Sunday, January 27, 2013

Indigenous Nationhood and Political pseudo-Science

Tobold Rollo is a man with a problem.

He aspires to be an "ally" to the Idle No More movement. Unfortunately for him according to the standards of "alliance" he himself espouses this reduces him to little more than one of the movement's white mascots. He longs to be taken seriously, but when he finally lands himself an appearance on TVO's The Agenda (with the excellent Steve Paikin), they're only barely interested in what he has to say.

But neither of these problems are the problem Rollo chooses to address. Instead, he decides he has a problem with a recent op-ed written by University of Calgary Political Science professor Barry Cooper, and attempts to solve that problem with a blogpost rebuttal that seems to aspire to pithiness but never really advances beyond baleful whining.

In Rollo's favour, I will say that I consider Cooper's column to be flawed in a number of respects. More on that very shortly. But Rollo's erstwhile rebuttal is nothing short of a trainwreck. This particular disaster begins by Rollo very much being himself. To whit, Rollo's whining:

"To evidence this grand deception for the lay public, Cooper cites an immense body of scholarly literature that has withstood the most demanding levels of interdisciplinary academic scrutiny. Just kidding, he cites 'a classic study [sic] published in 2000 by my longtime colleague and even longer-time friend, Tom Flanagan, called First Nations? Second Thoughts.'"

With an objection like that you'd almost expect that Rollo would himself cite an "immense body of scholarly literature that has withstood the most demanding levels of interdisciplinary scrutiny." His own standard, after all. But predictably, he doesn't. His counter-argument never rises above the level of the genetic fallacy, which is and should be unsurprising from someone who once responded to Andrew Coyne by calling him "a confused white guy."

Now to be entirely forthcoming, there are many things within Cooper's column that I disagree with. For example, the idea that First Nations, not having emerged from the European diplomatic regime that produced the idea of Westphalian sovereignty -- which remains the gold standard of sovereignty, even if it doesn't itself encompass the entirety of the concept -- cannot expect to benefit from consideration under that concept.

Ideas such as sovereignty are not, and never have been, the exclusive preserve of their progenitors. Absolutely nothing prevents First Nations from invoking the notion of sovereignty. To treat the legal concept of sovereignty as a "legal advantage" enjoyed by European civilizations is, in my opinion, a severe mischaracterization of the concept. Understanding of this concept can be a tremendous advantage, particularly where there is such a marked imbalance of power as between First Nations and the Europeans who first arrived to settle North America, but not the concept itself.

To be entirely charitable to Professor Cooper, sovereignty was certainly conceptualized around existing European states.But even with that being said, this does not strictly reserve sovereign rights for states. It just so happens that the traditional state is the entity best equipped to have its sovereignty recognized, and -- more importantly -- to exercise sovereignty.

Had Rollo followed this very simple and very fundamental track, few individuals with any training in political science would have any grounds on which to disagree with him. But as it turns out, Rollo seems unprepared to be forthcoming about precisely how he strives to define sovereignty. He notes that "when Indigenous peoples speak about nations and sovereignty they are not referring to First Nations bands or their reserve lands under the Indian Act. Nor are also not talking about Westphalian state sovereignty."

For the moment let us say that this is fair enough and take him at his word. First Nations are not laying claim to Westphalian state sovereignty. Very well. You may then ask: what other kinds are there?

Well, I'm glad you asked. There are essentially four separate measures of sovereignty. I'll take this opportunity to explain them, as Rollo himself declines to.

The first we'll examine is "domestic sovereignty." This amounts to control over a geographic area -- usually referred to as a state, but my contention remains that sovereignty is not necessarily reserved for states -- by an internal authority. One of the most basic manifestations of this control is a presumed monopoly over the use of force.

The second we'll examine is "interdependence sovereignty." This presumes that known borders exist, and that the sovereign entity can protect those borders and control movement across them.

The third we'll examine is "international legal sovereignty." It's embodied the answer to a very simple question: do other sovereign entities recognize the authority of the alleged sovereign entity?

