Review: Colour-Coded

[Constance Backhouse. Colour-Coded: A Legal History of Racism in Canada, 1900-1950. Toronto: The Osgoode Society for Canadian Legal History and University of Toronto Press, 1999.]

A commonsense understanding of history is that it is what happened. Certainly you can find post-structuralist critique that argues that history as commonly understood is impossible and inevitably oppressive. You can also find more materialist analyses that point out that even if what happened is possible to reconstruct in partial ways and at least potentially liberatory, most of what we get served up as history from conventional sources is oppressive anyway because it is shot through with lies and written from the standpoints of oppressors. What I've seen less often is the much less lofty point that even if a historian is trying to take the latter critiques into account, understanding "what" in a way that does not try to at least implicitly include a sense of "how" leads to history that may affirm resistance and boost morale but that is not otherwise terribly useful. Colour-Coded most definitely pays attention to "how" -- it is not just a dry litany of statutes and case law but uses six detailed case studies to get at some of both the surface "what" and the underlying "how" by which racialized relations of power were constituted legally and socially in early twentieth century Canada.

The chosen cases were as follows:

• a reference by the federal government to the Supreme Court in 1939 to determine whether "Eskimos" were really "Indians", legally speaking, in order to settle a dispute with the Quebec government over whether Quebec should pay a share of the very minimal relief for "Eskimos" living in poverty in Quebec territory, with no participation by any actual "Eskimos" or representatives thereof in the proceedings;
  
  
• the legal journey of Wanduta, an elder of the Dakota Nation, after being charged with violating Indian Act prohibitions against certain ceremonies by doing a Grass Dance at a fair in Rapid City, Manitoba, at the request of the fair's (white and also liable but never charged) organizers in 1903;
  
  
• an attempt by a woman named Eliza Sero of the Tyndinega Territory of the Mohawk Nation to sue for damages a fisheries agent who seized her forty-foot seine fishing net in 1921, using sophisticated arguments for the continuing sovereignty of her nation, with important supportive intervention also provided by lawyers from Six Nations;
  
  
• the challenge in 1924 by Yee Clun, a prominent business owner in the Chinese Canadian community in Regina, against a law prohibiting Asian men from hiring white women in their businesses -- a law whose passage in a number of provinces was vigorously supported by many supposedly progressive proponents of the social gospel and first wave feminists, and which was still on the books in some provinces until the late '60s;
  
  
• the legal processes that resulted in 1930 after prominent Hamilton business owners, in their role as members of the Ku Klux Klan, travelled to Oakville and took a white woman from the home she was sharing with her racialized fiancee and returned her to her mother's house; and,
  
  
• the aborted legal efforts of Viola Desmond, an African Nova Scotian woman, after a formally race-neutral provincial taxation statute was used to convict her of a quasi-criminal offence when she refused to abide by the racial segregation of a cinema in New Glasgow, Nova Scotia, in 1946.

The greatest strength of this book is its reconstruction of these events as things that actually happened to and because of the actions of people. Backhouse uses court records, media accounts, archival material, personal reminiscences where possible, and anything else she could get her hands on, to talk about not only laws and verdicts, but what people said and how they felt and what public assumptions and reactions were. The activation of processes in the legal system is used as an entry to show a larger picture of how racism was socially organized and produced in each instance. White supremacy is shown not as monolithic, ahistorical, abstract, and absolute, but actual, historical, enacted, ever-shifting, and contested.

(The exhaustive documentation in the book is also tremendously useful to me. Not only is there material about the specific cases, but also references to a tremendous amount of research and writing on racism in Canada and in general. In fact, the end notes, which contain detailed citations, are so vast that many are not printed in their complete form but contain pointers to a 500+ page Rich Text Format document linked from the book's page on the University of Toronto Press web site. I found a number of general background references that will be very useful to me, and about the existence of a particular archived interview that I absolutely must get a copy of.)

Through this approach of detailed exploration of events and issues surrounding specific cases, Backhouse is able to illustrate a number of very important points. For example, by tracing the shifts, explanations, arbitrariness, and illogic of racial definitions produced by a system that depends on certainty and clear boundaries, she very effectively demonstrates the socially constructed nature of "race". As she says, "The ficiton of 'race' is never so obvious as when one looks backwards in time" [274] (though she never loses sight of the fact that "'Race' is a mythical construct. 'Racism' is not" [7]).

