Kathleen Birrell - Indigeneity: Before and Beyond the Law

Indigeneity: Before and Beyond the Law

Examining contested notions of indigeneity, and the positioning of the Indigenous subject before and beyond the law, this book focuses upon the animation of indigeneities within textual imaginaries, both literary and juridical. Engaging the philosophy of Jacques Derrida and Walter Benjamin, as well as other continental philosophy and critical legal theory, the book uniquely addresses the troubled juxtaposition of law and justice in the context of Indigenous legal claims and literary expressions, discourses of rights and recognition, postcolonialism and resistance in settler nation states, and the mutually constitutive relation between law and literature. Ultimately, the book suggests no less than a literary revolution, and the reassertion of Indigenous Law.

To date, the oppressive specificity with which Indigenous peoples have been defined in international and domestic law has not been subject to the scrutiny undertaken in this book. As an interdisciplinary engagement with a variety of scholarly approaches, this book will appeal to a broad variety of legal and humanist scholars concerned with the intersections between Indigenous peoples and law, including those engaged in critical legal studies and legal philosophy, sociolegal studies, human rights and native title law.

Kathleen Birrell is based at Melbourne Law School, Australia.

Indigenous Peoples and the Law

Series editors

Dr Mark A. Harris, La Trobe University, Australia;

Prof. Denise Ferreira da Silva, Queen Mary, University of London, UK;

Dr Claire Charters, University of Auckland, New Zealand;

Dr Glen Coulthard, University of British Columbia, Canada

The colonial modalities that resulted in the pillaging of the New World involvedwholesale dispossession, genocidal violence and exploitation of their original inhabitants. It was not, however, until the latter part of the 20th century thatIndigenous peoples attained some degree of legal recognition. This book series focuses upon the manner in which Indigenous peoples experiences of law havebeen transformed from an oppressive system of denying rights to a site of contestation, and the articulation of various forms of self-governance. Encouraginga range of theoretical, political and ethical perspectives on Indigenous peoples and the law, this book series aims to provide a comprehensive survey of theexperience of Indigenous peoples and their changing relationship with national and international juridical frameworks.

Titles in this series:

Aboriginal Peoples, Colonialism and International Law
Raw Law
Irene Watson

Forthcoming titles in this series:

Human Rights, the Rule of Law and Exploitation
Blood Minerals
Mark Harris

The Literary and Legal Genealogy of Native American Dispossession
The Marshall Cases Trilogy
George Pappas

Scales of Governance and Indigenous Peoples
New Rights or Same Old Wrongs?
Edited by Irne Bellier and Jennifer Hays

Indigenous Peoples as Subjects of International Law
Irene Watson

Indigeneity: Before and Beyond the Law

Kathleen Birrell

First published 2016
by Routledge
2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN

and by Routledge
711 Third Avenue, New York, NY 10017

a GlassHouse book

Routledge is an imprint of the Taylor & Francis Group, an informa business

2016 Kathleen Birrell

The right of Kathleen Birrell to be identified as editor of this work has been asserted by her in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988.

All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers.

Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe.

British Library Cataloguing in Publication Data
A catalogue record for this book is available from the British Library

Library of Congress Cataloging-in-Publication Data
Birrell, Kathleen Beth, author.
Indigeneity : before and beyond the law / Kathleen Beth Birrell.
pages cm. (Indigenous peoples and the law)
Includes bibliographical references and index.
ISBN 978-1-138-79332-3 (hbk) ISBN 978-1-315-76131-2 (ebk)
1. Indigenous peoples--Legal status, laws, etc.Philosophy. 2. Indigenous peoplesSocial conditions. 3. Indigenous peoples in literature. 4. Aboriginal AustraliansLegal status, laws, etc. I. Title.
K3247.B57 2016
342.0872dc23
2015025501

ISBN: 978-1-138-79332-3 (hbk)
ISBN: 978-1-315-76131-2 (ebk)

Typeset in Baskerville and Gill Sans by
Florence Production Limited, Stoodleigh, Devon, UK

PART I
Narratives

PART II
Indigeneity

PART III
Law

PART IV
Literature

Writing, it has been surely suggested by many, is seldom the singular enterprise it may appear to be. On the completion of this book, I am indebted to many, as supervisors, colleagues, editors, institutional benefactors, friends and family. Derived as it is from my doctoral thesis, my greatest debt is to my doctoral supervisor, Professor Peter Fitzpatrick, whose remarkable scholarship and exemplary and generous supervision both illuminated and emboldened me. I am grateful for the intellectual rigour he brought to my own scholarship, and to regular meetings with other students, for his careful and unhurried guidance, and for his consistent attention to the detail of my work. But, more than this, I am grateful for his extraordinary kindness and friendship and, alongside Shelby Ferris Fitzpatrick, for welcoming us into their home and wondrous garden.

My gratitude extends to the Birkbeck Law School, University of London, and its stimulating and enriching community. I thank those who shared their intellectual endeavours and friendship with me in reading groups and beyond, particularly Maria Aristodemou, Richard Bowyer, Lucy Finchett-Maddock, Ben Golder, Richard Joyce, Chris Lloyd, Maria Carolina Olarte, Victoria Ridler, Matthew Stone, Illan Wall and Thanos Zartaloudis. I also thank the Birkbeck Department of English and Humanities for their facilitation of interdisciplinary work, particularly Sharon Holm. I am grateful for the provision of institutional financial support during my studies, through the Ronnie Warrington Studentship, the Birkbeck Overseas Research Studentship and the Birkbeck College Research Studentship. I also acknowledge the richly diverse community of Goodenough College, London, of which I was privileged to be a part, and the Menzies Centre for Australian Studies, Kings College London, which also supported my studies in London. I particularly thank Rebe Taylor, for her wonderful intellectual companionship, collaboration and enduring friendship.

In Melbourne, I am enormously grateful to Professor Lee Godden and Associate Professor Maureen Tehan, who provided wonderful collaborative opportunities at Melbourne Law School. I am also grateful to Professor Sundhya Pahuja, who made the initial introduction to Peter Fitzpatrick and encouraged my early ideas. Among many others, my debt also extends to Olivia Barr, Julie Evans, Ann Genovese, Bec Goodburn, Kirsty Gover, James Parker, Marc Trabsky, Yoriko Otomo and Margaret Young.