life until it regards its birth as also flowing form another source, outside its European and so-called neutral conception. Unless the multi-juridical nature of law is recognized, Anishinabek religion will be better protected through Anishinabek law” (259). Therefore, “greater space must be found within our legal systems to recognize and affirm our complex and right legal heritage” (259).

In the chapter’s next section, Borrows explores that possibility that Anishinabek people might use section 35(1) of the Constitution Act, 1982 to protect their spiritual beliefs and practices (260). That section states that “‘[t]he existing Aboriginal and treaty rights of the Aboriginal peoples of Canada are hereby recognized and affirmed’” (qtd 260). “While this section may be more likely to transcend common law’s cultural footings, the courts have not yet achieved this result,” Borrows states:

Despite attempts to incorporate Indigenous perspectives and laws, section 35(1) remains securely tied to its non-Aboriginal foundations. There is no real Indigenous law cited in arriving at appropriate decisions. In fact, the Supreme Court of Canada has taken to translating Indigenous perspectives and practices into common law rights, a sure sign of the problematic nature in this section’s current configuration. Making common law the ultimate measure of ancient Indigenous traditions virtually ensures that non-Aboriginal cultural practices will predominate within section 35. (260)

According to Borrows, “[a] multi-juridical read of the constitution is needed to overcome this bias” (260). Despite the Supreme Court of Canada’s 1990 declaration that “the recognition and affirmation of Aboriginal and treaty rights represented the ‘culmination of a long and difficult struggle’ that ‘calls for a just settlement for aboriginal peoples’ and ‘renounces the old rules of the game,’” it is clear that “section 35 did not end Indigenous peoples’ struggle for ‘a just settlement,’ nor did it renounce the most problematic aspects of ‘the old rules of teh game’ that give preferential treatment to non-Aboriginal cultural interpretations of Aboriginal and treaty rights,” Borrows contends. “Indigenous peoples are still struggling for their rights, and the new rules of the game increasingly look like the old rules,” particularly since “the common law as applied within section 35 seems to be collapsing back into itself and is interpreting Aboriginal and treaty rights through non-Aboriginal categories and principles” (260). “In fact, it might almost be argued that resort to its own contextual categorizations is ‘integral to the distinctive culture’ of common law’s practices, customs, and traditions—since their ‘contact’ in North America with Aboriginal peoples,” Borrows continues. “Indigenous legal traditions are almost invisible in the current way problems are addressed under section 35(1)” (260-61). I’m not sure what the word “almost” is doing in that quotation; although I appreciate Borrows’s careful way of writing, sometimes it undercuts his argument.

For Borrows, the problems with section 35(1) “can be illustrated by considering how this section might be used to protect Anishinabek spirituality” (261). He takes the example of road construction over a significant rock formation as his example. Anishinabek people might have many options under section 35(1) for protecting that site:

For example, the Anishinabek could try to assert an independent Aboriginal right to religion, they could claim Aboriginal title over territory considered sacred, they could attempt to prove a site-specific Aboriginal right to a religious practice, they cold argue that they have an Aboriginal right to governance in relation to the alvar, or they might maintain that they possess a treaty right to territory, governance, or religion. Each argument and perhaps more can be relevant to the protection of Anishinabek religion. (261)

However, Borrows contends, “the most significant Anishinabe concern is the one underlying this chapter, that of a living Earth,” although the other arguments are also relevant, such as the idea that treaties are sacred covenants which “imply deep religious obligations” (261). “While the spiritual nature of Indigenous treaties is sometimes acknowledged in section 35(1) jurisprudence, its implications for Indigenous spirituality must be explored in future research,” he continues, citing his yet unpublished paper prepared for the Saskatchewan Treaty Commissioner (261). (I wonder if he would send me a copy of that paper if I asked.) 

