Although Aboriginal peoples are grouped by Kymlicka under the title of national minorities, much of Kymlicka’s discussion on national minorities is oriented towards the case of “substate nations”, those groups which held competing national identities to the majority (dominant) power, such as the Quebecois or Belgian Vlaams. While in some cases Kymlicka groups Aboriginal peoples along with substate nations under the banner of national minorities (Kymlicka & Norman, 2000, p. 18), primarily he considers them separately. Kymlicka’s multicultural citizenship is not even primarily about “national minorities” but specifically about substate or stateless nations. Regarding Aboriginal peoples, he states that often it is held inappropriate to consider them as “national minorities” because indigenous peoples have not traditionally understood themselves as “nations” or engaged in the project of “nation-building” (Kymlicka, 2006c). Grouped together with such modern national entities, the unique and very different needs and voices of indigenous peoples are overlooked by Kymlicka’s theory.
While Kymlicka does not describe in detail what will work for indigenous peoples, he does say however what will not work. In Kymlicka’s opinion, federalism – unlike for other national groups wishing autonomy (like the Quebecois) – does not offer an appropriate solution for Aboriginal peoples (Kymlicka, 1995, p. 30). As Merle says, the status Kymlicka advocates for Aboriginal groups “resembles more closely an enclave on the margins of and not within liberal society. This status is not even commensurate with a federal state which at least really does possess political authority and the responsibilities that go along with it” (1998, p. 269). After all, federalism in Kymlicka’s view can only function well if the group in question forms a large territorially concentrated majority on one section of the country, as the Quebecois do in Quebec (or, as his own description of national minorities tends to be described as). The Aboriginal peoples however are not territorially concentrated but are spread throughout the entire land of the Americas. Redrawing boundaries (in typical nationalist fashion) would never be able to create a “majority” of Aboriginals. Thus, in Canada, the federal system has not been used with respect to the Aboriginal population and instead a system has been established whereby powers have been devolved to Aboriginal reservations. Kymlicka describes this process as an incredibly difficult one, “the administrative difficulties are daunting. Indian tribes/bands differ enormously in the sorts of powers they desire” (1995, p. 30). Since such a system is encumbered by many difficulties, self-government is possible, deems Kymlicka, only for territorially concentrated majorities.
Indeed, in many respects, although he groups them under this category, aboriginal populations do not meet Kymlicka’s criteria for being considered national minorities. These qualifications include:
1. Territorial concentration,
2. Similar language, and
3. Modern (national) cultural institutions for disseminating that national culture.
With respect to the first point, Kymlicka himself states that the majority of indigenous peoples as non-territorially concentrated. With respect to the second point, usually indigenous peoples – not subject to the culturally unifying systems of “modern” nation-building – have high cultural diversity, including many various languages and thus do not meet his second criteria for self-government which is of being monolingual. Among Canada’s First Nations and Inuit peoples alone there are 54 languages spoken (Minority Rights Group International, 2011). In other regions, this multiplication amongst indigenous peoples is even more; in India, there are 18 major languages spoken and over 1600 regional dialects. Thirdly, national minorities as described by Kymlicka are those which already had a “system” in place that disseminated their culture through institutional settings and media. The system that Kymlicka describes is one clearly based on western nation-building models and is much less matching with the traditional non-national systems by which aboriginals lead their lives. Due to these above-mentioned discrepancies in categorization and description of indigenous peoples by Kymlicka, his theory may inadvertently work against indigenous rights.
As Toyota says, “the assumption that sharing a distinctive common language, social structure, and cultural patterns can be a basis for separating an ‘indigenous minority’ from the majority is fundamentally flawed” (Toyota, 2005, p. 134). In the case of the hill tribes in Thailand, “recognition” was not granted in a benevolent light but was done to assert dominance through emphasizing the “ethnic Thais” place as the centrepiece of the nation, and to “justify paternalism and state control of the upland population and to provide grounds for discriminating against them and denying them full Thai citizenship” (Toyota, 2005, p. 135). Further, classifying “traditional” homelands for indigenous peoples is often a complicated task as well, says Toyota, at least in the case of the Upland peoples who are migratory. Instead of minority group rights in the form which Kymlicka proposes, Toyota suggests that alternatively new models of integrating majority and minority populations should be examined, giving the minority a degree of control over the terms and the pace of integration (2005, p. 135).
Western Nationalist Language Limits Claims to Sovereignty
The failure of Kymlicka’s theory to adequately address the unique needs of Aboriginal communities is reflective of a much wider trend in western scholarship, marked by an impaired inability to think in new creative ways about sovereignty and belonging, a continuing misrecognition on the part of many scholars of other forms of self-rule apart from the national model, which aboriginal forms of sovereignty clearly fall under. While it is true that a national solution is perhaps what “European” minority nations that have already integrated the model of nation-building ideologies are seeking, it would not solve the problems of the aboriginal peoples to emulate the political systems of their foreign occupiers and colonizers (that of nationalism and modern ‘national’ political institutions).
Melissa S. Williams alludes to this fact in her article “Group Inequality and the Public Culture of Justice”, in which she criticizes Kymlicka for grounding justice on a “substantive normative foundation”. She on the other hand, prefers to ground justice in the constant practice of political participation, allowing minorities to “exercise moral agency” (Williams, 1994, pp. 35-7). She further suggests that there is an inherent paradox involved in using a “liberal conception of justice” to govern group relations with minorities who fall outside the western liberal tradition.
