Only an interrogative genealogical study of biopolitical structures unveils how the state of exception operates as the ordering structure of settler colonialism, past and present

INTIMATE!RELATIONALITIES!IN!WESTERN/SETTLER!LAW The colonial power of Western law can be traced distinctly by explaining its formation by the intimacies of settler societies – notably, Indigenous replacement via containment, erasure and amalgamation – that perpetually trouble differentiations of settler nations from what they attempt to replace. ‘Settler’ literally signifies the displacement of Indigenous peoples. Yet a host of scholarship in Native studies explains that settler subjects normatively recall and perform indigeneity as a history they at once incorporate and transcend, inhabit and defer.22 Settlers thus are inexplicable apart from their relationality to Indigenous peoples, as well as to forms of indigeneity of their own imagining that undergird settler subjectivity. All this structures how European settlers ever come to represent the West. To the extent that they do, their relationality to indigeneity through settlement also constitutes the West, even if this quality remains naturalised. To date, critics who adapt Agamben to explain colonial biopower have tended to associate the state of exception with the ejection of racialised primitivity from the West. Thus, a most recurrent definition of the exception in such work is the externalisation of racialised and colonised statuses from the body of Europe, whiteness, or their national or global appearance as Western law. Centreing settler colonialism troubles such accounts. If critics ever feel assured that the colonial exception functions through externalisation, this may be an assumption that attends on theory having already normed ‘colonialism’ so as to elide settler colonialism and its ongoing naturalisation. European settler societies enact Western law – indeed, in ways often validated as exemplary of that law – by occupying and incorporating Indigenous peoples within white settler nations. The indigenisation of white settlers and settler nations thus shifts our reading of their capacity to represent the West. Rather than presuming that the West is defined by enforcing boundaries to preserve purity, we must consider that the state of exception arises in settler societies as a function of settlers’ inherent interdependence with indigeneity. Accounts of the intimate relationality of Indigenous peoples and settlers in settler societies are enhanced by theorising biopower. I highlight a quality in Agamben’s account of homo sacer in Roman law that, I argue, illuminates how Indigenous peoples and settlers have negotiated their conjuncture by plying ties of kinship and its elimination. Agamben cites a story of patriarchal consanguinity as a governmental origin of the state of exception. In Roman law, the potential extension of bare life to any male citizen appears to have derived from a prior correlation of sovereignty to the rule of the patriarch. According to Agamben, the death of homo sacer – not murdered, but negated; ‘necisque’ as opposed to ‘vitae’ – appears in Roman law through the image of the son who, defying the father’s rule, becomes life that must be abandoned, to death.23 Here, the patriarch embodies a sovereign power that may be enacted at any time he deems necessary, and one that exists beyond the power of the law of citizens to abrogate. Agamben suggests that the extension into law of a paternal power to put the defiant son to death binds a society of law to a thesis of patriarchal consanguinity. 24 Following this model, Roman law distinguished the citizens it protected from those it evicted along their degree of respect for or flouting of filial duty to paternal authority. Here, the state of exception potentially accrues to all citizens to the extent that any might forfeit consanguinal protection by a paternal state. I am intrigued by the travels of this formulation of the state of exception at the inception of Western law. In light of Agamben’s account, even if the terms of subjection to Western law shift across places or times, they do so in relation to a law that first posits subjects as a consanguinal People before any are excised. What happens to this quality under European settler colonialism, once Western law endeavours to be established intimately with Indigenous peoples? A question first arises of whether Western law recognises Indigenous people as human. But if it were to do so, it would confront the degree to which Indigenous people become recognisable within the People of the settler nation, which in turn would condition their particular exposure to the state of exception. The settler colonisation of Indigenous Americans demonstrates that questioning their degree of humanity and their genealogical relationship to European patriarchal authority defined their subjection to Western law and its exception. Dale Turner examines these questions by reference to the Valladolid debate of 1550-51, in which Bartolomé de las Casas and Juan Gines de Sepulveda deliberated the deadly treatment of Indigenous Americans under Spanish rule by considering the theological and legal significance of their humanity.25 The Valladolid debate was contextualised by a Papal bull of 1537 having already decreed an end to formal enslavement of Indigenous Americans by deeming them unequivocally human and capable of salvation. Las Casas argued that