The courts have ruled that Aboriginal rights under section 35(1) must meet specific tests: 

it has to be established first that Anishinabek religious practices or beliefs concerning a living Earth were integral to the distinctive culture prior to European contact. To receive constitutional protection, the Anishinabek belief cannot be the result of European contact. The court would expect to find that a belief in a living Earth truly made the society what it was, in 1615, at the moment Samuel de Champlain made contact with the Anishinabek of Georgian Bay. The Supreme Court curiously, does not seem to find it relevant if Anishinabek practices, customs, or traditions developed in response to contact with other Aboriginal nations. (261-62)

This test has been criticized as freezing Indigenous cultures at the point they met European cultures (262). “While this test is exceedingly problematic when applied to Aboriginal hunting and fishing rights, its injustice becomes even more pronounced when Aboriginal religion is at issue,” Borrows writes, since it “denies Indigenous people protection of the inner means to cope with the physical impoverishment that often developed as a result of European contact” (262). “Making Aboriginal religious rights dependent on whether practices, customs, and traditions were in existence before European arrival reveals the culturally chauvinistic roots of Canadian constitutional law relative to Indigenous peoples,” he continues (262). It also creates “difficulties of proof”: “One can imagine scenarios in which the test is section 35(1) potentially undermines Anishinabek religion, particularly if it ‘proves’ that the belief in a living Earth is an ‘inauthentic’ modern invention contrary to the present perception of Anishinabek spiritual views” (262). If the Supreme Court of Canada were to decide that this belief did not pass the test, it would “certainly constrict the socio-legal and political spaces within which Anishinabek laws could grow. Such a decision would hamper the further development of a healthy multi-juridicalism in our land” (263). Also, other constitutional questions are not asked to submit to such a test (263). “The Supreme Court’s test thus inappropriately encumbers and potentially distorts Indigenous spirituality and the constitutional protection available to it under section 35(1),” Borrows continues. “It misses one of the central points being made about multi-juridicalism in this book—Indigenous peoples have living legal systems that evolve through time. Protection for religion under these systems can change over the years even as individuals and societies attempt to maintain an acceptable degree of continuity with past beliefs and practices” (263). For all of these reasons, the test “makes section 35 exceedingly inappropriate for the recognition and affirmation of Anishinabek religious freedoms” and “degrades the court’s role as a champion of human rights” (264).

“Similar problems will be encountered if protection for religious practices is sought through Aboriginal title,” Borrows writes:

While the language of Aboriginal title does not often explicitly use the ‘integral to the distinctive culture’ test for proof, this test underlies the reasons courts seek to protect title. If Anishinabek people sought to protect their religious freedom through Aboriginal title, they wold have to prove that they had exclusive occupation of the territory prior to the assertion of British sovereignty and that this occupation was continuous through time immemorial until the present day. It might be difficult to establish these facts if certain pieces of land cannot be occupied in accordance with Anishinabek law because the Earth is living. It seems to be logically inconsistent to use evidence of non-occupation as proof of occupation for Aboriginal title. (264)

Borrows suggests that “courts would likely resist attempts to protect Anishinabek religion through Aboriginal title or any other section 35(1) grounds” (264). They would likely consider any claim that sought to protect the alvar as “an indirect and more generalized claim for religious respect,” and “[t]he courts are loath to cast Aboriginal rights claims at broader levels of generality when more specific claims can be made; their search is for the appropriate level of specificity relative to the claim” (265). Section 35 is too limited, he suggests. And “even if Anishinabek people are able to prove that their beliefs and practices related to a living Earth are integral to their distinctive culture prior to European contact, their struggle under section 35(1) is still not over,” because they would “still have to prove that their rights were not extinguished prior to 1982” (265). In that case, those rights would not be included within that section of Canada’s constitution. The standard of proof for extinguishment is quite high, but unfortunately “one of the few cases to have considered extinguishment as it relates to Aboriginal religious rights,” R. v. Thomas and Norris, “construed the Crown’s power in the widest possible manner, to the detriment of Indigenous religious freedoms” (265). That decision “privileges the common law and civil law over Indigenous law by the raw power of judicial assertion,” and it may have “extinguished Aboriginal rights to spiritual prctices concerning a living Earth when it was introduced” (266). “Without a multi-juridical reappraisal, the Thomas and Norris case representa a potentially insurmountable hurdle for Anishinabek spiritual beliefs because it reads extinguishment in the broadest possible light,” Borrows continues, although “strong doubts can be raised concerning the astonishingly low standard of extinguishment used in this case” (266-67). “Indigenous peoples’ religious rights under section 35(1) hang under a cloud of general extinguishment unless the courts precisely and unequivocally reject the assumption of cultural superiority in Thomas v. Norris,” Borrows states. “The explicit recognition of multi-juridicalism in cases like this would be one way to dispel this bias” (267).

