Decoy politics: How settler states deflect Indigenous threats

Abstract

Anglo settler states like Australia, Canada, New Zealand and the United States were built through the dispossession of Indigenous lands and through the disruption of Indigenous political, social and economic systems. Over time, however, Indigenous nations have challenged the unjust foundations of these states, forcing settler states to respond with repression but also with accommodation, especially in the face of successful Indigenous mobilization. Yet even during these moments, state actors have resisted changes to state sovereignty, sometimes by creating new institutions that seem responsive, but which simply reinforce the status quo. To make sense of these moments, we introduce the concept of “decoy politics” and develop a theory for why states might turn to decoy politics, with a particular focus on Canada. Our findings suggest decoy politics may help explain why reconciliation with Indigenous nations remains difficult despite seemingly genuine attempts at meaningful institutional and policy change.

For much of Canada’s history, Indigenous peoples have had a complex and highly fraught relationship with the Crown. Prior to 1867, English and French settlers relied heavily on Indigenous nations to survive and thrive in what is now known as North America. To cement these important relationships, European settlers entered into nation-to-nation relationships with them, signing treaties that followed and respected Indigenous protocols. Over time, however, these relationships shifted dramatically away from a relationship between equals towards an exploitative one. As settlers increasingly squatted illegally on Indigenous lands, the Crown negotiated land surrender treaties as a way of clearing title so that non-Indigenous residents could acquire lands for settlement. Coupled with these efforts were various policies aimed at marginalizing and assimilating Indigenous peoples into society (Asch, 2014; Miller, 2009; Starblanket, 2019a).

Rather than meekly accepting their fate, Indigenous peoples have challenged the state’s authority in various ways. They created political organizations, engaged in political protests, sought legal protection through the judicial system, and voted and ran for political office. In response, the Canadian state implemented policies to block, assimilate and eventually accommodate Indigenous concerns. Despite government efforts at political enfranchisement, the creation of constitutionally protected Indigenous rights, the negotiation of modern treaties, and the issuing of apologies for residential schools, reconciliation remains elusive (Alcantara, 2013a; Miller, 2018; Simpson, 2016). What explains this outcome?

To answer this question, we build on previous work (Dimtrov, 2020) to introduce and develop the concept of “decoy politics” to describe instances in which states attempt to counter threats to their legitimacy by creating new institutions, processes or policies that seemingly address the concerns of critics, but instead are designed to maintain the status quo. Decoy politics is especially prevalent in settler societies, like Canada, where Indigenous nations have mobilized successfully to challenge the legitimacy of the state in light of historical injustices that dispossessed them of their lands, rights, economies, and political institutions. Indigenous claims cut deeply into the founding myths of settler states and a full, just response to these claims would require the state to fundamentally rethink its constitutional origins and sovereignty (Borrows, 2010; Coulthard, 2014; Starblanket, 2019b). Few states are willing to do so peacefully, and so state elites deploy decoy politics as a way of placating critics while at the same time quietly and subtly reinforcing the status quo. Decoy politics may explain why some settler states have failed to achieve reconciliation with Indigenous communities despite what may seem like good faith efforts at satisfying demands for meaningful change.

Our main goal in this paper is to introduce the concept of “decoy politics.” The paper begins by defining the concept and illustrating its usefulness using three short case studies from Canada. We then sketch out the beginnings of a political theory for why settler states in particular might deploy decoy politics in response to Indigenous threats. The paper ends with some thoughts about how researchers might use decoy politics to better theorize and explain variation in state efforts towards reconciliation and decolonization.

State repression and decoy politics

In the face of societal pressures for change that are at odds with the preferences of state elites, governments frequently turn to the tools of state repression, which Tilly defines as “any action … which raises the contender’s cost of collective action” (Tilly, 1978: 100). State repression can take the form of physical coercion (e.g., arrests, state-sanctioned violence, and surveillance) or channelling (e.g., regulations), which involves the state incentivizing challengers to adopt its preferred behaviours (Earl et al., 2022; Eraydin and Taşan-Kok, 2014). Both types of repression can be either covert (e.g., “when the agents of repression, their actions, and the purpose of their actions are intended to be unknown to the general public”) or overt (e.g., when the agents, their actions, and their purpose are “intended to be obvious to both protestors and wider publics”) (Earl, 2003: 48). Although state repression is typically carried out by public actors, it can also be undertaken by private actors that are affiliated with the state (Earl et al., 2022).

Decoy politics is a unique type of channelling strategy. Instead of offering behavioural incentives, decoy politics involves creating new institutions, policies and regulations that contain, distract, mollify and/or co-opt state agitators. Its implementation is simultaneously overt and covert. Overtly, the state gives the impression that it is willing to be responsive and that it will actively engage in meaningful change. In reality, it is covertly working to impede change and to maintain the status quo. Decoy politics also frequently involves the creation of a legitimacy trap, in which the challengers are appointed to lead the newly created decoy policies, regulations or institutions, which in turn can co-opt and incentivize them to protect the status quo (Morden, 2016).

The concept of “decoy politics” is originally derived from the work of Radoslav Dimitrov (2020), who developed the term “empty institutions” to describe international bodies and organizations whose primary purpose is to stifle rather than facilitate global governance. According to Dimitrov, empty institutions are designed “to pre-empt governance by deflecting political calls for future governance initiatives. They confer legitimacy to collective inaction by satisfying existing norms and neutralizing domestic and international political pressures for genuine policy action in a given issue area” (2020: 16). During the 1990s, the United States and Brazil helped to establish the United Nations Forum on Forests, knowing that such a forum would likely generate policy inaction. In the meantime, they actively opposed the signing of any sort of global forest treaty. Similarly, empty institutions can be used to “hide failure at international negotiations” such as when the “European Union, Norway, Switzerland, some island states, and many countries in the developing world” failed to sign a binding treaty on climate change and so instead tried to negotiate the Copenhagen Accord on Climate Change, in essence, a “skinny political declaration” to save face (Dimitrov, 2020: 17, 14).

For Dimitrov, empty institutions are powerful tools that elites can use “as obstacles to governance rather than mechanisms for facilitating it. Political actors who oppose international policy can block action by creating decoy multilateral agreements. Ironically, these opponents score political points by appearing ‘green’ to a general public that equates multilateralism with environmentalism” (Dimotrov, 2020: 19). In short, empty institutions are tools that international and domestic elites can use when their policy preferences on a salient issue diverge substantially from mass public opinion yet some sort of institutional or policy action is required to satisfy public demands for change.

