Rights and Status of Indigenous Peoples: A Global Comparative and International Legal Analysis Siegfried Wiessner* Wounded Knee, the Trail of Tears, the Siege of Cusco'-these words, ves- sels of meaning, capture only a tiny fragment of the history of suffering, ac- tual and cultural genocide, conquest, penetration, and marginalization 2 en- dured by indigenous peoples3 around the world.4 The focus of the Interna- * Professor of Law, St. Thomas University School of Law; J.D. (Equivalent), University of Tilbingen, 1977; LL.M., Yale University, 1983; Dr. iur., University of Tiibingen, 1989. This Article owes its exis- tence to the friendship and inspiration of Kirke Kickingbird, James Anaya, Chief Lawrence Hart, and Susan Ferrell. It benefited critically from the wisdom of the indigenous leaders, government officials and scholars gathered, since 1994, at the Annual St. Thomas University Tribal Sovereignty Symposium. The author gratefully acknowledges most helpful comments on earlier drafts by Gordon Butler, Andrew Cappel, Cynthia Price Cohen, Osvaldo Kreimer, Lenora Ledwon, Daniel Morrissey, Bradford Morse, and Michael Reisman, as well as dedicated research assistance by Kimberly Kostun. 1. Hernando Pizarro's 1536-1537 siege of Cusco culminated in the killing of all captured Indian women; the right hands of several hundred captured male noncombatants were cut off, and the victims were released to demoralize the rest; the beautiful Inca city was razed. See John F. Guilmarrin, Jr., The Cutting Edge: An Analysis of the Spanish Invasion and Overthrow of the Inca Empire, in TRANSATLANTIC EN- COUNTERS: EUROPEANS AND ANDEANS IN THE SIxTEENTH CENTURY 40, 44 (Kenneth J. Andrien & Rolena Adomo eds., 1991). The bloody massacres of Native Americans in the mid-19th century are chronicled in the stark prose of Dee Brown. See DEE BROWN, BURY MY HEART AT WOUNDED KNEE (1970). The Trail of Tears of the "Five Civilized Tribes" with its countless deaths, trauma and misery represented the nadir of the United States policy of removal. See GRANT FOREMAN, INDIAN REMOVAL: THE EMIGRATION OF THE FIVE CIVILIZED TRIBES OF INDIANS (1953); ANGIE DEBO, AND STILL THE WATERS RUN (1972). 2. See generally VINE DELoRiA, JR., CUSTER DIED FOR YOUR SINS: AN INDIAN MANIFESTO (1969); ROBERT JAULIN, LA PAIX BLANCHE: INTRODUCTION X L'ETHNOCIDE (1972); FRANCIS JENNINGS, THE INVASION OF AMERICA: INDIANS, COLONIALISM AND THE CANT OF CONQUEST (1975); THE STATE OF NATIVE AMERICA: GENOCIDE, COLONIALIZATION AND RESISTANCE (M. Annette Jaimes ed., 1992); THOMAS R. BERGER, A LONG AND TERRIBLE SHsAnOW. WHITE VALUES, NATIVE RIGHTS IN THE AMERICAS. 1492-1992 (1991); Rennard Strickland, Genocide-at-Law: An Historicand Contemporary View of the Native American Experience, 34 U. KAN. L. REv. 713 (1986). 3. Professor James Anaya has defined this term to mean "living descendants of preinvasion inhabitants of lands now dominated by others, ... culturally distinctive groups that find themselves engulfed by settler societies born of the forces of empire and conquest." S. JAMES ANAYA, INDIGENOUS PEOPLES IN INTERNATIONAL LAW 3 (1996). This conceptualization is controversial, and will be discussed in detail in Part III.A. I suggest that indigenous peoples be defined as groups traditionally regarded, and self-defined, as descendants of the original inhabitants of lands with which they share a strong, often spiritual bond. These peoples are, and desire to be, culturally, socially and/or economically distinct from the dominant groups in society, at the hands of which they have, in past or present, suffered a pervasive pattern of subjugation, marginalization, dispossession, exclusion and/or discrimination. 4. At present, 300 million people around the world are estimated to be indigenous. Julian Burger, In- HarvardHuman RightsJournal / Vol. 12 tional Decade of the World's Indigenous People' is to honor the memory of the victims, but also to celebrate the survivors and their values. The global community recognition implied in this dedication testifies to the success of indigenous peoples' refusal to accept the alternatives of dying or living the lives of the conquerors. The Indian way of life has not merely survived; it is back as the foundation of a strong identity6 which has forced itself to the top of the international agenda. Its values could be, and increasingly are, sought- after models 7 for a world drifting slowly, but seemingly inexorably, into al- ienation. Beyond the cultural sphere, indigenous peoples have reentered the arena of power. Under the battle cries of human rights and self-determination, they have become recognized actors in the world constitutive process. This Article is designed to review the legacy of conquest in various arenas around the planet, and to arrive at