The Elusive Promise of Indigenous Development: Rights, Culture, Strategy - Softcover

Engle, Karen

Softcover

ISBN 10: 0822347695 ISBN 13: 9780822347699

Publisher: Duke University Press, 2010

Synopsis

Around the world, indigenous peoples use international law to make claims for heritage, territory, and economic development. Karen Engle traces the history of these claims, considering the prevalence of particular legal frameworks and their costs and benefits for indigenous groups. Her vivid account highlights the dilemmas that accompany each legal strategy, as well as the persistent elusiveness of economic development for indigenous peoples. Focusing primarily on the Americas, Engle describes how cultural rights emerged over self-determination as the dominant framework for indigenous advocacy in the late twentieth century, bringing unfortunate, if unintended, consequences.

Conceiving indigenous rights as cultural rights, Engle argues, has largely displaced or deferred many of the economic and political issues that initially motivated much indigenous advocacy. She contends that by asserting static, essentialized notions of indigenous culture, indigenous rights advocates have often made concessions that threaten to exclude many claimants, force others into norms of cultural cohesion, and limit indigenous economic, political, and territorial autonomy.

Engle explores one use of the right to culture outside the context of indigenous rights, through a discussion of a 1993 Colombian law granting collective land title to certain Afro-descendant communities. Following the aspirations for and disappointments in this law, Engle cautions advocates for marginalized communities against learning the wrong lessons from the recent struggles of indigenous peoples at the international level.

About this title

About the Author

Karen Engle is the Cecil D. Redford Professor in Law and the Director of the Bernard and Audre Rapoport Center for Human Rights and Justice at the University of Texas School of Law. She is an editor of After Identity: A Reader in Law and Culture.

From the Back Cover

"Could culture be, in part, the culprit? This question will not be well received by those interlocutors--activists, scholars and activist intellectuals alike--who are unwilling to subject the premises of their work to sustained critical scrutiny. For the others, Karen Engle's text will be immensely rewarding: an invitation to take stock of how far indigenous struggles have advanced over the past four decades, with 'right to culture' at front and center, and a call to reflect on the limitations of this political-legal approach. She argues that the 'right to culture' has indeed become part of the problem, and that an alternative 'anti-essentialist' notion of culture could deliver more favorable political results. These are crucial assertions to engage and assess, for those on the front lines of indigenous struggles and, by extension, for scholars as well. We are indebted to Engle for putting them on our agenda with such lucidity."--Charles R. Hale, Director, Teresa Lozano Long Institute of Latin American Studies, University of Texas at Austin

Excerpt. © Reprinted by permission. All rights reserved.

The Elusive Promise of INDIGENOUS DEVELOPMENT

Rights, Culture, StrategyBy Karen Engle

Duke University Press

Copyright © 2010 Duke University Press
All right reserved.
ISBN: 978-0-8223-4769-9

Contents

Table of Cases.............................................................................................................................xiAcknowledgments............................................................................................................................xvList of Acronyms and Abbreviations.........................................................................................................1PART I INTERNATIONAL AND TRANSNATIONAL INDIGENOUS MOVEMENTS................................................................................17Chapter 1 Setting the Stage for Transnational Indigenous Rights Movements: Domestic and International Law and Politics.....................46Chapter 2 Indigenous Movements in the Americas in the 1970s: The Fourth World Movement and Panindianismo...................................67Chapter 3 International Institutions and Indigenous Advocacy since 1980: Self-Determination Claims.........................................100PART II HUMAN RIGHTS AND THE USES OF CULTURE IN INDIGENOUS RIGHTS ADVOCACY.................................................................141Chapter 5 Culture as Heritage..............................................................................................................162Chapter 6 Culture as Grounded in Land......................................................................................................183PART III INDIGENOUS MODELS IN OTHER CONTEXTS: THE CASE OF AFRO-COLOMBIANS..................................................................223Chapter 8 The History of Law 70: Culture as Heritage, Land, and Development................................................................254Chapter 9 The Periphery of Law 70: Afro-Colombians in the Caribbean........................................................................274Conclusion.................................................................................................................................279Notes......................................................................................................................................349Bibliography...............................................................................................................................383