In the domestic context, empty institutions are just one of many possible tools that state elites can deploy to satisfy demands for change while at the same time thwarting collective action towards meaningful change. States can also create new policies, processes and even state actors to accomplish these goals (Alcantara, 2013b; Coulthard, 2014; Dimitrov, 2020). A major cleavage in Canadian politics has long been the role and place of Quebec in the Canadian federation (Gagnon, 1996; Rocher, 2002). The bargain struck at Confederation was to create a single mono-national (e.g., English) political community at the federal level, while leaving each region/province some autonomy to protect their distinctive cultural and local identities. English Canadians, by the far the largest linguistic group in Canada, would control the federal government and Quebecers would maintain their distinctive society at the provincial level. This bargain, however, did not last very long as Quebec (and eventually other actors) mobilized in the 1960s and onwards to advocate for a formally binational and bicultural Canadian state (Gagnon, 1996; Rocher, 2002). In response, “Canadian political elites frequently responded by extending de facto asymmetric powers to Quebec, while simultaneously insisting on formally symmetric generalization of these concessions to the other provinces” (Basta, 2020: 66–67). When Quebec provincial leaders demanded the power to create provincial income taxes and gain greater control over its pension plans and immigration, the federal government extended those gains to all provinces (Basta, 2020; Russell, 2004).

While these policy concessions were important, they did not address Quebec’s fundamental demand, which was that federal elites formally recognize the binational character of Canada by offering Quebec asymmetrical autonomy and rights not only at the provincial level, but also at the national level (Gagnon, 1996; Rocher, 2002). In response, the federal government frequently engaged in decoy politics. The patriation of the Canadian Constitution in 1982 and the adoption of the Canadian Charter of Rights and Freedoms were attempts to further bind Canada together as a single nation, with cultural distinctiveness to be expressed through individual and group rights. While these efforts placated the rest of Canada, they only further antagonized Quebec nationalists. The 1987 Meech Lake Accord, and to a lesser extent, the 1992 Charlottetown Accord, were designed to finally appease all of Quebec’s demands for binationalism, only to be thwarted by a general public that was no longer interested in such a vision. Since then, Canadian federal elites have continued to defend the symmetric model of Canadian federalism, preferring to deal with Quebec nationalism through de facto policy concessions and symbolic gestures such as parliamentary motions that recognize the unique character of Quebec without attaching any sort of constitutional authority to such pronouncements (Basta, 2020; Rocher, 2002; Russell, 2004).

Defining decoy politics

At its core, decoy politics is a deliberate strategy (rather than a function of laziness or ineptitude) used by states to counter credible threats to their legitimacy. When societal demands for fundamental change emerge, and when those demands cannot be simply ignored, state elites turn to decoy politics to placate the societal actors by giving the appearance of meaningful stage action, when in fact, the goal is to maintain the status quo. In practical terms, state elites propose or introduce new policies, processes, and institutions to signal that they are serious about addressing the threat. In reality, however, they are creating new obstacles to slow down and prevent meaningful collective action from occurring.

Sociological institutionalists have long argued that institutions are not only systems of social rules that structure action, but also communicative symbols that signal collective understandings of what is legitimate and appropriate (Basta, 2020; MacKay et al., 2009). Most of the time, these rules and symbols work in concert with each other. In the case of decoy politics, however, they frequently do not. Decoy institutions are frequently designed to communicate, through symbolism, that the state takes seriously the demands for change, but in practice, they are new, formal rules that discourage collective action. It is important to distinguish decoy politics from other notions of “politics as usual” or realpolitik – it has long been observed by political scientists that there is a disconnect between what politicians advocate or promise, and what they will actually do when governing (Lipset, 1959). To figure out what makes decoy politics mandatory, we can return to our original idea that decoy politics emerge as a response to societal demands for fundamental change.

Decoy politics emerge when the state, at its most reluctant, has no choice but to respond to calls for reform. A non-decoy response is one that is designed to meet the societal demand in good faith. Disarming a decoy can occur through state acceptance that the decoy should be empowered to produce meaningful change, but more likely, it will come from overwhelming societal pressure to disarm the decoy. Societal pressure, at once, represents an impetus for creating decoys and the greatest threat to decoys.

Much like any political institution, decoy politics are subject to constant flux and change, meaning the state must actively ensure the decoy cannot be maneuvered into a position that is harmful to the interests of the state. A good example of these dynamics is the British Columbia Treaty Commission (BCTC) process, which was designed by the Crown to end the fundamental conflicts between Indigenous and non-Indigenous peoples in British Columbia. The BCTC process emerged in 1992 in response to Indigenous demands for recognition and ownership of their traditional territories because these demands had long impeded state-sponsored efforts to facilitate a wide range of economic development projects. While optimism abounded at first, skeptics later pointed out that the Commission did not have a mandate to deviate substantially from the colonial constitutional architecture of the Canadian state. As Alfred (2005: 111) notes, “It was determined at the outset that the negotiations could not consider questions of principle on indigenous land ownership or questions on the state’s claims of ownership or jurisdictional legitimacy.” Instead, the BCTC process was designed to clarify ownership and jurisdiction over Crown lands within the constitutional architecture of Canada, rather than theorize or facilitate constitutional rearrangement. Since its creation in 1992, the BCTC process has been an effective decoy. To date, it has produced seven completed land claims agreements, with dozens more slowly moving through the process towards finalization. These successes, however, are largely overshadowed by the 30 Indigenous nations that are not currently negotiating with the BCTC (BCTC, 2023). At the same time, however, none of these agreements fundamentally challenge the colonial nature of the Canadian State (Alcantara, 2009; Coulthard, 2014).

Another example of the State’s use of decoy politics to defuse threats can be found in the process of patriation – the political project to bring the Canadian constitution under Canadian authority and away from the British Parliament. The process began devoid of proposals to include Indigenous actors or their unique status and rights in the new constitution. In response, the “Constitution Express,” emerged, which was a Canada-wide movement of Indigenous political actors that made it clear that the constitution could not be changed without Indigenous consent. This pressure was swift, organized, and efficient, and it became clear that the Canadian government could not amend the constitution without Indigenous approval, due to pressure from both the Canadian public and legislators from the United Kingdom, the latter of whom had to sign off on the new constitution (Feltes and Coulthard, 2022; Mandel and Pinder, 2015). As a result, Indigenous political actors were called to testify before the Special Joint Committee on the Constitution of Canada, a body of lawmakers responsible for soliciting input from relevant experts, organizations, and actors (Dodek, 2018).

