Abstract and Keywords
What kinds of strategies toward laws and political procedures are those facing persistent injustice permitted to adopt? While civil disobedience is straightforward, other cases are more challenging. This chapter outlines a set of possible strategies, and it evaluates two in depth: circumvention and nullification. In some circumstances, political actors might improve their own conditions by circumventing certain kinds of laws or political procedures, such as through illegal forms of lobbying intended to influence election outcomes. The chapter argues that circumvention of electoral or other laws would be permissible where it can reduce profound harms. The chapter then turns to the case of armed nullification, in which an Aboriginal group takes up arms at the borders of its territories to prevent the exercise of state laws or policies. The chapter argues that such nullification is often permissible, even if it must be pursued carefully to avoid harm to Aboriginal communities themselves.
In Chapter 3, I argued that it is generally justifiable for Aboriginal peoples and others facing persistent injustice to enter public debate in a strategic rather than open spirit, using an extended engagement with one political context to illustrate the texture and appeal of such deliberative strategies. Although speaking outright untruths may rarely be effective or wise, it nonetheless seems normatively permissible when necessary in defense of important moral interests that would otherwise go unprotected.
The arguments of Chapter 3 were concerned, in part, with transparency in legal forums, as well as in the broader public sphere to which they are connected. This raises the obvious question of whether other kinds of illegality may also be normatively permissible for those facing conditions of persistent injustice. In this chapter, I want to argue that such lawbreaking is often morally permissible. I do not want to assert simply a limited position of civil disobedience, in which individuals break the law with the expectation that they will receive legal punishment afterward. Though much of the argument outlined here will be relevant to thinking about civil disobedience, I am concerned with lawbreaking of a stronger sort: that in which one seeks for it not to be recognized, or where one tries to ensure that “legal authorities” do not have the capacity to punish or prevent it even when recognized.
Since the topics here are complex, the chapter proceeds in three basic parts. First, it outlines the aspirational character of legal authority itself. As it will argue, real legal systems fail to be fully binding when they entrench patterns of persistent injustice or make the alteration of these patterns very difficult, so that strategic illegality is sometimes permissible to improve a legal system’s character. (p.117) The second section of the chapter considers the moral permissibility of formally illegal actions intended to intervene in the procedures of lawmaking (part of the strategic category I will call circumvention) in the context of the United States. Individuals on Aboriginal reservations in the United States remain profoundly vulnerable to physical violence, given the deep persistence of jurisdictional chaos for criminal law, with women particularly vulnerable, especially to violence by non-Aboriginal men. I consider a hypothetical case in which tribal leaders provide financial or other backing to a supportive legislator in a way that formally violates the terms of election law, with the goal of reducing on-reserve violence. Third, I will turn to a stronger and, for many, more troubling case of illegal political action that is more common in Canada: that which occurs when an Aboriginal group takes up arms to defend a land base against governmental or private incursions, which I will refer to as nullification. I will argue that there will often be good normative grounds for such actions.
Before proceeding, I want to be transparent about a simplifying assumption of the chapter, in regard to the legal systems reacted against. The question of what “law” entails when conceptualizing the relationship between Aboriginal peoples and states like the United States and Canada is an intrinsically contentious one. Both countries assert final rights of sovereignty over the Aboriginal peoples “within their borders,” while at the same time acknowledging the continued force of certain aspects of inherent Aboriginal sovereignty (in the United States) or some aspects of Aboriginal law (Canada, where certain land rights are involved). Aboriginal peoples, on the other hand, frequently point to the binding status of the treaties that they historically made with these countries under the law of nations, and assert basic rights to continuing sovereignty where such treaties were absent. To simplify the present discussion, particularly with Anglo-American political philosophy in mind, I have set aside these debates for the purpose of this chapter, and will presume that the binding legal structures are those of the United States and Canada. While this might seem to load the argument too strongly against Aboriginal political claims, I will seek to show why extensive permissions for political action remain for Aboriginal peoples and others in conditions of persistent injustice like our own, even with such an assumption in place. Insofar as Aboriginal (p.118) peoples have good claims to inherent legal authority, the permissions outlined here seem correspondingly stronger.
4.1 Law, Justification, and Permissibility
Law is intended to secure justice, and this aspiration gives it normative force. Law needs such a justification because it coerces individuals to uphold a system of public rules that they have rarely agreed to in any strong way and which can impose serious costs upon them in a variety of ways.1 While we often speak of the “consent of the governed,” this is always achievable in only secondary ways, though deliberative and other means that only imperfectly match individual agreement with outcomes. The basic purpose of law is to preserve individuals and communities from violations of their basic moral interests, and to give them mechanisms for adjudicating the many spaces of ambiguity in how these interests relate to one another.2 The problem is that law always falls short of achieving its goals, so that achieving full “legality” is always an aspiration in progress, with continual room for improving its effectiveness and appropriateness.3 In many cases, these failures of justice are within the bounds of tolerability, such that citizens are required to adhere to flawed legal standards even as they try to reform them.4 In conditions of persistent injustice, however, legal systems have more severe problems. They are themselves commonly the anchoring institutions of this injustice.
In such conditions, the structuring character of flawed institutions is likely to run very deep. The morass of incoherent and self-defeating laws that currently blockade Aboriginal peoples from managing their own territories and properties even in a purported age of self-determination, for example, are hard to square with any theory of justice whatsoever, yet they remain in place nonetheless, locking many reservations into spaces of poverty.5 The arrangements for criminal law enforcement described in the next section are even more egregiously ill structured. Broader examinations of, for example, the distribution of environmental externalities would turn up further ways in which Aboriginal communities are made unusually liable to harm.6 It is not only Aboriginal peoples who face legal failures of this kind, of course—many inner-city African American communities face analogous problems, though the legal structures (p.119) that bring them about are often quite different, and so do other kinds of communities and individuals. The basic point is itself straightforward: social rules can be either protective or profoundly harmful, and those that fall into the latter category fail to meet the basic aspiration underpinning legality.
In conditions of persistent injustice, existing institutions are likely to be deeply resilient against attempted changes, such that ordinary mechanisms of politics will generally be insufficient to create normative improvements. In cases of unambiguously brutalizing “laws,” there are few people, whether political theorists or otherwise, who will defend a requirement of obedience. Yet there are few accounts that give close attention to the range of strategies that may be possible in such conditions, or that examine the ethics of political action for such cases in depth. I want to first map out some of the diverse ways in which one might seek to behave “illegally” toward existing “legality” here, before considering how these might apply given current conditions of Aboriginal political life.
Political strategies that seek to counter harmful laws might be aimed at either of the two categories of law that legal theorists commonly describe: primary rules and secondary rules. For those unfamiliar with this terminology, these categories may be better described as substantive and procedural rules. Primary legal rules are those that protect substantive moral interests for individuals and groups, by delimiting what individuals and groups are permitted to do in regard to one another, and what they are prohibited from doing. In other words, these are the kinds of things in which the police, bureaucrats, and other kinds of direct enforcers of the law are involved. Secondary rules are those procedural structures intended to set the terms of these primary rules. These are the rules stating that substantive laws must be made by the agreement of legislative bodies or adjudicated by correctly appointed judges, and so on.7 In other words, these are the rules by which other rules are made. Political strategies for responding to persistent injustice will vary depending on which set of rules they address, and how they do so. I will consider four kinds of strategies here: evasion, appeal, circumvention, and nullification.8 Because the latter two strategies are the least familiar, I consider them at length in the sections following.9
Persistent injustices are most felt by those suffering them at the level of primary rules, as they are arrested by police, or as those who (p.120) assault them are not so arrested, or as they are ejected from their homes, or their attempted economic transactions are stopped by bureaucratic decisions, or their territories are transferred to others without their consent, and so on. Often those who experience harmful laws of this kind will seek to contest them through existing legal mechanisms when they can. When such mechanisms are not available, however, or routinely fail to secure appropriate outcomes, the most likely category of response is likely to be evasion— simply to avoid the application of the harmful rules without directly seeking to change them. When Aboriginal people tried to flee the reservation spaces to which they had been forcibly confined in the nineteenth century, or when African American slaves ran away from their legally recognized masters, they engaged in evasion of this kind. Similarly, contemporary Aboriginal individuals engage in evasion of this kind today if they do not report some kinds of income on their taxes or when they trade in particular goods without licenses (e.g., revenue-producing cigarettes) or refuse to comply with discriminatory police practices, and so on. Evasion, as I use the term here, does not try to change what is recognized as law, but to dampen specific kinds of harms that it might cause in a particular instance. Evasion, of course, might be part of a broader suite of political strategies, but on its own, it focuses only on the avoidance of specific kinds of substantive laws.
Political action of the kind on which this book generally focuses targets secondary rules instead, with the goal of changing specific kinds of substantive laws, or sometimes of altering secondary rules themselves. There are, broadly speaking, three approaches that can be deployed in seeking to have an impact on substantive laws via procedural laws. The first and most familiar method I will refer to as appeal, in which one breaks law with the explicit goal of persuading those who fill political offices to change substantively unjust laws, while adhering to existing procedures for secondary law. The clearest example of this strategy is civil disobedience. Although civil disobedience is a transparent communicative strategy, intended to call attention to particular kinds of injustices so that they can be understood and changed, it is lawbreaking nonetheless.10 While the civil disobedient are generally willing to be arrested to dramatize the character of flawed legal structures, I would also include within this category those who deploy similar public actions intended to (p.121) persuade lawmakers to act differently, while seeking to avoid arrest or recognition of their individual involvement. This category thus contains most of what social movement scholars would describe under the rubric of “contentious politics.” There seems to be widespread philosophical agreement about the permissibility of civil disobedience. As I noted in Chapter 2, there is substantial literature on the topic that treats civil disobedience as a paradigm case of justified lawbreaking, informed in many ways by the actions of Martin Luther King Jr. and other prominent figures of the Civil Rights Movement.11 Why, though, stop with strategies of this kind?
Many of those who are comfortable with civil disobedience are likely to be more troubled by the categories that I will describe as circumvention and nullification. Circumvention, as I will use the term, involves the strategic evasion, manipulation, or disregarding of specific procedural rules, with the goal of creating better outcomes through means that existing law does not permit. Nullification refers to efforts to reject the dominant set of secondary rules at a very deep level, by refusing the basic legitimacy of political institutions for creating any form of legality, in favor of asserting a different set of legal institutions. This might also be understood as the on-the-ground assertion of a procedural counter-law, by which substantive laws should in the future be made. Nullification has many elements in common with appeal, given its transparency, as I will outline below, so this range of actions is not a simple spectrum that varies along one axis. Nonetheless, circumvention and nullification as strategies seem more likely than evasion or appeal to provoke normative controversy or uncertainty. Are strategies of this kind too dangerous to be permissible even in conditions of persistent injustice? Examining the grounds for such worries will help to reduce this concern, though, at the same time, it will make clear that these strategies must be used carefully, with clear acknowledgment of their potential dangers.
The most obvious concern is that circumvention and nullification might endanger the enterprise of legality in a very deep way, by undermining shared systems of decision-making with potentially explosive consequences. Concerns about conflict stemming from uncertainty and normative disagreement are central to most arguments about the value of law. Since individuals will inevitably disagree about what law should be, how they are treated by it, what moral principles it (p.122) should instantiate, and so on, it can be dangerous to erode the social practice of following its rules and, especially, to erode the legitimacy of the institutions by which substantive laws are made. Familiar works of canonical political theory imagine a “war of all against all” that will occur if individuals act according to their own wills and judgment,12 and there are unfortunately far too many examples of state collapse and terror-driven civil wars in recent history (e.g., the former Yugoslavia) to dismiss this concern lightly. Arguments of this kind can be overstated, and the numerical asymmetries between Aboriginal peoples and the states now ruling them make anything like state collapse unlikely. But one should still take concerns of this kind with deep seriousness, especially if arguments for circumvention or nullification are exported to other kinds of contexts elsewhere in the world.
