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Mapping the Legal Consciousness of First Nations Voters: Understanding Voting Rights Mobilization

The Enfranchised Voter

For most disadvantaged groups, the right to vote is an achievement which can be mobilized without symbolic losses or costs. For the suffragette movement, gaining the right to vote was an achievement of recognition and an acknowledgement of difference.Footnote 33 While the grounds for denying women the right to vote had been principally one of questioning the competence of women to vote and holding that their interests could be expressed by male voters, granting women the right to vote can be construed as a rejection of both of these claims. The right to vote for women is an acknowledgement of the equal status of men and women in elections; everyone's vote counts. The same point can be made about the achievement of the right to vote for African Americans in the civil rights movement. At their core, the landmark U.S. civil rights achievements are grounded on the recognition of equal status for African Americans in civil society.Footnote 34

As the brief history of First Nations voting rights shows, the idea of an enfranchised voter was not something celebrated within First Nations communities. There is little common ground in terms of voting rights between Canada's First Nations peoples and other historically disenfranchised groups such as women and African Americans.Footnote 35 Until 1960, the provisions for enfranchisement in the Indian Act were grounded on the denial of equal status for Indians. Voting rights were not available to all First Nations peoples. The ascription of the right to vote in a federal election to a person precluded the possibility of recognition as an Indian. First Nations culture and identity was simply not recognized as the equal of other national identities. For those individuals who successfully escaped the yoke and burden of First Nations identity, the right to vote was a possibility, but not for anyone else. The symbolic legal identity of a voter is, in this form of legal consciousness, one of being a non-Indian.

Thus, historically, the practice of enfranchisement in First Nations communities amounted to a polarized choice for an individual: exercise the right to vote in federal elections or maintain your Indian identity. To vote meant not just disengaging from your community, but also giving up a legal status and the concrete entitlements that went with it. It was an acknowledgement and acceptance of the view that First Nations culture and identity is impoverished and not the equal of other national identities in Canada. Historically, the law made exercising the right to vote and enjoying First Nations identity incompatible for individuals.

Seen in this light, not voting for some individuals from First Nations communities can be seen as a mode of resistance against this traditional discourse of unequal status and the denial of recognition. The opportunity not to participate in federal elections can be understood as creating the space for this counter-narrative. What may appear to be apathy is in fact a strong statement about the baggage that the right to vote carries for the relationship between the government of Canada and First Nations. When individuals partake in this mode of resistance, they are involved in a process of collective legal consciousness. They are participating in the construction of a particular alternative legal identity of Aboriginal persons. It is not the case that each individual is constructing their own particular identity; the identities are not infinitely various but limited.

This mode of resistance is, I think, quite unique to individuals from Canada's First Nations. Of course, not voting as an act of resistance is not in itself unique. Individuals may not vote in elections as expressions of resistance or dissent from, for example, the candidates on hand or a flawed process or for other such reasons. Typically, among disadvantaged groups, voting is a means to reinforce one's status as an equal. What I am suggesting is that for some First Nations persons not voting is the means to reinforce their claim to equal status.

This form of legal consciousness can provide insight into low levels of electoral participation in First Nations communities. Even with very significant changes to doctrinal law, especially since 1960, the historical legacy of the voting rights provisions of the Indian Act may well be shaping the legal consciousness of some individuals and contributing to their decisions not to participate in federal elections. Obviously, the actual reach of the memory of the enfranchisement experience for First Nations voters – does it only affect older voters? Is the memory weaker among younger voters? – is something that is best explored through careful fieldwork and interviews.

Footnote 34 Lesley A. Jacobs and Richard Vandewetering, "Introduction," introduction to The Subjection of Women, by John Stuart Mill (New York: Caravan Books, 1999).

Footnote 34 Lesley A. Jacobs, Pursuing Equal Opportunities (New York: Cambridge University Press, 2004), ch. 3.

Footnote 35 Unlike these other groups, First Nations peoples possess a special legally-recognized status which was put in jeopardy by the extension of the right to vote.