To address Indigenous concerns, the government developed section 24, which would later become section 25 of the Canadian Charter of Rights and Freedoms. This provision states that Charter rights “shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada including (a) any rights or freedoms that have been recognized by the Royal Proclamation of October 7, 1763; and (b) any rights or freedoms that now exist by way of land claims agreements or may be so acquired.” Indigenous reactions to this section were generally critical (Collie, 2024). Chief Stanley Johnson, of the Union of Nova Scotia Indians, argued that “Section 24 of the act attempts to give the appearance of preserving our existing rights, undeclared” (Canada, 1981b: 85), but by not defining those rights, that it risked weakening and limiting Aboriginal rights now and into the future. Instead, some leaders argued: “I think it [defining the rights] should be done before the patriation of the act itself” (Canada, 1981a: 20).

In response, the position of the government was to delay. Instead of negotiating with Indigenous leaders, the government proposed section 31 (which eventually became section 35), which stated that “The aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed”, and section 37, which guaranteed that the federal and provincial governments would host a constitutional conference with Indigenous peoples within 1 year of patriation to define Aboriginal rights (Canada, 1981c: 87). To justify this approach, Chrétien argued that “to try and solve it [Aboriginal rights] in six lines” could mean inadvertently leaving “some rights out” (Dodek, 2018: 403). Instead, he proposed “to protect and keep their rights as they are without prejudicing them in any way” and committing to working with the provinces and Indigenous leaders to further define those rights within a year of patriation (Dodek, 2018: 403).

While this approach was sufficient to successfully patriate the constitution, it did not produce a definition of Indigenous rights through political negotiations. Pursuant to s. 37, the Prime Minister and provincial premiers did meet with leaders from the four national Canadian Indigenous organizations in March 1983. Predictably, however, very little was accomplished, with at least “four of the provinces … [seemingly] opposed to most aboriginal demands” (Zlotkin, 1983: 79). Subsequent meetings in 1984 and 1985 also ended in failure. Despite the pressure to define the content of Indigenous rights, the promises of the Canadian state “turned into constitutional conferences, failed amendments, and ultimately, no agreement on the content of these rights” (Collie, 2024: 29). As a result, Indigenous groups turned to the judicial system to define their rights with mixed results. While Canadian judges have been willing to define these rights expansively in some ways, they have consistently done so only ways that are consistent with, reinforce and privilege Canadian state sovereignty over Indigenous law (Borrows, 2015; Minnawaanagogiizhigook, 2007; Webber, 2015). While political elites have expressed public support for embracing and respecting Indigenous rights in ways that challenge traditional understandings of Canadian federalism as sovereignty divided between two orders of government, Crown lawyers have been firm to oppose any efforts to change the status quo in the courtroom. In short, sections 25 and 35 were powerful decoys that gave the appearance of policy responsiveness, but which in reality prevented any real challenge to the legitimacy of the Canadian state from being successful.

A final illustrative example of decoy politics is Canada’s long and convoluted history with the 2007 United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). At first, Canada was adamantly opposed to the UNDRIP, speaking out against it at the United Nations (along with Australia, New Zealand, and the United States). Five years later, in response to societal demands that Canada enact the UNDRIP in federal legislation, the federal government reversed course by providing a lukewarm endorsement of the UNDRIP to the extent that it was “consistent” with the Canadian Constitution (AANDC, 2012). Five years later, Prime Minister Justin Trudeau, in an address to the United Nations General Assembly in 2017, announced Canada would no longer treat the Declaration as an “aspirational document” but instead would commit “to ensuring that the “standards enshrined in the UN Declaration of the Rights of Indigenous Peoples are fully realized – not merely by government mandate, but in true partnership with Indigenous Peoples” (PMO, 2017). Despite this announcement, enacting federal legislation in 2021 (UNDRIP, 2021), and even one province adopting it into its law (DRIP, 2019), progress on implementation remains slow and internal opposition to its full implementation remains.

Evidence of this continued opposition can be found in recent court cases. In 2022, the British Columbia Supreme Court heard legal arguments from the Dalkeh people, an Indigenous community in B.C., which had filed a nuisance claim against the Kenney Dam operated by Rio Tinto. While the legal reasoning of the Court is itself remarkable for describing Crown sovereignty as a “legal fiction to justify the de facto seizure and control of the land and resources formerly owned by the original inhabitants of what is now Canada” (Saik’uz, 2022: para 198), it is also notable that the defendants (e.g., Rio Tinto, and the governments of Canada and B.C.) argued, despite federal and provincial adoption of the UNDRIP, that it “is merely an international declaration of a sort that has never been implemented as law in Canada…. They say the recent UNDRIP legislation has no immediate impact on existing law and is simply “a forward-looking” statement of intent that contemplates an ‘action plan’ yet to be prepared and implemented by either level of government” (Saik’uz, 2022: paragraph 211). These legal arguments, to the extent that they speak to the position of the Crown, suggest that the Government of Canada’s stated intention and subsequent legislation were perhaps more decoy than not and is consistent with the Crown’s position in other legal cases (Patzer and Ladner, 2022).

On the other hand, just two years after this decision, the Supreme Court of Canada issued a strong declaration supporting the UNDRIP in Reference re An Act respecting First Nations, Inuit and Métis children, youth and families (SCC, 2024). This decision is remarkable in its own right as Canada opposed Quebec’s constitutional challenge of a new child welfare act that would give Indigenous communities greater control over these social systems. In its decision, the Court states that the UNDRIP is about ensuring the Government of Canada does everything possible to “ensure that the laws of Canada are consistent with the Declaration” (SCC, 2024: para 85). Put simply, “not only is the Act the result of a long process of consultation and cooperation with Indigenous peoples, but it also puts in place mechanisms to facilitate and encourage, from a forward-looking perspective, the negotiation of agreements between the Crown and Indigenous communities” (SCC, 2024: para 88). Whether the federal, provincial, and territorial governments will abide by this decision by proactively implementing its logic through their legislative and regulatory activities, however, remains to be seen.

