Comparison in the Context of Legality Difference: A Response to My Interlocutors
[Editor’s note: This is the final of four posts on Aaron Mills’s article “First Nations’ Citizenship and Kinship Compared: Belonging’s Stake in Legality”, The American Journal of Comparative Law, Volume 72, Issue 4, Winter 2024, Pages 892–932, https://doi.org/10.1093/ajcl/avae032]
I am tremendously fortunate to have Matthew L.M. Fletcher, James Whitman, and Will Kymlicka respond to my article.[1] Their replies are a model of thoughtfulness and charitableness. Especially as an Assistant Professor, I am grateful, also, for the distinct challenges they present, which do honour to my argument. Finally, I am appreciative that their interdisciplinary questions represent the range of my target audiences, including the fields of Indigenous Law and Governance, Comparative Law, and Political Philosophy. I extend my sincere thanks also to the ASCL for its invitation to host this dialogue on its blog.
Because my interlocutors’ interventions are not readily synthesized under common themes, I will respond to them in the order that they were published. For Whitman and for Kymlicka, an adequate response requires that I draw upon contentious theoretical claims. Since a blog is not the appropriate forum in which to work contentious claims through, I am in the unenviable position of having to introduce novel ideas with (one hopes) some claim to reasonableness, even absent the fulsome defence they clearly need. In both Whitman’s and Kymlicka’s cases, the issues presented are among the most pressing my work raises. As they have generously anticipated, I simply need more time. Thus, I would ask my respondents to receive these preliminary replies as a prelude to the more robust accounts forthcoming, and, likewise, for readers to receive them as invitations to a larger dialogue.
In effect, that is the whole point. My hope is that this mini-symposium, and the article supporting it, might serve to expand space within the fields of Comparative Law, Political Philosophy, and to a lesser extent, Philosophy of Law, for the study of Indigenous peoples’ systems of law and governance. While legal and cultural anthropologists, as well as scholars in the field of Indigenous Legal Traditions, make distinct and valuable contributions to our understanding of Indigenous peoples’ systems of law, comparative law scholars, political philosophers, and legal philosophers, are uniquely situated to make significant contributions of their own, to the benefit of Indigenous peoples’ legal systems and to their own traditions of intellectual inquiry.
On Matthew Fletcher’s Reply
My first interlocutor is Professor Matthew L.M. Fletcher, a scholar of Federal Indian Law and of Tribal Law, with a sustained interest in Anishinaabe legal and political philosophy. His intervention is, fittingly, comparative: he adds to my argument a closely related comparator group from another jurisdiction, American Tribal (he specifically includes Anishinaabe) nations. He observes that the legal and political context of belonging in these communities is also organized under a citizenship model. As in the Canadian context, the citizenship model is imposed by a settler colonial state: if tribal nations want not to be excluded from federal funding, they “have to play by the colonizer’s rules”. Fletcher explains that, in the American case, that means not just using a citizenship model of belonging, but using it in the service of achieving the federal government’s Indigenous exclusion imperatives, defined by blood quantum. The intended generational impact is diminishing capacity to meet what is ultimately a race-based criterion for membership. As a predictable result, within many tribal governments’ membership policies, whether retrospectively (through mass disenrollments) or prospectively (through enrolment moratoriums), “Inequities abound”.
In the Canadian settler colonial context, the law and politics of belonging on First Nations is equally fraught, and for the same internal colonial[2] reasons. The exclusionary practices that First Nations’ governments have deployed in response to internal colonial governance imperatives have often been gendered.[3]
A related similarity, against the association sometimes made between kinship and the pejorative use of “tribalism”, is that in both jurisdictions the result of legal but unjust blood-based exclusion is achieved directly through citizenship. Of course, this does not place kinship on higher moral ground, but it provides warrant for reconsidering perspectives that kinship is somehow more deserving of skepticism than is citizenship with regard to how each honours the principle of equality within Indigenous political communities. Fletcher’s contribution shows, at least for Indigenous political communities under conditions of internal colonialism, that the bare idea that kinship must necessarily be racialized, exclusionary, and backwards, and conversely that citizenship is predisposed towards the modern liberal democratic ends of liberty and equality, is naïve and essentialist. Such a view may be true in some, or many, cases—but it is not obviously or categorically so. If one does not require an argument which effectively makes the case in each instance, it may be that one’s baseline presuppositions about belonging represent a parochial distortion.
