Indigenous peoples and multicultural citizenship: Bridging collective and individual rights

Human Rights Quarterly

Volumn 24, Issue 1, 2002, Pages 126-151

  Holder, Cindy L ^a,b   Corntassel, Jeff J ^a,b  

^a UNIVERSITY OF VICTORIA   (Canada)

^b NONE

Author keywords

[No Author keywords available]

Indexed keywords

CITIZENSHIP; HUMAN RIGHTS; INDIGENOUS POPULATION; MULTICULTURALISM;

EID: 0036180061     PISSN: 02750392     EISSN: None     Source Type: Journal    
DOI: 10.1353/hrq.2002.0012     Document Type: Article

References (93)

1. As one example of a critical approach to global human rights, see, HUMAN RIGHTS FIFTY YEARS ON: A RADICAL REAPPRAISAL (Tony Evans ed., 1998).
2. Some examples of human rights treaties stressing the individualistic nature of rights claimants include the International Covenant on Economic, Social, and Cultural Rights (1966), the International Covenant on Civil and Political Rights (1966), and the Convention on the Elimination of All Forms of Discrimination Against Women (1979). For human rights documents using the language of "persons belonging to" and "populations" rather than "peoples" see Declaration on the Rights of Persons Belonging to National, Ethnic, Religious and Linguistic Minorities, Article 1.1, G.A. Res. 47/135 (18 Dec. 1992); Vienna Declaration and Programme of Action, World Conference on Human Rights, Vienna, U.N. Doc. A/CONF.157/24 (Part I) at 20, 1.5 (14-25 June 1993); also 1.18, 1.19, 1.33 of the Vienna Declaration; and the European Convention for the Protection of Human Rights and Fundamental Freedoms. A general overview of the international legal regime governing minority rights can be found in NATAN LERNER, GROUP RIGHTS AND DISCRIMINATION IN INTERNATIONAL LAW (1991).
3. We have chosen to follow Peter Jones' term "corporate" (see Peter Jones, Human Rights, Group Rights and Peoples' Rights, 21 HUM. RTS. Q. 87-88 (1999)) rather than the more familiar term "communitarian" for two reasons. First, what distinguishes the advocates of group rights from liberal-individualist views is not that they like community but that they dislike reducing communities to individual members. It is thus misleading to describe the debate in terms of "communitarians" versus "liberal-individualists" as this suggests that the source of disagreement is the value to be accorded community when the disagreement is really over the nature of community and its role in individuals' lives. Second, many communitarians have argued that rights discourse itself is antagonistic to maintaining a strong communal context, so that a discussion of whether group rights or individual rights should take precedence is beside the point. See MARY ANN GLENDON, RIGHTS TALK (1991); Michael Sandel, The Procedural Republic and the Unencumbered Self, 12 POL. THEORY 81-96 (1984). Nonetheless communitarian thinking has had a clear influence on the approaches to group rights which we describe as "corporatist." See, e.g., Darlene Johnston, Native Rights as Collective Rights, 2 CANADIAN J. L. & JURISPRUDENCE 19-34 (1989); Frances Svensson, Liberal Democracy and Group Rights: The Legacy of Individualism and its Impact on American Indian Tribes, 27 POL. STUD. 421-39 (1979). So in what follows we cite the views of communitarian thinkers such as Charles Taylor and Alisdair MacIntyre in our explication of the corporatist position.
4. We have chosen to follow Peter Jones' term "corporate" (see Peter Jones, Human Rights, Group Rights and Peoples' Rights, 21 HUM. RTS. Q. 87-88 (1999)) rather than the more familiar term "communitarian" for two reasons. First, what distinguishes the advocates of group rights from liberal-individualist views is not that they like community but that they dislike reducing communities to individual members. It is thus misleading to describe the debate in terms of "communitarians" versus "liberal-individualists" as this suggests that the source of disagreement is the value to be accorded community when the disagreement is really over the nature of community and its role in individuals' lives. Second, many communitarians have argued that rights discourse itself is antagonistic to maintaining a strong communal context, so that a discussion of whether group rights or individual rights should take precedence is beside the point. See MARY ANN GLENDON, RIGHTS TALK (1991); Michael Sandel, The Procedural Republic and the Unencumbered Self, 12 POL. THEORY 81-96 (1984). Nonetheless communitarian thinking has had a clear influence on the approaches to group rights which we describe as "corporatist." See, e.g., Darlene Johnston, Native Rights as Collective Rights, 2 CANADIAN J. L. & JURISPRUDENCE 19-34 (1989); Frances Svensson, Liberal Democracy and Group Rights: The Legacy of Individualism and its Impact on American Indian Tribes, 27 POL. STUD. 421-39 (1979). So in what follows we cite the views of communitarian thinkers such as Charles Taylor and Alisdair MacIntyre in our explication of the corporatist position.
5. We have chosen to follow Peter Jones' term "corporate" (see Peter Jones, Human Rights, Group Rights and Peoples' Rights, 21 HUM. RTS. Q. 87-88 (1999)) rather than the more familiar term "communitarian" for two reasons. First, what distinguishes the advocates of group rights from liberal-individualist views is not that they like community but that they dislike reducing communities to individual members. It is thus misleading to describe the debate in terms of "communitarians" versus "liberal-individualists" as this suggests that the source of disagreement is the value to be accorded community when the disagreement is really over the nature of community and its role in individuals' lives. Second, many communitarians have argued that rights discourse itself is antagonistic to maintaining a strong communal context, so that a discussion of whether group rights or individual rights should take precedence is beside the point. See MARY ANN GLENDON, RIGHTS TALK (1991); Michael Sandel, The Procedural Republic and the Unencumbered Self, 12 POL. THEORY 81-96 (1984). Nonetheless communitarian thinking has had a clear influence on the approaches to group rights which we describe as "corporatist." See, e.g., Darlene Johnston, Native Rights as Collective Rights, 2 CANADIAN J. L. & JURISPRUDENCE 19-34 (1989); Frances Svensson, Liberal Democracy and Group Rights: The Legacy of Individualism and its Impact on American Indian Tribes, 27 POL. STUD. 421-39 (1979). So in what follows we cite the views of communitarian thinkers such as Charles Taylor and Alisdair MacIntyre in our explication of the corporatist position.
