Reconciliation and Plasticity in a Postcolonial Hawai‘i 1

I. Reconciliation

Law’s promise has nearly always exceeded its delivery for Aboriginal peoples. In Hawai‘i, the importation of Western law by the ruling ali‘i – absorbed in whole cloth from the state of Massachusetts in 1840 – came in the wake of French, British, and American warships hungry to swallow Hawaiian territory, the transformative social and political consequences of a growing missionary presence, a wild sexual economy servicing merchant sailors, and the instability brought by the printing press and near-universal Hawaiian literacy. The promise of sovereignty through law was complicated. Foremost, it committed the Hawaiian kingdom to many values and agents of imperialism. Law also brought with it the instruments for privatizing property and exploiting labor. At a more ideological level, subordination to the law by the ali‘i bought into the Enlightenment promise that law could deliver to erstwhile “savages” ⁶ the bodily norms and practices that would lend a patina of civilization and a subsequent claim to international respect for national autonomy and self-determination. ⁷ Despite this effort to embrace a foreign law and abide its forms, legality failed to save the nation. The American-led overthrow of the Queen extinguished autonomy as it rewrote its laws.

Today, Hawaiians are asked to again support the law, in remembrance of this tragedy, as a way of saving their nationhood. Yet, as many Hawaiian reactions to these reconciliation efforts have made clear, the contorted forms demanded by the law are eerily reminiscent of past failures of the law to protect the nation through demands for conformity. ⁸ For many who have turned away from reconciliation efforts through the Apology and the Akaka Bill, rejection has been aimed at the timing of recognition, the legal fiction of an Indian nation through which recognition must constitutionally take place, the harms which are to be apologized for, the English language in which recognition is to be made and the forums in which justice is to be sought. ⁹ 170 years after the uncrating of the first lawbooks in Hawai‘i, the question of what form reconciliation must take is foremost.

Some forms of recognition are, perhaps ironically, imposed. Without the pending new beginning of the Akaka Bill – the promise that this time, with formal legal recognition, with a legal allotment of self-governance, reconciliation will finally be realized – the state has initiated some reparative efforts involving recognition. Hawaiian values are extolled in preambles to legislation, explicitly including Hawaiians into an official and commercially-relevant cosmopolitanism and multiculturalism. A formal commitment to protect Hawai‘i’s delicate ecology, for example, names a balanced ancient Hawaiian stewardship of the land as its justification. ¹⁰ And Hawaiian common and constitutional law acknowledges enduring customary rights, including access to otherwise private land. ¹¹ These all designate Hawaiians as the original occupants of the Islands with distinctive claims based on a proto-sovereignty. But is this recognition ultimately conciliatory? Can it transcend settler interests and do more than legitimate liberal policy projects such as environmentalism and ideals of social and racial diversity packaged and sold to tourists, for example? ¹² Does it ultimately resolve the distinctive parts, histories, and worlds of postcolonial lands into a realized ideal of reciprocity? ¹³

Despite an increasingly global interest in recognition among many indigenous peoples, critical and postcolonial theorists have voiced important skepticisms about what such a politics may deliver, arguing that the form in which recognition is conceptualized is bound by deep-seated structural inequalities and the power relations they signal. ¹⁴ Recognition’s promise of reconciliation depends upon undercutting a liberal notion of the self-posited subject who can stand autonomously of colonial power relations and their legacies, or it must negotiate hybridity and what Bhabha has influentially called a “third space” constituted by those relations. ¹⁵ Hegel’s dialectic of recognition seems to offer this possibility to some. ¹⁶ Relations of recognition become “constitutive of subjectivity: one becomes an individual subject only in virtue of recognizing, and being recognized by another subject.” ¹⁷ For Hegel, this dialectic that begins in the desire for recognition between master and slave, and progresses onwards through an unhappy consciousness mediated by religion, and finally to absolute spirit, resolves the primary contradictions of dependency and hierarchy in a statist manner. Charles Taylor, addressing Quebecois and Indigenous demands for a distinctive Canadian identity with particularized rights, has argued that Hegel’s formula can also be used to resolve public sphere concerns for the equal dignity of all citizens and the desire of each to be “recognized for his or her unique identity,” a difference that has romantic, collective dimensions as well. Ultimately, “the potential for forming and defining one’s own identity, as an individual, and also as a culture” ¹⁸ for Taylor prevaricates on the individual and collectivist dimensions.

Critics have offered three kinds of rebuttals to Taylor, many hinging on his collectivist reading of Hegel. As these rebuttals are powerful and mature, my goal here is simply to take inventory. Taylor’s suggestion to build collective harmony on the supposition that “cultures that have provided the horizon of meaning for large numbers of human beings, of diverse characters and temperaments, over a long period of time … are almost certain to have something that deserves our admiration and respect” ¹⁹ nonetheless preserves rather than overcomes difference. As Brenna Bhandar notes,

The address or petition for recognition, when made by a cultural community, is on the basis of a difference that has to already be in existence if it is to be recognized. This means that in the act of a community representing itself as having a particular cultural identity, the fluidity, contingency and movement that is actually characteristic of practices and “traditions” in cultural communities is captured … Taylor … doesn’t seem to distinguish between the relative “artificiality” of identity as it is represented within a liberal-legal paradigm, and what we really are about, which is a set of fluid, changing, fragmented and non-unitary subjectivities. ²⁰

What Taylor’s liberal fixing of community difference implies is a limited form of tolerance adjudicated against some already-accepted norm for judgment. This is illustrated in Hawai‘i in the State Constitution where the state binds itself to protect

all rights, customarily and traditionally exercised for subsistence, cultural and religious purposes and possessed by ahupua‘a [ancient district] tenants who are descendants of native Hawaiians who inhabited the Hawaiian Islands prior to 1778, subject to the right of the State to regulate such rights. ²¹