These three case studies illustrate some of the essential elements of decoy politics. They suggest that the Canadian state may not be capable of the kind of fundamental change that is necessary to achieve meaningful reconciliation with Indigenous peoples and their nations. In the face of powerful societal demands for constitutional rearrangements that upend and delegitimize the Canadian constitutional order in ways that would allow space to incorporate elements of Indigenous constitutional orders, state elites prefer to engage in decoy politics, creating institutions, policies, and processes like treaty commissions, constitutional provisions, and enacting legislation of international commitments, to deflect demands for fundamental change and actively opposing it while giving the illusion of being responsive and committed to change.

Admittedly, these case studies are only illustrative of some of the possibilities of what might be classified as decoy politics. They do not, however, fully establish the boundaries of the concept, which may not be surprising since very few conceptual definitions ever do (Sartori, 1970). What they do suggest is that ill intent is important, and this intent can be hard to ascertain given that state elites face powerful incentives to hide this kind of intent. Yet intent can be deduced by examining the scope and mandate of a new institution, like the BCTC, and whether it has the powers to engage in meaningful change. It can be deduced by examining the legal arguments put forward by federal officials and ascertaining whether those arguments support or contradict political speech and intent or by measuring these intentions against the broader set of government activities in other related political or policy spheres. Sometimes, however, it requires investigating elite motivations more directly. In 2005, Prime Minister Paul Martin announced that the federal government would finally respond to longstanding societal demands to end Indigenous poverty with massive federal-provincial investments in select policy areas identified by Indigenous leaders themselves. While some observers were skeptical, empirical research based on elite interviews with the main decisionmakers (Alcantara and Spicer, 2016) revealed that the federal and provincial governments were genuinely committed to delivering $5 billion to Indigenous communities even though the Kelowna Accord was never implemented and Martin and his Liberal Party lost the next general election in 2006. Nonetheless, events after 2006 confirm that the Kelowna Accord was not a decoy; two studies suggest that, at least at the provincial level, signatories implemented as much of the Accord as they could (Alcantara and Spicer, 2016; Laroque and Noël, 2015). At the federal level, while the newly-elected Conservative government announced it would not implement the Kelowna Accord, several years later it enacted pieces of it, allocating almost $2 billion towards First Nations education, something which the Kelowna Accord had promised to do.

We acknowledge that this paper provides only a starting point, rather than a comprehensive definition, of a type of state behaviour that has received insufficient attention in the existing literature. Creating a robust definition of a new concept typically requires a range of theoretical and empirical studies and even then, the boundaries of the concept can remain fluid and opaque; observe the literature on multilevel governance, for instance (Tortola, 2017). In the meantime and in the next section of the paper, we build a political theory of decoy politics, focusing more carefully on why states might engage in these strategies when faced with Indigenous demands for reconciliation, resurgence, and decolonization.

Why engage in decoy politics?

One of the key characteristics of a stable, well-functioning democratic state is legitimacy. Legitimacy enables the state to exercise political authority successfully over those who live within its claimed borders. As the political legitimacy of the state declines, its ability to exercise authority also decreases, raising the possibility of societal actors emerging to challenge and transform the state into something quite different. When that happens, state responses can range from fundamental transformation and deep accommodation, to decoy politics, all the way to state repression. To understand why legitimacy is so important to the state, in the following section, we theorize under what conditions decoy politics are likely to emerge by examining the social contract, the settler contract, and democratic legitimacy before connecting them to Indigenous demands for change.

The social contract tradition

The social contract is, in many ways, the bedrock of Western European political thought. It can be broadly defined as the “doctrine that political legitimacy, political authority, and political obligations are derived from the consent of those who create a government (sometimes a society) and who operate it through some form of quasi-consent, such as representation, majoritarianism, or tacit consent” (Riley, 1982: 1). Using this definition, we can then turn to the foundational theories of the social contract and their arguments for how political legitimacy derives from the consent of the governed and towards an ultimate Sovereign.

Thomas Hobbes provides one of the first writings on the social contract between a subject and the Sovereign. The Hobbesian social contract is an agreement that both legitimates a polity and supposedly moves people out of a warlike and violent state of nature. Hobbes’ social contract is notorious for taking this ideal as the legitimation of total power of the Sovereign over subjects: “he that dissented must now consent with the rest; that is, be contented to avow all the actions he shall do, or else justly be destroyed by the rest” (Hobbes, 1996: 117). John Locke updated these ideas some years later by stressing the importance of consent within a social contract. Consent, for Locke, legitimated the governance of the Sovereign while ensuring that this legitimacy came from the power of those agreeing to the contract. Locke, unlike Hobbes, writes that the social contract in and of itself is not the basis for legitimacy; instead, legitimacy for Locke comes from the transfer of power from individuals to a certain body politic. The legitimacy flows from this transfer of the majority to the obligations of the individual. Every individual “under an obligation, to every one of that society, to submit to the determination of the majority, and to be concluded by it; or else this original compact, whereby he with others incorporates into one society, would signify nothing, and be no compact” (Locke, 1947: 169). Debates on Lockean legitimacy usually can be reduced to negative and positive positions, whether Locke’s ideas can be said to define legitimacy or illegitimacy. On illegitimacy, Locke concluded that the idea of an illegitimate government is not that with unjust foundations, but instead that which ignores consent and natural law (Peter, 2017). These ideas, at times, clashed with settler-colonial developments in the Americas which often deprived Indigenous nations of government through settler consent while ignoring Indigenous consent, a point explored later in the paper (Arneil, 1996, 2017; Tully, 1995). These two social contract arguments do not support the current investigation, as they presume the legitimacy of the body politic and cannot provide us with the ability to question foundations.

Jean-Jacques Rousseau took these questions of legitimacy and social contract in a different direction. At the core of Rousseau’s ideas is that people come together to form a general will, which then forms the social pact and Sovereign. Most important for our investigation, Rousseau claims that neither the social contract nor the body politic is legitimate on their own. Instead, the contract must be legitimated through the general will of a people through democratic processes: “The people, being subject to the laws, must create them; it is the associates who have the right to determine the conditions of society” (Rousseau, 1994: 55). If a social contract is not supported by the general will, it can still exert political authority, but it loses its normative political legitimacy. We can extract an important democratic critique of the social contract from Rousseau, but we still cannot formulate a critique of illegitimate foundations that may still possess democratic legitimacy. To build such a position, we need to turn towards the exclusion critique of the social contract tradition.

