Indigenous Peoples in International Law.

• Author: Rosen, Lawrence

1. E Pluribus Unum? Theoretical Unity and Cultural Diversity

   Americans genuinely seem perplexed by the issue of group rights. Ever since the Federalists' vision of the country prevailed over the view of those who saw the nation as congeries of communitarian entities, Americans have favored the ideal of unitarian nationhood without relinquishing their romance of community. A similar ambivalence is evident in the American tendency to cast issues predominantly in terms of individual rights rather than of collective rights, while still granting exceptions to those groups that seem to embody the ideals from which we imagine ourselves to have strayed.(1) Thus, we largely speak a language of uniformity -- of one body of law affecting all persons in the same way -- yet also acknowledge that religious communities like the Amish may be destroyed by state-enforced laws of general application.(2) We have long since moved away from a vision of America as a communitarian polity,(3) yet we anguish over the effect that a zoning ordinance has on a local ethnic community(4) or the damage that we do to immigrants when we fail to consider their backgrounds in criminal proceedings.(5)

   The temptation, then, is to seek a unified theory that will speak to particular situations within a framework of common criteria. Such unifying theories have broad appeal in many domains of western culture, from religion to economics to law. The desire for a unifying political and moral theory is especially strong when indigenous peoples are concerned, since they have long been left to the mercy of quite different surrounding states. As a result, any unified theory must account for their particular circumstances.(6)

   For the political philosopher Will Kymlicka, the unified frame proposed is that of the liberal state, a single political entity capable of attending to multiple cultures within its bounds by recognizing the need of individuals to forge their choices from within a distinctive cultural orientation.(7) Provided that its citizens all share the larger goal of enabling choices that do not harm others' capacity for choice, the unity of the state as the guarantor of such choice can be maintained.(8) For S. James Anaya, a scholar of international law, unity implicitly lies in the formulation of transnational customs and conventions.(9) Their overall principles will insure that national boundaries do not place undue burdens on the cultural or political fife of those who resided in the state before it took its present political shape.(10) Notwithstanding critical differences between these two orientations, both authors address many of the same questions: Is the nation, the cultural group, or humanity as a whole the proper unit to use in fashioning a comprehensive approach to indigenous peoples? Is a theory of "multicultural citizenship" or a separate theory of indigenous rights most likely to produce results consistent with the larger aim of ensuring individual choice or collective values? Indeed, can any unified theory adequately address the very different histories and structures of contemporary indigenous peoples?

   Regardless of the shape such a quest for common ground takes in a postcolonial world, all such theories must take into account the ambivalence that citizens of many nations feel toward the indigenous peoples living within their borders.(11) Nowhere are these mixed feelings more striking than in the case of America's treatment of its own indigenous population. As the image of native peoples has changed from that of the noble savage to that of an indigenous yeomanry, from that of an unproductive nomad to that of a beleaguered dependent, from that of a worthy foe to that of a sporting mascot or ecological emblem, Americans have not shaken their ambivalence about Native Americans and America's treatment of them. When, for example, the members of the Five Civilized Tribes -- notwithstanding their being clothed, Christianized, and literate -- were compelled in the 1830s to remove to the West, large numbers of Americans signed petitions against their expulsion.(12) Yet white America's unwillingness to back this position with concerted action bespoke its mixed feelings regarding America's impact on the Native Americans and their land.(13) American ambivalence also deeply suffused the decisions of Chief Justice John Marshall. In his opinions concerning the Cherokee,(14) Marshall spoke of America's extravagant pretensions in laying claim to the lands of sovereign peoples and sought to assuage that ambivalence by creating reciprocal duties for the federal government arising from the Native Americans' anomalous status as "domestic dependent nations."(15) Through every twist of policy and every turn of Supreme Court analysis, this ambivalence has marked America's relations with the original inhabitants of the land. It remains no less current in decisions today relating to whether a court should defer to a tribe's discriminatory precepts,(16) deprive a tribe of the use of an endangered species in an ancient ritual,(17) or accept oral traditions as valid in the determination of tribal identity.(18)

   What is true in the national realm is increasingly true in the domain of international law and politics as well. The ambivalence toward group rights, heightened by decolonization and global awareness of local practices, forces a wide range of nations and cultures to address such issues as female circumcision,(19) the capacity of individuals to further themselves despite the conventions of their group, and the rights of individuals to leave the religions of their birth.(20) Numerous international conventions have been propounded,(21) but the refusal on the part of the United States and other nations to sign many of these conventions(22) is less a hypocritical stance toward the principle of such accords than a manifestation of the deeply equivocal responses such undertakings elicit.

   Given the plenary power that most nations accord themselves to formulate wholesale solutions to their "native problems," it is understandable that the quest for a unified theory of group rights should be as attractive a goal to political philosophers and international lawyers as it is tempting to politicians and activist courts. In the American context, for example, Congress has repeatedly used its plenary power to implement one "solution" after another to "the Indian problem" -- from land tenure programs, to support for tribal constitutions, to the termination of tribal status -- all in the belief that the anomalous status of semi-sovereign entities within national borders could be comprehensively resolved.(23) Courts, too, often have found the peculiar status of Indians best treated by applying the same standards to tribal members as to any other citizens in order to avoid having to deal with special circumstances on a case-by-basis.(24)

   Realistically, however, what might any unified theory do for us? It may be argued that a universal theory would, without requiring every nation to solve the relationship of individual to group rights in the same fashion, encourage the formulation of a common set of terms and standards of evaluation with which to assess this relationship. Rather like a convertible currency, such a theory would be capable of transforming general precepts into localized coin. At the same time, a universal theory would, by its emphasis on shared terms of conversion, begin to articulate criteria for weighing human rights, individual rights, and group rights within a single frame of reference. Indeed, it can be argued that such a unified theory might eventually give rise to shared substantive results: Common practices might come to have the status of an international customary law of indigenous rights as a greater number of nations find it advantageous to their international reputations and connections to give effect to such customs.(25) Even if local solutions were always to remain preeminent, common approaches could hold out the prospect of more secure borders, less internal conflict, and greater international acceptance -- provided, of course, that the range of commendable national solutions was at once limited and politically acceptable.

   Why, then, does the formulation of such a unified theory remain so elusive? There are at least three major hurdles such a theory must overcome. The first concerns the theory's level of specificity. Imprecise language may well be as necessary for philosophical theories as for legislative proposals, but if the range of permissible content remains so great as to permit almost any practice, neither the theory nor its results will compel respect. Second, the theory must have a significant degree of transnational applicability. If it appears to be drawn from or for a particular region, the theory will begin life with a genealogy that may carry as much advantage in its home territory as it does stigma abroad. And third, the units upon which the theory is to be built must be comparable across the board and must be able to stand on intellectually and politically supportable ground notwithstanding distasteful local implications. The definition of "indigenous peoples," for example, must be clear enough that it will not vary widely from one circumstance to another. Similarly, a unit like "the nation" or "the community" must be drawn with sufficient precision such that not every collection of individuals would qualify for its protections; yet the unit must also constitute a rubric under which each local agglomeration could imagine placing itself In the process, the question of whether the same units of analysis apply equally well to such diverse entities as ethnic groups, minorities, or indigenous peoples will require careful attention.(26)

   To engage seriously, therefore, the explicit and implicit unified approaches taken by Kymlicka and Anaya, respectively, is to raise both the question of the appropriateness to indigenous...