Strona główna Political Theory and the Rights of Indigenous Peoples (ClearScan)

Political Theory and the Rights of Indigenous Peoples (ClearScan)

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This book focuses on the problem of justice for indigenous peoples and the key questions this poses for political theory. Contributors include leading political theorists and indigenous scholars from Australia, Aotearoa/New Zealand, Canada and the United States. They examine how political theory has contributed to the past subjugation and continuing disadvantage faced by indigenous peoples, while also seeking to identify ways that contemporary political thought can assist the "decolonization" of relations between indigenous and nonindigenous peoples.
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© Cambridge University Press 2000
This publication is in copyright. Subject to statutory exception
and to the provisions of relevant collective licensing agreements,
no reproduction of any part may take place without the written
permission of Cambridge University Press.
First published 2000
Reprinted 2002

A catalogue record/or this publication is available/rom the British Library
National Library a/Australia Cataloguing in Publication data
Political theory and the rights of indigenous peoples.
Includes index.
ISBN 0 521 77048 3.
ISBN 0 521 77937 5 (pbk.).

I. Indigenous peoples - Politics and government.
2. Aborigines, Australian - Politics and government.
3. Maori (New Zealand people) - Politics and government.
4. Indians of North America - Politics and government.
5. Indians of North America - Canada - Politics and government.
I. I vison, Duncan 1965-.
II. Patton, Paul.
III. Sanders, Will.
ISBN 978-0-521-77048-4 hardback
ISBN 978-0-521-77937-1 paperback
Transferred to digital printing 2007



List of Contributors




Part I Sovereignty

Waitangi as Mystery of State: Consequences of the Ascription
of Federative Capacity to the Maori


The Struggles of Indigenous Peoples for and of Freedom


Beyond Regret: Mabo's Implications for AustJ;alian



Engaging with Indigeneity: Tino Rangatiratanga in Aotearoa




Part II Identity

Paths Toward a Mohawk Nation: Narratives of Citizenship
and Nationhood in Kahnawake







(De) Constructing the Politics of Indigeneity


On Display for its Aesthetic Beauty: How Western Institutions
Fabricate Knowledge about Aboriginal Cultural Heritage


On the Plurality of I n terests: Aboriginal Self-government and
Land Rights

Part III Democracy

The Liberal Image of the Nation



Minority Claims under Two Conceptions of Democracy



American Multiculturalism and the 'Nations Within'



Hybrid Democracy: Iroquois Federalism and the
Postcolonial Project





MANUHUIA BAReHAM is a PhD student i n the Department of Political Sci­
ence in the Research School of Social Science, Australian National
U niversity. He is a member of the Ngati Kahungunu, Te Arawa and
Ngati Tuwharetoa Iwi of New Zealand. His PhD thesis critically exam­
ines the comparative political economy of development in Australia
and Papua New Guinea, and he has an ongoing interest in the i nter­
section of political theory and political practice, particularly in the
analysis of notions of indigeneity and social change.
JOHN BERN is Professor of Sociology and Director of the South East
Arnhem Land Collaborative Research Project at the U niversity of
Wollongong. He has undertaken extensive ethnographic research
with Aboriginal people in Australia's Northern Territory. The major
foci of his research are the national politics of indigenous people,
issues of indigenous governance and land ownership, and socio­
political developments in remote Aboriginal communities in the
Northern Territory.
WILLIAM CONNOLLY is Professor and Chair of Political Science at Johns
Hopkins University. His The Terms ofPolitical Discourse (1974) received
the biennial Lippincott Award in 1999 for the 'best book in political
theory still influential fifteen years or more after publication ' . His
most recent publications are The Ethos ofPluralization (1995) and Why
I am Not a Secularist (1999).
SUSAN DODDS is a Senior Lecturer in Philosophy at the U niversity of Wol­
longong and joint co-ordinator (with John Bern) of the Public Policy:
Civil Society and State Institutions research group within the Institute
of Social Change and Critical Inquiry. Her work is primarily within the



areas of moral and political philosophy. She has published papers on
a range of topics, including indigenous justice and citizenship,
property rights, reproductive technology, personal autonomy and
research ethics.
AUGIE FLERAS is Associate Professor in sociology at the University of
Waterloo in Canada. He has long-standing interests in race, ethnic
and aboriginal relations, with particular emphasis on policy and poli­
tics. He is currently working with Roger Maaka on a host of issues per­
taining to Maori-Crown relations.
DUNCAN IVISON teaches in the Department of Philosophy at the University
of Sydney. He is the author of The Selfat Liberty ( 1 997) and various arti­
cles i n the history of political thought and contemporary political
WILL KYMLICKA is a Queen's National Scholar in the Philosophy depart­
ment of Queen's U niversity in Kingston, and a visiting professor in the
Nationalism Studies program at the Central European University in
Budapest. He is the author of four books published by Oxford Uni­
versity Press: Liberalism, Community, and Culture ( 1 989) , Contemporary
Political Philosophy ( 1 990) , Multicultural Citizenship ( 1 995) , and Finding
Our Way: Rethinking Ethnocultural Relations in Canada ( 1 998) . He is the
editor ofJustice in Political Philosophy ( Elgar, 1 992) , The Rights of Minor­
ity Cultures (1995) , Ethnicity and Group Rights (NYU, 1997) and Citizen­
ship in Diverse Societies (2000) .
ROGER MAAKA is Head of the Department of Maori at the University of
Canterbury and a member of the Waitangi Tribunal. He has research
interests in Maori political and social development and change. He
has published several studies on Maori society, including a study on
the effects of urbanisation. Roger is currently on the Tribunals hear­
ing the Mohaka ki Ahuriri region land claims and the Indigenous
Flora, Fauna and Intellectual Property Rights claim.
PAUL PATION is Associate Professor in Philosophy at the University of Syd­
ney. He is the author of Deleuze and the Political (2000) , and has pub­
lished several articles on the implications of native title in Australia.
PHILIP PETIIT is Professor of Social and Political Theory at the Research
School of Social Sciences, Australian National University. He is the
author of a number of books on philosophy and political theory,
including The Common Mind: An 1<-ssay on Psychology, Society and Politics
( 1 993) and Republicanism: A Theory ofFreedom and Government ( 1 997) .
JOHN POCOCK is Professor Emeritus of History at the Johns Hopkins Uni­
versity, where he taught from 1974-94. He has held posts as Professor



of Political Science at the University of Canterbury and Professor of
History at Washington University, St Louis. His publications include
The Ancient Constitution and the Feudal Law ( 1 957) , The Maori and New
Zealand Politics ( 1 969) , Politics, Language and Time ( 1 971 ) , The Machi­
avellian Moment ( 1 975 ) , Virtue, Commerce and History ( 1 985) , and Bar­
barism and Religion I: The Enlightenment of Edward Gibbon, II: Narratives
of Civil Government ( 1 999) .
WILL SANDERS has been, since 1 993, a Research Fellow at the Australian
National University's Centre for Aboriginal Economic Policy
Research , where he has also been co-ordinator of the Institutions of
Aboriginal Australia strand of the ANU's Reshaping Australian Insti­
tutions Project. He has worked on several areas of Australian public
policy relating to indigenous Australians, including housing, employ­
ment, income support, health, local government and in ter-govern­
mental relations.
AUDRA SIMPSON is a PhD candidate in the Department of An thropology,
McGill University. Her doctoral research examines the relationship
between discourse, narrativity and nationhood. She is a Kahnawake
SONIA SMALLACOMBE is an indigenous Australian and a member of the

Maramanindji peoples from the Daly River region of the Northern
Territory. She is undertaking a PhD at ANU in Canberra, and also
manages the I ndigenous Cultural and In tellectual Property Task
Force within the Aboriginal and Torres Strait Islander Commission
JAMES TULLY is Professor of Political Science at the University of Victoria,
Victoria, British Columbia. His publications include Strange Multiplic­
ity: Constitutionalism in an Age of Diversity ( 1 995, revised 1 999) ; and as
editor, Struggles for Recognition in Multinational Societies (forthcoming) .
JEREMY WEBBER is Dean and Professor of Law at the University of Sydney.
Until 1 998, he was on the Faculty of Law of McGill U niversity. He is the
author of Reimagining Canada: Language, Culture, Community and the
Canadian Constitution ( 1 994) and of other works on cultural differ­
ence, indigenous rights, federalism, nationalism, constitutional law
and legal theory.
IRIS MARION YOUNG is Professor of Political Science at the University of

Chicago, where she teaches political theory and feminist theory. She
is author of several books, including Intersecting Voices: Dilemmas ofGen­
der, Political Philosophy and Policy ( 1 990) . Inclusion and Democracy will
appear in the Oxford University Press Series in Political Theory in
August 2000.


The project from which this book emerged was first conceived when the
editors were all resident, in various capacities, at the Australian National
U niversity in Canberra. Since this is a book concerned to explore the
consequences of indigenous peoples' claims and aspirations for contem­
porary political theory, we would like, first of all, to acknowledge the
Ngunnawal people as traditional owners of the land upon which our
endeavours began and took shape, and thank them for their interest in
and support of the project.
We are especially grateful to the Humanities Research Centre at the
ANU, and especially to the Director, lain McCalman, and the Associate
Director, Graeme Clarke, for their unstinting support of our efforts.
Without the backing of the HRC this book, and the various seminars and
colloquia organised around it, would simply not have occurred. The
Centre provided an unrivalled atmosphere in which to pursue our pro­
ject. The HRC graciously allowed us to offer visiting fellowships to many
of our contributors, enabling them to come to Canberra for various
lengths of time, and to develop and discuss their papers with each other
and the many other visiting and resident scholars from a wide range of
disciplines. The administrative staff at the HRC were wonderfully sup­
portive as well, and handled the often complex arrangements involved
with great efficiency and good humour. In particular, we would like to
thank Leena Messina, Stephanie Stockdill, Julie Gorrell, Ben Penny, Lia
Szokalski and Misty Cook.
We would also like to acknowledge the support of our efforts by the
Research School of Social Sciences at the ANU , under the auspices of the
Reshaping of Australian Institutions Project directed by John Braithwaite
and Frank Castles. Further support was provided by the Social and Politi­
cal Theory Group at the RSSS which enabled us to bring a number of our



con tributors to Canberra. We are especially grateful to Philip Pettit,
Director of the Group, and to Robert Goodin and Barry Hindess for
their help in this regard. Additional support for the project was provided
by the Nuffield Foundation, the Department of Politics at the University
of York and the Australian Foundation for Culture and the Humanities.
To all these institutions and organisations, we are very grateful.
Phillipa McGuinness and Sharon Mullins of Cambridge University
Press have been receptive and supportive editors ever since we first
approached them with the idea of this book, and provided the right com­
bination of incentives and sanctions to help keep us focused on the task
at hand. Melissa McMahon provided excellent help in readying the man­
uscript for publication. We are also grateful to Peter Cook for help in
preparing the index.
Finally, we would like to thank the following for their help in realising
this project: Mick Dodson , Danny Celermajer, Frank Brennan , Russell
Barsh, Roy Perrett, Henry Reynolds,John Wunder, Sidney Haring, Garth
Nettheim and Margaret Wilson.