Indeed, requiring indigenous peoples to define themselves in the very western national terms outlined above (concentrated, uniform, monolingual, “national”), could be viewed as a violence in itself, a form of imposing colonization by other means, by making the oppressed define themselves in the language of the oppressor in order to secure their basic rights. Indeed, Bannerji argues that the terms of integration of ethnic groups in western societies is bound up in colonialist language which considers them as ‘other’, through juxtaposing ‘them’ against the dominant culture in the false binaries of “tradition vs. modernity” or “civilization vs. savagery” (Bannerji, 2003, p. 36). As such, Kymlicka is unable to overcome the system of internal colonization and perhaps even reinforces it, failing to provide a just dialogue between two equal parties, indigenous and non-indigenous groups (Ivison, Patton, & Sanders, 2000, p. 8).
Yet, Kymlicka uses exceedingly soft language when describing the terms of “incorporation” of “national minorities” into the dominant state. To say that national minorities were “forcibly, or through treaties incorporated” into the majority “outsider” nation is indeed a very polite way of describing the way that substate minorities such as the French were deprived their rights under the system of English Canadian rule. It is a far, far more gentle depiction of the cruelty and near annihilation that the aboriginal communities of the Americas faced under British, French, American and Spanish rule. Certainly, the national model, when it is not exclusionary, is implicitly colonizing.
Kymlicka himself says, nation-building is very much tied to modernity and it is a very western-modernity indeed. The diffusion of ideas and common culture – the nation building practices which Kymlicka wishes to model on a smaller scale in the minority nation, may also be viewed as a form of inward colonization despite Kymlicka’s efforts to avoid precisely this. Kymlicka’s dialogue about culture, though it tries to escape this fate, becomes wound up in the essentialist and even colonialist terms of nationalism/modernity, instead of grasping more recent anthropological developments in post-modern understanding of culture.
By becoming trapped in the language and way of thinking of modern nationalism, Kymlicka’s theory ultimately fails to overcome it and to provide solutions for those peoples whose traditional ways of life are threatened by the encroachment of such homogenizing systems. Kymlicka’s discourses on national minority sovereignty offers little by way of meeting the true diversity of aboriginal communities. It is precisely the uniform law-making and institution-building typical of western European models of nation-building that threatens to destroy the multiple and layered cultural fabric that forms indigenous society in North America and in other places worldwide.
Indigenous rights must move beyond western nationalist and statist concepts to fulfil the needs of their populations. Native sovereignty does not require the very western, nation-based requisites that Kymlicka places on his “societal cultures” such as being “territorially concentrated”, having an “official language” or a “standardized public education”. There need not be a common culture to be diffused between aboriginal bands (as they are referred to by the Canadian government, or tribes as they are referred to by the American government). An important further point tied to Kymlicka’s theory, is that through draping his “cultural arguments” in the western language of “liberalism” and the need for culture to protect choices, his theory may counter aboriginal claims for independence or recognition should their traditional cultures not be in keeping with liberal norms, such as strict equality between the sexes (see Forst, 1997, p. 67 for a discussion on the implications of Kymlicka’s tying autonomy to his justification for group rights).
As Gerald Taiaiake Alfred argues, the concept of sovereignty, though adopted by Aboriginal leaders, is not only foreign but also incompatible with “traditional indigenous notions of power” (2006, p. 322). He forcefully argues that,
Sovereignty is an exclusionary concept rooted in an adversarial and coercive Western notion of power. Indigenous peoples can never match the awesome coercive force of that state; so long as sovereignty remains the goal of indigenous politics, therefore, Native communities will occupy a dependent and reactionary position relative to the state. Acceptance of “Aboriginal rights” in the context of state sovereignty represents the culmination of white society’s efforts to assimilate indigenous peoples (Alfred, 2006, p. 325).
Elsewhere, Alfred argues that the language of “citizenship” as well, has done nothing but to hinder the Aboriginal communities, and “over the years…undermine in people’s mind the idea that we have a separate existence and distinctive collective rights” (Alfred, 2000 cited in Williams, 2005 p. 29).
Taiaiake Alfred argues in favour of the language of “aboriginal nationhood” as a way of shifting the emphasis onto protecting native communities, however, as Dale A. Turner, a scholar of government and Native American studies notes, “in the context of Western European political philosophy this merely shifts the normative discussion from one discourse to another – from sovereignty to nationalism or nationhood” (Turner, 2004b, p. 64). This leads Turner to point out the complication that indigenous peoples are, in a sense, always obligated to speak in the tongue of their oppressors. Indeed, she urges other Aboriginal scholars to learn the discourses of the dominant state and become what she terms, “word warriors” (2006, p. 92). They must do this, she urges, while still remaining true to their own philosophies and teachings.
Award winning scholar of identity politics Melissa S. Williams offers an explanation for why there remains “unresolved tensions” between self-representation and sovereignty for Aboriginal peoples in Canada. Firstly, citizenship is understood as “grounded in a shared national or civic identity”. Hence, it is not possible to be both “a citizen of a First Nation and a citizen of the ‘Canadian nation’” (Williams, 2005, p. 37). Many aboriginal thinkers, says Williams, see this as another form of the dominant Canadian identity being used to trump their own.
I have argued elsewhere that the conception of citizenship-as-shared identity is inescapably tied to the history of nationalism and nation-building characteristic of the modern nation-state that emerged in the 19th century (Williams, 2002). That history is rife with examples of the ways in which the project of nation-building developed at the expense of cultural, ethnic, and religious minorities…I think that Aboriginal critics of the goal of shared citizenship are right to be wary of the concept insofar as it is offered in the language of identity (Williams, 2005, p. 40).
Williams is sceptical about “shared citizenship” grounded in such a nationalist framework, however she does not want to dismiss the idea of shared citizenship altogether; instead she wants to express it in terms that are unconfined by modern nationalism, in her view, a suitable alternative would be a conception of “citizenship-as-shared-fate” which views identity, contrary to bounded nationalist notions, as an interconnected web of relations (Williams, 2005, p. 40).