A second concern is rather different in structure, and focuses on the positive role of legal procedures in gaining information, clarifying thinking, and developing normative compromises. Many kinds of legal procedures fare better in utilizing information and fostering normative deliberation than do less institutionalized means, because they require that multiple points of view be brought into conversation, or that certain kinds of experts be consulted, or that informational reports be compiled, and so on. Given the difficulty of constructing stable, effective legal arrangements in actuality rather than simply in theory, and the unavoidable ambiguities about how humans as individuals and collectives should live together well, morally tolerable political orders seem more likely to emerge from institutional processes rather than outside of them. Human communities come back to procedures of this kind over and over again for good reason, and future social worlds are likely to require a dense field of decision procedures of this kind. Varying kinds of human moral interests are likely to be best protected when institutional means decide how this is to be done, so that attempts at circumvention or nullification may sometimes create suboptimal results even despite their intent.
Taking these two concerns together gives us good reason to assign positive value to legality in general, even when the law is in many ways deeply flawed. Much of the content of even bad regimes of law protects important moral interests (e.g., protections against random violence), and societies will rarely be normatively better off with a civil war. Moreover, the argument that people should seek to change (p.123) the law only through the law itself contains important deliberative expectations: if one is required to explain why the law should change in one way or another, there are greater odds that changes will occur in appropriate ways, that individuals will think more carefully before they act, and so on. There are thus plausible grounds to have a presumption in favor of existing legality even in conditions of persistent injustice.
This is a presumption only, however, and for that reason, it cannot defensibly prohibit well-targeted illegal actions in conditions of persistent injustice. Legality matters as a way of protecting individuals and communities from harm, but when existing legal structures directly cause harm or uphold the conditions under which it continually occurs (as, e.g., with the criminal law example discussed in the next section), those suffering from these conditions seem permitted to attempt more risky kinds of political action in carefully targeted and proportionate ways. If this injustice were simply the problem of powerful social actors behaving in intentionally self-seeking fashion, such that they might be reined in if existing law were merely carried out more effectively, by, for example, embarrassing a few elites or “waking up” a larger majority for a brief period of time, it might be plausible to require those facing persistent injustice to limit themselves to evasion and appeal. It seems more descriptively accurate, however, to believe that persistent injustice is maintained by a complex overlay of interest, institutional lock-in, and flawed ideas (see Chapter 3). Dominant social structures will work to actively resist alterations to existing legal and political structures, even if those who inhabit positions of power do not do so out of any malice. They may instead believe that they are in fact defending law in a normatively appropriate way.13 This is part of the way law works: it convinces people that they ought to behave in particular ways. Aboriginal peoples and others in conditions of persistent injustice cannot easily be prohibited from countering the harms that flawed laws create, even if they are normatively required to use such means carefully and proportionally, without adopting them lightly. (I will have much more to say about the difficult test of proportionality in Chapter 5.)
Calculations of proper targeting and proportionality will be unavoidably difficult where such strategies are considered, but the standard for evaluating currently illegal action is nonetheless a clear one: where legal structures are deeply bound up with persistent (p.124) injustices, does political action contribute to the realization of the aspirations that underpin legality? This standard may sometimes operate in highly prospective ways. Evasion as a strategy generally seeks to avoid the harms that bad laws create, so that it looks to avoid specific proximate harms from obedience to them. Something more extended seems necessary where other kinds of strategies are concerned, especially those oriented toward secondary rules. Those who engage in circumvention or nullification may not even have to point to deeply important moral interests that are being harmed at the present moment, if they have good reason to expect that current arrangements make such harms to important moral interests very likely (e.g., because a set of laws has done so in the recent past). Sometimes strategic action against the law requires taking a long view, just as other kinds of political decisions routinely must, if the impacts of persistent injustice are to be reduced. Calibrating this correctly is unavoidably challenging, of course, but the same is true of most other kinds of political choices.
4.2 Procedural Circumvention and Electoral Strategies
Evaluating the concept of level circumvention will be easier with a clear example in mind, to see both why it might be appropriate and how such an effort might be carried out. This will also allow us to think about broader ethical issues surrounding such strategies, including the ways in which they may or may not transform those who engage in them. As I noted in previous chapters, the specific patterns of political constraints and opportunities faced by Aboriginal peoples vary across countries. In Canada, Aboriginal rights questions are usually more strongly determined in the courts than in Parliament, given the highly constitutionalized nature of these debates since 1982 (see Chapter 3).14 In the United States, on the other hand, the Constitution is relatively silent about the status of Aboriginal nations. Congress is granted the power “to regulate commerce with foreign nations, and among the several states, and with the Indian tribes,”15 with no other statements made about the structure of its responsibilities. While American Indian law in the United States has a long and complex history, its primary principle has been Congressional supremacy, with courts seen primarily as (p.125) interpreters of Congressional intent since at least the 1880s.16 Since the 1970s, Aboriginal nations have been permitted to exercise substantial powers of self-government, and to enter government-to-government relationships with states and bureaucratic branches of the Federal government. A great deal of Aboriginal political work in the United States goes on in negotiations between Aboriginal political structures and nonelected elements of government at Federal, state, and local levels.17 But Congress remains the ultimate arbiter of the fate of Aboriginal nations, while state legislators retain a great deal of say in the relations between tribes and state institutions. In the United States, Aboriginal politics is thus far more strongly Congressional than judicial.18
Moreover, a number of structural features about the United States give increased chances for electoral leverage relative to Canada. Election campaigns in the United States continue for a much longer period than their Canadian counterparts do, and they are, therefore, more expensive. Party structures are looser, so that the selection of candidates for office is more easily affected by local political concerns. In these complex processes, some tribes have substantial capacities to affect electoral outcomes given population size. Most obvious is the Navajo Nation of the American Southwest, with a large territory and a population larger than the Canadian province of Prince Edward Island. But most have resources of a different kind. Since the legalization of tribal gaming in the 1980s, a handful of Aboriginal nations have substantial financial resources that can be deployed to good political effect. Most have far more limited resources, but these are still in many cases sufficient to maintain consistent lobbying efforts. For many tribes, the personal relationships that they are able to form with specific legislators matter most: these ensure that they will be heard when policies affecting them are under consideration, and being heard is the first step toward being protected (though certainly not a sufficient step on its own).19
I want to consider the morality of a specific kind of case of legal circumvention here, of what seems to be a purely hypothetical type thus far. This example should be framed by the conditions of criminal law enforcement within many reservation communities in the United States. Many reservations in the United States are nearly zones of chaos where criminal law enforcement is concerned, which results in very high levels of crime, especially incidents of (p.126) sexual assault by non-Aboriginal men against Aboriginal women—a jurisdictional morass that continues as the ongoing legacy of past American actions.
Violence against Native women and girls has reached epidemic levels in Indian country and Alaska Native villages—rates that are 2 ½ times higher than violence against any other group of women in the United States. Native women are more than twice as likely to be stalked than other women. One in three Native women will be raped in her lifetime, and six in ten will be physically assaulted. The murder rate for Native women is ten times the national average on some reservations…Significantly, United States law has stripped Indian nations of their criminal authority over non-Indians, who are responsible for committing some 88% of these crimes.20
It is not, of course, only women who experience high levels of violence: Aboriginal men are often highly vulnerable to violence as well.
The details of this jurisdictional morass are often unimaginable to those encountering it for the first time. Strikingly, crimes that take place on Aboriginal reservations in the United States are tried by different parties depending on both the character of the crime and the party who commits it.21 Unusually within the American system, the Federal government has primary jurisdiction (including powers of investigation) for certain kinds of major felonies that take place on Aboriginal land and that have an Aboriginal victim or a known Aboriginal perpetrator. The Federal government, however, generally lacks an effective on-reservation presence for law enforcement purposes, so that responses to major crimes of this kind are often slow and incomplete. For crimes on reservation lands that occur to an Aboriginal person but fall short of a major felony, or that occur to a non-Aboriginal person, primary jurisdiction depends on the status of the perpetrator. If the perpetrator is a not a tribal member, the state will have primary jurisdiction for either sort of crime, even though it has taken place on Aboriginal land and may involve an Aboriginal victim. If the perpetrator is a tribal member in either case, on the other hand, the tribe will have authority over them. Because perpetrators are frequently unknown, it will thus often be unclear which party is permitted to investigate until more information is acquired. There are only very restricted conditions in which tribal police—those who are living in the community every day—will (p.127) have the capacity to arrest and prosecute non-Aboriginal perpetrators. Moreover, tribal police are almost always underfunded in profound ways. Taken as a whole, this frequently creates a legal vacuum—Federal officers are found in the community too rarely and are often unwilling to act; state police will not investigate unless they know that the perpetrator was non-Aboriginal; and tribal police lack the legal authority and capacity to respond to many kinds of crimes or to any crimes committed by those who are not tribal members.
I suspect that almost all readers will be able immediately to envision mechanisms of law enforcement that would achieve the basic goals of protecting Aboriginal people from harm more effectively. Indeed, I encourage non-Aboriginal political philosophers to learn much more about these arrangements and their history, and to develop realistic proposals for a revised system that would achieve the aspirations of legality more effectively.22 The real-world problem, however, is that such proposals have been made by a variety of parties, and yet they have failed to change this basic set of conditions, given a deeply anchored set of legal presumptions and funding patterns by the Federal and state governments. This is not to say that change is impossible, but rather that it is hard. Imagining a more ideal system does not thereby bring it about. What brings about change is instead constant, grinding work by tribal leaders and others to build coalitions, slightly redirect legal standards in more promising directions, slowly build funding for tribal capacity building, and so on. Building strong relationships with specific elected officials and bureaucrats is often especially important here. Wishing for better conditions itself changes nothing; indeed, theorizing in detail about those conditions is likely to do little on its own.
The following hypothetical example should be understood against this background. Though it is commonly suggested that the financial resources of some casino-operating Aboriginal nations have had illegitimate effects on politics in some states,23 there is no evidence that tribes have in fact engaged in legal circumvention in the course of their political efforts.24 There are obvious risks associated with this strategy for any Aboriginal group that would adopt it: exposure would be likely to have highly dangerous repercussions. But the first question I am concerned with is the normative permissibility of such a strategy, rather than its prudential wisdom in any given case. Consider a hypothetical example of illegal lobbying: a tribe with (p.128) very high levels of on-reservation violence and small levels of gaming revenue has spent a number of years cultivating a relationship with a long-term legislator, who is often sympathetic to the tribe, though by no means a consistent supporter of their positions. This legislator, let us presume, has been to the tribe’s territory on a few occasions, has a clear sense of the tribe’s complex legal history, understands generally the bureaucratic agencies with which it must interact, and has membership in a committee with broad responsibilities for Aboriginal issues (e.g., the Senate Committee on Indian Affairs). This legislator has a good understanding of the morass of criminal law enforcement in tribal communities, and has worked in the past for reform, including revised laws and increased funding capacities.
This legislator was especially important, let us say, for a recent legal innovation that made it easier to investigate cases of domestic violence, which will only be successful and sustainable if followed up with additional legislation.25 Though not always supportive of the tribe’s arguments, and often swayed by other interest groups or different normative judgments, the legislator nonetheless listens when the tribe speaks and tries to explain herself to the tribe when important decisions go against their interests. The legislator likewise knows that many of her colleagues and the public in general have virtually no idea about the legal chaos of criminal law on reservations, but think instead that this shows some sort of Aboriginal tendency toward uncontrolled violence. She thus feels a sense of responsibility to think carefully about issues that others ignore or fail to understand, and to try to do something when it is not too difficult for her. Even though she is by no means fully reliable in her actions, she is one of the best hopes for continuing legal changes that will make reservations less dangerous locations in which to live. Readers who work in the area of African American politics may think of analogies to some ghetto communities here.26 Those experiencing other kinds of persistent injustice should be able to find further examples.
Consider a potential opponent to the legislator just described. This opponent has no real interest in Aboriginal issues and, therefore, no background knowledge beyond what can be gained in the American public sphere, where vague ideas circulate of Indians as relics of a bygone era, legitimately pushed aside during the “closing of the West.” Given these background ideas, the opposing candidate is (p.129) often hostile to Aboriginal interests, though not from any real malice or understanding—Aboriginal political institutions simply seem strange and untimely to him in contemporary America, so that, he thinks, the violence on reservations is unavoidable given their anachronistic nature. This opposing candidate, let us presume, would reach different views on Aboriginal affairs over time, with exposure to increased information and as tribal members are able to form relationships, so that they come to be seen as determinate persons rather than vague images out of popular culture. But the timeline for this process of forming relationships and developing knowledge is a relatively long one—eight years, let us stipulate—and the costs to the tribe of building these relationships will be substantial, in setting up meetings with the legislator on multiple occasions, regathering kinds of information of which the current legislator is already aware, and so on. In the meantime, the legal morass and high levels of violence will continue unabated.
