Indigeneity in the Courtroom: Law, Culture, and the Production of Difference in North American Courts (review)

There is a burgeoning body of literature that expresses misgivings over the use of cultural difference as a basis for the standing of Aboriginal peoples before the law. Jennifer Hamilton’s Indigeneity in the Courtroom contributes to this literature by examining the production of Indigenous difference within the context of four recent legal cases—two from the state of Washington and two from British Columbia. Despite the varied and idiosyncratic nature of the cases, Hamilton suggests that “they are in fact part of continuing processes which rely on reductive pluralist discourses of indigeneity to continue to manage and even deny the existence of a colonial past and a postcolonial present” (p. 5). While the title of Hamilton’s book might mislead potential readers as to the geographic scope of the study, the four Northwest Coast cases are nonetheless enriching in that they introduce the reader to new legal scenarios in which the reification of indigeneity produces disadvantageous effects. In this way, this book expands upon the work of academics, such as Michael Asch and John Borrows, who have criticized the cultural rights approach of the Canadian judiciary through analyses of well-known cases, including R. v. Van der Peet and Delgamuukw v. British Columbia, in which Aboriginal claimants have sought recognition of rights or title. Indeed, one of the most insightful contributions of Indigeneity in the Courtroom is its demonstration of how indigeneity can be deployed by non-Aboriginal claimants in ways that perpetuate a neo-colonial agenda.

In Washington v. Roberts and Guthrie, the state court posited itself as “benevolent pluralist” in its culturally sensitive treatment of two Tlingit youth by allowing a controversial traditionalist tribal court in Alaska to banish them temporarily to remote areas. For Hamilton, the eventual condemnation of the banishment as a failure “is illustrative of a double bind in the cultural production of indigeneity in which the very conditions that enable indigenous peoples to make compelling legal claims based on difference can simultaneously lead those claims to failure” (p. 8). The state court’s essentialization of Indigenous difference rendered it unable to accommodate plurality in Indigenous communities, and so it sought in the tribal court a coherent representation of a singular Tlingit community lacking the conflict and contradictions of “modern” societies.

The British Columbia Court of Appeal overturned Bishop Hubert O’Connor’s convictions for multiple sexual offences in R. v. O’Connor and ordered another trial on only one rape charge. This last Aboriginal complainant accepted the defence attorney’s proposal for an Indigenous healing circle. Hamilton challenges the presumption that the courts and the healing circle are discrete spaces, the latter addressing the inadequacies of the former. Rather, the culturalist discourse surrounding O’Connor’s circle does more to elide “the ongoing effects of colonization on indigenous peoples, and on indigenous women in particular” (p. 25). Highlighting the healing circle as a cultural space of decolonization enables mainstream courts “to ignore the legacies of colonial history that created the very conditions that brought O’Connor into prolonged contact with the plaintiffs” (p. 25) and whose power imbalances should call into question the very notion of consent employed by the courts.

In Glass v. Musqueam Indian Band, non-Indigenous leaseholders of reserve land in Vancouver opposed large increases in their rents, as these were scheduled to adjust to “current land value” after 30 years at smaller fixed rates. Rather than making claims founded on difference, however, the band maintained that it was simply a private contract matter. In effect, “within Canadian capitalist logic, the Band’s raising of rents was reasonable, legal, and lucrative” (p. 57). The leaseholders thus evoked a discourse that reinscribed the difference of “Indian land” and narrated the dispute in deeply racialized ways, comparing their situation to apartheid, ethnic cleansing, and colonialism. The Supreme Court of Canada also imposed incommensurability and difference by creating a sui generis legal category of leasehold reserve land...