Kymlicka himself admits that his nation-building strategies do not necessarily meet the needs of indigenous peoples. Indeed, as Audra Simpson has argued, the “very notion of an indigenous nationhood, which demarcates identity and seizes tradition in ways that may be antagonistic to the encompassing frame of the state, may be simply unintelligible to the western and/or imperial ear” (Simpson, 2000). Indeed, the word “nation” in the concepts “indigenous nation” and in Kymlicka’s (western) term “minority nation” should not be taken automatically as synonymous. Unlike sub-state nations, indigenous peoples do not identify themselves in a similar way to the western nation-state model, or if they do, they do so to gain legitimacy in the eyes of the world, for as long as sovereignty remains tied to nation this is their only recourse to land rights and to independence from the state.
Despite Kymlicka’s emphasis on national rights for national minorities, he acknowledges that the same rights that he endorses for the substate nations like the Quebecois (which are basically nation-building strategies that replicate the economic, political and social institutions of the majority nation, but advocating instead the unique language and cultural preferences of the national minority) do not necessarily meet the needs of aboriginal communities. In fact, Kymlicka admits that
Indigenous peoples usually seek something different: the ability to maintain certain traditional ways of life and beliefs while nevertheless participating on their own terms in the modern world. In addition to the autonomy needed to work out that sort of project, indigenous peoples also typically require of the larger society long-overdue expressions of respect and recognition (Kymlicka & Norman, 2000, p. 20).
Indigenous communities seek different forms of respect and recognition that will allow them to participate in their own way and “on their own terms”, as Kymlicka says, not to be forced into someone else’s mould. And yet, Kymlicka openly admits elsewhere that “all forms of nationalism involve reshaping and modernizing traditional cultures” (2001c, p. 261).
If it is true that indigenous peoples do not require the sort of national minority rights which Kymlicka’s theory describes but merely overdue respect and recognition, then it would seem that his theory is a very limited one, not only ignoring the multiplicity and diversity of societies but also ignoring the needs of indigenous persons. This reveals that Kymlicka’s theory is in fact limited to a very specific group of self-perceived national minorities, created under a specific system of modern international law.
Turner also says that Kymlicka fails to take adequate account of aboriginal perspectives into demands for sovereignty. True sovereignty for Canada’s aboriginal peoples, says Turner, can only be achieved when the Canadian government takes full account of native perspectives on what sovereignty is. As long as what Turner calls “Kymlicka’s constraint” is in place (i.e. that aboriginals are subject to the courts of primarily non-indigenous lawmakers and judges), then Aboriginals will not have full control over their own affairs. This “constraint” as Turner describes it, is the result of a system which Kymlicka’s theory tries to promote, a “middle way” apart from separation whereby the national minority is not granted full sovereignty under the national system but is instead incorporated under its wider umbrella. This is a middle way because Kymlicka seeks to stop the overarching national government (in his primary example, the Canadian government) from unjustly encroaching on aboriginal culture by protecting the national minority with “external cultural restrictions”. Thus, the minority group is not fully independent from the majority, however it has a limited protection against its influence by having a degree of independence from it and the ability to restrict decisions that would negatively impact or alter the cultural distinctiveness of the minority group. Turner argues against Kymlicka however that as long as aboriginals are still subjected to the systems of their oppressors or the national matrix of the western lawmakers, they will be incapable of being judged on their own terms and hence unable to effectively block their influence – what Kymlicka himself would term outside imposition onto the group. In effect, Turner is saying that Kymlicka’s theory is an unrealistic one because as long as there is a higher authority or involvement in some form of outside court with respect to the sovereignty of the “inner group” of national minorities, then their sovereignty will remain constrained. As Turner says, there is a “lack of looking squarely at terms of incorporation of aboriginals” (Turner, 2000).
Kymlicka wants to call aboriginals “national minorities”. Turner’s challenge to Kymlicka is to ask: minorities in what sense? As Turner says, many aboriginal communities say they are still self-governing and not part of any Canadian state. National minority implies that these groups are incorporated into the greater national system, which is precisely against the wishes of many indigenous peoples. Indeed, the very term, “minority” is an indication of status. As much as Kymlicka declares that national minority status gives them privileges of self-government, as Turner points out this self-governance is incomplete, as aboriginals still have to fall under the control and the subsequent monitoring of the main (majority) state. Kymlicka’s theory then, instead of providing sovereignty to aboriginals and allowing them independence from the national system, could alternatively be viewed as a placebo for softening the terms of their incorporation.
Turner acknowledges that Kymlicka’s theory has been sensitive to the claims of indigenous peoples in a way that many other scholars have not, however she finds fault in his use of the term “incorporation” and its impact on weakening the position of Aboriginal sovereignty. She argues that
Kymlicka’s liberalism does not require the participation of Aboriginal peoples in order to determine the content of their ‘special’ rights. This is because Aboriginal rights are justified within a theory of distributive justice that does not fully recognize the legitimacy of aboriginal sovereignty (Turner, 2006, pp. 69-70).
Yet, as Turner says, many indigenous peoples do not see themselves as Canadian citizens at all, and insist that they are “still self-governing nations and that they have not in fact relinquished or ceded all of their powers to the state” (Turner, 2006, p. 66). Turner finds hope that Kymlicka’s theory can be reformulated in a way that would bring indigenous voices into what has typically been a discourse led by non-indigenous peoples. She says that his theory has the potential to “be interpreted in a way that at least makes room for Aboriginal peoples to speak for themselves” but she reminds us that while “this is an important first step for liberalism…it is only a first step” (Turner, 2006, p. 69).
Cultural Distinctiveness Conflated with Sovereignty Claims
“Kymlicka’s constraint” pertains to cultural choices only. When Kymlicka argues for protection against external encroachment, he argues this on the basis of protecting a distinct cultural society. By arguing in this vein, Kymlicka conflates the right to self-determination with the need for cultural distinctiveness and sacrifices the former to the latter. If a preservation of distinctive culture is not in question, then tying rights to culture can in effect deny rights to sovereignty. National groups seeking their rights want the ability to determine their own future without intervention or approval from another “majority” state or nation.
