Why for Indigenous People citizenship refusal can be reparative
Jocelyn Kane (University of Ottawa) and Patti Tamara Lenard (University of Ottawa)
Kanahus Manuel is an Indigenous birth keeper, a midwife for Indigenous women who wish to give birth outside of a hospital. Many of the births she attends are not registered with the Canadian government. These unregistered babies are called “freedom babies”, and are raised by their communities, largely without financial support from the Canadian government. When Manuel is asked why she and new parents are making this choice, she explains, “We can’t talk about liberation if we’re continuing to birth children into the system, to colonize our own children—their birth and their education. Not registering is breaking away from these institutions.”
The position she defends is, in effect, a rejection of Canadian citizenship. Refusing citizenship is a way of rejecting colonial structures and healing Indigenous communities outside of them. In what follows, we propose that settler colonial states ought to embrace citizenship refusal, rather than citizenship access as David Owen and Rainer Bauböck suggest, as a form of reparations for past injustice. In particular, we argue, such states possess the duty to implement institutional mechanisms by which Indigenous Peoples can both resist Canadian citizenship and ensure their access to benefits that citizens can typically access, including a wide range of social services and, in particular, legally recognised passports.
Owen and Bauböck defend the granting of citizenship as a form of reparations in several cases. Citizenship reparation, they explain, involves the “offer of citizenship status” to those who live outside of a state’s territory and whose citizenship was unjustly severed. The unjust severing of status can transpire where individuals are unfairly exiled from their state of citizenship, as a result of shifting borders (after war, for example), or because naturalisation laws were unjust (for example, where they denied women the right to citizenship if they married a foreigner). In all of these cases, say Owen and Bauböck, there may be justifications for restoring citizenship to those who lost it (and/or their descendants) as a way to repair past injustices.
Such a case might be made for defending citizenship restoration as one aspect of reparations for the harms of colonialism – but after considering the case in favour, Owen and Bauböck do not think so. That former colonial subjects were not granted citizenship status in the colonising states was not a grievous harm. Rather, the harms such individuals faced were in lost mobility rights (that is, the right to move freely between colonising and colonised states) as well as in the failure of departing colonial states to transfer the benefits of the resources they extracted. So, say Owen and Bauböck, the correct remedy for colonialism is not, in fact, in the restoration of citizenship but rather in the extension of mobility rights and fair compensatory resource transfer.
These comments make sense for the “extractive” colonialism they describe, where colonial powers’ main objective was to extract a colonised state’s natural resources for profit. But they do not make sense of “settler” colonialism, of the kind in operation in Canada, the United States, Australia and New Zealand. In these cases, settlers migrated to these states and set up shop – and forcing these settlers to leave to enable previously colonised subjects to be self-determining independent states is not a feasible option. Settlers and those they colonised must interact, ideally, on fair terms: securing these terms is the goal of reparations, one key element of reconciliation between settlers and Indigenous Peoples.
In this context, decolonial reparations cannot come in the form of more expansive mobility rights (though resource transfer will certainly play a role), at least not in any direct way. Moreover, Indigenous Peoples are natural-born citizens of most countries in which they are born, so extending them the formal right of citizenship is also not a strategy for reparations for colonial harm. At least according to the United Nations Declaration of the Rights of Indigenous Peoples, the leading strategy for reparations is in the protection of Indigenous self-government. We are in agreement that this is an important strategy, but it is not the only one.
Rather, we propose that decolonial reparations can also require acknowledging “citizenship refusal”, i.e., the choice of Indigenous Peoples to reject the citizenship of their colonial state and, more specifically, to have this refusal recognised. For now, we leave aside how this remedy operates in relation to a more general recognition of Indigenous sovereignty and just consider the claim – that citizenship refusal should be recognized – on its merits.
Recognising citizenship refusal as reparation for past forced citizenship choices
What does citizenship refusal look like? One way is in the form of non-registration of births, as in the case of the freedom babies we described above. Because their births go unregistered, they do not obtain Canadian identification documents, and they are at least formally ineligible for a wide range of Canadian services, including education and preventative health care.
Freedom baby parents explain that Canada has historically used citizenship as a tool of dispossession, which they wish to reject. Until 1960, Indigenous Peoples in Canada were by and large required to choose between being citizens of Canada or “Indian” and could not choose both. The language of “enfranchisement” captured this forced choice: if Indigenous Peoples wanted the right to vote and the full complement of protections that attached to Canadian citizenship, they had to formally give up their status as “Indian.” In some cases, Indigenous Peoples were forcibly enfranchised, for example, when they accessed university-level education. Forced and coercive “enfranchisement” were both part of Canada’s attempt to not only dispossess Indigenous Peoples in Canada but, in fact, to eliminate them.
With this history in their minds, parents of freedom babies refuse Canadian citizenship for their children, arguing that this refusal better protects them from the harms of Canadian institutions that, despite the official policy of reconciliation, continue to disadvantage Indigenous peoples through the residential school system, family separation, the child welfare system, and disproportionately high incarceration rates.
The Haudenosaunee, also known as the Six Nation Iroquois Confederacy, similarly refuse the imposition of Canadian or American citizenship. Their refusal of citizenship challenges the colonial imposition of state borders across their lands, which span from southeastern Quebec to the northeastern United States. Citing the Jay Treaty of 1794, the Treaty of Ghent of 1814, and more recently the United Nations Declaration on the Rights of Indigenous Peoples, the Confederacy asserts that Haudenosaunee peoples have the rights to be recognised internationally as a nation and therefore, among other things, to travel freely across the Canada-United States border. As part of their citizenship refusal project, the Confederacy has developed identification cards that align with contemporary Canada and United States security requirements and have been travelling on their own passports since the 1920s.