6. We have chosen to follow Peter Jones' term "corporate" (see Peter Jones, Human Rights, Group Rights and Peoples' Rights, 21 HUM. RTS. Q. 87-88 (1999)) rather than the more familiar term "communitarian" for two reasons. First, what distinguishes the advocates of group rights from liberal-individualist views is not that they like community but that they dislike reducing communities to individual members. It is thus misleading to describe the debate in terms of "communitarians" versus "liberal-individualists" as this suggests that the source of disagreement is the value to be accorded community when the disagreement is really over the nature of community and its role in individuals' lives. Second, many communitarians have argued that rights discourse itself is antagonistic to maintaining a strong communal context, so that a discussion of whether group rights or individual rights should take precedence is beside the point. See MARY ANN GLENDON, RIGHTS TALK (1991); Michael Sandel, The Procedural Republic and the Unencumbered Self, 12 POL. THEORY 81-96 (1984). Nonetheless communitarian thinking has had a clear influence on the approaches to group rights which we describe as "corporatist." See, e.g., Darlene Johnston, Native Rights as Collective Rights, 2 CANADIAN J. L. & JURISPRUDENCE 19-34 (1989); Frances Svensson, Liberal Democracy and Group Rights: The Legacy of Individualism and its Impact on American Indian Tribes, 27 POL. STUD. 421-39 (1979). So in what follows we cite the views of communitarian thinkers such as Charles Taylor and Alisdair MacIntyre in our explication of the corporatist position.
7. We have chosen to follow Peter Jones' term "corporate" (see Peter Jones, Human Rights, Group Rights and Peoples' Rights, 21 HUM. RTS. Q. 87-88 (1999)) rather than the more familiar term "communitarian" for two reasons. First, what distinguishes the advocates of group rights from liberal-individualist views is not that they like community but that they dislike reducing communities to individual members. It is thus misleading to describe the debate in terms of "communitarians" versus "liberal-individualists" as this suggests that the source of disagreement is the value to be accorded community when the disagreement is really over the nature of community and its role in individuals' lives. Second, many communitarians have argued that rights discourse itself is antagonistic to maintaining a strong communal context, so that a discussion of whether group rights or individual rights should take precedence is beside the point. See MARY ANN GLENDON, RIGHTS TALK (1991); Michael Sandel, The Procedural Republic and the Unencumbered Self, 12 POL. THEORY 81-96 (1984). Nonetheless communitarian thinking has had a clear influence on the approaches to group rights which we describe as "corporatist." See, e.g., Darlene Johnston, Native Rights as Collective Rights, 2 CANADIAN J. L. & JURISPRUDENCE 19-34 (1989); Frances Svensson, Liberal Democracy and Group Rights: The Legacy of Individualism and its Impact on American Indian Tribes, 27 POL. STUD. 421-39 (1979). So in what follows we cite the views of communitarian thinkers such as Charles Taylor and Alisdair MacIntyre in our explication of the corporatist position.
8. Jones, supra note 3, at 90-91.
9. Id. at 88, 92-93.
10. See, e.g., Rosemarie Kuptana, Speaking Notes for the North American Indigenous Nations UN Satellite Meeting (1 Apr. 1993), cited in Wendy Moss, Inuit Perspectives on Treaty Rights and Governance, in ABORIGINAL SELF-GOVERNMENT: LEGAL AND CONSTITUTIONAL ISSUES, ROYAL COMMISSION ON ABORIGINAL PEOPLES (1995); Sami Council, Cultural Policies for Development: An Indigenous Perspective, available as Note by the Secretariat: Information received from indigenous organizations, U.N. Doc. E/CN.4/Sub.2/AC.4/1998/8; Human Rights Committee, The Right to Self-Determination of Peoples, art. 1, Gen. Comment 12, available at 〈http://www.unhchr.ch/tbs/doc.nsf/(symbol)/CCPR+General +comment+12.En?OpenDocument〉 (visited 18 Nov. 2001).
11. See, e.g., Rosemarie Kuptana, Speaking Notes for the North American Indigenous Nations UN Satellite Meeting (1 Apr. 1993), cited in Wendy Moss, Inuit Perspectives on Treaty Rights and Governance, in ABORIGINAL SELF-GOVERNMENT: LEGAL AND CONSTITUTIONAL ISSUES, ROYAL COMMISSION ON ABORIGINAL PEOPLES (1995); Sami Council, Cultural Policies for Development: An Indigenous Perspective, available as Note by the Secretariat: Information received from indigenous organizations, U.N. Doc. E/CN.4/Sub.2/AC.4/1998/8; Human Rights Committee, The Right to Self-Determination of Peoples, art. 1, Gen. Comment 12, available at 〈http://www.unhchr.ch/tbs/doc.nsf/(symbol)/CCPR+General +comment+12.En?OpenDocument〉 (visited 18 Nov. 2001).
12. See, e.g., Rosemarie Kuptana, Speaking Notes for the North American Indigenous Nations UN Satellite Meeting (1 Apr. 1993), cited in Wendy Moss, Inuit Perspectives on Treaty Rights and Governance, in ABORIGINAL SELF-GOVERNMENT: LEGAL AND CONSTITUTIONAL ISSUES, ROYAL COMMISSION ON ABORIGINAL PEOPLES (1995); Sami Council, Cultural Policies for Development: An Indigenous Perspective, available as Note by the Secretariat: Information received from indigenous organizations, U.N. Doc. E/CN.4/Sub.2/AC.4/1998/8; Human Rights Committee, The Right to Self-Determination of Peoples, art. 1, Gen. Comment 12, available at 〈http://www.unhchr.ch/tbs/doc.nsf/(symbol)/CCPR+General +comment+12.En?OpenDocument〉 (visited 18 Nov. 2001).
13. See, e.g., Rosemarie Kuptana, Speaking Notes for the North American Indigenous Nations UN Satellite Meeting (1 Apr. 1993), cited in Wendy Moss, Inuit Perspectives on Treaty Rights and Governance, in ABORIGINAL SELF-GOVERNMENT: LEGAL AND CONSTITUTIONAL ISSUES, ROYAL COMMISSION ON ABORIGINAL PEOPLES (1995); Sami Council, Cultural Policies for Development: An Indigenous Perspective, available as Note by the Secretariat: Information received from indigenous organizations, U.N. Doc. E/CN.4/Sub.2/AC.4/1998/8; Human Rights Committee, The Right to Self-Determination of Peoples, art. 1, Gen. Comment 12, available at 〈http://www.unhchr.ch/tbs/doc.nsf/(symbol)/CCPR+General +comment+12.En?OpenDocument〉 (visited 18 Nov. 2001).