Chapter One

Setting the Stage for Transnational Indigenous Rights Movements

DOMESTIC AND INTERNATIONAL LAW AND POLITICS

Contemporary international indigenous movements are generally traced back to the 1970s, although their roots can be seen in the 1960s, when national indigenous organizations began to gain political momentum in a number of countries, including Canada, the United States, Australia, and many Latin American states. Of course, some movements began earlier. The early twentieth century, for example, saw the formation of the Allied Tribes of British Columbia, organized by Peter Kelley and Andrew Paull; the Lamista movement in Colombia, led by Pz activist Manuel Quint? Lame; and attempts by Deskaheh, leader of the Six Nations Iroquois Confederacy, to petition the League of Nations to consider its case against Canada. These movements tended to have a pan-indigenous element from their early stages, as indigenous groups began to identify with each other as indigenous vis--vis the modern state.

In the 1970s, indigenous peoples began to organize more actively across nation-state borders, and to form international pan-indigenous networks. With this organization came regional and international meetings, including the 1974 planning meeting in Guyana for what eventually became the World Council of Indigenous Peoples, that council's first meeting in 1975 in Canada, the 1974 meeting of the Parliament of American Indians of the Southern Cone in Paraguay, the NGO Conference on Discrimination against Indigenous Populations in 1977 in Geneva, and a 1977 meeting in Barbados (known as Barbados II). Gatherings such as these were an outgrowth of, as well as a catalyst for, increasing international organization, both intergovernmental and nongovernmental. As Alyson Brysk explains: "International fora such as the International Labor Organization and transnational nongovernmental organizations such as the World Council of Churches systematically examined indigenous issues within the organizations' wider mandates and brought together Indian activists." Brysk also contends that indigenous peoples were drawn to the international system out of "domestic powerlessness": "International activity required fewer resources than domestic mobilization and was more amenable to information politics. In some cases, characteristics that were domestic handicaps became international strengths."

Regardless of their incentive, those groups involved with pan-indigenous movements found themselves organizing against and influenced by the background of colonialist conquest and years of domestic and international law and policy pertaining directly and indirectly to indigenous peoples. While parts I and II of this book consider in detail the demands of international and transnational indigenous movements, the purpose of the present chapter is to set the stage for that discussion by describing the political and legal landscape within and against which the movements were organizing. As indigenous rights advocates have made decisions over the past few decades about how best to pursue or articulate their claims in the international arena, they have often borrowed from, adapted, or critiqued legal and political models-such as sovereignty, self-determination, and human rights-that largely have been developed in other contexts.

I focus the first section of this chapter on the Americas-on the different models of colonial techniques that were deployed there, and on their ongoing effects. In American Pentimento, Patricia Seed uses the concept of a pentimento, the "trace of an earlier composition or of alterations [in painting] that has become visible with the passage of time," to revisit English, Spanish, and Portuguese forms of colonialism in the Americas and how they were driven by different economic interests. For Seed, colonists' representations of the people, culture, and forms of livelihood they encountered in the New World derived more from colonial economic desires and political arrangements than from the actual observable characteristics and circumstances of native peoples. Thus, the differences can be traced back to Europe itself-to the Christian identity maintained by the Spanish and Portuguese contrasted with the planter, or farmer, identity of the English-and their ongoing effects can be seen beyond the Americas. Many distinctive aspects of English colonial models deployed in the Americas, for example, can also be found in India, Australia, and New Zealand.

I rely on much of Seed's analysis in this chapter, but I also hope to extend it by connecting ongoing debates about the meaning and necessity of indigenous self-determination to some of the same differences in colonial method. In particular, I tie indigenous demands for a right to self-determination and land to former British colonies, while connecting legal and political strategies aimed at internal autonomy and collective cultural rights to former Spanish colonies. These two lines of advocacy, I contend, respond to different histories of oppression and conquest as well as to different mechanisms designed and justified to legalize and control conquest. The first section of the chapter explores those histories.

In the second section of the chapter, I consider the development of international legal models in the mid-twentieth century that suggest the landscape for advocacy strategies that existed for indigenous peoples when they begin to organize internationally. Self-determination (in the context of decolonization), international human rights, and economic integration through international labor rights are the principal models I discuss.