Duncan Ivison, Paul Patton and Will Sanders

Contemporary political theory has much to learn from the encounter
with its colonial past. The demands of indigenous peoples for justice pre­
sent far-reaching challenges. Suppose we begin by asking what are
'indigenous rights'? Are these rights as liberal political theorists under­
stand them? If contemporary liberal political thought presents itself as a
universal idiom for understanding and reflecting upon social and politi­
cal relations, where does this leave indigenous political thought and
indigenous understandings of their rights to land, culture and selkule?
How can contemporary political theory contribute to a future in which
indigenous communities no longer suffer the consequences of colonisa­
tion, dispossession and forced assimilation? Can liberal democracy
become genuinely intercultural?
These questions do not arise in a vacuum, but in response to a prob­
lem of ongoing political concern in many former colonial countries,
namely, the relationship between western colonial societies and the con­
tinuation and resistance of pre-existing indigenous societies on the same
territory. They are not issues of mere academic interest, since they touch
upon historically entrenched injustice and social disadvantage. Ulti­
mately, they concern the very survival of indigenous peoples. Such issues
should concern any reflective citizen of a contemporary nation state.
What has been the relationship between modern western political
theory and the struggles of indigenous peoples over the past 400 years?
Each set of peoples and each state has its own particular story with its
inherent complexities. The chapters in this book address the legal, con­
stitutional and cultural circumstances of a group of countries colonised
under British law: Australia, Canada, Aotearoa/New Zealand and the
United States of America. Generally speaking, at various points of his­
tory, different strands of western political thought have not only been



complicit with, but helped to justifY, colonial expansion and imperial
control over indigenous peoples and their territories. As much as mod­
ern political theory, especially in its liberal and social democratic vari­
ants, has emphasised universal human rights, equality before the law and
individual and collective freedom, it has also explicitly denied such enti­
tlements to indigenous peoples. Much of modern western political
thought has tended to rely on an anthropological minimal ism that has in
fact been anything but minimal. As we understand it, 'western political
thought' refers broadly to that body of political, legal and social theory
developed by European, American, Australian and New Zealand authors
and practitioners from the beginning of the modern period in Europe to
the present. It is a complex and contested body of thought concerned
with the normative problem of the justification of government as well as
the question of how, in fact, peoples or populations are governed. Thus
it includes reflection upon and engagement with practices of self-forma­
tion , discipline, education and training as well as upon the sanctions and
limits of political power (Tully 1 993; 1 995 ) .
Western political thought has often embodied a series o f culturally
specific assumptions and judgements about the relative worth of other
cultures, ways of life, value systems, social and political institutions, and
ways of organising property. As a result, egalitarian political theory has
often ended up justifYing explicitly inegalitarian institutions and prac­
tices. This history of western, and especially liberal, political thought's
entanglement with colonialism has been recently told in much detail and
with great force. The emergence of 'postcolonial' theory in English and
Cultural Studies, the careful work of historians and legal historians of set­
tler societies and Empire, as well as historians of early modern political
though t, have been of particular importance in this regard. !
Finding appropriate political expression for a just relationship with
colonised indigenous peoples is one of the most important issues con­
fronting political theory today. As important as it is to understand how
western and especially liberal political theory is implicated in the justifi­
cation of colonialism, it is even more important to determine whether
this complex tradition of thought might provide space for the contem­
porary aspirations of indigenous peoples. Typically, these have included
claims for the return of traditional lands, the preservation of culture,
and the right as well as the means to exercise effective self-government.
Western political thought is not necessarily the language of the world's
indigenous peoples, although they have often been constrained to use it
and there are points at which it overlaps with indigenous conceptions of
what is right or just. 2 This book is intended as a contribution to an ongo­
ing intercultural conversation between indigenous and non-indigenous
theorists, and between theorists occupying different vantage points



within the same general ' language' of western political thought. Our aim
is to help create a better understanding of the range of relations between
political theory and indigenous rights claims, as well as to contribute to
new thinking about the best means to address such claims. What new
combination of familiar values or concepts can be constructed to meet
indigenous claims? What would it mean to ' do justice' to these claims in
ways that are acceptable and accessible to both indigenous and non­
indigenous peoples? What do we mean by 'j ustice' in this context?
Indigenous peoples' claims to prior and continued sovereignty over
their territories question the source and legitimacy of state authority.
Some states rely on the now discredited doctrine of terra nullius; in others,
the terms of treaties are not always observed. No doubt most states owe
their existence to some combination of force and fraud. However, the
issue is not simply a matter of how a state came to be, but of how it can
become 'morally rehabilitated', even if it began in an illegitimate fash­
ion. How might the narratives of nationhood be retold, the founding
moments of a state reconstituted or its fundamental documents rein ter­
preted? These issues have broad consequences for philosophical views
about the relation between the individual and the state, and the nature
of community and identity.
One important issue that emerges at the outset is the problem of dis­
tinguishing indigenous claims from the claims of other kinds of cultural
or 'societal ' groups. In order to 'do justice' to indigenous claims we need
an understanding of the distinctive nature of the claims put forward by
indigenous peoples. As much as it is true that, historically speaking, lib­
eral democracies have tried to assimilate indigenous peoples and deny
them any group-specific forms of recognition, Will Kymlicka points out
in his chapter that the same is true with many other minority groups.
Basques, Bretons, Scots and Quebecois have all, at various points, been
victims of state-sponsored discrimination or assimilation. Moreover,
these 'stateless nations' have also tended to see themselves not only as a
distinct people, as do indigenous peoples, but as occupying territories
they have come to think of as their ' homelands'. If we are to distinguish
between these groups and indigenous peoples, how can it be done, and
according to what criteria? This question leads us into issues of cultural
difference, universalism and particularism.
Rights are generally conceived of as securing or protecting funda­
mental human interests, for example, those to do with property or bod­
ily integrity. Hence they appeal to conceptions of what counts as a
fundamental interest and are shaped by the particular con texts and the
challenges faced in securing or promoting those interests. They are also
embodied and expressed in distinctive conceptions and idioms of law,
which in turn require institutional expression. The recognition and



expression of indigenous rights will require accommodation and trans­
lation of all these different facets, with the additional burden of doing so
in the context of an imposed non-indigenous legal framework. AsJeremy
Webber points out, whatever else might be said about the character of
indigenous rights, they are 'mediated rights': the recognition of indige­
nous interests in land as legal or political rights inevitably transforms
those interests.
James Tully suggests that western political theory has consistently
failed to enter into a just dialogue with indigenous peoples and their politi­
cal traditions and understandings. At the same time, the demand for a
just dialogue between indigenous and non-indigenous peoples presents
a series of difficult challenges. What are the necessary conditions for
such dialogue? On the one hand, it is clearly a presupposition of dia­
logue that indigenous and western political theories are not utterly
incommensurable. On the other hand, this does not mean that there
cannot be profound differences between their conceptions of social rela­
tions, individual rights and obligations and that, as a result, we still face
the problem of finding appropriate translations or reconciliations. Does
this imply that western liberal political theory should renounce its claim
to universality and present itself as based upon one possible set of values
to be considered alongside others, including indigenous ones? And
would this not raise the spectre of cultural relativism? Are we, then, not
in danger of assuming that cultures and traditions are more homoge­
neous and self-con tained than they actually are? Do we not risk losing
sight of the possibility that there may be values concerned with equality,
freedom, autonomy, wellbeing and justice that are shared between cul­
tures and traditions?
Contemporary anthropologists and cultural theorists have shown how
even the most apparently 'traditional' cultures are actually quite com­
plex and fluid (Clifford 1 988; Moody-Adams 1 997) . This seems particu­
larly true in the case of the cultures of colonised indigenous peoples
within contemporary liberal democracies. Conversely, problematic
assumptions about the inherent inferiority of indigenous peoples and
their practices and the inherent superiority of European norms and insti­
tutions have been a standard feature of arguments in political theory
since at least the sixteenth century:1 When we invoke a mysterious 'oth­
erness' or radical difference in referring to indigenous cultures, we are
in danger of simply replaying such prejudices. Deep cultural diversity
and difference is a key feature of many contemporary societies. But that
is not to say that the various cultures and peoples are encased within sta­
tic and clearly delineated cultural structures and boundaries. Claims of
cultural difference have to be balanced against the dynamic nature of
cultural practices and traditions and the ways in which cultures borrow



and import practices and beliefs from outside of themselves. The chap­
ters by Manuhuia Barcham, Audra Simpson , William Connolly and
Jeremy Webber examine the conceptions of identity and difference cur­
rent in contemporary political thought.
In recen t years, there have been genuine attempts from within the lib­
eral tradition to accommodate indigenous claims. These need to be evalu­
ated as much as the earlier forms of complicity with the process of
colonisation. Accordingly, this book addresses two general questions.
First, in what ways has western political theory contributed to the coloni­
sation, subjugation and continuing disadvantage faced by indigenous
peoples in the past and today?
Second, what resources exist in political theory for thinking differ­
ently about these relations and about the possibility of 'decolonising'
relations between indigenous and non-indigenous peoples? Contribu­
tors have been asked to pursue both questions with regard to three gen­
eral themes sovereignty, identity and democratic theory in each case, with
an eye to the fundamental issue ofjustice for colonised indigenous peoples.
Some of the chapters touch on all three themes, others focus on one or
a combination of them. Each of these themes represents a significant
domain within western political theory, and each has been central to the
encounter between indigenous and non-indigenous peoples.
Our aim here is to provide a philosophical context within which the
reader can situate the essays. We shall consider how indigenous claims
have come to be understood and interpreted by contemporary political
philosophers, and what they have taken to be the consequences of these
claims. Liberal political philosophy looms large, since it has been among
liberal political theorists that debate on the nature of indigenous claims
from a non-indigenous perspective has become, philosophically speak­
ing, most developed. We aim to provide a sense of both the limits and
possibilities within liberal political theory for recognising and respond­
ing to indigenous claims.