These “frozen rights” ²² are allowed only according to official interpretation of ancient practices and limited in other ways the state sees fit. ²³

A second dynamic of recognition amplifies the first. The Hegelian framework of recognition is intersubjective whereas recognition today is mediated by state institutions with subordination and not recognition as their purpose. ²⁴ Deployment of official knowledge about indigenous peoples, the arbitrary use of cut-off dates, and control over the timing of recognition – all continue to subordinate. The dynamics of nationalism, concern for sovereign recognition by other nations, and tactical political considerations may all supersede any meaningful conciliation. For this reason, many critical approaches radicalize Taylor’s reliance on Fanon’s postcolonial theory, suggesting that Fanon’s emphasis upon the essential nature of subaltern struggle – especially his inclusion of violent struggle – challenges institutional power while it transforms the subjective dimensions of colonization in a way that no state institution can muster. ²⁵ Fanon’s transformative politics points beyond the state, nation, and sovereignty.

A third, trenchant critique of recognition theory and practice is that political recognition substitutes for redistribution, ²⁶ leaving the deep legacy of colonial inequality unchanged or minimally affected. This problem certainly involves an unwillingness to realize the role of property in recognition, a property that is characteristic of the subject as well as quantifiable. ²⁷ Borrowing from Bataille and Derrida, Bhandar calls this a “restricted economy of recognition” ²⁸ in which property relations of any sort are not placed in question. In the illustrative case of Hawai‘i, ²⁹ the question of the provenance of the “ceded” lands – whether they will be controlled by the state acting as trust guardian for Hawaiians, assimilated into the state’s collective assets, or used as a resource base for a proto-Hawaiian government – is, while likely a major motivator for settling the question of recognition, nonetheless not open to negotiation within the Akaka Bill. ³⁰ Nor are the consequences of recognition for this question clear in any explicit manner; some argue that the Akaka Bill will effect a significant transfer of the ceded lands to Hawaiians in the name of reconciliation, ³¹ while others have voiced deep skepticism that land transfer can be secured in this manner. ³²

In summary, these critical approaches to reconciliation are skeptical of the sufficiency of the rights and identities states are willing to recognize in the interest of resolving colonial disparities. Instead, as Patchen Markell suggests,

The discourse of liberal multiculturalism in contemporary North America and Europe leverages gains for excluded and marginalized groups by indulging the demands of states (and their normative citizens) for recognition of their sovereignty, now understood in terms of the capacity to observe, manage, and contain difference. ³³

As Hawaiian scholar and activist Haunani K. Trask expresses this sentiment in reevaluating law,

Modern Hawai‘i, like its colonial parent the United States, is a settler society; that is, Hawai‘i is a society in which the indigenous culture and people have been murdered, suppressed, or marginalized for the benefit of settlers who now dominate our islands. In settler societies, the issue of civil rights is primarily an issue about how to protect settlers against each other and against the state. Injustices done against Native people, such as genocide, land dispossession, language banning, family disintegration, and cultural exploitation, are not part of this intrasettler discussion and are therefore not within the parameters of civil rights. ³⁴

Trask’s and Markell’s arguments apprehend the actions of those Hawaiians who have turned from state efforts at recognition, and allow us to see that their complaints about form are not to be dismissed as merely symbolic, as inessential “legal fictions,” or as partial understandings of historical change, all of which have been voiced in opposition to the Akaka Bill. ³⁵ Rather, form crystalizes the transformative capacity of change. In the most common understanding of Hegel’s thought, form expresses the idea of the aufhebung, the always-already, the concept of simultaneous annihilation and incorporation of difference through which colonial antagonisms yield acceptable new beginnings. This is the concept propounded in spirit yet in other names by advocates of the Akaka Bill. These supporters’ efforts to remedy the steady erosion of native Hawaiian rights, the persistent antagonism of conservative federal courts, a lingering powerlessness, are based in an already-remedial move: legal recognition, an always-already form. But Hegel is not Hawaiian.

II. Apology

If rights are “bound by recognition,” reflecting an internal Hegelian logic suited mostly to settler interests, might an apology open history to something new, something more assimilable to Hawaiian and other indigenous realities? Might apology transcend form that has limited the appeal of recognition or overcome form in some messianic manner that welcomes the indigenous Other?

Apologies for settler colonial violence are “in the air” in settler societies in the Pacific, perhaps because they seem to offer recognition a new foundation that calls upon the goodwill of secure political majorities nonetheless skittish of legal losses signaled by the Mabo decision in Australia, increasing human rights commitments, or threats to the status quo by relatively conservative courts in the United States. ³⁶ As Jennifer Lawn argues, “Apologies are unusually powerful and dynamic modes of utterance [having] the potential to produce discursive effects in the strong sense of the term, not merely describing but actually inscribing new modalities of social responsibility and group identity.” ³⁷ This discursive promise of the apology, as Derrida understands it, aims at forgiveness but orients itself beyond the law, and beyond the Hegelian always-already.

The concept of forgiveness – or the unforgivable – which is often put forward in all these discourses [of repentance and apology], and in their commentary, remains heterogeneous to the judiciary or penal dimension that determines both the time of prescription or the imprescriptibility of the crimes. That is, unless the non-juridical dimension of forgiveness, and of the unforgivable – there where it suspends and interrupts the usual order of law – has not in fact come to inscribe itself, inscribe its interruption in the law itself. ³⁸

The risky interruption of law and the suspicion of politics are inherent in one current of Derridean thought, although it is a second current, an ethical and mostly Lévinasian concern for the sacred, that most influences scholarship on Apologies. ³⁹ This religious character is critical to the act of apology importantly for what it can call upon in terms of remembrance and redemption long caught up in questions of colonial sovereignty. As Jonathan Boyarin has recently argued, native peoples have never been disentangled from Euro-American concerns over Jewish difference within an expansive Christendom. ⁴⁰

Jewish and Christian ethics both help explain the political significance of the apology. Danielle Celermajer relies on Lévinas’s Jewish ethics to show the “highly ambiguous verdict” ⁴¹ of the apology: “an archetypical act of human freedom, including the freedom to alter one’s identity across time,” the freedom of the indigenous to refuse the apology, and the freedom from a totalizing politics suspending the immediate, face-to-face character of the act of contrition. In this manner, Celermajer projects a rupture in the Hegelian dialectic of recognition, a rending that the apology can effect.