Finally, Fletcher’s prospective view is pessimistic, but not unreservedly. He knows the American context of these issues much better than I, so I will simply take that the worry in his emphatic “It won’t happen here” statement about kinship’s revitalization is well-founded. But looking to the Anishinaabeg “up north”, by which I take that he means within Canada, he ends his reply on a hopeful note. In particular, he identifies the ogimaag, or leaders of these northern Anishinaabe communities, as the grounding for that hopefulness. For those who may not know, the reference to ogimaag is a direct invocation of Anishinaabe law and governance; ogimaag are the key facilitators of legal and political deliberation within Anishinaabe law, understood on its own terms.
Fletcher and I thus appear to be pointed in the same direction: the carnage of settler colonialism on Indigenous communities, and the resulting internalized toxicity he describes, have largely been effected through technologies of settler law superimposed over Indigenous law. Hope lies in the revitalization of Indigenous systems of law, in and on their own terms. This remedial view requires at least two overarching projects. The first is the presentation of models of Indigenous systems of law and governance in and on their own terms, so that we can understand how and why they worked, and from that basis—and upon critical examination—seek to understand how they may be helpfully revitalized today. This is the project in service of which my article is offered. It is also a goal towards which Fletcher has long contributed through his role as a tribal court judge.[4]
The second overarching project, which can only follow from the first, is to develop viable theories of social change, which move from the conditions of settler colonialism into the conditions of revitalized Indigenous law in and on its own terms. Fletcher proceeds by realizing piecemeal but stable reforms through an expanding tribal law jurisprudence that incorporates elements of Anishinaabe law (through the comparatist’s lens, legal transplants).[5] I am keenly interested in this project, but I aspire to something which strikes me as bolder by virtue of its systematic orientation, in the service of transformative, not reformative, change. I would see Indigenous law revitalized within its own (i.e. decentralized and persuasive) model of legality, a position I unpack below.
On James Whitman’s Reply
With tremendous grace, Professor James Whitman highlights the foundational methodological anxiety my article pushes upon, which I suspect may be shared by much of the AJCL’s readership and the ASCL’s membership. I refer to a methodological distinction between two modes of inquiry: deep examination of a singular (if comprehensive and multiform) object of inquiry in and on its own terms, versus broad examination of multiple (even if particular and multipart) objects across their distinct contexts. The latter description refers to classic comparative law method. The former, which Whitman rightly asserts I have here undertaken, does not.
Invoking a Cultural Anthropology framing, Whitman likens my approach to Clifford Geertz’s thick description.[6] I am honoured by the comparison! Thick description is indeed a fine way to pursue the sustained examination of a singular, comprehensive object in and on its own terms. I would take the spirit of the comparison still further. Another disciplinary approach within this mode of inquiry is conceptual analysis, the primary method within Analytic Philosophy. The article endeavours to tie this approach in, too; hopefully, the fact that it serves as the site of Kymlicka’s engagement means that it does so with some success. Thus, whether through thick description or conceptual analysis, when it comes to the study of Indigenous peoples’ systems of law, I am committed to the deep and sustained examination of a singular object in and on its own terms.
The salient question is whether the conclusion Whitman draws regarding the relationship between the two modes of inquiry is correct. Voicing a perspective that I expect is widely shared, he suggests that “thick description, at least when it gets too thick, is a bit at odds with the spirit, and the promise, of comparative law.” The claim appears to be that thick description, or what I more abstractly prefer to describe as a mode of inquiry characterized by the deep, sustained examination of a singular object in and on its own terms, is in natural (and perhaps necessary?) tension with the comparatist impulse to learn by reading across distinct contexts. On this view, gains through one approach are purchased at some cost to the other.
As a leading scholar in the field, Whitman clearly has a surer grip on the spirit and promise of Comparative Law than I do. Further, I think his position is shared by several of my most senior comparatist colleagues at McGill Law. As a general matter, I do not mean to challenge his claim. Rather, the question my article poses is much narrower: is the comparatist’s orthodox methodological toolbox adequate to the task of comparison between Indigenous and settler (whether Common Law or Civilian) legal systems? Across this divide, foundational differences of ontology and epistemology, arguably absent in comparisons between Common Law and Civilian traditions, are immediately present. If I am reading correctly, Whitman’s discomfort with animism, and the association he makes between it and the edifice of social science, is precisely to take the point.
