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Fetal Alcohol Spectrum Disorder and the Fear of Indigenous (Dis)Order: New Medico-Legal Alliances for Capturing and Managing Indigenous Life in Canada

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Fetal Alcohol Spectrum Disorder and the Fear of Indigenous (Dis)Order: New Medico-Legal Alliances for Capturing and Managing Indigenous Life in Canada Fetal Alcohol Spectrum Disorder and the Fear of Indigenous (dis)Order: New Medico-Legal Alliances for Capturing and Managing Indigenous Life in Canada Leslie Sabiston Submitted in partial fulfillment of the requirements for the degree of Doctor of Philosophy under the Executive Committee of the Graduate School of Arts and Sciences COLUMBIA UNIVERSITY 2021 © 2021 Leslie Sabiston All Rights Reserved Abstract Fetal Alcohol Spectrum Disorder and the Fear of Indigenous (dis)Order: New Medico-Legal Alliances for Capturing and Managing Indigenous Life in Canada Leslie Sabiston While accounting for less than 5 percent of the Canadian population, Indigenous peoples represent more than 30 percent of the federal prison population of Canada. In a prairie province like Manitoba the numbers are even more extreme, with over three-quarters of the prison population being Indigenous. This contemporary “Indian Problem” has been theorized in recent decades as an outcome of the colonial history of Canada. Indigenous Studies scholarship has critiqued the temporal political imaginary of the subsequent reconciliation discourse that locates colonial violence, and, thus, culpability and responsibility of the Canadian state, to an ‘event’ of history. Such national stories not only diminish the interrogation of ongoing structures of colonial violence but relegate any meaningful political processes of accountability and justice to the dustbin of history. This ‘legacy’ framework of historicizing colonial violence has created fecund conditions for (re)apprehending Indigenous bodies at the junctures of legal and medical reasoning, where questions of punishment, containment and rehabilitation for criminal actions become uneasily blurred with questions of healing and repair of damaged bodies and minds. The uptake of ‘Fetal Alcohol Spectrum Disorder’ (FASD) in the Canadian justice system in recent decades operates precisely at this juncture of treating Indigenous peoples as uniquely medicalized, or disabled, criminals, and has created further capacities for deepening this ‘legacy’ framework for apprehending and containing Indigenous peoples as offenders, or even as potential offenders of a social and legal order. FASD is an umbrella term describing the range of lifelong physical, mental, behavioral and learning disabilities that can occur in an individual who was exposed to alcohol while in utero. It is typically thought of as a neurocognitive disability that affects memory, executive reasoning, and the ability to learn from or think consequentially about one’s actions. As such, it has become a broad institutional discourse for predicting criminal behaviors through a medicalized conception of risk of violence. FASD is typically raised as an ethical problem in the criminal justice system, provoking important questions as to whether we punish crimes (for which one is culpable) or disabilities (for which one is not). In addition, if FASD represents a permanent neurocognitive disability without any hope of cure, how should the rehabilitative and reintegrative tenets of the criminal code be imagined and implemented? These problems are compounded further by the regular speculation that Canada is in the midst of a hitherto unknown epidemic of this “invisible disorder” of FASD. Important as these ethical and political problems are, the dissertation argues that the specific institutional urgency surrounding the medicalization of criminal offenders with FASD has been enabled by diagnostic logics of deferral and certainty that pertains to the “Indian Problem.” These logics allow FASD to relocate and bury questions of colonial responsibility within the Indigenous body itself which is tragically doomed to permanent brain damage and cognitive disorder and an incorrigible lifestyle of dysfunction and crime. The ‘colonial legacy’ predicates a foreclosure on Indigenous futurity. This dissertation is based on 24 months of fieldwork in a non-profit community outreach program for justice-involved individuals with FASD in Winnipeg, Manitoba. As an FASD community outreach worker, my job was to assist individuals to navigate the complexities of criminal justice and social welfare systems that might pose challenges to those with cognitive disabilities associated with FASD. I learned very quickly, however, that actors as diverse as lawyers, probation officers, doctors, social workers, FASD researchers and even my community outreach colleagues and supervisors, operated within a diagnostic imaginary that quite often assumed without proof the presence of an FASD diagnosis for our almost exclusively Indigenous clientele. The dissertation analyzes the everyday procedures of FASD knowledge formation and circulation beginning with a basic ethnographic question: how does one know that another has FASD? This line of questioning was situated within the broad institutional apparatus of the criminal justice system in Canada, which I examine thematically and temporally as four separate stages of encounter: 1) the initial crime and related discourses of accusation; 2) the trial setting; 3) the sentencing trial; and, finally, 4) the post-carceral release phase. This temporal framework emerged naturally out of my experience of ethnographic work as a community outreach worker and innumerable casual and professional encounters with social workers, slum landlords, and my many hours spent in courts, probation offices, and jail visitations. In addition, I had a four-month placement with an assessment team at an FASD diagnostic clinic and did extensive work in the archive of legal cases and decisions pertaining to Indigenous offenders and the unique problematic of FASD in the legal system. Breaking down the minute social and legal details that attend to determinations of FASD at these various stages unmasks the ways in which FASD comes to explain Indigenous criminality as a congenital condition that is an expression of biological and cultural dysfunction, while strategically ignoring any examination of ongoing structures of colonial violence. Table of Contents List of Figures ................................................................................................................................ iii Acknowledgements ........................................................................................................................ iv Dedication ..................................................................................................................................... xx Prelude: Dream Images of Winnipeg .............................................................................................. 1 Introduction ..................................................................................................................................... 2 Chapter outline .......................................................................................................................... 18 Stealing Cars on Stolen Land .................................................................................................... 26 The Manitoba FASD Youth Justice Project.......................................................................... 36 “Information Gaps” and the urstudies................................................................................... 43 What does FASD get us? .......................................................................................................... 47 Spider Teachings ........................................................................................................................... 60 Chapter 1: Accusation ................................................................................................................... 61 The threat and spatial regulation of the Indigenous underclass in Winnipeg ........................... 69 Making a monster: ‘Suspect had FASD, was apprehended at birth, placed in 73 foster homes’ ................................................................................................................................................... 87 Leonard ..................................................................................................................................... 93 “The Look” ............................................................................................................................... 96 Origins and ‘Tacit Agreements’.............................................................................................. 101 After Ms. G ............................................................................................................................. 106 Can we get her birth records? ................................................................................................. 111 Fear of the Generational Tsunami........................................................................................... 118 Chapter 2: Settler Secrets of Sex ................................................................................................ 129 Taboo ...................................................................................................................................... 139 The Problem of Sex ................................................................................................................ 155 Witnessing................................................................................................................................... 195 Chapter 3: The Trial ..................................................................................................................
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