To be successful, apology must work politically to resolve temporal discontinuities (bringing the truth of the past into the present context while opening to a new future). But it must also make a material difference in the lives of those whom it is addressing. If this material difference is only reflected in law, then Lévinas’ lifelong anti-Hegelian caution – one shared with Derrida – that political language may distort the ethics of the face to face encounter – is well placed here. A political apology raises an essential question: who does an apology for colonial violence address? Those descendants who still suffer the aftermath of colonial violence, or the political subjects whose sense of sovereign entitlement is wounded by unabsolved guilt? Lévinas’ ethics would suggest that it must be both, the apology providing a “fraternal mode of proximity” ⁴² that does not collapse ethics into politics.

For some who have favorably assessed the 2008 Apology of the Commonwealth of Australia to its indigenous peoples, several mechanisms worked to translate and transform the dynamics of guilt, many embedded in the idioms of Christian redemption ⁴³ and its utility for a new sovereignty.

The language of reconciliation, the exercise of sovereignty in the mode of contrition, and the re-imagining of a new identity on the basis of a hope for unity for the people cannot be entirely severed from Christian moorings … The apology was a re-visioning of the national imaginary and a reshaping of national identity – a “new beginning.” ⁴⁴

This new origin is one that is above and before the law, a recollection of sovereignty distinguishable from the Judaic sense of a people of the law, ⁴⁵ more aligned with Christian notions of a universalism beyond particularism. ⁴⁶

The Australian Apology focused on the forced removal of Indigenous children from their homes, a policy that was not a crime in its time. This avoided a direct legal connotation to the apology, but signaled that something beyond the dyadic nature of criminal and community was at stake. Situated beyond the law, the apology drew upon a sense of collective shame, one that could be reconciled with sovereignty. According to Sara Ahmed, shame

can bring ‘‘the nation’’ into existence as a felt community. To acknowledge wrongdoing means to enter into shame; the ‘‘we’’ is shamed by its recognition that it has committed ‘‘acts and omissions,’’ which have caused pain, hurt and loss for indigenous others. ⁴⁷

Shame calls the nation through a sovereign imagination. Those who hear the call of apology must see themselves as already always members of a nation “insofar as their allegiance has already been given to the nation, and they can be subject to its address.” ⁴⁸ As a sovereign, this community can act to expiate wrongs as an act of exception.

The sovereign alone can assuage the moral or spiritual excess which the law can merely ignore or contain by judicial punishment. The tension between shame and sovereignty is thus resolved by reconciliation. It is only grace that overcomes original sin. ⁴⁹

The reference to original sin deploys apology as an abasement of the sovereign, analogizing the crucifixion. Yet the exceptional quality of the apology – like the crucifixion – also renders the meaning both “evanescent and immaterial.” ⁵⁰ Apology may escape making a material difference in both its evanescence and in its recall of the religious-material basis of early colonial settlement that always relegated indigenous subjects to a place removed from, but called by, civilization, community and law. In its threatening distance from law, apology also risks capture in the institutional matrix that surrounds material interests – the legal rights to property, the hegemonic promise of entitlements, and the legal obstructions to recognized difference: all structures left untouched in the theory of recognition explored in the first section of this article. These all played a crucial role in the 1993 Apology in Hawai‘i. In the discussion that follows, I am interested in showing the problems of capture in Hawai‘i. This follows Derrida’s admonition that “the language of forgiveness, at the service of determined finalities, was anything but pure and disinterested. As always in the field of politics.” ⁵¹

The Hawai‘i Apology Act, like the Australian, raises in question the sovereign rather than legal nature of harm. The Apology has a vast set of “whereas” clauses that establish the historical involvement of the United States in what President Cleveland noted at the time (1893) to be an “act of war committed with the participation of a diplomatic representative of the United States and without authority of Congress” through which “the government of a peaceful and friendly people was overthrown.” The 1993 repetition of this language overturned the findings of a 1983 commission ⁵² and reaffirmed Cleveland’s understanding in new words: “the indigenous Hawaiian people never directly relinquished their claims to their inherent sovereignty as a people or over their national lands to the United States, either through their monarchy or through a plebiscite or referendum.” That some indigenous sovereignty remained was evidenced by the central text of the Apology:

The Congress … apologizes to Native Hawaiians on behalf of the people of the United States for the overthrow of the Kingdom of Hawai‘i on January 17, 1893 with the participation of agents and citizens of the United States, and the deprivation of the rights of Native Hawaiians to self-determination.

The Apology’s reference to inherent sovereignty, to rights, and to land helped renew the indigenous sovereignty movement in Hawai‘i. ⁵³ And it was cited approvingly in Congressional hearings held in 2000 in Honolulu by some Kanaka Hawai‘i who read the Act to morally support the Akaka Bill. For others, the idea of the Apology was correct, but the Act duly criticized for calling inappropriately for a legal form of reconciliation. “The 1993 U.S. apology bill asked for reconciliation and offered the next move to the Hawaiian people, not to this Congress. This bill is deja vu 1898 all over again.” ⁵⁴ Similarly, others saw the Apology bill opening a space for making reconciliation pono, a Hawaiian term for justice with no necessary legal implications. This was important because there was no immediate material consequence to the Apology: “the denying of our fishing and hunting rights, etcetera … As I see it there is no return of the lands, no repayment of back rents and apology for what?” ⁵⁵ Yet for others, by focusing on one wrong – the overthrow of the Queen – rather than the many wrongs and continued petty violence of colonialism and imperialism, the only logic of justice was the recognition of the never-extinguished Kingdom. “The Apology Bill encourages this reconciliation. But in order to do that, there must be restoration,” expressed Kaui Amsterdam. ⁵⁶