14. Indigenous peoples are distinct from "minority groups" or other "national groups" due to their original occupation of traditional homelands, historical continuity, unique cultural practices, non-dominance, and group awareness. In defining indigenous, we refer to the commonly used "working definition" established by the UN Working Group on Indigenous Populations (UNWGIP) in 1986: Indigenous populations are composed of the existing descendants of the people who originally inhabited the present territory of a country (or countries), wholly or partially, at the time when persons of a different culture or ethnic origin arrived there from other parts of the world, overcame them, either by direct conquest, settlement, or other means, reduced them to a non-dominant group within their home region or territory. Jeff Corntassel & Tomas Hopkins Primeau, The Paradox of Indigenous Identity: A Levels of Analysis Approach to Indigenous Identity Construction, 4 GLOBAL GOVERNANCE 139-56 (1998) (emphasis added); Jose R. Martinez Cobo, Study of the Problem of Discrimination Against Indigenous Populations, U.N. Doc. E/CN.4/Sub.2/L.566, ¶ 34 (1986).
15. Indigenous peoples are distinct from "minority groups" or other "national groups" due to their original occupation of traditional homelands, historical continuity, unique cultural practices, non-dominance, and group awareness. In defining indigenous, we refer to the commonly used "working definition" established by the UN Working Group on Indigenous Populations (UNWGIP) in 1986: Indigenous populations are composed of the existing descendants of the people who originally inhabited the present territory of a country (or countries), wholly or partially, at the time when persons of a different culture or ethnic origin arrived there from other parts of the world, overcame them, either by direct conquest, settlement, or other means, reduced them to a non-dominant group within their home region or territory. Jeff Corntassel & Tomas Hopkins Primeau, The Paradox of Indigenous Identity: A Levels of Analysis Approach to Indigenous Identity Construction, 4 GLOBAL GOVERNANCE 139-56 (1998) (emphasis added); Jose R. Martinez Cobo, Study of the Problem of Discrimination Against Indigenous Populations, U.N. Doc. E/CN.4/Sub.2/L.566, ¶ 34 (1986).
16. For general arguments defending the conceptual coherence of a collective rights, see Leslie Green, Two Views of Collective Rights, 4 CANADIAN L. & JURISPRUDENCE 315 (1991); Michael Hartney, Some Confusions Concerning Collective Rights, in THE RIGHTS OF MINORITY CULTURES 293 (Will Kymlicka ed., 1995).
17. For general arguments defending the conceptual coherence of a collective rights, see Leslie Green, Two Views of Collective Rights, 4 CANADIAN L. & JURISPRUDENCE 315 (1991); Michael Hartney, Some Confusions Concerning Collective Rights, in THE RIGHTS OF MINORITY CULTURES 293 (Will Kymlicka ed., 1995).
18. This discussion does not necessarily apply to non-traditional approaches such as found in post-modern, post-structuralist, or feminist treatments of the subject. Rather, the susceptibility of non-traditional treatments to the criticisms outlined below depends on whether and to what extent such treatments share the problematic assumptions identified. For an interesting and thoughtful discussion of collective entitlements from a non-traditional perspective, see V. Spike Peterson, The Politics of Identification in the Context of Globalization, 19 WOMEN'S STUD. INT'L FORUM 5 (1996).
19. See WILL KYMLICKA, MULTICULTURAL CITIZENSHIP: A LIBERAL THEORY OF MINORITY RIGHTS (1995); Allen Buchanan, The Role of Collective Rights in the Theory of Indigenous Peoples' Rights, in SECESSION: THE MORALITY OF POLITICAL DIVORCE FROM FORT SUMTER TO LITHUANIA AND QUEBEC, ch. 2 (Allen Buchanan ed., 1991); JOSPEH RAZ, THE MORALITY OF FREEDOM (1986).
20. See WILL KYMLICKA, MULTICULTURAL CITIZENSHIP: A LIBERAL THEORY OF MINORITY RIGHTS (1995); Allen Buchanan, The Role of Collective Rights in the Theory of Indigenous Peoples' Rights, in SECESSION: THE MORALITY OF POLITICAL DIVORCE FROM FORT SUMTER TO LITHUANIA AND QUEBEC, ch. 2 (Allen Buchanan ed., 1991); JOSPEH RAZ, THE MORALITY OF FREEDOM (1986).
21. See WILL KYMLICKA, MULTICULTURAL CITIZENSHIP: A LIBERAL THEORY OF MINORITY RIGHTS (1995); Allen Buchanan, The Role of Collective Rights in the Theory of Indigenous Peoples' Rights, in SECESSION: THE MORALITY OF POLITICAL DIVORCE FROM FORT SUMTER TO LITHUANIA AND QUEBEC, ch. 2 (Allen Buchanan ed., 1991); JOSPEH RAZ, THE MORALITY OF FREEDOM (1986).
22. See, e.g., Michael Sandel, The Procedural Republic and the Unencumbered Self, 12 POLITICAL THEORY 81 (1984); Johnston, supra note 3, at 19 (1989).
23. See, e.g., Michael Sandel, The Procedural Republic and the Unencumbered Self, 12 POLITICAL THEORY 81 (1984); Johnston, supra note 3, at 19 (1989).
24. See, e.g., Johnston, supra note 3; Svensson, supra note 3; Owen Fiss, Groups and the Equal Protection Clause, PHIL. & PUB. AFFS. 5 (1976).
25. See, e.g., Johnston, supra note 3; Svensson, supra note 3; Owen Fiss, Groups and the Equal Protection Clause, PHIL. & PUB. AFFS. 5 (1976).
26. See, e.g., Johnston, supra note 3; Svensson, supra note 3; Owen Fiss, Groups and the Equal Protection Clause, PHIL. & PUB. AFFS. 5 (1976).
