Circumscribed Spheres of Belonging and Action: Framing Indigenous Self-Determination in Terms of 'Non-Domination'

In the last decade state-centred theorizing of indigenous rights has increasingly entailed a reconsideration of the traditional republican emphasis on freedom through self-rule within the context of liberal constitutionalism resulting in a dual emphasis on constitutionalism and democracy. This has also entailed a theoretical shift away from traditional liberal understandings of freedom as non-interference and towards republican conceptions of freedom as non-domination. This paper examines the potential that a theory of freedom as non-domination holds for one of the most challenging issues facing contemporary liberal democratic states: the accommodation of the right of indigenous peoples to self-determination. I begin in Part I by examining Philip Pettit's claim that freedom understood as non-domination ought to be recognised as the supreme ideal guiding the structure of state institutions and state policy. While Pettit's theory offers a promising framework for dealing with some of the kinds of state domination that indigenous peoples face, I argue that he fails to adequately attend to the ways in which the practices of collective self-determination are more subtly constrained by colonial states. That is, situations in which indigenous peoples may be offered some semblance of freedom but are constrained to do so within relatively fixed legal/political orders that were constructed over them without their involvement. Thus, Part II turns to James Tully's work on democratic constitutionalism, non-domination, and the freedom of indigenous peoples in Canada vis-a-vis colonial domination. His main contribution is to conceive of democracy and constitutionalism as coequal, rendering the overarching terms of constitutional association – not merely the norms and rules delineated within – as subject to democratic legitimation. When applied to the issues surrounding indigenous self-determination Tully's framework suggests that indigenous peoples ought to be able to negotiate the terms of their inclusion into the Canadian constitutional framework on a nation-to-nation basis – that is, as nations equal in status to that of the Canadian state. However, in Part III I argue that although Tully's work offers invaluable insights into problems of colonial domination in part because he rightly identifies the context of colonial domination as a unique case requiring unique solutions, his democratic constitutionalism inadvertently reproduces some of the forms of domination that he is trying to overcome by circumscribing spheres of action and belonging with respect to indigenous peoples. As I try to explain, his background commitment to an overarching Canadian polity lends an anachronistic legitimacy to the Canadian state as a comprehensive enabling site for indigenous self-determination, constraining indigenous peoples to employ their agency in ways that engender a sense of belonging to a superimposed polity. I conclude, therefore, by suggesting that a more robust theory of freedom as non-domination must look beyond the background conditions of a putatively sovereign state as the legitimate and comprehensive forum for the expression and realisation of the right to self-determination.

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