The hopes for escape into the Kingdom, restoration of rights long suppressed, and return of stolen land, all reveal the ambivalence of the Apology, its limited capacity to call into question the form of contemporary relations and to settle the form of their transformation. The Act called upon a sovereign community to acknowledge and overcome past wrong, but it simultaneously pointed towards sovereign institutions, highly invested in contemporary dynamics of power. The Apology “recognizes and commends efforts of reconciliation initiated by the State of Hawai‘i and the United Church of Christ with Native Hawaiians,” two institutions with highly ambivalent statuses. The state’s very existence and legitimacy is predicated on the legality of the overthrow of the Queen; its commendation for efforts at reconciliation, especially in the context of those Kanaka who still revere their Kingdom, already closes what an apology could keep open in the name of reconciliation and justice: the form of dominant government in the islands. The reference to the United Church of Christ does something similar. As in other apologies, it explicitly frames the Christian dynamics of reconciliation and forgiveness. But where this religious theme is at least theoretically open to difference and redemption, the Apology names the church that first established the missions that converted the Hawaiian ali‘i in an effort to civilize and make Hawaiians fit for legal subjectivity and international sovereignty.

If the Apology does not escape the gravitational pull of this civilizational narrative, it is also captured by its commitment to a prelapsarian myth. Claire Moon has argued that

reconciliation as narrative scripts the terms on which reconciliation is to take place restrictively, by presupposing the idea of ‘‘return’’ as its point of closure. In contrast, reading reconciliation as a metaphor opens a space for politics due to its indeterminacy, which enables the terms upon which reconciliation is negotiated to be contested. ⁵⁷

In pointing to the overthrow of the Kingdom, metaphorical openness is penned by the idea of a return, both in the case where Kanaka Hawai‘i see only the literal Kingdom still existing, a past that has a presence and a future; or where opponents of reconciliation can point to a time under the Kingdom when many were citizens, Hawaiians as well as settlers. Prelapsarian time serves both, but does not account for the realities today of vast inequality where Hawaiians lead the chart of homelessness, incarceration, and ill health. ⁵⁸

The vast power of sovereign institutions makes capture of the messianic apologetic gesture more likely. Despite the overwhelming dismissal of the Akaka Bill by Hawaiians testifying during the only hearings ever held in Hawai‘i in 2000, the Bill has been introduced annually ever since. And the Supreme Court has ignored the Apology in Rice v. Cayetano (2000) that overturned the Hawaiian restriction on voting for the board of a state agency designed to serve Hawaiians entitled to a fraction of the profits from ceded lands. ⁵⁹ The Court has more recently stripped the preamble from the Apology in Hawai‘i v. OHA. ⁶⁰ That case overturned a Hawai‘i Supreme Court ruling that cited the Apology in support of ruling that a Maui parcel of the ceded lands could not be sold by the state pending resolution of “unrelinquished” native Hawaiian land claims. The Supreme Court ruled that the Apology was not the proper form in which Congress can create substantive rights. In addition, the Court ruled that the 37 whereas clauses that discussed the historical intervention of the United States in Hawaiian affairs were of no legal significance. Finally, the Court said that there could be no cloud on land title involving Hawaiian issues. If apologies work to bring side by side a mechanical time preserving “the truth of the violation, ensuring that the tears once shed are held as inviolable” and a “time of fecundity [that] makes possible a radical transformation of identity and relationship, giving meaning to finite freedom” ⁶¹ then this case stripped the legal significance of violation, toppling any promise that future time might hold.

III. Plastic Ontologies

The mutability of beings is what opens a future in the absence of any openness of the world. ⁶²

What might hold together the promises of a future open to indigenous organization and self-governance and the immediate recognition of contemporary conditions? In what ways can past violence and structural inequalities be integrated into contemporary politics? I have argued in the earlier parts of this article that the grand projects of recognition and apology fail to resolve historical violence in forms acceptable to many native Hawaiians. Law seems ever present in the process and imagination of both alternatives, a law that has ambivalently sanctioned the desire of many settlers to erase indigenous difference (to “exterminate all the brutes” in a more palatable fashion) and to use indigenous presence as a means to pursue social, economic and land-use policy.

In this final section, I sketch theoretical and practical projects not yet imagined as a means towards advancing reconciliation in practical terms. My effort is to reframe the critical concern over law and its forms that has been voiced by some Hawaiian activists who no longer abide law’s eternal promise of peace and self-determination at the perpetual cost of conformity. Rather than look for a way out of law’s entanglements, I argue that the lack of handy exits from law’s labyrinth need not require messianic moves forward nor atavistic returns to earlier legal contexts, nor must it be mired in intersubjective negotiations over cultural difference. ⁶³ I underscore this argument using Western philosophy that takes another turn towards Hegel through the creative work of Catherine Malabou, as well as demonstrate where indigenous theory and critical settler theory may meaningfully take over. In brief, I understand the return to Hegel through Malabou’s concept of plasticity to build a form of recognition on the uncertain and evolving confluence of malleable ontologies rather than the ossified and enduring categories of law.

I embed the following discussion in the important claim for political ontologies recognized by those who have criticized contemporary forms of recognition, and found wanting the metaphysical alternatives embedded in the messianic project of the apology. ⁶⁴ Markell has called an ontology an “implicit or explicit interpretation of the fundamental conditions of life in the social and political world, the kinds of things that exist there and the range of possibilities that it bears.” ⁶⁵ He has also defended ontology from the claims that it makes necessary what are really contingent historical formations (a criticism stemming from a more traditional way of reading the limitations of the Hegelian system) by identifying the ways in which ontology is also dependent on epistemology, a learning, that can reveal its contingent dimensions. ⁶⁶ In this manner, a political ontology may illuminate the necessities of indigenous identities and the potentialities in indigenous existence without resorting to a petrified anthropology or a politics of (in)authenticity.