Travelling on a Haudenosaunee passport carries with it the risk that other states may not recognise it as a valid travel document, may not grant entry to its holders, and may detain individuals as a result. For example, in 2010, the Iroquois Nationals lacrosse team was denied entry into the United Kingdom to compete in an international tournament, even though in that case, both Canada and the United States guaranteed that the team would be permitted re-entry. In 2015, a Haudenosaunee delegation travelled to the World People’s Conference on Climate Change and Defense of Life in La Paz, Bolivia, using Haudenosaunee passports. On their return, however, they were denied the right to stopover in Peru and were detained while alternative travel arrangements were negotiated. The United States eventually agreed to accept their Haudenosaunee passports, allowing the delegation to return home (Canada offered “emergency passports”, but these were rejected by the delegation).
These refusal strategies are not limited to North America. For example, the Aboriginal Provisional Government (APG) refuses citizenship as a way to reject Australian colonialism. Like the Haudenosaunee, the APG issues Aboriginal passports, as well as birth certificates, as a way of enacting Aboriginal sovereignty. Since 1992, the Aboriginal birth certificate has been used to recognise Aboriginal children, as an alternative to being coerced into Australian citizenship, and as a “rejection of the obligations imposed… by colonial law” (APG). As is the case with the Freedom Babies movement, this refusal rejects Australian (colonial) citizenship status as a way to respond to the history of colonial dispossession of Indigenous Peoples.
The Australian government does not recognise the Aboriginal passport but does typically allow their holders to re-enter Australia. When travelling, however, holders face risks of detention, just as do those who hold Haudenosaunee passports. For example, in 2015, holders of the passport were detained by Canadian authorities and refused entry to Canada until they produced their Australian passports.
State protection for Indigenous refusers
Those who refuse citizenship are at risk of statelessness – a precarious status which leaves them without formal state protection and, therefore, at risk of significant harm. As the UNHCR explains, “Stateless people may have difficulty accessing basic rights such as education, healthcare, employment and freedom of movement. Without these things, they can face a lifetime of obstacles and disappointment.” The goal is to eliminate statelessness so that everyone is guaranteed the protection that citizenship status typically offers, not to enable the conditions under which some adopt their status voluntarily.
And yet, we argue, colonial states ought to do just that as a form of reparation. Owen and Bauböck describe citizenship as a “relational good”, one that combines “a horizontal relation of equality to other citizens and a vertical relation with state institutions whose power is derived from citizens’ consent.” However, Indigenous Peoples in colonial states have never been treated with horizontal equality; nor have they consented to the institutions that claim authority to govern them. As Joyce Green explains instead:
For those who have found their nations and communities to be subjected to oppression by the state since its inception, and whose own life experiences and the historic experiences of whose communities have been harmed by the state, and who have historically been denied citizenship until offered it in a transaction designed to insulate the state from grievances arising from this tainted history, citizenship is not an unalloyed good.
Owen and Bauböck argue that offering citizenship as a remedy is subject, among other things, to the seriousness of the “moral injury committed by the state” – in the case of Indigenous Peoples, the moral injury of colonialism is not in dispute. Rather, one key dimension of the moral injury is in the history of denying Indigenous Peoples citizenship, forcing them to give up their formal Indigenous status as a condition of accepting citizenship, refusing to grant them full citizenship rights even where they did accept (or were forced to accept) citizenship, and finally in the ongoing refusal to offer them full and equal protection of their rights, even though presently all Indigenous Peoples in Canada are officially citizens. Citizenship refusal is a reasonable response to these harms, and colonial states ought to accept the refusal.
Yet we believe the mere acceptance of the refusal is not sufficient to be reparative. This acceptance must be followed up with an institutional recognition of the right of Indigenous Peoples to issue their own citizenship identifications, including internationally-recognised travel documents – alongside a commitment to developing an institutional infrastructure to enable these to be widely recognised. Institutional recognition can mitigate potential harms, including the risk of statelessness, but it also raises questions with respect to its practical implications and limits.
As part of the reparative project, settler colonial states must protect the rights of Indigenous Peoples on an equal basis – even if they are not citizens. So, for example, freedom babies and holders of APG documents must be treated as genuinely entitled to the goods of Canadian and Australian citizenship, respectively, even though they have refused it. Showing their Indigenous citizenship identification should be sufficient for them to gain access to these goods.
The provision of goods and services for those who refuse could operate on a similar basis as does permanent residency, where permanent noncitizens may access a range of services in exchange for abiding by the host state’s laws. In this case, the Indigenous refuser, like the permanent resident, would not be permitted to vote. Accordingly, that freedom babies are made noncitizens as children requires that they are afforded the opportunity as adults to become citizens, with the full complement of the rights of the larger state, should they wish to do so. Dual citizenship of an Indigenous nation and the colonial state must be permitted, in other words.
The obligation to protect Indigenous access to the rights of “citizenship” and to support the development of an institutional infrastructure whereby Indigenous Peoples can produce internationally-recognized citizenship documentation emerges from acknowledging citizenship refusal as a legitimate response to colonialism, one that – in this case, more than citizenship reinstatement – serves the reparative purpose that Owen and Bauböck defend.