Indigeneity: Before and Beyond the Law: 1st Edition (Paperback) book cover

Indigeneity: Before and Beyond the Law

1st Edition

By Kathleen Birrell


258 pages

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Paperback: 9781138570375
pub: 2017-10-12
Hardback: 9781138793323
pub: 2016-03-30
eBook (VitalSource) : 9781315761312
pub: 2016-07-01
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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.

Table of Contents



The Question of Indigeneity

(Mis)recognising Indigeneity

The Legal Indigene

Performing Indigeneity

Unsettling Indigeneity

The Literary Indigene

A Strange Play

Puncturing the Horizon


To Speak of the Other




An Imperial Orientation

Subjects of Empire

An Impossible Object

Return of the Native

The Proper Indigene

The Legal Archive

An Originary Indigeneity

An Essential Ghost

Indigeneity as Other

Desiring Indigeneity

Before the Law



Juridical Violence

The Madness of the Decision

Justice as Law

An Idea of Justice

Legitimate Fictions

The Last Uncharted Continent

The Colonial Gaze

Origin and Content

Mythic Indigeneity

The Ancient Tribe

Law as Literature



A Fictive Institution

The Postcolonial Project

Mimetic Indigeneities

Becoming Indigeneity

(Re)imagining Indigeneity

A Law of Alterity

A Subversive Juridicity

Recuperative Jurisprudences

Decolonising Country

Beyond the Law

To Conclude

About the Author

Kathleen Birrell is based at Melbourne Law School, Australia.

About the Series

Indigenous Peoples and the Law

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

The series will include both monographs and edited collections pursuing variety a of perspectives – including, but not limited to, a concern with:

  • Law as a mechanism of power/knowledge: that is, the discursive and biopolitical strategies of Conquest, Settlement, and Empire – with a  particular interest in how the juridical was deployed to validate land appropriation in the ‘New World’ and European colonies. This might include consideration of the influence of the writings of Vattel, Blackstone, Sepulveda, Vittoria, las Casas and others in framing Indigenous populations and their lands as supposedly amenable to colonization.
  • The role of law in authorising oppression, dispossession and genocide in the colonial period, and how such juridical moments continue to shape relations between Indigenous peoples and the State. This might include consideration of: specific governmental policies and legislation that allowed for forced removal of Indigenous children; appropriation of Indigenous lands; the imposition of regimes of control through government reserves and missions; and/or the role of treaties in providing legal justification for the dispossession of Indigenous peoples.
  • Contemporary issues that confront Indigenous peoples in their dealings with law in the global present. This might include consideration of: disputes relating to resource extraction; access to justice and over-representation in the criminal justice system; cultural heritage and intellectual property claims; the recognition of Indigenous laws; land rights; the belated recognition of Indigenous rights in both ‘new’ constitutions and in international law; and/or sovereignty.

If you are interested in submitting a proposal for the series, please contact:

Mark Harris

The University of British Columbia

[email protected]


Colin Perrin


2 Park Square

Milton Park



OX14 4RN

[email protected]

Learn more…

Subject Categories

BISAC Subject Codes/Headings:
LAW / General
LAW / Jurisprudence
LAW / Discrimination
LAW / Indigenous Peoples
SOCIAL SCIENCE / Black Studies (Global)