Now let us imagine further details to the example. The opponent, let us presume, has the support of several powerful social interests, including economic ones. Let us assume the economic supporters include resource-extraction industries that might benefit by looser rules on the exploitation of public lands that are near tribal communities, or that will benefit by the direction of public funds or legislative energy away from law enforcement reform to something that will increase profits, or that hold resources that are the result of past patterns of colonialism against Aboriginal peoples or others, or that otherwise have troubling motivations or advantages. Put concisely, the opponent is supported by many economic actors who are directed primarily by desires unrelated to the securing of justice, or who would not be entitled to the resources they currently control within a more satisfactory system of laws, even though contemporary law recognizes their ownership.
In these conditions, would it be legitimate for the tribe to circumvent existing election law if they could find an effective way to help the sitting legislator to increase her odds of victory against her opponent? For example, would it be permissible for the tribe to contribute funds to the legislator’s campaign in ways that violate legal standards, by, say, setting up a dubious shell organization purely to make what financial contributions it can afford? We need not worry too deeply about the specific legal principles being (p.130) violated here; presume that the legal repercussions for intentionally violating the laws in this way are substantial (with, e.g., specific tribal leaders arrested), and that the exposure of the violation would be more substantial yet in its ramifications. Would such a violation of existing law, carried out willfully with intent to act illegally and to avoid exposure, be normatively permissible?
In my judgment, at least, it seems clear that it would be permissible, and that it would be, moreover, morally praiseworthy if it had some chance of success, in showing that tribal leaders were acting carefully on behalf of their constituency, who bear the violent consequences of persistent injustice in their everyday lives. It seems clear to me that the tribe is morally permitted to engage in circumvention of this kind if they can find an appropriate method for doing so. Even if the opponent will develop the relevant knowledge over time, the loss of the established relationship is nonetheless a deeply costly one for the tribe’s ability to enter meaningfully into debate about the terms by which it must live because it will have to begin the educational process anew before the substance of its claims can begin to be heard. In the meantime, horrific levels of violence will continue to occur to their community members. Insofar as the relationships of specific tribes with legislators effects outcomes for tribes more broadly, the loss of legislative expertise on this matter will have the same effects on all Aboriginal peoples as well. The small chance that such a strategy would weaken the rule of law as a whole or that it would blunt the knowledge-producing effects of institutions seems unimpressive here: the basic point of this action is to repair a profound failure of the rule of law on Aboriginal lands and to improve the informational basis on which decisions are made, rather than to undermine either of them.
Indeed, it is arguably the case that the aspiration toward legality gives Aboriginal peoples and others suffering from persistent injustices permissions to engage in circumvention even if they have no immediate normative interest at stake for a given election, given the difficulty of their background conditions. That is, it is arguably the case that those suffering from persistent injustice can take a long and somewhat speculative view about how particular political choices may help to remediate those injustices in the future, so long as those speculations are underpinned by careful thinking to ensure plausible empirical beliefs and proportional care for others who also suffer (p.131) from current arrangements (see Chapter 5). There are obvious reasons for such strategies to be undertaken tentatively: improving existing procedures or their outcomes is hard work, and where there are legally instantiated mechanisms that might work, it will generally be best to continue to work through these institutions rather than to abandon them. But tactical circumvention to build on effective areas of political input where they already exist, for example, seems permissible to build toward the remediation of persistent injustice by necessary increments. Where it may be possible for circumventions to change the character of procedures themselves (e.g., when supporting a Congressman who might strengthen bureaucratic consultation with tribes), this may be an especially appropriate target. In circumstances where existing structures of decision-making continue to keep persistent injustices in place, it would obviously be ideal if those of us who are non-Aboriginal would act collectively to change the conditions that bring this about.27 But examination of actual politics suggests that this is unlikely. Instead, it is likely to be Aboriginal leaders who do this work themselves. Legal circumvention seems to me a permissible part of their toolkit in cases of this kind, pending a clear philosophical argument to disqualify it.
I noted in Chapter 3 that Aboriginal groups and others in similar conditions of disadvantage seem permitted to adopt a generally strategic attitude toward deliberative institutions, even if speaking untruths will usually be too dangerous to attempt. Something similar holds here, though the general restrictions seem substantially stronger. Even if it is commonly too dangerous for Aboriginal actors themselves to engage in acts that clearly constitute circumvention, and potentially erosive of the rule of law to make routine use of such means, there are often many legal ambiguities within lobbying rules, campaign laws, and other regulations surrounding legislative and electoral politics, and the analysis here suggests that Aboriginal groups do not need to worry overmuch about the use of these ambiguous mechanisms. (Often more powerful groups will already be using dubious or illegal means, but such permissions seem to exist even in the absence of circumvention by others.) This does not mean that everything goes. Aboriginal leaders will often have to sometimes abstain from actions that are disproportionate (see Chapter 5) or too risk-intensive. But the generally flawed nature of the background deliberative system (p.132) suggests that Aboriginal peoples can take a fairly flexible view of what it means to support the law, and of the kinds of threats that are likely to undermine their capacities to reduce persistent injustices.
Importantly, such a strategic attitude is not inconsistent with the aspirations toward democratic deliberation discussed in Chapter 3, nor with the information-gathering aspirations of legal procedures. Indeed, the example I have outlined presumes that good laws will come from extended conversation and the use of correct information. Tribal leaders who form long-term relationships with specific legislators will often be able to speak to those legislators in extraordinarily clear and challenging terms because they will have built conditions of mutual respect and understanding that make meaningful persuasion sometimes possible. In Canada’s judicial environment, there are few forums in which full and frank speech is possible, given the ways in which legal terminologies and procedures set the background. In relationships between specific Aboriginal leaders and individual legislators in the United States, however, the specific details of existing laws can often be treated much more flexibly—legislators, as lawmakers rather than law interpreters, are often able to approach matters with considerably more space for imagination of alternatives. Those who become tribal leaders are rarely reticent people, and they will rarely be satisfied with speaking in narrowly constricted terms when they can avoid it. Long-standing individual relationships often allow one to say things that would otherwise cross lines of civility or that would be too complex to understand or that call for forms of change that seem impossible before they actually occur. The strategic attitude outlined here is thus not inconsistent with direct and impassioned deliberation when it is possible, or with speaking boldly in all sorts of favorable conditions.
I noted in Chapter 3 the ways in which a division of labor between Aboriginal leaders and ordinary members of Aboriginal communities will often be necessary for good political outcomes. Differing circumstances will often understandably lead to different understandings of what is politically wise or appropriate. As I noted there, many Aboriginal social actors see elected tribal leaders as co-opted into colonial habits when they enter politics with a strategic attitude, when they play by and sometimes breach the rules of electoral politics, or when they speak in public venues primarily in the language of legal institutions. This view seems to me frequently (p.133) mistaken, even if such co-optation occurs more frequently than one would like. Legal and political change is often extraordinarily hard and slow work, and social scientific evidence shows that Aboriginal nations in the United States have often been able to achieve their most important victories through forming specific relationships over the long term, while continually building capacities to make further use of small opportunities when these arise.28 While there are stronger psychological reasons to fear co-optation in the Canadian case, given the ways in which legal conceptions structure larger patterns of social discourse, there are nonetheless many opportunities for assertive and transparent speech here, as well, and good reasons to believe that many political leaders are able to maintain the relevant distinction between strategic action and open deliberation to keep a clear perspective. This kind of politics is often mostly invisible to Aboriginal community members in its details, and it is understandably frustrating to those who are not in the midst of these political conflicts that achievements are often small and merely tactical. The amount that tribal leaders have been able to achieve over the last decades in the United States and Canada is, however, astonishing when seen within the longer historical perspective.
All of this said, there are certainly understandable reasons for Aboriginal actors to regard such deep involvement in the politics of colonial states with considerable skepticism and concern, and to see something distasteful in this kind of strategic action toward small goals that may or may not be secured. Few of us as individuals want to become merely strategic thinkers, and this is especially so in conditions of persistent injustice. Moreover, there are always reasons to fear that adopting means of this sort may foreclose reaching the goals one wants to achieve.29 If one wants to achieve a political world in which people deliberate fairly about how they can live together in conditions of mutual respect, can this really be achieved by leaders that routinely act strategically in political matters?30 Can people really maintain clarity about their real political goals once strategic thinking has infected their character at a deep level? Perhaps more pressingly, can a self-respecting person tolerate the pursuit of change by means that—one might argue—require a kind of scraping and bowing to the dictates of illegitimate forms of power?31 At least some Aboriginal actors answer no to these questions. Some call instead for a more direct kind of illegal action, one that calls into question the (p.134) pretensions of unjust institutions to secure the goals of law at all. In the remainder of the chapter, I want to take up the challenge of the more assertive form of lawbreaking that I have described as nullification, focusing on cases that involve defensive-oriented armed resistance, often at reservation boundaries, but in some cases beyond them.
4.3 Nullification and Deliberative Directness
As I will use the term here, nullification refers to efforts to strongly refuse the application of a legal system or some of its key assertions to a group or territory, generally in favor of a counter-law that is regarded as more effective or legitimate. Nullification as intended here can apply either at the level of specific primary rules (ordinary laws) or at the level of secondary rules (institutional authority). In the latter case, nullification commonly rejects the claim of specific institutions to instantiate the ideal of the rule of law in the appropriate way, and it asserts that another set of institutions or other authorities should be followed instead. In both cases, the goal is to directly prevent certain kinds of outcomes or legal operations, by preventing those who otherwise seek to carry them out from doing what they intend. While there is a clear communicative intent to actions of this kind, they are best understood as oriented primarily toward conveying refusal to police, bureaucrats, and others who are seeking to directly exercise legal authority. When these efforts are intended to be short term and are oriented primarily at communication with the public at large or other uninvolved third parties, on the other hand, they are probably best understood as forms of appeal (discussed earlier) rather than nullification.
Although the practices of nullification and appeal are analytically distinct, they are often mixed in actual cases. The extensive protests against the Dakota Access Pipeline by members of the Sioux community at Standing Rock, for example, began with a legal case, then became an attempt to directly blockade the pipeline’s construction—nullification—which then increased in visibility to become a nationally visible appeal for a change in American policy.32 Canada’s Idle No More movement went in somewhat the opposite direction, beginning as a national appeal against governmental removal of environmental (p.135) and other protections for Aboriginal communities, and then moving toward a nullification model in many locations, as blockades were set up to resource-extraction projects.33 As a large-scale movement, Idle No More thus was pursued through multiple strategic approaches, with large-scale public marches and other kinds of mechanisms of appeal coupled with blockades and other efforts at nullification that often took place in remote locations far from media coverage and the public eye.
To bring the issues that nullification may raise into sharp focus, I want to focus here on a very high-stakes form of nullification, that of defensive armed resistance at the border of a reserve or other Aboriginal lands. I want to consider armed resistance of this kind both because it has sometimes been advocated and pursued in Canada over the past decades and because it sets a high argumentative bar for permissions of political action. If nullification of this stark kind is permissible, then less intense kinds of nullification are also likely to be readily accepted. At the same time, I want to set aside entirely the potential for cases of permissible offensive armed resistance, since this raises much more complicated issues and sets a much higher bar of proportionality.34 There were historic cases in which such actions were undoubtedly legitimate, such as when Aboriginal fighters attacked cavalry troops before they could round up communities onto prison-like reservation spaces.35 Exactly when conditions changed sufficiently to make action of this kind inappropriate is a complex question that I will not seek to adjudicate.36 Rather, I will simply set such options aside here. To avoid complex questions that would require extended discussion for many non-Aboriginal readers I will also, as noted above, set aside discussion of retained forms of inherent Aboriginal sovereignty and focus only on acts of nullification against laws or policies that violate substantive protections in determinate ways, such that the assertion of counter-law is seen as necessary to correct specific kinds of abuses, rather than an assertion of the alternate legal system’s inherent applicability. Questions of the latter kind would need a separate and extended treatment.37 What I consider here, then, is not “national wars of liberation,” but specific forms of nullification that are backed up by at least the threat of violent reactions to some kinds of incursions.