Papal recognition of Indigenous peoples’ humanity meant that they should be brought to Christian belief and law without force or coercion. In contrast, Sepulveda argued that even if recognizably human, Indigenous peoples remained in Aristotelian terms ‘barbarians’ who were naturally inclined to enslavement, and furthermore that the Spanish remained bound to punish them for crimes against God’s law. Sepulveda thus portrayed Indigenous people as human only to the extent that their abjection followed having defied divine authority, which demanded their treatment as bare life subject to genocide. Las Casas, by contrast, sought to protect Indigenous people as subjects acceptable to God’s law, but only to the extent that they conformed to the Church and sovereign as paternal educators, whom they must not resist lest in violating the terms of their protection they be returned to the ever-present possibility of death. Interestingly, the position Sepulveda defended played out in Spanish and Portuguese colonies precisely not through modes of separation but of amalgamation. The classification of Indigenous peoples as barbarians facilitated the forced intermarriage and rape of Indigenous women by European men, whose children incompletely inherited a patriarchal lineage even as their suspect primitivity located them proximate to the state of exception.26 In turn, despite the semblance that Las Casas sought to protect Indigenous people from violence, his position justified subjecting Indigenous and growing mestizo constituencies to a racialised colonial economy, wherein promises of salvation and civilisation framed people of Indigenous heritage as children whose potentially wayward inclinations still placed them near the state of exception. While specific to the early Latin American settler colonies, these contrastive positions recur across white settler societies that attempt to eliminate Indigenous nations by amalgamating Indigenous people as potentially protected children whose racialisation leaves their consanguinity open to excision. Adjudicating life for Indigenous people defines settler law’s extension of elimination into governmental procedures of ‘recognition’ – even, of ‘nationality’ or ‘sovereignty’. For instance, the Dominion of Canada established its relationship to Indigenous peoples under law in the 1876 Indian Act, which in ever-revised form still structures Canada today. The Act pursued elimination through the settler colonial governmentality of ‘identity regulation’, to use Bonita Lawrence’s term.27 While this procedure may appear to preserve life, in its definition of over six hundred ‘First Nations’ whose members received ‘Indian status’ by state decree, the Act also separated myriad communities of common nationality, radically reduced land bases (if any remained), and enabled the state to determine the fact or erasure of their existence. Duncan Campbell Scott, deputy director of the Department of Indian Affairs, argued in 1920 that his effort to place Indigenous people in a ‘state of tutelage’ sought its own end, in a time when ‘there is not a single Indian in Canada that has not been absorbed into the body politic, and there is no Indian question’. 28 The settler colonial governmentality that here wrests identity from Indigenous peoples also imposed a patriarchal authority within the law to assimilate them into the settler nation. Aboriginal women activists in Canada exposed this by challenging the Indian Act’s restriction of status inheritance to patrilines. Women who inherited status from their fathers found that it was rescinded for them and their children if they married a person without status. This broadly-applied rule first facilitated marriages of white men with Indigenous women, which absorbed their children through the patriline into the settler nation and its citizenship. Aboriginal women activists specifically targeted the Act’s contradictory enabling of Indigenous men with status to confer it to non-Indigenous spouses and their children. Keeping in mind that status and band structure were defined by the Act, we see here that empowering Indigenous patrilineality replicated patriarchal consanguinity as law for settler and Indigenous nations, while departures from paternal law remained cause for eviction. As Aboriginal women’s movement activists argued, evicting Indigenous women harmed them while simultaneously reinforcing the colonial authority that Indigenous men gained from the settler state. While after long protest the passage of Canadian Bill C-31 reinstated status for recent generations of Indigenous women, Lawrence argues that the Act already had achieved ‘statistical genocide’: with over 25,000 women between 1876 and 1985 having had status rescinded, estimates range that from one to two million descendants of these women are incapable of asserting legally-recognised Indigenous identity in Canada, and remain removed from relationship with or even awareness of their peoples or lands. Yet alongside this elimination, a governmental effect also arises here, as constituencies that remain Indigenous-identified are narrowly delimited by the patriarchal authority of the state, which by continuing to assimilate indigeneity sustains a practice that, as Scott stated, linked recognition to its erasure. Indigenous theorists in Canada argue that the subjection of bands to definition by the sovereign power of the settler state characterises the entire project of ‘recognition’. Taiaiake Alfred targets ‘sovereignty’ itself as a logic that presumes and produces apparatuses of colonial rule while precluding distinctive modes of Indigenous governance. So long as Indigenous politics is constrained in this way, he argues, ‘the state has nothing to fear from Native leaders, for even if they succeed in achieving the goal of selfgovernment, the basic power structure remains intact’. 