“Finally, Indigenous peoples have one last obstacle to overcome to secure their religious freedoms against government interference under section 35(1),” Borrows continues (267). The Crown can argue “that it has the right to infringe upon Anishinabek religion under section 35(1) through a justificatory process” (267). In other words, “[t]he Crown can justify the infringement of Aboriginal rights if it has a valid legislative objective and its actions are consistent with the honour of the Crown” (267). It would be easy to show that the Crown has a valid legislative objective in building a road (267). “In addition, it would be possible for the Crown to show that infringement of Anishinabek beliefs and practices is justified if procedures that uphold the Crown’s honour are followed,” Borrows writes (268). Numerous obligations constrain the Crown’s sovereignty when Aboriginal rights are at issue, but “these constraints do not mean that governments are prevented from taking action that overrides Aboriginal rights if they follow proper procedures” (268). “[T]hese obligations can be a powerful tool for Anishinabek people to increase the scope of their rights,” because “[t]hey place Indigenous peoples’ relationship with the government in a reciprocal light, and show the crown may have to defer to Indigenous legal orders in certain circumstances” (268). In the example of the road across the alvar, these obligations could include recognition, affirmation, reconciliation, the prevention of the perpetuation of historic injustices, undue hardships on the exercise of religious rights, the need to give priority to Anishinabek spiritual beliefs and practices when rights are infringed, consultation, accommodation, the mitigation of the impact of government actions on Anishinabek rights, and compensation for the loss of religious rights (even though that might be impossible) (268-69). The application of these rights and obligations “calls upon Indigenous collective action to authoritatively deal with governments if rights are threatened,” and recognizing “the reality of Indigenous legal orders in such circumstances could strengthen the country’s multi-juridical framework” (269). However, “governments may find appropriate ways to infringe upon Anishinabek religious rights and this may render nugatory these significant governmental obligations” (269). “Thus, despite the potential of section 35(1) for recognizing and affirming Anishinabek spiritual beliefs and practices, it may have difficulty travelling beyond its own cultural commitments,” Borrows concludes. “Anishinabek rights might not be protected under section 35(1) if they are found not to be integral to the distinctive culture, if they are deemed to have been extinguished, or if the Crown is able to justify infringement through a valid legislative objective and the preservation of its honour” (269).

I am frankly shocked by all of this—but at the same time, I’m not shocked at all. I had thought that section 35(1) was worth more than Borrows demonstrates. No wonder Indigenous peoples have such a difficult time getting justice from Canada’s courts. We need to do much better than this, and while I would think that multi-juridicalism would be hard to practice, given the differences between Indigenous legal traditions, on one hand, and common law and civil law, on the other, Borrows makes a strong case in this chapter that justice will be impossible without the recognition and development of Indigenous law. Borrows states as much:

To better protect religious beliefs and practices, Anishinabek and Indigenous legal traditions should stand beside Canada’s Constitution to organize and structure society’s relationships. Greater space is needed within Canada’s doctrinal fissures and formal legal structures to recognize and affirm this country’s multi-juridical reality. Indigenous dispute resolution bodies, governments, and tribal courts could perform an important function in extending religious freedom within Aboriginal communities. They could also provide greater visibility for Aboriginal law within Canadian constitutional structures and perhaps one day lead to a significant breakthrough in that forum. (270)

“Whether the Earth is thought of as living or dead, our laws have some distance to travel before they fully address the depths of our disagreements with one another,” he concludes. “There is still much work to be accomplished before Canada’s constitution can be regarded as rigorously multi-juridical” (270). So much work needs to be done, in fact, that I find myself despairing at the monumentality of the task and the paucity of interest in getting started.

