Challenging Subjectivities

From the point of view of literary and legal studies, the diasporic subject may appear at first sight as the more‘post’-colonial and more‘literary’subject, i.e.

ambivalent and hybrid, dynamic and full of ambivalence and potentially con-flicting meanings. In contrast, the indigenous subject is likely to appear more au-thentic and original, somehow more‘pre’-colonial, possibly even archaic, still linked to a specific geographical point of origin (whether through physical at-tachment or by narrative association) but potentially also threatened by dis-placement, dislocation and extinction. To call the indigenous subject a more

‘legal’ subject is of course not meant to deny the obvious literary presence and negotiation of native subjectivities throughout the modern history of human rights, but rather to recognize and emphasize the fact that the attempt to conceive the indigenous subject as a legal subject–more precisely, a

collec-tive legal subject–has resulted in specific legal instruments and human rights declarations, most obviously, the UN Declaration on the Rights of Indigenous Peoples from 2007.³ As Ronald Niezen has argued, the struggle of indigenous peoples all over the world for the recognition of their precarious conditions of existence and survival and their tenuous status as legal subjects and bearer of human rights has resulted from successfully introducing and subsequently es-tablishing indigenism as a“legal category that is now the focus of numerous human rights, health and development initiatives in the UN system.”⁴ In face of the fact that the “use of the term ‘indigenous’ in reference to a distinct human group or community with rights of self-determination”is only“fairly re-cent,”as Niezen concludes, the ascendancy of the indigenous as a legal category and as a universal term for a collective identity“providing a common collective rubric for a significant number of people from many parts of the world who saw it as descriptive of themselves and their communities”must appear astounding.

The 2007 UN Declaration of the Rights of Indigenous Peoples is thus only the last and most recent illustration of the increasing“legal concretization”of the term

‘indigenous’over the last 50 years.⁵

 See e.g James S. Anaya,Indigenous Peoples in International Law(Oxford: Oxford UP,);

Ronald Niezen,The Origins of Indigenism. Human Rights and the Politics of Identity(Berkeley:

U of California P,); Benjamin Richardson et al. eds.Indigenous Peoples and the Law (Port-land: Hart,). As Anaya, among others, has argued, indigeneity must be regarded as an in-herent aspect of the emergence and subsequent development of modern international law since the fifteenth century. Moreover, as the example of Francisco de Vitoria’s treatise on the Indians clearly shows, the question of the rights of indigenous subjects as a collective was clearly at the center of this development, the‘Indians’were both literary and legal subjects from the begin-ning of modern international law which precedes, but also preforms the legal and literary imag-ination of the human rights subject in the eighteenth century.

 Ronald Niezen, The Rediscovered Self. Indigenous Identity and Cultural Justice (Montreal:

McGill-Queens UP,),.

 Niezen,Rediscovered Self,,–. Karen Engle has pointed out the important fact that post-WWII developments in international human rights and international indigenous rights movements have different trajectories and despite their obvious similarities also diverge on cen-tral issues such as the status of individual rights versus collective or group rights (especially cul-tural rights). Since the issue of collective rights almost inevitably turns on the question of (group) identity, there is an implicit and continuing tension between the (individual) subject of human rights and the (collective) subject of indigenous rights. See Karen Engle,“On Fragile Architecture: The UN Declaration on the Rights of Indigenous Peoples in the Context of Human Rights,”EJIL:():–. On the status of indigenous rights as collective human rights, see Cindy Holder,“Self-determination as a Basic Human Right: The Draft UN Declaration on the Rights of Indigenous Peoples,”inMinorities within Minorities: Equality, Rights and Diver-sity,ed. A. Eisenberg, J. Haalev-Spinner (Cambridge: Cambridge UP,):–.

No similar form of ‘legal concretization’ can be observed in regard to the concept of diaspora or the diasporic subject over the last decades. Thus, as Anu-pam Chander has stated, in contrast to the strong interest in diaspora in the hu-manities in general and literary studies in particular since the 1990s, and the enormous theoretical potential and critical influence of the concept across a range of other disciplines including sociology and political science, legal schol-arship for a long time remained rather reluctant to respond to the concept and the phenomenon of transnational diasporic communities:

The legal literature treats diaspora as a historical or perhaps a cultural phenomenon, but ignores its political and legal relevance. […] Little attention is paid to the transnational ties of diasporas, especially their concern for their homeland. In fact, the concepts of the home-land and the transnational community built by a diaspora […] make only rare appearance in legal scholarship.⁶

Writing in 2001, Chander observed: “Where law has faltered, the humanities have forged ahead”by establishing“diaspora as a central focus of inquiry in un-derstanding our time”and investigating in particular“the impact of diasporas on fundamental legal concepts such as immigrant, citizen and nation.”⁷ If we follow Chander then, the humanities may have discovered and pushed the legal potential of the diaspora concept way before the law or legal studies did –yet the legal acknowledgment of the conceptual weight and charge of the con-cept of diaspora obviously still lags behind the universal accon-ceptance of ‘indige-neity’as a legal and a conceptual category. It might get there eventually, but it does not have the same credentials.