The fourth we'll examine is the measure of sovereignty that Professor Cooper remains preoccupied with: "Westphalian sovereignty." Established by the 1648 Peace of Westphalia that effectively ended religious warfare within Europe, Westphalian sovereignty refuted any authority over a particular geographic area other than the recognized sovereign authority.

So given these four measures of sovereignty, can First Nations in Canada really lay claim to sovereignty? The answer seems to be maybe, maybe, no, and no.

Can they lay claim to domestic sovereignty? Certainly, First Nations do have governments of their own: band councils on individual reserves and various national assemblies. They're recognized as having control over reserve lands, and effectively self-governing over those lands. Sadly, even in Rollo's analysis it isn't nearly so simple as this. It's bad enough that we're already classifying this as a solid "maybe."

Can they lay claim to interdependence sovereignty? Well, the boundaries of reservations certainly could be treated as borders of a sort. They don't appear on your standard roadmap but nonetheless they do exist. (Israel doesn't appear on many roadmaps produced in Arab countries, so this is by no stretch of the imagination a measure of sovereignty.) They don't actively defend or patrol those borders, but on-reservation legal authorities do have the power to remove non-aboriginals and non-residents from them. We'll call this another solid maybe.

Can they lay claim to international legal sovereignty? The short answer is no. A slightly longer answer is no, but there is a United Nations Declaration on Indigenous Rights... to which Canada is not a signatory. Which doesn't amount to a full recognition of international legal sovereignty.

Can they lay claim to Westphalian sovereignty? Unfortunately, no. Under the Indian Act the federal government of Canada has been granted specific areas of authority. Band Councils have to receive approval from the Department of Aboriginal Affairs and Northern Development for specific expenditures. This leads us to one of two conclusions: first, either the band council is not the recognized sovereign authority -- which would slide the question of domestic sovereignty from the "maybe" into the "no" column -- or, there is another authority over the territory in question other than the alleged domestic sovereign entity. Both of these answers preclude Westphalian sovereignty.

As we ponder these issues, we must remember all the while that Rollo contends that aboriginal sovereignty is not embodied in their band councils or reservations. So what precisely are they embodied in? Well, he declines to say. This is a classic bad-faith argument, and Rollo's analysis may well be the first time I've ever seen someone who purports himself to be a self-respecting academic attempt to raise bad faith argumentation to the level of serious academics.

Overriding our questions regarding the four measures of sovereignty is one great, big commanding "no." The treaties signed by Canada's first nations -- at least those that actually signed such treaties -- specifically surrender any claims to sovereignty. While there do remain some First Nations that have yet to sign any such treaty -- Alberta's Lubicon Cree come to mind -- none of those who have retain any claim to sovereignty. As such, it is precisely as Cooper says it is -- the treaties extinguish, not affirm, claims to aboriginal sovereignty. RCAP's vivid imagination notwithstanding, the only way to imagine that the treaties affirm aboriginal sovereignty is to strip the concept of virtually any meaning whatsoever.

"Sovereignty" would not be the first time Rollo has done something of the like. During his ill-fated appearance on The Agenda, Rollo droned on about "paternalism," only to note that the single most paternalistic element of the Indian Act -- the federal government's fiduciary duty to First Nations, which leaves it holding enormous power over the fiscal affairs of First Nations -- must remain entrenched in any future legislation. Accordingly, "paternalism" is a word that, in Rollo's mouth, begins to lose any and all meaning. In the wake of his "critique" of Cooper we can now say the same thing for the concept of "sovereignty."

Tobold Rollo will, of course, try to write all of this off as the ramblings of an "unqualified" individual. He, after all, is a PhD candidate. I'm an individual who, for reasons largely out of my own power, was forced to suspend his studies, however temporarily.

Of course, therein lies the rub. Tobold Rollo may be a PhD candidate but Tom Flanagan already has one. Accordingly, by his own logic, Rollo is unqualified to dismiss the conclusions of First Nations, Second Thoughts.

That, of course, is presuming that Rollo's logic is actually logic. To consider it so risks stripping that word of all meaning.

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