Responses to Indigenous Claims
Three kinds of response to indigenous rights claims have emerged in
recent years. The first argues that liberal political theory need not be
reshaped in light of indigenous demands, but instead should hold fast to
its individualist and non-interven tionist credentials, and ensure that the
rights and protections it cherishes effectively be extended to i ndigenous
peoples. The second argues that liberal political thought can be
remoulded and reshaped to meet indigenous aspirations, but only to the
extent of the limits given by liberal conceptions of equality and autono­
my. The third argues that the poverty of both previous responses suggests



that some reshaping of the conceptual framework of political theory is
required in order to do justice to indigenous aspirations.
The first response invokes a form of liberal neutrality and argues that
the liberal state should not seek to recognise distinctive cultural or group
rights but instead focus on providing effective individual civil rights such
as freedom of expression, association, religion, movement and the like .
In particular, liberal theorists should be wary of the social ontology of
cultures and groups. Groups are not homogenous but dynamic, het­
erogenous historical associations of individuals ( Kukathas 1992; 1997b) .
To treat them otherwise is to risk empowering elites within groups and
creating problems for 'internal minorities' . Hence, it is argued, individ­
uals should be empowered to move around within and, if they so choose,
out of the ' associations' in which they grew up in or choose to live. Indi­
viduals should be free to form associations with others on the grounds of
a shared societal culture or way of life. The state has no business inter­
fering with their choice, but it must ensure that the rights of individuals
to express dissent from or exit such associations are protected. This
means avoiding entrenching group rights. Rights should not be exercis­
able over individuals by something like a group or a 'culture ' . The link
between individual wellbeing and group or cultural membership is con­
tingent and bi-directional. Cultural membership may contribute to indi­
vidual wellbeing, but group rights can increase the transaction costs of
communication in a state by complicating the political process and slow­
ing down effective decision-making. They can also place burdens - mate­
rial and otherwise - upon majority populations (that is, subsidising
alternative legal systems; language programs; separate schools etc.) that
can generate resentment and 'backlash ' , thereby undermining the con­
ditions for granting such rights in the first place (Offe 1 997; Hardin 1995;
Post forthcoming) . Individual and not group rights are what need to be
secured. The rights of self-government or self-determination for indige­
nous peoples are satisfied ipso facto upon the provision of their individual
This conclusion suggests why such arguments have been understood
by indigenous peoples to be fundamen tally hostile to their claims. It
appears to reduce what they see to be certain distinctive rights they pos­
sess as peoples to the undifferentiated rights of citizens participating in
the processes of collective will formation as part of an already consti­
tuted 'people ' . In other words, they see it as another form of assimila­
tion. So, as much as the fluidity of cul tural boundaries and the dangers
of the 'dynamic effects' of group rights are recognised, this first approach
has been seen as deeply problematic on normative grounds, for it pre­
supposes precisely what is at issue: the nature of ' the people' upon whom



rests the legitimacy of democratic authority (see the chapters by Kymlicka,
Pettit and Tully) .
An alternative response, still from within the liberal tradition, has
been to tie the recognition of more extensive rights of self-government
and the protection (or return ) of indigenous lands to an argument
about individual wellbeing. This argument has been developed with con­
siderable skill by Kymlicka ( 1 989; 1 995; 1 998a) . Kymlicka's argument is
that indigenous people are owed self-government and title to their lands
because without such rights (in addition to traditional liberal rights of
freedom of movement, association and expression) they are in danger of
losing access to a secure societal culture and hence, to the context in
which individual freedom is rendered meaningful. Thus group rights, up
to and including self-government, are justified on the grounds of pre­
serving the conditions for the flourishing of individual autonomy and
freedom. The same grounds also justify the limiting condition 'liberals
can only endorse minority rights insofar as they are consistent with
respect for the freedom and autonomy of individuals' ( Kymlicka 1995:
75) . Justice involves compensating for arbitrary and unfair social disad­
vantages, as well as promoting and securing the capacities of individuals
to pursue and revise their own conception of the good. The value of cul­
tural membership, including in this case a particular relation to land, is
fixed relative to a conception ofjustice in which the value of autonomy
is central. To give up on the centrality of autonomy for the purposes of a
liberal recognition of difference is to risk tolerating practices that are not
simply illiberal, but potentially harmful.
Kymlicka's innovative argument has broken new ground in liberal
political theory. It manages to transcend the sterile debate between lib­
erals and communitarians; it addresses the claims of cultural, ethnic and
national minorities historically left out of the story of the emergence of
the liberal state; and it preserves a fluid and dynamic account of culture
that avoids romanticising or ' freezing' cultural practices in time. This is
an impressive achievement, given how often liberals are castigated on all
these fronts by various critics. Moreover, as Kymlicka himself emphasises,
even if the details of his argument or the grounds upon which it is made
are rejected, it represents at least an attempt to formulate a distinctly lib­
eral response to indigenous claims. Hence it can be read as an attempt
to initiate intercultural dialogue rather than simply as a justification for
imposing liberal principles on indigenous communities ( Kymlicka 1995:
1 63-72) . 4 Kymlicka sees his argument as actually building upon recent
developments within contemporary liberal democracies and, to a lesser
extent, international law ( 1 989: 206-19; 1 995: 49-74) . In his chapter, he
shows how a narrow view of 'American multiculturalism' has exerted a
detrimental effect on current debates concerning the rights of indige-



nous peoples and other ' nations within '. In particular, he argues that the
tendency to contrast the apparently open, fluid and voluntary nature of
American multiculturalism with the closed, static and involuntary con­
ception of ' minority nationalisms' associated with the claims of the
Quebecois, Basques and various indigenous peoples is empirically and
historically mistaken . Moreover, insofar as this contrast is employed inter­
nationally to promote ' the American model, it actually inhibits the
efforts by many contemporary states to understand and accommodate
minori ty nationalisms'.
Kymlicka's argument has nevertheless been subject to extensive criti­
cism.s On the one hand, liberals who are worried about his incorpora­
tion of ' culture' into the list of primary goods the liberal state should
seek to promote and protect have criticised him for not being interven­
tionist enough with regard to the cultural practices of various groups
( Okin 1998; Laitin 1998; Doppelt 1998) . If the limiting condition of
' autonomy' is to be interpreted broadly - perhaps even according to stan­
dards internal to the particular cultural group - then Kymlicka risks
endorsing a form of cultural relativism. Some have queried the grounds
for and the need to provide group rights at all, in addition to the basic
rights of expression, conscience and association usually promoted by lib­
erals ( Kukathas 1 992; Offe 1997) . On the other hand, some critics have
focused on the apparent imperial tenor of Kymlicka's argument, espe­
cially his grounding of the case for group rights on the value of individ­
ual autonomy. It can be argued that Kymlicka justifies group rights on
grounds that only basically liberal groups can meet, and thus his argu­
ment is actually less accommodating than often presumed. More seri­
ously, others argue that if the self-government rights for indigenous
peoples are meant as a form of internal autonomy within a pre-existing
state that continues to claim preeminent sovereignty, then Kymlicka's
argument could be said to be perpetuating internal colonisation rather
than dismantling it. 6 The presumption of sovereignty anticipates the
problem of reconciling two or more peoples on a territory rather than
offering a possible solution to it (Kymlicka 1 996) . The phrase 'nations
within' shows the persistence of this problem. As a result, the conditions
for a just dialogue between indigenous and non-indigenous peoples are
not met by Kymlicka's case for group rights.
In response to such objections, Kymlicka (l998a: 1 44-46) has argued
explicitly that it is our ' most urgent obligation of justice' to 'recognize
the principle of the inherent right of self-government' of Aboriginal
peoples and to 'negotiate in good faith about i ts appropriate implemen­
tation' . He makes clear his view that existing federal arrangements in
Canada are unjust because ' the boundaries drawn up and the division of
powers within Canadian federalism took no account of Aboriginal needs



and aspirations' ( 1 44) . Moreover he thinks that it is wrong for liberals to
simply presume that it is justified to subject indigenous governments or
insti tutions to the Canadian or American Supreme Court ( Kymlicka
1 995 : 1 66--6 7; 1 996; 1 998b) . More decen tralised and 'culturally appro­
priate' forms of judicial review, or even international forums, are
arguably more justifiable. However, the greater the scope for self-gov­
ernment Kymlicka is willing to grant to indigenous peoples, the more he
seems to be moving away from his commitment to grounding group
rights on a liberal interpretation of the value of individual autonomy.
This tension between cultural difference and liberal values leads to
the third response to indigenous claims, which sees a need for greater
conceptual and practical reshaping of liberal democratic norms and
institutions. Part of the reason for this scepticism about existing norms
and institutions is that liberal arguments are said to be unable to com­
prehend what is distinctive about indigenous claims to land and self-gov­
ernment. What is it about the claims of indigenous peoples that is missed
by liberal responses, and in what way are indigenous claims distinctive
when compared to those of other minority peoples?
Approaches to this issue tend to appeal either to the ' inherent' sover­
eignty of indigenous peoples, to the history of their relations with set­
tlers, or to their cultural differences with Europeans. Some argue that
indigenous peoples exercised historical sovereignty over their lands and
communities and therefore possessed an ' inherent' sovereignty that was
unjustly taken away and should be returned to them. Similarly, lands that
were unfairly expropriated should be returned or appropriate compen­
sation negotiated where this is not possible.
There are two difficulties with this argument. First, other stateless
peoples also once exercised historic sovereignty over their lands and
communities (for example the Scots and the Catalans) and it is not clear
how indigenous claims are any more distinctive than theirs. It might be
argued that indigenous peoples have suffered more than other peoples
have, and thus there is a remedial case for distinguishing their claims from
others (Anaya 1 996) . But linking self-government rights to degrees of
suffering is problematic. The case for remedial rights depends on there
being a temporary measure intended to address specific disadvantage
caused by historic injustice. But indigenous claims appeal to 'inherent' ,
not temporary, sovereignty. The second problem with the historical sov­
ereignty approach is that it is not clear what is meant by 'sovereignty' in
this context, and therefore what should actually be recognised or
' returned' to indigenous peoples.
The relevance of the history of relations between indigenous and
non-indigenous peoples is something contemporary theories of justice
have been slow to recognise. Jeremy Waldron has argued that the recog-