Moreover, arguing for semi-independence on the basis of culture alone may work against the fight for self-determination for some groups. There are other reasons why the conjoining of culture and self-determination is problematic. As Murphy says,
Culturalism assumes that a normative defence of the right to self-determination stands or falls on the question of its instrumental importance to the preservation of a nation’s distinctive culture (Murphy, 2001, p. 373).
In other words, the instrumental importance of culture in Kymlicka’s theory is misplaced. Instead, authors like Murphy contend that what groups are seeking is a demand for democracy and rights, not for culture.
Rainer Baubock points to the weakness of the cultural argument in Kymlicka’s oft-repeated example of the Quiet Revolution in Quebec, which diminished the importance of culture and witnessed a growing cultural similarity between English Canadians and the Quebecois. Kymlicka himself acknowledges the paradox the Quiet Revolution holds for the “Quebec-Canada relationship” (Kymlicka, 2006a, p. 356). Quebeckers, says Kymlicka, became “more and more preoccupied with maintaining and enhancing their provincial jurisdiction” as they became more culturally similar to the rest of Canada (2006a, p. 356). He admits even that “public opinion polls have repeatedly shown that there are no statistically significant differences between Quebecers and other Canadians in basic political values” (2006a, p. 356). But is this is so, then why are minority rights for Quebecers justified? What is the political imbalance we are redressing?
Indeed, Baubock shows that the Quiet Revolution paradox counters Kymlicka’s cultural argument. “Rather than self-government being a means to preserve cultural difference, this difference is more often preserved as a means to justify the claim to self-government”, says Baubock (2000, p. 384). Citing examples from Protestant Unionists in Northern Ireland to Catalans in Spain, Baubock points out that a purely cultural argument completely misses the point. Conflict, in these cases, is not rooted in language or a fear for religious freedom, but in the persistence of conflict and boundaries between divided communities over generations. Ascriptive markers like language or religion are traced to “the historic origins of the conflict…it would be wrong to interpret nationalism as being mainly about preserving a substantial cultural difference rather than a separate polity,” he says (2000, p. 385). Murphy also points out how the cultural argument similarly fails with respect to Israeli nationalism: the Jews are culturally very diverse says Murphy, their quest for national independence was more a question of self-preservation than cultural preservation. This emphasis on sovereignty rights over and against cultural rights additionally appears in the writings of Jeff Spinner, McGarry and O’Leary, Margaret Moore and Brian Barry (as cited in Murphy, 2001). Barry for example states that nationalist movements are only minimally related to cultural demands and instead are very strongly associated with the demand for redistribution of other more fundamental goods, “such as power, money, land and resources.” (as cited in Murphy, 2001). Thus, by attaching culturalism to the very real and legitimate drive for self-determination, Kymlicka involuntarily puts sovereignty rights under question.
By defining nations or the drawing of borders in cultural terms, Kymlicka leads his definition very close to a cultural nationalism and away from the “liberal nationalism” he claims to advocate. According to Kymlicka, borders go around “societal cultures” or nations. By conflating his arguments for cultural recognition and national self-determination Kymlicka leads his theory into potentially dangerous conceptual confusion. Baubock argues that the language of self-government is simply not how minorities make their appeals. Baubock attributes, more pragmatically than Kymlicka, that the desire for autonomy expressed by minorities is not a need for “the spectacles…[to] identify [their] experiences as valuable” but rather emerge from historic struggles for power over the “boundaries of the polity” (Bauböck, 2000, pp. 384-5). In effect, Baubock is saying that although Kymlicka is defending rights for minority nations on the basis of culture, the issue at hand really has nothing to do with culture. Instead, the issue has more to do with the history of conflict, the struggle for power, and injustices expressly done towards historic communities, particularly in the case of indigenous communities.
While Kymlicka rightly makes the distinction between “immigrants” and “national minorities” as those who respectively want in the nation and those who want out – this distinction is marred because he conflates demands for recognition and cultural rights on the one hand and empowerment, redistribution and self-rule on the other. The difference between the two groups is not because one group consists of new and second or third generation immigrants who want to become more culturally similar and integrated with the host nation and the other group consists of those who wish to be culturally dissimilar from it. Instead, the distinction between those which wish to remain devoted nationals and those who do not (minority or majority); instead, it has everything to do with a deep desire for independence and self-rule, often stemming from historic conflict.72
So who has the right to self-determination then? Is it only “nations”, groups of people who can prove to the international community that they have a strong societal culture; i.e., the institutional structures to properly support and diffuse their culture, and who can also demonstrate clear historic ties to one another and the land? It would seem that these constraints would put into question the majority of cases for self-determination worldwide, particularly by indigenous peoples who’s way of life in many parts of the world was subjected to annihilation or assimilation for so many years that they no longer have such structural elements in place. Further, even if they do have them, is this really the crucial issue behind their seeking self-determination and rights? How are we to expect indigenous communities who have been deprived of their cultural rights to have the institutional completeness that Kymlicka ascribes to his societal cultures?
Far from cultural distinctiveness, the desire for sovereignty centres squarely around the need for self-rule, usually because a certain minority group has been subjected to such coercive or assimilative or even annihilative practices that they see no other solution than independence. The need for self-rule is not primarily to maintain their cultural distinctiveness but to have control over their own resources, the direction of their futures, and decision-making across all aspects of their lives – not limited to culture. Persecution, threat of existence/genocide, and a history of oppression seem to be more legitimate or at least concrete grounds to establish claims for self-rule than cultural distinctiveness.
