Case Western Reserve Journal of International Law Volume 24 | Issue 2 1992 Indigenous Peoples and Self Determination: Challenging State Sovereignty Catherine J. Iorns Follow this and additional works at: https://scholarlycommons.law.case.edu/jil Part of the International Law Commons Recommended Citation Catherine J. Iorns, Indigenous Peoples and Self Determination: Challenging State Sovereignty, 24 Case W. Res. J. Int'l L. 199 (1992) Available at: https://scholarlycommons.law.case.edu/jil/vol24/iss2/3 This Article is brought to you for free and open access by the Student Journals at Case Western Reserve University School of Law Scholarly Commons. It has been accepted for inclusion in Case Western Reserve Journal of International Law by an authorized administrator of Case Western Reserve University School of Law Scholarly Commons. Indigenous Peoples and Self Determination: Challenging State Sovereignty* Catherine J. Iorns** INTRODUCTION Indigenous peoples1 and their cultures have been attacked since their * Copryright @ 1993 by Catherine J. Iorns ** B.A., L.L.B. (Hons.) Victoria University of Wellington; L.L.M. Yale. Ms. Iorns currently teaches Public International Law and Aboriginal Legal Rights at Murdoch University, Perth, Australia. This paper was made possible by the Schell Center for Human Rights at Yale Law School during the author's tenure as the Schell Research Fellow in International Human Rights, and by a Ford Foundation Fellowship in International Law. The Ford Foundation fellowship enabled her to attend the ninth session of the Working Group on Indigenous Peoples in Geneva in July 1991. This paper was completed in April of 1992. Developments since then are not reflected. For helpful comments on an earlier draft I thank James Anaya, Lea Brilmayer, Roger Clark, Hurst Hannum, Paul Joffe, Maivn Lm, Matthew Palmer, Michael Reisman, Dalee Sambo and Alex Wendt. I While the adjective "indigenous" is commonly used to denote that the subject is simply native to a place, or prior to other inhabitants of the place, its use in referring to indigenous peoples in the international human rights context is narrower. While there is no fixed definition of "indigenous peoples," the definition that has been proposed, and is generally used as a working definition for the purposes of international action, is the following: Indigenous communities, peoples and nations are those which, having a historical con- tinuity with pre-invasion and pre-colonial societies that developed on their territories, con- sider themselves distinct from other sectors of the societies now prevailing in those territories, or parts of them. They form at present non-dominant sectors of society and are determined to preserve, develop and transmit to future generations their ancestral territo- ries, and their ethnic identity, as the basis of their continued existence as peoples, in ac- cordance with their own cultural patterns, social institutions and legal systems .... On an individual basis, an indigenous person is one who belongs to those indigenous popu- lations through self-identification as indigenous (group consciousness) and is recognized and accepted by these populations as one of its members (acceptance by the group). Jos6 R. Martinez Cobo, Study of the Problem of DiscriminationAgainst Indigenous Populations, paras. 379-381, U.N. ESCOR, U.N. Sub-Commission on Prevention of Discrimination and Protec- tion of Minorities, U.N. Doe. E/CN.4/Sub.2/1986/7/Add. 4 [hereinafter Cobo Report]. The Working Group on Indigenous Peoples, while not adopting any particular definition, agreed that the Cobo Report's definition "could be a useful working definition." Report of the Work- ing Group on Indigenous Populationson its Second Session, U.N. Doc. E/CN.4/Sub.2/22 (1983) [hereinafter Second Report of the WGIP]. On the name of the Working Group, see infra note 15 and accompanying text. A definition proposed in a Conference Room Paper and agreed with by at least one government and by some indigenous organizations, while worded slightly differently, stresses substantially the same elements. Second Report of the WGIP, supra at 23. For an alternative defini- CASE W RES. J. INT'L L. Vol. 24:199 "discovery" and colonization.2 The treatment of indigenous peoples has been so severe that it has been referred to as "genocide" and as a "holocaust." 