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

Abstract

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.