To remember this history is not for the sake of keeping alive the memories of old tyrannies, but to recognize present tyranny, for these patterns are in us still. It would be strange if they were not.

It is these patterns that I believe we should study, become conscious of, and recognize as they emerge in us and in the societies we live in.

—Doris Lessing[1]

A INTRODUCTION

As a young woman in Zimbabwe (the former Southern Rhodesia), Doris Lessing rejected the repressive and unjust white-dominated society of Africa and embraced communism as the only possible way to build a better world. She imagined this new world as being founded on certain unquestionable axioms of faith:

[W]hen the war was over and the world was restored to normality, [she said in her 1986 CBC Massey Lectures] everyone would recognize the blessings of communism, and the world would be Communist, and be without crime, race prejudice or sex prejudice. … We believed that everyone in the world would be living in harmony, love, plenty and peace. For ever.

This was insane. And yet we believed it.[2]

Lessing’s early idealism has an uncomfortably familiar ring to it because it sounds like some of the rhetoric about future aboriginal[3] self-government in Canada—that once self-government is established, all will be well. This mantra includes additional refrains about sovereignty, self-determination, a return to culture and tradition, spirituality, and the restoration of pre-contact balance and harmony.[4] In this future world, indigenous peoples will resume their former constant state of prayer and oneness with the Creator.[5] Men and women will once again fulfil their traditional, usually idealized, gendered roles according to their cultural mores.[6] Best of all, those aboriginal communities disjointed by colonization will once again become orderly, safe, and peaceful places in which to raise future generations.

Given this imagined future, there is no present need to address aboriginal women’s issues or oppression, because sexism and violence against women are simply the result of colonization, residential schools, and loss of culture.[7] If with the return of self-government, sexism and its attendant violence will effortlessly disappear, why worry about sex discrimination or gender at all? In fact, raising the spectre of sexism within aboriginal groups is often considered a betrayal of aboriginal people. To suggest that sexism and power imbalances are problems is to actually hinder the achievement of a self-determining and self-governing world. Worse, to worry about sexism in contemporary aboriginal societies is to have been foolishly duped by white women’s feminism, which is seen as another form of colonization.[8] According to many aboriginal men and women, to be a feminist aboriginal woman is to be less aboriginal—inauthentic, colonized, and corrupted. Sold out.

Within the aboriginal discourse, there are some arguments to the effect that aboriginal people have to survive first and deal with sexism later (if it still exists). Aboriginal scholar Andrea Smith asks, “Whose survival?” She argues that dealing with violence, sexual assault, and other forms of oppression is exactly about survival—of aboriginal women.[9] How can aboriginal people survive if aboriginal women do not survive? How can that be survival of aboriginal people? Andrea Smith, Joyce Green, and many other indigenous feminists ask whether there can ever be indigenous self-determination or self-government if the internal oppression of indigenous women is maintained under indigenous regimes.[10]

After all, if aboriginal women are oppressed, who is the self-determining self? Green and a growing number of other indigenous feminist scholars are developing theories that encompass decolonization and advancement of indigenous political goals nationally and internationally. According to Andrea Smith, “[j]ust because there might not have been sexism in some indigenous societies in 1492 does not mean that we do not have sexism in our societies now. Nor does it mean that we should not deal with the sexism that we now have in our societies”.[11]

Generally, the scholarship relating to aboriginal issues is divided by gender:

On one hand, aboriginal women’s issues are commonly framed as membership, marital property,[12] violence, family, health, culture, education, and poverty.[13] While these are important matters which have enormous impact on the lives (and deaths)[14] of aboriginal women across Canada and elsewhere, they are like intellectual black holes that capture the voices of aboriginal women and absorb much of their political energy.

On the other hand, from my perspective, aboriginal women’s issues extend far beyond the usual rubrics of “women’s matters”. There is a lack of academic literature that includes a either a gendered or a feminist analysis of the broader indigenous issues of self-determination, self-government, and aboriginal rights. And, while the existing literature certainly includes scholarly articles written by indigenous women, these too usually lack a deliberate gendered or feminist analysis.[15] Why is it so difficult to write and speak as an indigenous woman, explicitly from an indigenous woman’s experience, about the broader political issues of self-determination, indigenous legal orders and law, self-government, or aboriginal rights?[16]

In fact, social justice for aboriginal peoples will require a dual approach that encompasses both (1) a gendered or feminist analysis of the broader political issues and (2) the contextualization of “women’s issues” in a broader analytical political frame. In other words, at both a practical and a theoretical level, the work of each approach must inform the other. Without such a dual political strategy, the appalling disconnect between the political rhetoric and the lives of aboriginal women will persist.