CONQUEST, COLONIAL, AND POST-COLONIAL LAW: BRITISH AND SPANISH APPROACHES

Conquest and Colonial Law

A number of scholars have written on the different strategies and justifications for conquest deployed in the Americas by Spain and Portugal, on one hand, and Britain and France, on the other hand. I revisit some of this work briefly here, as a means to set up different lines of resistance that I believe we can follow through even to recent debates about the un Declaration discussed in the introduction. My goal is not to offer anything near a comprehensive account of the treatments of native populations during conquest; rather, I hope to use some of the narratives about that treatment to foreshadow later tensions between the self-determination and cultural rights strands of advocacy.

Antony Anghie reminds us that colonial expansion and conquest of indigenous peoples involved a well-thought-through, and contestable, set of legal justifications. Indeed, Spanish theologians engaged in debates about whether indigenous people were human, and therefore whether their subjugation was permissible. Francisco de Vitoria is commonly seen as one of the most progressive members of this group because of his insistence that natives were human beings capable of making rational and moral decisions. Yet, while "appearing to promote notions of equality and reciprocity between the Indians and the Spanish," Vitoria used this innate equality of the Indians to justify Spanish conquest over native populations.

If natives were to be considered as equals, they were also to be subjected to the same rules that governed the relationship between Europeans. Indian resistance was seen to violate these rules. Anghie explains:

Vitoria's apparently innocuous enunciation of a right to "travel" and "sojourn" extends finally to the creation of a comprehensive, indeed inescapable system of norms which are inevitably violated by the Indians. For example, Vitoria asserts that "to keep certain people out of the city or province as being enemies, or to expel them when already there, are acts of war." Thus any Indian attempt to resist Spanish penetration would amount to an act of war, which would justify Spanish retaliation. Each encounter between the Spanish and the Indians therefore entitles the Spanish to "defend" themselves against Indian aggression and, in doing so, continuously expand Spanish territory.

Even if Vitoria insisted that Indians were human, then, he also believed that they engaged in inhumane acts against which their victims needed to be protected.

Conquest was also grounded in cultural difference. As Anghie explains, for Vitoria, "the Indian is very different from the Spaniard because the Indian's specific social and cultural practices are at variance from the practices required by the universal norms-which in effect are Spanish practices," and it is through these "universal norms" that "the Spanish acquire an extraordinarily powerful right of intervention and may act on behalf of the people seen as victims of Indian rituals." This notion that certain cultural practices of indigenous peoples need to be condemned continues to appear in the discussion of the application of human rights to indigenous peoples. I outline it in chapter 4, using Elizabeth Povinelli's terminology of the "invisible asterisk."

Using a variety of justifications, including those posited by Vitoria, the Spanish engaged in a long, brutal period of invasion and occupation of territory that involved destruction of civilizations such as those of the Incas and Aztecs as well as enslavement of indigenous people for labor, often in mining, cargo transportation, and agriculture. According to Anthony Pagden, this type of conquest was unique to the Spaniards:

Only the Spanish settlers formally styled themselves conquerors, conquistadores, and only the native-born Spanish settlers (criollos) would, in the end, ground their claims to independence primarily upon their association with an aristocracy of conquest. An empire of this kind had to be an empire based upon people, defeated subjects who could be transformed into a pliant labour force. In America, only the Spaniards, and to a somewhat lesser degree the Portuguese, had found peoples in sufficient numbers whom they were able to overrun in this way.

In contrast, he notes, "both the English and the French were ... driven either to exclude the Native Americans from their colonies, or to incorporate them as trading partners." Pagden argues that the British and French entered the Americas with the idea of following the model of the Spaniards, but that the lack of largely populated indigenous areas in the more northern region created different types of resistance and economic possibilities. Thus, the British and French turned to justifications for claiming territory rather than people.