Liberalism and Title
“One should not found a just country on stolen land and repressive government”, says indigenous law scholar John Borrows (2002, p. 114). Borrows argues that Canada “does not have an ‘even’ experience of justice”, with Aboriginal peoples frequently denied their “essential legal rights in property (title) and contract law (treaties) (2002, p. 114). Yet, instead of focusing on redressing historic and indeed current economic and societal injustices, Kymlicka's theory insists on the importance of territorial sovereignty to protect distinctive cultures. Kymlicka justifies restriction on mobility on native reserves on the basis that he believes it is the only way the First Nation Tribes can prevent the Canadian government from further encroaching on their lands (Kymlicka, 1989). Kymlicka sees that it is okay to restrict the mobility of non-natives on native land and further sees that it is ok to disallow non-natives from moving/voting from there. He justifies this as a way of protecting the internal culture from external influence, and yet, this can potentially cause a lot of grey territory. A native for example cannot marry a non-native and still live in her home, instead, they must leave the native reserve under his theory, potentially causing problems with respect to mixed marriages.
Kymlicka admits that common ownership of land does entail some restrictions on liberty. Common ownership of land prevents alienable property rights and is therefore a significant restriction on the “liberty of individual members” (for example, they are unable to borrow money, and thus ameliorate their conditions through either ownership or education) (Kymlicka, 1995, pp. 43-44). As Levy says, in America many indigenous tribes have sovereignty over the land although they do not have property rights as the US government holds the land in trust for them (Levy, 2000b, p. 306). In effect, although Kymlicka’s request to restrict mobility of non-aboriginals does reflect many aboriginal claims, it does not coincide with the liberalism he tries to espouse in his theory, nor is it without complications for the rest of his theory. Turner says that “Aboriginal title” in Canada does not “recognize the legitimacy of the First Nations’ claim to outright ownership of their territories”. She says that once an Aboriginal group accepts title, they willingly put an unequivocal seal of approval on a “particular type of political relationship” between themselves and the Canadian state, embedding their political identity within the confines of the dominant state sovereignty (Turner, 2004a, p. 235).
With respect to restriction of mobility on Aboriginal territory, Borrows states that while many aboriginals do in fact base claims for restriction of non-natives on aboriginal territory on ethnicity and survival of their groups (see Jacobs v. Mohawk Council of Kahnawake 1998), he is troubled by aboriginal groups defining their membership based on such blood and soil argumentation (Borrows, 'Landed' Citizenship: Narratives of Aboriginal Political Participation, 2000, pp. 339-340). Instead, Borrows argues that “Aboriginal citizenship must be extended to encompass people from around the world who have come to live on our land” (Borrows, 2002, p. 140), offering a more conciliatory position than other authors, Borrows envisions a progressive Canada wherein aboriginal law is able to inform not only the rules and law-making in aboriginal territories, but for Canada as a whole.
Borrows says that while the relationship to the land is important for many aboriginals, this should not stop them from engaging in wider Canadian politics or lead them to be restricted only to the lands of their reserves and not their entire traditional lands. He emphasizes the need to see aboriginal communities in dynamic not static terms, and that aboriginal peoples are struggling with modernity. Turner and Simpson, in a paper entitled “Indigenous Leadership in a Flat World” similarly present a call to indigenous communities to step up to modernity and “return Indigenous peoples to our rightful place within the global community” (Turner & Simpson, May 2008, pp. 1-2). Turner and Simpson argue that indigenous peoples are not only an essential part of the modern world, but that the ability of their leaders to take up the mantle of modernity will effectively determine the fate of their communities.
On the one hand indigenous peoples wish to preserve their traditional ways of life, yet at the same time they also need to participate in the modern world, as other groups, they need to grow and change over time too. As Borrows says,
Discourses of Aboriginal citizenship must be enriched to reflect this fuller range of relationships with the land. Aboriginal culture is not static and…develops and redevelops through a wider variety of interactions than is recognized in conventional narratives of citizenship. Narratives of Aboriginal political participation should be transformed to reflect this fact (2000, p. 342).
Alice Feldman similarly argues that a “transformative and process-oriented” approach is needed for successful mobilization and to ultimately overcome the limitations imposed by western (colonialist) thought, and its present “preoccupations with ‘authenticity” (2001, p. 156).
Yet, so long as rights and recognition are tied to national definitions and culturalism (let us call this national culturalism), such as that proposed by Kymlicka, natives peoples will need to define themselves under the terms of modernity laid out for them, without being able to confront modernity and adapt to it on their own terms. The diversity of native traditions simply cannot be accommodated under a national system, which even by Kymlicka’s reputedly “non-ethnic” and “non-essentialist” definition still seeks to disseminate a common culture and language and political/societal institutions to its borders. As Kymlicka acknowledges, this is not even what the indigenous peoples are seeking, nor would they be capable of this without a great deal of support by the central government to accomplish such a feat. Indigenous communities have traditions that go beyond kin-based groups, they are not to be understood in the singular but as multiplicities that naturally change over time too. As Turner and Simpson argue, the terminology used to label indigenous peoples like “indigeneity” or “First Nation” undercuts
the rich distinctiveness of our cultural, philosophical [and] political traditions in the plural. Not only are we, as Indigenous peoples, very different from those that came to our lands and now claim it as their own, we are also very different from each other (May 2008, p. 3).
In fact, we may learn much about the acceptance of diversity by looking to the aboriginal peoples, for whom the imposition of a uniform culture across all bands and the imposition of a political vernacular remain outside their conceptual world73. As Alfred says,
What do traditionalists hope to protect? What have the co-opted ones forsaken? In both cases, the answer is the heart and soul of indigenous nations: a set of values that challenge the destructive and homogenizing force of Western liberalism and free-market capitalism; that honour the autonomy of individual conscience, non-coercive authority, and the deep interconnection between human beings and the other elements of creation. Nowhere is the contrast between indigenous and (dominant) Western traditions sharper than in their philosophical approaches to the fundamental issues of power (Alfred, 2006, p. 327) (italics mine).
