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Chapter 3: Cultures Similar and Different

Law is essentially historical, not just in the sense that the life histories of legal systems can be chronicled, but more importantly in the sense that it is characteristic of law to anchor justification to the past. Time is the soil of the lawyer’s thinking.

—Philosopher Gerald Postema, 1991, On the Moral Presence of Our Past.

Creating Race in the Interests of Empire

“The point at which a storyteller chooses to begin,” Edward Said wrote, “is the first step in the intentional construction of meaning.”¹ The Gitksan and Wet’suwet’en begin their story—locate their origins as sovereign peoples with title and rights to specific lands—in “time immemorial,” when the Creator placed them on specific territories, and charged them with the responsibility of looking after the sentient beings who lived in and from and with these lands. They adopted the legal term, “time immemorial,” as a way of representing and translating—communicating—to English language courts their belief that they have been there since the beginning of time.

Chief Justice McEachern rejected what he considered the “non-specific” nature of Gitksan and Wet’suwet’en history, writing in his Reasons for Judgment, “I am not able to conclude on the evidence that the plaintiffs’ ancestors used the territory since ‘time immemorial’ (the time when the memory of man ‘runneth not to the contrary’). ‘Time immemorial,’ as everyone knows, is a legal expression referring to the year 1189 (the beginning of the reign of Richard II), as specified in the Statute of Westminster, 1275.”²

Another common starting point for legal historians to begin their rendition of the story of European/Aboriginal relations in the Americas is the year Europeans call 1492: when Columbus sailed the ocean blue. The controversies that followed Columbus’ arrival in the Caribbean concerning the moral and political legitimacy of conquest and colonialism culminated in the Conference of Valladolid. In 1550, King Charles V of Spain brought together clerics, lawyers and other scholars in the Spanish city of Valladolid and asked them to address the question of whether Indigenous peoples were part of the same human race, or species, as Europeans; and, depending on the answer to this fundamental question, how they should be treated by European colonial powers. The king asked a philosopher, Juan Gines de Sepulveda, and a Dominican monk, Bartolomeo de Las Casas, to answer the question: “How can conquests, discoveries and settlements in the king’s name be made to accord with justice and reason?” Both Sepulveda and Las Casas agreed that all human beings, including Indigenous peoples, were of one species. Both also agreed that it was the duty of Europeans to convert all the world’s peoples to Christianity, disagreeing only on method and rationale.

Sepulveda argued, relying on Aristotle, that some races are inferior to others, and that some people are born to slavery. By this reasoning, Europeans, a superior race, were justified in subjugating Indigenous peoples, an inferior race. Sepulveda used stories of cannibalism as evidence of the alleged inherent inferiority of the Indigenous peoples of South America. The technological achievements and complex social organization of the Aztecs and Incas, then as obviously sophisticated by prevailing European standards as they are universally acknowledged to be now, were absent from Sepulveda’s analysis. Las Casas argued, on the other hand, that these “Indians” possessed an evolved culture, with social, economic and religious institutions. He claimed that Indigenous peoples were rational beings, fit to be compared to the Greeks and Romans. Las Casas did not argue that Spain should not conquer the Indigenous Peoples of the Americas, but rather that its only justification for doing so should be to Christianize them. He was distraught that the cruelty of the conquistadors was inhibiting his mission of conversion.

The choice of the conference at Valladolid as the origin story of European/ Indigenous relations in America, has been popularized in Canada by Judge Thomas Berger, a long time supporter of Aboriginal rights, and well-respected for having headed a public inquiry into the potential impacts of a proposed oil and gas pipeline on the Aboriginal peoples of the Canadian north. In his book, A Long and Terrible Shadow: White Values, Native Rights in the Americas, 1492-1992, Berger writes of the deliberations at Valladolid: “Here was the very debate that I heard centuries later in the Mackenzie Valley Pipeline Inquiry.” The “Berger Inquiry” broke with the traditional colonial reliance on non-Aboriginal experts that had historically characterized such processes, and encouraged and respected the participation of Aboriginal communities in its proceedings. The inquiry’s findings and recommendations supported the Aboriginal peoples’ opposition to the pipeline and their aspirations for local control. Berger proposed a ten-year moratorium on resource development to allow time for environmental and social impact studies to be completed, and for First Nations to consolidate their vision of self determination. (As it turned out, the oil and gas companies eventually abandoned their plans to build the pipeline for “economic reasons”: it became an unprofitable proposition.)