Catherine Malabou has developed the Hegelian concept of plasticity to address this fusion of the ontological and epistemological. Her reading of Hegel’s Phenomenology suggests a desire for transformation at the heart of recognition, ⁶⁷ an active reaching for change that animates plasticity. Plasticity accounts for the capacity of each organism to give and receive form, a mutability or metamorphosis that is historically real (in the Hegelian sense) to the extent that it is a privileged type of materiality, a mode of apprehension, and a manner of change, dimensions revealed in many contemporary phenomena such as neurobiology, ⁶⁸ capitalist organization, and the transformation of identity. ⁶⁹ Addressing these many philosophical dimensions, plasticity constitutes a “motor scheme” ⁷⁰ that leaps beyond (a reading of) the “always already” system of the dialectic – the “tight loop which envelops everything – all exteriority, all alterity, all surprise” ⁷¹ – revealing that the Hegelian system never has been closed to the future, to what is to come. ⁷² Plasticity grasps the “the interplay between form and itself.” ⁷³ This metamorphosis is immanent within ontology and metaphysics, requiring no “Other” of religion or law, no transcendence whatsoever: “Alterity enchanted by disenchantment: alterity must be sought out everywhere that there is metamorphosis, in all the folds of metaphysics, as the fabulous unconscious of ontology.” ⁷⁴

Two major dimensions of plasticity orient us beyond the messianic realm of the apology, and the limitations of the Hegelian system of recognition. ⁷⁵ First, Malabou stresses a new materialism, one in which the persistence of form engages a new understanding of time, one that is both linear and open to the voir venir, that seeing or glimpse of what is to come: “the structure of anticipation through which subjectivity projects itself in advance of itself, and thereby participates in the process of its own determination.” ⁷⁶ In this manner, the subject cannot “seize the moment” since time leaps – without a messianic impulse – beyond the boundaries of any simple teleology; instead, the subject must see itself becoming, metamorphosing. Second, this materialist subject embedded in its material form must be presumed to be a reader, transforming itself through its grasp; “Reality and [its] mode of apprehension” cannot be divorced, in the same way that the verb “to grasp” connotes both the seizure of a subject and its understanding. ⁷⁷ Time is a record of these movements back into past conditions and forward into future possibilities, suggesting that what is inappropriately messianic is both the hope for future transcendence without plasticity (e.g., the declarative securing of Hawaiian sovereignty), and a return to the past (e.g., a restoration of the Hawaiian Kingdom on account of systemic error or wrong).

These dimensions can be read into Malabou’s discussion of cosmopolitanism, with consequences for this discussion. Cosmopolitanism, as she examines it, is a response to the “economic determination of globalism,” ⁷⁸ the critical problem of imagining a way beyond imperialism and the international relations of sovereignty. As she points out, Lévinas and Derrida both stressed an ethical moment of hospitality in cosmopolitanism, a non-plastic movement that distinguished the “trace” of the encounter with the Other from the form of existence. Temporally, the trace returns to the past, a reminder of the first experience of the other. ⁷⁹ Spatially, this political moment is not here. “The encounter with the other, the response to the moral injunction, would always have to occur ‘elsewhere,’ to the extent that the very movement of the encounter in general, which Lévinas calls ‘metaphysics,’ is a move toward ‘somewhere else.’” ⁸⁰ This move towards the ethical and political exterior, this attempt to “flee,” is not plastic. Nor, does Malabou suggest, is it sufficiently critical. The emphasis on the trace as inconvertible to form – packed within the idea of hospitality propounded by Lévinas and Derrida – is nothing more than a Marxist notion of fetish operating beyond the circulation and exchange of economic values, a pretense that an apology might disrupt capitalist globalization, for example.

On the face of it, the fetish always occurs outside the operation of exchange, outside the market. From then on, when otherness is fetishized by its resistance to plasticity, when hospitality continues to be thought as the ‘‘counter’’ to plasticity or, in other words, against form, it is no longer possible to distinguish cosmopolitanism rigorously from hypercapitalism. ⁸¹

Plasticity, with its emphasis on convertibility, would seek alternatively to conceptualize this trace as form.

Deconstruction would have found, in plasticity, its most faithful expression, the conceptual hôte – both host and guest – most worthy of the concept of hospitality. For is not plastic the substitutable material par excellence? Can it not take the place of every thing, can it not deconstruct every idea of authenticity, is it not always engaged in the process of its own disappearance? Is it not always beyond its very own form because it can change? ⁸²

Of course, there are limits to the notion of hospitality read onto the imperial situation. Who is the guest and who the host? Since colonization is imposed on a “host” culture, why does the “guest” arrange the apologies and perform the reconciliations for the host? Malabou’s sense that host and guest are mixed, one and the same, suggests that disentanglement of these positions is strategically uncertain. Nonetheless, her position should not be read as an ethical and political disengagement. Her stress on the materialist persistence of form implies, in postcolonial situations, much more than that which could ever be envisioned by the Hegelian West, and must include distinctive indigenous ontologies as well. In this sense, plasticity as a motor force should not be read as a Western imperialism, conceptualizing others in purely post-Hegelian terms. Malabou invites us to understand alterity as less a call to “interiorize” or assimilate difference, or to deny the mourning for what is replaced by globalization; instead, we must “presuppose[] another plasticity, as a non-integrative suppleness.” ⁸³ In this adjacent plasticity there is an incommensurability of form that can open up into a real history.

