Alex Green & Jen Hendry

Colonialism, we proclaimed on Twitter, ruins everything. Well, perhaps not everything, but a lot: so much, in fact, that detailing the complete legacy of moral disaster represented by European imperial expansion would be impossible, even in several hundred thousand words. In this blogpost we attempt something more modest, arguing that the historical injustices of colonialism render it extremely difficult, if not practically impossible, for settler-state institutions to govern Indigenous communities legitimately.

‘Legitimacy’, at least in the sense that we use it, is not a sociological concept but a moral one: for governance to be legitimate it must be justified, not in someone’s opinion or from the point of view of one group or another, but objectively. This means that it is something we can be mistaken about: it might be that everyone believes governance within a particular state to be legitimate when it is not, or vice versa. Our contention is that, whilst most governance might be justified at least to some extent, it is highly unlikely that, within ‘CANZUS’ settler-states, any unilateral attempts to govern Indigenous communities can be legitimate in this sense.

The CANZUS settler-states are Canada, Australia, New Zealand, and the United States: within them live hundreds of Indigenous communities, all of which are subject to the overarching governance of those states, albeit to varying degrees. Like all contemporary states, CANZUS settler-states govern through the imposition of social and political hierarchies, as well as with resort to the threat of collective force as a means for coercion. These two features establish what we call the ‘default’ threshold for legitimacy: the standard that must ordinarily be met for governance within contemporary states to be justified. This default threshold is best explained in terms of one value violated by both of these aforementioned means of governance: the equal status of persons. Social and political hierarchies undermine equal status because they elevate some individuals (and not others) to positions of power. Coercion also affronts equality because, when successful, coercers subjugate other people to their will, thus creating an asymmetric power dynamic. Such behaviour requires justification because, on the face of it at least, it is morally wrong.

To square the circle – and thereby meet the default threshold – states must govern in a manner that negates these presumptive wrongs. The two most commonly accepted means for doing so are to afford democratic representation and to subject governance to the rule of law. The former takes seriously the equal status of persons when it comes to appointing those in power, whilst the latter requires that everyone be governed according to common standards, which no individual is ‘above’ or ‘below’. In this blogpost we take no stance on whether democracy and the rule of law are actually sufficient to render governance legitimate, although it seems plausible that they might sometimes have that effect, at least in the ‘ordinary’ circumstances of non-settler-states. What we are committed to is their insufficiency in settler-states, at least insofar as those states attempt to govern Indigenous communities. This holds, we contend, due to the legacy of colonialism.

European settlement of the lands that now constitute the CANZUS settler-states was marked by many horrors. Amongst these were numerous attempts to force and manipulate Indigenous communities into subordinate positions vis-à-vis their European counterparts, many of which were tragically successful. These attempts, we argue, violated the equal status of each individual within the relevant Indigenous communities, insofar as they denied those individuals the same rights to collective self-determination claimed by the Europeans who, on that basis, stole their land. This denial of Indigenous self-determination continues today, having been ‘adopted’, as it were, by the executives, legislatures, and judiciaries who perpetuate CANZUS settler-state hegemony over Indigenous communities.

For instance, when the United States Supreme Court held that tribal criminal jurisdiction could not extend to non-Indians in the infamous case Oliphant v. Suquamish Indian Tribe 435 U.S. 191 (1978), that institution fundamentally undermined the ability of Indigenous communities within the US to secure law and order within Indian Country. Their capacity to do so was, as the US Federal Court of Appeals for the Ninth Circuit had previously observed, the sine qua non of tribal sovereignty, and thus, we contend, an essential component of their collective self-determination. Sadly, this is just one example among many in which CANZUS settler-states have continued the colonial denial of Indigenous equality.

Such behaviour is so clearly wrongful that it is difficult to imagine circumstances under which this would be justifiable. We argue that the only possibility for justification seemingly requires something of a paradox: settler-states would somehow have to negate their violations of Indigenous self-determination whilst simultaneously maintaining their overarching governance of these communities. Nothing less could sufficiently demonstrate appropriate respect for the equal status of those individuals who belong to Indigenous communities, and who wish collectively to self-determine as members of these communities.

In addition to setting an ‘enhanced’ threshold for legitimacy on the part of settler-states, this requirement may even create an insurmountable moral challenge for the relevant governments. Perhaps colonialism hasn’t ruined everything, but it has ruined any realistic hope of Indigenous communities enjoying legitimate governance from the states within which they live.