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Indigenous Books:
The Elusive Promise of Indigenous Development: Rights, Culture, Strategy
Publisher: Duke University Press Books
Sample:
Chapter One Setting the Stage for Transnational Indigenous Rights Movements
DOMESTIC AND INTERNATIONAL LAW AND POLITICS
Contemporary international indigenous movements are generally traced back to the 1970s, although their roots can be seen in the 1960s, when national indigenous organizations began to gain political momentum in a number of countries, including Canada, the United States, Australia, and many Latin American states. Of course, some movements began earlier. The early twentieth century, for example, saw the formation of the Allied Tribes of British Columbia, organized by Peter Kelley and Andrew Paull; the Lamista movement in Colombia, led by Paz activist Manuel Quint? Lame; and attempts by Deskaheh, leader of the Six Nations Iroquois Confederacy, to petition the League of Nations to consider its case against Canada. These movements tended to have a pan-indigenous element from their early stages, as indigenous groups began to identify with each other as indigenous vis-a-vis the modern state.
In the 1970s, indigenous peoples began to organize more actively across nation-state borders, and to form international pan-indigenous networks. With this organization came regional and international meetings, including the 1974 planning meeting in Guyana for what eventually became the World Council of Indigenous Peoples, that council's first meeting in 1975 in Canada, the 1974 meeting of the Parliament of American Indians of the Southern Cone in Paraguay, the NGO Conference on Discrimination against Indigenous Populations in 1977 in Geneva, and a 1977 meeting in Barbados (known as Barbados II). Gatherings such as these were an outgrowth of, as well as a catalyst for, increasing international organization, both intergovernmental and nongovernmental. As Alyson Brysk explains: "International fora such as the International Labor Organization and transnational nongovernmental organizations such as the World Council of Churches systematically examined indigenous issues within the organizations' wider mandates and brought together Indian activists." Brysk also contends that indigenous peoples were drawn to the international system out of "domestic powerlessness": "International activity required fewer resources than domestic mobilization and was more amenable to information politics. In some cases, characteristics that were domestic handicaps became international strengths."
Regardless of their incentive, those groups involved with pan-indigenous movements found themselves organizing against and influenced by the background of colonialist conquest and years of domestic and international law and policy pertaining directly and indirectly to indigenous peoples. While parts I and II of this book consider in detail the demands of international and transnational indigenous movements, the purpose of the present chapter is to set the stage for that discussion by describing the political and legal landscape within and against which the movements were organizing. As indigenous rights advocates have made decisions over the past few decades about how best to pursue or articulate their claims in the international arena, they have often borrowed from, adapted, or critiqued legal and political models-such as sovereignty, self-determination, and human rights-that largely have been developed in other contexts.
I focus the first section of this chapter on the Americas-on the different models of colonial techniques that were deployed there, and on their ongoing effects. In American Pentimento, Patricia Seed uses the concept of a pentimento, the "trace of an earlier composition or of alterations [in painting] that has become visible with the passage of time," to revisit English, Spanish, and Portuguese forms of colonialism in the Americas and how they were driven by different economic interests. For Seed, colonists' representations of the people, culture, and forms of livelihood they encountered in the New World derived more from colonial economic desires and political arrangements than from the actual observable characteristics and circumstances of native peoples. Thus, the differences can be traced back to Europe itself-to the Christian identity maintained by the Spanish and Portuguese contrasted with the planter, or farmer, identity of the English-and their ongoing effects can be seen beyond the Americas. Many distinctive aspects of English colonial models deployed in the Americas, for example, can also be found in India, Australia, and New Zealand.
I rely on much of Seed's analysis in this chapter, but I also hope to extend it by connecting ongoing debates about the meaning and necessity of indigenous self-determination to some of the same differences in colonial method. In particular, I tie indigenous demands for a right to self-determination and land to former British colonies, while connecting legal and political strategies aimed at internal autonomy and collective cultural rights to former Spanish colonies. These two lines of advocacy, I contend, respond to different histories of oppression and conquest as well as to different mechanisms designed and justified to legalize and control conquest. The first section of the chapter explores those histories.
In the second section of the chapter, I consider the development of international legal models in the mid-twentieth century that suggest the landscape for advocacy strategies that existed for indigenous peoples when they begin to organize internationally. Self-determination (in the context of decolonization), international human rights, and economic integration through international labor rights are the principal models I discuss.
CONQUEST, COLONIAL, AND POST-COLONIAL LAW: BRITISH AND SPANISH APPROACHES
Conquest and Colonial Law
A number of scholars have written on the different strategies and justifications for conquest deployed in the Americas by Spain and Portugal, on one hand, and Britain and France, on the other hand. I revisit some of this work briefly here, as a means to set up different lines of resistance that I believe we can follow through even to recent debates about the un Declaration discussed in the introduction. My goal is not to offer anything near a comprehensive account of the treatments of native populations during conquest; rather, I hope to use some of the narratives about that treatment to foreshadow later tensions between the self-determination and cultural rights strands of advocacy.