Borrows’s last chapter, “The Work Ahead: Cultivating Indigenous Legal Traditions,” “acknowledges that Indigenous legal traditions will not grow to their full potential unless we actively work at their further development” (271). “Indigenous laws can be reinforced if people in positions of power actively seek to support them,” he contends, and “[p]art of this support requires ensuring that state structures do not inappropriately displace the individual and family in the development of tradition” (271). Canada’s “balanced, somewhat decentralized federal state is built on the principle of harmonized disaggregation,” and so the recognition of difference is one of Canada’s strengths (271-72). The principles of federalism “should be extended beyond federal-provincial relations and applied to First Nations, Métis, and Inuit laws and governance” (272). Explicitly recognizing Indigenous legal traditions “could lead to useful experimentation and innovation in solving many of Canada’s pressing problems,” and “the affirmation of Indigenous legal traditions could strengthen Canadian democracy by placing decision-making much closer to the people within these communities,” as compared to federal and provincial governments, which “tend to be less responsive to the Indigenous electorate than Indigenous governments would be if they could exercise greater responsibility for their own affairs” (272). Borrows acknowledges that recognizing Indigenous law “is bound to be contested and create difficulties in law and policy,” but doing so would be consistent with the human rights of Indigenous peoples, “while ensuring that others’ rights were not abrogated” (272). The ideas in this book “are directed at recognizing and creating practices that will find an appropriate harmonization between the interests of society as a whole and the rights, values, and laws of Indigenous peoples” (273). Because “Indigenous law should . . . be treated as an active system that contains its own values, norms, uses, standards, criteria and principles,” “intellectual methodologies that express Indigenous legal concepts must be embedded in and thereby change the very structure of Canada’s law” (273). Those legal methodologies “should also be recognized and affirmed on their own terms as having force within Indigenous communities” (273). And “[a]s Indigenous normative concepts are extended into regulatory and dispute resolution regimes at local, provincial, and national levels, a greater range of options will be available to tailor solutions to particular issues and disputes” (273). For Borrows, incorporating the very different perspectives of Indigenous law, on one hand, and of common law and civil law on the other, “in a morally and politically defensible manner is what I have attempted to do in this book. This task is a societal task but it can also have more personal applications” (273-74).

Borrows then tells the Anishinabek story of manadamin, or corn, which provides an example of “the kind of effort needed to encourage the growth of Indigenous legal traditions in Canada” (274). One day, a stranger arrives in a village, saying that he has gifts to give to a good man. The people in the village suggest he talk to a young man whose grandmother, whom he loved, had recently died. The stranger, whose name is Mandamin, tells the young man they must fight to prove the young man’s merit. Although he initially refuses, the young man says he will fight in order to to protect his community. After a four-day battle, the young man kills Mandamin and buries him beside his grandmother. He tells the village medicine man what had happened. The medicine man says that the young man must care for Mandamin’s grave the way he cares for his grandmother’s, and he does so. The following spring, he discovers a new plant growing from the soil there. The medicine man tells him to let it grow. When the plant matures, the medicine man tries one of the yellow kernels and names the plant “mandamin,” or “Food of Wonder.” The young man did not kill Mandamin; rather, he gave the stranger “life in a new form” (278). “Mandamin’s message has implications for the development of Indigenous law,” Borrows explains:

Just like the young man, Indigenous peoples face many challenges from outside their communities. They have many choices about how they will deal with the challenge of developing their laws. There must be adaptation to change, but this must occur within a context that respects our grandparents’ good teachings. Challenges regarding change must be met with goodness at the centre point of judgement. The young man was fortunate to have the opportunity to listen and ponder upon his grandmother’s teachings before she died. (279)

In addition, the story “teaches that Indigenous peoples have successfully encountered change in the past and this has helped sustain them. We have experience in receiving new people and ideas in our lives, and these experiences of receiving them have been a part of our traditions for a long time” (279). Change isn’t always easy, and “[t]he development of Indigenous law in a contemporary context requires similar struggle. There are risks involved. Survival is sometimes on the line” (279). And sometimes Indigenous peoples will fail: “There will be times they do not succeed in making their values the core of judgment in their communities and in having these norms also impact on wider Canadian society” (279). The story suggests what is required to achieve success, and indicates that “[i]t may take some long periods of time to see results” (279), because “Indigenous peoples will find themselves battling forces that would like to defeat Indigenous law” (280). In addition, it teaches that some legal practices “must die in order for them to be transformed into a more nourishing way of living,” and that “the death of threatening traditions must take place in all legal systems” (280). 

There are different versions of this story, told by different Elders, and that “demonstrates that there are often varied approaches to legal meaning within the law of a single tradition,” differences that “are shaped by gender, perspective, life experience, and age” (280-81). Indigenous jurists will not “speak with unanimity in their articulation of the law”; we do not expect that of Parliaments, judges, or legal scholars (281). Different versions will emphasize different qualities of the story. One version says that the young man cultivates the plant; another that he leaves it as it matures. One story, then, is about “the importance of active monitoring and control over the legal development process,” while the other suggests that the development of the law is often beyond a community’s control. “Once the forces of creation and change are in motion, some matters cannot be contained,” Borrows states. “The lesson we can take from this as it relates to the law’s development is that while Indigenous people can do much to create better futures, it must also be acknowledged that development always contains a degree of risk” (281-82). That fact does not mean “that Indigenous peoples should forsake their quest for peace and order in their own communities and in their relationships with others,” he continues. “Rather, it means they must also recognize that the paths towards a better future will not always be ones they can completely create on their own” (282). This statement is generous and optimistic, given much of what Borrows describes in the rest of his book, and given the history of genocide and displacement that marks at least the last 200 years of relations between Indigenous peoples and Settlers in this country.

