Abstract
Indigeneity Before and Beyond the Law offers a fine-tuned and sophisticated discussion on law and its entanglement with indigeneity. The author’s research reveals the ways in which law, as an instrument designed to safeguard those in need of protection, intersects with, is bound to and abandons indigeneity as one type of (imagined) object of protection. The book, consisting of 16 chapters, is divided into 4 parts: an introduction, a part that examines the ways in which law defines indigeneity, and two parts that discuss how indigeneity, as otherness, is inscribed in jurisdiction and to what extent legal and literary texts perform and reproduce indigeneity as a certain kind of subjectivity. The book provides a robust and elegant assessment of the determinative power of law and its grip on indigeneity.
The core of the book is its engagement with critical philosophical and social scientific theories and their take on alterity and otherness in law. Birrell delves deeply into conceptual discussions of critical thinkers such as Deleuze, Fanon, Hegel, Derrida, Levinas and Nancy in order to problematize the (in)ability of law to meet those it defines as ‘others’ and as being in need of protection. She binds together the critique that these authors have presented regarding law, the conditions it sets and the ways in which it operates and exerts power by assuming that there is a certain type of society to be defended. Birrell’s thorough reading also reveals how law is always insufficient and lacking in its ability to respond to the injustices it is assumed to amend. The unique contribution of Birrell’s book is her recasting of this critique of the otherness embedded in law in the context of indigeneity. Her analysis illustrates the overall problematic of posing indigeneity before the law (see p. 68) and the more nuanced constraints, misreadings and violences that emerge from this coupling. As her treatment of the topic demonstrates, the indigeneity that is ‘required’ by the law, interpolated and carved by it is a ‘lacerated’ indigenous subject in need of proving its authenticity in a way that adheres to the imaginaries of the law. Indigeneity is a ‘performance’ compelled from indigenous subjects before the law.
Drawing on the theoretical criticism that she puts forward on the ways in which law constructs society in general and indigeneity in particular, Birrell proceeds to investigate a more empirical context, namely Australian native title jurisprudence and the ways in which it constructs indigeneity. She complements this inquiry with observations on the textual representations of law in indigenous literature, illustrated using a novel by Mudrooroo and demonstrating how such literature animates and annihilates law and its understanding of indigeneity. As Birrell states, instead of looking at the corporeal brutality caused by law, her critical reading is interested in ‘a determinate law that violates the alterity of Indigenous subjectivities and Law, in the context of colonised nations’ (p. 123).
Overall, the merit of the book lies in its detailed and profound discussion of definitions and categories of law that ultimately fail yet persist. Conceptualizations, such as indigeneity, protection, rights, the archive and justice, as Birrell demonstrates, are never capable of capturing the full spectrum of the phenomena they seek to target. It is this failure that makes visible the rigidity and exclusiveness of such conceptualizations and, ultimately, their violent nature. The way in which Birrell weaves law and indigeneity together – a melding conventionally seen as furthering protection – shows how that relation is, in the end, distorting.
As the book readily traverses the fields of critical legal, political and social studies, it is of considerable relevance for a wide variety of scholars engaged in studying indigeneity. Indeed, it is a much-needed contribution, for it is, unfortunately, a rarity in the scholarship on indigeneity and law – scholarship that tends to treat law and rights as self-evident tools for reversing dispossession of indigenous peoples and resolving related disputes. Birrell’s critical engagement with the determinative and policing nature of law is pertinent to any analysis of political and institutional inclusion of indigenous peoples and indigeneity.
The theoretical and conceptual contribution of the book to critical legal studies is undeniable. However, a number of organizational and structural changes come to mind that would have improved the readability of the book. As it stands, Birrell does not give herself the merit that she would deserve for her extensive and thorough reading of what law is and what law signifies in the context of indigeneity. Her meticulous adherence to the literature in the form of direct quotations leaves little room for her own voice.
