Indigenous Peoples' Continuing Quest for Justice: Restructuring Indigenous-State Relations Franke Wilmer Montana State University *Working paper/draft. Do not cite. By the late nineteenth century, indigenous leaders living within the postcolonial English settler states of Canada, the United States and New Zealand, were convinced that the European settlers were not and would not respect their rights as indigenous peoples, in spite of the fact that these rights were recognized in treaties either with the settlers or with the British government itself. Indigenous representatives travelled to Britain to present their grievances to King George, but were denied an audience with the King, and told that their concerns fell within the domestic jurisdiction of the settler states. Thus began the long quest for justice in settler-indigenous relations, and the pattern of dislocation and relocation, forced assimilation and, at times, outright brutality, reproduced wherever European settlers (or indigenous agents of European state-building) expanded 41--heir control over resources and territories through the state-building process. Indigenous representatives persisted, approaching the League of Nations, and later, the United Nations. Finally, in the 1970s, the United Nations took up the question of indigenous peoples within the Economic and Social Council, and created a special sub-commission to study and make recommendations regarding their situation. The movement among indigenous peoples qrew to qlobal proportions, and has involved both local and qlobal strategies for political chanqe.^1 Indiqenous peoples have established a presence at the United Nations through organizations qranted observer status; lobbied the World Bank in order to challenge projects involving their relocation or the destruction of their lands, resources and sacred sites; lobbied international organizations such as the International Labor Orqanization; mobilized networks through the media, including the internet; met regularly in a variety of nongovernmental organization forums and conferences; organized politically within states to orchestrate labor strikes, elect representatives to national assemblies, and institute legal proceedings in defense of their rights; and brought cases before the United Nations Human Rights Commission. Several cases (Western Shoshone land claims, Navajo relocation, and interference in the affairs of the Six Nations or Haudenosaunee Confederacy) involve complaints against the United States. The United Nations declared 1993 the "Year of the World's Indiqenous Peoples." Having researched international indigenous peoples' activism for nearly a decade, in the summer of 1996 I wanted to spend a couple of weeks following the IPRA conference in Brisbane talking with indigenous representatives, activists and advocates in the Brisbane and Auckland, Aotearoa areas. With the help of Michael Williams, director of Aboriginal and Torres Straight Islander Studies at the University of Queensland, and with a few contacts made prior to arriving in Australia, I was able to talk with representatives from several Aboriginal Land Councils, the Foundation for Aboriginal and Islander Research and Action, and the National Aboriginal and Islander Legal Services Secretariat. During my short stay of four days in Aotearoa, I was able to spend an afternoon with long-time Maori activist, scholar and publicist Ranginui Walker, meet with several people working with the Center for Maori Studies in Ngaaruawaahia, and attend a seminar on Maori education. What I wanted to know was, at this point in indigenous activism -- several years after indigenous issues had made their way onto the United Nations' agenda, after reconciliation policies and programs had been instituted in both Australia and Aotearoa -- what had emerged from the experience of indigenous leaders in their efforts to negotiate changes in their relationship with settler states? I wanted to know, were there no political obstacles, what sort of framework for negotiating a new indigenous-state relationship would represent a feasible starting point from the perspective of indigenous activists? Ten days of discussions revealed a surprising level of agreement about the terms and conditions for a new sort of indigenous-state relationship. I came to call the main points that surfaced during these discussions a "wish list." If, in other words, political obstacles could be somehow set aside for the moment, and if indigenous representatives were to sit down now to negotiate with representatives of settler states and put forth a list of conditions that would enable them to rebuild their communities as viable societies with distinct and continually evolving identities and "ways of knowing," and to make progress in their own healing from dysfunctions flowing from colonial and postcolonial injustices, what would this "wish list" contain? Here are the main points that emerged from these discussions: (1) Indigenous peoples must have the right to freely determine their relationship with the state. The category "indigenous peoples" has emerged in relation to western colonization and the spread of modernist ideology. Indigenous peoples, however, constitute a tremendously varied constellation of cultural differences, which should never be overlooked even as the notion of common indigenous interests gains ground. Indigenous peoples are, however, similarly situated within a world-system perspective, and from the perspective of having been cast as the "other" in relation to the West's "modern" self. But each indigenous group is distinct from every other group not only in a cultural sense, but in their own historical context in relation to different nation-states. Some indigenous peoples seek a form of sovereignty that is both external and internal, perhaps sovereignty equal to that of the state. This has been part of recent public discourse in Aotearoa, although it is by no means clear that all Maori, or even a majority of Maori leaders agree on the extent of sovereign aspirations. Nevertheless, this case contrasts sharply with the