This comparison between the two concepts in regard to their respective pur-chase in legal and literary discourse seems at first a bit far-fetched and beside the point. The contrast is far from accidental, however. In fact, one could argue that the reason for the very success of‘indigenism’as a legalcategory is precisely what makes it difficult to accept and integrate it into the framework of diaspora as aliterarycategory. The resistance, furthermore, is mutual: What makes the concept of diaspora essentially inacceptable within the framework of indigenism is its inherent critical antagonism to some of the central aspects that allowed for the translation of the indigenous into a potential legal subjec-tivity in the first place.

Anupam Chander, “Diaspora Bonds,”New York University Law Review  (): –

,–.

Chander,“Diaspora Bonds,”.

In one of the most influential and substantial contributions to the continu-ing metacritical debates on the conceptual foundations of diaspora studies, James Clifford argued as early as 1994, that the conceptual claims of diaspora discourses as“political struggles to define the local, as distinctive community, in historical contexts of displacements”are at odds with similar claims for dis-tinctive communities brought forward by tribal communities, despite the fact that there may be“significant areas of overlap.”Clifford writes:

[T]he specific cosmopolitanisms articulated by diaspora discourses are in constitutive ten-sion […] with indigenous, and especially autochthonous, claims. These challenge the he-gemony of modern nation-states in a different way. Tribal or‘Fourth World’assertions of sovereignty and‘first nationhood’do not feature histories of travel and settlement, though these may be part of the indigenous historical experience. They stress continuity of habita-tion, aboriginality, and often a‘natural’connection to the land. […] Tribal cultures are not diasporas; their sense of rootedness in the land is precisely what diasporic people have lost.⁸

The tension between diasporic and indigenous conceptualizations of legal and literary subjectivities is deeply political; once one realizes the strategic and prag-matic orientation of the essential aspects of the respective notions, the diasporic and the indigenous appear more and more mutually exclusive. For the Canadian scholar of global culture Diana Brydon, for instance,“the concepts of diaspora reach their limits in the claims to indigeneity”⁹pointing to an unresolved and potentially irreconcilable antagonism between the strategic objectives and polit-ical pragmatics of the two concepts. This antagonism is felt most poignantly in cultures and societies that are as much shaped by postcolonial diaspora com-munities as they are by the resistant remnants of indigenous comcom-munities strug-gling for their rights. As Sophie McCall comments on the Canadian situation:

For the past several years [McCall is writing in 2012; P.Sch.], a growing split has become increasingly evident in critical studies of diasporic and Aboriginal literatures in North America: while most critics of diasporic literatures engage with questions of migrancy in an era of transnational corporatization, the majority of critics of Aboriginal literatures have turned to the language of sovereignty and nationhood in an era of land claims, self-government agreements, and modern days treaties.¹⁰

 James Clifford,“Diasporas,”Cultural Anthropology:(): –, –, .

 Diana Brydon,“It’s Time for a New Set of Questions,”Essays on Canadian Writing():

–,.

 Sophie McCall,“Diaspora and Nation inMétisWriting,”inCultural Grammars of Nation, Diaspora, and Indigeneity in Canada,ed. Christine Kim, Sophie McCall, Melina Baum Singer (Wa-terloo: Wilfried Laurier UP,):–,.

As these and other similar remarks make clear, there is an inherent tension be-tween concepts of diaspora and concepts of indigeneity; a tension, in fact, which turns each one of the terms into the conceptual‘inversion’or even negation of the other. This becomes rather clear in Clifford’s seminal discussion, when early on he rejects the attempt to define diaspora in its various forms according to a set of inherent characteristics or features, proposing instead to“specify the discursive field diacritically”:

Rather than locating essential features, we might focus on diaspora’s borders, on what it defines itself against. And, we might ask, what articulations of identity are currently being displaced by diaspora claims. It is important to stress that the relational positioning at issue here is not a process ofabsolute othering, but rather ofentangled tension.Diasporas are caught up with and defined against (1) the norms of nation-states and (2) indigenous, and especially autochthonous, claims by“tribal”people.¹¹

