Abstract
Kathleen Birrell’s excellent book, Indigeneity: Before and Beyond the Law, is a book about the relationship between law and literature as much as it is about the relationship between Indigenous peoples and the west. It is divided into four parts. The introductory part, “Narratives,” presents Birrell’s theoretical and philosophical points of departure, and positions her as a non-Indigenous researcher (54). In Part Two, “Indigeneity,” Birrell examines the articulation and recognition of indigenous identity within land rights law, and the subversive expression of identity within Indigenous literature that transcends the appeal to the colonial gaze to give recognition to the Indigenous subject. In Part Three, “Law,” she explores the relationship between law and justice in Benjaminian terms (thinking of Indigenous law as “divine violence” and non-Indigenous law as “mythic violence”). She finds within the bloodless violence of Indigenous law a transformative potential. Part Three also examines the depiction of Indigeneity in Australian native title law, focusing on the decisions in Bennell and Yorta Yorta in which appear extended analyses of Indigenous connection to country. Finally, in Part Four, “Literature,” Birrell considers Indigenous literature as part of a longer, broader, oral tradition through which knowledge and law are passed from one generation to another. Indigenous literature is also read as a form of resistance to the colonial narrative of law.
The book explores the ways in which both law and literature “create and legislate” the meaning of Indigeneity (4). This exploration responds to a common notion of Indigeneity as “authentic” – fixed, natural, pre-discursive – concluding that, on the contrary, Indigeneities are constructed through deep colonization but also disrupt or deconstruct colonization. The book focuses on native title law in Australia, reading Australian case law alongside Indigenous Australian literature, demonstrating the different ways in which Indigeneity is constructed through common law and Indigenous literature. Birrell argues when law embraces the anthropological notion of the Indigenous subject as “authentic” and “whole” it participates in “erasing dispossession” (4). In order to appear before the law, the Indigenous subject must perform its Indigeneity in a specific way – through attachment to the past (16) – constructing Indigeneity as static. Indigenous literature, on the other hand, portrays Indigeneity as “articulated” or “fluid” (5).
Birrell joins a trend in the scholarship on Indigeneity that criticizes the notion of authenticity (e.g. Tisa Wenger’s We Have a Religion, Joanne Barker’s Native Acts, and Jennifer Hamilton’s Indigeneity in the Courtroom). In her welcome addition to this scholarship, Birrell notes the complexity – or ambivalence – of Indigeneity as a global identity: while Indigeneity requires identification with a worldview that “may bear little or no resemblance to lived realities,” it may also serve as “a tool for empowerment” (10). A good example of the complexity of Indigenous identity may be found in contemporary environmental politics – as we have seen recently with the Standing Rock protests and lawsuit – in which Indigenous peoples sometimes appear as agents and sometimes as mere “pawns” in an ideological battle (11). Another example may be found in human rights discourse that defines Indigeneity as “otherness” and protects it as such (12).
Australian title law, Birrell argues, “calculates and constrains indigeneity, such that the claimant must prove an unbroken connection with the ‘ancient tribe’” (26). The requirement of continuity with traditional normative systems is absurd “in a region so manifestly affected by colonisation” (26). Also, by insisting on the performance of “tradition” Indigenous cultural vitality is denied. In contrast, when Indigenous interests in land are defined by Indigenous law and custom – both “traditional” and contemporary – they may include interests in land as property or as something “entirely unknown to the law” (27).
Birrell, following Navzat Soguk, describes the Indigenous as banned by modernity – an Agambenian homo sacer, who is abandoned by law, exposed and threatened (29). But Birrell critiques the analogy drawn between Agamben’s homo sacer and the Indigene as limited. Indigeneity possesses a unique ability to unsettle and resists being erased (31). While law constructs the Indigenous as “the other,” law also must remain responsive to it (31). The ambivalence that characterizes the Indigenous is emphasized once again as the Indigenous is at once present and absent. It is “present in an ability to claim rights, absent insofar as such claims are necessary” (31). The Indigenous appears before the law, but it also “haunts the law, persisting in the moment of indecision” (33). Birrell presents us with the Derridean notion that the moment of indecision is the moment in which justice might appear, thus connecting the Indigene with justice rather than with law.