Consider, then, a more defensive resort to armed resistance of the kind that been attempted in Canada within recent decades, and which (p.136) has supporters among Aboriginal groups on both sides of the border. Consider a situation, drawing on elements of several that have actually occurred, in which an Aboriginal group takes up arms at the boundaries of their legally recognized territories to blockade a project that is reasonably expected to have harmful effects. Perhaps it is a dam that will flood central portions of their lands38; perhaps a pipeline with a high chance of rupturing near water supplies39; perhaps it is a method of extracting oil from shale that is expected to cause profound environmental harms40; perhaps it is a facility to dispose of nuclear or other toxic forms of waste that will threaten their community’s health for generations41; perhaps it is non-Aboriginal workers from resource industries who will not be controllable by tribal law enforcement42; or perhaps it is a conjunction of several such threats or ongoing harms. Whatever the specifics, this is an instance in which Canadian or American law permits or requires actions that will create profound harms to already-disadvantaged Aboriginal communities. In this situation, armed Aboriginal people put themselves in the path of this harmful project, and prepare to use force if necessary to prevent its continuance.43 Armed blockades of this kind have occurred in the past: the 182-day standoff at Oka between armed Aboriginal blockaders and Canadian military forces in 199244 is only the most prominent of several instances.45 In our example, presume that harms will indeed occur to the community in the absence of the armed blockade, and that these harms represent the continuance of a longer pattern of offloading harms onto those involved. Deliberation, political lobbying, and other forms of appeal have not worked, so that other plausible options have already been effectively exhausted.
How dire would conditions have to be for the relevant permissions to be activated? Although this is a question of proportionality, a topic to be examined in Chapter 5, the distinctiveness of this case requires some sense of the depth of the severity needed here. While it is tempting to respond that that armed nullification of this kind can be permissible only when the Aboriginal community is acting to prevent incipient lethal threats, this seems to set the bar too high. Most of us accept potentially lethal counter-violence against an attacker that plans to kidnap oneself or one’s family, for example, or who plans to deprive them of medications necessary to their health (e.g., for patients suffering from nonfatal but painful and debilitating conditions). Moreover, what is at stake here is not immediately the use of (p.137) violence, but the expressed preparation to use counter-violence if certain kinds of aggressive actions are undertaken by others. In this way, armed nullification has similarities to many kinds of actions undertaken by police, who are armed but only anticipate the use of force in circumstances of direct resistance to their efforts at securing legality. Police are commonly armed even where they are seeking to disrupt only minor instances of lawbreaking, since this both facilitates compliance with law’s requirements and is necessary for their own self-defense. It does not seem to be the case, then, that armed nullification is appropriate only against actively murderous incursions. Rather, it seems permissible in a substantially broader range of cases.
Although any standards will be difficult to define exactly, it seems to me that armed nullification is permissible in conditions that create deep and pervasive damage to the character of an intergenerational community, such that human flourishing will be difficult for those involved for extended periods, where there are no plausible alternative strategies for escaping these conditions. On this standard, armed nullification would be permissible both in response to new governmental policies that show clear threats of creating such damage, and in response to long-standing policies that lock such harms into place.46 This seems clearly to be the case with policies of resource extraction that will cause massive environmental harm to the territories in which Aboriginal communities live, but it also arguably extends, for example, to the archaic morass of Federal strictures that continue to freeze many reservation communities into social near-immobility.47 At the same time, the potential exercise of armed force, even in a defensive way, requires a very clear articulation of the conditions under which violence will be avoided. The analogy with police is again helpful here: police must clearly identify themselves and must be clear about the kind of compliance that they are demanding from others. Those who are potentially subject to the actions of police also have the clear right to know what violations of legality they are charged with. This suggests that those who exercise permissions to armed nullification must state clearly the conditions under which they might make use of their arms, and that they must be as specific as possible about the kinds of harms they are seeking to prevent or end. Such transparency also seems to require the avoidance of “mission creep,” in which justifications shift or demands inflate over time. Where appeals are concerned, such protean arguments seem (p.138) permissible (even if not always wise), but the stakes here seem to require a higher bar of clear and consistent explanation of what one is doing.
Arguments for such permissions are of course likely to draw several objections. The most sweeping is that such permissions would constitute a kind of incipient anarchy, with the potential for destruction of all legal order entirely.48 Yet this objection seems to sacrifice too much to even persistently harmful legal structures, and to treat permissions to nullification as general rights rather than those that are specific to conditions of persistent injustice. As I noted in Chapter 2, there are always problems of messaging where permissions for those facing conditions of persistent injustice are concerned, since there are many behaviors appropriate for those in such conditions that should not be encouraged for others. Actions of this kind could indeed be destabilizing if they were adopted for wide use by those who are not suffering conditions of persistent injustice. (This may also be true where those suffering injustice have large population sizes relative to other populations within a country, though ironically a right to revolution is generally acknowledged without hesitation where those experiencing profound injustices form a majority.) It is hard to see that permissions to armed nullification for Aboriginal communities facing threats to their basic moral interests would have these kinds of chaos-inducing effects in North American contexts, however. Such actions are more likely to create backlash by state institutions themselves in the name of asserting legality, so that the harms this strategy may create are more likely to be borne by Aboriginal groups themselves (discussed below). This strategy is in practice more likely to be underutilized than overutilized in these conditions.
Moreover, the efforts at nullification that have actually been made by Aboriginal peoples in North American have been constructed to convey a great deal of respect for the rule of law as an ideal, often invoking the positive and protective aspects of law that they believe should be upheld. Those who take up arms at the borders of a reservation or a land claim usually express clearly their sense that force has replaced the aspiration to a legal order based on discussion and negotiation, for example.49 Indeed, the goal of nullification seems to be a highly important one from the perspective of the aspiration to legality. The goal of nullification is to ensure that mistreatment is not simply borne without response, so that law cannot simply be used as (p.139) a blunt instrument to dominate Aboriginal peoples or others without reference to the ultimate normative goals it is intended to serve.50 There are of course good reasons to find other ways of pursuing the same goals, where these are reasonably available.51 But targeted actions of this kind by Aboriginal peoples are unlikely to undercut the legal stability of countries such as the United States and Canada in any strong way. The risk of undermining the enterprise of law in these circumstances is thus not entirely negligible, but it seems vastly overblown to frame such permissions as a recipe for chaos.
The more pressing worry about such permissions in conditions of persistent injustice is that efforts at armed nullification would be undertaken too lightly, in ill-considered ways that make the explosion of actual violence too likely, as, for example, young male activists move too readily to this kind of strategy or pursue it in explosively energetic ways. Armed nullification is an intrinsically high-stakes kind of politics, and one might worry that acknowledging such permissions in principle would foster intemperate decision by hot-tempered rather than cool-headed political actors. Given these dangers, it seems that such permissions must generally be taken up only through carefully procedural means. As I noted early in the chapter, formal legal procedures can have a great deal of value in gathering information, weighting different kinds of considerations, fostering compromises, and so on. This is as true within Aboriginal communities as it is within any others. Aboriginal groups contemplating nullification should give careful thought to their procedural means of evaluation to ensure careful thinking here: if young men are especially likely to act precipitously, for example, procedural mechanisms that include women and older people would seem especially important. In the case of Aboriginal peoples, this proceduralism may be carried out more readily than is the case for many other groups facing persistent injustice, since most Aboriginal groups have long-standing legal procedures of their own that can be consulted in cases of potential nullification.52 Even with procedural methods of evaluation in place, such efforts may sometimes misfire. But this concern also applies to state forms of proceduralism, which have a long record of continuing the legal failures that justify such permissions in the first place. One cannot take refuge in a fantasy of neutral and effective state institutions here—it is their absence that raises this question to begin with.
(p.140) If proceduralism is important to the appropriate use of such methods, it seems that permissions to attempt armed nullification when necessary entail the permission to engage in careful preparations for such efforts. Given the difficulties of evaluating particular kinds of conditions and of organizing for them on the fly, these attempts are likely to be more well-calibrated when those who will carry them out plan in advance and train themselves to act carefully if the event comes about. Some Aboriginal activists have sought to prepare for political actions of this kind on a relatively broad scale, ideally in a form that would bring about fundamental changes in the ways that Canada and the United States interact with Aboriginal communities. Mohawk political theorist Taiaiake Alfred, for example, describes an interview with one Aboriginal activist in the early 2000s, who was seeking to train a substantial force of armed young men, with the goal of preventing Canadian recourse to violence rather than negotiation and political engagement. “If we had multiple ‘Okas’ happening simultaneously,” the activist asks, “How are they going to handle it? That would be military overstretch. They couldn’t handle it.”53 This activist did not imagine driving out the Canadian state by force, but hoped to prevent force from being deployed to settle conflicts in violent and nonconsensual ways:
The question is how do we direct and shape all of that to create the force we need to stand as a deterrent to the colonial enterprise. I don’t see us as having a strong enough military power to conquer Canada, but I do see us having the strength to create a condition of deterrence where colonial domination becomes very difficult for Canada to continue. This will create the physical and political space for us to pursue our own definition of our rights and our way of life.54
What is at stake here is not aggressive war, but the ability to respond to violence with counter-violence when necessary, by preparing individuals and appropriate organizational structures to engage in widespread acts of nullification where necessary. There are obviously multiple ways in which efforts of this kind could take place, and it would make a great deal of difference how such preparations were organized: if they were primarily planned and executed by young men rather than the full range of Aboriginal community members, for example, one would have reasons to expect dangerously misplaced actions. But there are surely many ways of preparing (p.141) that ensure the moral seriousness of such action remains central to planning and deliberation.
4.4 The Costs of Armed Virtue
As I have noted throughout the book, political actions may often transform those who engage in them. What kinds of transformations of Aboriginal communities might strategies of this kind bring about? Preparation for strategies of this kind might arguably have many positive deliberative benefits, in opening space for discussions within Aboriginal community beyond the preferred discourses of the state. If one is already pushing back against state discourses in particular cases, it will presumably often be easier to open up discussion of new kinds of possibilities beyond those discourses.55 Moreover, where nullification efforts actually succeed in opening more extensive space for the operation of Aboriginal decision-making, this might allow Aboriginal communities a greater chance to speak honestly among one another about what their real goals are and about how social life should be organized.56 These effects might be especially strong where nullification operates not only for a brief period, but over a longer horizon to open political space for forms of counter-law to emerge (e.g., in terms of resource management, criminal law, or property arrangements), because this allows for an interplay between deliberation and practice. This would allow, for example, Aboriginal communities a greater chance to speak honestly among one another about what their real goals are, to test these visions in practice, and to see how satisfactory they seem once attempted.57
Insofar as an Aboriginal group is able to build the space to deliberate away from state institutions, it is likely to be able to offer a clearer set of alternatives to currently existing conditions to its members and eventually to formulate these alternatives in more developed terms for nonmembers.58 One of the central virtues of a nullification strategy of this kind is its honesty and directness in regard to outsiders, even when reasons are not directly offered in justification59: the basic claim about the injustice of existing law is usually clear without restatement.60 Where Aboriginal groups have the political space to develop their own options clearly, however, (p.142) they may be able to offer something stronger and even more compelling to outsiders, so that deliberation can ultimately proceed in more fruitful directions. When done correctly, then, there is an appealing kind of deliberative transparency associated with this kind of nullification that may potentially have important benefits.
On the other hand, such normative permissions can come with high costs for Aboriginal groups themselves, and I want to think about these carefully. This will help non-Aboriginal readers to think about the ways in which political action may further burden those facing persistent injustice, even if their actions are ultimately successful. It will also help Aboriginal readers to think about the ways in which they agree or disagree with my judgments here and to better articulate their own expectations. None of the arguments in the remainder of this section should be understood as arguments against the permission to attempt these means. Rather, they are ways of thinking about the prudential wisdom of doing so. Many of the concerns here will be even more strongly colored by empirical presumptions than the arguments above, with particular focus on the potential psychological effects of attempts at nullification. I encourage those who disagree about the mix of normative and empirical claims in this section, as in the book as a whole, to think about how they would sketch out their own position instead.
