Updated: Jul 18
Do you remember the first time you signed a document? I ask when, not if, because chances are you have signed something, and others have signed something about you. A signed birth certificate, for instance, is likely a person’s 1st legal document, making all future identification documents possible — passports, social security numbers, employment and health care contracts, etc. The signature is so commonplace that we might take it for granted or believe it has always existed, but it hasn’t. Historically, signatures and official seals belonged to a privileged ruling class. It wasn’t until the 1600s that handwritten signatures became widespread, not coincidently at a time when indigenous peoples were being coerced into signing treaties that gave away their land.
The Government and its laws not only instate but require of all people a judicial practice of signatures as “biomarkers”. Historically, laws regarding signatures date back to the oldest recorded piece of legal text, the Babylonian Code of Hammurabi, from 17th century BC. “If any one give another silver, gold, or anything else to keep, he shall show everything to some witness, draw up a contract, and then hand it over for safe keeping” (Source). Essentially, the principle of validating contracts was about safeguarding the transfer of wealth, and this witness validation became what we today call notaries.
This code directly influenced the Old Testament, Moses’ tablets of stone, and all laws developed within Christendom. What is set in stone, however, isn’t necessarily effective or applicable. Throughout colonization, the inclusion of non-Christians into this framework is in itself telling of the unequal dynamic between colonizer and colonized, not to mention what the treaties resulting from this framework entailed. These treaties were not applicable to the context of land distribution of indigenous peoples, and they were not effective because they did not prevent fraud, social injustice or unrest.
It would be fair to say that the US American occupation of indigenous American land was war-like, and called for a judicial system which — as it guaranteed “Liberty” to some, it guaranteed the denial of liberty to others. The so-called “Grand Rush for Indian Territory” counted on the signatures of indigenous American leaders on treaties forged under contentious circumstances. It granted settlers what it denied natives, through a system not only foreign to natives, but manufactured to displace and segregate them. Indigenous peoples did not have signatures as such, and up to that point it was also unusual for the common citizen to have one. Which is why so many of the signatures in these treaties are scribbles, drawings or x-marks.
“As everyone knows, treaties were made under conditions that were generally unfavorable to Indians, and as a result they were often accompanied by protest. Treaties led to dramatic changes in the Indian world: loss of land and political autonomy, assent to assimilation polices […]” (Scott Richard Lyons in X-Marks: Native Signatures of Assent (2010), University of Minnesota Press, pp. 1)
Legally, a signature is invalidated if it happened under duress. The Latin term vi coactus, when placed next to a signature, shows that there was coercion in the process. Alongside the practice of signing, the Latin signifier was also foreign to natives. Defining duress legally in the context of the west coast of North America in the 17th century, however, requires a decolonial lens. Not only many treaties were signed in the context of armed conflict or economic coercion, communities were often not given what they were promised in return: sovereignty over their new territories. For that, there is also a Latin term (first documented in 1603) — nudum pactum, when a contract is unenforceable and revokable because it lacks something of value promised in exchange.
Descriptions of colony/colonizer relations are rarely capable of avoiding the issue of imbalance of power. However, this imbalance is not always understood as unfair, or as a source of duress for the so-called weaker party. Recent international law analyses still describe the legal process of independence from colonizers in patronizing tones, as is the case in this passage from an article published in the Questions of International Law journal in 2019:
"The world of sovereign states could be compared to the adult world, whereas the world of decolonization could be understood as the world of child-parent relations. […] Not only is the colonial country a weaker party in any agreement with the administering power on a factual basis, it is also formally (legally) unequal. Article 73 of the UN Charter recognizes its vulnerable position and offers special protection until the colonial country achieves ‘adulthood’ – ie a full measure of self-government either by becoming independent or freely associating or integrating with an independent state". (Demsar et al.)
A centuries long attempt to justify the imbalance of power between colony and colonizer is tied to the enduring sentiments that there is such a thing as the categories 1st and 3rd worlds or developed and underdeveloped countries. The rationale behind acknowledging this inequality but not its unjust or distressing quality is possibly the single most effective tool in guaranteeing the longevity of a colonial paradigm. Sylvia Wynter (2003) describes this rationale as “the ongoing imperative of securing the well-being of our present ethnoclass (i.e., Western bourgeois) conception of the human, Man, which overrepresents itself as if it were the human itself.” This conception of the human has been materialized in the deliberate instating of signatures as biomarkers and the documents they validate as proof of personhood.
In the digitalized era, proof of personhood (PoP) has taken a specific meaning relating to fake online identities. Alongside the conceptualization of PoP, the signature has also taken a new meaning through private keys, encryption and IP-addresses. This poses a silent threat to those who, for instance, have their mail-in ballots rejected because of mismatched signatures, or resist the push towards being ultra-connected through accepting all terms and conditions without reading.
In Brazil, personhood being progressively more tied to the digital sphere poses a threat to indigenous people in particular. Not because indigenous peoples don’t have or want access to technology per se, but because there is a persistent undercurrent of colonial thought which strips natives of their identity if they strive for or are forced to engage with any tool perceived as of Western modernity. It’s the familiar (trigger warning: racist language) “you can’t be a real indian if you have phone” or “if you want your land back, you have to go live naked in the forest.”
The colonial weapons used by settlers were not only firearms and disease. Epistemological assaults were even more commonplace, and persist to this day. Law as an epistemological and religious tool, and specifically the use of signatures in the legal process, are not any less pervasive today and victimize a much wider range of marginalized populations, such as the poor and diasporic. Signatures as proof of personhood is an existential threat, both philosophically and materially, to those furthest away from the status of power, wealth and whiteness. We may not be able to refrain from the practice of signatures, but we can at least be critical of the political paradigm which makes this practice unavoidable. In doing so, we are less likely to fall for the lies often told about the democratic and just nature of the Rule of Law.
Originally published at abeautifulresistance.org