nition of Aboriginal claims to land or self-government rights should not
be about compensating for historical injustice, but about addressing
contemporary discrimination and disadvantage (Waldron 1 992; Sim­
mons 1995) . If it were the historical nature of the entitlements that mat­
tered most, then it wouldn't be clear what the restoration of lands or
resources had to do with distributive justice, since the parties might just
as well be reasonably well-off, or at least not suffering from any serious
disadvantages. Of course indigenous peoples do currently suffer from
appalling social disadvantages. Moreover, on the most charitable reading
of his argument, Waldron's aim is precisely to acknowledge this point.
But the distinctiveness of indigenous claims, if understood as deriving
from their attachment to the land and the history of their relations with
the colonial state, is lost or rendered opaque in discussions of distribu­
tive justice. Some would argue that this is unavoidable. Justice is about
the impartial distribution of goods, and the distinctive identity or history
of Aboriginal peoples is only relevant insofar as it affects consideration of
their fair share of ' primary goods' here and now relative to other citizens.
But this means that there is a risk that the manner in which such lists of
primary goods are arrived at, as well as the construction of notions of
fairness, will misunderstand not only the particular value of culture or
land being appealed to, but also the nature of the moral wrongs upon
which the claims are based - the historical legacy of colonialism. Indige­
nous claims are not just for rights to any fair share of Australian or Cana­
dian resources, but to a particularised share (Simmons 1 995: 1 74) ; one
that must be understood against the background of the denial of their
equal sovereign status, the dispossession of their lands and the destruc­
tion of their cultural practices.
The final means of distinguishing indigenous claims from those of
other peoples involves an appeal to cultural difference. On this approach,
indigenous peoples' claims are distinctive because of the nature of their
culture and especially their relation to the land, which affects the partic­
ular history of their interactions with various settler states. The way we dis­
tinguish between indigenous peoples and other 'stateless' nations is that,
in the processes of state-building, these other peoples were able to con­
verge along with the majority nation on what Kymlicka has put, in his
chapter, as ' certain cultural self-conceptions, and to share certain eco­
nomic and social needs and influences'. Indigenous peoples remained
apart from such convergences, and were only ever integrated by force.
Hence their way of life, although not incommensurable from that of
other cultures in liberal democracies, is sufficiently different not to be
readily assimilated.
One problem with this approach is that focusing on cultural differ­
ence risks locking in unrealistic and paternalistic views of indigenous cul-



tures. Notions of custom or culture should not be presumed to exist
independently of contemporary indigenous social and political life,
which should not be either romanticised or demonised. Recent legal
cases have highlighted the danger of interpreting indigenous cultures in
ways that locate their practices in supposedly ' traditional' contexts and
then attempt to limit any subsequent rights in virtue of them accord­
ingly. 7 The danger here is that of reinstating hierarchical assumptions
about the value or ' authenticity' of cultures while deciding which inter­
ests should be protected or promoted by various kinds of rights or insti­
tutions. These interests should be defined and contested as much as
possible by contemporary indigenous peoples themselves, rather than
according to assumptions elaborated within various western anthropo­
logical, political or legal doctrines. Although, needless to say, these are
doctrines of which indigenous peoples might avail themselves.
But this touches on another problem for the difference approach. If
indigenous peoples' claims are distinct because of their cultural difference
then how deep does this difference run? Should indigenous social and
political institutions be exempt from basic human rights legislation or
charters of rights? Many commentators argue that although indigenous
communities have good reason to be sceptical about the existing legal and
political institutions and mechanisms that enforce such rights, this isn't to
say they should be exempt from the basic underlying norms of human
rights (Carens 1 995; Kymlicka 1996) . This is seen as especially important
with regard to vulnerable members of such communities (often women)
and ' internal minorities'. Others insist that indigenous political theory
itself contains constraints on indigenous decision-making processes and
institutional design that are more than capable of meeting such chal­
lenges. If anything, it has been constant colonial interference in these
practices that has undermined traditional mechanisms for dispute resolu­
tion and the protection of vulnerable members of the community (Alfred
1 999a; Canada, Royal Commission on Aboriginal Peoples 1996a, 1996b) .

Reshaping Sovereignty. Identity and Justice
New ways of thinking are required with regard to certain crucial con­
ceptual and normative assumptions informing indigenous claims. This is
particularly true in three areas: the nature of sovereignty; questions of
political and cultural identity and difference (both individual and collec­
tive) ; and contemporary approaches to distributive justice and democratic
theory. Consider first the spectre of sovereignty that dominates contem­
porary political theories of the state. It haunts the complex of issues at
stake in the conflicts between indigenous peoples and the institutions of
colonial societies in a variety of ways.



Roger Maaka and Augie Fleras highlight the issue of the legitimacy of
the colonial states in their chapter. On what basis did white settler
systems acquire sovereignty over the land and its inhabitants, and by what
authority do they exercise that sovereignty? Three answers have been put
forward throughout the history of modern colonisation. The first relies
exclusively upon the doctrine of discovery, which was the basis on which
European nations recognised each other's claims to specific territories in
the New World. However, discovery is only a sufficient basis for the acqui­
sition of sovereignty if there were no original inhabitants, or if the inhab­
itants lived under such rudimentary conditions of social organisation
that they could not be considered sovereign peoples. The latter view
amounts to the so-called extended doctrine of terra nullius, which was
invoked by colonial governments and courts throughout the nineteenth
and early twentieth centuries to deny that indigenous peoples had any
legal or political rights other than those derived from the colonial sover­
eign. This was the basis on which the British Crown laid claim to its
Australian territories. However, since Mabo ( 1 992) , the High Court of
Australia has ruled out any reliance on terra nullius with respect to
domestic law and the consequences of colonisation, as has the Supreme
Court of Canada since Calder ( 1 973) . Nevertheless, notwithstanding the
rejection of the extended doctrine of terra nullius by the International
Court of Justice in its Advisory Opinion on Western Sahara ( 1 975) , and in
the absence of any declared alternative, it remains the basis of state
authority over the indigenous population. The historian Henry Reynolds
points to an unresolved issue of legitimacy which, he suggests, is:
the fundamental problem at the heart of Australian jurisprudence. The doc­
trine of the settled colony only works if there literally was no sovereignty - no
recognisable political or legal organisation at all - before 1 788. And that
proposition can only survive if underpinned by nineteenth-century ideas
about 'primitive' people. (Reynolds 1 996: 1 3- 1 4)

Michael Asch argues that a similar contradiction emerges in recent
Canadian jurisprudence:
The view that indigenous peoples were uncivilised at the time of settlement
was repudiated in Calder, and to uphold it in order to explain State sovereignty
is not only contradictory; it is also repugnant to contemporary values. The
idea is ethnocentric and racist, a direct holdover from the colonial era . . . Yet
the State has derived no thesis to supplant it; the government has chosen not
to address it; and the court has chosen either to ignore it i n the Calder era, or
to define it away i n Van der Peet. (Asch 1 999: 441 )



The second justification of the acquisition of sovereignty under inter­
national law stems from the doctrine of conquest. However, few coun­
tries are prepared to rely upon the claim of conquest alone.
More common is recourse to the third justification, namely the con­
clusion of treaties with local indigenous populations. Treaties draw their
legitimacy from the fundamental principle of western political and legal
thought that actions affecting the interests of others are acceptable only
with the consent of those affected. Moreover, as both J .G.A. Pocock and
James Tully point out, recourse to treaties presupposes that the indige­
nous peoples involved are sovereign. However reliance upon treaties as
the ground of acquisition of sovereignty over indigenous peoples raises
a further set of problems with regard to the interpretation of those
treaties. Pocock and Tully question whether or not indigenous signato­
ries to treaties can reasonably be said to have agreed to the transfer of
sovereign ty rather than the extension of their own sovereignty, or at least
consent to share their land and resources with the newcomers.
This raises further questions about the nature of sovereignty itself and
the degree to which it is a concept shared between European and non­
European traditions of political thought. Sovereignty is by no means an
uncontested concept even within western legal and political theory: does
it apply, as Iris Young suggests, only to states, or, as Pocock and Tully sug­
gest, can it be applied to peoples independently of whether they exercise
their sovereignty through forms of state government? Many indigenous
writers have questioned whether sovereignty is an appropriate concept
with which to represent the forms of indigenous governance and rela­
tion to the land (Boldt and Long 1 985; Pearson 1993: IS; Alfred 1999a:
53-69, 1 09- 1 0) . Underlying this problem are the complex issues of cross­
cultural translation, which are raised in stark form by the controversy sur­
rounding the interpretation of the founding document of Aotearoal
New Zealand. In the English version of the Treaty of Waitangi signed in
1 840 by representatives of the British Crown and some 500 Maori chiefs,
the Maori agreed to transfer 'sovereignty' to the Crown in exchange for
royal protection of the 'full and undisturbed possession ' of Maori lands
and estates. Not only is there no concept of sovereignty in the Maori lan­
guage, but it is not evident how this concept should be aligned with the
terms used in the Maori version. What the chiefs consented to transfer to
the Crown was kawanatanga, which some argue should be translated as
'governorship'.8 What they retained was te tino rangatiratanga, which
may be translated as full and complete chieftainship or authority (Sharp
1 997; McHugh 1 99 1 ; Kawharu 1 989; Orange 1987 ) . Maaka and Fleras
argue that the political problem of Maori sovereignty today is precisely
the problem of finding political structures adequate for the expression
of te tino rangatiratanga.



