Post-colonial attitudes and the relevance of incommensurability

Abstract This paper reflects upon the enduring relevance of Peter Fitzpatrick's analysis of incommensurability in the context of post-colonialism and the lived experiences of Indigenous peoples in the US.

The banner was startling to see. Despite the enormous outpouring of anger and public protests surrounding BLM in the US, the word 'post-colonial' and reflections on the limits of post-coloniality are notably absent from political discussion of systemic racism. Of course, people talk about the legacies of slavery and Jim Crow, but the mainstream narrative features Jamestown as the receiving outpost of enslaved Africans brought to the New World by British merchants starting in 1619. There is little conversation about the US subsequently becoming in turn a colonising empire, deeply complicit in the logics of racial capitalism, land dispossession, and enslavement and exploitation of Indigenous peoples across the north, central and south Americas. Most people in the US do not think in terms of their country's relationship with post-colonialism, empire, and the enduring legacies of 'internal' colonialism that are deeply connected with histories of conquered 'external' frontiers. When discussing racism, Black (and sometimes Brown) people feature but Indigenous peoples are typically forgotten or silenced in public discourse. Even among US scholars, Indigenous peoples are basically absent from legal scholarship, as is any discussion of the US legal system being deeply imbricated with (post-)colonial racialised logics.
In contrast, Peter Fitzpatrick's theoretical contributions position Indigenous peoples at the centre of our understanding of contemporary law. For Peter, it was the complex tension between 'civilised' Europeans and 'savage' Indians that created the conditions for modern Western law to emerge in the first place. In his essay, 'Passions out of place: law, incommensurability, and resistance', Peter examined through the writings of Diderot and Herder the impossibility of relations between the noble Enlightened European and the Indian. This impossibilityor incommensurabilitypresents a great divide that he argued was 'integral' to the universal claims of modern law. The savage stands outside occidental civilisation, occupying an ambiguous positionality as both monstrously deficient and less than European, and at other times wondrously noble and more than. Against this 'outsider' status, occidental law asserts authority and a universalist claim. In Peter's eloquent words: 'So, although savagery and civil society are incommensurable, that very incommensurability, that impossibility of relating, is what sets them in relation. Yet that same incommensurability ensures that the relation is never fully achievable. It is never resolved. In a seeming paradox, the incommensurable and the relation are integral to each other.' (Fitzpatrick, 1999, p. 48) The 'lawless' and 'uncivilised' savage functions as the antithesis of modern Western law that is necessarily always changing, developing and progressing. This oppositional relation is key: 'It is the savage that thence becomes the site of essential irresolution and serves to constitute civilized law as its resolved and resolving opposite' (Fitzpatrick, 1999, p. 50). Significantly, the savage, with no understanding of property relations and no desire for progress, becomes the justification for colonialism and underpinning rationale of Western law's claim to superiority. In this way, Peter argued, 'incommensurability was to become not just a prime justification for Europe's colonial extraversion but also a foundation for the identity of the European as exemplary of modernity' (Fitzpatrick, 1999, p. 40;Otto, 1996). This meant that at the core of modern law is racism. Wrote Maureen Cain and Carol Smart in their editorial preface: 'Fitzpatrick reveals how law depends on racism for its own theory of its being, not only for its self-justification (though for that too) but for its very identity, which is achieved in negation, by the distinction between a legal way of doing coercion and all other ways.' (Fitzpatrick, 1992, p. xiii) Peter engaged with the theme of incommensurability throughout his career. As the underpinning thesis of his book The Mythology of Modern Law, Peter returned to it again and again, expanding and playing and examining its theoretical implications as an integral building block of secular occidental legality. It his analysis of the so-called doctrine of discovery, be it in the US or Australia, it is this element of incommensurability that justified, and continues to justify, the expropriation of Indigenous lands by settler colonial states (Fitzpatrick, 2002;2010 (1823), the first of a trilogy of Indian cases in the first half of the nineteenth century, affirmed the doctrine of discovery that ultimately deprived Native Americans of their rights. The judgment, passed down by Chief Justice Marshall, recognised that Indigenous peoples held 'natural rights' in their lands. However, these rights were not granted because of the 'character and habits' of Indians 'with whom it was impossible to mix, and who could not be governed as a distinct entity'. In short, it was the 'uncivilised' nature of Indigenous peoples that justified the negation of their sovereignty and required the abrogation of their land rights to the US colonial authority. As noted by the legal historian Stuart Banner, Marshall's opinion embodied a Eurocentric view of Indian peoples' racial inferiority (Banner, 2005, pp. 11-12).