To state that nothing is unconvertible amounts to claiming the philosophical necessity of the thought of a new materialism, which does not believe in the ‘‘formless’’ and implies the vision of a malleable real that challenges the conception of time as a purely messianic process. It means that we can sometimes decide about the future … which means that there is actually something to do with it, in the sense in which Marx says that men make their own history. ⁸⁴

Malabou’s reading of change and transformation without fleeing the historical epoch or the historical self, suggests another way of conceptualizing the ethical gestures bound to the concerns for reconciliation and apology in response to imperial violence against indigenous peoples. The persistent transformation of form proposes that recognition, to be real, must be to some large degree, a recognition or reading of the self. “The subject, in every case, is conceived as a self-interpretation, a place of synthesis of its identity with and difference from itself.” ⁸⁵ Such a reading of the self may involve, as well, a grasping of multiple temporalities that infuse the self. It also may depend on less transcendental forms of recognition, those not anchored to law and legal rights, or the dominant imagination of sovereignty. Finally, in the context of imperialism that it intends to disrupt and transform, plasticity implies the vitality of the international dimension from which readings of self and identity gain perspective.

How can we apply these ideas to the ontologies of indigenous peoples? In what ways are present forms of being, deeply distorted by the overwhelming annihilatory power of settler societies, past imperialist violence, and the always-incoming tides of globalization able to transform themselves in ways responsive to Western ideals of justice or indigenous ideas of what is right (in Hawaiian, what is pono)? Mark Rifkin has approached these forms through a notion of practical sovereignty, what he calls a bare habitance that examines form outside of the threatening yet distant tendrils of legal authority. ⁸⁶ What law and sovereign discourses have done, according to Rifkin, is to distort essential dynamics of indigenous being. For example, American Indians (who are recognized under the American Constitution) may occupy reservations but cannot exercise full authority within these territories, and may claim traditional rights predating American law that are preserved by treaties, yet must abandon these “rights” subsequent to changes in recognition governed by that dominant law. The foundational legal language of “denominated domestic dependent nation” ⁸⁷ renders them neither foreign nor assimilable. In addition, law and sovereignty have both contributed to the foregrounding of the individual body and its excesses that make indigenous peoples appear unfit without modification for the respect and recognition that are due “civilized” individuals. ⁸⁸ What aboriginals require, for Rifkin, is a restored and renewed emphasis on territoriality, collectivity, and the legitimacy of sovereignty granted within international relations.

Apart from a rich and resurgent cultural presence – one valorized for its contribution to the state’s tourist industry, and increasingly, as a basis on which to pursue some ecological policies – Hawaiians seem to occupy a particularly difficult theoretical position from which to extend Rifkin’s notion of bare habitance. Native Hawaiians have no constitutional claims to Indian status which makes distinctions between natives and subsequent settlers an uncertain if not inapprehensible legal question. ⁸⁹ Native Hawaiians lack reservations, making questions of territoriality and its linkage to sovereignty just as nebulous. Finally, Hawaiians have no established political authority from which to voice collective demands.

Nonetheless, there is reason to suspect that these dimensions of territoriality, collectivity, and legitimacy are more than transcendental subjects constituted a priori. Malabou has offered an ontological reading of Hegel that is organized around humanity, God and the philosopher, three sites that are not, in her reading, necessary lock-steps in the unfolding of Spirit, but rather “sites where subjectivity forms itself.” ⁹⁰ I am not trying to tuck indigenous ontopolitics into a forced parallel with these great moments in the unfolding of Western philosophy. Instead, I am suggesting that there are potential analogues to the idea of plastic sites where subjectivity forms itself that are caught up in the spaces and times of indigeneity – an identity that is simultaneously local and shared globally with other indigenous peoples, ⁹¹ that makes distinctive claims to being of and on the land, and that understands itself as a people as much as a collection of individuals. These sites implicate the legitimate claims for territoriality, and they meld modern time (the simultaneous time of other indigenous groups fighting distinct but similar battles against settler colonies) with ancient genealogies linked to time immemorial, a time always before the law. ⁹²

In what follows, I provisionally sketch two sites relevant to Kanaka Hawai‘i in which plastic ontological transformations are occurring. Following Malabou’s arguments for the persistence and metamorphosis of form, I am interested in locating places where the fluidity of identity leaks beyond the liberal forms of rights that resist the acknowledgement of transformation. In a conclusion I ask what these may tell us about the place of law in efforts to account for past injustices.

IV. Metamorphosis

In native Hawaiian theory (and many other indigenous theories), animals play a significant cosmological and political role, even though animals lack a traditional linguistic and cultural category. ⁹³ Sharks and owls, landforms and even plants can be human ancestors, and because some bodies can change shapes – because they are plastic – it is possible to create an ancestor who swims in the ocean, lives on land, or flies in the sky. This is decidedly a non-Western ontology. ⁹⁴

The state of Hawai‘i has increasingly recognized some aspects of this particular role that non-human others play in Hawaiian cosmology. It has premised some of its efforts to regulate shark finning and shark tours, for example, on the state’s fiduciary protection of this special historical relationship. ⁹⁵ This stands in stark contrast with the state’s earlier approaches to shark management. In 1958, several months prior to Hawaiian statehood, the territorial government responded to a fatal shark bite off O‘ahu by authorizing the mass killing of sharks. The Billy Weaver Shark Control Program, eponymously named for the victim of this attack, was one of the fledgling state’s first legislative acts, appropriating and administering $300,000 for the slaughter of many hundreds of near-shore sharks. ⁹⁶ What differences for native Hawaiians have a more scientifically based and culturally “sensitive” set of management policies brought?