Over and above these issues of intercultural translation, the assertion
of indigenous peoples' rights intersects in a number of ways with other
contemporary challenges to the understanding and forms of exercise of
sovereignty. Standard definitions of sovereignty point to a range of ele­
ments which may or may not be included within the concept: sovereign ty
as supreme legal authority within a givenjurisdiction; sovereignty as com­
prehensive authority within thatjurisdiction; sovereignty as supreme and
comprehensive authority over a given territory (Onuf 199 1 ; Philpott
1 995; Caney 1 999) . The prevailing view has tended to connect all three
of these elements with the concept of the state as the embodiment and
agent of sovereign power in a global political system based entirely upon
such states. However, as several of the chapters in this book point out, the
idea and the reality of such a system have come under increasing moral
as well as political pressure in recent years. Young points to the range of
moral considerations that have been advanced against the idea of a
global state system as well as the pressures in practice to regulate across
national boundaries. Like several other contributors, she points to the
sense in which, to the extent that the rights of indigenous peoples are
recognised and enshrined in law and legislation, they constitute a form
of internal limit to the sovereign power of colonial states. Moreover,
since indigenous peoples' demands for autonomy and self-determina­
tion rarely extend as far as independent sovereign statehood, they con­
tribute to the need for a reconceptualisation of sovereignty that would
separate it from the system of nation states in favour of more diverse
arrangements of , secession less' sovereignty that is shared among differ­
ent levels of government. Maaka and Fleras embrace the suggestion that
the conception of state sovereignty ' reflects a certain understanding of
power and authority, rooted in a particular historically determined con­
figuration of social relations and public space' that may have already run
its course. Recent settlements in Aotearoa/New Zealand under the Treaty
of Waitangi as well as the recommendations of the Canadian Royal Com­
mission point to the need to separate the issue of the underlying sover­
eignty of indigenous peoples from that of the appropriate political
structures and mechanisms for the expression of that ' sovereign ty' (or te
tino rangatiratanga) in the present.
Demands for the reshaping of sovereignty lead directly to questions of
political and cultural identity. William Connolly argues that the domi­
nant mode of understanding identity in western political thought has
involved prioritising relations of identity over difference, which serves to
obscure the degree to which identity and difference are fundamentally
relational in nature (Connolly 199 1 ; 1995) . Their interdependence
implies that the attempt to fix some authentic or natural cen tre to indi-



vidual or national identity depends upon defining an identity against
another who is not the same. And yet the need to fix some immutable
centre or authentic identity only serves to inflame feelings of resentment
and fear of this very 'other' . As Connolly points out in his piece, this leads
to a paradox with regard to national identity:
the nation is experienced by many as an imperative that must be achieved
if cultural belonging is to be secure . . . or if sovereignty is to be stable. But
the nation is also an imagination of unity or wholeness that has never been

Webber also draws attention to the tendency to exaggerate the extent
to which national identities require a single, coherent national story. He
recommends instead the metaphor of a conversation between different
groups, suggesting that 'it often seems that nations are marked as much
by the structure of their disagreements as by their agreements ' .
This general point about the relations between identity and difference
has consequences for thinking about indigenous identities. Manuhuia
Barcham, for example, points to the very real problems presented by
assumptions about cultural identity with regard to the emergence of the
urban Maori in New Zealand, an issue not limited to that country alone
(see, for example, Canada, Royal Commission on Aboriginal Peoples
1 996a, 1996b) . He argues that academic and policy-oriented definitions
of Maori tend to be derived from notions of indigeneity contingent upon
the possession of ' authentic' cultural norms and traditions. The result is
that a socially and politically constructed notion of indigenous authentic­
ity is then used to judge between relative degrees of indigeneity as a means
of determining which groups are more deserving of ' indigenous rights'
than others. But since all political and cultural identities are historically
and socially dynamic, this leaves those groups not fitting the dominant
model of indigeneity outside the framework of indigenous rights. Hence
' urban Maori' are set against ' traditional Maori' , and denied access to the
resources and benefits - such as they are - reserved for 'genuine' indige­
nous people. And yet, urban Maori represent a significant proportion of
the general population of Maori. Barcham argues that any claim based on
indigenous identity and culture must accept that they are inherently
dynamic and subject to change not only over time, but in relation to
institutional and practical frameworks. The institutional forms through
which indigenous cultures manifest themselves should also remain open
to change; urban-based institutions for Maori should be seen as no more
or no less ' authentic' than kin-based institutions. Thus, as Pocock sug­
gests, the model of a postcolonial state may be envisaged, individually and
institutionally speaking, as a kind of ' confederacy of shape-changers'.



The chapters by John Bern and Susan Dodds, Sonia Smallacombe,
Audra Simpson and Jeremy Webber also point to the interdependencies
between identity and difference, and to unavoidable articulation of
indigenous interests with the governmental apparatus of the state.
Indigenous peoples, like any other group in a liberal democratic state,
are subject to a whole range of 'governmental' actions on their actions
(not limited to those by the state itself) . Using the example of the Aus­
tralian Northern Territory's Aboriginal Land Rights Act, Bern and Dodds
show how legislative and policy regimes shape not only indigenous inter­
ests in land, but also those who are said to have authority to represent
those interests - a point similarly emphasised by Barcham, Smallacombe
and Webber.
Smallacombe criticises the way in which the dominant cultural institu­
tions construct and then display 'Aboriginal culture' according to particu­
lar western understandings of 'cultural heritage' . Simpson's narratives of
different strands of Kahnawake nationhood, glimpses of what she refers
to as the 'interior frontiers of Mohawk nationhood' , illustrate the practi­
cal and conceptual contexts within which claims to identity and differ­
ence are made and heard. Drawing on a critical use of Michael Jackson's
conception of 'radical empiricism' , she points out that these social and
historical contexts are difficult to capture through essentialist anthropo­
logical discourse. The focus on the dynamics of experience in Jackson's
approach, she argues, resonates with Mohawk claims for sovereignty over
both their land and representations of their culture (a point made equally
forcefully with regard to Australian Aboriginal identity by Smallacombe) .
Nationhood becomes the 'prism through which Indians view their histori­
cal experience, themselves and their aspirations', with the result that, like
thought in Heidegger's formulation, "'nationhood" . . . may be under­
stood as a movement toward a clearing'. Emerging here is a conception
of sovereignty that has as much to do with the reclaiming and retelling of
various histories - of peoples, cultures and institutions - as it does with
control over territory and resources.
Webber argues that the common law recognition of native title in
Mabo ( 1992) has far-reaching implications for Australian constitution­
alism because of the way it implicitly acknowledges the continued exis­
tence of distinct Aboriginal and Islander societies with their own
autonomous legal traditions. In sharp contrast to the assimilationist views
that have dominated policy towards Australia's indigenous peoples,
native title law implies that they should be counted as legally and politi­
cally autonomous participants in the national story. In common with Bar­
cham, Dodds and Bern, Smallacombe and Simpson, Webber focuses on
the need for institutional arrangements intended to protect indigenous



cultures and secure self-determination. Whether local, national or inter­
national, these arrangements need to be capable of recognising and
accommodating the dynamic and fluid nature of indigenous identities.
One lesson we might draw from these discussions is the need to detach
ourselves from the paralysing discourse of ' individual versus group
rights' that dominates so much of the consideration of indigenous claims
in western political theory. This need not mean abandoning the lan­
guage of rights completely, but one consequence of perceiving the com­
plex relations between identity and difference might be the moderation
of our desire to translate every claim into one that can be classified as an
individual or group right. Seeing cultural accommodation as mainly
about setting the scope and limits of individual and group rights holders
provides incentives for the parties involved to telescope cultural and
political identities and demands in order to secure the gains associated
with rights conceived in a zero-sum fashion. The dynamic effects of such
assumptions, especially with regard to 'internal minorities' or the 'con­
stitutional stability' of a state, inevitably leads to a perception of collec­
tive and individual interests being diametrically opposed. But this
approach tends to underplay points of interdependence and possible
forms of accommodation (Post forthcoming) . Arguably, processes of cul­
tural accommodation should be seen more as matters to do with institu­
tional innovation and evolution rather than as an extension of the
jurisprudence of rights. Disavowing colonialism involves more than
assertions and counter-assertions of rights. Rights, understood as powers
or instruments to secure or promote i ndividual and group interests,
operate and come to be grasped within practical and interpretive frame­
works that are partly held in place by historically patterned beliefs and
practices. A postcolonial political theory needs to focus as much on these
processes as it does on the language (s) of right.
Finally, what does it mean to do justice to indigenous claims within the
framework of a democratic and postcolonial state? The 1 996 Royal
Commission on Aboriginal Peoples in Canada, perhaps the most exten­
sive study of relations between indigenous and non-indigenous peoples
ever undertaken, has proposed that these relations be based on principles
of mutual recognition, mutual respect, sharing and mutual responsibility
(Canada, Royal Commission on Aboriginal Peoples, 1 996a: 67&-97) . A just
relationship between indigenous and non-indigenous peoples is one that
involves dialogue, which must occur under conditions that are accept­
able to both parties. We have referred to the difficulties that arise in a
situation where there is disagreement about the relevance of the histori­
cal character of injustices. However, there are further difficulties with the
conditions under which democratic consensus or legitimacy is arrived at