For my part, I have long held that deep, sustained examination of any Indigenous people’s system of law in on its own terms serves as a condition of possibility for comparison, and more generally, of communication, across the incommensurable ontological and epistemological divides which sometimes characterize Indigenous and settler systems of law.[7] Of course, the factual claim of incommensurability, bugaboo that it is, must be borne out descriptively. I cannot do that work here, and the article has only begun to do so. Such work is imperative, but must be reserved for an article which centres it.
As an interim measure, it may assist for me to clarify my use of the term, which is the following claim: Anishinaabe law in and on its own terms and Canadian law in and on its own terms cannot directly communicate with one another (amongst other means, via legal transplants), because, in the strict sense, they do not share a common measure. Law’s measure is legality. It is Law’s distinct kind of authority, understood as legitimate power, that makes law what it is. Legality, then, is “the property of being law”.[8]
Within the mainstream of the Western Legal Tradition, that property is said to have, at minimum, two necessary conditions. The first is institutional: legitimate legal authority is centralized through legislative, judicial, and executive institutions. The second condition is that the fundamental character of legality is coercive: it is the justified exercise of power over the community’s members— paradigmatically, via legal rules. The necessity of these two conditions arises from the dominant arc of Western political theory’s centring on the principle of individual autonomy. That political centre conceptually (and I would argue, morally) frames the orthodox range of Western legal theory debates. My dialogue with Kymlicka, below, is about just this point.
In contrast, the descriptive work that I cannot here present shows that within Anishinaabe legal theory, legality is decentralized: its processes and its authority remain personalized within the membership. Its fundamental character is therefore persuasive: community members seek to persuade one another of how best to meet the demands of collective action. The kind of legal norm of central significance here is what we call a “teaching”, the content of which is contingent and subjective. Teachings, then, do not aspire to the certainty that legal rules do. Instead of compelling compliance, legal subjects seek to secure it persuasively. This is why, in the article, I wrote that:
Descriptive and analytical research is not a preamble to the discovery or clarification of abstract legal principles and legal rules. Anishinaabe communities practicing Anishinaabe law on its own terms are not seeking to apply transcendent norms; it is, consequently, not the comparativist’s or legal theorist’s task to clarify and render such norms accessible. Rather, the purpose of descriptive and analytical exposition is to disclose the implicit normativity that always already exists inside of our various kinds of relationships (again, principally via kinship). The governing methodological principle is, thus, humility: rather than prescribing, we aim for clarity and accessibility by opening a way to a practice that invites the reader into the implicit normativity.[9]
My incommensurability claim, therefore, is that where different legal systems are animated by distinct conceptions of legality, then they are not only different (which is legal pluralism), but also are different in kind: legality pluralism. Differences in kind are, by definition, not directly cognizable to one another. Consequently, across a legality divide, functional (or indirect) comparison is the most for which one may aspire.
To return to the bugaboo which shadows the term “incommensurability” everywhere it travels, this is a very different claim from suggesting that actors within (or academics theorizing or describing) one of those systems cannot render it cognizable to actors and academics situated within, and beholden to the intellectual and discursive traditions of, the other one. On the contrary, the communicative task is all of possible, valuable, and necessary. Moreover, in presenting a legal and political conception of kinship, this kind of difference-breaching communication is precisely the work that I hope my article is doing! But as I explained, the goal of shared understanding across this divide—and so the possibility of direct comparison, which requires a common measure—is not the end towards which mutual recognition strives. Because Anishinaabe law and Canadian law do not share a common measure (that is, because they operate on distinct conceptions of legality), the fundamental differences between them will remain irreducible and, thus, legally irreconcilable.