Carole Pateman’s iconic criticism of the social contract was that the contract was a way in which men legitimated their dominance over women through patriarchal forms of governance. All the main theories of the social contract acknowledge there is a public and a private sphere, but exclusively focus on the former and not the latter, despite the subjugation of women in the latter (Pateman, 1988: 3–6). Pateman explains that theorists from Hobbes to John Rawls all tell stories of the head of households as the politically relevant individuals, and thus, disproportionately centre the role of man as the political being (1988: 43–50). This construction of the political individual “remains intact only so long as the dichotomies (internal to civil society) between natural/civil, private/public, women/individual - and sex/gender - remain intact” (Pateman, 1988: 225). Thus, Pateman argues that the task of political theory is to “move outside the structure of oppositions” established through contract and towards decentered and autonomous ways of politics (1988: 231). Pateman’s work lays bare the inconsistencies at the heart of the social contract – nominally equal for all, but privileging men over others.

Charles Mills takes up a similar question of racial exclusion within the social contract. Standard interpretations of the social contract focus on a “neutral” approach to political individuals; it should not matter who the individual is. Of course, this approach benefits hegemonic political groups, and as Mills argues, results in a distinction between white men and racialized men. The racial contract stipulates that the establishment of political society requires the colonial intervention of white men, for the “benefit” of racialized men (Mills, 1997: 13) Barbara Arneil’s analysis of this point is that colonial liberalist thinkers, like Locke, purport to be progressive. These thinkers believed that colonization was necessary, and even beneficial, for the sake of bringing “rationality and industry” to the Americas (Arneil, 2017: 32). It is here that we see Mills and Arneil have much to offer the present investigation, given Canada’s social contract coinciding with settler colonization of territory (Asch, 2014; Miller, 2018; Tully, 1995). The implications of these arguments mean that polities with colonial and exclusionary histories can now conveniently brush them off: “it is now pretended that non-whites are equal abstract persons who can be fully included in the polity merely by extending the scope of the moral operator, without any fundamental change in the arrangements that have resulted from the previous system of de jure racial privilege” (Mills, 1997: 75). This argument has obvious consequences for political economies where inequality from centuries of racially exclusionary systems is not questioned. For the sake of decoy politics, we can use these insights to question how the Canadian state pursues the project of reconciliation without considering how the Canadian polity was explicitly founded over Indigenous political and legal orders. Canada’s context can at once disavow and condemn its racist history, without subsequently questioning its origins within said history.

In surveying three seminal thinkers of the social contract, we are presented with an image in which all are invited into the legitimation of the body politic. However, these theories do not hold up to the exclusion-based critique, which is quick to remind us that societies founded on white male supremacy and colonization suffer from structures based on exclusion. Using Pateman and Mills’ focus on exclusion, we can turn to the settler contract, a concept that explains how social contracts can make claims to universality while in actuality, they promote a specific kind of political being over others.

The settler contract

The Canadian body politic, although founded on intense electoral exclusion, has now evolved to be legitimated by strong democratic institutions. Most relevant for our task, is how a social contract could be both democratic and have questionable foundations of legitimacy. For this task, we must build on the ideas of exclusion written by Mills and Pateman and apply them to Canada’s settler colonial context through a focus on Canada’s settler contract.

The anti-social contract, as developed by Geoff Mann, refers to the ideals of liberal social contracts within the context of Canadian settler colonialism and crises. Mann argues that the core of this concept is the “false solidarity” of liberalism; Canada creates its legitimacy using an appeal to being able to govern for all, when in reality, it does not (2020: 437). Mann builds on this concept by focusing on how the social contract seeks to create a monopoly on past, present, and future. It can neatly set aside questions of treaty and stolen land, creating its own continuity of legitimacy. In doing so, the social contract acknowledges and settles with the past “while leaving the existing distributions of power and resources untouched, cemented and legitimated as they are by contract” (Mann, 2020: 441). The acknowledgment of the past divorces any demand for change to right contemporary injustice: “The social contract gets painted into the picture after it was taken, and imputes to the course of history, however unjust, a collective telos it did not have” (Mann, 2020: 441). The anti-social contract can offer this investigation quite a bit. In many ways, the false solidarity and the pacification of past injustices are fundamental to a theory of decoy politics: such a strategy enables the state to maximize legitimacy while minimizing questions of illegitimate foundations. We can further build on this argument using the tenets of settler colonial theory.

The work of Patrick Wolfe has been seminal to the theoretical foundations of settler colonialism. In his oft-cited article, Wolfe argues settler colonialism is practiced through a genocidal logic of elimination, that settler colonialism “destroys to replace” (2006: 388). Most relevant for the discussion here is the idea of “[d]ominion without conquest” which saw Indigenous sovereignty limited to alliance-building with European colonizers, and unable to be transferred or recognized in other forms as “ultimate dominion over the territory in question was held to inhere in the European sovereign” (2006: 391–392). Lorenzo Veracini builds on these ideas by arguing that settler colonialism rests on a concept of settler sovereignty. For Veracini, settler sovereignty is not solely premised on the state, but also on the inherent sovereignty of settlers as Europeans: “characterised by an exclusive interpretation of settler peoplehood, a specific understanding of sovereign capacities and their location, and by the conviction that the settler colonial setting is charged with a special regenerative nature” (Veracini, 2010: 54). Settler sovereignty also connects to a greater fantasy of settler colonial exploits. Veracini argues that settler colonialism presents itself as a fantastical answer to social strife and the growing contradictions of political realities, whilst simultaneously being premised on the violent displacement of Indigenous peoples and political authority; foundational violence that it actively disavows (Veracini, 2010: 75-76). Theoretical developments of settler colonialism can reveal further tensions at the heart of Canada’s legitimacy crises. Canada’s structures were built on an exclusionary settler contract, one that Canada upholds but disavows in the same stroke.