27. CHARLES TAYLOR, SOURCES OF THE SELF 27 (1989).
28. Id. at 50.
29. ALISDAIR MACINTYRE, AFTER VIRTUE (1981); MICHAEL WALZER, SPHERES OF JUSTICE (1983).
30. ALISDAIR MACINTYRE, AFTER VIRTUE (1981); MICHAEL WALZER, SPHERES OF JUSTICE (1983).
31. To describe collectivities as ontologically prior is to say that the existence of individual selves is preceded by the existence of collectivities. In other words, individual selves cannot exist unless there is a collectivity already in place. For a detailed discussion of this idea, see CHARLES TAYLOR, Atomism, in PHILOSOPHY AND THE HUMAN SCIENCES: PHILOSOPHICAL PAPERS VOL. II, ch. 7 (1985); and the concept of a person in HUMAN AGENCY AND LANGUAGE: PHILOSOPHICAL PAPERS VOL. I, ch. 4 (1985).
32. To describe collectivities as ontologically prior is to say that the existence of individual selves is preceded by the existence of collectivities. In other words, individual selves cannot exist unless there is a collectivity already in place. For a detailed discussion of this idea, see CHARLES TAYLOR, Atomism, in PHILOSOPHY AND THE HUMAN SCIENCES: PHILOSOPHICAL PAPERS VOL. II, ch. 7 (1985); and the concept of a person in HUMAN AGENCY AND LANGUAGE: PHILOSOPHICAL PAPERS VOL. I, ch. 4 (1985).
33. TAYLOR, supra note 16. 18. See Jeremy Waldron, Minority Cultures and the Cosmopolitan Alternative, 3 UNIV. MICH. J. L. REFORM 195 (1992); Kymlicka, Multicultural Citizenship, supra note 10; DAVID MILLER, ON NATIONALITY (1995).
34. TAYLOR, supra note 16. 18. See Jeremy Waldron, Minority Cultures and the Cosmopolitan Alternative, 3 UNIV. MICH. J. L. REFORM 195 (1992); Kymlicka, Multicultural Citizenship, supra note 10; DAVID MILLER, ON NATIONALITY (1995).
35. TAYLOR, supra note 16. 18. See Jeremy Waldron, Minority Cultures and the Cosmopolitan Alternative, 3 UNIV. MICH. J. L. REFORM 195 (1992); Kymlicka, Multicultural Citizenship, supra note 10; DAVID MILLER, ON NATIONALITY (1995).
36. The Chittagong Hill Tracts (CHT) are a confederacy of sixteen different indigenous nations collectively called Jumma, which include the Chakma, Marma, Tripura, Mro, and others. Over 500,000 predominantly Buddhist Jumma live in CHT homelands that are situated in the southeastern part of Bangladesh, Jumma indigenous peoples have a long history of self-rule despite colonization efforts by Bengalis and Great Britain. By 1947, the CHT was ceded by Britain to Muslim Pakistan. When Bangladesh seceded from Pakistan in 1971, the CHT region was also included in the newly-formed state. Since Bangladeshi statehood, the CHT region has been besieged by over 400,000 government-induced Bengali settlers who have sought to dislocate Jumma peoples from their homelands. A 1997 agreement between the government of Bangladesh and the Parbatya Chattagram Jan Samhati Samiti (PCJSS), the political party of the Jumma indigenous peoples, was negotiated to end the ongoing intrastate war. However, Jumma homeland autonomy has not yet been restored as over 3,055 Jumma refugee families have yet to have their original homelands restored to them. JAMES MINAHAN, NATIONS WITHOUT STATES (1996); Intervention by Mangal Kumar Chakma, UN Working Group on Indigenous Populations, 18th Sess., Geneva, Switz. (24-28 July 2000).
37. The Chittagong Hill Tracts (CHT) are a confederacy of sixteen different indigenous nations collectively called Jumma, which include the Chakma, Marma, Tripura, Mro, and others. Over 500,000 predominantly Buddhist Jumma live in CHT homelands that are situated in the southeastern part of Bangladesh, Jumma indigenous peoples have a long history of self-rule despite colonization efforts by Bengalis and Great Britain. By 1947, the CHT was ceded by Britain to Muslim Pakistan. When Bangladesh seceded from Pakistan in 1971, the CHT region was also included in the newly-formed state. Since Bangladeshi statehood, the CHT region has been besieged by over 400,000 government-induced Bengali settlers who have sought to dislocate Jumma peoples from their homelands. A 1997 agreement between the government of Bangladesh and the Parbatya Chattagram Jan Samhati Samiti (PCJSS), the political party of the Jumma indigenous peoples, was negotiated to end the ongoing intrastate war. However, Jumma homeland autonomy has not yet been restored as over 3,055 Jumma refugee families have yet to have their original homelands restored to them. JAMES MINAHAN, NATIONS WITHOUT STATES (1996); Intervention by Mangal Kumar Chakma, UN Working Group on Indigenous Populations, 18th Sess., Geneva, Switz. (24-28 July 2000).
38. See, e.g., INTER-AMERICAN COMMISSION ON HUMAN RIGHTS, REPORT ON THE SITUATION OF HUMAN RIGHTS IN COLUMBIA, at ch. X (1999); INTER-AMERICAN COMMISSION ON HUMAN RIGHTS, REPORT ON THE SITUATION OF HUMAN RIGHTS IN BRAZIL, ch. VI (1996); Concluding Observations of the Committee on the Elimination of Racial Discrimination: Uruguay, Comm. on the Elimination of all Forms of Racial Discrimination (CERD), U.M. Doc. A/54/18, ¶¶ 425- 35, at 425 (19 Aug. 1999) (Concluding Observations/Comments); Concluding Observations of the Committee on the Elimination of Racial Discrimination: Colombia, CERD, U.N. Doc. A/54/18, ¶¶ 454-81 (20 Aug. 1999); Concluding Observations of the Committee on the Elimination of Racial Discrimination: Cambodia, CERD, U.N. Doc. CERD/C/304/Add.54 (31 Mar. 1998); Concluding Observations of the Human Rights Committee: Chile, Hum. Rts. Comm., U.N. Doc. CCPR/C/79/Add.104 (30 Mar. 1999); Concluding Observations of the Human Rights Committee: Ecuador, CERD, U.N. Doc. CCPR/C/79/Add.92 (18 Aug. 1998).