And here we get a glimpse into the relationship between law, justice and literature, as well as into the role that the Indigene plays in this relationship. While law – both national and international – overdetermines the Indigenous subject who is recognized as such before the law, Indigenous literature as a “transformative praxis” has the power to liberate the Indigenous subject beyond the law because literature is not constrained by the conditions of legal recognition (22). Indeed, quoting Derrida, Birrell observes, “literature itself makes law” (34) as law responds to the unconditional – “the undecidable moment occupying the space between calculable law and the singularity of a case” (34) – when law is formulated. For Birrell, as for Derrida, law is constituted by that which is not law, the “unconditional” beyond the law, the law of the law. Law does not go “all the way down” – there is something else at its foundation. This “something” can be literature, and it carries with it the potential for justice to appear.
“A reading of literature as a ‘subversive juridicity’ reveals the literary nature of law itself, iteratively productive of new meaning in each reading, each instant of decision. It is in this instant that subversive and revolutionary Indigeneities may be revealed,” writes Birrell (35). An example of literature as a subversive juridicity appears in Part Three, where Birrell reads Sherman Alexie’s short story, “The Trial of Thomas Builds-the-Fire.” The story exemplifies the complex relationship between law and literature, not only because it is a work of fiction about law, but also because it describes a trial in which most of what happens is storytelling. Birrell shows how Alexie’s story “constructs an alternative reality, revealing Indigenous subjectivities that imaginatively challenge and, thereby, rearticulate historical narratives and contemporary social attitudes” (134). In his testimony, comprised of a series of stories that “challenge the court” and empower the Native Americans who are present in the courtroom, Thomas replaces “the oppositional dynamic of litigation” with “the interactive dynamic of narrative” (135). Even though Thomas ultimately loses in this trial, his stories are heard in a way that allows the idea of justice to appear.
In Part Four, Birrell elaborates on the claim that Indigenous literature is “a means of intervention, disruptive of dominant discourses and expressive of the myriad inflections of Indigenous subjectivities and associated cultural and political imperatives” (212). Alexis Wright’s novel Carpentaria, for instance, offers “a recuperative, transformative, and authoritative Indigenous Law […] which is governed […] by relationships to country” (211–212). Indigenous Law “which must be above other laws” is depicted in such works as a liberating force, blending together legality and narrative (211). Indigenous Law is articulated not in a court of law but in storytelling (even when, as we saw in Alexie’s story, this storytelling occurs in a court). The literary works that Birrell reads respond and offer alternatives to “those [historical narratives] that feature Indigenous peoples as passive, unable to resist, and, indeed, perhaps unaware of their dispossession” (213). The juridical force of Indigenous Law is made manifest not in judicial decisions, but in the ancestral governance of country. Indigenous Law is empowered not by the authority of the state, “but by an ancestral authority manifest in and (literally) enforced by land, water and sky” (214). For example, Carpenteria depicts storms and floods that destroy colonial settlements and re-establish an ancient order.
As the concluding words of the book suggest, Indigeneity: Before and Beyond the Law is about hope, “hope in the transformative potential of the stories of a dispossessed people” (228). In addition to creating a sense of this hope in her readers, I think that what Birrell achieves in the book is a transition from Indigeneity (fixed and whole) to Indigeneities (fluid and ambiguous), and with this transition, another move (to use Vine Deloria Jr.’s terms) from a temporal epistemology that understands Indigeneity through its (constraining) relation to the past, and which is deeply western, to a (liberational) spatial epistemology that respects Indigenous peoples’ relations to their lands. Perhaps native title law will adopt this epistemology one day.