The settler contract, focuses on how settler colonial exploits led to a modification of social contract theory. First, theorists such as Locke created their notions of sovereignty in opposition to Indigenous governance structures. James Tully explains that Locke used justifications of “superior” commerce to justify European encroachment on Indigenous territories and the “modern constitution” emerges as the codified social contract to usurp Indigenous political authority and autonomy (1995: 74–79). If the origins of social contract theory presuppose and then extinguish a state of nature, then a settler contract, or modern constiution, presupposes and then extinguishes a doctrine of terra nullius, a doctrine used by European powers to claim ownership of land owned by “no one” (and so Indigenous claims to property are ruled invalid due to the erroneous assumption that they do not constitute a “people”) (Asch, 2014). Further, Lockean arguments tie sovereignty to productivity, thus propagating settler claims as somehow “more” legitimate through notions that legitimate labour was that of maximal productivity, in that day, “agrarian cultivation” (Arneil, 1996: 137; Tully, 1995). Extended to present day, Carole Pateman argues, contemporary debates that use varying titles such as Native, Aboriginal, Crown, etc. all further reinforce settler legitimacy because “all titles are created by the civil government” (2007: 67). In direct reference to modern legitimacy, Pateman argues that the lack of justification for the foundation of the settler contract shows why their legitimacy is contested, that with the settler contract, there is a “question mark around sovereignty” (2007: 76). Pateman’s question mark analogy is a useful way to ponder how settler contracts struggle with their own foundations because they must justify the unjustifiable.

The development of the settler contract by Pateman is usefully extended by Rob Nichols. Nichols writes that the unique operation of the settler contract is the nexus between “land appropriation and the subordination of previously sovereign polities and societies” (Nichols, 2013: 168). This process is twofold: one, the settler contract must presuppose no existing Indigenous societies, and second, it must legitimate the violence necessary to turn “this fiction into reality” (Nichols, 2013: 168). As the existence of Indigenous peoples fundamentally questions the legitimacy of the settler contract, Nichols argues that settler polities frequently turn to a “ratchet effect.” Nichols uses this concept to explain how as colonization becomes entrenched over time; it in turn offers fewer grounds Indigenous peoples to make political claims against the state (Nichols, 2013: 179-180). Nichols concludes his conceptualization of the settler contract with a warning about the perils of incorporating “indigeneity” into theorizations of the social/settler contract. Nichols writes that we must not work from a basis of Indigenous principles as “principles and claims are not uniform across all ‘indigenous’ peoples; we should, instead, focus our claims of injustice using the principles and claims of specific Indigenous nations and center their nationhood in our discussions” (Nichols, 2013: 181). Nichols’ conceptualization of the settler contract offers us a two-step understanding of legitimating violent foundations, providing us with a ratchet effect in furthering colonization and reinscribing the need to avoid the essentialization of Indigeneity.

We are left with two theoretical traditions: the social contract and the settler contract. In the social contract, we see that the normative legitimacy attached to contract by Hobbes, Locke, and Rousseau, with qualifications, is challenged by Pateman and Mills who stress their exclusionary foundations. The idea of exclusion is then combined with the settler contract to focus on how legitimacy is contested during the background of settler colonial foundations – wherein foundational exclusions privilege white men, and privilege settler systems over Indigenous political and legal orders, the latter of which have existed since time immemorial, and which continue to exist today (Borrows, 2010). Decoys seek to set aside systems of exclusion to uphold state claims to universality, impartiality, and democratic institutions. For the latter, we turn to ideas of democratic legitimacy to uncover what the contract seeks to protect.

Democratic legitimacy

The social and settler contracts are designed to maximize legitimacy while dismissing potential challenges based on exclusionary or colonial realities. These contracts are designed to embody the consent of the governed through claims of democratic legitimacy. In focusing on democratic legitimacy, we can turn to theories of how states design systems to enlarge democratic legitimacy – the very element the Canadian state seeks to defend through decoys.

Similar to contract theorists, Anna Stilz argues there are two dimensions of political legitimacy. The first dimension is that of the “takers,” where people want to extract just, tangible benefits from a state’s distribution schema of rights, duties, and obligations. The second dimension is that of “maker,” people want to author their political institutions and judge them according to how well they reflect their basic values and principles (Stilz, 2018: 12–13). Legitimacy, according to these accounts, rests on the connection between a state and the people they claim to represent. If people cannot see themselves represented in a state, or worse, that the state is built on values that they cannot condone – e.g., violence, theft, deception – then the link can sever.

Democratic legitimacy, similar to the relationship between the state and citizen described above, rests on the democratic authorization of state legitimacy. Democratic authorization is crucial to legitimizing the state. Jurgen Habermas argues that political power requires more than an ordered system of finance or law; it needs legitimation (1984: 270). Legitimation occurs when the state and its legal order are deliberative: “Law is a legitimate order… it forms the nucleus of a societal community that in turn is the central structure of society in general” (Habermas, 1996: 74). With deliberation, the state’s political and legal order is authorized and made legitimate by those it claims to represent, protecting the link between citizen and state.

Other conceptions of democratic legitimacy have focused on the ability of the state to craft institutions that reflect impartiality, reflexivity, and proximity, to ensure that citizens can fulfil what Stilz calls the “maker” role. Pierre Rosanvallon argues that these institutions work towards a type/mode of legitimacy that is an “invisible institution” that forms “the firm foundation for the relation between the governing and the governed.” (2011: 8–9). This invisible institution is crucial to creating and promoting democratic legitimacy, as Rosanvallon writes:

If legitimacy in the broadest sense simply implies absence of coercion, democratic legitimacy requires something more: a tissue of relationships between government and society. The essence of democracy – the social approximation of political power – depends on this. Democratic legitimacy exists when citizens believe in their own government… The efficacy of public action depends on legitimacy, and the sense of legitimacy affects the way in which citizens judge the quality of their country’s democracy. In these respects, legitimacy is an “invisible institution” as well as a “sensitive indictor” of the society’s political expectations. (Rosanvallon, 2011: 9)

Legitimacy is an “invisible institution” in that it is hardly discussed or analyzed yet is still perceptible to citizens. When legitimacy is threatened, the invisible institution becomes hyper-visible in a way that can threaten the state.

Democratic legitimacy is undoubtedly important; it is at the core of a democratic state’s ability to exert authority over its citizens. In the face of exclusionary social contracts and settler colonialism, however, every settler state’s assertion of legitimacy is threatened. The need for decoys becomes clearer as settler states feel the need to disarm these threats to their legitimacy. In the next section, we build on our previous examples by demonstrating how the Canadian state has typically reacted to these threats and by connecting decoy politics to the critical literature on the politics of recognition.