One of the primary benefits of armed nullification for those who engage in it lies in its honesty and directness, and much of its appeal may come from its relation to the self-respect of those who would pursue it. Armed nullification comes without scraping and bowing to the dictates of ostensible laws that instantiate persistent injustice. Since self-respect is an important part of human flourishing, this deserves weight in its own right. Many Aboriginal scholars and activists reject the Aboriginal political institutions that are currently recognized by states (band councils and so on) precisely because they regard them as co-opted, with those who fill these offices unwilling to speak freely, or unable to remember what is worth saying. I have noted already that this judgment seems to me mistaken toward most tribal leaders, who often work extremely hard to create conditions in which they can speak openly and honestly to good political effect. But one should take seriously the feelings of revulsion that such political action can reasonably engender, even for those who see it as morally permissible.61
(p.143) Given the pathways by which change has occurred for Aboriginal peoples over the past few decades, however, I believe that this kind of continual engagement with state institutions is unavoidable, despite the reasonable distaste it generates. Rather than leading to widespread weakening of state institutions, past examples of attempted nullifications suggest the most likely results to be either small-scale victories or inconclusive exhaustion of the effort over time. In some cases high-profile attempts at nullification have had powerful impacts, especially when publicity transformed them into something like appeals to a broader public. The 1992 confrontation at Oka helped to spur Canada’s Royal Commission on Aboriginal Peoples, and the Commission’s report played an important role in restructuring debates in certain fields of Canadian discourse (especially academic fields, where the benefits of discourse change are often delayed until students reach professional maturity).62 But most efforts do not have this public effect, and those that do seem to diminish over time in their discursive impact, as a kind of annoyance or boredom sets in among initially sympathetic non-Aboriginal people. When the attention of the non-Aboriginal public wanes, Aboriginal leaders are likely to find themselves back where they were before: with the attention of certain branches of state institutions and few others.63 Aboriginal nations thus seem required, as matters of brute political fact, to strike legal relationships with the states that now surround them and with the bureaucracies with which they interact on an everyday basis. This is a great deal of hard work, and is precisely what existing tribal leaders are in the business of pursuing every day. Nullification efforts seem unable to supplant this, though that does not mean it is mistaken to attempt them.
Extended attempts at nullification may, moreover, be harmful for Aboriginal individuals and communities in their overall effects, since the processes by which one social change is pursued can have a channeling effect on the kinds of persons and communities that exist by its conclusion.64 Of course, one has to be careful here about such psychological predictions, so my suggestions should be evaluated with special care. Despite the hopes of the activist noted above for armed action, nullification of this kind seems to me unlikely to have positive effects for those individuals who engage in them if continued for very long.65 To undertake resistance of this (p.144) kind, one needs first of all the virtues of courage and self-controlling readiness to sacrifice for others. Even if one is not actually harmed physically, waiting in a state of readiness during cold nights and hot days is challenging, and those who engage in it will be required to transform themselves to at least some degree if they are to bear it. Focusing on courage and self-control of this sort may unfortunately take energy away from other kinds of virtues: compassion, for example, may be hard when one is focusing on controlling fear, exhaustion, and anger.66 Some kinds of self-control may also suffer over the long term, as, for example, alcohol use or other self-harming behaviors become a way to defuse the stresses associated with maintaining courage. These efforts, at the same time, may harm relationships with growing children or failing elders. Contention is demanding, and rising to meet those demands will sometimes harm other things of great value.67
These concerns are, of course, speculative, and there are potential psychological gains that may outweigh them.68 Most Aboriginal nations are composed of people who have been treated badly for a very long time, and many Aboriginal communities already suffer from many of the burdens noted above (excessive alcohol use, disrupted families, and so on). Having something determinate to struggle for in honest and direct ways, and a clear sense that one’s actions can actually make a difference in the world, may often be transformative in unexpected ways.69 When communities are already fractured and often psychologically anomic, an injection of purposefulness and an active seeking for courage may improve many lives on its own terms.70 Moreover, a sense that the future is in at least important ways yet to be determined can give many reasons for engaging in political deliberation with a kind of energy that might not otherwise occur, such that people become engaged with political events that they might otherwise have seen as hopeless. Nonetheless, it seems unlikely to me (at least) that these good effects would outweigh the bad on balance as the length of confrontation increases. Over the short term, defensive armed resistance or unarmed analogues of direct action seem likely to have an energizing effect. Over the long term, however, these good effects seem unlikely to continue: the energy of constant courage can exhaust. If the purpose of resistance is to create space for Aboriginal lives in Aboriginal ways, then resistance might unfortunately foreclose its own goals over the longer term: unless (p.145) there is nothing to being Aboriginal besides courage and resistance to injustice, much of what one hopes to defend might be sacrificed in the attempt. Or so it appears to me. Others will reasonably disagree, and judgments about which of these predictions is correct will be central to deciding on the prudence of actions of this kind.
Concerns about the efficacy and potential harms of nullification suggest to me that the exercise of such permissions should form only one part of a broader palette of political action. It seems worthwhile for some Aboriginal activists to demand this kind of honest and direct action of themselves and others in especially consequential cases.71 To do this, they will have to prepare, and others will have to help them. Yet it seems to me too strong to hope that this method can achieve anything like what the activist described above hoped for.72 Exercising permissions to armed nullification instead seems to require the kinds of division of labor noted in Chapter 3, in which some pursue different kinds of strategies and approaches. It may not matter if this division of labor is between one Aboriginal community and another or between one organization and another or some other option. Rotating the burdens of nullification seems essential both for those who practice it and for those who may benefit by it (which may not always be the same people). In practice, something like this is what tends to happen: one band or tribe finds something especially strong around which to crystalize its actions for a time, and then, eventually, its contention fades through exhaustion or processes of bargaining with the state, before another takes its place.73 There are many uncertain judgments here about how such political action is best performed. It may be that something systemic might be best, such that one Aboriginal community rotates the strategy on to the next, but perhaps not—predictable routines may make such actions easier for non-Aboriginal actors to naturalize and ignore. There is a great deal of room for strategic coordination here, and I know of nothing to contribute to conversations of this kind.74
4.5 Legality, Permissions, and Disagreement
The goal of this chapter has been to outline ways in which normative permissions to violate existing law can contribute to the aspirations that justify legality. I have sought to outline two kinds of potentially (p.146) controversial strategies by which those facing conditions of persistent injustice might permissibly seek to improve the legal conditions in which they exist. Some of the later sections of the chapter will inevitably have been unfamiliar territory for those who do not focus closely on Aboriginal politics, with the plausibility of the various empirical claims made hard to evaluate. For Aboriginal readers or those who know the political details well, the discussion may have seemed somewhat sparse. My hope is that both sides will seek to fill in the relevant details as necessary to evaluate further the merits or demerits of the arguments here. There is a great deal of work that Anglo-American political philosophy needs to carry out in thinking about issues of this kind, and such thinking can be carried out only in conversation with those who engage in political action on an everyday basis. I hope this chapter has provided some tools for thinking about how those deliberative engagements might proceed.
Before concluding, I do want to draw attention to the ways in which different strategies within the bounds of these permissions may create differing costs and benefits and, therefore, reasonable disagreements among those who have them about how to proceed. Given the ways in which different strategies may have divergent likelihoods of success in different circumstances, it seems likely, as I noted above, that Aboriginal peoples and others facing conditions of persistent injustice will fare best when they pursue a mix of political strategies in seeking to improve their conditions. Because the kinds of habits and characters necessary for individuals to undertake different kinds of strategies are likely to differ, however, it seems unlikely that the same persons can fulfill multiple roles at any given time. This suggests that multiple kinds of actually complementary political action may feel or appear to be working at cross-purposes, or actually be doing so over the short term, given the difficulties of predicting political outcomes.
Aboriginal communities, like all human communities, would be divided in a variety of ways in even the best of conditions. But given the difficulties of overcoming persistent injustice, there will be reasonable disagreement about the appropriate limits of compromise, the degree to which particular styles of argument or action create or occlude normative clarity, and about which strategies are likely to be most effective in given conditions. Moreover, it would be too much to ask those pursuing different styles of political action to exercise a (p.147) great deal of sympathetic understanding toward one another in the midst of contention with flawed social institutions. As I noted in Chapter 3, these kinds of divisions often look to non-Aboriginal outsiders like evidence that Aboriginal communities do not know what they want or that they are unable to manage their common social lives effectively. In fact, however, these kinds of divisions seem to be a reasonable response to difficult political conditions.
We who are non-Aboriginal, and who seek to play a role in the remediation of injustice, should recognize the structure of the political conflicts that this context creates. Politics in difficult conditions is hard work, and where we see unsavory social divisions or apparent exercises of non-deliberative power, we should often look first at the causal role played by our own political institutions in these outcomes. Chapter 5 will turn to the examination of political conflict in an even sharper fashion—where groups must contend not only internally over strategic choices but also externally with other groups of the disadvantaged, whose moral interests are likewise unlikely to be met within a hostile political environment. The questions here are difficult and painful, but they seem unavoidable within flawed legal and deliberative institutions.
(1.) For the difficulties of consent-based accounts of political authority, see, e.g., A. John Simmons, Moral Principles and Political Obligations (Princeton: Princeton University Press, 1979). Nothing hinges on this initial mention of consent here. I invoke it only to call attention to law’s need for some form of normative justification. Most any plausible view of law is likely to lead to conclusions like those discussed in this chapter.
(2.) The discussion here is intended to be consistent with many jurisprudential frameworks, so long as they acknowledge that laws do not continue to bind when they cross a reasonable threshold of harmfulness or wrongness, since there is no obvious gain in locking the discussion into the full theoretical apparatus of such a position. The arguments here are most easily reached through the lens of a natural duty of justice as outlined in John Rawls, A Theory of Justice (Cambridge, MA: Harvard University Press, 1971), ch 6, and as, e.g., evaluated in detail by Tommie Shelby, Dark Ghettos: Injustice, Dissent, and Reform (Cambridge, MA: Belknap Press, 2016), 219–23.
(p.148) (3.) The argument here would not change in substantial ways if one entirely rejected arguments that individuals are obligated to obey laws, since those who reject political obligations of this kind generally argue for a generalized deference to existing legal structures given the social benefits they provide. See, e.g., David Lyons, “Moral Judgment, Historical Reality, and Civil Disobedience,” Philosophy and Public Affairs 27 (1998): 31–49. See also Simmons, Moral Principles and Political Obligations, for a defense of “philosophical anarchism.” For those who prefer this position, the argument of this chapter can be restated without loss as a question about appropriate degrees of nonobligatory deference to legal institutions. Interestingly, those who take such positions often seem more comfortable with the evasion of existing laws or direct resistance to them than with legal circumvention of the kind that is outlined in this chapter, though it is hard to say why this should be so.
(4.) See, e.g., the discussion of a “nearly just society” in Rawls, Theory of Justice, 363. As with Rawls, most scholars who focus on the ethics of political action do so for nearly just societies, which often leads to nuanced discussions of civil disobedience but few deeper engagements. For concerns an extension of Rawlsian styles of thought into more profoundly unjust circumstances, see, e.g., Tommie Shelby, “Justice, Deviance, and the Dark Ghetto,” Philosophy and Public Affairs 35 (2007): 126–60.
(5.) For an overview, with suggestions on potential reforms, see, e.g., Jessica A. Shoemaker, “Like Snow in the Spring Time: Allotment, Fractionation, and the Indian Land Tenure Problem,” Wisconsin Law Review 2003 (2003): 729–88. See Shoemaker’s citation of a familiar example at 746 (quoting a legal case):
Tract 1305 [on the Sisseton-Wahpeton Lake Traverse Sioux Reservation] is 40 acres and produces $1,080 in income annually. It is valued at $8,000. It has 439 owners, one-third of whom receive less than $.05 in annual rent and two-thirds of whom receive less than $1. The largest interest holder receives $82.85 annually. The common denominator used to compute fractional interests in the property is 3,394,923,840,000. The smallest heir receives $.01 every 177 years. If the tract were sold (assuming the 439 owners could agree) for its estimated $8,000 value, he would be entitled to $.000418. The administrative costs of handling this tract are estimated by the Bureau of Indian Affairs at $17,560 annually.
For an overview of attempts to solve the problem after the publication of Shoemaker’s article, see, e.g., Jered T. Davidson, “This Land is Your Land, This Land is My Land? Why the Cobell Settlement Will Not Resolve Indian Land Fractionalization,” American Indian Law Review 35 (2010–2011): 575–619.