Longstanding Native Hawaiian stories about sharks, pigs, and other significant beings, many published in local news articles in the Hawaiian language during the mid-nineteenth century, provide a record of a deeply divergent ontology not easily reconciled with state-sanctioned efforts to distinguish and control nature through the eradication of sharks, or the creation of spatial and economic zones in which humans will have to refrain from intentional contact with sharks. The existence of these stories does not imply a Hawaiian cultural authenticity nor does it bind indigenous thought to its pre-Western-contact forms in the way that a regime of recognition might. Rather, it acknowledges the growing cultural literacy among Hawaiians that allows for a plastic transformation of subjectivity, something evident in contemporary Hawaiian scholarship as well as cultural practice and political life today. Stories of interspecies mutation may aid this political transformation by encouraging what Malabou would call a plastic reading: an openness to alter the self by engaging with oral and written texts about sharks, pigs, and other beings, and the metamorphoses – allegorized in these stories – that link these beings together.

I will draw a couple of ideas that come from stories of metamorphosis. One involves sharks. As the state attempts to ban shark feeding tours on O‘ahu, it acknowledges native Hawaiian values, including the idea that sharks are (sometimes) ‘aumākua (or guardian ancestors) to some Hawaiians, ⁹⁷ and claims these values as supportive of the state’s efforts to regulate its territory through ecological-scientific management. Yet, some Hawaiians do feed sharks, and not for the same economic reasons that tour boat operators do. Feeding the flesh of a deceased family member to a shark could transform that human into a shark who would then responsibly watch over family members, particularly in the ocean spaces where that shark would roam.

Many Hawaiians continue to honor their family ‘aumākua, despite over a century of imposed English language and relentless attempts at forced assimilation. By the late 20th century, few Kanaka could speak Hawaiian and many aspects of their culture seemed to be lost. Since the 1970s, however, Hawaiian language studies have been resurgent and many everyday practices have been reinvigorated including surfing, hula, and the feeding of sharks. ⁹⁸

The social engagement with sharks is not dependent on a benign view of their behavior or their scientifically understood place within a natural ecology; it does not recapitulate the distinctions between nature and culture on which the state’s environmental policies depend. Nor is it an impenetrable sign of difference named in legislative preambles regarding respect for “native Hawaiian practitioners,” a difference that seems, even in its solicitation, to call into question the adequacy of the veil of civilization and the animalistic “savagery” lurking thereunder. Rather, feeding sharks as ‘aumākua and as deity re-imagines the humanistic boundaries of what has been recognized within colonial encounters, ⁹⁹ and it helps to reclaim the waters beyond the powers of the state, to invest these fluid territories with new aspects of sovereignty no longer tied to a civilized veneer. Swimming with finned ancestors allows some Hawaiians to experience a genealogical belonging historically denied them by the state.

Pig hunting provides another example. Hunting pigs is a cultural activity with significant cultural roots since Western contact. The pig god Kamapua‘a holds a privileged place in Hawaiian stories as a troublemaker who can change shape, dodging and escaping authority by turning himself into a fish, or other metamorphic camouflage. ¹⁰⁰ Feral pigs today are seen as problematic for the scientific-ecological state for this same type of unnerving mobility. Their rambling through the forests is understood by scientists to upset the ecosystem, limiting natural diversity by endangering native species. At the same time, many Hawaiians see their own survival threatened by efforts to eradicate or strictly control feral pigs, and they have questioned the ahistorical logic by which scientists determine the baseline of Hawaiian ecological balance. Pigs were intentionally brought by Polynesian voyagers who settled Hawai‘i; why isn’t it now imperialist to say that they are not part of the ecological balance? The denial of historical political economy is more galling when the state supports its ecological legislation by invoking Hawaiian values, implicitly calling upon the romantic idea that Hawaiians are natural inspirations for scientific management. ¹⁰¹

This ahistorical attitude has ambivalent consequences for some Hawaiians. The ecological threat of pigs has been used by some Hawaiians to gain access to military bases in sanctioned efforts to enforce environmental laws protecting endangered species, opening lands otherwise off-limits. For hunters, chasing wandering pigs provides access to land without recognition of property boundaries in the same way that Kamapua‘a toyed with authority in written stories. Interestingly, many of the trails crossing the islands once used by precontact Hawaiians are today maintained by pigs who keep them free of undergrowth, a reminder of a prior, but now suppressed, sovereign control over territory maintained by non-human beings. For hunters, they assure access to food and to land bounded by the territorially-indifferent pig whose wanderings are resonant of Kamapua‘a’s exploits. For environmentalists, pigs provide opportunities to protect these places from exploding shells as well as from pig wallows. In these ways, the wandering of pigs generates small sovereign tactics by Kanaka Hawai‘i including accessing land for sustenance. Pigs, and those who hunt and exclude them, help to challenge the shapes and meaning of postcolonial property boundaries: a contemporary plasticity of form.

The plasticity of living beings and landforms found in Hawaiian lore and cultural practice are both inspiration and analogy to the plastic kinds of learning and play that offer theoretical alternatives to postcolonial legality. Pre-contact ways of organizing access to land and sea once promoted a local political economy; one form, called ahupua‘a – a term that tellingly includes the word for pig – marked territories on each island in which all inhabitants therein had rights to gather from the ocean reefs to the upland forests. These zones can still be imagined today to plastically reassemble the spaces and economies of modern Hawai‘i. These imagined worlds stemming from the practiced recognition of non-human others have exciting consequences for rethinking indigenous territory, collectivity, and legitimacy.

V. Settler ontologies

Plasticity is a concept also allowing us to think some aspects of settler self-transformation to the benefit of indigenous peoples, a metamorphosis that does not require nor depend upon the state and its official sense of time or place of priority. Asian settler colonialism (ASC) is an academic project with active roots among some scholars in Hawai‘i. ¹⁰² It is designed to rupture the myth of multicultural citizenship in Hawai‘i that is premised upon an earlier historical struggle with the colonial state. The multi-ethnic labor struggles that emerged in reaction to the ethnically-segregated sugar plantations combined with the heroism of returned WW II veterans of Japanese ancestry to forge a conception of citizenship stressing republican and middle class virtues of hard work and military bravery. ¹⁰³ Under the banners of the Democratic Party and civil rights, this ideology successfully displaced a notion of citizenship privileging genealogies tied to colonial missionaries, the plantation legacies of early landed interests, and ties to Hawaiian royalty and the Hawaiian Kingdom, a schema that excluded Asian laborers and their descendants. While the Democratic Party legacy has been progressive for many who were subordinated under the older schema – particularly those Asians who emerged into the middle class and were committed to development under the aegis of globalized capitalism – it only incorporated native Hawaiians through its republican multiculturalism and its commitments to civil rights.