39. See, e.g., INTER-AMERICAN COMMISSION ON HUMAN RIGHTS, REPORT ON THE SITUATION OF HUMAN RIGHTS IN COLUMBIA, at ch. X (1999); INTER-AMERICAN COMMISSION ON HUMAN RIGHTS, REPORT ON THE SITUATION OF HUMAN RIGHTS IN BRAZIL, ch. VI (1996); Concluding Observations of the Committee on the Elimination of Racial Discrimination: Uruguay, Comm. on the Elimination of all Forms of Racial Discrimination (CERD), U.M. Doc. A/54/18, ¶¶ 425- 35, at 425 (19 Aug. 1999) (Concluding Observations/Comments); Concluding Observations of the Committee on the Elimination of Racial Discrimination: Colombia, CERD, U.N. Doc. A/54/18, ¶¶ 454-81 (20 Aug. 1999); Concluding Observations of the Committee on the Elimination of Racial Discrimination: Cambodia, CERD, U.N. Doc. CERD/C/304/Add.54 (31 Mar. 1998); Concluding Observations of the Human Rights Committee: Chile, Hum. Rts. Comm., U.N. Doc. CCPR/C/79/Add.104 (30 Mar. 1999); Concluding Observations of the Human Rights Committee: Ecuador, CERD, U.N. Doc. CCPR/C/79/Add.92 (18 Aug. 1998).
40. See, e.g., INTER-AMERICAN COMMISSION ON HUMAN RIGHTS, REPORT ON THE SITUATION OF HUMAN RIGHTS IN COLUMBIA, at ch. X (1999); INTER-AMERICAN COMMISSION ON HUMAN RIGHTS, REPORT ON THE SITUATION OF HUMAN RIGHTS IN BRAZIL, ch. VI (1996); Concluding Observations of the Committee on the Elimination of Racial Discrimination: Uruguay, Comm. on the Elimination of all Forms of Racial Discrimination (CERD), U.M. Doc. A/54/18, ¶¶ 425-35, at 425 (19 Aug. 1999) (Concluding Observations/Comments); Concluding Observations of the Committee on the Elimination of Racial Discrimination: Colombia, CERD, U.N. Doc. A/54/18, ¶¶ 454-81 (20 Aug. 1999); Concluding Observations of the Committee on the Elimination of Racial Discrimination: Cambodia, CERD, U.N. Doc. CERD/C/304/Add.54 (31 Mar. 1998); Concluding Observations of the Human Rights Committee: Chile, Hum. Rts. Comm., U.N. Doc. CCPR/C/79/Add.104 (30 Mar. 1999); Concluding Observations of the Human Rights Committee: Ecuador, CERD, U.N. Doc. CCPR/C/79/Add.92 (18 Aug. 1998).
41. See, e.g., INTER-AMERICAN COMMISSION ON HUMAN RIGHTS, REPORT ON THE SITUATION OF HUMAN RIGHTS IN COLUMBIA, at ch. X (1999); INTER-AMERICAN COMMISSION ON HUMAN RIGHTS, REPORT ON THE SITUATION OF HUMAN RIGHTS IN BRAZIL, ch. VI (1996); Concluding Observations of the Committee on the Elimination of Racial Discrimination: Uruguay, Comm. on the Elimination of all Forms of Racial Discrimination (CERD), U.M. Doc. A/54/18, ¶¶ 425- 35, at 425 (19 Aug. 1999) (Concluding Observations/Comments); Concluding Observations of the Committee on the Elimination of Racial Discrimination: Colombia, CERD, U.N. Doc. A/54/18, ¶¶ 454-81 (20 Aug. 1999); Concluding Observations of the Committee on the Elimination of Racial Discrimination: Cambodia, CERD, U.N. Doc. CERD/C/304/Add.54 (31 Mar. 1998); Concluding Observations of the Human Rights Committee: Chile, Hum. Rts. Comm., U.N. Doc. CCPR/C/79/Add.104 (30 Mar. 1999); Concluding Observations of the Human Rights Committee: Ecuador, CERD, U.N. Doc. CCPR/C/79/Add.92 (18 Aug. 1998).
42. See, e.g., INTER-AMERICAN COMMISSION ON HUMAN RIGHTS, REPORT ON THE SITUATION OF HUMAN RIGHTS IN COLUMBIA, at ch. X (1999); INTER-AMERICAN COMMISSION ON HUMAN RIGHTS, REPORT ON THE SITUATION OF HUMAN RIGHTS IN BRAZIL, ch. VI (1996); Concluding Observations of the Committee on the Elimination of Racial Discrimination: Uruguay, Comm. on the Elimination of all Forms of Racial Discrimination (CERD), U.M. Doc. A/54/18, ¶¶ 425- 35, at 425 (19 Aug. 1999) (Concluding Observations/Comments); Concluding Observations of the Committee on the Elimination of Racial Discrimination: Colombia, CERD, U.N. Doc. A/54/18, ¶¶ 454-81 (20 Aug. 1999); Concluding Observations of the Committee on the Elimination of Racial Discrimination: Cambodia, CERD, U.N. Doc. CERD/C/304/Add.54 (31 Mar. 1998); Concluding Observations of the Human Rights Committee: Chile, Hum. Rts. Comm., U.N. Doc. CCPR/C/79/Add.104 (30 Mar. 1999); Concluding Observations of the Human Rights Committee: Ecuador, CERD, U.N. Doc. CCPR/C/79/Add.92 (18 Aug. 1998).
43. See, e.g., INTER-AMERICAN COMMISSION ON HUMAN RIGHTS, REPORT ON THE SITUATION OF HUMAN RIGHTS IN COLUMBIA, at ch. X (1999); INTER-AMERICAN COMMISSION ON HUMAN RIGHTS, REPORT ON THE SITUATION OF HUMAN RIGHTS IN BRAZIL, ch. VI (1996); Concluding Observations of the Committee on the Elimination of Racial Discrimination: Uruguay, Comm. on the Elimination of all Forms of Racial Discrimination (CERD), U.M. Doc. A/54/18, ¶¶ 425- 35, at 425 (19 Aug. 1999) (Concluding Observations/Comments); Concluding Observations of the Committee on the Elimination of Racial Discrimination: Colombia, CERD, U.N. Doc. A/54/18, ¶¶ 454-81 (20 Aug. 1999); Concluding Observations of the Committee on the Elimination of Racial Discrimination: Cambodia, CERD, U.N. Doc. CERD/C/304/Add.54 (31 Mar. 1998); Concluding Observations of the Human Rights Committee: Chile, Hum. Rts. Comm., U.N. Doc. CCPR/C/79/Add.104 (30 Mar. 1999); Concluding Observations of the Human Rights Committee: Ecuador, CERD, U.N. Doc. CCPR/C/79/Add.92 (18 Aug. 1998).