I have the good fortune of being invited to offer a plenary address at this year’s annual ASCL conference (Professor Whitman will offer the other one), and I will endeavour to make headway in the much-needed descriptive account of Anishinaabe legality then. Here, the point is to show that where what I will call “legality difference” obtains, then the communicative goal must be a political reconciliation, based on developing understanding between interlocutors on the various sides of one another’s legal systems. Any effort to short-circuit the political resolution with a legal one necessarily casts the norms and institutions of one of the legal orders (and under conditions of internal colonialism, it is invariably the Indigenous one) within the conceptual terms and institutions of the other one.
Why must this be so? As I argued in my dissertation,[10] the answer is that to transplant artefacts of Indigenous law across legality difference is to sever them from the conception of legality which authorized them as lawful in the first place, and to replant them within the different-in-kind model of legality that animates and authorizes the settler legal order (whether Common Law, Civilian, mixed-jurisdiction, etc.). In the result, Indigenous law now becomes authorized, reconceptualized, and expressed through the settler legal system’s model of legality. Yet if legality is the property that makes law, law, then the sense in which Indigenous law can be said to survive translation across legality kinds, as Indigenous law, is at best, unclear, and at worst, a contradiction-in-terms.
In presenting the structure of my argument about incommensurability, I have accepted a calculated risk. Most readers will need more—namely, the missing descriptive account—to be persuaded. However, I do not mean to bring you all the way along. For the immediate purpose of replying to Professor Whitman’s important intervention, my more modest (and conditional) hope is for readers to accept only that if my incommensurability claim holds in contexts of Indigenous and settler legality difference, then it follows that deep and sustained examination of an Indigenous people’s legal order in and on its own terms is a necessary condition for rendering comparison across the divide possible. And even then, the comparison enabled is indirect, or functional, because the fact of irreducible measures—distinct conceptions of legality—is unbridgeable. My hope is that to achieve just this much, I need not descriptively bear out the claim of legality difference in the Anishinaabe case; that, rather, it will suffice to have introduced the logical structure of the problem.
To assist, I can illustrate the idea by drawing from my article. In offering a thick description (and conceptual analysis) of Anishinaabe kinship, I hoped to enable functional comparison between its boundaries and borders (differentiated, contingent, and ambiguous) with those of citizenship (uniform, settled, and certain). Since the political boundaries of Anishinaabe kinship are incognizable with those of citizenship, I worried that absent the thick description I offered they would not be identifiable by most readers as political boundaries at all. The thick description served, therefore, as an enabling condition of the functional comparison.
Consequently, and constrained to the context of legality difference as between Indigenous and settler legal orders, I see the kind of inquiry undertaken in my article in a mutually supportive relation with—indeed, as making possible—the kind of comparative study across contexts that Whitman values, rather than pulling against it.
I am curious as to how the ASCL community will receive this doubtless controversial claim, which blurs the disciplinary boundaries of Anthropology and Comparative Law. I hope comparatists see that, if I am right, it follows that there is a place for them, too, in the study of Indigenous legal orders. This matters to me because our understanding of Indigenous legal orders could be so much richer with the benefit of their considered attention. Reciprocally, I suspect that, by virtue of its difference-in-kind, Indigenous law and Indigenous legal theory may serve to bring into relief aspects of the Common Law and Civilian traditions which they do not readily reveal to one other. I am most grateful to Professor Whitman for assisting me, even in the preliminary fashion of a blog post, to rearticulate my stakes.
On Will Kymlicka’s Reply
My third and final interlocutor is the social and political philosopher Will Kymlicka. Of the two registers (legal and political) in which I present my claim about kinship, his focus is on the political one. He argues that different ideas about the purpose of politics may be what separates our views of the relative merits and demerits of citizenship and of kinship as models of belonging to political community. He explains that, insofar as public authority is needed to govern and to coordinate collective action, then the purpose of politics is to ensure that political authority is legitimate. He adds that, in making the governed the authors of government, these are precisely the conditions which citizenship supplies.
On the one hand, Kymlicka identifies, rightly, that I have not shown the same of kinship, and quite reasonably, he puts me to proof. On the other hand, he argues that citizenship has more relational resources than I allow. He draws my attention to the fact that citizenship is taken by social democrats and conservatives alike as fit for purpose: it serves the necessary end of providing political authority’s legitimacy conditions, while successfully navigating the social conception of the self that is essential to the thick sense of group identity internal to both of these political traditions.