The appeal of the Valladolid story, for liberal Canadians like Berger, may in part lie in its archetypal legal story form: a triangle consisting of a good learned person (Las Casas); a bad learned person (Sepulveda); and a benevolent sovereign (Charles), pondering a deeply important and complex issue in a quasi-judicial forum. Berger constructs the law’s uninterrupted historical narrative from Columbus’ encounters in Central and South America to contemporary Canada. This evokes notions of political conflict rooted in racial or cultural differences, often thought to be universal characteristics of all human societies in all historical periods, and thus to be immutable. The dominant image evoked is easily recognizable in contemporary liberal discourses on multiculturalism and identity-politics: white European colonizers, and brown Indigenous colonized.

While the impact of Spanish colonization on the Americas is important, it is British imperialism and colonial law that is specifically of interest to this story, a story that differs from Spanish colonial history in some important ways. British imperial law traces its origins to the common law tradition that emerged in the fifth century A.D. when the Anglo-Saxons invaded what is now called England and conquered the indigenous Britons. The Anglo-Saxons went on to absorb immigrant Danes and Gauls, others of whom (having become, over the course of the ensuing five centuries, Normans) in turn conquered the Anglo-Saxons in 1066. The Norman conquest of 1066 brought to Great Britain a centralized state and church, and the arbitrary power of the king. Under the Norman-derived legal regime, the king, or sovereign, who mystically embodies the “underlying title to all land” and the implicit consent of all the people to his reign, is said to “hover over the land.” The origin of the sovereign’s legal title is to be found in this abstract, imaginary vision, made concrete through the exercise of power as the sovereign became the symbolically omnipotent source of law, and his will its practical execution. A feudal regime, sometimes referred to as the “Norman Yoke,” was established, against which Anglo-Saxons, Britons, Danes, Gauls and some Normans (now having become English and Scots) waged civil war.³

At the same time as Sepulveda and Las Casas were debating in Valladolid, English jurists were confronting similar problems regarding colonization in Ireland. Their dilemma was not precipitated by the sudden “discovery” of seemingly strange and alien peoples. Rather, the problem of justifying expropriations of lands and massacres of native populations that faced British imperial policy-makers was that of recategorizing as radically “different” their Irish neighbours who had hitherto been similar and familiar.⁴

That the Irish were Christian was never doubted by the Normans or their successors, but Christianity in Gaelic Ireland did not fully conform to Roman liturgical practice, and many pre-Christian traditions and customs had been only slightly veneered in these territories by Christianity. On this basis, the Irish were classified by British imperial law as atheists or infidels. Although, unlike “certain savage tribes,” the Irish were rarely accused of cannibalism, they were described as “little better than Cannibals….”⁵ In addition, the Englishtook the Irish practice of transhumance⁶ as proof that the Irish were nomads, hence barbarians. The English colonists thus developed a social theory that said the Irish had evolved to a level of cultural development analogous to the stage the ancient Britons existed at before they were civilized by the Romans. The Irish should therefore be made subservient to the colonizing English, (the true inheritors of Roman civilization) so that, through subjugation, they could come to appreciate civility and thus eventually achieve freedom as the former Britons had done.⁷ This belief that meting out punishment to subordinated peoples and individuals “for their own good” will result in their eventual emancipation, while an enduring one, is belied by the historical record which offers more support for the theory that cruelty breeds brutality.

My point is straightforward: the boundaries separating categories of people, and, more importantly, the significance of differences between and among them, are, like culture itself, constructed by people—not given by nature or God—and they change over the course of history as contexts and social relations change. Being created by people, these fluid boundaries can also be challenged, changed and recreated by people over time, as indeed, historically, they often have been.

The story of Aboriginal and non-Aboriginal relations in British Columbia that I am telling here begins with England’s sixteenth-century colonization of Ireland, rather than with Columbus’ landing in the Caribbean, for a number of reasons. First, there is the obvious historical continuity: the British colonized British Columbia, the Spaniards did not, although they “discovered” the territory before the British. Second, the story of the colonization of Ireland tells of recurring hostilities among people of the same “race” and “cultural group.” Rather than illustrating universal, ahistorical and immutable conflict based in “natural” racial or cultural difference, the history of England and Ireland is an example of contests for economic and political domination, and the historical process of “racialization” of the “other” so fundamental to colonial law and cultures.⁸ The image I wish to evoke is easily recognizable in contemporary debates about critical multiculturalism and post-colonial politics: same-culture colonizers, and same-culture colonized.⁹

Finally, the appeal of Berger’s choice of Valladolid as the preferred origin story for the history of Aboriginal legal rights in Canada may also be found in its acceptance of the historical inevitability, and hence justification, of European colonial conquest. Its insistence that colonial powers were and are motivated by good intentions and paternalistic—yet humanitarian—concerns for the best interests of the colonized, also reinforces familiar legitimations of colonial dominance.

