Daniel Rück, The Laws and the Land: The Settler Colonial Invasion of Kahnawà:ke in Nineteenth-Century Canada. Vancouver: UBC Press for the Osgoode Society for Canadian Legal History, 2021. 336 pgs. ISBN 9780774867436.
Reviewed by Bill Parenteau.
In The Laws and the Land: The Settler Colonial Invasion of Kahnawà:ke in Nineteenth-Century Canada Daniel Rück presents a richly detailed and sophisticated history of land use rights and ownership on the Kahnawà:ke reserve over the course of a century. To some extent it is a specialized study that will be most welcomed by scholars with a deep knowledge of land laws. However, it should also be of broad appeal to anyone immersed in an examination of Indigenous-settler relations in this critical period of continual change. Morever, The Laws and the Land has considerable utility for the legal profession in the sense that it unravels the fluid nature of Indigenous-colonial relations and ever evolving nature of Indigenous communities. The use of the word ‘Invasion’ in the title is perhaps a bit misleading, as the study is focused on the long-term impact of a wide variety of Canadian attempts to replace Kahnawà:ke law and principles of land use rights, and the resistance and accommodation of reserve residents to these changes.
Rück is thoroughly impressive in his articulation of the many ways in which Indigenous and European laws are both at odds and, at times, complimentary. Clearly, European practices of demarcating land ownership through fences and maps to produce a legal landscape that was immutable and intentionally unequal could not simply be superimposed on an Indigenous legal regime built on the principle of a “Dish with One Spoon.” Likewise, an Indigenous legal ‘system’ that featured more elastic use rights favouring those that worked the land and harvested resources was incompatible with the proto-capitalist tide that increasingly dominated European land laws at the point of contact. Yet, in order to co-exist in the long run settlers and Indigenous communities needed to negotiate the basic contradictions between competing systems that regularly pitted rugged individualism against communitarian ethics.
However, accommodation on both sides and common interests were at least as important to community and state development as conflict. Neither the community of Kahnawà:ke nor the European population and colonial state were monolithic; they were mature, complex societies with their own internal divisions and modes of dispute resolution and compromise. By detailing the everyday patterns of interaction within Kahnawà:ke and the colonial state Rück avoids being trapped into a relational conflict narrative that ultimately must result in Indigenous law suffering a series of blows (the Indian Act and Walbank survey, designed to chop the reserve into individually owned lots and promote enfranchisement , for example) until it is overwhelmed. In taking this approach Rück demonstrates convincingly that colonialism is not an historical era that occasionally causes some non-Indigenous citizens discomfort . It is a process with political, social and economic dynamics that endures and confronts Indigenous people from cradle to grave.
As a well-established, populous reserve with a long history of interaction with settler society and a fully interactive political system Kahnawà:ke makes an excellent place to study the broad range of what might be termed the anatomy of dispossession. The reserves to the east of what is now Montreal tended to be less settled in terms of having permanent populations and regular contact with the colonial state before Canadian Confederation. It is in a venue like Kahnawà:ke that the full range of colonial strategies of dispossession come into view. The list of mechanisms of dispossession is too long to treat in a short review and goes far beyond the traditional troika of massacre, child kidnapping, and forced migration; there were much broader and deeper patterns of dispossession that were/are embedded in the ever-changing colonial bureaucratic apparatus charged with interacting with and directing Indigenous communities. These include petty subterfuge, regulatory contradictions, which sometimes bordered on the absurd, small but intentionally disruptive changes, the drafting of allies within the Kahnawà:ke community to help produce desired results to unpopular initiatives, willful neglect of duty, inaction and ignoring the appeals of reserve residents. Effective inefficiency at the bureaucratic level, Rück and others have argued, fosters chaotic conditions which ultimately serve the colonial project. While such petty acts can seem to be a far cry from genocide they emanate from the same Institutional dogma of bible and plow assimilation. The cumulative impact of such actions was enhanced by the exponential expansion of the Department of Indians Affairs in the last three decades of the nineteenth century. To reference one particularly well considered sub-topic in the monograph, the colonial state attempted in a variety of ways, over the course of decades, to dictate the terms in which the people of Kahnawà:ke apportioned and used the sugar maple resources on the reserve. Repeatedly, the state foundered on the inability to fully comprehend the idea of shifting common property rights, which promoted the household economies of residents.
The Laws and the Land is an important study for historians, as it almost seamlessly blends social and cultural development with political and legal history. Indigenous history is not simply the history of uninterrupted subjugation or a long and difficult history of resistance as it has generally been portrayed. The interplay between tense or violent community level resistance and court challenges became more open after the revision of the Indian Act in 1951. However, it also existed in the 19th century, but the two are generally treated as separate categories by scholars. The Laws and the Land provides a fuller account of Indigenous – settler relations on this score – and it is critical that historians embrace the idea, because the legal community of judges and Crown attorneys harbour static and badly outdated ideas that produce inconsistent and sometimes contradictory responses; the result is to continue the tradition of fostering chaos to serve colonial interests through bureaucratic/judicial means. When the Marshall Decision (1999), for example, produced social conflict in its wake, the Supreme Court retreated to the frozen-in-time mentality that had held sway for decades in the 2006 Sappier and Polchies decision . The frozen in time mentality essentializes Indigenous economic life at the point of early contact, relying mostly on European texts from the period. With regard to Sappier and Polchies the court determined that there was no evidence of a trade in timber in the pre-contact period and therefore Indigenous rights to the Crown forest were restricted to household consumption – any sale of Crown land wood is illegal. By contrast, the Marshall decision extended the right of Indigenous people to a “moderate livelihood” from the fisheries, despite the fact that there was, likewise, no record of pre-contact commercial activities. That is not good enough. Indigenous and non-Indigenous citizens alike need an informed judiciary operating from a common template that is acceptable to all. Rück demonstrates that Indigenous economic life was always evolving and responsive to opportunities with regard to the utilization of wood, fish, game, soil, minerals and, of course, land.