I will answer both concerns at once, although as above, my reply is necessarily thin. Kymlicka’s challenge merits a robust answer, which I will provide in due course. For the purpose of an immediate reply, I will, once more, have to introduce contentious theoretical claims without properly defending them.
Kymlicka starts us in the right place, clarifying the purpose of politics. I accept both of his points. Yes, the purpose of politics is to ensure that political authority is legitimate, and yes, citizenship is an exemplary model thereof. Our first and overarching disagreement is whether political authority must be public in the way that a framing of politics in respect of the principle of autonomy demands: the public autonomy / private autonomy divide. Kymlicka says that it does, because collective action is indispensable to governance and it requires legitimate coercion: public sphere authority. Because citizenship positions the demos as the authors of coercive authority—that is, because they subject themselves to it—it is legitimate.
My intervention is to deny the necessity claim. I say that citizenship, in just the way Kymlicka explains, provides one means of meeting the legitimacy conditions that political authority requires. However, I would specify that the justificatory force of its means—bringing authorhood and subjecthood of government into alignment—is not transcendental. Rather the logic of legitimacy here gives elegant expression to a historically-situated conception of freedom, in which freedom means something like being able to choose for oneself. This is the ideal of individual autonomy, and as a political manifestation of the ideal, citizenship operationalizes legitimacy as consent. Consent is what it means to say that legitimacy consists in the fact that one has co-authored the conditions of coercion to which he is subject.
But the consent model of legitimacy that citizenship represents is contingent, not categorical. If we start with an Individually autonomous conception of the self, then we need a conception of freedom which respects the autonomous individual’s capacity for choice. And if we conceptualize freedom in this way, then it follows that coercive authority’s legitimacy conditions will need to give expression to something like consent. My question is, what happens when the conceptual model starts elsewhere? The ontologically relational, deep interdependence of the self that kinship imagines would seem to present quite a different starting point, and here we come to the heart of the matter.
Kymlicka certainly understands this challenge and he believes that he has an adequate reply. He has, after all, been dealing with what we might call the “insufficiently social self” critique for decades. Thus, in stating that “a commitment to citizenship needn’t rest on a distinctly liberal individualist ontology”, he has preemptively clarified that “individual” need not mean “atomistic”. Indeed, his powerful argument that community should be understood as part of the context of choice that empowers individual autonomy is well known.[11] There are other traditions of Western political thought, too, which want to distinguish themselves from the atomistic conception of the self for which, for instance, John Rawls has been so roundly criticized. I tried to give some recognition to this point in the article, identifying the communitarian and relational autonomy (and relatedly, feminist) political traditions, amongst others.
But are these political traditions really marshalling appropriate conceptual resources for the question I am posing? Are we really just naming the same idea of a socially-constituted self differently? I worry that we equivocate on the term “social”, and if I am right, then we are speaking at cross-purposes. It is easy for me to accept the truth, and the value, of these distinct groups’ claims to community, because they are claims about community’s role in specifying the ideal of individual autonomy, which I think has them addressing a different project from mine.
More specifically, they attenuate the hard edges of “individual”, but not of “autonomy”. As for autonomy, they retain the conception of the self as a being who frames purposes individually; they just tell more complicated stories about how those purposes may be formed, enabled, or satisfied. In various ways and to various degrees, community factors as a necessary condition into the “individual” component of all of their freedom stories, such that they differ markedly from Rawls’. However, the ideal of autonomy proceeds relatively unchanged: their different freedom stories all retain a strong version of the conviction that the (now socially-constituted) self needs to preserve and shore up her capacity to choose her own ends, as against the demands, desires, capacities, and visions of the good, of others.
Insofar as this commitment remains, these various camps are not talking about what I am after, and consequently, it seems to me that their generalized claim to a relational conception of the self claims too much. Rather, the picture of the self which frames purposes individually, but which needs community to do so, is better described as ontologically individual and only politically relational.
The deep conception of relationality that the Anishinaabe model of kinship presents posits a conception of the self which is ontologically relational. The claim here is not just that the self needs community to realize its interests or a good life, or for that matter, to be free. Rather, it needs others just to be. In my article, Cree Elder Stan McKay articulates this idea when he explains of the kinship self that “Our identity as creatures in the creation cannot be expressed without talking about the rest of creation, since that very identity includes a sense of the interdependence and connectedness of all life.”[12]
What does this mean, concretely?
