Pursuing the path of indigenization in the era of emergent international law governing the rights of indigenous peoples.

• Author: Porter, Robert B.

Now is both an exciting and frightening time for the Indigenous nations located within the United States. For perhaps the first time since the European colonization of our lands began, a few of our nations have developed the economic and political resources necessary to once again become free and self-sufficient. Unfortunately, significant barriers remain in the path to the meaningful redevelopment of our nations. Many of these barriers are obvious, such as the naturally limiting consequences of having weak and ineffective governments, underdeveloped and inadequate economies, and pervasive and debilitating social dysfunction. Other barriers, however, are less obvious and include such equally crippling maladies as continued psychological reliance upon the colonizing nation, the inability to recall the memory of the colonization process upon one's nation, and the pursuit of remedies to colonization that have the practical effect of promoting rather than alleviating colonization's impact.

Historically, Indigenous peoples within the United States have been subjected to a variety of American governmental policies designed to radically transform our societies at both the individual and collective levels.(1) As evidenced by the forced removal policy of the early nineteenth century, the land allotment policy of the late nineteenth century, and the sovereignty termination policy of the mid-twentieth century, Indigenous peoples have long been a primary focus of America's social engineering agenda. Even in the present day, America's colonizing practices have continued, more intensely in some cases due to internal as well as external developmental impetus. Against this backdrop, one of the primary purposes of this article is to re-orient policy analysis relating to Indigenous peoples away from this colonial legacy and to urge policymakers both within and outside of the Indigenous nations to envision and carry out a post-colonial methodology in the course of their policy development and research activities.

In approaching this objective, I will avoid defining what "proper" policy outcomes for any particular Indigenous nation might be. Instead, this Article sets forth a comprehensive developmental theory that could serve as the basis for any Indigenous nation's (re)development efforts. Naturally, such a "unified" theory is fraught with peril especially given that there are nearly 600 Indigenous nations within the United States. "Incorrect" outcomes could easily outnumber "correct" ones. What is most important is not the developmental "answer", but instead the investigation into the common problems afflicting these nations and a remedial model to resolve them. Ultimately, it is best left to the policymakers working with particular Indigenous nations to develop the case specific policy proposals needed to resolve particular colonization-rooted maladies.(2)

Exploring the roots of the problems affecting Indigenous societies first requires an investigation into the impact of European colonization on Indigenous lands and peoples. Colonialism is "the process by which a people exploit and/or annex the lands and resources of another people--who are usually of a different race or ethnicity--without their consent and unilaterally expand political power over them."(3) Because of the pervasiveness of the forced transformation of Indigenous societies associated with American colonialism, it is my view that colonialism is the source of all problems afflicting the Indigenous nations in the United States, and thus, solutions to its crippling aftereffects must be addressed at the deepest levels so that these societies might one day be revitalized. For an Indigenous nation that is developing a particular policy agenda, engaging in such a historical inquiry is a critical first step towards achieving a meaningful outcome. Ultimately, my argument in this article is that the preservation of Indigenous peoples in the United States as distinct

members of humankind is conditioned upon their resumption of important responsibilities currently in the hands of the colonizing American government. Achieving this devolution is simply not possible without fully appreciating the extent to which one has been transformed by and incorporated within the colonizing state.

Devolution, revitalization, or as I refer to it--"indigenization"--will not take place in a vacuum. For many years, particularly during the last decade, there has emerged a global effort to mitigate the effects of the colonialism that has long impacted Indigenous societies through the development of international law governing the rights of Indigenous peoples.(4) So successful have these efforts been that some experts now indicate that the legal protection afforded Indigenous peoples' rights has approached the level of customary international law.(5) Obviously, this is a critical development for the future of all Indigenous societies and the states that surround them. It is equally critical, then, to assess the extent to which emergent international law governing the rights of Indigenous peoples will affect indigenization efforts in the future.

The threshold purpose of this Article is to stimulate critical thinking about the future of the Indigenous nations in the United States and to promote the development of strategies by those engaged in research and policy development that will ensure their survival and redevelopment. In doing so, what follows is a reflection of my experiences as a citizen of an Indigenous nation who was raised in our territory, who later served as its chief legal officer, and who continues to be concerned about our national future. Having been engaged directly in the challenge of developing policy for an Indigenous nation--and making some mistakes in the process--I know that it is vitally important to have an understanding of the roots of the problems being addressed as well as the ways in which current remedial efforts may play out against contemporary global legal and political developments.

Part I will set forth the argument that the meaningful revitalization of the Indigenous nations depends upon engaging in a process of indigenization. Part II will identify the most significant barriers towards accomplishing that objective. Part III will assess the extent to which indigenization efforts may be assisted or undermined by the efforts to develop international treaty law governing the rights of Indigenous peoples. Part IV will put forward a few observations as to how indigenization might be achieved in practice.

1. "INDIGENIZATION": THE OBJECT OF MEANINGFUL INDIGENOUS REVITALIZATION

   It seems to be a truism that the survival of Indigenous peoples within the United States depends upon the preservation of societies that are distinct from American society. This axiom is deeply rooted in the legal and political traditions of my people, the Haudenosaunee.(6) One of the first Haudenosaunee treaties entered into with Dutch colonists in the late 17th century was the Guswentah, or "Two Row Wampum," which was memorialized by a belt of wampum beads. This belt contains two parallel rows of purple wampum beads, which reflect power, against a backdrop of white wampum beads, which reflect peace. The two parallel rows of purple beads represent the normative relationship that was agreed upon by the Haudenosaunee and the colonists--two vessels, each under its own power and control would travel together through time. As described by Mohawk scholar Taiaiake Alfred, the Guswentah symbolizes a "respectful (coequal) friendship and alliance" with "any interference with the other partner's autonomy, freedom, or powers ... expressly forbidden."(7)

   Despite its clarity, the history of the Indigenous-Immigrant relationship on the North American continent has not been in accord with the requirements of the Guswentah. For much of the period following its adoption, the paths of the Indigenous and the Immigrant peoples maintained a relative parallelism. Following the American Revolutionary War, however, the United States abandoned the commitment made by its colonial predecessors not to interfere in internal Indigenous affairs. Because of its expansionist desires, the United States and its citizenry aggressively and unilaterally began to assert control over Indigenous peoples and lands. These actions constituted a gross violation of the Guswentah in a manner sufficient to permanently transform the underlying social and legal relationship between the Americans and the Haudenosaunee.

   The significance of this colonial aggression can best be symbolized as a convergence of the Guswentah's two parallel rows of purple wampum. If one envisions the Guswentah as a set of parallel time lines, each purple row reflects the historic developmental paths of the Indigenous and Immigrant peoples since first contact. In the beginning, the lines are parallel, reflecting the distinctness of our two societies as we meet for the first time and agree upon how best to coexist in the same territory. But the impact of Euro-American colonization on Indigenous societies has precipitated a tremendous convergence of these historical developmental paths. Settlement, trade, disease, and warfare all took a toll in reducing the ability of the Indigenous nations to sustain a distinct existence. To be sure, the path of Immigrant development converged slightly toward the path of Indigenous development shortly after first contact, reflecting some degree of influence of Indigenous society on Immigrant society. But eventually, as the Immigrant society gained strength, the path of Immigrant development was restored to a parallel course where it has stayed pretty much for the last 200 years. The immovability of the Immigrant developmental path reflects the lack of Indigenous influence on Immigrant society.(8)

   During the same period, the convergence of the Indigenous developmental path towards the Immigrant developmental path has been...