For a theory of “Multicultural Citizenship” based on a north American society, it is a glaring flaw that Kymlicka’s theory does very little to address issues faced by racial minorities, particularly with regard to the situation of African Americans whom he admits do not fall under any of the minority categories he has set forth. Many groups experience dispossession and oppression by the state and certainly racism is still endemic in most societies worldwide. In Canada for example, in 2000 Canadian born visible minority males earned nearly 13 percent less than their white counterparts.74 Many of the current immigrants to Canada who are also visible minorities like the indigenous peoples, immigrate to Canada from indirect consequences of former colonization by the English or the French colonial powers, and suffered historic degradation and deprivation on their home soil similar to the colonization internal indigenous populations have faced. Perhaps we have an even higher responsibility to compensate these individuals for the injustices of a world system that forces a people to leave the comfort of their home territory in search of a better life.
For Kymlicka, the African-Americans cannot be considered a nation despite having developed many of the institutional requirements minority nations have. Kymlicka says that the African Americans had many diverse cultures and languages when they arrived in America, despite institutional separateness they were forcibly excluded (unlike national minorities who wanted exclusion) and they had no choice but to develop their own society. Kymlicka touches on this wider picture when he suggests that the African Americans were not seeking to maintain an existing culture through institutional separateness and that institutional separateness was but one component of a much “larger system of racial oppression” (1998b, p. 76). Kymlicka’s theory does not go any further in addressing the ongoing racial inequalities in American than this. Kymlicka, after all, believes that there is nothing wrong with a national culture that advocates a certain set of values and beliefs and that while this should move towards being an inclusive and fair culture he does not see the need for any group-specific rights to actually make this culture itself more open and multivocal apart from including some measures to ease the transition into the new culture for immigrants.
Was access to white Anglo-societal culture really what Martin Luther King stood for? Freedom and equality remains elusive for the majority of African Americans precisely because of the continuance of the white Anglo model of societal culture – the univocal way it is enforced and maintains a hierarchy of preferences and cultural domination in the United States. The African-Americans did not fight for civil rights to be able to opt into white Anglo-societal culture, nor have women fought for rights to opt into a male dominated narrative either. The Civil Rights movement fought for American identity to incorporate them and to hear (not assimilate) their unique voices. Kymlicka’s lack of a solution beyond the confines of culture means that his theory is unable to provide a meaningful contribution on one of the most salient minority issues in North America (Barry, 2001, p. 317).
Further, Melanie C. T. Ash, Canadian scholar of multiculturalism, argues that Kymlicka’s silence on the issue of racial minorities and in particular the exclusionary history of “race-based immigration policies” in Canada, makes him complicit in reifying the White, Anglo caricature of Canada and its intolerances towards non-White Canadians or “visible minorities”. His theory does not consider the selectivity in the terms of admittance to Canada which maintained the distinctiveness of the “societal cultures” of English and French Canada, such as the 1885 head tax on Chinese immigrants, which was later replaced in 1923 with an astounding complete prohibition on Chinese immigration up until 1947 (Ash, 2004, pp. 404-5). As Ash says, “the relative absence of visible minorities and other ethnic minorities among the colonial vanguard was certainly not a matter of happenstance, but rather was deliberately orchestrated” (2004, p. 404). Kymlicka’s lack of substantial discussion on the topic of visible minorities in Canada and the difficulties they face vis-à-vis the Canadian “Anglo” national identity, is more than an omission. Ash says Kymlicka “becomes an apologist for liberal ethnocentrism and, perhaps unknowingly, implicates himself in the perpetuation of ongoing historical racial wrongs” (2004, p. 405). Instead of accepting the current status quo, Ash argues for a radical re-conceptualization of Canadian identity. Yet, as we have already seen, Kymlicka himself supports mild illiberalism in immigration restriction in order to favour immigrants who are in “keeping” with the national culture.
The Difficulties posed by Societal Cultures
Carens points out a similar omission in Kymlicka’s categorical approach to ethnicity and his division between “national minorities” who are entitled to recognition rights and self-determination versus “immigrants” who are entitled to “polyethnic rights”. The term polyethnic itself serves to limit those who are entitled to this particular category of minority rights. Instead, Carens finds it would be more helpful to label the rights based on what they do than on who they serve, and finds “recognition rights” a far more appropriate label to avoid the “awkwardness” present in Kymlicka’s theory (1997, p. 37). Indeed, Kymlicka’s advocacy of remedial nation-building leads Kymlicka’s theory towards some potentially regrettable conclusions:
English Canada should abandon pan-nationalism and promote its Anglo-character
Kymlicka argues that if we condone majority nation-building, then we must not prevent minority nations from having their own forms of nation-building. However, this argument also works in reverse, by condoning minority nation-building you give implicit consent to the idea that the majority nation should also maintain a specific cultural distinctiveness and inheritance. This would justify for example the idea that Canada endorses its historical Anglo-Saxon character – something which Kymlicka does in fact himself roughly support, as he says:
So far I have argued that English-speaking Canadians should reflect more carefully on the interests they share as a linguistic community, and that they should endorse asymmetry as a way of enabling them to better pursue those interests….One way to pursue this strategy would be to encourage English-speaking Canadians to view themselves as a ‘nation’ (1998b, p. 164)(italics mine).
Kymlicka says that English Canada should recognize its common cultural background in order to see how it is under-privileging those minorities who do not adhere to that common culture. He states that there is no urgency however for English Canadians to begin to define themselves in national terms however because nationalism is a “feeling” and if most Canadians don’t feel part of an English-nation, then there is no need to push this criteria of identity upon them. Yet, this seems an unwarranted retreat from more progressive steps happening in multiculturalism over the past few decades in Canada.