by the parties involved. Public discourse is always characterised by relations
of power as much as it is by reason. Political settlements are thus much
closer to a kind of modus vivendi, as opposed to a deeper 'overlapping
consensus' on constitutional norms ( Rawls 1 993: 1 46-72; Ivison 2000) .
Consensus is important, but is never a sufficient condition for under­
standing relations of power since it is often a result of such relations.
The history of indigenous peoples' treatment in the hands of liberal
democratic states provides ample reason for such caution towards the
regulative role of consensus. For this reason, it is appropriate that some
con tributors directly address questions of democratic theory by indige­
nous peoples' claims.
Philip Pettit argues that on a thin 'electoral' conception of democracy,
claims by indigenous people and other minority groups will not fare very
well, since to argue that a minority group needs special rights of self�
government to protect it from the decisions of the majority is to challenge
the principle of the sovereignty of the people. Even if we think general
counter-majoritarian measures such as a Bill of Rights are essential for
the possibility of democracy itself, 'special minority rights' are not simi­
larly justifiable. They appear to come upon democracy from the outside.
Hence the need for a richer account of democracy; a two-dimensional
conception in which there is a demand for not only ' electoral' legitimacy
but a ' contestatory' dimension as well. If the rationale for democracy is
in part to force governments to take their guidance from people's gen­
uine common interests, then it should be organised so as to give stand­
ing to all possible common interests. There should be mechanisms to
ensure that where citizens feel they have not been treated as equals they
can contest government decisions and have some confidence of such
decisions being reversed. 'Special' - or perhaps more accurately, specific
- minority rights present just such a mechanism. The justification for
them is tied to the value of equal standing, which in turn is tied to the
value of democratic rule. The more multicultural a state, the greater the
need for such contestatory mechanisms.
However, the question remains whether such ' special' minority rights
are sufficient in order to establish the conditions for just relations with
indigenous peoples, and whether or not thinking of them as 'special' is
not itself part of the problem. Connolly argues for 'a thick public culture
of multidimensional pluralism well oiled by an ethos of engagement
between diverse constituen ts' . Pettit suggests that the case for specific
rights may extend beyond merely contestatory mechanisms to include
significant powers of self-government in matters affecting the survival of
indigenous communities and cultures.
The strategy of creating space within liberal democracies for indige­
nous claims therefore leads back to the issue of sovereignty and the



nature and limits of state power. For some, including Tully, Pocotk,
Simpson and Kymlicka in this volume, there can be no equal standing for
indigenous peoples until they are acknowledged as equal sovereigns
within a postcolonial constitutional arrangement. For others, such as
Young and Fleuras and Maaka, it is the very nature of the sovereign state
that must be rethought. Young argues that the challenge posed by the
history and current status of indigenous peoples converges with femi­
nism and other movements towards a form of global democracy involv­
ing self-determination without sovereign borders.
An important part of the argument in the Report of the Royal Commis­
sion on Aboriginal Peoples ( 1 996a) is that the principles of mutual recogni­
tion and respect can only be realised if they draw on Aboriginal and
western values that both sides can accept as legitimate, including the
ways in which Aboriginal and non-Aboriginal peoples have acted
together in the past. How does the case for the inherent sovereignty of
indigenous peoples fit into this framework? On the one hand, self-gov­
ernment is clearly a value central to western conceptions of justice.
There is a freedom and equal dignity secured by participation in the gov­
ernment of a political association one not only consents to but in which
one feels ' at home' among its institutions and practices ( Hardimon 1 992;
Mason 1999) . But these are goods shared by both indigenous and non­
indigenous conceptions of justice, albeit developed in their own ways.
Generally speaking, the 'currency' of egalitarian justice is one of rights
and resources impartially distributed between individuals and groups.
This distribution is usually justified relative to some account of the basic
capacities or goods needed for citizens to live decent lives, including the
capacity to participate freely in the governing of one's society and pursue
one's life according to one's own choices and responsibilities. However,
the way in which indigenous claims to land and self-government are
redeemed according to liberal theories of justice raises a series of diffi­
On Kymlicka's argument, self-government is justified by virtue of the
disadvantages indigenous peoples suffer in view of the vulnerability of
their cultural structure - their lands and their cultural practices - to the
political decisions of the majority society. These disadvantages stem not
from the choices indigenous peoples make but from the way they find
themselves relative to the rest of the population. Hence they are a legiti­
mate basis for demands for justice.9 But it is not clear to what extent this
distinguishes their claims from other ethnic groups and thus, how it cor­
responds to the form of recognition indigenous peoples actually seek.
Many migrant groups were unjustly incorporated into ' settler' states.
Moreover, the children of migrants who have tried to recreate the cul­
tural structures they have left behind are arguably in a position analo-



gous to that of members of indigenous cultures: neither chose to be
members of minority cultures. If what differentiates these indigenous
groups from migrants is the fact that the former are much worse off than
the latter because they suffer from much greater social and political
disadvantages, then once again, the historical nature of their claim seems
to be less important than the fact of contemporary disadvantage.
This argument may be effective, but it misrecognises the nature of
indigenous claims for the recognition of their inherent rights to self-gov­
ernment, since it grounds the basis of these rights in the facts of con­
temporary disadvantage relative to an independently derived currency
of rights and resources. For some, this is entirely correct. There can be
no special pleading on the basis of historical status or cultural difference
when it comes to distributing rights and resources. But seeing indige­
nous claims as so much 'special pleading' against a common currency of
justice is, arguably, precisely the problem indigenous peoples are argu­
ing needs to be addressed.
Is there an alternative way of thinking about the recognition of special
rights in the case of indigenous peoples? One possibility might be to
insist that the recognition of indigenous difference - one grounded in
the historical consequences of colonialism and their particular relation
to the land - is a necessary precondition of the legitimacy of the very
institutions and practices within which rights and resources - the currency
of egalitarian justice - are to be distributed. This is a strong precondition.
How can we know when it is fulfilled? According to what grounds and in
what contexts? The idea of ' recognition ' needs content. Does it mean
recogn ising indigenous sovereignty? If so, what does that actually entail?
Who or what is to be recognised? And how? We have surveyed some of
the possibilities and risks involved, as have many of our contributors. A
balance will have to be struck between demands for the preservation of
culture and the means to adapt and change the practices involved to suit
the times and the diverse peoples for whom culture represents a living,
dynamic thing rather than a museum piece.
A crucial aspect of any possible just response to these issues is the man­
ner in which the principles or norms invoked to govern indigenous and
non-indigenous relations are related to the concrete practices and con­
texts in which they occur. The justice or injustice of any set of political
arrangements depends as much on how principles and norms are applied
and used on the ground as they do on how they are derived or justified
philosophically. Unjust political arrangements are often so precisely
because of the way in which they have arisen or been imposed on those
subject to them. But even apparen tly just arrangements can be imposed
unjustly. Perhaps this is one of the contributions engagement with
indigenous claims makes to the practice of political theory. It teaches us



that care about the application and use o f principles and norms i n the
world is as important and relevant to considerations of justice as the
hypothetical or deliberative process of settling on the principles them­
selves. The poin t is not simply a pragmatic or prudential one. Care about
the application and use of norms feeds back into the process of how we
select or identify the relevant principles and norms in the first place.
Ironically, one of the in teresting consequences of the encounter between
liberalism and its colonial past and present might be a more context-sen­
sitive and multilayered approach to questions ofjustice, identity, democ­
racy and sovereign ty. The result would be a political theory open to new
modes of cultural and political belonging. On this approach, universal­
ism and particularism would not be conceived as irreconcilable moral
vantage points between which we are forced to choose, but as points of
reference between which new forms of coexistence among different
peoples and cultures must be negotiated. This is not an easy task, but an
important one in liberal democracies striving to become ' postcolonial'
in the eyes of all of their citizens.


S o v e r e i g n ty

C HA P T E R


Waitangi as Mystery of State:
Consequences of the Ascription ofFederative
Capacity to the Maori
J.G.A. Pocock

Among the English-speaking political societies for whom indigenous
rights are at present problematic in political theory and practice - there
are of course other non-English-speaking societies of which this is true New Zealand occupies a special and, to all appearances, unique position.
Australia, Canada and the US are continental confederations. Within
this group, indigenous or pre-settlement peoples apart from those i n
Australia are able to appeal t o treaties made with the British Crown
before the confederations became self-governing and independent, and
to further treaties with state and federal governments during and after
that process. Canadian First Nations and Native Americans seek to affirm
forms of sovereignty alleged in treaties with federal states whose sover­
eignty was attained through processes in which indigenous peoples
did not play a crucial part. Australian Aborigines were party to no such
treaties, and it is doubtful whether they could or should seek one now.
There is also the case of the Native Hawaiians, whose claim may be based
on the alleged illegitimacy of the overthrow of the Kamehameha king­
dom in 1 898.
Distinct from these cases, New Zealand (in Maori, Aotearoa) is a uni­
tary state established by the Crown's sovereignty, whose establishment
was in turn preceded by the Treaty of Waitangi in 1 840, drawn up
between representatives of the Crown and rangatira (translatable as
'chiefs') of the iwi and hapii ( translatable as ' tribes' ) , constituting the
people or peoples who came to call themselves Maori ( meaning ' nor­
mal ' ) and who are also termed ' tangata whenua' or ' people of the land
and birthplace' - a term conveying some of the meanings of 'aboriginal'
(Orange 1 987) . This Treaty was drawn up and signed before - though its
signatories were able to envisage - the massive settlement of New
Zealand by the British, Irish and other European colonists known as



piikehii, now a majority of the people who democratically exercise the sov­
ereignty of the crown, in whose name they perform legislative and judi­
cial acts ( Belich 1 996) .
It is necessary to explain this vocabulary to publics who may be igno­
rant of it, because a situation has arisen that constitutes New Zealand's
uniqueness. The Treaty of Waitangi is now considered fundamental, in
the sense that it precedes and establishes the national sovereignty; it
therefore furnishes a basis on which Maori may make claims against that
sovereignty, reminding it that it is conditional upon fulfilment of a treaty
that made promises to the Maori which have not always been honoured
(this is to put it mildly) . The Treaty is not used to delegitimise sovereignty,
but as a reminder of its conditionality and put in its mind claims to which
it is urgently concerned to attend. Democratisation has meant that the
sovereignty of the Crown is no longer that of a distant imperial authority,
but is exercised by a people divided into a piikehii majority and an indige­
nous minority whose understandings of property, sovereignty and history
differ sharply from those of the Crown and the majority (Sharp 1 997;
McHugh 1 99 1 ; Kawharu 1 989) . Both sets of understandings are traceable
to the Treaty itself. New Zealand/Aotearoa (the order can be reversed) is
therefore unique compared to other countries, and may be so in a much
larger conceptual category, in having consciously exposed its sovereignty
to legal, political and philosophical challenges. All arise from the prob­
lem of indigenous rights, but at a time in history when the concept and
practical exercise of sovereignty are being globally challenged by forces of
an altogether different origin. The case of New Zealand/Aotearoa is
therefore interesting and international publics unaware that its history
has been going on will do well to study it and learn its vocabulary.
This chapter will be - to use an older terminology - a discourse upon
history rather than a history. Without attempting a close narrative of
what has been happening in the world of practice, it will draw out and
pursue some general implications for politics of the decision to contract
a treaty with Maori in 1 840, and of the decision to make that treaty a fun­
damental document nearly 1 50 years later. The initial decision received
the following theoretical support from Lord Glenelg, then Colonial Sec­
retary, in a memorandum dated 1 5 December 1 837:
They are not Savages living by the Chase, but Tribes who have apportioned
the country between them, having fixed Abodes, with an acknowledged Prop­
erty in the Soil, and with some rude approaches to a regular System of inter­
nal Government. 1

