Law, Religion, and Paradoxes of Sovereignty

States of Exception, Traditions

We are excited to bring Spencer Dew, Nicholas Shrubsole, and Méadhbh McIvor into conversation about the juridification of religion and the religification of law, about the network of relationships that are exposed to us when law and religion interact, about a shared skepticism toward religious identities, and more.

In his short story “Hard Riding,” Cree writer D’Arcy McNickle presents us with a white reservation superintendent, Brinder Mather, who portrays what justice on the (unnamed) reservation might look like if a tribal court would be established. But can Mather’s conception of justice (and of law) persuade his Indigenous listeners?

The story reads as one about the dynamic between different kinds of authority. At first glance, it might seem as if we have a charismatic leader in confrontation with traditional authority about setting a new legal-rational order. Mather, the white “leader,” stands in front of a group of Native Americans, a Tribal Council of twenty, inviting them to follow him into a better, more progressive, more just social order, where the rule of law will trump the rule of man. To his great frustration, the community still defers to the authority of its elders, and it is not easily convinced by Mather’s arguments. Mather has delivered countless speeches. He is weary of trying to show his reluctant followers the light. The situation is staged in a way that ascribes to Mather the role of a leader, but tradition does not even allow his potential followers to see the ostensible advantage of his position. 

Mather, “the hardest rider in the country,” thought his horses did not “earn their feed” and therefore, “quite naturally had doubts about Indians,” who most definitely did not earn their feed. Thinking of himself as “a nurse to their helplessness,” and referring to the Tribal Council members as “boys,” Mather has been losing patience with his patients, but was still hopeful. “Tall and dignified” he enters the schoolhouse where their final meeting, the one in which he must “put it over or drop it,” is about to take place. “One by one they followed him into the schoolroom,” where Mather will stand at the teacher’s desk, and the “boys” will sit at the students’ seats. It has been five years since Mather started his first job as a reservation superintendent, and as he has learned, his charges would always try to stall you if you let them. They always need time to talk about new ideas you present to them. Mather’s new idea was cattle.

Indians don’t know, more than that don’t give a damn, about dragging their feet behind a plow. Don’t say as I blame ‘em. But Indians’ll always ride horses. They’re born to that. And if they’re going to ride horses they might as well be riding herd on a bunch of steers. It pays money. 

That is what Mather had learned from his mentor. Native Americans share Mather’s love for horses, which means he can talk to them. Mather has persuaded everyone – Washington officials, visitors inquiring about Indian welfare, and, finally, the community itself – to purchase cattle for the reservation. Now that he successfully turned those Indians into cowboys and the cattle earn them money, he has a new idea for them. Standing at the teacher’s desk, moping his brow – “the schoolroom was an oven” – he is trying to persuade them that this new idea is at least as good as the previous one. 

“All were held in the spell of Mather’s words, or at any rate were waiting for him to finish what he had to say.” Encouraged by their silence, he continues to remind them that “we” have a problem: every year a certain number of cattle disappears. The explanation for this disappearance is well-known:  

…you know as well’s I do that there’s a certain element on the Reservation that don’t deserve fresh meat, but always has it. They’re too lazy or too ornery or they just don’t know what it’s all about. But they get fresh meat just the same. 

To his mind, Mather is encountering injustice, and he is determined to battle it. Mather understands that the community does not mind the loss, that this is, for them, some form of a welfare system. But this is not how things should be, he thinks. Stealing is just wrong. “You can do what you like with your money,” he tells them. Except, of course, for just giving it to those lazy Indians who steal from them. Assured that he has convinced them that there is a problem, he proposes a solution: establishing a court of Native judges. Again, he tells them they can deal with those criminals in their own way, and then immediately suggests throwing the criminals in jail for six months.        

That was the very point he had reached the last time he talked to the Council, a month before. He had stopped there because they had started asking questions. They had asked questions that had revealed to him that they had no idea what he was talking about, questions such as “if we have a tribal court […] do we have to put somebody in jail?” or “If somebody has to go to jail, let the Superintendent do it. Why should we have to start putting our own people in jail?” 

Mather describes these questions as either nonsensical or intentionally naïve. Another issue that had come up is that of financing. Would the federal government pay for the court? No. It’s time that the tribe become independent. The business (selling those steers that would not be stolen) would pay for the court, and it would be the tribe’s court, not the government’s or the superintendent’s. Like Moses in the exodus story, Mather is going to deliver the Indians from their bondage to the government, and through law, lead them to financial independence and freedom.

But while Moses’s first step was to approach the elders of the community and gain their approval, and while Moses spoke the same language as the elders, Mather is completely alienated from the tribal elders and identified with the government. The worst thing that can happen to Mather is when some “ancient” respected leader starts speaking in the “native tongue.” Then a young man has to translate the elder’s words into English. And here is what the elder said at the last meeting, translated by the young interpreter, in response to the suggestion that the tribe would fund the court: 

The old man here, Looking Glass, says the Gover’ment don’t give us nothing for nothing. The money it spends on us, that’s our own money, he says. It belongs to us and they keep it there at Washington, and nobody can say how much it is or how much has been lost. He says, where is all that money that they can’t afford to pay for this court? That’s what he says.

Mather is annoyed by what he sees as a recurring misunderstanding. The elders always repeat the same questions: “Where’s the money the Government owes us? Where’s our lands? Where’s our treaty?” The young people do understand the agency plans, but a superintendent always fears holding meetings with elders, who are still bothered with these questions. Mather tries to explain that a tribal court will “put an end to all this trouble,” but another elder, Big Face, is rising to speak. 