This discussion raises two troubling questions relating to the agency of aboriginal men and women:

First, while sexism in aboriginal societies is often described as a legacy of colonialism, how are individual and collective agency factored in?[17] In other words, how does agency factor into the adoption and present-day continuance of sexist practices that are antithetical to the way many aboriginal peoples describe themselves?[18] While we must always situate agency within its larger political frame, how might we consider and learn from the critical interplay between agency, colonialism, and neo-colonialism?

The second question is related to the first and is about cognitive dissonance.[19] When describing the multiple oppressions experienced by aboriginal women, there seems to be a natural tendency to focus on aboriginal women being victims. The question is: How does one validate the oppression and suffering of aboriginal women while at the same time appreciating the agency of aboriginal women, as demonstrated by the many ways in which they survived and continue to survive? In fact, this question also applies to aboriginal people generally. In other words, if we focus on colonization, then do we dishonour all the ways that aboriginal peoples have survived—lifetimes of decisions and actions that represent agency? This is not about acts of resistance alone, but includes everyday living—the relentless demands of getting up each day, supporting families, building communities, and working.

There are two main parts to this paper:

First, I will provide a short discussion about the importance of gendered and feminist analysis in indigenous discourse, and how this applies to aboriginal rights jurisprudence and indigenous legal orders. I distinguish between legal systems and legal orders[20] as a constant reminder of the different forms and approaches to law, and to be mindful of how indigenous legal traditions are interpreted by western legal constructs. Of course, it is preferable to use aboriginal peoples’ own language when referring to law and legal concepts. For example, the Gitksan people’s word for law is ayook, which has been translated into English as law, custom, or precedent. In Western Australia, the Mardudjara have the word julubidi, which anthropologist Robert Tonkinson has described as “a body of jural rules and moral evaluations of customary and socially sanctioned behaviour patterns”.[21]

Second, I will describe a small community case study that explores at a local level some of the experiences and issues of power and authenticity, membership, citizenship, and identity.

B GENDER ANALYSIS

Native societies and the males in them have continued their attempts to restrict [Native] women. Phrased differently, Indian males are chauvinistic! They are the first to admit this fact. However, they justify their stance by saying that certain behavior and proofs of self-sufficiency in an Indian female is “Not the Indian way!” Whatever that may mean! This flies in the face of fact, of reality … [so a scholarly] examination of sex roles is imperative.[22]

1 What is a Gendered Analysis?

Status of Women Canada defines gender as

the culturally specific set of characteristics that identifies the social behaviour of women and men and the relationship between them. Gender, therefore, refers not simply to women or men, but to the relationship between them, and the way it is socially constructed. Because it is a relational term, gender must include women and men. Like the concepts of class, race and ethnicity, gender is an analytical tool for understanding social processes.[23]

While there are different approaches to gender analysis,[24] it can basically be described as a “systematic examination of the particular roles of women and men within their economic, political, social and cultural context”.[25] Specifically, gender analysis is a tool for understanding the impacts of social (including legal) processes. Such an analysis would include a critical and comparative examination of the potentially differential effects of law and policies “on women or men [that] can often be masked or obscured”.[26] In contrast, a deliberately feminist gender analysis would focus on “the causes of the major differences in women’s and men’s lives relative to the quality of life, work hours, health and literacy levels, economic, political and social standing, decision-making, access to resources and other equality measures”.[27]

Gender is multidimensional, involving “economic processes, authority, violence, discourses and ideologies, sexuality and emotional connections”.[28] Raewyn Connell has developed what, for the purposes of this paper, is a very useful model for systematic research and comparison of gendered relationships and transactions:

  • gender division of labour, i.e., the way in which production and consumption are arranged on gender lines, including the gendering of occupations, the division between paid work and domestic labour, etc.
  • gender relations of power, i.e., the way in which control, authority, and force are exercised on gender lines, including organisational hierarchy, legal power, collective and individual violence;
  • emotion and human relations, i.e., the way attachment and antagonism among people and groups are organized along gender lines, including feelings of solidarity, prejudice and disdain, sexual attraction and repulsion, etc.
  • gender culture and symbolism, i.e., the way gender identities are defined in culture, the language and symbols of gender difference, the prevailing beliefs and attitudes about gender.[29]

However, in the end, gendered analysis is “open-ended, malleable and subject to continual political pressures”.[30] That is, these are not static frameworks, but rather can more aptly be described as “fields of contestation in a continuing quest for gender justice” or “unfinished business”.[31]