Like the young man, “Indigenous peoples and others have a fight on their hands to bring multi-juridicalism to its fullest fruition,” Borrows concludes. “They will have to work hard and exercise care and patience in cultivating the grounds for broader acceptance. Part of this process will involve rooting traditions in contemporary community values that are consistent with our country’s most revered legal teachings” (282). Not acknowledging Indigenous laws will constrain the rule of law in Canada, and “the burden will be weightier for Indigenous peoples if this occurs” (282). It needs to be remembered that Canadian law “also derives its authority from force,” as well as “appeals to precedent, consensus, reason, and consistency”: 

Its application can be hard to wrest from the biases of wealth, status, social convention, and established Western traditions. If Indigenous peoples and others choose to take advantage of opportunities noted in this book, these cautions should be amplified and heeded. While busy working for recognition and affirmation of Indigenous laws within Canada, supporters must also remember that such victories can be hollow if Indigenous peoples’ own traditional authorities are permanently subjugated in the process. This warning is not to counsel against working with Canadian law in every case but is meant to simultaneously keep our attention on its collateral consequences. We must continue to speak many languages of law. (282-83)

Borrows notes that he expands on the last point in a companion book, “written simultaneously with this work,” entitled Drawing Out Law: A Spirit’s Guide, which, coincidentally, I was using to hold open the pages of this book as I typed this summary (283). (Perhaps that means I need to read it next.) “Canadian law can sometimes be used with great effect, but only if Indigenous cultural values, traditions and authorities are simultaneously part of this process,” he writes. “Canadian law can also be a problem. If Indigenous peoples cannot practise their traditions in light of the conceptions developed in this book, they will be rightly rejected” (283). But we can choose “to recognize, affirm, and apply Indigenous legal traditions alongside the common law and civil law,” or else “we can choose to deny their historic reality and contemporary force” (283). We can thus either “mark our country as progressive and open to legal guidance from the best of our traditions, or as oppressively fundamentalist and frozen in our orientation to law” (283). For his part, Borrows chooses freedom: “Legal cultures are fluid. Law is in the process of continual transformation, and Indigenous peoples must participate in its changes” (283). “Multi-juridicalism must receive the support it needs” to nourish the strengths of our legal traditions: their wisdom, durability, and flexibility,” he continues. “Indeed, our Constitution depends upon it” (283).

Canada’s Indigenous Constitution has turned out to be very useful for my research. I’m surprised, in fact, that a book on constitutional law could be so applicable, but since my proposed walks are a response to treaty, perhaps I should have known better. It’s also much more soundly argued than John Ralston Saul’s book which describes Canada as a Métis nation. I agree with Borrows on the difficulty of putting into practice the changes he recommends, and I wonder if his ideas will ever find a sympathetic ear in legislatures, Parliament, or the courts. Because I’m not a lawyer, perhaps all I can do is hope that they do, although I’m aware that hope is not sufficient, and that more is required from any Canadian concerned that our legal system become a system of justice. In fact, I’m convinced that the recognition and development of Indigenous law is, at least potentially, a pathway for Settlers to find an ethical way to live on these lands. 

Works Cited

Borrows, John. Canada’s Indigenous Constitution, University of Toronto Press, 2010.

Fine, Sean. “Top court deals blow to Indigenous peoples.” The Globe and Mail, 3 November 2017, p. A1. Gale OneFile: CPI.Q (Canadian Periodicals), https://link.gale.com/apps/doc/A513011236/CPI?u=ureginalib&sid=CPI&xid=fac5747c. Accessed 24 Jan. 2020.

Graff, Gerald, and Cathy Birkenstein. They Say/I Say: The Moves that Matter in Academic Writing, 4th edition, Norton, 2018.

Krasowski, Sheldon. No Surrender: The Land Remains Indigenous, University of Regina Press, 2019.

Saul, John Ralston. A Fair Country: Telling Truths About Canada, Penguin, 2009.

Simpson, Leanne Betasamosake. As We Have Always Done: Indigenous Freedom Through Radical Resistance, University of Minnesota Press, 2017.