Kymlicka might reasonably expect me to suggest that its’ salient meaning is the way in which it challenges the picture of a (socially-constituted) autonomous self’s individual framing of purposes. In the proper space, I will challenge that picture. For the moment, I will just introduce two ideas at the root of such a reply. The first is that the relational self my kinship article relies upon, and which I believe McKay is also describing, frames its purposes relationally: as a father, neighbour, host, etc. The outcomes such a position generates are not the same as those of a socially-constituted self which frames its purposes as an abstract and singular unity, but in ways that relationships have made possible or meaningful.
Second, the linguistic “I” which serves as the site of my various relational positions is an embodied spiritual composite. The moment I entered into this world, the “I” that I inhabit in English was plural: “I” was already the union of two spirit beings within one body (White Wolf, the unique spirit who came into the world through my body, and the spirit of the Bear Clan, which lives in my bones).[13] In general then, actions I take and expressions of purpose I make represent a synthesis of positions, the result of an internal dialogue. Restated, the reasons that an ontologically relational “I” gives are not imagined to be sole-sourced or unitary; rather, my speech acts represent a synthesis of perspectives from multiple-beings-in-one, and are, thus, expressive of their relationship with each other.
Yet there is a way of explaining the meaning of fundamental (or ontological) interdependence for a relational conception of the self which is more within the spirit of Anishinaabe political theory, and which should therefore serve as the first line of response. It is not grounded in the framing of purposes. Rather, it centres on one’s capacity for gift exchange. Here, the fundamental dignity of persons consists in their status as gift-bearing and gift-receiving subjects. Consequentially, to speak of dignity is to recognize a fundamental openness to the exchange claims of others. Thus, the question of whether my freedom is diminished by another’s claim upon me (or by the consequences of a claim directed elsewhere but which nonetheless bears upon me) will always turn on the particulars which characterize the claim. The question can never be preemptively resolved by appeal to a principled position which, at least provisionally, walls the self off from the unchosen claims of others.
From this standpoint, freedom speaks more of one’s capacity for self-realization than it does one’s capacity for choice. The special value of choice consists in the extent to which it serves the end of self-realization; beyond this, it is but one important moral good amongst others. The primary domain of freedom, then, isn’t action but interaction: freedom is a language for describing the quality of one’s relationships, in terms of whether they promote or diminish one’s capacity for self-realization.
Thus far, I have drawn a line from an ontologically relational account of the self to a relational account of freedom. But to complete my reply to Kymlicka, the link between this relational account of freedom and the legitimacy conditions of political authority within kinship communities must now be drawn. Otherwise, it may be that centralization and coercion are necessary conditions not just for the citizenship account of political authority’s legitimacy, but for political authority generally. As a result, the kinship model of belonging that I have presented would fail the test of legitimate governance. As with several other steps of my argument in this blog post, deeper engagement is required. However, the sketch version of this final step goes as follows.
As earlier stated, within Anishinaabe governance in and on its own terms, there is no state, no institutions which hold centralized political and legal authority. Instead, authority remains decentralized: always in the people, who exercise it directly, in their personal capacity. The question of legitimacy, then, is not about holding a government accountable to subjects who have consented to its exercise of coercion over them. Against such political decentralization, consent is an incoherent principle. No one is vested with coercive power.
Rather, the question of legitimacy regards how individuals acting in their personal capacity are held accountable to one another for their use of the measure of power entrusted to each. That power is transformed into authority (i.e. is rendered legitimate) when one’s community members accept that his decision was made with adequate regard for all upon whom its consequences bear. And the test for this condition—which is trust, not consent—is whether the impacted community members are persuaded that their mutual self-realization (i.e. their freedom) has remained sufficiently within the decision-maker’s view throughout.