29 Addressing a moment in Canadian politics described for Australia by Elizabeth Povinelli as ‘liberal settler multiculturalism’, Glen Coulthard specifies that the ‘politics of recognition’ precisely sustains ‘the colonial relationship between Indigenous peoples and the Canadian state’. 30 ‘Recognition’ reproduces within land claims, capital disbursements, and political authority ‘the very configurations of colonial power that Indigenous people’s demands for recognition have historically sought to transcend’. Citing Frantz Fanon, Coulthard insists that the reproduction of a colonial structure of dominance like Canada’s rests on its ability to entice Indigenous peoples to come to identify, either implicitly or explicitly, with the profoundly asymmetrical and non-reciprocal forms of recognition either imposed on or granted to them by the colonial-state and society. 31 Alfred and Coulthard compellingly argue for the renewal of modes of Indigenous governance that redefine collectivity in excess of settler colonial governmentality. I wish to emphasise in their accounts their specification of Indigenous nations through ‘recognition’ in a childlike subjection to the authority of the state. For Indigenous peoples in settler societies – notably, those who resist elimination by asserting national difference and distinctive modes of governance – the threat of the exception is ever-present. Coulthard and Alfred highlight the bind Indigenous people face if seeking state recognition of their survival elicits the power of settler sovereignty to eliminate Indigenous difference as a threat by granting, rescinding and managing ‘recognition’. Amalgamation as a tool of elimination echoes back to Valladolid as a theme of the settler colonisation of Indigenous peoples. Yet following Agamben, entering into a recognisable status under the law also opens to elimination and replacement by settler rule. I cited a thesis of consanguinity in Agamben’s account of Roman law not merely, or even literally to invoke mestizaje/metissage as a phenomenon of settler societies or of the place of Indigenous peoples or their descendants within them. Nor do I suggest that indigenising white settler nations eclipses their concurrent definition by hypodescent, which in opposing whiteness to blackness attempts to erase the sexual violence of slavery and deny consanguinity across the colour line, all of which – as Gilroy and Sylvia Wynter argue – contributes to making the African diaspora definitive of Western modernity.32 By citing Wolfe, I indicated that the settler colonisation of Indigenous Americans, the transatlantic slave trade, and all colonised indentured labour invoke a global history of colonial modernity in which Indigenous and African diasporic peoples appear relationally. My argument has been that when slavery and its legacies exclude blackness from whiteness, this also intersects a prior and simultaneous indigenising of settler whiteness. We saw glimmers of these positionings in a relational contrast in the Valladolid debate. Without conflating either claim across distinct contexts, Sepulveda’s position appears to echo when Fanon, Mbembe or theorists of colonial biopolitics link the state of exception to subjects who exist not just beyond the law but beyond humanity, within what Mbembe calls ‘animal life’. 33 Such a reading appears to explain the irremediability of blackness in Western modernity and settler nations. It also appears in postcolonial critiques that presume that this mode of racialisation defines the colonial exception. My argument is that such readings are conditional on another that they occlude, and that in turn is conditioned by them. In the sixteenth centuries, as colonisation took shape in the settler societies of the Americas, a relational position purposefully formed. Countering the overtly genocidal violence of Sepulveda’s contravention of Indigenous humanity, Las Casas argued, for his time, a more compassionate, inclusive, and – I will return to this – liberal mode of settler colonial governance. Las Casas affirmed Indigenous humanity under God’s universal law and the necessity of its defence within a settler society. Yet his claim functioned precisely as a logic of elimination, in that recognising people of Indigenous heritage as subject racialised populations barred them from any difference that could trouble settler rule. As the incompletely consanguine children of Western law, they remained ever on the verge of eviction from it if they troubled the terms of their protection: amalgamation. Their proximity to exception arose under settler rule precisely by considering the degree to which Indigenous peoples may be included in the body of the West and its law. Far from being arbitrary, this concern was requisite to a settler society defining its relation to racialised differences on the lands it remade. A capacity in Western law to simultaneously incorporate and eliminate, recognise and except racialised and primitive difference was learned in settler projects of Indigenous elimination that established Western law on lands beyond ‘the West’. To the extent that they succeeded, settler colonialism made Western law spatially nonspecific and demonstrably universal, long prior to late modern mechanisms of global governance, and as their genealogical condition. Today, the ongoing naturalisation of settler colonialism positions settler states as exemplary of liberal governance universalised within and as Western law. A noted example transpired at the 2009 G20 Summit, when Prime Minister Stephen Harper found it useful to portray a gentle face for Canadian leadership by pointedly asserting that Canada ‘has no history of colonialism’. 