Further, this also turns a blind eye towards the way the “Anglo” character of Canadian and American national identity continues to oppress various groups within the society (apart from French Canadians alone). As de Xavier de Sousa Briggs, American sociologist and urban planner says, “expectations about ‘being American,’ while officially pan-ethnic, still carry ethnocentric baggage and reflect stylized interpretations of our history”, which significantly he points out “mask ethnic conflicts” (2004, p. 336). In a similar tenor, Ash recounts a meeting wherein a non-white person is singled out among a group of other females and asked “so where are you from?” She says such a moment is a
…coming of age for all Canadians of colour: the moment when you first become aware that you are not seen as a Canadian. That you will forever have to justify your presence in your country in a way that white Canadians, and even newly-arrived white immigrants, never will (Ash, 2004, p. 399).
Despite the multi-ethnic and multicultural fabric of Canadian society, the overwhelming perception remains that Canada is white says Ash, and this, contrary to Kymlicka’s suggested reinforcement through a strengthened common Anglo national identity, is in need of serious questioning and reconfiguration – which Kymlicka’s comments about English Canada strengthening its sense of Anglo identity seem to ignore.
On a more optimistic note, Goonewarda and Kipfer, Canadian scholars writing on urban geography, state that the distinction between subaltern and dominant urban practices has become blurred in Canada, “precisely because multiculturalism here has made a symbolic dent in the explicitly ethno-centric and white supremacist notions of Canadianness” (2005, p. 672). To even get “English Canada” to see itself as a singular linguistic nation would even be a difficult task because, as Kymlicka himself admits, the majority of Anglo-Canadians
Historically [have] taken pride in their lack of linguistic nationalism…there would be difficulties even naming this ‘nation’. ‘English Canada’ runs the danger of being interpreted in an ethnically exclusive way, as if descendants of British colonists were truer ‘English Canadians’ than the descendants of Italian or Ethiopian immigrants (Kymlicka, 1998b, pp. 164-5) (Italics mine).
This last argument illustrates the problem faced for immigrants in a country that has a national culture at its core – the idea iterated above, that those “original stock” inhabitants will always be viewed in a different light from new cultural infusions, particularly those who are significantly culturally different from the state or sub-state endorsed national culture poses a significant problem for minorities. It is therefore a contradiction for Kymlicka to on the one hand say that remedial nationalism is needed to fix a problem where a group was disadvantaged, and at the same time to endorse even strengthening these distinctions (and hence disadvantages) created on the part of the majority culture itself.
These arguments about Canadian commitment against nationalism and linguistic uniformity are even still much more thin than the nationalism Kymlicka advocates for minority nations themselves (Kymlicka describes national culture in liberal western democracies as “thin, but far from trivial” (2001b, p. 25)). Kymlicka presupposes that the majority is stable and that they do not need measures to protect their national cultures. But what of countries where there is no clear majority-minority – a deeply divided country with a recent history of aggressive conflict, where both parties feel under significant threat? Even in a relatively stable country such as Belgium, the difficulties associated with encouraging even thin nationalism amongst members with respect to their relation to the other opposing national group are apparent.
National minority protections as Kymlicka describes them entail much more than simply language rights. The protections he describes include a form of cultural preservation, control of immigration, and defining the nation (and thus defining national membership). Ultimately, defining national group rights is about deciding belonging. Moreover, nationalism is essentially about defining a unified culture. What else does Kymlicka mean to promote when he says that the minority requires control over cultural resources, the media, education to promote its unique history and national culture? Importantly, how can we end up with anything but conflict and division between groups so long as two minority nations are developing their own conflicting versions of their intertwined but separate histories?
Secure Cultures = an Adequate Context of Choice
Essentially, Kymlicka deems that without societal cultures we would be lost, like a ship in a storm that has lost its bearings, unable to successfully navigate our social environment or to have freedom to choose meaningfully. Securing cultural structures or “societal cultures” is important for Kymlicka and he feels it should be important for all liberals “because it’s only through having a rich and secure cultural structure that people can become aware, in a vivid way, of the options available to them, and intelligently examine their value” (Kymlicka, 1989, p. 165). Kymlicka ties human autonomy to membership in a societal culture. As he sums it up, “put simply, freedom involves making choices amongst various options, and our societal culture not only provides these options, but also makes them meaningful to us” (1995, p. 82).
Further, without a societal culture that is “rich and secure” our society faces injury and anomie of the sort which Aristotelian communitarians such as MacIntyre presage. As Kymlicka boldly asserts, “without such a secure cultural structure, children and adolescents lack adequate role models which leads to despondency and escapism” (1989, p. 165). To prove this claim, Kymlicka cites an article about Inuit children, which in effect ties the sense of anomie felt by Inuit youth to lack of a clear cultural structure, and hence, lack of clear role models (1989, p. 166)75. This example, along with Kymlicka’s claim that we need a secure cultural structure to provide our lives with intelligent options and meaning, are hyperbolized and ignore important socio-economic considerations at the root of social phenomenon.
In following Kymlicka’s above assertion that we need to have a secure cultural structure from which we draw adequate role models, we might assert that a Canadian 2nd generation child of Indian parentage in taking Gandhi as her role model, instead of “Canadian hero” Sir John A. MacDonald76, is less able to navigate the “vernacular” of Canadian society and may be at a loss compared to her 6th generation English descendant co-national. This would be absurd to the highest degree. Not only are role models in today’s globalized world hardly confined to cultural communities (it would do a great favour to more global youth the world over were Gandhi to be taken as a role model in more homes as compared with John A. Macdonald – who by the way is quoted as saying “The great aim of our civilization has been to do away with the tribal system and assimilate the Indian people in all respects with the inhabitants of the Dominion, as speedily as they are fit for the change” (as cited in Cairns, 2000, p. 17)). Having a “secure cultural structure” is by no means a way to ensure that adequate and worthy role models are created and admired. Again, the idea of a “secured cultural structure” is a monolithic concept rooted in history and in shared meaning, which may in fact lead to an exclusionary (or at the very least disadvantageous) position for those members who do not share the same historic role models or same facility in the national language as other more “rooted” members.