“All this was done with the best intentions. We can only ask what would have happened had government’s intentions not been good?” Phrases like this have become a common cliché used by the Canadian media to wrap up stories about how another government program, or lack thereof, has been implicated in some tragic chain of events in an Aboriginal community.

Assessing history solely on the basis of the intentions of the powerful, without reference to the consequences for the powerless, is a time-honoured tradition in western thought. Within this framework, the morality of a person’s actions can only be judged on the basis of his or her intentions. This is based on the premise that people should not be held responsible for events beyond their control that contribute to their original actions having unintended consequences. At a very basic philosophical level, this is, of course, only fair. We as individuals are the only ones who know what our intentions are in the first place. Other people know our intentions only when we choose to communicate them. Our intentions motivate us to act in particular ways in relation to others, and our actions have consequences for ourselves and for those others. If our intentions, according to our own account, are honourable, but a person who experiences the consequences of our actions suffers, how is this to be resolved? The issue becomes more complex in real life where the questions “what ought you to know before you act?” and “whose intentions will be acted upon and thus enabled to have consequences?” must also be asked. “Judgment by intention” may be reasonable if “the individual” is considered as an isolated entity, but it becomes problematic when an individual is understood as a human being who lives in relationships with others in society.

The legal answer to this question in the liberal tradition is to grant rights to individuals, thereby hoping to ensure that the limit of one individual’s rights is formed by the boundary at which another individual’s liberty is inhibited.¹⁰ In order for groups or collectivities or peoples to have similar protection within such a regime, they must be recognized in law as having legal rights. The history of Aboriginal/non-Aboriginal relations in Canada has been one in which courts and governments have repeatedly refused to recognize Aboriginal rights, while continuing to insist that their actions have been, and continue to be, guided by their “good intentions” in relation to First Nations. This “justification by intention” argument has been repeated by governments for hundreds of years now, despite the fact that the consequences of legally-sanctioned government policies have been, and continue to be, devastating for Aboriginal peoples. The federal government, in particular, has been repeatedly stymied by the unanticipated consequences of their good intentions. An option yet to be tried in the realization of governments’ good intentions towards First Nations is the recognition of Aboriginal title to land, and rights to self-government.

Mutiny and Desertion as Common Sense

The initial conditions for theorizing and reflecting on property rights in America are of a European people who arrive on a continent of roughly five hundred established Aboriginal nations and systems of property…and who do not wish to become citizens of the existing Aboriginal nations, but wish to establish their own nations and systems of property in accordance with their European institutions and traditions.

—Philosopher James Tully, 1993, An Approach to Political Philosophy: Locke in Contexts.

Before the arrival of Europeans, approximately 500 Aboriginal nations existed in North America. These nations were diverse in modes of living, language, religion, social organization and relationships to land and resources. Therefore, the first rational option available to early European explorers and settlers was to behave as guests or immigrants, to recognize the sovereignty of already existing Indigenous nations, to live by their laws and to seek acceptance by their people.

But many deeply ingrained assumptions and widely held beliefs limit and constrain the possibility of contemporary people immersed in the dominant western culture imagining this as a practical or viable choice. European theories arising from psychoanalytic traditions have argued that fear and hostility are instinctive human responses to encounters with cultural “others.” However, the weight of contemporary knowledge belies the proposition that such a reaction is either universal or natural. Oral historians and linguists have investigated the diverse ways in which non-Europeans have identified people other than themselves, including Europeans, at first contact. They found a variety of impressions and responses varying from adoration to repulsion, fear to amusement, hospitality to hostility and curiosity to indifference. Europeans have been represented in Indigenous thought by analogies as diverse as Gods, Devils, clowns and monkeys.¹¹