34 The significance of his comment was its clarity – notable for a leader quite familiar with critiques of Canada bearing a colonial relationship to Indigenous peoples. Harper obliquely invoked here the baggage of states such as the United Kingdom, France and Japan that negotiate tense relations with former conquests when governing global economics. On a global stage, Harper’s Canada separates from colonial legacies in Africa and Asia to assert a moral neutrality that is conveniently consistent with the universality of international law. The confidence in Harper’s statement would be implausible if his audiences – broader than we may care to think – truly believed that Canada practices colonisation. From theses of terra nullius, to justifications that ‘guns, germs, and steel’ made Indigenous replacement inevitable, to a sense that settler states ‘decolonised’ after rule devolved to white citizens: settlers readily present as other than colonists.35 Yet while Harper might believe that as a Canadian he inherits something other than conquest, I suggest that his exoneration hinges less on such belief, and more on a general appearance that ‘Canada’ exemplifies the universalisation of liberal modernity on the global stage. Interestingly, Harper’s statement appeared barely a year after his government responded to years of Indigenous activism by issuing a state apology for the Residential School system. As a primary agent in the genocidal histories Lawrence recounts, Residential Schools forcibly relocated Indigenous children to sites where they were killed by disease or neglect, or survived to be assimilated into settler society via enforced separation from and erasure of familial and community ties. As an educative mode of disciplinary power, Residential Schools situated internees and all Indigenous peoples as children: wards of a state whose paternalism appears not only in past abuse but in the present apology, which suggests that the state will better manage the Indigenous people over whom it retains a power to protect or destroy. The apology’s consistency with Harper’s disavowal of colonial history naturalises settler colonialism both ‘at home’ and ‘abroad’. We see here that the ongoing coloniality of settler states conditions their practice of liberal governance as not only Western, or even originally Western, but as universal through its instantiation by settler colonialism. I have argued that settler law presents an apotheosis of Western law by utilising its consanguinal logic to amalgamate and eliminate Indigenous peoples and thereby enable settler states to performatively universalise the West. To the extent that they succeed, then global governance precisely continues, naturalises, and globalises settler colonialism in and as our ‘colonial present’. 36 The Western law universalised by settler states formed precisely by incorporating and excising Indigenous peoples as potentially yet incompletely consanguine with the social body. If settler law as Western law is projected as liberal governance, it follows a principle that it may arrive and settle anywhere, as itself. Such law then encompasses the provisional humanity of all whom it occupies as racialised and primitive children, whose capacity for defiance nevertheless invests the West with a paternal authority to act as caretaker or killer of ‘kin’ under its care. My argument modifies our interest to read Afghanistan or Iraq as sites of settler colonialism, once the United States gathers its allies for occupation. Settler colonialism occurs at these sites not, or not only because the U.S. or other states occupy Afghani and Iraqi peoples. It occurs more importantly because occupation performatively universalises Western governance through the nominal inclusion of Afghanis and Iraqis within its body of law, only to face elimination of their racialised primitivity: if not by being summarily placed ‘outside’ the law, then by being educated and contained through amalgamation as a potentially ever-endangering difference. Western law attains universality by containing and eliminating differences in the functional extension of settler colonialism as liberal governmentality. Yet even as the West and its governance are liberated from attachment to place, their globalisation naturalises ongoing settler colonisation of Indigenous peoples in settler states. Indeed, by permanently remaining in a state of exception to settler law as Western law, Indigenous peoples model this status for all others who come under Western law’s global reach. The settler colonial elimination of Indigenous peoples requires them to have existed and to tenuously exist in settler societies, for only their perpetual replacement demonstrates settlers’ achievement of Western law where it would not otherwise exist.