(p.149) (6.) The maldistribution of environmental harms is sometimes the result of racist presumptions, in which Aboriginal peoples are framed as biologically inferior and, therefore, less deserving of concern. In the present day, however, this seems more often to arise from poorly designed legal structures that were constructed in eras when such discourses exercised more direct influence. There are also more fundamental issues about ways of life involved where environmental harms are concerned, given the ways in which settler colonialism involves attempts to foundationally refashion the manner in which land is used and understood. See, e.g., Kyle Powys Whyte, “The Dakota Access Pipeline, Environmental Injustice, and U.S. Colonialism,” Red Ink 19 (2017): 154–69. See also Kyle Powys Whyte, “Our Ancestors’ Dystopia Now: Indigenous Conservation and the Anthropocene,” in Ursula Heise, Jon Christensen, and Michelle Niemann, eds., Routledge Companion to the Environmental Humanities (London: Routledge, 2017), 206–15, and Avery Kolers, Land, Conflict, and Justice: A Political Theory of Territory (Cambridge: Cambridge University Press, 2009), ch 4.
(7.) The distinction between these two kinds of rules is canonically articulated in H. L. A. Hart, The Concept of Law (Second Edition) (Oxford: Oxford University Press, 1997), at 80–1, though Hart’s own preferred terminology is “primary” and “secondary” rules. The view of legality presented in this chapter has more in common with the natural law theories that Hart rejected than with Hart’s own understanding of law. For Hart’s plausible insistence that law should be seen as conceptually distinct from morality, see Concept of Law, ch 8. For a position that law has within it an intrinsic morality, see, e.g., Lon L. Fuller, The Morality of Law (Revised Edition) (New Haven: Yale University Press, 1969), especially chs 2 and 5. The substantive arguments here remain the same in any case; both views provide clear grounds for arguing that specific laws often fail in morally profound ways.
(8.) I draw the terminology of nullification from the nineteenth-century work of Pequot orator William Apess, who sought to protect members of the Mashpee Indian community for whom he was a minister from abusive Massachusetts laws. See Indian Nullification of the Unconstitutional Laws of Massachusetts Relative to the Mashpee Tribe: or, The Pretended Riot Explained (1835), reprinted in Barry O’Connell, ed., On Our Own Ground: The Complete Writings of William Apess, a Pequot (Amherst: University of Massachusetts Press, 1991), 163–274. Although this usage of the term may be somewhat unfamiliar to most of those working in Anglo-American political philosophy, its usage will be familiar to many in Aboriginal Studies and is intended as a reminder that strategies of this kind have a very long history.
(p.150) (9.) A recent overview and analysis of work on civil disobedience contrasted this style of action with “other types of political action, including lawful protest, conscientious objection, armed resistance, and revolution.” The fact that neither deceptive speech nor circumvention appear indicates the general discomfort that philosophical work has with actions of this kind. See Candice Delmas, “Civil Disobedience,” Philosophy Compass 11 (2016): 681–91 at 681.
(10.) For a clear discussion of civil disobedience within the logic of deliberative theory, see, e.g., William Smith, “Democracy, Deliberation, and Disobedience,” Res Publica 10 (2004): 353–77; see also, if more narrowly, William Smith, “Civil Disobedience and the Public Sphere,” Journal of Political Philosophy 19 (2011): 145–66 at 169–70.
(11.) The intellectual history of civil disobedience is a long one. The reasons offered for accepting punishment are not always clearly articulated. In many cases, the presumption is that one has a moral duty to accept punishment, but in other cases, the acceptance of punishment is understood as a matter of political efficacy. In some cases, the willingness to accept punishment is understood as a matter of duties to oneself as well, as in the thought of Mahatma Gandhi. For examples of Gandhi’s views, see, e.g., Anthony Parel, ed., Gandhi: Hind Swaraj and Other Writings (Cambridge: Cambridge University Press, 2009), 88–97.
(12.) The most famous formulation is that of Thomas Hobbes, Leviathan (Oxford: Oxford University Press, 1996), chs 13–18, but similar views can be found in, e.g., the very different work of Immanuel Kant, The Metaphysics of Morals, ed. Mary Gregor (Cambridge: Cambridge University Press, 1996), §43–9. These arguments are consistent in banning all revolutions, including those in conditions that would generally be judged tyrannical by most observers. Those who endorse extralegal revolutions in some cases cannot easily make a blanket rejection against lesser forms of illegal action for moral purposes. If they wish to reject more prosaic forms of illegality in the name of justice, the burden rests on them to show very precisely why violent revolution is acceptable but peaceful illegality is not.
(13.) Those who fill these offices will often be well-motivated and will seek to instantiate a generally plausible set of moral values when these are framed at a general level. They may nonetheless couple these values with mistaken factual beliefs, or they may fail to recognize the complex ways in which those values must inevitably be instantiated within human societies, or exhibit any of a myriad other kind of mistaken beliefs. Some of those who historically undertook profoundly damaging policies in relation to American Indian nations in the United States, for example, were strongly animated by deep aspirations toward racial (p.151) equality. See, e.g., Richard Henry Pratt, “The Advantages of Mingling Indians with Whites,” in Francis Paul Prucha, ed., Americanizing the American Indians: Writings by the “Friends of the Indian” 1880–1900 (Cambridge, MA: Harvard University Press, 1973), 260–71. This is a general problem of social moral epistemology. See, e.g., Allen Buchanan, “Philosophy and Public Policy: A Role for Social Moral Epistemology,” Journal of Applied Philosophy 26 (2009): 276–90 and Allen Buchanan, “Political Liberalism and Social Epistemology,” Philosophy and Public Affairs 32 (2004): 95–130.
(14.) For a richly detailed discussion of this constitutional law and its relationship to literatures in political theory and philosophy, see S. Ronald Stevenson, The Political Theory of Aboriginal Rights in Canada: Prospects for Reconciliation (PhD Thesis, Faculty of Law, University of Ottawa, 2015).
(15.) Article 1, Section 8, clause 3.
(16.) The doctrine of congressional “plenary power” was originally articulated in United States v. Kagama (1886) 118 U.S. 375. For an analysis of the doctrine, see, e.g., David E. Wilkins and K. Tsianina Lomawaima, Uneven Ground: American Indian Sovereignty and Federal Law (Norman: University of Oklahoma Press, 2002), ch 3.
(17.) For detailed discussions, see the excellent work in Laura E. Evans, Power from Powerlessness: Tribal Governments, Institutional Niches, and American Federalism (Oxford: Oxford University Press, 2011). See also Laura E. Evans, “Expertise and Scale of Conflict: Governments as Advocates in American Indian Politics,” American Political Science Review 105 (2011): 663–82.
(18.) For an overview of some of the ways in which judicially focused political opportunity structures differ from more legislatively oriented structures, see, e.g., Ellen Ann Andersen, Out of the Closets and Into the Courts: Legal Opportunity Structure and Gay Rights Litigation (Ann Arbor: University of Michigan Press, 2006), ch 1. Aboriginal political action in the United States also differs from that of many other social actors because it involves government-to-government relations, which often take place in relatively nonpublic forums. The political opportunity structure of Aboriginal nations thus remains quite different from that of, say, African American communities. This is not at all unusual: while social movement scholars often focus on highly visible forms of contentious politics, most political action takes place in relatively nonvisible environments.
(19.) Scholars working in the Canadian context generally do not seem to realize this difference, though for one acknowledgment and analysis of the different political opportunities following from these conditions, (p.152) see, e.g., John Borrows, Freedom and Indigenous Constitutionalism (Toronto: University of Toronto Press, 2016), 165–6.
(20.) Indian Law Research Center, Restoring Safety to Native Women and Girls and Strengthening Native Nations: A Report on Tribal Capacity for Enhanced Sentencing and Restored Criminal Jurisdiction (Helena, Montana, 2013), 1–3. The area indicated by the ellipses includes most of page 2, since this seemed to make the force of the statistics most transparent. For a fictional but legally accurate—and visceral—account of the jurisdictional chaos surrounding sexual assault on reservation lands, see Louise Erdrich, The Round House (New York: Harper Perennial, 2012), especially 1–12.
(21.) For an overview of this judicial morass, see, e.g., Stephen Pevar, The Rights of Indians and Tribes (Oxford: Oxford University Press, 2012), ch 8. For examples of contestation over this judicial morass at the local level, see, e.g., Thomas Biolsi, Deadliest Enemies: Law and Race Relations On and Off the Rosebud Reservation (Minneapolis: University of Minnesota Press, 2007), especially 141–52.
(22.) Aboriginal people in Canada experience very high levels of violence as well, with even higher rates of incarceration than is typical of Aboriginal peoples living under American law. Aboriginal communities in Canada have only very limited forms of jurisdiction on reservation lands under the Indian Act, treaties, or the Constitution Act of 1982. See, e.g., David Milward, Aboriginal Justice and the Charter: Realizing a Culturally Sensitive Interpretation of Legal Rights (Vancouver: UBC Press, 2012), ch 3. Unsurprisingly in light of his Canadian context, Milward argues for changed policies through the lens of Aboriginal culture, with a focus on judicial interpretations of Aboriginal rights. In the United States, arguments are likely to be targeted at legislation, with a central focus on sovereignty rather than culture. For an account that relies on international law rather than Canadian constitutionalism in defending legal space for Aboriginal justice, see Larry Chartrand, “Eagle Soaring on the Emergent Winds of Indigenous Legal Authority,” Review of Constitutional Studies/Revue d’études constitutionnelles 18 (2013): 49–88. For an argument that Aboriginal legal traditions themselves require careful interpretation and revision to reduce gender violence among members of Aboriginal communities themselves, see Emily Snyder, Val Napoleon, and John Borrows, “Gender and Violence: Drawing on Indigenous Legal Resources,” UBC Law Review 48 (2015): 593–654.
(23.) See, e.g., the rhetoric described in Kevin Bruyneel, “The Colonizer Demands its ‘Fair Share,’ and More: Contemporary American Anti-Tribalism from Arnold Schwarzenegger to the Extreme Right,” New Political Science 28 (2006): 297–321 at 305–8.
(p.153) (24.) The notorious case of Jack Abramoff did not actually involve tribal lawbreaking, although in some quarters it was perceived that way. For a concise overview of Abramoff’s activities and their broader place within Aboriginal politics in the United States, see, e.g., Steven Andrew Light and Kathryn R. L. Rand, “The ‘Tribal Loophole’: Federal Campaign Finance Law and Tribal Political Participation After Jack Abramoff,” Gaming Law Review 10 (2006): 230–9. There are of course complex issues here about how gaming operations are best operated, and what their relationship (if any) should be to Federal law. See, e.g., Kathryn R. L. Rand and Steven Andrew Light, “How Congress Can and Should ‘Fix’ the Indian Gaming Regulatory Act: Recommendations for Law and Policy Reform,” Virginia Journal for Social Policy and the Law 13 (2006): 396–473.
(25.) Aboriginal readers who know United States law are likely to recognize that I have in mind Title IX of the 2013 Violence Against Women Act, which granted tribes who complete a variety of procedural steps the authority to try non-Aboriginal spouses or domestic partners of Aboriginal women living on reservations for sexual assault or domestic violence. This legal change was narrowly tailored, reaching only a small segment of crimes, but it nonetheless faced substantial Congressional opposition. For an overview of the law and examples of the Congressional rhetoric it provoked, see Sarah Deer, The Beginning and End of Rape: Confronting Sexual Violence in Native America (Minneapolis: University of Minnesota Press, 2015), 101–6. Deer’s book as a whole is an excellent overview of many of the difficulties that Aboriginal communities face in trying to prevent sexual violence.
(26.) See the kinds of complex political challenges that many ghetto communities face as outlined in Shelby, Dark Ghettos.
(27.) The deliberative system of the United States has certain strengths for Aboriginal political action relative to that of Canada that should be acknowledged clearly. In Canada, as I noted in Chapter 3, Aboriginal rights debates are primarily judicial debates, so that large constitutional issues must frequently be resolved before even small policy changes occur. In the United States, the legislative supremacy of Congress allows laws and policies relevant to Aboriginal peoples to be changed in more nuanced and experimental ways, which are not clearly anchored into larger patterns of constitutional interpretation or wide national conversations about the political future. Thus the American regime of Aboriginal rights maintains a kind of flexibility and pragmatism that the Canadian system lacks. In Canada, politics has to run virtually the other way—one often needs a justification for a policy before one even knows what it does. As Evans, Power from Powerlessness, (e.g., (p.154) 12–13) has shown in detail, Indian tribes in the United States have been most successful when they have been able to push for micro-changes over time, often by building relationships and capacities in slow step-by-step fashion, without any sort of grand plan to explain what they are doing to outsiders.