European images of Indigenous peoples have varied across time and space as well. Early visitors to “new” worlds, like explorers and traders, frequently expressed both interest in and admiration for the peoples they met on their travels. Later visitors wishing to claim these lands as their own, such as colonial governors and settlers, portrayed Indigenous peoples as wild savages. Most influential in western thinking, however, have been various theories about social and cultural evolution that postulate a hierarchical series of stages through which it is claimed all human societies must proceed. “Primitive” societies, in which people live from hunting, fishing and gathering, represent the “first stage” in this scheme; while “civilized” industrial societies exemplify the “highest stage” of human development. In the field of jurisprudence, Sir Henry S. Maine’s 1861 volume, Ancient Law, sets out a conjectural history of the evolution of law from “primitive custom” that “mingled up religious, civil, and merely moral ordinances without any regard to differences in their essential character;” to “civilized law,” which “severs law from morality, and religion from law.” The purported independence of law from the social conditions of its emergence, and law’s professed autonomy from the society in which it is practiced, were evidence, for Maine, that western law “belongs very distinctly to the later stages of mental progress.”¹²

Another common idea that arises from the same social evolutionary premises is the analogy drawn between the stages of individual psychological development hypothesized by western developmental psychology, and the social organization of non-western societies. In this framework, adults are to children as Europeans are to Aboriginals. Within historical analyses, contemporary Indigenous societies, imagined as being “frozen” at “stages of development” believed to be “antecedent” to the present, are seen as resembling historical European ones. Dutch anthropologist Johannes Fabian calls this notion that “they” are now, as “we” were then, a “denial of coevalness” that he identifies as the most enduring obstacle to achieving mutually respectful dialogue between Europeans and “others.”¹³ Fabian uses the term “coeval” to describe how colonized and colonizer share both geographic space (land); and temporal space (time). Social inequality between peoples of different cultures, Fabian argues, is shaped by the historically-specific political and economic relationships between them. It does not emerge because they live at different hypothesized stages of evolutionary development. Power, not time, separates people of different cultures.

These social evolutionary premises support the common belief that, during the eighteenth century, when they came into substantial and sustained contact with each other, Europeans and members of British Columbia First Nations were so radically different from each other in terms of material living conditions, social organization, political structures, religion, intellectual development and individual freedom, that for British settlers to have integrated into the Aboriginal societies would have necessitated them stepping “backwards,” both in historical time and in human psychological development. These beliefs are buttressed by images in paintings like those that decorate the Rotunda in the British Columbia Parliament buildings: luxuriously dressed and elaborately wigged British ship’s captains benevolently bestowing gifts on scantily-clad and bewildered-looking Aboriginals.

But, consider what we know of the real conditions of life for the majority of people in eighteenth-century Britain: feudalism—dominated by the nobility, and the clergy living off the avails of peasant labour through tithing and maintaining power by force and threats of eternal spiritual damnation—was being replaced by industrial capitalism as the real source of power in the nation state. Peasants, driven from the land, began to flock to the newly-emerging urban centres in search of subsistence from industry, rather than from hunting, gathering and agriculture. Accounts of factory conditions during early industrialization, and of the everyday life of ordinary citizens in cities like London, Manchester and Birmingham describe desperate urban poverty, squalor, alcoholism, prostitution and deprivation. It would be at least two centuries before women would be recognized as persons in British, and later Canadian, law, and we have yet to achieve mass literacy.

Compare this to what we now know of life during the same historical epoch among, for example, the Gitksan and Wet’suwet’en peoples. Their eighteenth-century societies were characterized by a hierarchical social structure dominated by chiefs and shamans; divisions of labour based in clan, gender and generation; an economy dependent on the accumulation and unequal redistribution of wealth derived from abundant natural resources among different categories of persons; spiritual beliefs linking ancestors, the living and the land that prescribed reciprocal obligations; social life, including marriage, divorce and inheritance controlled by elders. An oral, rather than written, tradition of recording history and administering law prevailed. That European and Indigenous cultures differed significantly is obvious. But was one “more advanced” or “less developed” than the other? This is not at all obvious. Answers are complicated first by the problem of criteria. As we know, technological complexity is not necessarily correlated with spiritual satisfaction or emotional well-being. Second, different categories of persons in both societies would likely evaluate their own cultures differently, depending on their position within it. Establishing universal criteria upon which to base such evaluations is an extraordinarily complex process, if it is to represent any authentic consensus. And, the question may be asked if universal criteria of what constitutes a “good society” are possible, or desirable.