I also learned plenty of details that probably should not have shocked me but somehow still managed to. It is something that you still see in casual form from people socialized into whiteness today, but it was still a lesson to see the absolute certainty with which white judges who heard arguments only from white lawyers and conflicting white "experts" made declarations about the appropriate classifications for racialized Others. Or to get a sense of how vanishingly few white sources, even those who emphatically opposed the Klan, had a problem with their objection to interracial relationships rather than just with their methods that disregarded the rule of law. Or the true depths of the viciousness with which some Indian Affairs officials opposed certain dances and ceremonies by indigenous people, with special vitriol reserved for those that involved extravagant gifting -- oh, the horror of non-capitalist transfer of goods! Or the fact that the Oak River settlement of the Dakota Nation was assigned a "farming instructor" not because they were doing badly at farming but because they were doing far better than the mere subsistence that was intended as their lot, and someone had to be around to enforce arbitrary and racist rules (like not being allowed to leave the reserve without permission) to prevent them from outdoing the local white farmers. Or the striking differences in state and public responses to the Klan versus those to the Communist Party in the same period. None of these things, or a thousand other details that were new to me or even those that were not completely new, should be surprising to anyone with even a passing knowledge of the history of this country, but I guess for those of us who do not live with the realities of targeting by white supremacy in northern North America in our everydays it is an ongoing process to internalize its magnitude. Which is another reason why Backhouse's detailed illustration of its everydayness is useful.

The book's contribution to deconstructing dominant delusions about Canada is also important. It shows that Canada has a long tradition of deep racism papered over by claims to racelessness, and this is not an approach that was invented by the generation that followed the official enactment of state-sponsored multiculturalism. The Indian Act and some immigration legislation aside, compared particularly to the United States, Canadian statutes have rarely used race as an explicit category. When slavery existed, its legal basis was never completely clarified, and segregation was officially permitted by statute in some situations and some places, but it was implemented in haphazard and arbitrary (but no less damaging) ways. And Backhouse shows how thoroughly race and racism were disappeared by legal processes, from the selection against preserving cases about racism in the publications of court proceedings and the periodic purging of court archives, to the ways in which race and racism went almost completely unmentioned in the legal processes around Viola Desmond's experience of segregation and the Klan's intervetnion in Oakville, to the Saskatchewan Legislature's removal of explictly racial categories from the "White Women's Labour Law" with sufficient surrounding direction to the municipalities that were to implement it via their business liscencing regimes that everyone still knew exactly what it was for and subsequent courts were prevented from intervening to prevent it.

I also appreciated the nuanced treatment of political responses and resistance to racism. For instance, not all Dakota were happy with Wanduta's refusal to stop challenging the Canadian settler state's implementation of cultural genocide, and not all of those were bought and paid-for tools of Indian Affairs either. Some African Nova Scotians were not happy with Viola Desmond challenging segregation in the way she did. There isn't much to be gained by dwelling excessively on such divisions -- and Backhouse does a good job of including but not obsessing -- but it is also important that their inevitable presence be openly discussed, if for no other reason than to challenge the common assumption among white people that oppressed peoples must exhibit complete unity before we should feel obliged to take any action to address the oppressive social relations from which we benefit. As well, I appreciated Backhouse's attention not only to the majority of white people that left their complicity in racism unquestioned but also to the minority that spoke up vigorously against it. This adds to the recovery of racialized voices of opposition in undermining the latter day assertion that "that's just how people thought then."

As Backhouse is at pains to point out, this work is not exhaustive. The case study approach is pedagogically powerful and I'm glad she chose it. I see similarities to the approach I'm taking in my own work, of starting from a local, concrete, specific story and using that as a point of entry into larger historical processes and narratives. Still, such an approach is inevitably incomplete. Personally, I think any approach is inevitably incomplete, so doing history in ways that openly admits this is a strength, but others might be less comfortable with it. In any case, scholars now and in the future still have much to unearth regarding the historical legal and social organization of the relations of racialization, white supremacy, colonialism, and racism in Canada. But I think Colour-Coded is an extremely valuable contribution.


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