Renisa Mawani

Genealogies of the Land: Aboriginality, Law, and Territory in Vancouver’s Stanley Park

Between 1998 and 2003, Canadian courts were confronted with two cases that have held significant legal and political consequences for Aboriginal peoples. The cases, R v Gladue (1999) and R v Powley (2003) raised pressing questions about Aboriginal identities and the rights and material resources that follow from legal recognition. In one form or another, these cases have generated important legal, political, and theoretical questions that require some exploration: How has ‘Aboriginality’ been legally constituted within Canadian jurisprudence? In what ways have these racial-legal definitions changed temporally and geographically? And finally, and most importantly, who can legitimately make claims to Aboriginal identities and to the legal rights and material resources that accompany the law’s recognition of difference? In this article, I historically contextualize these contemporary debates around the juridical construction of Aboriginal identities in Canadian jurisprudence. My substantive focus is two trials that took place between 1923 and 1925 and which centered on competing territorial claims to Stanley Park, an urban park in Vancouver, British Columbia. The cases involved eight mixed-race families of Aboriginal and European ancestry who had lived on the land in question for three generations, and whose ancestors had been there since time immemorial. A central question that emerged throughout the juridical and extra-juridical discourse is if these people were ‘Indians’ (or ‘squatters’) and whether they could make territorial claims through Native title. Through these cases I suggest that the current controversies over Aboriginality evident in Gladue and Powley are deeply rooted in colonial legal processes and practices that require some historical analysis. Ultimately, historically grounded questions about the law’s constitution of Indigenous identities may provide us with important insights into the many facets of colonialism and its residual legacies.

Legalities of Nature: Law, Empire, and Wilderness Landscapes in Canada

In this article, I trace the tangled relationships between law, nature, and empire as they figure in Canadian national geographies, imagined and real. While the nature-culture dichotomy has long been contested by cultural geographers, anthropologists, and historians, to date, socio-legal scholars and legal theorists have spent less time problematizing the law-nature distinction. With the exception of natural law, law and nature are commonly perceived to be opposing and ontologically distinct. In this article, I argue that law, nature, and empire have overlapping genealogies that demand critical attention. Law and nature, I contend, are ontologically related categories that shape the Canadian nation by working in and through each other. While both are prominent symbols in the national imaginary, real spaces of nature—wilderness landscapes, including parks—are also legal constructs that normalize nature as laws constitutive exterior and as the nations myth of (empty) origins.

The Travels of Law: Indian Ocean Itineraries

I believe that no country ever stood so much in need of a code of laws as India; and I believe also that there never was a country in which the want might so easily be supplied. I said that there were many points of analogy between the state of that country after the fall of the Mogul power, and the state of Europe after the fall of the Roman empire. In one respect the analogy is very striking. As there were in Europe then, so there are in India now, several systems of law widely differing from each other, but coexisting and coequal. The indigenous population has its own laws. Each of the successive races of conquerors has brought with it its own peculiar jurisprudence: the Mussulman his Koran and the innumerable commentators on the Koran; the Englishman his Statute Book and his Term Reports. As there were established in Italy, at one and the same time, the Roman Law, the Lombard law, the Ripuarian law, the Bavarian law, and the Salic law, so we have now in our Eastern empire Hindoo law, Mahometan law, Parsee law, English law, perpetually mingling with each other and

‘Half-breeds,’ racial opacity, and geographies of crime: law’s search for the ‘original’ Indian

Discussions of hybridity have proliferated in cultural geography and in social and cultural theory. What has often been missing from these accounts are the ways in which mixed-race identities have been forged, contested, and embodied spatially. Inspired by recent calls in cultural geography to rematerialize race and drawing from the growing literature on law and geography, this article examines the material dimensions of hybridity, how it was legally produced, gained traction, and slipped in the quotidian spaces of everyday encounters. Focused on late-19th and early-20th-century British Columbia (Canada), I trace the emergence of the ‘half-breed’ as a new racial personage and juridical taxonomy that unsettled racial hierarchies and spatial distinctions between aboriginal and white settler populations. Unlike other colonial contexts, mixed-race peoples on Canada’s west coast did not threaten European superiority alone but were believed to endanger the protection and assimilation of aboriginal peoples. Proximities between ‘half-breeds’ and ‘Indians’ were politically charged for two reasons. First, racial differentiations between these populations were often imperceptible, and second, their putative distinctions were closely bound up with concerns over territory and with aboriginal well-being. The racial opacity of mixed-race peoples created some sites of mobility for those in-between. However, their unknowability shored up the uncertainties of colonial knowledge production and the limits of existing racial repertoires, creating persistent demands for new markers of racial otherness in the process. Crime and immorality became potent signifiers of racial inferiority aimed at differentiating half-breeds from Indians and providing authorities with additional optics through which to problematize and govern their affective and geographical encounters.