What challenges the vision of unbridgeable cultural difference that has been codified in western law and in the popular imagination most fundamentally, however, are the actions of ordinary individuals in the everyday life of early colonial societies throughout history and around the world. Soldiers and sailors, who were often young unemployed men, were either pressed into service on trading and naval ships involuntarily (“shanghaied”), or signed on out of desperation in the absence of alternatives. Conditions at sea and in the armies were brutal, and troops frequently deserted their masters and escaped to live with the Aboriginal people they encountered on their voyages. Mutinies were common.¹⁴ Historical accounts, and popular culture, often ignore the fact that, for Britain and other colonial powers, there were two problematic populations that had to be managed and controlled in order for imperial designs to be realized: Indigenous peoples, and colonial troops and settlers. Most telling, perhaps, are the histories of fragments of non-European populations, like Hawaiians,¹⁵ and former African slaves who were fleeing the United States of America.¹⁶ Members of these groups, having no access to the protection of imperial power, frequently integrated into the Aboriginal societies whose acceptance their lives depended upon.

The belief reflected in law that Europeans arrived to lands without organized societies or laws is false. Legal scholar Brian Slattery has stated this flatly: “All national myths involve a certain amount of distortion,” Slattery writes, “but some at least have the virtue of broad historical accuracy, roughly depicting the major forces at work. The myth that underlies much legal thinking about the history of Canada lacks that redeeming feature.”¹⁷

To answer the question of why the option of recognizing the sovereignty of already existing Aboriginal nations, behaving as guests, and attempting to live by Aboriginal laws does not appear to have been taken up by early European jurists and settlers, we have to look to British and Euro-Canadian law and culture, rather than to Aboriginal beliefs and practices.

1. Said 1975: 1.

2. McEachern, Reasons 1991: 82. There are, however, debates about this date. Anthropologist Andrea Laforet commented: “Although McEachern sees this as a fixed date, receding relentlessly into the past, there is an alternative interpretation, i.e. that in 1275 the British defined 86 years as the measure of a very long time” (Laforet 1993:2). Lawyer William Henderson offers another correction, writing “…1189 is the date of the accession of Richard I (the ‘Lionheart’)” (Henderson, William B. 1991: 14 ftnt:45).

3. Hill 1958.

4. Canny 1973: 583, writes: “The questions that we must pose are how, at the mid-sixteenth century, the Irish, a people with whom the English had always had some familiarity, came to be regarded as uncivilized, and what justifications were used for indiscriminate slaying and expropriation?”

5. Ibid.,580.

6. “Transhumance” refers to the practice of owners and/or herders moving livestock on a seasonal basis between mountains and lowland pastures. It is contrasted to agricultural settlement where pasture lands remained fixed in one location.

7. Historically, when British settlers, first in Ireland, then in the American colonies, and later in British Columbia, looked to history and law for moral and political legitimization in their struggles for independence from the British Crown, they constructed a rhetoric recalling a “Golden Age” of “natural law” that, their story went, existed prior to the Norman invasion of Britain. See Andrews, Canny, Hair (eds.) 1973; and Knafla 1986(b). This local, or common, law has come to be known by the phrase “the fundamental laws of all Englishmen,” which Robert Williams describes as “the opinion that the Anglo-Saxons of England lived as free and equal citizens under a form of representative government that was inspired by divine principles of natural law and the common rights of all individuals” (Williams, R. A. 1990:253).

8. “Racialization” refers to the ideological process whereby biological, genetic, or phenotypical characteristics are employed to classify categories of people. The most common example of the historically and socially constructed nature of racial categories is illustrated by the varying ways Jews have been classified throughout European history, where they have sometimes and in some places been classified as a distinct “race” of people, and at other times and in other places, not.

9. For an interesting examination of the process of racialization see Ignatiev, Noel 1995. The book examines the role played by identification with the dominant Caucasians and collusion in the oppression of Aboriginal and African-Americans in the historical ascendancy of Irish immigrants in the United States of America.

10. The notion that the morality of a person’s actions can only be evaluated on the basis of their intentions is a central tenet of Kantian idealist philosophy. This privileges the subject’s articulated interpretations and intentions, as compared to the interpretations and consequences experienced by others as a result of the subject’s actions. This formulation assumes that individuals and their intentions and actions are not always already embedded in relationships, but can be decontextualized and considered independently. See Miles 1989 for a fuller discussion of “judging by intentions” in contexts of racial domination and subordination.

11. See Dauenhauer and Dauenhauer (eds.) 1994; Lips 1966; Wickwire 1994.

12. Maine (1861)1970: 15.

13. Fabian 1983.

14. For detailed discussions about mutinies in the early American colonies and the South Pacific, respectively, see Andrews et al (eds.)1973; and Obeysekere 1992.

15. See Koppel 1995.

16. See Alexander and Glaze 1996; Hudson 1997.

17. Slattery 1985: 114.