The reader does not know at first what Big Face is saying, but she reads about the impression he leaves on Mather: “a small man, emaciated by age and thin living, yet neat looking,” he speaks “firmly, yet softly, and not for very long. He sat down as soon as he had finished and let the interpreter translate for him.” And what he says, according to the interpreter, is that the council has discussed it and a court might be all right. Mather may ride too fast and talk too fast, but he has a good heart; therefore, a court might be all right. Mather smiles when he hears it, even though he knows smiling at the Indians is a bad practice. After all, their expression never changes, and one can never know what they think. Moreover, when they speak in their own language, Mather cannot infer from their tone of voice the nature of what they say. “Sometimes the most excitable sounding passages of this strange tongue were very tame in English.” 

When Big Face talks again, he says that there is still a problem: nobody wants to be a judge. Mather is perplexed. Isn’t it an honor to be a judge? Big Face explains: if you want to judge anyone, you have to be perfect, to know everything, and to live up to very high moral standards. If you claim to be that good by becoming a judge, you are simply a liar. People will laugh at you. “We are friends among ourselves and nobody interferes in another person’s business. That’s how it is, and nobody wants to set himself up and be a judge.” Mather tries to conceal his fury. He repeats all the explanations he has already given them. Judges make the court, and if they think a court is a good idea, someone has to be the judge. After a long discussion, the community agrees to appoint three judges. Big Face is about to talk again. He looks smaller and wiser than ever, and Mather feels he is losing his grip on the situation. With a twinkle in his eyes, Big Face names “the most amazing trio the Reservation had to offer”: the first was an aged imbecile dripping saliva, the second, stone deaf and blind, the third, a half-witted clown. “It is better, we think, that fools should be judges,” Big Face explains. “If people won’t listen to them, no one will mind.”

*

McNickle’s protagonist represents everything the community he attempts to lead despises. The idea that he is trying to sell them – constituting a legal system – is completely strange to their understanding of justice; indeed, it is completely ignorant of their conception of justice. The law that Mather sees as promoting stability and independence is perceived by this tribal community as silly, even evil.

Questions of Indigenous sovereignty also animate this story. By refusing to address the context of conquest (“where’s the money the Government owes us? Where’s our land? Where’s our treaty?”), Mather misses the opportunity to engage in a meaningful dialogue with the people in front of him. Mather’s law disregards the communal aspect of Indigenous epistemology (e.g., the welfare system in the form of overlooking the theft of some horses); it addresses only individuals, thus missing the opportunity to achieve justice or to learn something about justice from the community in front of him. Given the circumstances, it seems as if there is only the option to resist ironically, as John Purdy writes. The story raises the problem of conflicting worldviews in a settler colonial situation; it presents the reader with a power structure that is prima facie impossible to overcome. But it also points to an option to resist the power structure by “satisfying the letter of the request, but certainly avoiding its spirit” (Purdy, 9). 

The paradoxes of sovereignty that this story demonstrates, and the subversions it enables, are also the subject of three recent, exciting books about law and religion: Spencer Dew’s The Aliites, Méadhbh McIvor’s Representing God, and Nicholas Shrubsole’s What Has No Place, Remains. Like McNickle’s tribal community, the communities studied in these books engage with state law “ironically.” Each of them understands sovereignty differently; therefore, the stakes of their respective legal activisms are different. Dew’s Aliites see the individual citizen as sovereign and their various interactions with the state as potentially affirming this sovereignty. Despite believing that true law is transcendent, they nevertheless “acknowledge, revere, seek out, and sometimes appropriate the authority of official state legal and political institutions” (67). Even FBI surveillance is welcome as potentially leading to recognition. And what is exposed is the contradictions inherent to a racially segregated democracy. McIvor’s conservative evangelicals see God as sovereign. Therefore, when they go to court, their aim is not necessarily to win a specific case but to demonstrate God’s grace. Since what they want to expose is the flaws of human rights law, “there is a certain benefit to their frequent losses” (77). Shrubsole’s First Nations see themselves as sovereign nations and therefore, when they “enter a courtroom, they do so not as their first choice but as their last” (24). But what is at stake for them in the religious freedom cases Shrubsole writes about is the very existence of their ways of life. If McIvor’s conservative evangelicals want to expose the contradictions inherent to human rights law, especially as it applies in the domestic context of a state that has never been secular, Canadian court cases such as Ktunaxa Nation v. British Columbia expose the contradictions between section 2(a) of the Canadian Charter of Rights and Freedoms, that guarantees religious freedom, and section 35(1) of the Constitution Act, that recognizes Aboriginal rights. 

We are excited to bring these three authors into conversation about the connections they see between their three respective books. In what follows they share the insight they have gained from reading their own work alongside the other two books – about the juridification of religion and the religification of law, about the network of relationships that are exposed to us when law and religion interact, about a shared skepticism toward religious identities, and more. 

Symposium Essays

The State “don’t own a goddamn thing”: Illiberal Religification of the Legal System

MOVE, while an illiberal religion characterized by abrasive rhetoric, is nonetheless an example of the religification of law and the legal system. MOVE activists refused to surrender the court to the state, seeing the legal system as a potential tool against the state, rightly beyond state control.

What Good is “Religion”?

Regardless of our interrogation of it, the terminology of “religion” is operative in the world—not only among the scholars who frame it as a second-order category, but among our interlocutors and kinship networks. Given the baggage that often accompanies it, perhaps it is unsurprising that so many of us are hesitant to apply this label to the people, places, and practices to which we attach meaning.