a transnationally valid conclusion, if pos- sible, on the status of indigenous peoples under domestic law (Part I); to describe the actors and trends in decision-making in international indige- nous law (Part II); and to appraise these developments with particular focus on the issues of conceptualization of indigenous peoples, their claims to self- determination, unique collective rights, as well as innovative avenues of en- forcement (Part III). I. THE LEGACY OF CONQUEST: A REVIEW It bears repeating that the process of colonization has left so-called in- digenous peoples defeated, relegated to minor spaces, reservations, bread- crumbs of land conceded by the dominant society. Indians were separated from their sacred land, the land of their ancestors, and from their burial grounds with which they shared a deeply spiritual bond. Deprived of tradi- tional environments, they were not only politically, but economically, culturally, digenous Peoples andthe United Nations, in HuMAN RIGHTS OF INDIGENOUS PEOPLES 3, 16 (Cynthia Price Cohen ed., 1998), up from 250 million in 1990. Cf. JULIAN BURGER, THE GAlA ATLAS OF FItsr PEO- PLES 18 (1990). 5. The Decade extends from 1995 to 2004. Adopted by the United Nations General Assembly in its resolution 48/163, G.A. Res. 48/163 (1993) (proclaiming the "International Decade of the World's Indigenous People" commencing Dec. 10, 1994), as implemented by G.A. Res. 50/157 (1995), G.A. Res. 51/78 (1997), and U.N. Commission on Human Rights resolution 1997/32. 1993 had already been declared the "International Year of the World's Indigenous People." G.A. Res, 45/164 (1990). 6. One yardstick may be the number of U.S. citizens who identify themselves as Native Americans. This figure increased more than threefold in the span of a generation: while 523,591 declared themselves Indians in the census of 1960, the census of 1990 saw that number increase to 1,878,285. Joane Nagel, American Indian Ethnic Renewal. Politics and the Resurgence of Identity, 60 AM. Soc. REv. 947 (1995). Profes- sor Nagel's detailed sociological study attributes the marked increase not to simple population growth or a change in definitions, but to the combined effect of three factors: "federal Indian policy, American ethnic politics, and American Indian political activism." Id. For an earlier account, see STEPHEN COIR- NELL, THE RETURN OF THE NATIVE: AMERICAN INDIAN POLITICA. RESURGENCE (1988). Similar phe. nomena occur in other countries with significant indigenous populations, as documented below. 7. Modern environmentalism's inspiration by indigenous respect for, and oneness with, nature is one important example of such beneficial transfer of Indian culture and spirituality. For an enlightening study of earlier contributions of Indian culture to the Western way of life, see JACK WEATHERFORD, INDIAN GIVERS: How THE INDIANS OF THE AMERICAS TRANSFORMED THE WORLD (1988). 1999 / Rights andStatus of Indigenous Peoples and religiously dispossessed. They became entrapped peoples, "nations within."8 They aspire to extricate themselves from the trap, and to live lives of self-defined dignity and happiness. Indigenous peoples all over the world claim the right to live freely on their ancestral lands, to celebrate their culture and deeply felt spirituality, and to move from cultural to economic autonomy and to political self-government, including the ultimate option of secession. Despite the European powers' successes on the battlefield, the legal sys- tems of the conquerors often had a hard time justifying the conquest in the terms of the constitutive myths of the community. Catholic Spain had Fran- cisco de Victoria rationalize the duty of the Indians to welcome the Iberian "guests," inter alia, with the New Testament admonition to "love thy Neighbor" and to be hospitable to strangers.9 His view of the essential hu- manity of Indians and their natural rights, however, did not fit nicely with the atrocities committed by these self-invited guests, and his fellow Do- minican Bartolom6 de las Casas argued for better treatment of the beaten people. 10 By contrast, the British colonization relied much less on brute force and the destruction of indigenous political structures and society; its subjugation strategies included to a much larger degree the mechanisms of negotiation and persuasion."l Nevertheless, the hands of its government, and those of its successor governments have not been free from blood. The history of conquest and the meanderings of legal status of the subju- gated, but resurgent, indigenous nations are retraced in the following over- 8. VINE DELORIA, JR. & CI1FFORD M. LY'nE, THE NATIONS WrrHIN: THE PAST AND FUTURE OF AMERI- CAN INDIAN SOVEREIGNTY (1984). See also AUGIE FLERAS & JEAN LEONARD ELLIo, THE 'NATIONS