(28.) See, e.g., Evans, Power from Powerlessness; most concisely, 12–13 and 201–4.
(29.) Some of the most interesting thoughts about the ways in which methods of political action may foreclose certain kinds of goals are found in the work of Mohandas Gandhi. For an overview, see, e.g., Karuna Mantena, “Another Realism: The Politics of Gandhian Nonviolence,” American Political Science Review 106 (2012): 445–70. For an example of Gandhi’s thinking on this topic, see, e.g., Gandhi: Hind Swaraj and Other Writings, 77–85.
(30.) Michael Walzer, in “The Problem of Dirty Hands,” Philosophy and Public Affairs 2 (1973): 160–80, argues that many kinds of political strategies should be regarded as intrinsically wrong but also as necessary to the greater good. For skepticism about the misuses of arguments from political necessity, see, e.g., Peter Digeser, “Forgiveness and Politics: Dirty Hands and Imperfect Procedures,” Political Theory 26 (1998): 700–24.
(31.) For an argument about moral pride in relation to inner-city African Americans, see Shelby, Dark Ghettos, 99–100. This is something like the “eyeball test” outlined in Philip Pettit, Just Freedom: A Moral Compass for a Complex World (New York: WW Norton, 2014), xxvi. Aboriginal scholars who take this position are cited later in the chapter.
(32.) See, e.g., NPR, “Key Moments in the Dakota Access Pipeline Fight: The Two-Way,” February 22, 2017, available at http://www.npr.org/sections/thetwo-way/2017/02/22/514988040 (accessed August 6, 2018). For an overview of the litigation, see, e.g., Earth Justice, “The Standing Rock Sioux Tribe’s Litigation on the Dakota Access Pipeline,” available at https://earthjustice.org/features/faq-standing-rock-litigation (accessed August 6, 2018). See also Whyte, “Dakota Access Pipeline.”
(33.) See, e.g., the timeline of the movement’s first year in Kino-nda-niimi Collective, eds., The Winter We Danced (Winnipeg: Arbeiter Ring Publishing, 2014), 389–409.
(34.) These kinds of limits are generally accepted by those considering armed resistance in Aboriginal communities. See, e.g., the member of a Warrior society interviewed by Taiaiake Alfred (Wasáse: Indigenous Pathways to Action and Freedom (Peterborough: Broadview Press, 2005), 273): “I don’t think you can justify doing things like blowing up buildings or killing innocent people. We can’t justify initiating (p.155) armed activity…. Our weapons are strictly, strictly, for self-defense.” See also the deliberative framing of this activity by this individual’s partner later in the same interview (277): “I think the real battlefield is in the arena of educated opinion…. Your battlefield is the process of getting people to believe your ideas.”
(35.) Such action may continue to be normatively permissible for some groups categorized as “indigenous” elsewhere in the world, given the frequent violence with which they are faced everyday. For a partial defense of even terroristic violence in conditions of extreme disadvantage, see, e.g., Saul Smilansky, “Terrorism, Justification, and Illusion,” Ethics 114 (2004): 790–85 at 797–8. See also, e.g., Andrew Valls, “Can Terrorism Be Justified?” in Andrew Valls, ed., Ethics in International Affairs: Theories and Cases (Lanham, MD: Rowman and Littlefield, 2000), 65–79 and Cécile Fabre, “Cosmopolitanism, Just War Theory and Legitimate Authority,” International Affairs 84 (2008) 963–76.
(36.) This is not to say that one cannot imagine conditions in which Aboriginal peoples’ recourse to liberatory violence of this kind would be appropriate, but it is probably better that one does not try to imagine them—in the end, the consequences of such imaginings seems likely to far outweigh their benefits. For concerns about the relationship between justified violence and the mistaken ways in which violence is often adopted in practice, see Smilansky, “Terrorism.” For a textured argument for the legitimacy of targeted violence by Aboriginal peoples in North America in the present day, see J. Angelo Corlett, Terrorism: A Philosophical Analysis (Boston: Kluwer Academic Publishers, 2003), ch 7. Corlett’s work unfortunately came to my attention only as the book was in its final stages of revision, so this chapter was written without the benefit of his work. While I find his proposed normative standards for the use of targeted violence toward those responsible for brutalities against Aboriginal peoples plausible, I do not think many examples could meet the requirements of proportionality under current conditions. Given the frequent normative misfires of such efforts noted by Smilansky and the apparent lack of interest in such means by Aboriginal political actors, it seems best to set such possibilities aside here.
(37.) I have written on the topic of full Aboriginal separation from countries such as the United States and Canada elsewhere. See Burke A. Hendrix, Ownership, Authority, and Self-Determination: Moral Principles and Indigenous Rights Claims (Penn State: University Park, 2008). I am now more skeptical of the practical potential for independent Aboriginal political units than I once was, and where complete independence is impossible questions about the effective operation of legal structures like those considered in this chapter remain central.
(p.156) (38.) I have in mind the flooding of most of the Seneca reservation in western New York in 1964. See, e.g., Joy A. Bilharz, The Allegany Senecas and Kinzua Dam: Forced Relocation Through Two Generations (Lincoln: University of Nebraska Press, 1998) and Laurence Marc Hauptman, In the Shadow of Kinzua: The Seneca Nation of Indians since World War II (Syracuse: Syracuse University Press, 2013). Many Aboriginal communities in Canada have faced similar plans, with conflict over hydroelectric developments in northern Quebec leading to Canada’s first modern treaty-like agreement in 1975. For a capsule overview, see Borrows, Freedom and Indigenous Constitutionalism, 61–5.
(39.) This was the primary concern of the Standing Rock blockade, which sought to prevent the completion of the Dakota Access Pipeline where it would run under the Missouri River, which serves as the Standing Rock reservation’s primary water supply. See Whyte, “Dakota Access Pipeline”; see also Carla F. Fredericks and Jesse D. Heibel, “Standing Rock, the Sioux Treaties, and the Limits of the Supremacy Clause,” University of Colorado Law Review 89 (2018): 477–532, sect. VI. Many similar kinds of concerns have been raised by Aboriginal communities against Canadian pipeline plans. See, e.g., Thomas R. Berger, Northern Frontier, Northern Homeland: Report of the Mackenzie Valley Pipeline Inquiry (Ottawa: Minister of Supply and Services Canada, 1977); Gordon Christie, “Indigenous Authority, Canadian Law, and Pipeline Proposals,” Journal of Environmental Law and Practice 25 (2013): 189–215; and Glen Coulthard, “Place Against Empire: The Dene Nation, Land Claims, and the Politics of Recognition in the North,” in Avigail Eisenberg, Jeremy Webber, Glen Coulthard, and Andrée Boiselle, eds., Recognition Versus Self-Determination: Dilemmas of Emancipatory Politics (Vancouver: UBC Press, 2014), 147–73.
(40.) For brief details, see, e.g., David A. Rossiter and Patricia Burke Wood, “Neoliberalism as Shape-Shifter: The Case of Aboriginal Title and the Northern Gateway Pipeline,” Society & Natural Resources 29 (2016): 900–15 at 902–4; see also Jennifer Huseman and Damien Short, “A Slow Industrial Genocide: Tar Sands and the Indigenous Peoples of Northern Alberta,” International Journal of Human Rights 16 (2012): 216–37. It is, of course, not the case that Aboriginal peoples are always opposed to energy extraction. See, e.g., Ezra Rosser, “Ahistorical Indians and Reservation Resources,” Environmental Law 40 (2010): 437–550. What they seek instead is control over the terms by which it occurs. For an overview of attempts by Aboriginal peoples in the United States to gain control over oil and coal extraction on their lands, and the alliance politics that this involved, see James Robert Allison III, Sovereignty for (p.157) Survival: American Energy Development and Indian Self-Determination (New Haven: Yale University Press, 2015).
(41.) As with debates about the proposed nuclear waste storage facilities at Yucca Mountain; see, e.g., Danielle Endres, “Sacred Land or National Sacrifice Zone: The Role of Values in the Yucca Mountain Participation Process,” Environmental Communication: A Journal of Nature and Culture 6 (2012): 328–45. See also Doug Brugge, Jamie L. deLemos, and Cat Bui, “The Sequoyah Corporation Fuels Release and the Church Rock Spill: Unpublicized Nuclear Releases in American Indian Communities,” American Journal of Public Health 97 (2007): 1595–600. For the more ambiguous case of storage on Goshute lands at Skull Valley, see, e.g., Noriki Ishiyama, “Environmental Justice and American Indian Tribal Sovereignty: Case Study of a Land–Use Conflict in Skull Valley, Utah,” Antipode 35 (2003): 119–39.
(42.) So-called “man camps” composed of large numbers of male construction workers on or adjacent to Aboriginal lands seem to lead to increased levels of sexual assault and other forms of violence, given the legal gaps described earlier in the chapter. See, e.g., Deer, Beginning and End of Rape, 78.
(43.) Taiaiake Alfred and Lana Lowe, in their study for the Ipperwash Inquiry, found no evidence of aggressive violence by Aboriginal warrior societies in Canada:
Violent confrontations between warrior societies and police and other government agents have only ever occurred when the state agencies have employed violence in the first instance against indigenous people on their own lands. In the modern era, indigenous peoples, including warrior societies, have never initiated violence nor advocated armed aggression against the non indigenous population.
Taiaiake Alfred and Lana Lowe, “Warrior Societies in Contemporary Indigenous Communities,” Background Paper Prepared for the Ipperwash Inquiry, 2005 available at: http://www.attorneygeneral.jus.gov.on.ca/inquiries/ipperwash/policy_part/research/pdf/Alfred_and_Lowe.pdf, 56 (accessed August 6, 2014).
(44.) For accounts of this conflict, see, e.g., Donna Goodleaf, Entering the War Zone: A Mohawk Perspective on Resisting Invasions (Penticton, BC: Theytus Books, 1995); Geoffrey York and Loreen Pindara, The People of the Pines: The Warriors and the Legacy of Oka (Toronto: Little, Brown, and Company, 1991); Amelia Kalant, National Identity and the Conflict at Oka: Native Belonging and Myths of Postcolonial Nationhood in Canada (London: Routledge, 2004); and Harry Swain, Oka: A Political Crisis and Its Legacy (Vancouver: Douglas & McIntyre, 2010).
(p.158) (45.) For a concise overview of several recent encounters between police and Aboriginal protestors (not always armed), see, e.g., Edward J. Hedican, Ipperwash: The Tragic Failure of Canada’s Aboriginal Policy (Toronto: University of Toronto Press, 2013), 97–134 and 155–88. For a discussion of the Caledonia encounter within the framework of the rule of law, see, e.g., Laura DeVries, Conflict in Caledonia: Aboriginal Land Rights and the Rule of Law (Vancouver: University of British Columbia Press, 2011). For an accessible description of land occupations in Canada through 2005 by both Aboriginal peoples and the Canadian state, see John Borrows, “Crown and Aboriginal Occupations of Land: A History & Comparison,” Background Paper Prepared for the Ipperwash Inquiry, 2005 available online at: http://www.attorneygeneral.jus.gov.on.ca/inquiries/ipperwash/policy_part/research/pdf/History_of_Occupations_Borrows.pdf (accessed August 6, 2018). For Aboriginal arguments about the longer-term value of the blockade at Oka, see, e.g., the textured accounts gathered in Leanne Simpson and Kiera L. Ladner, eds., This is an Honour Song: Twenty Years Since the Blockades (Winnipeg: Arbeiter Ring, 2010).
(46.) For one interpretation of why those larger patterns have the structure they do, see, e.g., Christie, “Indigenous Authority, Canadian Law, and Pipeline Proposals.” See also Christie’s arguments about how challenges from outside of Canadian law might have a catalytic effect on broader environmental and economic struggles.
