Colonizing the Indigenous demos

In the remote Pacific, native freedom fighters face their greatest foe, the ‘democratic boundary problem’.

By Aaron John Spitzer*

On November 4, one of the world’s last remaining colonies will vote on whether to free itself from European rule. The result will likely be “no,” exacerbating a sometimes-bloody conflict between natives and settlers, and highlighting an even more difficult conflict: If democracy is “rule by the people,” who defines “the people”?

The vote is happening in New Caledonia, a French Pacific territory that is one of the most populous – and fractious – jurisdictions on the United Nation’s list of non-decolonized territories. France annexed New Caledonia in 1853. This was during the midst of the colonial era, when the peoples and lands of much of the Global South were yoked for European advantage.

After the Second World War, the colonial era largely ended. Some 750 million residents of more than 80 former colonies achieved independence. Today, remaining colonies are for the most part hard cases. Several are “settler colonies,” where local populations have been “swamped” by newcomers – sometimes strategically, to smother local resistance.

Such is the case with New Caledonia. There, France responded to native Kanak mobilization by promoting immigration from metropolitan France and other Pacific territories. These settlers were by-and-large loyalists, opposed to Kanak self-determination. Violence ensued, including a bloody 1988 hostage taking that killed 19 Kanaks and two gendarmes. Eventually, France agreed to hold a vote on decolonization. New Caledonia would become sovereign if a majority desired it.

But a majority of whom? Kanaks now found themselves outnumbered by settlers, by a ratio of two to three. Hence, for the past 30 years, the vote has been delayed, as New Caledonians clash over how to define “the people.”

In democratic theory, this is the notorious “boundary problem.” When constituting a democratic community, or indeed when making any democratic decision, how does one determine who gets to participate?

Democracy itself provides no answers. As British constitutional scholar Ivor Jennings observed, “The people cannot decide until someone decides who are the people.” Liberalism is not much more helpful. Most liberals support the right of collective self-determination, yet are troubled by how self-determination harms insiders who want out and outsiders who want in.

My research shows that the boundary problem is particularly thorny as regards “settler colonies.” Natives, citing historic occupation interrupted by invasion and dispossession, insist they alone are the legitimate demos. Settlers and their descendants, appealing to egalitarian universalism, demand inclusion. Sometimes, too, settlers promote further settlement – an act of “demographic engineering,” to “change the facts on the ground.”

In the 2005 case Py v. France, the European Court of Human Rights tackled New Caledonia’s boundary problem. The court ruled the decolonization vote could be limited to those New Caledonians who have been continuously resident in the islands since 1994. As of 2017, this meant the exclusion of some 13 percent of otherwise-qualified voters – most of them, presumably, of settler stock. But for Kanaks, those numbers will likely not suffice. Polls presently indicate the “stay” side will win.

New Caledonia’s conundrum is remarkable, but I find it is far from unique. For example, earlier this month, lawyers for the U.S. Pacific territory of Guam (also on the U.N.’s list of colonies) appeared before the Ninth Circuit Court of Appeals. They challenged a 2017 district-court ruling forbidding Guam’s “native inhabitants” from voting on decolonization.

The rest of U.S. Indian Country – several hundred federally recognized tribes, along with Indigenous peoples in Hawaii, Samoa, the Marianas Islands and Alaska – are watching the appeal with concern. At issue, again, is the boundary problem. Controlling the case may be the 2000 U.S. Supreme Court decision Rice v. Cayetano, which invalidated a Hawaii state plan to limit voting on Native Hawaiian matters to the “population concerned,” i.e., Native Hawaiians.

Indigenous groups are worried Rice may be part of a trend – a reframing of U.S. law regarding the boundary problem. Ostensibly in defence of universal voting rights, native peoples could be submerged into the broader, settler-majority demos.

Filing a key amicus brief in Rice was Brett Kavanaugh, then the counsel of record for the Center for Equal Opportunity, a think tank championing right-wing individual rights. Now, despite vociferous opposition from Indigenous groups, Kavanaugh has joined the Supreme Court. Tellingly, even in Republican-dominated Alaska, Kavanaugh’s views on Indian Law prompted the state government to oppose his confirmation.

For Indigenous peoples in America, as in French New Caledonia, the right of collective self-determination may hang in the balance. In democracies “ruled by the people,” Indigenes may cease to be defined as a people.

 

*Aaron John Spitzer is a PhD candidate at the Department of Comparative Politics, University of Bergen.

His article “Colonizing the demos? Settler rights, Indigenous sovereignty, and the contested ‘structure of governance’ in Canada’s North” is in press with Settler Colonial Studies.

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