Despite Clifford’s proviso that the correlation between diaspora and indigeneity should best be conceived of as one of‘entanglement’and critical‘tension’rather than mutual exclusion and opposition, the conceptual antagonism between the terms has played out much more effectively than the critical acknowledgment of their troublesome kinship. For once, the claims of indigenous or“tribal”people (Clifford’s skeptical use of the quotation marks is rather telling here) have been almost completely ignored throughout the increasing‘globalization’of diaspora as a critical discourse. Rather tellingly, the series onGlobal Diasporas, published by University College London since 1997, which opened with an eponymous vol-ume Global Diasporas. An Introduction, describing and discussing the wide-spread contemporary global phenomenon of diasporic identities and communi-ties within a broad historical perspective did not include any discussion in reference to the particular historical fate and current situation of indigenous peoples. Despite its obvious interest in the historical analogies and dynamics which link diasporic communities over historical times and across geographical spaces, the volume proceeded as if the history of ancient and modern day dia-sporas could be discussed without any acknowledgement of the conceptual com-plicity–to say nothing about the historical links–which have tied and still tie the diasporic to the indigenous. It is as if the two terms have come to designate two forms of postcolonial subjectivities that are separated by their shared histor-ical experience.

This radical opposition has also been emphasized from the perspective of indigenous or native studies, and especially so where the political and

concep- Clifford,“Diasporas,”; my emphases.

tual claims towards legal and cultural identity have come to be based on forms of alternative and resistant nationalism. The development ofAmerican Indian Lit-erary Nationalism,for instance, is a clear indicator of the particular critical way in which the relation between the‘norms of the nation state’and‘the claims by tribal people’are interpreted and transformed into activism by native writer and scholars. In this respect, Tom King’s strong reaction to the category of the post-colonial in his famous 1990 essay“Godzilla vs. Post-Colonial”can be read as an early, but clearly radical opposition against the claims of ‘hybridity’ and ‘dia-spora’in the context of the historical struggle of native literature for an alterna-tive subjectivity which always had sustained (and still sustains) itself in opposi-tion to the abstract norms of the naopposi-tion state.¹²

All these critical statements, as well as many other similar comparative as-sessments of diaspora and indigenism, strongly suggest that the two concepts are not simply incompatible because they stand for distinct and basically incom-parable conditions and constellations and thus refer to different–legal and lit-erary– subjectivities. More importantly, the indigenous and the diasporic are seen as mutually exclusive in essential ways, i.e. they cancel each other out, as it were, as critical and analytical tools. Commenting on William Safran’s early attempt to establish a more refined definition of diaspora in the introduc-tory programmatic volume ofDiaspora, Renate Eigenbrod observes that Safran’s

“comparative discussion of various diasporas […] does not include Indigenous communities,”and concludes:

This not surprising as indigeneity and diaspora are,or should be, seen as opposite sides of a people’s expressions of belonging and home since‘Indigenous’connotes a sense of home as living on the land you were born into, i.e. not displaced from, while notions of diaspora originates in the description of the Jewish dispersion … and means a scattering, an exile […].¹³

The inserted conditional‘should be’points at the conceptual function of the dif-ference between diaspora and indigeneity, meaning that their respective analyt-ical value comes to depend on their implicit–or in this case explicit– opposi-tion. The particular opposition which Eigenbrod emphasizes is that between geographical dispersal and displacement on the one hand and continuity of

ge- Tom King,“Godzilla vs. Post-Colonial,”inWorld Literature Written in English.():

–.

 Renate Eigenbrod,“Diasporic Longings, (Re) Figurations of Home and Homelessness in Ri-chard Wagamese’s Work,”inCultural Grammars of Nation, Diaspora, and Indigeneity in Canada, ed. Christine Kim, Sophie McCall, Melina Baum Singer (Waterloo: Wilfried Laurier UP,):

–,–; my emphases.

nealogical and historical habitation in one place on the other. Yet this opposition is hardly as obvious as it appears to be on first sight, since it would mean that the second generation of a diasporic community, for instance, may become ‘in-digenous’over time as long as it remains within the same geographical space. On the other hand, it also hints at the possibility that the diasporic identity of a community could be sustained by the historical and genealogical transference or tradition of exile as a form of (be‐)longing from one generation to the next.

In other words, both concepts refer to a specific relation or better calibration of two forms of identity formation and sustenance– one of which refers to a sense of historical continuity in relation to collective dislocation from one specif-ic place and another one whspecif-ich refers (in ways that are comparable yet also somehow inverted) to the sense or claim of a genealogical continuity in regard to a specific location.

