Indigenous sovereignty: a reassessment in light of the UN Declaration on the Rights of Indigenous Peoples.

• Author: Wiessner, Siegfried

ABSTRACT

This Article explores the concept of "indigenous sovereignty" against the backdrop of the resurgence of indigenous peoples as actors in international and domestic law and policy. The Author starts with the traditional Western notion of sovereignty and its dynamization via the principle of self-determination, cabined by the exclusionary concepts of terra nullius and uti possidetis. The next Part delineates the global indigenous renascence occurring since the 1970s and the resulting state practice that has led to treaties and to the development of customary international law in the field. The Article proceeds to analyze the scope and legal effect of the 2007 UN Declaration on the Rights of Indigenous Peoples. It lays out various understandings of indigenous self-government under the rubric of self-determination; and ultimately, based on an assessment of the authentic aspirations of indigenous peoples, their "inner worlds," it suggests a functional redefinition of the legal scope and the limits of indigenous sovereignty.

TABLE OF CONTENTS I. BACKGROUND II. SOVEREIGNTY III. THE PRINCIPLES OF SELF-DETERMINATION AND UTI POSSIDETIS: THEIR EFFECT ON INDIGENOUS PEOPLES IV. THE RISE OF INDIGENOUS PEOPLES AND THE FORMATION OF CUSTOMARY INTERNATIONAL LAW V. THE 2007 UN DECLARATION ON THE RIGHTS OF INDIGENOUS PEOPLES VI. INDIGENOUS SELF-GOVERNMENT AND "TRIBAL SOVEREIGNTY" VII. TOWARD AUTHENTIC INDIGENOUS SOVEREIGNTY VIII. CONCLUSION September 13, 2007. Indigenous peoples around the world breathe a sigh of relief. They have snatched victory from the jaws of defeat, as the UN General Assembly, in an overwhelming vote of 144 states in favor to 4 against, adopts the UN Declaration on the Rights of Indigenous Peoples. (1) A last-minute change of heart by the African states, occasioned by a few slight accommodations in the text of the document, allowed this milestone of re-empowerment, worked on for over a generation, to become legal reality. Celebrations were in order, and they took place across the globe. Yet questions remain: What, exactly, does this victory mean? Have the indigenous communities accomplished their long way back from what seemed to be assured extinction? Have they, in effect, managed to reverse colonialism? Are they sovereign again, masters of their own fate?

Part I of this Article will briefly review the history of marginalization, exclusion, and often destruction of indigenous peoples. Part II will address the concept of sovereignty in its traditional Western connotation of the modern nation-state, while Part III will describe the way in which the right of self-determination dynamized this concept, also elucidating the anti-indigenous function and effect of the concepts of terra nullius and uti possidetis. Part IV will delineate the cross-border indigenous resurgence starting in the late 1960s and the resulting state practice that led to treaties as well as customary international law in the field. The Article will then explore the development, content, and legal effect of the 2007 UN Declaration on the Rights of Indigenous Peoples in Part V; lay out various understandings of indigenous self-government under the rubric of self-determination in Part VI; and, based on an assessment of the authentic aspirations of indigenous peoples--their "inner worlds"--suggest a functional redefinition of the preferred legal scope of indigenous sovereignty in Part VII.

1. BACKGROUND

   Modern society has tried to extinguish the indigenous voice. (2) Its language, institutions, and rituals have become dominant. (3) Modernity's law, in particular, has imprinted itself on indigenous peoples, following the sword of conquest in the Western Hemisphere and beyond. (4) Its domination of indigenous ways of life was to be expected. Its aggressive use of the Earth and its resources, (5) combined with sanctions to punish perceived transgressions, (6) its focus on "getting ahead" via technological and social "progress," (7) its premium on Cartesian reason and logic, (8) and its emphasis on the individual (9) ran head-on into and rolled over the soft, unresisting indigenous concepts of oneness with Mother Earth and Father Sky, their focus on peace and reconciliation, on faith, and on leaving nobody behind--on community. (10)