Certainly, nationalism does its part to create myths of leaders and their great acts; however, often the national heroes that are celebrated are as much fiction as fact. “National heroes” are more often than not military leaders promoted for the political values they are said to represent – again instilling a certain direction on the beliefs of the people, rather than genuine heroes naturally arising (against the tide) who are often uncelebrated or even intentionally ignored by national (writ societal) cultures.
Liberal Defence for Minority Rights Tied to Membership in a Nation
Kymlicka closely ties our human freedom to membership in such secure cultural frameworks. First, he attributes the development of personal autonomy to one’s societal culture. Second, he says that there are strong ties between one’s societal culture and one’s national group. Thus,
a. If I have a societal culture I am free.
b. If I have a national group, I have a societal culture and therefore I am free.
Based on this series of inferences, Kymlicka inadvertently ties his liberal defence of minority rights to membership in a national group; however, Kymlicka’s connection between freedom and national identity is unlike his justification for the connection between group rights and liberalism and on its own is unsupported philosophically. The “relevant society” he argues is one’s nation, “the sort of freedom and equality within their own societal culture, and they are willing to forego a wider freedom and equality to ensure the continued existence of their nation.” (2000a, p. 26) Even here, Kymlicka speaks of a “forgoing” of a wider freedom and equality to ensure a national existence. But how can this be if nationalism is the source of our very freedom? It is not clear why the nation above all other sources of identity would be the one that would mean so much to our choices and freedom if it is truly flexible and dynamic. Further, how can the key to our freedom lay in a membership based on something that lays outside our individual control? (Lichtenberg, 1999, p. 171)
Certainly, if we are to accept that a societal culture is a prerequisite for human freedom and choice as Kymlicka insists, it seems hard to justify that this should be denied to immigrant groups while supported for national minorities and the national majority. If human beings need societal culture as context of choice, will immigrant groups not be seriously disadvantaged in adapting to a new societal culture? If a societal culture is truly necessary for freedom, should we not support it for all citizens, regardless of when or how they became a member of the state?
Carens argues that Kymlicka’s theory leaves much guesswork as to how “secure” one’s societal culture ought to be. Since Kymlicka treats societal cultures as a primary good in the Rawlsian sense, he questions: “would secure access to one’s societal cultures count as a basic right that must be equally distributed or would it be subject to the difference principle? If the latter, how would we assess tradeoffs between it and other primary goods?” (Carens, 1997, p. 42). These matters are as yet left undeveloped by Kymlicka himself but are a point for further development and particularly application of his theory.
Cost-benefit Calculation for Minority Rights
Whereas advocating societal cultures for immigrants seems impractical for Kymlicka, the opposite holds true for national minorities for whom he claims it would be too “difficult and costly” to integrate into mainstream culture (Kymlicka, 2001b, p. 55). The cost Kymlicka is referring to is no doubt the “human cost”, the loss of a distinct culture and way of life. And yet, it would seem that the distinction between immigrants and national minorities as elaborated by Kymlicka is in fact the path of least resistance. As Kook says of Kymlicka, “Ironically…even [one of] the more ardent proponents of differentiation…Kymlicka, use[s] integration as the fundamental yardstick with which to judge the appropriateness of the strategy” (Kook, 2000, p. 48). Choudry also similarly comments, saying that, with regard to the ease of integrating immigrants versus the relative unease of national minorities, “his concern…is less with justice than with the political stability of liberal democracies that are ethnically diverse” (2002, p. 71). The voices of populous national minorities are too costly to integrate, while immigrant groups ought to be assimilated upon entry before additional dissent from the majority hegemony is allowed to take flight.
According to Kymlicka, majority nation-building does clearly put immigrant groups at a disadvantage in the same way that it disadvantages national minorities. But since immigrant groups do not have the same capacity as national minorities to form their own societal culture, the majority nation should therefore do its best to “minimize the costs involved in the integration it demands” (Kymlicka, 2000b, p. 168) but is under no obligation to help the new immigrant minorities establish their own secure societal culture in their new homeland. Because equality for immigrants does not mean a separate institutional structure, but recognition rights and making the overall culture of the majority more open and tolerant.
This is supported by other authors, including Modood, who states that most communities in the UK of “hybrid identities” (such as Black-British or British Asian) see themselves as fully committed to the British nation, the terms of their debate however are over the terms of exclusion and inclusion that they face, rather than caring for “discrete societal cultures” (Modood, Anti-Essentialism, Multiculturalism and the 'Recognition' of Religious Groups, 1998, p. 389). Baubock, who like Kymlicka advocates a federal system and the decoupling of nation with state boundaries, nevertheless concedes, “drawing political boundaries along the lines of national membership ignores (or suppresses) small and dispersed minorities, as well as mixed populations and multiple individual identities” (Bauböck, 2000, p. 366). Walzer offers us some insight however into the reason why newer waves of immigrants do not seek national identity in the way that national minorities do: In the New World the demand is for politics to be separated from nationality.
In the coming Chapter, Kymlicka’s theory will be cast against the backdrop of the discussions that were raging on the topic of nationalism at the time of his writing to show the debates that gave rise to many of the ideas implicit in Kymlicka’s theory, and to better understand Kymlicka’s own position amidst them and what this ultimately means for his theory of minority rights.