2 Why a Gendered Analysis?

To consider this question, it is necessary to step back and consider the larger aboriginal political project. This project is about imagining and building a future in which aboriginal peoples define themselves and relate to the world according to their overall legal, social, economic, and political systems. Within this political project, aboriginal peoples will continually contest legal and social norms—as peoples in all societies always have done, and will do, through time.[32] If the society is healthy, it will be able to withstand the ongoing process of change that derives from large groups of people engaging in the messy business of managing themselves—complete with conflicts and the exercise of both individual and collective agency.[33]

While decolonization is imperative, it does not have to define the whole of aboriginal peoples’ political and legal consciousness.[34] To be effective, the aboriginal political project must go beyond the struggle against colonization and an unquestioning adoption of the problematic ideologies contained in the language of aboriginal rights, sovereignty, self-government, autonomy, and self-determination.[35] Such a political project is about aboriginal people discovering, imagining, and defining themselves beyond the confines of colonization, and beyond their resistance to oppression.

As with many other societies, the dynamics of internal oppression and power imbalances are part of aboriginal peoples’ experiences. Despite the rhetoric, sexism and other oppressions such as homophobia and ageism, are realities in many aboriginal communities. Many aboriginal communities are not safe places for children and other vulnerable individuals.[36] In Canada, aboriginal women’s efforts to challenge these oppressions are often taken to the courts or other advocacy forums.[37] Cases such as Canada v. Lavell (membership/human rights),[38]Lovelace v. Canada (membership/human rights),[39]Derrickson v. Derrickson (marital property),[40]Paul v. Paul (marital property),[41] and Native Women’s Association of Canada v. Canada (funding and recognition for equal political representation),[42]Sawridge Band v. Northern Affairs CanadaCanada (membership/self-government),[43] and McIvor v. The Registrar, Indian and Northern Affairs Canada (Charter challenge to membership)[44]reveal much about the gendered nature of some of the internal struggles within aboriginal groups.[45] I will return to several of the key aspects raised by these cases later.

3 What Is a Feminist Standpoint Analysis?

Standpoint analysis is a useful tool for beginning a gendered analysis. Developed by Dorothy Smith, standpoint analysis starts with centring inquiries directly in the lives of actual women, and extends from there to examining the forces that shape their experiences and consciousness.[46] Smith’s basic thesis is that we all come fromsomewhere—politically, economically, and culturally—and we need to pay attention to how this plays out in our work. Adele Mueller explains:

[I]t is a powerful methodological tool with which to investigate the extended relations of gender, race, and class as they converge in ways which women experience as local and specific. The standpoint of women breaks through the formidable discursive barrier which separates the practices of sociology from the everyday world in which people make, and make sense of, their lives. This use of “standpoint of women” as a methodological tool is distinguished from its more common treatment as an abstracted epistemological point which is taken as the basis for a restrictive focus on women or conflated with a feminist perspective.[47]

There is much debate about Smith’s use of feminist standpoint theory.[48] For example, some have argued that it is pre-occupied with subject position and power, while others have claimed that it privileges the oppressed and that it is ethnocentric. However, Smith currently advances a “woman’s standpoint” that is synthesised from many standpoints so that no one experience is taken as truth.[49] For the purposes of this paper, feminist standpoint theory, as redefined by Smith, is an effective way to begin the discussion about aboriginal women’s experiences.

What might standpoint analysis look like applied to the lives of aboriginal women and the laws surrounding them? It would begin by ensuring that aboriginal women’s actual experiences are the pivot for figuring out the power dynamics in their lives: What are the political, legal, economic, and social forces that are a part of their worlds? What are their particular interests and specific perspectives? Given that aboriginal women share the political and cultural diversity of all aboriginal peoples in Canada, care has to be taken to be as geographically and culturally specific as possible.

In reality, aboriginal women’s experiences will cut across many standpoints. Standpoint analysis must start with the perspectives of many aboriginal women and from this multiplicity of experiences extrapolate a broader analysis. Such an approach would help to eliminate meaningless political posturing that is founded on idealized fantasies about aboriginal women instead of on their lived experiences.

4 Gendered Analysis and Aboriginal Rights Jurisprudence

In aboriginal rights jurisprudence, it appears that indigenous women have been erased off both the land and the legal landscape.[50] This is not to suggest that aboriginal rights litigation has not included aboriginal women. Dorothy Van der Peet, for instance, was the plaintiff in the seminal aboriginal rights case R. v.Van der Peet.[51] However, while she claimed an aboriginal right to sell fish, fishing is still mainly characterized as primarily a male activity across many aboriginal societies.[52] A reliance on the jurisprudence alone might excuse one for concluding that women did not have an important or active presence on the land. The literature and images[53] of aboriginal peoples focus almost entirely on males and their activities—hunting, fishing, and trapping. In this recent mythology, women’s role is restricted to dealing with what the men bring home from the hunt.[54]