3 While the particular histories of different indigenous peo- ples differ, they have in common a history of conquest by another group and subordination within their present states, even where they may not numerically be in a minority. Further, the tragedy of the treatment of indigenous peoples is not merely historical; it continues today.' The present situations of different indigenous peoples covers a wide spectrum, ranging from the isolation of South American forest-dwellers to the relative integration of the Maori people of Aotearoa/New Zea- tion, see the proposal in Recommendations of the InternationalIndian Treaty Council, U.N. Doc. E/CN.4/Sub.2/AC.4/NGO/2 (1984). Note Robert Williams' comment that "efforts at a formal definition have not been generally accepted by indigenous peoples and their advocates who participate in the international human rights standard-setting process. Generally, indigenous peoples have insisted on the right to define themselves." Robert A. Williams Jr., Encounters on the Frontiers of InternationalHuman Rights Law: Redefining the Terms of Indigenous Peoples' Survival in the World, 1990 DUKE L.J. 660, 663 n.4 (1990) (defining indigenous peoples as "those groups colonized by Western and other settler states and who have lost their sovereignty while maintaining a distinct cultural identity. Indigenous peoples usually seek to sustain their distinct cultural identity in intimate relation with their tradition- ally-occupied territories. The best evidence of this distinct cultural identity results from indigenous peoples identifying themselves as such"). For further discussion of the definition of "indigenous peoples," see, e.g., RODOLFO STAVENHAGEN, THE ETHNIC QUESTION: CONFLICTS, DEVELOP- MENT AND HUMAN RIGHTS 96-100 (1990). For the purposes of this paper, the important point to note is that an indigenous people is not merely one that lived in a place before others arrived, which distinguishes indigenous peoples from other types of minorities, but that they are also a self-identified, culturally distinct, non-dominant group within a larger state. This stresses their oppression and their need for protection and excludes, for the purposes of devising measuresfor the protection of indigenouspeoples, those who are presently dominant in their 'own' state. This paper is concerned with such indigenous peoples. 2 See, e.g., Cobo Report, supra note 1; JULIAN BURGER, REPORT FROM THE FRONTIER: THE STATE OF THE WORLD'S INDIGENOUS PEOPLES (1987); SECRETARIAT OF THE INDEPENDENT COM- MISSION ON INTERNATIONAL HUMANITARIAN ISSUES, INDIGENOUS PEOPLES: A GLOBAL QUEST FOR JUSTICE (1987) (describing generally the plight of indigenous peoples). See also Dean E. Cycon, When Worlds Collide: Law, Development and Indigenous People, 25 NEW ENG. L.REv. 761 (1991) (discussing the negative effects of resource development on indigenous peoples). See also the discus- sion under the agenda item, Review of Developments, in all of the Reports of the sessions of the U.N. Working Group on Indigenous Peoples, infra note 51 and accompanying text (discussing the views of indigenous peoples and governments on the developments in the situations of indigenous peoples in their countries). Robert Williams comments that "indigenous peoples have convincingly demon- strated to the Working Group that the present, dominant conceptions of their rights and status in international law have failed to protect their human rights to survival." Williams, supra note 1, at 704. 3 See, e.g., Maureen Davies' comment that the "[i]nvasion of Indigenous territories [has] been characterized by an enduring holocaust of unparalleled proportions." Maureen Davies, Indigenous Rights, in SELF-DETERMINATION IN THE COMMONWEALTH 45 (W.J. Allan MaCartney ed., 1988). For a description of the treatment of indigenous peoples as genocide, see STAVENHAGEN, supra note 1, at 105, 118. 4 See authorities cited supra note 2. 5 Id. 1992] INDIGENOUS PEOPLES AND SELF DETERMINATION land.6 Their common problems, however, are political and economic op- pression as well as the loss of their lands, their cultural and ethnic traditions, and often their lives. These problems can be said to stem from the basic attitude of non-indigenous peoples that indigenous ways of life 7 are backward and inferior and not appropriate for a "civilized" society. This attitude has manifested itself particularly in the readiness of non- indigenous peoples to attempt to assimilate indigenous peoples into the larger state without providing substantive protection for their so-called inferior, "primitive" cultures.' Because of their position, referred to increasingly as the "Fourth World,"9 indigenous peoples have made repeated calls for the protection 6 "Aotearoa" is the Maori name for the land that is called New Zealand. For a comment on the political use of these names see ANDREW SHARP, JUSTICE AND THE MAORI: MAORI CLAIMS IN NEW ZEALAND POLrICAL ARGUMENT IN THE 1980s 12-13 (1990). 7 Robert Williams describes how the adoption of this distinction between civilized and uncivi- lized peoples formed a large part of the justification given by the various European powers for not according the "discovered" uncivilized indigenous peoples any rights of sovereignty accorded to other civilized nations. This denial of sovereignty included the non-recognition of indigenous rights to land, and in turn justified efforts in "civilizing" indigenous peoples through assimilation. See ROBERT WILLIAMS, THE AMERICAN INDIAN IN WESTERN LEGAL THOUGHT: THE DISCOURSES OF CONQUEST (1990). 8 Id. A more contemporary illustration of the goal of assimilation is provided by the Conven- tion Concerning the Protection and Integration of Indigenous and Other Tribal and Semi-Tribal Populations in Independent Countries, I.L.O., 40th Sess., No. 107, 328 U.N.T.S. 247 (1959) [herein- after I.L.O.