In terms of structure, particularly for a reader less familiar with the themes discussed, the introduction – including ‘instructions’ for how to read the work – should have been placed right at the beginning, rather than farther into the volume (p. 54–58). This might have made it possible to eliminate the repetition seen throughout the work in explaining the aims and foci of its component parts. Similarly, Birrell’s approach and the discussions that she presents in the book would have been more accessible to the reader if the range of literature used in the work had been explicated early on. The same applies to the texts and legal cases used in analysing the rulings on native title in Australia. These organizational shortcomings keep readers in suspense, as it were. Many may get lost waiting for the key concepts, research material and methodological choices – the cornerstones of the book – particularly if they are just starting to engage with the issues and debates that Birrell analyses.
Although some structural changes could have made Birrell’s brilliant argument even brighter, the book truly succeeds in shaking the foundations of the conventional legal mindset that currently envelopes indigeneity. Her main argument is that law, with its historical, static and colonial nature, is ultimately insufficient, biased and violent. However, at the end of the book, she suggests that despite these shortcomings, new juridical narratives might emerge that will allow indigeneity to be recognized and included as that which it is, not as what the law assumes it to be (p. 225). Inspired by the critical ethos of the book, one would do well to reflect on the extent to which change in the law or repudiation of the existing law and its mechanisms would be possible. If such a development required no more that the efforts of the ‘indigenous claimant’ or ‘the global movement that is “indigeneity”’ (p. 225), would it not already have happened?
In our view, the expectation made of indigenous subjects that it is they who must campaign for indigenous rights and resist the ruling order entails a rather unproblematized view of power. Resistance is precisely one of the performances solicited from the indigenous claimant by law and society. As Birrell illustrates, indigenous peoples must prove injury yet display the initiative and capacity to claim rights based on that injury. Indeed, the position of claimant feeds into the requirements set by law. Given Birrell’s critical examination of the various performances required of indigenous peoples in order to appear before the law, her view on the potential of claimants to alter the law and the political and legal system itself is surprisingly positive. One gets the impression that the emergence and strengthening of indigenous claims, movements and resistance would diminish colonial and other distortive power relations in political and legal processes. Some might argue that such resistance actually makes the ruling power even stronger.
Clearly, indigenous peoples have gained new political and legal positions that promise to give them increased opportunities to further their causes. With these changes has come an assumption that the peoples have greater abilities to resist, alter and restructure the biased and unfavourable social settings they have had to endure historically and still encounter today. Indeed, resistance has come to typify the performance that the ruling system, law included, assumes and expects of indigeneity. As Peter Sutton has observed in The Politics of Suffering. Indigenous Australia and the End of the Liberal Consensus (2009), if indigenous peoples are to gain at least some of the rights that they claim, they are expected to constantly campaign for their causes: one must be a ‘campaign Aboriginal’. At the end of the day, the indigenous subject is made to bear the burden of struggling to secure his/her existence. It is a position that wears down its subject and in doing so dilutes the subject’s cause, creating a system where one can seemingly campaign for one’s whole life without seeing any significant changes on the ground. Ultimately, the position of claimant is not a position of power, and a claimant’s chances to fundamentally change things are very slim.
Viewed critically, assigning indigenous peoples such a reactive position, one where they have to be constantly ‘on call’, is an exercise of colonial power over as well as through them. The shift in responsibility seen in allocating indigenous peoples the position of claimant illustrates another facet of that power. By making the peoples themselves responsible for trying to change or improve their circumstances, politics and law have succeeded in skirting what is an ultimate responsibility for the peoples’ conditions while still retaining a benevolent appearance. The contemporary neo-liberal rule feeds on this skewed logic. The claimants of politics and law – in as much as they have chosen to pursue the ‘goods’ promised by the liberal Western political and legal system – are left with no choice other than to follow the path that is marked out by this system and to proceed at the pace it sets. What might appear as resistance and opportunities for empowerment are, in fact, instances of carefully crafted tactics for maintaining the colonial set-up. The indigenous claimant is always interpreted in terms of the colonial rule to which it makes its claims; those with the authority to allow or disallow such claims, whether political or juridical, retain the upper hand. In light of these reflections and Birrell’s critical reading of the construction of indigeneity in law, one is inclined to conclude that the indigenous subject that struggles to represent itself in the eyes of the law is irreversibly trapped in the colonial dichotomy and thus in a seemingly unending distortion of power relations.