Unfortunately, the case of Johnson v. M'Intosh remains to this day the leading authority determining the federal government's supreme authority to acquire title over Indigenous lands (Banner, 2005). The subsequent case in the trilogy, Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831), further affirmed that indigenous tribes were 'domestic' nations and not equivalent to modern states or foreign nations, occupying a relationship similar to that of 'a ward to its guardian'. These early legal precedents created uncertainty for nearly two centuries over whether an Indigenous community could prove it was a 'tribe' for the purposes of being recognised as holding land title (Clifford, 1988, chapter 12). And only since the 1960s and 1970s has the Supreme Court affirmed some elements of Indigenous self-determination, such as the right to collect taxes on reservation land. But, in the past twenty years, as the court has increasingly become more conservative; it has taken an overtly negative view of Native American sovereignty and self-determination arguments (Fletcher, 2009). I have argued that this backward trajectory is happening precisely at a time when some Native Americans have been able to more fully participate in mainstream political and social life, largely due to the economic success of tribal-owned casinos (Darian-Smith, 2002;2004). The Supreme Court's institutional bias against tribal interests can be understood as part of a 'backlash' by an increasingly reactionary White power block.
Returning to Peter's thesis of incommensurability, the lack of affinity between occidental law and the legal practices of Indigenous peoples is fully on display in the national swing against recognition of Indigenous peoples' rights and interests. On the one hand, the US legal system can claim to be always developing and progressing in its embrace of legal plurality within its national bordershence at times recognising tribal courts and their limited jurisdictional claims. On the other hand, as soon as these claims transcend the spatial and legal boundaries of the reservation and translate into political power on a national stage, they are met with aggressive resistance and disavowal. This is happening at the level of the Supreme Court but also in the everyday experiences of many Indigenous people who are constantly confronted by their 'barbaric' non-equivalence.
The recent crisis around the Covid-19 pandemic is a telling case in point. During March and April 2020, as infection spread and the number of deaths soared across southern and rural US, some of the hardest hit were tribal communities on reservations. For example, the Navajo Nation had a per-capita infection rate that was much higher than that in New York City at the height of its crisis. Compounding the tribal emergency were limited health facilities, further aggravated by the federal government's failure to distribute to tribes $8 billion in aid scheduled to be paid under the stimulus law. In response, a group of tribes sued the Trump administration for disbursement. Against this backdrop of death, discrimination and inadequate emergency response by state officials, the Oglala Sioux and the Cheyenne River Sioux tribes from South Dakota put up roadblocks to stop non-Indigenous visitors coming onto tribal parks and lands. Governor Kristi Noem asserted state sovereignty over the tribes and threatened them with legal action, whereupon Julian Bear Runner, president of the Oglala Sioux Tribe, countered: 'We must adopt serious measures to proactively deal with the serious public health crisis. We demand you to respect our sovereignty' (Anderson and Parker, 2020). First Nations in Canada and Maori groups in New Zealand similarly asserted their rights to protect their own communities in light of failures by settler nations to enact suitable emergency responses.
Underscoring all the confusion about whose law prevailsfederal, state or tribalis the enduring legacy of incommensurability. Modern law needs Native Americans to remain 'uncivilised' and 'lawless', far away on distant reservations, quietly performing their 'savagery'. But, when tribes call out the government's inability to implement the law that it itself has enacted, they also call into question the government's claim of authority over them. Tribes demanding a right to govern themselves 'as a distinct entity' more responsive to the pandemic than the 'guardian' who ostensibly manages them violates the paradoxical relationship of incommensurability that Peter so powerfully articulated. In fact, Peter's theoretical insights are arguably more important today than ever before. As the US and other settler states descend into far-right authoritarianism, we can assume that a national shift against the interests of Indigenous peoples will quicken alongside a reassertion of racial incommensurability. Distressingly, the BLM poster reading 'Postcolonial Attitudes Matter' is more than correct, especially for some people.
In loving memory of Peter, whose warmth, generosity, sense of fun and imaginative roaming intellect will always be an inspiration.