Glenelg was an Evangelical, and this memorandum has its place in a
complicated history of liberal Christian attempts to influence govern­
ments and settler associations in their dealings with indigenous peoples



in various parts o f the southern oceans. Among these points o f contact
were Tasmania and Victoria, and it is possible to view Glenelg's words in
the context of settler-Aboriginal history in Australia ( Reynolds 1 996) .
However, the ' they' of the opening statement are, in the first instance,
Ngapuhi and other hapu living around the Bay of Islands, then the chief
point of contact between the Crown and Maori where the Treaty of Wai­
tangi was to be signed later. Glenelg thought of them as ' the New Zealan­
ders', and the effect of these words was soon extended to all peoples
living in both major islands who became collectively known as ' Maori' . In
saying that they were ' not Savages living by the Chase' , Glenelg was mak­
ing a distinction important in European jurisprudence, political philos­
ophy and anthropology. He was saying that the Maori had left the
hunter-gatherer condition, to which the word 'savage' ( sauvage, selvag­
gio, forester, bushman) was in theory restricted, and entered a condition
supposed to succeed it in natural law and stadial theory: that of agricul­
ture, in which human communities became sedentary upon the land,
and by tilling and rendering it productive established property in it and
made property the basis of civil society (Pocock 1 992; 1 998) .
In Lockean theory, hunter-gatherer peoples might have property in
what they found or captured - ' the deer is that Indian's that hath killed
but not in the land over which they travelled in its pursuit ( Locke
1 988: 289) . It is tempting, therefore, to oppose what Glenelg is saying of
the Maori to what was being said of Australian peoples whose normal
condition was held to be one of walkabout, pursuing songlines in search
of sustenance, and to find in this distinction the source of the decision
that the land over which they passed was terra nullius, unappropriated by
agriculture. (Europeans ignored, or were ignorant of, the Aboriginal
sense that land might be appropriated by song.) To make such an oppo­
sition would be to situate Glenelg's memorandum at a point of bifurca­
tion, from which New Zealand and Australian history begins to become
as profoundly different, as in many ways they are. Among these differ­
ences would be the circumstance that the Treaty of Waitangi has no
equivalent in the history of Australian settlement. The effect of Glenelg's
words is to justify entering into treaty with Maori, one that has been made
fou ndational in New Zealand history and is here discovered at its foun­
dation. Terra nullius has the effect of denying Aborigines the capacity to
make treaties; the federative capacity, derived from joedus, the Latin word
for ' treaty'.
At this point, however, we must refine the distinctions being made. In
European thought, the capacity to establish ' a fixed property in the soil'
is the beginning of two processes: the development of civil society and
the development of civil government. The former may have reached the
point (well known to Locke) where there are known to be claims, rights,



disputes and means of resolving them, though the latter has not reached
the point where there exists a sovereign authority competent to resolve
all disputes. Glenelg says no more of the Maori than they have made
'some rude approaches', but he is saying that they have not developed a
sovereign authority or state. The question imposed by the vocabulary he
is using may run as follows: treaties are made between sovereigns, so what
treaty can be made with peoples as yet lacking 'a regular system of inter­
nal government'? In subsequent New Zealand history, the famous Pren­
dergast judgment pronounced that the Treaty of Waitangi lacked
binding force in law, precisely because the Maori signatories lacked the
authority of sovereign statehood that alone could have made the terms
of a treaty with them binding on the Crown and its subsequent judges,
officers and subjects.2
Faced with this argument, there are strategies modern Maori may
adopt to make the Treaty binding on the Crown. One is to intensify, as
part of the historical record, the approaches to a regular system of inter­
nal government that were being made by Maori before 1 840; much may
be made of the 'Declaration of the United Tribes' that came into being in
1 835 and had a flag of its own.3 Another - to use terms compatible with
the vocabulary of classical pakeha political philosophy - is to move from
the concept of treaty towards that of contract of government. In classical
theory, people possessed of rights and civil society, but as yet of no civil
government, may compact to set up such a government, transferring to a
sovereign authority the right of enforcing these rights and legislation con­
cerning them, while retaining for themselves the rights they empower
government to enforce. A compact of this sort may be held to have
occurred at Waitangi, where the Maori signatories recognise the Crown as
endowed with kawanatanga a neologism in te reo Maori (the Maori lan­
guage as cultural instrument) , which is a phonetic equivalent of the word
'government' - while the Crown guarantees them the continued posses­
sion of rangatiratanga, a word more authentically Maori, whose meanings
include chiefly authority, property in land and, by extension then and
since, the entire fabric of Maori culture and self-possession.4
At a culminating point in the ceremonies at Waitangi, Governor Hob­
son is said to have remarked, ' now we are one people ' . His comments can
be read as meaning simply that there has occurred a union of head and
body; the Maori have become a people in the state of civil government
by recognising the Crown as their sovereign. It would follow - as it has ­
that Maori are en titled to claim that the Crown is bound to maintain ran­
gatiratanga, that failure to do so is a breach of the contract of govern­
men t, and that the consequences of such a breach may extend as far as a
Lockean 'dissolution of government', a threat sufficient to maintain the
binding force of the Crown's obligation. Maori in the late twentieth cen-



tury have engaged in large-scale symbolic actions approaching civil dis­
obedience, with the precise effect of using such reminders to revive the
bin ding force of the Treaty, but it does not follow, as it might, that the
Treaty is simply the outward or originatory form of a contract of civil gov­
ernment. There is more to the New Zealand state and its attendant civil
society than the confrontation of kiiwanatanga and rangatiratanga; the
former is not the only threat the latter faces.
Hobson's words at Waitangi need not be read - though they often have
been as meaning that Maori and piikehii 'are now one people'. The rea­
son is that massive piikehii presence - intensive colonisation by British set­
tlers intending to appropriate land in their own way, to develop a civil
society of the kind they are used to, and to continue to live under the
Crown as their civil government - is not envisaged at Waitangi or spoken
of in the Treaty. It was, however, beginning to occur. The Crown knew this,
and had its own intentions regarding it, and accusations of bad faith
against the Crown in its dealings at Waitangi begin here. It was the Crown 's
intention to establish its sovereignty before settlement began in order to
retain sovereignty over the process. It did so by means of a treaty, or con­
tract of government, with the Maori, but did not make clear to them either
the impact that settlement would have on their rangatiratanga, or the
extent to which the Crown would further that process in the act of exer­
cising sovereignty over it. If the Crown did not become the mere instru­
ment of the settlement companies, it came close, especially after 'the
growth of responsible government' meant that its sovereignty was exer­
cised in and by acts of parliament representing the settler majority.
Here we revert to Glenelg. His language ascribes to pre-Treaty and
pre-contact Maori a capacity to create property in land.5 Property is a
right, here recognised as ancient and aboriginal, rooted in the customs
of an indigenous people. This is crucial to any claim that may subse­
quently be made that rangatiratanga antedates, conditions and obliges
the establishment of sovereignty at Waitangi. However, research into the
language and behaviour of the agents of settlement companies and other
land purchasers then active in various parts of Aotearoa reveals that they
were as anxious as the Crown to ascribe property and original title to the
Maori from whom they sought to purchase land, for the obvious reason
that they needed it to legitimate their purchases in the eyes of a Crown
under whose sovereignty they might soon find themselves.6 For its part,
the Crown was interested in ascribing to Maori a capacity to hold prop­
erty and enter into treaties, in order to acquire sovereignty over the
processes of purchase and settlement, over which it did not wish the set­
tlement companies to acquire an authority preceding its own.
The capacity to hold property, to claim rights in it and to enter into
treaties respecting it were understood by Maori in terms of their own



concept of rangatiratanga. We now see, however, that they implied - and
were operated by piikehii in 1 840 so that they should imply - a capacity to
alienate property with which Maori were not familiar and which might be
hostile to their governing values. What went on in the mind of a rangatira
engaged in what a piikehii thought of as a land sale may be hard to recap­
ture, but probably entailed a belief that he was extending his mana ( the
term is stronger even than rangatiratanga) over the land in question, not
that he was parting with it for money.
Historically, this is the point from which many confusions and injus­
tices - the latter often quite deliberate - take their origin. Jurispruden­
tially, here begins a history that has to be re-assessed with a view to
remedying the injustices, once their existence and origin have been
pointed out. Philosophically, at this point we observe that Maori are
being involved for the first time in a historical process to which they have
not consented, and perhaps in the first h istorical process they are
obliged to recognise as such . Rights in European jurisprudence might
exist timelessly or in a process conceived merely to elucidate their char­
acter. Property, as a specie of right, required no organisation of time
beyond inheritance and custom. The time structure of the Maori world
was mythic, composed of ancestral and cosmic images. But the move­
ment of property from possession to alienability entailed a history more
drastic than any of the stadial sequences designed to precede it; a process
of commodification in which all goods became mobile and homo became
mercator, committed to exchange. As goods became commodities,
exchange transformed their use and character. The future became open,
at the price of uncertainty. Maori, accustomed to living in a cosmos of
reciprocity,justice and revenge ( the word for the latter two is utu) , found
themselves living in a process of shifting patterns, in which the new must
be undertaken without seeing its outcome, nothing was quite what it
seemed, and the Treaty that was supposed to guarantee their rangati­
ratanga became an instrument by which they lost it. The wars fought in
Aotearoa/New Zealand during the 1 860s were in part between Kingi­
tanga, Maori who resisted land sales, and kilpapa, Maori who had decided
to engage in and control them. But the wars could not check the flood
of piikehii immigration, and the kilpapa sometimes found their lands con­
fiscated, like those of the Kingitanga (Belich 1 986; 1 989; 1 996: 229-46) .
This is life in the open-endedness of history, a vision of things fright­
eningly necessary to the open society in which humans seek freedom and
self-determination. Neo-conservative historians sometimes point out
that even the most barbarous and brutal Europeans encountered by
Maori knew things about living in a history of differences, and therefore
about being free, unknowable in a closed Maori cosmos that taught no
response to them, and that once the sailors had arrived, freedom could