This kind of relational decision-making is a practise of personal self-governance. The personal register of self-governance is understood to satisfy the legitimacy condition—recognition of mutual self-realization—in the following way. Someone practices personal self-governance to the extent that she acts, and is seen to act, responsibly within her relationships. This is because, for an ontologically relational self, those relationships define the “person” enacting “personal” self-governance. Where she succeeds, her authority is, therefore, persuasive in character. Restated, the persuasive character of authority is legitimate because it exercises power in the appropriate, freedom-respecting way: with, not over, one’s community members. On this deep, or ontological, relationality model of legitimacy, it is the exercise of power-with which allows community members to see themselves reflected within the decision-maker’s decision, and on that basis, they are persuaded of its legitimacy, for it has exercised power rightly—as authority—even if they disagree substantively on the outcome.
To tie the argument off: these are the conditions which the conception of kinship that I have presented supplies. If the argument is sound, it follows that there is a world in which kinship, too, meets the demands of legitimate governance, and, within such a world, it seems difficult to say that citizenship could do so. Let this serve as a basis for other conversations.
As I have recognized in several moments, my central theoretical claims must be borne out descriptively, which is a future task. Yet I hope that these replies, provisional as they are, may nonetheless serve to open up room for comparative law scholars, political philosophers, and legal philosophers, to engage seriously with Indigenous law and governance understood in and on its own terms. It will benefit, and I think they will, too.
[1] Aaron Mills, First Nations’ Citizenship and Kinship Compared: Belonging’s Stake in Legality, 72:4 Am. J. Compar. L. 892 (2025).
[2] I explain in the article why I prefer James Tully’s term “internal colonialism” over the more common “settler colonialism”, but they are different naming conventions for the same thing. See id. at 900.
[3] 1A National Inquiry into Missing and Murdered Indigenous Women and Girls, Reclaiming power and place: final Report 250, 374, 409 (2019).
[4] See, e.g., Spurr v Tribal Council, No. 12-005APP (Supreme Court for the Nottawaseppi Huron Band of the Potawatomi Feb. 21, 2012), https://nhbp-nsn.gov/wp-content/uploads/2018/07/12-005APP-Opinion-of-SC-in-Spurr-v-TC-et-al1.pdf; Raphael v Grand Traverse Band of Ottawa and Chippewa Indians Election Board, No. 13-2189-CV-CV (Tribal Judiciary for the Grande Traverse Band of Ottawa and Chippewa Indians May. 21, 2014), https://turtletalk.blog/wp-content/uploads/2013/05/raphael-final-opinion.pdf; Cholewka v Grand Traverse Band of Ottawa and Chippewa Tribal Council, No. 2013-16-AP (Tribal Appellate Court for the Grand Traverse Band of Ottawa and Chippewa Indians Oct. 14, 2014), https://turtletalk.blog/wp-content/uploads/2013/05/cholewka-v-gtb-tribal-council.pdf; Rangel v Pokagon Band of Potawatomi Indians, No. 13-002-AP (Pokagon Band of Potawatomi Indians Court of Appeals Oct. 14, 2014), https://www.pokagonband-nsn.gov/wp-content/uploads/2022/09/13-002-ap-decision-1653.pdf
[5] Matthew LM. Fletcher, Rethinking Customary Law in Tribal Court Jurisprudence, 13 Mich. J. Race & L. 57 (2007).
[6] Clifford Geertz, Thick Description: Toward an Interpretive Theory of Culture, in The Interpretation of Cultures: Selected Essays 3 (1973).
[7] Aaron Mills, The Lifeworlds of Law: On Revitalizing Indigenous Legal Orders Today, 61 McGill L.J. 847 (2016).
[8] Scott J. Shapiro, Legality 7 (2011).
[9] Mills, supra note 1, at 902-903.
[10] Aaron James Mills, Miinigowiziwin: All That Has Been Given for Living Well Together: One Vision of Anishinaabe Constitutionalism 30-37 (July 22, 2019) (Ph.D. dissertation, University of Victoria) (on file with University of Victoria Libraries).
[11] Will Kymlicka, Liberalism, Community and Culture (1989); Will Kymlicka, Multicultural Citizenship: A Liberal Theory of Minority Rights (1996).
[12] Stan McKay, Calling Creation into Our Family, in Nation to Nation: Aboriginal Sovereignty and the Future of Canada 28, 29 (Diane Engelstad & John Bird eds., 1992).
[13] Darlene Johnston, Connecting People to Place: Great Lakes Aboriginal History in Cultural Context 24-25 (2004) (prepared for The Ipperwash Commission of Inquiry).