Contested legitimacy and the Canadian state

The standard narrative about the Canadian state is generally a positive one. Much can be said about the competing “normative conceptions” of Canadian federalism that led to the constitutional crises of the late twentieth century (Karmis, 2018), but it remains true that the Canadian federation has held together despite serious challenges to its existence from multiple directions. Two reasons are often offered to explain the success of Canada. The first is its ability to successfully accommodate a wide range of minority rights, with Canada frequently described as a polyethnic state that values and protects “deep diversity” (Kymlicka, 1991; Taylor, 1991) The second comes from Canada’s decentralized structure, which is said to empower economically and culturally diverse local communities to make decisions that maximize their policy preferences (Russell, 2004; Trudeau, 1980: 2). These two features, respect for deep diversity and a decentralized approach to governance, have not only become crucial to the ongoing legitimacy of the Canadian state, but also prefigure the kinds of decoy mechanisms that the state is likely to use in response to various societal threats.

Throughout Canadian history, there has been no shortage of threats to state legitimacy. Regional, cultural, and linguistic divisions have been a constant challenge for the Canadian state, with the most significant threat coming from the French-speaking population in Quebec (Gagnon, 1996: 25; Rocher, 2019: 646). Other threats have come from racial groups due to Canada’s long history of white supremacy (Maynard, 2017) as well as from women, who were initially excluded from the political, social and economic spheres but who over time, were able to expand their autonomy and spheres of action within the Canadian polity (Green, 1992; Vickers, 2019). The gender and racial oppressions brought on by the state are intersectional by nature and do not fit into neat categories; for example, Joyce Green argues that the Indian Act imposed both colonialism and patriarchy on Indigenous communities, intertwining these forms of oppression (Green, 1992).

Perhaps the most important challenge to the legitimacy of the Canadian state has come from Indigenous nations, who were the original owners and occupants of the lands claimed by Canada long before the arrival of European settlers and the creation of Canada in 1867. Like other settler countries, Canada’s constitutional order was built upon European systems, and in particular, one with a special “connection” to British political and legal systems (La Selva, 2017: 1068). This system was created with no recognition of Indigenous political and legal orders. As Surena Thobani writes, “The suppression of Native peoples, and of their socio-political orders, remains the necessary condition of Canadian sovereignty” (2007: 39). This is not to say that the Canadian state does not recognize its own colonial foundations, indeed, it does so directly through apologies, policies, funding, and the like. At the same time, the state has actively tried to shape and construct an Indigenous identity that is homogenous, but also legible and subservient to the Canadian constitutional order and the core precepts of Canadian identity:

It might even be argued that First Nations are restored to their rightful historical status in the concept of the ‘three founding nations’ … However, the very concept of Aboriginal rights, of Aboriginal title, presupposes the existence of a sovereign power, alien and external to First Nations, with the power to determine the nature, the form, and, most importantly, the extent of the rights of Aboriginal peoples. This is a colonial relation, albeit a more benign one than that of centuries past. As for the three founding nations concept, its amnesiac suppression of the violence of the encounter among these three nations, its reduction of the heterogeneity of indigenous societies to a monolithic Aboriginal nation, is unconscionable. (Thobani 40, emphasis added)

Through Thobani’s work, we see that legitimacy is premised on one vision of history, a willful denial of violence and overt colonialism, and a welcome into the Canadian “mosaic” without an explicit commitment to transformation on behalf of the Canadian state. This version of history, replete with falsehoods sanitizing colonial injustice, is not the only “political show in town” (Simpson, 2014: 11, emphasis original). As Audra Simpson explains in engaging with Haudenosaunee political structures, this version is complicated by “political life that, in its insistence upon certain things – such as nationhood and sovereignty – fundamentally interrupts and casts into question the story that settler states tell about themselves” (Simpson, 2014: 177).

Questions about state legitimacy are present across settler colonial contexts and not just in Canada. Illegitimate foundations shake the beliefs of citizens and create a threat to the state’s claim to legitimacy. It is precisely the context of a “broken moral order” in which a liberal settler state must engage in reconciliation to save its own legitimacy (Muldoon, 2003: 186). In the context of this broken moral order, “Fundamental questions about values start to interrupt the procedural regularities of the liberal state and raise questions about their legitimacy” (Muldoon, 2003: 185). These questions emerge because settler states make claims to legitimacy and authority while ignoring and suppressing Indigenous ones. When Indigenous peoples make these claims to legitimacy, it often casts doubt on the historical appropriateness of settler claims. This is akin to what Patrick Wolfe calls “the theoretical (or “inchoate”) stage of territorial sovereignty” which is defined as “dominion without conquest” (Wolfe, 2006: 392, emphasis added). In other words, the state suffers a legitimacy deficit because there are rightful claims that question the validity of the state’s claims.

How do democratic settler states address these kinds of challenges? One way, as we will argue below, is to engage in “decoy politics,” a set of strategies in which state elites attempt to distract, misdirect, and ultimately trick agitators and non-agitators into thinking that the state is seriously engaged in and committed to policy responsiveness when in fact, its actions are ultimately designed to protect the status quo. In settler states like Australia, Canada, and the United States, decoy politics often occur through the politics of recognition.

The politics of recognition as decoy politics

According to Charles Taylor, the politics of recognition is the recognition of subaltern groups, their unique identities, and their place in a multicultural political society (1995). Taylor’s thesis is that misrecognition of unique and diverse identities in modern society is more than disrespect; it “can inflict a grievous wound” through groups devaluing themselves as a result of pernicious ideas brought on by the dominant society (1995: 26). Subsequently, Taylor argues for greater rights afforded to minority groups, such as Indigenous peoples and the Quebecois, in the Canadian context. Taylor demands that “we all recognize the equal value of different cultures; that we not only let them survive, but acknowledge their worth” (1995: 64). In doing so, Canada can pursue “deep diversity” in which national identities such as that of Quebec and Indigenous peoples are embraced (Taylor, 1991). The politics of recognition and deep diversity is a comprehensive argument for ensuring the differences of persons are accommodated by governance, rather than marginalized by it.