only be had by living i n a history like - if not identical with - theirs.7 This
may well be, but a history that has been forced on one can only be made
one's own by its retelling, and those who enter history with the fragments
of a cosmos about them must tell it in terms that not only the fragments,
but the knowledge of their former wholeness, provide. There may be
ways of relating Glenelg and the Treaty to this process.
Glenelg gives us textual evidence that Maori were thought capable of
federative action because they were able to establish and apportion prop­
erty in the soil, and were therefore approaching the state of civil govern­
ment (it is noteworthy, in Lockean terms, that the federative capacity
here preceded the legislative) . 8 There is a further way of stating this
capacity, which Glenelg did not use and which does not seem to figure in
the discourse attending Maori-Crown settler relationships; it was never­
theless available to pakeha engaged in this discourse, and may be intro­
duced into the history as a means of enlarging its philosophical
significance. Encounters between the Crown and the indigenous peoples
of North America had been going on for two centuries before Glenelg
wrote his memorandum, and there had taken shape an elaborate image
of the capacity of Mohawk, Iroquois and Huron leaders for war, oratory
and reason of state ( Colden 1 747: v, viii, xiii, 1 06, 1 35, 1 50-5 1 , 1 78-79;
Ferguson 1 995) . It had been pointed out as a paradox that these were
hunting peoples - Glenelg's 'Savages living by the Chase' - who should in
theory lack all these capacities; their powers of political speech exceeded
their powers to command a state's resources. Nevertheless, they could
resolve to make wars, treaties and alliances, and could enter into debate
with French and British governors and settlers as to whether the wars
fought by the latter were just or unjust. It had in consequence been sug­
gested in the literature of empire that hunting peoples might demarcate
hunting grounds and fight wars, just or unjust, and terminate these wars
by treaties concerning their demarcation ( Pownall 1 993: 259n, 265-80) .
This was an important step away from the supposition that peoples
' living by the chase' lacked political capacity, and toward the proposition
that the federative capacity might arise in the order of natural develop­
ment before the governmental. It could be applied to the historical con­
dition of Maori at the time of contact, who had 'advanced' (as a
progress-based discourse would put it) beyond 'living by the chase' , and
among whom there visibly occurred what a European could recognise as
'wars' and ' treaties' over ' apportionment' of land. The capacity to engage
in war, terminate it by treaties, precede it by alliances, and behave wisely
or unwisely, justly or unjustly, in the practice of these activities was impor­
tant in what was termed ' the progress of society' and of the human moral
faculty. It constituted the universes of jus gentium and ' reason of state' ,
the intellectual universes governing the relations o f sovereigns with one



another. The sovereign 's 'federative' capacity to make wars and enter
into treaties was significant in the history of morals and morality.
Against this background, it can be argued that the Treaty of Waitangi
and the intellectual preparation for it have had the effect of conceding
the Maori presence in the universe of jus gentium, whereas the effect of
terra nullius has been the refusal of such a presence to Aboriginal
peoples, deemed unable to appropriate lands or make war and peace,
and thus obliging them, even today, to seek their remedies in the uni­
verse ofjus naturale, which has no history. This argument in several ways
entails ideal simplifications. The admission of Maori to jus gentium was
imperfect and often denied, and did not prevent Maori suffering mani­
fold injustices within that universe. To write Aboriginal history as if it had
been governed by the terra nullius judgment and by nothing else would
certainly be inadequate, and modern attempts to reconstitute the men­
tal universes of both Maori and Aborigines at the time of contact have
shown them containing elements deeper and more various than those of
the universe of jus gentium alone - elements to which appeals are now
being made.9 However, the argument does permit the contention that,
in virtue of Wai tangi , Aotearoa/New Zealand history has, as Aboriginal!
Australian history perhaps has not, occurred in a universe ofjus gentium,
where wars and treaties are recognised components of history. In pre­
contact Aotearoa, wars and treaties recognisably occurred. There was a
Treaty at the foundation of sovereignty and partly in consequence of its
imperfections, wars occurred in the 1 860s and were fought by those who
knew them to be wars, in both Maori and piikehii senses; these wars were
not terminated by treaties, but the Treaty is now being invoked as a
means of saying they were not properly terminated and of applying vari­
ous modes of closure which are thought to be needed. It is a strong but
minority position that the condition of New Zealand/Aotearoa is one of
internal war that has not yet been terminated by Treaty; a much more gen­
eral position, to which the state itself appears to subscribe, is that the Treaty
of Waitangi is to be used as a means of re-assessing history and remedying
grievances that have caused wars in the past and arise out of ways in which
those wars were terminated ( if terminated they were) . The rewri ting of
New Zealand/Aotearoa history in this way appears to have become estab­
lished, and since it is unlikely that history can be written with finality, it
must continue to be practised, and to happen, as well as be rewritten. This
is a remarkable characteristic of that polity as it now finds itself.
It is evident at this point that history has become important in the the­
ory and practice of politics. The Maori bring to the Treaty envisaged by
Glenelg something other than the history of property and progress in
which Glenelg (we may say) thought it would involve them. The Treaty
becomes a focal point around which they organise their history as they



understand it: the history of the mana and rangatiratanga which they
once created and possessed, the history of their dispossession of rangati­
ratanga contrary to the promises of the Treaty, the history of how ran­
gatiratanga and mana nevertheless survived and how the Treaty may be
used as a means of re-asserting and reclaiming them. (The circumstance
that all these concepts are becoming debatable among Maori themselves
is important to the politics of history, but will not be discussed here.) This
history is a source of both pride and pain, and both are significant when
it is brought to the negotiating table that the Treaty provides an occasion
for the constant re-assertion of that history. Because it is seen as unful­
filled, it becomes not a single encounter between negotiating peoples
whose histories begin again ( perhaps as one history) as the outcome of a
treaty, but as a means of rendering the encounter and the negotiation
ongoing and open-ended, so that they become the history that the nego­
tiants now have in common. At issue is not rights and justice alone, but
the identity and history they define. When a New Zealand government
some years ago was seen to be offering a cash settlement in return for the
closure of all claims under the Treaty ofWaitangi, it was told in effect that
the history of encounter between Maori and piikehii was such that it could
not be brought to a closure, that the offer was insulting, and that the his­
tory would have to continue in the form of negotiation into an indefinite
future in which negotiation and history would be inseparable and nearly
identical ( Gardiner 1 996; Oliver 1 997: 1 35-45) .
Here something begins to be said about piikehii history, first by Maori
and by piikehii themselves. The Maori remind the piikehii that the history
of their settlement as a people entails at every point the dispossession of
the Maori from that rangatiratanga guaranteed them by the Treaty, and
their relegation to a history of dispossession, survival and recovery. They
invite the piikehii to return to Waitangi and recognise that their legitimacy
as a people rests on promises that have not been fulfilled and for whose
unfulfilment remedy is necessary and obligatory. Unless their response is
one of complete denial, piikehii respond that they recognise the history
that calls for remedial justice, but - unless their reply is made for them
by a critical intelligentsia anxious to unmake every identity including its
own - they further respond that their history does not fully arise from the
Treaty of Waitangi and does not consist wholly in the undeniable non­
fulfilment of its provisions. More pertinently, their identity as a people is
characterised but not defined by the dispossession of Maori which the
Treaty at every point entails. They point out that the Treaty was made by
the Crown before there was a piikehii people, that through democratisa­
tion they have assumed the obligations of the Crown under the Treaty,
but that their self-formation as a people has come about not solely
through interaction between them and the Crown or between piikehii and



Maori, but also between pakeha and pakeha - defining their own history
by its own contestations - and between them and the land (in Maori, te
whenua) they now inhabit. They acknowledge the central unfairness of
colonial history, that colonisers had a better chance of making their own
history than the colonised, but say that their history is not to be taken
from them merely because it is unfair that they should have it on terms
exclusively their own. When informed by the critical intellect that it is
highly debatable how far their history has been of their own making, they
reply that they have always known that, which is why it is paradoxically
theirs. This debate will be with Maori centrally, but with Maori among
others, and the others will include themselves. 1 0
The Treaty as history cannot annul, although it can act upon, the exis­
tential imbalance that, for one people, is about the loss, retention and
recovery of its mana, but for the other it is not. One group may have its
own mana and history, but the Treaty is only a part of that history. One
possible contributing remedy is that Maori may discover a history of
themselves that is not exclusively about mana and the Treaty, but has
been made by Maori interacting with Maori, pakeha and whenua, in a his­
tory to be possessed differently. There are signs that such a historio­
graphy is taking shape, though only Maori can write it. It will not diminish
the importance of the Treaty in providing an alternative to it, since every
people should possess alternative histories of itself. Meanwhile, the
Treaty debate and process have importance for both peoples. It has been
made a debate over the exercise and character, if not exactly the loca­
tion, of sovereignty, and if sovereignty is not mana, a spiritual and histori­
cal essence and identity, it is the place - in Maori the marae - where 'we'
( the pronoun may be used) 1 1 make decisions of a certain finality regard­
ing what 'we' will do and have done, and therefore (insofar as our actions
in history define us) determine who we have been and will be.
The Treaty of Waitangi renders New Zealand sovereignty perpetually
debatable, but recasts sovereign ty as a perpetual debate between Crown ,
Maori and pakehii qualified to engage in it. Sovereignty