Antony Anghie reminds us that colonial expansion and conquest of indigenous peoples involved a well-thought-through, and contestable, set of legal justifications. Indeed, Spanish theologians engaged in debates about whether indigenous people were human, and therefore whether their subjugation was permissible. Francisco de Vitoria is commonly seen as one of the most progressive members of this group because of his insistence that natives were human beings capable of making rational and moral decisions. Yet, while "appearing to promote notions of equality and reciprocity between the Indians and the Spanish," Vitoria used this innate equality of the Indians to justify Spanish conquest over native populations.
If natives were to be considered as equals, they were also to be subjected to the same rules that governed the relationship between Europeans. Indian resistance was seen to violate these rules. Anghie explains:
Vitoria's apparently innocuous enunciation of a right to "travel" and "sojourn" extends finally to the creation of a comprehensive, indeed inescapable system of norms which are inevitably violated by the Indians. For example, Vitoria asserts that "to keep certain people out of the city or province as being enemies, or to expel them when already there, are acts of war." Thus any Indian attempt to resist Spanish penetration would amount to an act of war, which would justify Spanish retaliation. Each encounter between the Spanish and the Indians therefore entitles the Spanish to "defend" themselves against Indian aggression and, in doing so, continuously expand Spanish territory.
Even if Vitoria insisted that Indians were human, then, he also believed that they engaged in inhumane acts against which their victims needed to be protected.
Conquest was also grounded in cultural difference. As Anghie explains, for Vitoria, "the Indian is very different from the Spaniard because the Indian's specific social and cultural practices are at variance from the practices required by the universal norms-which in effect are Spanish practices," and it is through these "universal norms" that "the Spanish acquire an extraordinarily powerful right of intervention and may act on behalf of the people seen as victims of Indian rituals." This notion that certain cultural practices of indigenous peoples need to be condemned continues to appear in the discussion of the application of human rights to indigenous peoples. I outline it in chapter 4, using Elizabeth Povinelli's terminology of the "invisible asterisk."
Using a variety of justifications, including those posited by Vitoria, the Spanish engaged in a long, brutal period of invasion and occupation of territory that involved destruction of civilizations such as those of the Incas and Aztecs as well as enslavement of indigenous people for labor, often in mining, cargo transportation, and agriculture. According to Anthony Pagden, this type of conquest was unique to the Spaniards:
Only the Spanish settlers formally styled themselves conquerors, conquistadores, and only the native-born Spanish settlers (criollos) would, in the end, ground their claims to independence primarily upon their association with an aristocracy of conquest. An empire of this kind had to be an empire based upon people, defeated subjects who could be transformed into a pliant labour force. In America, only the Spaniards, and to a somewhat lesser degree the Portuguese, had found peoples in sufficient numbers whom they were able to overrun in this way.
In contrast, he notes, "both the English and the French were ... driven either to exclude the Native Americans from their colonies, or to incorporate them as trading partners." Pagden argues that the British and French entered the Americas with the idea of following the model of the Spaniards, but that the lack of largely populated indigenous areas in the more northern region created different types of resistance and economic possibilities. Thus, the British and French turned to justifications for claiming territory rather than people.
While Patricia Seed agrees that the British focused on land and the Spanish and Portuguese on people and their labor, she contends that their approaches were attributable not simply to "demographic and ecological accidents of historic encounters," but to varying "cultural traditions about valuing, transferring, and allocating riches [that] emerged in Europe long before the colonists' quest for riches in the Americas." Those different traditions facilitated different justifications for and modes of colonization: "Nomads could lose their land under English rules, and idolaters and pagans could be deprived of their rights to minerals and labor under Iberian conventions."
Regardless of the source of their focus, the British, and to a certain extent the French, ended up relying on the doctrine of terra nullius. In this doctrine, lands that were not put to active use-generally agricultural use-were seen as empty, belonging to no one. Thus, the first person who put the land to use could properly claim title over it. The British therefore did not see themselves as engaged in conquest, but only in the improvement of land. For Pagden, an argument based on conquest, "even supposing that it had been historically sustainable," would have had little traction "in a political culture such as Britain which, because it had itself been the creation of the Norman Conquest of 1066, was committed to the 'continuity theory' of constitutional law in which the legal and political institutions of the conquered are deemed to survive a conquest."
In contrast, the Spanish did not generally resort to terra nullius to justify their conquest, in part because it would have been difficult to maintain that lands were unoccupied, particularly in the cases of large parts of Peru and Mexico. Moreover, the Spanish and Portuguese had already articulated justifications for discovery even before arriving in the Americas. Robert Miller argues that Portugal
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