44. See, e.g., INTER-AMERICAN COMMISSION ON HUMAN RIGHTS, REPORT ON THE SITUATION OF HUMAN RIGHTS IN COLUMBIA, at ch. X (1999); INTER-AMERICAN COMMISSION ON HUMAN RIGHTS, REPORT ON THE SITUATION OF HUMAN RIGHTS IN BRAZIL, ch. VI (1996); Concluding Observations of the Committee on the Elimination of Racial Discrimination: Uruguay, Comm. on the Elimination of all Forms of Racial Discrimination (CERD), U.M. Doc. A/54/18, ¶¶ 425- 35, at 425 (19 Aug. 1999) (Concluding Observations/Comments); Concluding Observations of the Committee on the Elimination of Racial Discrimination: Colombia, CERD, U.N. Doc. A/54/18, ¶¶ 454-81 (20 Aug. 1999); Concluding Observations of the Committee on the Elimination of Racial Discrimination: Cambodia, CERD, U.N. Doc. CERD/C/304/Add.54 (31 Mar. 1998); Concluding Observations of the Human Rights Committee: Chile, Hum. Rts. Comm., U.N. Doc. CCPR/C/79/Add.104 (30 Mar. 1999); Concluding Observations of the Human Rights Committee: Ecuador, CERD, U.N. Doc. CCPR/C/79/Add.92 (18 Aug. 1998).
45. The term "host" state is the most grammatically precise and widely used phrase describing those countries containing indigenous peoples within their borders. However, this term should not be construed to imply a sense of undue state cordiality, especially given the severe treatment that several indigenous populations have received at the hands of their "host" states. See Corntassel & Primeau, supra note 7, at 139-40.
46. FRANKE WILMER, THE INDIGENOUS VOICE IN WORLD POLITICS 18-19, 136-38 (1993).
47. An overarching goal of the "Partnership in Action" program to be undertaken during the Indigenous Decade (1995-2004) is to strengthen the global and local networks of intergovernmental cooperation while working toward solutions regarding indigenous struggles in areas such as human rights, the environment, development, education, and health. The UN posits that in order to be truly effective in promoting indigenous cultural, political, economic, and social freedoms, all levels of governance, including global and regional intergovernmental organizations, nongovernmental organizations, private enterprises, countries hosting indigenous peoples, and indigenous peoples themselves, must coordinate their efforts and continue to communicate their concerns in global forums, such as the UN Working Group on Indigenous Populations.
48. Corntassel & Primeau, supra note 7, at 139, 150-54.
49. Draft United Nations Declaration on the Rights of Indigenous Peoples, UN Working Group on Indigenous Populations, 12th Sess., U.N. Doc. E/CN.4/Sub.2/AC.4/1994/4/ Add.1. [hereinafter Draft Declaration].
50. SHARON HELEN VENNE, OUR ELDERS UNDERSTAND OUR RIGHTS: EVOLVING INTERNATIONAL LAW REGARDING INDIGENOUS RIGHTS 151 (1998).
51. TAIAIAKE ALFRED, PEACE, POWER, RIGHTEOUSNESS: AN INDIGENOUS MANIFESTO 110-11 (1999).
52. Julian Burger, Indigenous Peoples and the United Nations, in THE HUMAN RIGHTS OF INDIGENOUS PEOPLES 3-16 (Cynthia Price Cohen ed., 1998).
53. Russel Barsh has documented the objections of states to the Draft Declaration at the 1995 Commission on Human Rights Working Group meeting. Countries such as France, Japan and the United States opposed any references to the collective dimension of indigenous rights. For these and other countries, human rights are essentially to remain "individual" in character. Although some human rights are ordinarily exercised "in community with other members of the group," the group should not be able to prevent their exercise by individuals. Russel Barsh, Indigenous Peoples and the UN Commission on Human Rights: A Case of the Immovable Object and the Irresistible Force, 18 HUM. RTS. Q. 782, 794 (1996).
54. From more on this, see Study on Treaties, Agreements, and Other Constructive Arrangements between States and Indigenous Populations: Final Report by Miguel Alfonso Martinez, Special Rapporteur, UN Comm'n on Hum. Rts., U.N Doc. E/CN.4/ Sub.2/1999/20 (22 June 1999). For example, in New Zealand, the Treaty of Waitangi was signed in 1840 between the British Crown and the Maori chiefs and subtribes of New Zealand Originally regarded as a document of land cession, it also agreed to "protect the chiefs the subtribes and all the people of New Zealand in the unqualified exercise of their chieftainship over their lands, villages and all their treasures." IAN BROWNLIE, TREATIES AND INDIGENOUS PEOPLES 7 (1992). This treaty has been updated by the New Zealand government by the Acts of 1975 and 1985 to allow for Maori claimants to present their grievances to a Tribunal. In Canada, all 11 treaties were signed between 1871 and 1921, effectively dispossessing them from their traditional homelands. However, these treaties also establish these governments as "status" tribes with official recognition by the Canadian government. JULIAN BURGER, REPORT FROM THE FRONTIER: THE STATE OF THE WORLD'S INDIGENOUS PEOPLES 204-05 (1987). In the United States, over 371 treaties and executive agreements have been negotiated between Indian governments and the US government. Of those treaties, 76 called for removal and 230 dealt with land cessions. Jeff Corntassel & Tomas Hopkins Primeau, Indigenous "Sovereignty" and International Law, 17 HUM. RTS. Q. 343, 355-56 (1995).