While Patricia Seed agrees that the British focused on land and the Spanish and Portuguese on people and their labor, she contends that their approaches were attributable not simply to "demographic and ecological accidents of historic encounters," but to varying "cultural traditions about valuing, transferring, and allocating riches [that] emerged in Europe long before the colonists' quest for riches in the Americas." Those different traditions facilitated different justifications for and modes of colonization: "Nomads could lose their land under English rules, and idolaters and pagans could be deprived of their rights to minerals and labor under Iberian conventions."

Regardless of the source of their focus, the British, and to a certain extent the French, ended up relying on the doctrine of terra nullius. In this doctrine, lands that were not put to active use-generally agricultural use-were seen as empty, belonging to no one. Thus, the first person who put the land to use could properly claim title over it. The British therefore did not see themselves as engaged in conquest, but only in the improvement of land. For Pagden, an argument based on conquest, "even supposing that it had been historically sustainable," would have had little traction "in a political culture such as Britain which, because it had itself been the creation of the Norman Conquest of 1066, was committed to the 'continuity theory' of constitutional law in which the legal and political institutions of the conquered are deemed to survive a conquest."

In contrast, the Spanish did not generally resort to terra nullius to justify their conquest, in part because it would have been difficult to maintain that lands were unoccupied, particularly in the cases of large parts of Peru and Mexico. Moreover, the Spanish and Portuguese had already articulated justifications for discovery even before arriving in the Americas. Robert Miller argues that Portugal had revised the doctrine of discovery in the context of justifications for colonizing the Canary Islands in the middle of the fifteenth century, basing it not "on the infidel's lack of dominion or natural rights, but instead ... on the perceived need to protect natives from the oppression of others and lead them to civilization and conversion under papal guidance."

There were times when the British and French were also unable to justify their occupation of land under the doctrine of terra nullius. Pagden explains that "in instances in which in those places where the Native Americans had proved to be too powerful to displace easily both the English and the French had, until the late nineteenth century, to rely upon land purchase or treaty." Indeed, British law eventually recognized Indian territorial rights, and set forth procedures for making treaties. In part because of the fraudulent nature of many private land sales between Indians and non-Indians, the Royal Proclamation of 1763 declared that all acquisition of land would need to be by treaty, thereby granting the state a monopoly on the acquisition of indigenous lands.

Seed reminds us that the term "treaty" did not principally refer to agreements between nations (as opposed to contracts between individuals or other legal persons) until the mid-seventeenth century, with the Peace of Westphalia. When the requirement that treaties-rather than ordinary sales contracts-be used to convey property claimed by Native Americans, it was clear that treaty referred to a state-tribal agreement. Indeed, the requirement was in response to battles among Englishmen (and sometimes Dutch colonizers) over who had properly purchased land. At that point, "colonial and then national officials at the end of the eighteenth century insisted upon the transfer of land through centrally written and authorized agreements, which they called treaties."

Thus, the approaches to conquest by colonial powers often had as much, if not more, to do with their claims to territory vis--vis each other as they did with any claims against indigenous peoples. Miller explains: "On one esoteric level, Discovery was a legal principle designed only to control the European nations. Clearly, however, the native peoples and nations felt most heavily its onerous burdens." For Seed, "the treaty purchases" not only granted the most secure legal title under English law, they "enable[d] public officials to dispense new land grants and put an end to ceaseless squabbles among colonists."

Even after the Royal Proclamation of 1763, it would be hard to label many agreements or treaties as consensual. Indeed, Indians often had a different idea from the colonists as to what they had agreed to. Colonists might have made oral promises to Indians that they would reserve the right to occupy and use certain land, for example, but the written "agreement" might then strip them of any such right. Still, that the English and later the Canadian and U.S. governments saw Indians as capable of entering into treaties for sale of land suggests that the colonial and postcolonial governments acknowledged both indigenous rights to land and their standing in international law. As Michael Banton explains in contrasting treaty making in Canada and the United States with the process of conquest in Latin America: "No leader of an indigenous group [in Latin America] can borrow the words of a Canadian counterpart ... 'we have lived up to our side of the treaties ... To us a treaty is an international document signed by two nations.'"

(Continues...)

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Edition details

• Publisher: Duke University Press
• Publication date: 2010
• Language: English
• ISBN 10: 0822347695
• ISBN 13: 9780822347699
• Binding: Paperback
• Number of pages: 418