Confronting 'Kymlicka's dilemma': settler voting rights, indigenous representation and the 1998-99 electoral reapportionment in Canada's Northwest Territories

Thesis (M.A.) University of Alaska Fairbanks, 2015"Settler colonialism" presents a vexing challenge to voting rights theory and praxis in liberal-democratic states. I call this challenge "Kymlicka's dilemma," after Will Kymlicka, the political theorist who has led contemporary discourse on "minority nation" rights. As Kymlicka observed, members of a state's dominant cultural nation, or staatsvolk, may, by exercising universal mobility rights, numerically "swamp," and then, by using universal voting rights, democratically dominate, an Indigenous minority nation in its homeland. To prevent this, an Indigenous minority nation may seek to exercise group-based voting protections, such as guaranteed representation. Where "Kymlicka's dilemma" arises - i.e., where minority group-differentiated voting protections challenge the voting powers of individual staatsvolk and vice versa - a constitutional conflict seems certain. In Canada's Northwest Territories, from at least the 1970s until the separation of Nunavut in 1999, the specter of "Kymlicka's dilemma" (mis)shaped the constitutional evolution of the territorial government. There, in what was long Canada's last Indigenous-majority jurisdiction, decades of Indigenous political resistance to settler control hinged on the permissibility of Indigenous overrepresentation in the territorial legislature. In the 1990s, three developments portended changes to Indigenous overrepresentation in that legislature: Charter of Rights-inspired limits on electoral-district malapportionment, constitutional recognition of Indigenous group-based protections, and the amplified danger of settler "swamping" that would result from Nunavut's separation. As if in a natural experiment, these developments created conditions for a potentially volatile constitutional conflict. This thesis analyzes the results of that experiment. It shows that a constitutional conflict did ensue, catalyzed by the territorial electoral reapportionment of 1998-99. This conflict involved a yearlong political clash over Indigenous versus individual rights. This thesis further shows that a controversial court ruling, and equally controversial political decisions, resolved this conflict, deciding "Kymlicka's dilemma" by rejecting Indigenous group-differentiated voting protections in the territorial legislature

Colonizing the demos? Settler rights, Indigenous sovereignty, and the contested ‘structure of governance’ in Canada’s North

Settler-colonialism can consist of a struggle over the pre-political ‘structure of governance’ – over who composes the demos and how decisions should be made. This article examines two lawsuits where settlers contested the Indigenous structure of governance in Canada’s Northwest Territories. I show that in both cases settlers brandished a novel ‘tool of elimination,’ individual rights to voting, mobility and expression. I trace how settlers used this tool in a strategic two-pronged way, challenging as ‘illiberal’ restrictive laws flowing from Indigenous sovereignty and then championing race-neutral laws the promulgation of which would open the demos to settler domination. I show that courts adjudicating these challenges were compelled to grapple with the appropriate ‘framing of justice’ – with whether the relevant rights-bearer was the universal individual or the ‘constitutionally prior’ Indigenous demos. I conclude that, where the court decided on individual-rights grounds, settlers were able to extend control over the structure of governance.publishedVersio

'A wolf in sheep’s clothing': settler voting rights and the elimination of the Indigenous demos in US Pacific territories

Settler colonialism eliminates Indigenous sovereignty, enthrones itself, and thereby makes Indigenous land ‘ours’. It may do this meta-politically, by absorbing ‘them’ into ‘us’. This article explores three recent lawsuits brought by settlers against Indigenous demoi in US Pacific territories. I show that in each lawsuit, settlers brandished a novel ‘tool of elimination’: individual voting rights. I trace how settlers wielded this tool to deliver a ‘one-two punch’, first condemning as ‘illiberal’ restrictive voting laws flowing from Indigenous sovereignty and then championing race-neutral laws that would in effect enthrone settlers. I show that courts hearing these cases were faced with choosing the appropriate ‘framing of justice’ – with whether the relevant rights-bearer was the universal individual voter or the ‘constitutionally prior’ Indigenous demos. Finally, I show that, because the courts ultimately framed these disputes as individual-rights cases, settlers extended control of meta-politics on the US Pacific frontier.publishedVersio