55. From more on this, see Study on Treaties, Agreements, and Other Constructive Arrangements between States and Indigenous Populations: Final Report by Miguel Alfonso Martinez, Special Rapporteur, UN Comm'n on Hum. Rts., U.N Doc. E/CN.4/ Sub.2/1999/20 (22 June 1999). For example, in New Zealand, the Treaty of Waitangi was signed in 1840 between the British Crown and the Maori chiefs and subtribes of New Zealand Originally regarded as a document of land cession, it also agreed to "protect the chiefs the subtribes and all the people of New Zealand in the unqualified exercise of their chieftainship over their lands, villages and all their treasures." IAN BROWNLIE, TREATIES AND INDIGENOUS PEOPLES 7 (1992). This treaty has been updated by the New Zealand government by the Acts of 1975 and 1985 to allow for Maori claimants to present their grievances to a Tribunal. In Canada, all 11 treaties were signed between 1871 and 1921, effectively dispossessing them from their traditional homelands. However, these treaties also establish these governments as "status" tribes with official recognition by the Canadian government. JULIAN BURGER, REPORT FROM THE FRONTIER: THE STATE OF THE WORLD'S INDIGENOUS PEOPLES 204-05 (1987). In the United States, over 371 treaties and executive agreements have been negotiated between Indian governments and the US government. Of those treaties, 76 called for removal and 230 dealt with land cessions. Jeff Corntassel & Tomas Hopkins Primeau, Indigenous "Sovereignty" and International Law, 17 HUM. RTS. Q. 343, 355-56 (1995).
56. From more on this, see Study on Treaties, Agreements, and Other Constructive Arrangements between States and Indigenous Populations: Final Report by Miguel Alfonso Martinez, Special Rapporteur, UN Comm'n on Hum. Rts., U.N Doc. E/CN.4/ Sub.2/1999/20 (22 June 1999). For example, in New Zealand, the Treaty of Waitangi was signed in 1840 between the British Crown and the Maori chiefs and subtribes of New Zealand Originally regarded as a document of land cession, it also agreed to "protect the chiefs the subtribes and all the people of New Zealand in the unqualified exercise of their chieftainship over their lands, villages and all their treasures." IAN BROWNLIE, TREATIES AND INDIGENOUS PEOPLES 7 (1992). This treaty has been updated by the New Zealand government by the Acts of 1975 and 1985 to allow for Maori claimants to present their grievances to a Tribunal. In Canada, all 11 treaties were signed between 1871 and 1921, effectively dispossessing them from their traditional homelands. However, these treaties also establish these governments as "status" tribes with official recognition by the Canadian government. JULIAN BURGER, REPORT FROM THE FRONTIER: THE STATE OF THE WORLD'S INDIGENOUS PEOPLES 204-05 (1987). In the United States, over 371 treaties and executive agreements have been negotiated between Indian governments and the US government. Of those treaties, 76 called for removal and 230 dealt with land cessions. Jeff Corntassel & Tomas Hopkins Primeau, Indigenous "Sovereignty" and International Law, 17 HUM. RTS. Q. 343, 355-56 (1995).
57. From more on this, see Study on Treaties, Agreements, and Other Constructive Arrangements between States and Indigenous Populations: Final Report by Miguel Alfonso Martinez, Special Rapporteur, UN Comm'n on Hum. Rts., U.N Doc. E/CN.4/ Sub.2/1999/20 (22 June 1999). For example, in New Zealand, the Treaty of Waitangi was signed in 1840 between the British Crown and the Maori chiefs and subtribes of New Zealand Originally regarded as a document of land cession, it also agreed to "protect the chiefs the subtribes and all the people of New Zealand in the unqualified exercise of their chieftainship over their lands, villages and all their treasures." IAN BROWNLIE, TREATIES AND INDIGENOUS PEOPLES 7 (1992). This treaty has been updated by the New Zealand government by the Acts of 1975 and 1985 to allow for Maori claimants to present their grievances to a Tribunal. In Canada, all 11 treaties were signed between 1871 and 1921, effectively dispossessing them from their traditional homelands. However, these treaties also establish these governments as "status" tribes with official recognition by the Canadian government. JULIAN BURGER, REPORT FROM THE FRONTIER: THE STATE OF THE WORLD'S INDIGENOUS PEOPLES 204-05 (1987). In the United States, over 371 treaties and executive agreements have been negotiated between Indian governments and the US government. Of those treaties, 76 called for removal and 230 dealt with land cessions. Jeff Corntassel & Tomas Hopkins Primeau, Indigenous "Sovereignty" and International Law, 17 HUM. RTS. Q. 343, 355-56 (1995).
58. Corntassel & Primeau, supra note 30, at 343, 359; see also Study on Treaties, Agreements and other Constructive Arrangements between States and Indigenous Populations, supra note 30.
59. Corntassel & Primeau, supra note 30, at 343, 359; see also Study on Treaties, Agreements and other Constructive Arrangements between States and Indigenous Populations, supra note 30.
60. Barsh, supra note 29, at 784; see also BURGER, supra note 30, at 177-78.
61. Barsh, supra note 29, at 784; see also BURGER, supra note 30, at 177-78.
62. See, e.g., World Council of Indigenous Peoples, Declaration of Principles of Indigenous Rights, reprinted in U.N. Doc. E/CN.4/1985/22, Annex II (1984); Proposed American Declaration on the Rights of Indigenous Peoples, Inter-Am. Comm'n. on Hum. Rts., approved by the IACHR 26 Feb. 1997, at its 133rd session, 95th regular session, OEA/ Ser/L/V/.II.95 Doc. 6 (1997) [hereinafter Proposed Inter-American Declaration].
63. See, e.g., World Council of Indigenous Peoples, Declaration of Principles of Indigenous Rights, reprinted in U.N. Doc. E/CN.4/1985/22, Annex II (1984); Proposed American Declaration on the Rights of Indigenous Peoples, Inter-Am. Comm'n. on Hum. Rts., approved by the IACHR 26 Feb. 1997, at its 133rd session, 95th regular session, OEA/ Ser/L/V/.II.95 Doc. 6 (1997) [hereinafter Proposed Inter-American Declaration].
64. ALFRED, supra note 27, at 20-21.
65. Standard-Setting Activities: Evolution of Standards Concerning the Rights of Indigenous Populations, UN Working Group on Indigenous Populations, 12th Sess., U.N. Doc E/ CN.4/Sub.2/AC.4/1994/4/Add.1 (31 May 1994).
66. Buchanan, supra note 10, at 94-95. While Buchanan advances the notion of dual-standing rights as a strategy to best protect indigenous communities, he focuses heavily on indigenous land entitlements and never fully develops other informally allocated rights within indigenous groups, such as participation in ceremonies and right of exit from the group.