ASC is an attempt to rethink this multiculturalism by examining the relationship between Asian settler identities and native Hawaiian claims in the interest of transforming subjectivities.

The story is a two-fold recovery of Asian settlers’ colonial complicity and the transition from a U.S.-centric industrial agricultural political economy to the … dynamics of neoliberal globalization, both of which suggest what may fall out of a narrative restricted to settler debt and indigenous expense. Yet, in its certain trajectories, there is little room to recover singularities under new names. They remain unintelligible and un-cohered with the certain parameters of settler colonialism. ¹⁰⁴

Apart from the commitments to reposition Asian settlers within the historical trajectory of imperialism, ASC simultaneously re-imagines a geopolitical space that has positioned Hawai‘i at the confluence of the East and West. “Once inserted into an ‘East’ and ‘West’ geopolitical frame, Hawai‘i becomes defined within a continuum between implicitly ‘Oriental’ and ‘Occidental’ constructs that negate the subjectivity of Pacific peoples.” ¹⁰⁵

Plastically changing Asian identities and their cartographies in an effort to account for historical marginality and class trajectories is designed to renew indigenous histories and open a future not occluded by the necessity of global capitalism and domestic development. It is, simultaneously, a way for activists to embrace indigenous struggles, not as their own, not just in an effort to build Asian solidarity without privileging the middle class, but as a way of rebuilding a future for Hawai‘i that honors the primacy of indigenous economic and cultural differences.

What this metamorphosis of identity means for Asian settlers and others is unsettling. Where multicultural ideas of citizenship, previously established by settlers of Japanese ancestry, assume ethnic and racial differences to be cultural rather than political categories, the privileging of indigenous history puts into question the basis for non-Hawaiian citizenship altogether. Indigeneity emerges not as race with that category’s imperialist history, nor as respected ethnic cultural difference, but rather as a viable historical agent for whom Asian allies can play a supportive but not determinate role. No longer able to fit or support the liberal American ideal of assimilation for which civil rights have played a signal character, Asian identity assumes its complex postcolonial character, benefiting from the conquest of the Hawaiian kingdom for which it had no responsibility, and furthering liberal capitalist development that has marginalized native communities. ASC continues this agency in another chapter. Asian settler identities in this alternative frame are not eliminated as much as intentionally annihilated and reformed, plastically rearranged in an effort to open political space and disrupt a progressive temporality.

My point in this much too brief synopsis of a rich and rapidly expanding academic project is to demonstrate the fluidity of identity and the grasping and annealing of this form through an active reading of systemic structures of capitalism, citizenship, and law. In ASC, Asian identities are treated as ontologies, situated amid other ontologies, developing through self-reflection, criticism, and the compelling demands of other peoples. The recognition of indigenous peoples by ASC in an effort to transform settler subjectivity seems in some ways less puissant than public efforts at reconciliation or apology, perhaps because it is located outside the apparatuses of the state and concentrates itself on more particular ethnic experiences. But this project also seems imbued with more potential to rethink the past and open the future in ways that leave space for the historical projects of indigenous peoples.

VI. Conclusion

Approaching form through the concept of plasticity brings us back to a new Hegel. The metaphors of healing, understanding historical change, and reconciling differences don’t change, but their meanings do. Plasticity orients us towards new ideas about law’s power to heal postcolonial wrongs that law has also perpetuated. It urges us to listen to indigenous peoples’ dismissal of the forms in which law comes to deliver its persistent promises of peace and sovereignty at the expense of normative conformity. Plasticity also leads to the expectation that efforts to heal the violence of postcolonial societies will not come from the disappearance of indigeneity. On the contrary, there will be more incommensurate identities based around divergent claims to belonging, recalled through alternative ontologies embedded in alternative texts, languages, and everyday practices. Plasticity may also show us the necessity embedded in forms that Malabou philosophically reveals to be always material: the needs for collective self-development, territory that facilitates individual and collective reproduction, and the legitimacy to exist within a world where other indigenous peoples can thrive. This is a world of small but important projects of becoming, less focused on the imperative of law and right to account for these differences, to regulate them. For law has never been able to adequately do so.

Perhaps it is useful to think of another form in which to contemplate the violence of colonial societies against their indigenous inhabitants. Rather than apology or reconciliation, perhaps we can use Malabou’s notion of an “affirmation of the impossible,” a new globalization of the world that

appears as this welcoming of the other which does not put him to death, which does not embalm him in advance before even having met him. Only this welcome, the condition of a non-prescriptive memory which does not prejudge the destiny of the originary trace of the other in us, can guide the march of the new internationality and of supranational political and legal institutions delivered from the obsession of normal mourning and its banality. ¹⁰⁶

Affirming the impossible is expressed through its counterpart of mourning the possible, a psychic process that Freud reveals to plastically conserve the form of that which is mourned. ¹⁰⁷

The mourning of the possible, in the double sense of the genitive, can only be the conservation of the possible itself which does not reify it in an image or a phantasm. Thus conserved, the possible remains forever possible, and to this extent the not having happened is also the resource for that which can arrive, the resource of all faith in the future, of all confidence in another becoming of the world. ¹⁰⁸

This confidence in another becoming is not the assurance of the destruction of form and the elimination of law. It is, significantly, the political poise that stems from knowing the inherent plasticity of form, its annihilation and reconstruction, that makes the unhistorical and the historical equally essential.