(47.) I have in mind here the continued effects of the nineteenth-century policy of Allotment, which created extremely fractured arrangements for land ownership within many reservation communities, leading to severe difficulties in economic activity. See Shoemaker, “Like Snow in the Spring Time.” Something similar exists on Canadian reserves. For a discussion of the problem and one proposal for overcoming it, see, e.g., Tom Flanagan, Christopher Alcantara, and André Le Dressay, Beyond the Indian Act: Restoring Aboriginal Property Rights (Montreal and Kingston: McGill-Queens University Press, 2010), part 3. Flanagan has often been an unhelpful voice in Canadian Aboriginal policy, but the book’s arguments mirror much of what tribes in the United States have sought to achieve. See, however, the complexities noted in Jamie Baxter and Michael Trebilcock, “‘Formalizing’ Land Tenure in First Nations: Evaluating the Case for Reserve Tenure Reform,” Indigenous Law Journal 7 (2009): 45–122.
(48.) For detailed descriptions of concerns of this sort, see, e.g., DeVries, Conflict in Caledonia, 18–21.
(49.) See, e.g., DeVries, Conflict in Caledonia, 22–4.
(p.159) (50.) An analysis of settler-state law as a tool of domination rather than protection and the steps that might be taken in countering it forms the central topic of Alfred, Wasáse. For the role of direct forms of opposition, see more concisely Alfred and Lowe, “Warrior Societies in Contemporary Indigenous Communities,” and more concisely yet Taiaiake Alfred, “What is Radical Imagination? Indigenous Struggles in Canada,” Affinities: A Journal of Radical Theory, Culture, and Action 4 (2010): 5–8.
(51.) Alfred himself generally rejects armed nullification in favor of unarmed nullification through noncooperation that stops short just at the boundary of violence. Alfred, Wasáse, 77. Alfred is following many others in making this argument, including most importantly Gandhi. See, e.g., Gandhi, Gandhi: Hind Swaraj and Other Writings, 88–97.
(52.) This does not mean that such planning should always go on through the tribal governments that Canada and the United States already recognize, which many Aboriginal activists reject as co-opted. Using other institutions for planning purposes, however, by no means reduces the need for procedural safeguards: ensuring that acts of nullification are not attempted simply by angry young men remains important under all circumstances. Given the gendered dimensions likely to be associated with such ill-considered action, procedural mechanisms that include women and older people seem especially important. Strong roles for women seem to be common in many blockades and occupations. See, e.g., the discussion of Oka/Kanesatake in Goodleaf, Entering the War Zone; Kalant, National Identity and the Conflict at Oka, 185–6. See also Kahente Horn-Miller, “Otiyaner: The ‘Women’s Path’ Through Colonialism,” Atlantis 29 (2005): 57–68.
(53.) Alfred, Wasáse, 74. This is not an implausible claim. For a richly detailed account of the Oka crisis from the perspective of the Canadian military, see P. Whitney Lackenbauer, “Carrying the Burden of Peace: The Mohawks, the Canadian Forces, and the Oka Crisis,” Journal of Military and Strategic Studies 10 (2008): 1–71.
(54.) Alfred, Wasáse, 74. See also Alfred’s interview with Joan and Stewart Philip in Wasáse, 182–3:
To me, there are two kinds of war: wars of offense and wars of defense. We have every right to defend ourselves against an aggressor.…When we talk about being prepared, it’s being prepared to fight against that kind of oppression, because it happens right here, in Mohawk territory, in Gustafson Lake, and at Ipperwash.
(55.) Alfred (Wasáse, 203) argues that “delegitimizing the regime is the most fundamentally radical act one can perform.”
(p.160) (56.) Alfred’s debt to Gandhi’s formulation of satyagraha (truth-force) as a central political value is clear throughout his work, and openly acknowledged. See, e.g., Wasáse, 204:
Can we envision a politics of resurgence that is authentically cultured, spiritually rooted, and committed to non-violence in its strategy and that leads to the creation of a credible threat to the colonial order? For guidance in thinking through this question, we must travel from [North America] to the site of the only mass movement that was founded on the premises we are advocating: India, the site of the Satyagraha…campaign against British imperial rule inspired and led by Mohandas K. Gandhi.
Alfred’s concept of Aboriginal self-determination is in many ways analogous to Gandhi’s use of the term swaraj to refer both to Indian home rule and (more deeply) to individual self-control and self-rule. See, e.g., Wasáse, 55–6, 268–9, and 282. It is surely no accident that the final intellectual figure mentioned in Alfred’s book is Gandhi (citing a notion drawn from his own recurrent study of the Bhagavad Gita).
(57.) Glen Sean Coulthard, Red Skin, White Masks: Rejecting the Colonial Politics of Recognition (Minneapolis: University of Minnesota Press, 2014), argues that forms of direct action allow for “prefigurative” kinds of social experimentation and revitalization in ways that are free of state domination. Such actions “are prefigurative in the sense that they build the skills and social relationships (including those with the land) that are required within and among Indigenous communities to construct alternatives to the colonial relationship in the long run” (166).
(58.) Alfred (Wasáse, 232) clearly conceptualizes communicative success as a foundational element of the political strategies he defends: “The first sign of victory will occur when we define the moral terrain of politics, creating norms of judgment and expectation by which [non-Aboriginal people] will begin to judge and evaluate their own behaviors and choices.”
(59.) Indeed, a simple refusal to deliberate about an issue is often itself an important communicative move. Demonstrating the importance of nonverbal communication in a theory of deliberative democracy is the central goal of Tobold Rollo’s doctoral dissertation, Enactive Democracy: Decolonizing Democratic Theory (Department of Political Science, University of Toronto, 2014). For the importance of refusals to engage in deliberation, see, e.g., Joel Olsen, “The Freshness of Fanaticism: The Abolitionist Defense of Zealotry,” Perspectives on Politics 5 (2007): 685–701 and Joel Olson, “Friends and Enemies, Masters and Slaves: Fanaticism, Wendell Phillips, and the Limits of Democratic Theory,” Journal of Politics 71 (2009): 82–95.
(p.161) (60.) Consider this description of armed resistance from a member of a Warrior society interviewed by Alfred (Wasáse), 273: “Us Mohawks, particularly the Warrior Society, got a bad name because we were always associated with cigarette smuggling and super bingos. I’ll tell you something, when I was out there, it wasn’t for cigarettes and bingo. I was defending the people and the territory.” In conditions as they are, there are few reasons to believe that cigarette smuggling raises troubling moral issues: even if formally illegal, it represents one method of gaining increased resources in conditions of generalized disadvantage. For an evaluation of “smuggling” through the lens of sovereignty, see Audra Simpson, “Subjects of Sovereignty: Indigeneity, the Revenue Rule, and Juridics of Failed Consent,” Law and Contemporary Problems 71 (2008): 191–215. Nonetheless, these kinds of actions can feel petty and unseemly to those who engage in them, and are frequently perceived that way by others. That is rarely the case with blockades and other forms of stand-offs, where individuals are directly putting their bodies on the line to express an argument.
(61.) See, e.g., Alfred, Wasáse, 104:
[T]he legalist approach has created within indigenous struggles an inauthentic, guilt-ridden, condescending, and degrading agenda full of cries for redemption, groveling for pity, and begging for a merciful end to mistreatment at white hands…. [W]e must advance an agenda of social equality and political pluralism by shining the light of radical truth through the fog of racial prejudice and overwrought attachment to colonial institutions that make up the state and culture of colonial society.
(63.) It seems unlikely that long-term nullification could be a long-term solution for more than a handful of Aboriginal peoples even with very careful organization, despite the hopes of the activist cited above. For any foreseeable future, Aboriginal nations will continue to be surrounded by a vastly larger non-Aboriginal population that controls many of the material goods needed to make life bearable. While some reservations in the United States are quite large, none of them is self-sufficient economically, and few have, for example, sufficient water supplies to be able to get by without striking detailed agreements with the non-Aboriginal government agencies controlling lands and resources beyond their borders. In Canada, many band reserves are very small spaces. While some have at least limited prospects for surviving on international trade (e.g., those on coastlines), it is hard to imagine how this could be managed for more than a few months when (p.162) faced with the hostility of surrounding countries. Parts of the Canadian North are more promising in terms of the resources they hold, but their very size makes them unpromising as locations for armed nullification: there are simply not enough people to blockade state agents in a meaningful way. I was more hopeful about the possibility of full Aboriginal political independence in Hendrix, Ownership, chs 7–8, than I now am.
(64.) See Alfred, Wasáse, e.g., 201–3.
(65.) Alfred (e.g., Wasáse, 87–9) seems to believe that the virtues necessary for effective political contention are also, in general, the virtues necessary for a well-lived life (in, e.g., his discussion of the importance of spirituality, avoidance of “essentially meaningless” (88) forms of life, and simplicity), though at some points he acknowledges that those engaged in contention may be overstrained in their need for courage (52). At a minimum, his position seems to be that those who train themselves for contention will come very close to a fully realized human life, and that most of the virtues he describes will be necessary for a good life even by those who do not engage in contention. It is not obvious to me, however, that the sets of virtues necessary for successful contention really do hold so closely together with those suiting a well-lived life in noncontentious conditions. For the argument that some contextually specific virtues may burden those who hold them, see Lisa Tessman, Burdened Virtues: Virtue Ethics for Liberatory Struggles (Oxford: Oxford University Press, 2005), chs 1, 5–6. If contention and negotiation with hegemonic political structures both entail some loss of ideal personal character and human flourishing, then the decision between them may be less obvious, depending upon judgments about relative chances of success rather than on the harm to the individuals involved themselves.
(66.) Here I draw from Tessman’s analysis of anger and other potentially self-harming characteristics that may nonetheless be necessary for some kinds of political struggles. See Tessman, Burdened Virtues, 117–31.
(67.) Alfred (Wasáse, 27) offers reasons to reject violence that also may apply to long-standing forms of nonviolent contention:
I find it very difficult to see any value in asking our future generations to form their identities on and live lives of aggression: would this not validate and maintain the enemy colonizer as an omnipresent and superior reality of our existence for generations to come? This is not the legacy we want to leave for our children.
Given the degree to which political contention calls into play some virtues and not others, many of the same problems seem likely to occur with persistent forms of nonviolent political action as well.
(p.163) (68.) The evidence here is mixed, and the long-term mix of costs and benefits may look much different than I presume, especially in cases where the non-Aboriginal pressure put on blockades is relatively limited, particularly in its physical form. The example of the long-running blockade by Grassy Narrows First Nation in Ontario suggests that the act of creating and maintaining a blockade can provide multiple benefits in allowing communities to rebuild a sense of agency. For a positive account of this long-running action, see Anna J. Willow, Strong Hearts, Native Lands: The Cultural and Political Landscape of Anishinaabe Anti-Clearcutting Activism (Albany: SUNY Press, 2012).
(69.) For textured stories about the complex interpersonal dynamics in her own experience with unarmed nullification and beyond, see Val Napoleon, “Behind the Blockades,” Indigenous Law Journal 9 (2010): 1–14. For an account of many of the interpersonal dynamics of the Oka standoff, see Goodleaf, Entering the War Zone, especially ch 5.
(70.) See e.g., Coulthard, Red Skin, White Masks, 113:
[U]nder certain conditions Indigenous peoples’ individual and collective expressions of anger and resentment can help prompt the very forms of self-affirmative praxis that generate rehabilitated Indigenous subjectivities and decolonized forms of life in ways that the combined politics of recognition and reconciliation have so far proved [themselves] incapable of doing.
(71.) For a nuanced view on both the dangers and necessity of such action, see, e.g., Peter H. Russell, “Oka to Ipperwash: The Necessity of Flashpoint Events,” in Simpson and Ladner, eds., This Is an Honour Song, 29–46.
(72.) For a similar position, see, e.g., Borrows, Freedom and Indigenous Constitutionalism, 53–4.
(73.) Borrows, Freedom and Indigenous Constitutionalism, 74–84, argues that the armed blockades at Oka and Burnt Church did not benefit the communities that undertook them, but that they did benefit other communities by changing broader political discourses.
(74.) Indeed, the palette of political strategies suggested in this chapter is only a small slice of the larger field available. For an overview of the Idle No More movement and many of its wide-ranging strategic choices, see Kino-nda-niimi Collective, The Winter We Danced. This volume includes a detailed chronology of many of the movement’s key events.