67. ALFRED, supra note 27, at 26-27.
68. See Russel Barsh, The Nature and Spirit of North American Political Systems, 10 AM. INDIAN Q. 181 (1986); see also Menno Boldt & J. Anthony Long, Tribal Traditions and European-Western Political Ideologies: The Dilemma of Canada's Native Indians, 17 CANADIAN J. POLITICAL SCIENCE 537 (1984).
69. See Russel Barsh, The Nature and Spirit of North American Political Systems, 10 AM. INDIAN Q. 181 (1986); see also Menno Boldt & J. Anthony Long, Tribal Traditions and European-Western Political Ideologies: The Dilemma of Canada's Native Indians, 17 CANADIAN J. POLITICAL SCIENCE 537 (1984).
70. AKWESASNE NOTES, ED., A BASIC CALL TO CONSCIOUSNESS 11 (1986). Mayan beliefs in consensus- building are also well-documented as evidenced by the practice of a group "cargo system." According to the cargo system, a leader is selected by an institution called LahTi, meaning to compare discourses and come to a common consensus during a public assembly of men and women. See Victor Montejo, Tying up the Bundle and the Katuns of Dishonor: Maya Worldview and Politics, 17 AM. INDIAN CULTURE & RESEARCH J. 103 (1993); see also Boldt & Long, supra note 38, at 543-45.
71. AKWESASNE NOTES, ED., A BASIC CALL TO CONSCIOUSNESS 11 (1986). Mayan beliefs in consensus-building are also well-documented as evidenced by the practice of a group "cargo system." According to the cargo system, a leader is selected by an institution called LahTi, meaning to compare discourses and come to a common consensus during a public assembly of men and women. See Victor Montejo, Tying up the Bundle and the Katuns of Dishonor: Maya Worldview and Politics, 17 AM. INDIAN CULTURE & RESEARCH J. 103 (1993); see also Boldt & Long, supra note 38, at 543-45.
72. AKWESASNE NOTES, ED., A BASIC CALL TO CONSCIOUSNESS 11 (1986). Mayan beliefs in consensus- building are also well-documented as evidenced by the practice of a group "cargo system." According to the cargo system, a leader is selected by an institution called LahTi, meaning to compare discourses and come to a common consensus during a public assembly of men and women. See Victor Montejo, Tying up the Bundle and the Katuns of Dishonor: Maya Worldview and Politics, 17 AM. INDIAN CULTURE & RESEARCH J. 103 (1993); see also Boldt & Long, supra note 38, at 543-45.
73. Barsh, supra note 38, at 185.
74. Draft Declaration, supra note 25, art. 32.
75. Id. at art. 8.
76. Id. at arts. 6-7.
77. See KYMLICKA, supra note 10, at ch. 3; Chandran Kukathas, Are There any Cultural Rights?, in THE RIGHTS OF MINORITY CULTURES, supra note 8, at 105-39. See Sandel, supra note 11, at 81; Svensson, supra note 3, at 421-39; Robert Clinton, The Rights of Indigenous Peoples as Collective Group Rights, 32 ARIZONA L. REV. 739 (1990).
78. See KYMLICKA, supra note 10, at ch. 3; Chandran Kukathas, Are There any Cultural Rights?, in THE RIGHTS OF MINORITY CULTURES, supra note 8, at 105-39. See Sandel, supra note 11, at 81; Svensson, supra note 3, at 421-39; Robert Clinton, The Rights of Indigenous Peoples as Collective Group Rights, 32 ARIZONA L. REV. 739 (1990).
79. See KYMLICKA, supra note 10, at ch. 3; Chandran Kukathas, Are There any Cultural Rights?, in THE RIGHTS OF MINORITY CULTURES, supra note 8, at 105-39. See Sandel, supra note 11, at 81; Svensson, supra note 3, at 421-39; Robert Clinton, The Rights of Indigenous Peoples as Collective Group Rights, 32 ARIZONA L. REV. 739 (1990).
80. See KYMLICKA, supra note 10, at ch. 3; Chandran Kukathas, Are There any Cultural Rights?, in THE RIGHTS OF MINORITY CULTURES, supra note 8, at 105-39. See Sandel, supra note 11, at 81; Svensson, supra note 3, at 421-39; Robert Clinton, The Rights of Indigenous Peoples as Collective Group Rights, 32 ARIZONA L. REV. 739 (1990).
81. See KYMLICKA, supra note 10, at ch. 3; Chandran Kukathas, Are There any Cultural Rights?, in THE RIGHTS OF MINORITY CULTURES, supra note 8, at 105-39. See Sandel, supra note 11, at 81; Svensson, supra note 3, at 421-39; Robert Clinton, The Rights of Indigenous Peoples as Collective Group Rights, 32 ARIZONA L. REV. 739 (1990).
82. See UNESCO, Meeting of Experts on Ethno-Development and Ethnocide in Latin America, 11 Dec. 1981, UNESCO Doc. FS 82/WF.32, esp. art 5.
83. See World Council of Indigenous Peoples, Declaration of Principles of Indigenous Rights, Sept. 1984, reprinted in U.N. Doc. E/CN.4/1985/22, Annex 2, esp. Principle 7.
84. Proposed Inter-American Declaration, supra note 33, esp. art. II, § 3.
85. See International Labour Organization Convention (No. 169), Concerning Indigenous and Tribal Peoples in Independent Countries, esp. art. 13 (27 June 1989).
86. VINE DELORIA, JR., GOD is RED: A NATIVE VIEW OF RELIGION (1994).
87. See S. JAMES ANAYA, INDIGENOUS PEOPLES IN INTERNATIONAL LAW 104-07 (1996) (for more on the international debate over native land philosophies).
88. BURGER, supra note 30, at 14.
89. Boldt & Long, supra note 38, at 541. Gerald Alfred and Franke Wilmer also point out that "[a]ccording to the views of indigenous cultures . . . there is no distinction between the human and natural worlds. Hence, 'natural resources' or the 'natural world' are experienced subjectively as well as objectively." See Indigenous Peoples, States, and Conflict, in WARS IN THE MIDST OF PEACE 29 (David Carment & Patrick James eds., 1997).
90. See Draft Declaration, supra note 25, at art. 25.
91. See Proposed Inter-American Declaration, supra note 33, at art. X, no. 3.
92. See ILO Convention, supra note 49, at art. 13.
93. See Draft Declaration, supra note 25, at art. 13.