Constituting settler colonialism: the ‘boundary problem’, liberal equality, and settler state-making in Australia’s Northern Territory

Between Indigenous sovereignty and settler colonisation lie contested frontiers. I suggest Australia’s Northern Territory is one such frontier. This paper explores the 1998 settler campaign for Northern Territory statehood, the key to which was the framing of a constitution designed to eliminate Indigenous autonomy and empower settlers. I make three contributions. First, I showcase how settler colonialism is metapolitical, implicating political theory’s notorious ‘boundary problem’ in an effort to reconstitute Indigenous territories as ‘ours’ and Indigenous demoi as ‘us’. Second, I show that settlers may wage this metapolitical campaign using individual rights, to challenge as illiberal, and thus de-constitute, Indigenous demotic and territorial boundaries. Finally, I show that when Indigenous peoples resist by seeking to constitutionally entrench their own, alternate answers to the ‘boundary question’, there arises a dilemma over whether settler rights or Indigenous boundaries are the rightful ‘subject of justice’.publishedVersio

The metapolitics of settler colonialism : Individual rights, collective boundaries, and Indigenous (de)colonization

Metapolitics are like the forces inside the atom, so constitutive of the world around us that they hide in plain sight. If domestic politics happens within polities, and geopolitics happens between them, metapolitics decides which is which. I contend this is one way to look at settler colonialism. Over the past few centuries, settler colonialism has transformed the globe, re-crafting Indigenous continents into a New World modelled on the European motherland. This re-crafting has been accomplished in part through metapolitics. “We” have not merely taken what is theirs, we have done so by redefining it, morally, legally, and constitutionally, as ours. Thus veiled by metapolitics, contemporary settler colonies hide in plain sight. In this dissertation my aim was to theorize settler-colonial metapolitics, making it visible. I pursued this project in three steps. First I identified an array of contemporary settler (and related) metapolitical conflicts and classified them in an original taxonomic table of cases. Second, drawing from this table, I conducted four comparative case studies – the articles of my dissertation. Each article explores theoretical, judicial and political dimensions of settler metapolitics in the three most iconic settler states, the United States, Canada and Australia. Finally, I devised a theoretical model to better identify, understand, and address settler metapolitical conflicts. At its core, the theory is this: Contemporary settler colonialism harnesses individual liberal rights, which are the core rights within polities, to problematize boundaries between polities, challenging the legitimacy of Indigenous demotic and territorial difference and thereby dissolving “them” into “us.” This dissertation is, I believe, an original contribution to three sub-fields of political science. First, it contributes to settler-colonial studies, highlighting a largely unexplored means by which contemporary settlers advance colonization and/or resist decolonization. Second, it contributes to political theory, applying a framework to a nameless theoretical space that has become busy with such unreconciled concepts as “mega-politics” (Hirschl 2008), “sovereignty studies” (Aleinikoff 2000), the “law of democracy” (Issacharoff, Karlan and Pildes 2002), “trans-polity rights” (Kant 1795 [2015]), “cosmopolitan rights” (Benhabib 2004), “democratic inclusion” (Bauböck 2017), the “boundary problem” (Whelan 1983), and of course “metapolitics” (Fraser 2009). Third, it contributes to constitutional law, by identifying metapolitics as a (critically overlooked) legal matter, by cataloging dozens of metapolitical cases from around the globe, and by showing decision-makers how they might grapple with such cases

Approaching the boundary problem: Self-determination, inclusion, and the unpuzzling of transboundary conflicts

In recent decades, decisionmakers have increasingly faced conflicts juxtaposing demands for self-determination and inclusion. Political theorists term this juxtaposition “the boundary problem.” They have offered normative solutions, especially for “just inclusion,” proposing what states owe to exogenous individuals like migrants and refugees. Meanwhile, as I show, legal scholars have developed parallel observations regarding what I term “just exclusion,” concerning how self-determination by sub-state collectives, such as minority nations, interacts with the inclusion rights of members of the majority. I make, first, a descriptive contribution, showing decisionmakers how political theories of “just inclusion” and legal theories of “just exclusion” are complementary, uniting to frame the boundary problem. Second, I make a prescriptive contribution, deploying this frame to lay out a stepwise approach so decisionmakers can more logically work through boundary-problem conflicts