In many ways, Taylor’s argument is a novel advancement of difference-blind liberal ideals that have, in many ways, continued the colonial project. On the other hand, some scholars have argued that Taylor’s arguments are highly problematic because frequently, the politics of recognition are simply extensions of the colonial project by settler states. Glen Coulthard (2014) argues that the key problem in Taylor’s argument is that it is built on the idea that mutual recognition and respect can emerge when a dominant group bestows recognition on a minority group, even in situations where the dominant group has actively displaced the authority, territory, and self-determination of the minority group. In this case, “recognition is conceived as something that is ultimately ‘granted’ or ‘accorded’ a subaltern group or entity by a dominant group or entity, [which in turn] prefigures its failure to significantly modify, let alone transcend, the breadth of power at play in colonial relationships” (Coulthard, 2014: 30–31). To illustrate his argument, Coulthard analyzes the Delgamuukw v. British Columbia Supreme Court of Canada case, which found that residual Aboriginal rights could be infringed upon by the federal or provincial governments if there was a substantial public or legislative interest, such as economic ventures, the establishment of infrastructure, or the settlement of populations. For Coulthard, this case suggests that “colonial powers will only recognize the collective rights and identities of Indigenous peoples insofar as this recognition does not throw into question the background legal, political, and economic framework of the colonial relationship itself” (2014: 41). The politics of recognition can then accommodate claims of colonialism but is still limited in its ability to modify structures of colonialism (Hendrix, 2019; Simpson, 2017).

Other critics of the politics of recognition suggest that we need to move beyond critiques about the misrecognition of minority groups and focus on how states link recognition to redistribution. As Nancy Fraser argues: “Not all forms of recognition politics are equally pernicious… we need a way of rethinking the politics of recognition” which “means conceptualizing struggles for recognition so that they can be integrated with struggles for redistribution, rather than displacing and undermining them” (2000: 109). The benefits of Fraser’s model are that it challenges the state in two ways: it makes explicit economic injustices and it promotes the politics of redistribution to correct economic injustices (2000: 117–118). Fraser makes an important distinction between affirmative and transformative strategies. The former aims to “correct inequitable outcomes for social arrangments without disturbing the underlying social structures that generate them” while transformative strategies “aim to correct unjust outcomes precisely by restructuring the underlying generative framework” (Fraser and Honneth, 2003: 74). Fraser argues that transformative strategies hold more potential than affirmative ones, given their uprooting and displacement of oppressive power structures. However, Fraser also notes that affirmative strategies hold potential too, as they “can have transformative effects in some contexts, provided that they are radically and consistently pursued” (Fraser and Honneth, 2003: 78).

In this way, it is worth pointing out that decoy institutions seek only to affirm, and thus, actively displace transformative strategies. When these affirmative strategies do have radical conclusions and suggestions, for example, the recommendations of the Royal Commission on Aboriginal Peoples, these are quickly displaced in favour of the status quo and only those that confirm current policies are upheld (Ladner, 2001). When decoys appear open to transformation, this option is not likely to occur because of the commitment of decoys to existing state structures (Wilson et al., 2020).

The Canadian state has faced contestations of its legitimacy on many grounds. The most pertinent critique has come from Indigenous nations, as Canadian elites know these claims reveal how Canada broke legitimate promises and obligations to Indigenous peoples (Simpson, 2016; Starblanket, 2019a, 2019b). The politics of recognition, in contrast to ways of the past, recognizes the hardships and marginality brought on by colonization. However, the politics of recognition has too often been used to uphold the state, favouring affirmative strategies over transformative ones (Coulthard 2014).

Conclusion

In this paper, we introduce the concept of “decoy politics” before developing a political theory for why settler states might turn to this style of politics in response to Indigenous challenges to its legitimacy. Indigenous claims against the state almost inevitably seek to unsettle the state’s historical and constitutional foundations, bringing into question the unlawful dispossession of Indigenous lands and the unjust imposition of settler political, economic, and social systems on top of Indigenous ones. To properly address and reconcile with Indigenous claims against the state would require a fundamental rethinking of the sources of state sovereignty in ways that most state elites would not be willing to engage in absent significant social upheaval. Instead, when Indigenous claims become salient, states are likely to turn to the tools of decoy politics, which allows them to give the impression of addressing the claims (and thus strengthen their legitimacy) while at the same time doing very little to facilitate meaningful change. Similar to empty institutions (Dimitrov, 2020), decoys in the domestic context emphasize a discourse centred on process, thereby nullifying potential outcomes of change and reform.

Why might states, like Canada, engage in decoy politics? The social contract tradition, settler colonial theory, and the politics of recognition provide us with an answer. Canada’s claims to legitimacy are made complicated by a legitimacy crisis composed of illegitimate foundations, contrasting visions of treaties, and an inability to change rooted in extractive capitalist economics (Coulthard, 2014; Simpson, 2016). Above all, it is the fundamentally contested nature of the Canadian state that drives it to engage in decoy politics.

While our paper focuses mainly on Canada, the concept of decoy politics is transferable to Indigenous-state relations in other settler societies. In Australia, for instance, the federal government issued an apology in 2008 for the Stolen Generations, drawing praise (and some criticism) from commentators from within and outside of the country. Critics “were unimpressed with the apology, not only because compensation was not in the offing, but also because it did not seriously question the terms of the Australian nation-state” (Moses, 2011: 149), which suggests that the apology was perhaps more decoy than non-decoy, designed to deflect rather than respond meaningfully to societal demands for meaningful reconciliation (Moses, 2011). This conclusion, however, does not discount that the apology, like many decoys, can still have great weight amongst Indigenous peoples as evidence of a state recognizing its past faults that caused real trauma. More recently, decoy politics may be part of the story for why Australians voted in 2023 to reject a constitutional amendment to entrench Indigenous political representation. While the potential reasons for its defeat are many, one observer argued that the referendum was doomed from the start because then Prime Minister Malcolm Turnbull had expressed his opposition to the idea very early in the process, despite him endorsing and supporting the referendum later on (Wellauer et al., 2023).

The concept of “decoy politics” holds significant promise for providing new insights into the complicated relationship between settler states, Indigenous nations, and citizens. Future research might build on our work by examining case studies across settler countries as a way of building new criteria for more precisely identifying and then differentiating decoy institutions, processes, and actors from non-decoy ones. Other research might explore the range of factors that might increase the likelihood of states employing decoy politics. For instance, we suggest that decoy politics may be more likely to occur when Indigenous issues are salient among the general public. Researchers might test this assumption by collecting public opinion data and identifying Indigenous-related critical junctures and examining state responses to variation in both. The more we theorize, document, and evaluate decoy politics, the more researchers can identify the challenges and propose solutions to the injustices inherent in the relationship between the state and Indigenous nations across settler contexts.