   Still, the onslaught has not been completely successful. All the military, economic, and materialistic might of the modern world has not succeeded in silencing the indigenous voice. (11) Just like tender water ultimately erodes the hardest of rocks, indigenous cultures, peoples, and their values have persisted. Like many oppressed communities, they have had to adapt, go underground, and avoid open confrontation; (12) they withdrew into niches of survival, areas not initially desired by the more dominant and aggressive part of humanity; (13) they engaged in religious syncretism, transforming their own gods into saints of the dominant faith; (14) they participated in the dominant economies, by way of tourism and the sale of handicraft; (15) and they even enlisted in the armed forces of the conqueror. (16)

   Paradoxically, modern communication technologies (17) have helped indigenous peoples to come together, sharing their stories across the breadcrumbs of land that the conquerors have left them and asserting their voice. (18) An international movement has united those who have been systematically divided in the past. (19) Domestic and international decisions have resulted in freezing the processes of assimilation and the termination of indigenous voices and values-sometimes even in slightly turning back the clock. (20)

   The Awas Tingni decision of the Inter-American Court of Human Rights (21) and the internationally successful campaign of the Western Shoshone against the taking of their sacred lands (22) are just two examples reaffirming the original assessment, based on recent state practice, that the lands traditionally held by indigenous peoples are theirs as a matter of right under customary international law. (23) Honoring the land rights of indigenous peoples is the first step toward preservation of their culture. The next step is to respect the structures of decisionmaking within traditional communities--a distant variant of the modern processes of decisionmaking in communities we proudly call "democratic."

   Cultural difference provides the context within which indigenous peoples' claims to self-government arise. Unlike the claims of other groups, indigenous peoples' claims are often couched in the verbiage of "sovereignty." (24) Vine Deloria, Jr., one of the modern-day prophets of Indian resurgence, spoke in terms of "indigenous sovereignty." (25) Even today, U.S. courts use "tribal sovereignty" as a term of art when they analyze cases involving American Indian tribes or, as they prefer to be called, "nations." (26) Other states also face indigenous peoples' demands for sovereignty. (27) Thus, the key notion of sovereignty must be critically reviewed.

2. SOVEREIGNTY

   Sovereignty underpins every legal system, be it international or national. The sovereign may be a king or queen or the people, but is, in the original definition, legibus solutus--i.e., free from the bonds of law. (28) Bodin's sole exception--divine law or the law of God, from which one cannot be free--has, in the prevailing positivist paradigm, not survived the era of Enlightenment and the emergence of the modern nation-state. (29)

   The sovereign reigns supreme, as he or she or it issues binding commands enforced by the threat of severe sanctions within the community under its control. (30) The sovereign holds the power to force compliance with its commands within its community, creating domestic law in a hierarchical or vertical sense. (31) Furthermore, the sovereign has the power to limit its authority beyond the borders of its community via agreements or concurrent practice with the sovereigns of external communities--thus creating international law, which is law in a co-archical or horizontal sense. (32)

   The paradigm of the sovereign in the modern world, at least in North America, is the nation-state. The nation-state is an abstract concept empirically understandable only through the notion that authorized persons can effectively control certain territory. The concept of the nation-state replaced the feudal idea of a personal community constituted of the feudal lord and his subjects, who are related by the very tangible concept of perpetual allegiance, i.e., the inescapable duty of obedience of the subject toward the lord, and the lord's duty to protect the subject, even in the lands of another lord. (33) When Louis XIV, the Sun King of France, famously proclaimed "L'Etat c'est moi!," he not only reveled in his absolute power over everybody in his realm--he also created a rival entity, the state, which would ultimately overtake, subdue, and bring to an end the very concept of personal, dynastic rule. (34) Enlightenment's insights led to the next step: the more or less voluntary subordination of the ruler to the state, which was best expressed by Prussian King Frederick the Great's characterization of himself as the "first servant of the state." (35) In German political philosophy, in particular, the state is described as a mystical phenomenon; Georg Wilhelm Friedrich Hegel called it the highest manifestation of reason. (36) Anglo-American political philosophy historically never went as far as Hegel's characterization--the state and its agent, the government, ever to be distrusted, were just a pragmatic way of delivering certain services to the people--at a minimum, protecting their liberties by providing security. (37)

   Whatever theoretical basis underpins state and government in the modern era, it can still safely be assumed that the U.S. Supreme Court will enforce self-executing treaties (38) and customary international law, (39) so long as it has jurisdiction and the plaintiff has standing. International legal restrictions...