Racial Violence and the Cosmopolitan City

In this paper I argue that cosmopolitanisms, as visions of living with difference, and race and racisms, as political regimes of subjection and subjectification, are mutually constitutive. Although scholars have made similar claims regarding earlier versions of cosmopolitanisms, developed largely from the work of Immanuel Kant, recent proponents have conceptualized their renewed formulations, detached from Eurocentric histories and newly expanded to include the migrant, refugee, and subaltern, as promissory visions of conviviality and often as an antidote to racisms. Despite efforts to expand cosmopolitanisms to include racial subjects previously excluded, these visions may be productive of new, renewed, and changing forms of racial subjection. Specifically, I argue that racisms are an immanent and organizing logic manifest in the production of racial heterogeneities and differentiations upon which cosmopolitical visions depend and also generative of the cosmopolitan outlook these encounters are thought to require. To situate and develop these claims, I open with a 1907 sketch published in the Illustrated London News which depicts Vancouver, Canada both as “the most cosmopolitan city in the world” (Begg, 1907, page 476) and as a site of anti-Asian violence. Approaching this image both as a historical example and as an opening for critical inquiry, I untangle the constitutive relations between racisms and cosmopolitanisms through the labor demands of global capitalism and in the cultivated indifference that is frequently identified as the hallmark of a cosmopolitan disposition. While the conjoined forces of colonialism and capitalism effectuated the historico-material basis of ethnoracial difference, what some have termed an ‘ordinary cosmopolitanism’, these conditions did not lead to conviviality alone. Rather, in racially charged colonial Vancouver, the indifference that Europeans putatively expressed in their encounters with migrants from China, Japan, and later India, commonly erupted into racial enmity and violence. What might this historical example afford to contemporary discussions regarding the present and future of the new cosmopolitanisms?

Screening out Diseased Bodies: Immigration, Mandatory HIV Testing, and the Making of a Healthy Canada

From the late nineteenth century onwards, health has been a technology of governance constitutive of national borders and racial boundaries. As many scholars have documented in various geographical contexts, nineteenth and twentieth-century public health policies have been intricately linked to racialized nation-formation in several ways. Whereas disease and ill-health were often the racial mark of the ‘colonized’ and ‘uncivilized’, the racialized concept of (European) citizenship was historically imagined through ideas around health and vitality.1 Today, as we move into the twenty-first century, public health remains an imperative of nation-formation. If contagion was historically seen as ‘the dark side of the civilizing mission’ as Michael Hardt and Antonio Negri claim, in the twenty-first century contagion remains a constant and present danger, but is now the dark side of globalization.2 Global flows of knowledge, capital, migrant labor, and travel — and the rapid speed at which these now occur — have opened up even greater possibilities for the transmission of germs and disease. ‘If we break down global boundaries and open up universal contact in our global village’, ask Hardt and Negri ‘how will we prevent the spread of disease and corruption?’3

Patterns of Empire and the Politics of Comparison

Mawani’s essay reads Julian Go’s Patterns of Empire through the politics of comparison and through a shared intellectual commitment to a postcolonial sociology. Patterns of Empire is an ambitious and challenging book that places sociology at the heart of Anglo- imperial history. Whereas Go makes important contributions to critiques of exceptionalism, his analytic approach reveals the limits of comparative historical sociology. Mawani asks to what extent sociology offers the requisite conceptual and methodological tools to study empires past and present or whether sociology itself needs to be provincialized.