The settler-rights backlash: understanding liberal challenges to Indigenous self-determination

In the archetypal settler-colonial states of the United States, Canada, Australia and New Zealand, Indigenous peoples have joined the ‘rights revolution’, pressing for self-determination. They have been met by a ‘settler-rights backlash’, contraposing settler and Indigenous rights. This article makes two contributions. First, it presents a scoping study of settler-rights challenges in Anglo-settler states, revealing the extent and means of the settler backlash. Second, working within mainstream Anglo-settler political theory, it theorizes settler-rights challenges, exploring what liberal principles settlers invoke, what Indigenous protections they impugn, and what contrapositions of rights ensue. This article shows settlers invoke the liberal principle of universalism to impugn Indigenous sovereignty, the liberal principle of individualism to impugn differentiated citizenship, and the liberal principle of egalitarianism to impugn Indigenous decision-making and territorial control. In doing so, this article reveals the normative dynamics and internal contradictions of settler-rights challenges. By showing the extent, dynamics and contradictions of such challenges, it is hoped to help public decision-makers better understand and resolve them.publishedVersio

Is Nonterritorial Autonomy Wrong for Indigenous Rights? Examining the ‘Territorialisation’ of Sami Power in Norway

Nonterritorial autonomy (nta) decouples governance of ‘people’ and ‘place’, allowing demographically submerged minorities to protect their cultural – but not territorial – interests. Indigenous peoples are often submerged and culturally vulnerable. At the same time, they are often especially interested in protecting the territories that have long sustained them. So, is nta well-suited or ill-suited for Indigenous self-governance? To explore this, we study Norwegian Sami self-governance, an oft-cited case of Indigenous nta. We make several contributions. We enumerate the variety of Sami-specific rights and powers in Norway, categorising them as either territorial or nonterritorial and tracking their evolution over time. By doing this we reveal that Sami self-governance has recently taken a ‘territorial turn’. We explore why this has happened, concluding it is due to the insufficiency of nta. Finally, we discuss likely limits to further Sami territorialisation.publishedVersio

The Athena Astrophysical MHD Code in Cylindrical Geometry

A method for implementing cylindrical coordinates in the Athena magnetohydrodynamics (MHD) code is described. The extension follows the approach of Athena's original developers and has been designed to alter the existing Cartesian-coordinates code as minimally and transparently as possible. The numerical equations in cylindrical coordinates are formulated to maintain consistency with constrained transport, a central feature of the Athena algorithm, while making use of previously implemented code modules such as the Riemann solvers. Angular-momentum transport, which is critical in astrophysical disk systems dominated by rotation, is treated carefully. We describe modifications for cylindrical coordinates of the higher-order spatial reconstruction and characteristic evolution steps as well as the finite-volume and constrained transport updates. Finally, we present a test suite of standard and novel problems in one-, two-, and three-dimensions designed to validate our algorithms and implementation and to be of use to other code developers. The code is suitable for use in a wide variety of astrophysical applications and is freely available for download on the web

Small-N Collisional Dynamics: Pushing Into the Realm of Not-So-Small-N

In this paper, we study small-N gravitational dynamics involving up to six objects. We perform a large suite of numerical scattering experiments involving single, binary, and triple stars. This is done using the FEWBODY numerical scattering code, which we have upgraded to treat encounters involving triple stars. We focus on outcomes that result in direct physical collisions between stars, within the low angular momentum and high absolute orbital energy regime. The dependence of the collision probability on the number of objects involved in the interaction, N, is found for fixed total energy and angular momentum. Our results are consistent with a collision probability that increases approximately as N^2. Interestingly, this is also what is expected from the mean free path approximation in the limit of very large N. A more thorough exploration of parameter space will be required in future studies to fully explore this potentially intriguing connection. This study is meant as a first step in an on-going effort to extend our understanding of small-N collisional dynamics beyond the three- and four-body problems and into the realm of larger-N.Comment: 11 pages, 6 figures, 2 tables; accepted for publication in MNRAS; updated to match published versio