This particular internal tension has also been noticed and commented upon by more recent critics who have attempted to negotiate the conceptual frame-work of diaspora theories in relation to the frameframe-work of neighbouring theories of transnational cultural and social studies.“Classic definitions of diaspora,”

Russel King and Anastasia Christou, for instance, have argued in reference to (among others) Clifford and Safran’s earlier attempts to come up with general analytical categories of diaspora, that these very categories“tend to portray a rather static entity”or, more precisely,

a historical process of spreading and scattering to produce a particular‘ethnic’population distribution and a‘state of being’or‘diasporic consciousness’that likewise does not stress further movement, except perhaps in terms of a‘floating’liminality and hybridity. […] This may indeed have been the case in the past, and may still be so in some diasporas for whom the point of originno longer exists or cannot be identified.

It is almost as though the very definition of diaspora assumes that diasporic popula-tions aspire butcannotreturn. […]

In contrast to these earlier concepts which emphasized diaspora as a state (of homelessness or dislocation) and thus defined the diasporic subject in sharp dis-tinction to the indigenous subject, King and Christou point out that

[i]ncreasingly […] a combination of the diasporic ethnic (or other) identity and improved means of long-distance travel enables a return to the land of parents and ancestors to be-come a reality.¹⁴

 Russell King, Anastasia Christou,“Diaspora, Migration and Transnationalism: Insights from the Study of Second-generation‘Returnees’,”inDiaspora and Transnationalism. Concepts,

The-There is an unsettling quality in these observations, if not already in the devel-opments observed; unsettling precisely in regard to the conceptual and critical distinction and purchase we may invest in and assign to terms like diaspora and belonging, on the one hand, and notions like homeland and indigeneity, on the other. It must also be unsettling, and maybe even more so, in light of the most recent waves of refugees and migrants throughout the world since in obvious and tragic ways the possibilities of long-distance travel and transporta-tion also produce new forms of displacement, dislocatransporta-tion and diasporic com-munities world-wide.

Thus, if the more recent definitions of diasporic and migrant subjectivities appear to be more flexible and less static and better attuned to the global dy-namics of an unprecedented and ever increasing mobility of capital, goods, and people, this conceptual attunement comes with the price of an inevitable tendency towards abstraction. The more encompassing the concept of diaspora becomes as a central analytical tool to tackle the contemporary complexities of migration and dislocation on a global scale, the less it may be able to convey a specific sense of belonging and a distinct form of imaginary attachment to a lost home, which over time have come to be inscribed in, and expressed through, rather specific narratives and histories about the collective experience of dislo-cation, persecution, and continuing exclusion, resulting in an identity built on collective remembrance rather than individual experience. As a consequence, the figure of the migrant has become the most obvious contemporary represen-tation of postmodern and postcolonial subjectivity. As migrant subjects, contem-porary diasporic subjects have become global subjects, and especially in litera-ture, these new diasporic subjects observed by King and Christou have almost acquired the status of ‘default’ subjects in fictional narratives, especially in the field critically claimed as‘new literatures in English’since the 1980s. Ironi-cally (or quite consequentially, depending on one’s point of view) this is the same field which has also rather consistently and emphatically made the case for the global reach, but also local and even native character of these new ‘glo-cal’literatures which of course are anything but English in a conventional

Thus, if the more recent definitions of diasporic and migrant subjectivities appear to be more flexible and less static and better attuned to the global dy-namics of an unprecedented and ever increasing mobility of capital, goods, and people, this conceptual attunement comes with the price of an inevitable tendency towards abstraction. The more encompassing the concept of diaspora becomes as a central analytical tool to tackle the contemporary complexities of migration and dislocation on a global scale, the less it may be able to convey a specific sense of belonging and a distinct form of imaginary attachment to a lost home, which over time have come to be inscribed in, and expressed through, rather specific narratives and histories about the collective experience of dislo-cation, persecution, and continuing exclusion, resulting in an identity built on collective remembrance rather than individual experience. As a consequence, the figure of the migrant has become the most obvious contemporary represen-tation of postmodern and postcolonial subjectivity. As migrant subjects, contem-porary diasporic subjects have become global subjects, and especially in litera-ture, these new diasporic subjects observed by King and Christou have almost acquired the status of ‘default’ subjects in fictional narratives, especially in the field critically claimed as‘new literatures in English’since the 1980s. Ironi-cally (or quite consequentially, depending on one’s point of view) this is the same field which has also rather consistently and emphatically made the case for the global reach, but also local and even native character of these new ‘glo-cal’literatures which of course are anything but English in a conventional