case of many (but not all -- the Haudenosaunee are a much noted exception) Native peoples in North America, particularly the U.S., who have few or no aspirations in the direction of external sovereignty, or of sovereignty "equal" to the state and focus instead on varying degrees of internal sovereignty -- freedom from external interference. The right to freely determine one's own status is consistent with the international principle of self-determination, and most indigenous representatives to the United Nations have stressed that self-determination does not in itself entail a right to secession from the state. (2) Indigenous peoples, rights must be recognized, not "granted." Indigenous peoples insist that their rights do not flow from the good graces of the states which have asserted, in various direct and indirect ways, their de facto "conquest" of indigenous peoples. Instead, their rights flow from the law of nations which recognizes the right of self-determination and upon which government-to-government relations between states and indigenous peoples are based. This is also reflected in more recently articulated international legal norms protecting human rights. Indigenous peoples' rights are also inherent, and have often been recognized as such within the legal framework of states whose courts have addressed the issue of indigenous sovereignty. The notion of rights being "granted" presupposes the non-existence of those rights prior to their recognition. Indigenous peoples rights predate the arrival of settlers in their lands. Indigenous peoples assert that their rights flow from their self-determining status prior to colonization, and that global decolonization dictates that those rights be recognized today and that past infringements on those rights have been both unjust and, under international law, illegal. (3) Indigenous peoples must have the right to participate in the political and legal processes of the state without suffering a loss of sovereignty. Settler states as well as states constructed as a result of postcolonial state-building projects have posited indigenous peoples' remaining territorial bases as enclaves within the state. Additionally, through programs of coerced relocation and assimilation as well as economic dislocation, many indigenous peoples live apart from their territorialized communities. These developments have occurred as a direct result of the settlement and state-building processes. The multinational state including both indigenous and settler communities best serves the interests of justice and reconciliation when indigenous peoples have a voice in the political processes of the state whose policies affect them, and when they have access to the legal machinery of the state in order to appeal for judgements involving their rights which rest on their sovereignty. Therefore they should incur no loss of sovereignty when they participate in the political and legal institutions of the state, particularly when the state remains the only institution through which their quest for justice can be given effect. (4) Indigenous peoples must have a kind of veto power over policies of the state in some areas. Indigenous peoples' dispossession from their land entails more than a loss of economic resources. Indigenous and European conceptions of the human-natural world relationship are vastly different. For both, albeit in vastly different cultural contexts, the natural world provides a necessary resource base for the support and continuation of a way of life -- different ways of life in many cases. For both the natural world provides a sense of "place" in which identity is grounded. But for indigenous peoples, the natural world has an additional, spiritual dimension of meaning: sacredness. There is probably no comparable concept in Western systems of meaning for the indigenous concept of a "sacred place," where identity is meshed with spirituality. Some have compared the notion of a "sacred place" in indigenous world views to the idea of a "church" in western thinking, with the obvious difference that a church can be moved or demolished and rebuilt. Nevertheless, it remains that sacred places have a profound meaning for indigenous peoples which has no comparable place in western thinking at this time. At the very least, indigenous peoples must have some power to veto the appropriation for economic exploitation of areas considered by them to be sacred. (5) There must be an end to policies and programs aimed at indigenous peoples forced assimilation, and reparative policies developed to mitigate the present effects of such past policies. While boarding schools long ago disappeared in the English settler states, practices similar to those in which children were lured or forcibly removed from their families in order to attend residential schools whose primary function was to stamp out indigenous culture and language and replace it with the language and culture of the dominant society, continue in the more developmentally remote areas of Central and South America. Furthermore, the effects of past policies are profound and continuing, resulting in, among other things, a loss or severe reduction in indigenous language speakers so that at present there are hundreds of indigenous languages in threat of extinction. As many as eighty percent of indigenous languages in the United States are presently threatened by extinction. Another effect of forced assimilation is what in Australia is being called the "lost generation." Indigenous children were adopted, or relocated, their ties with families erased and were, to make matters worse, also often victims of physical and sexual abuse in the hands of their new caretakers. There should be at the very least programs for reparative justice available to these victims and their descendants. There should also be programs (controlled by indigenous peoples) aimed at facilitating the recovery of indigenous languages and cultural knowledge. (6) Indigenous peoples need to develop decision-making mechanisms capable of negotiating on their behalf with the large corporate institutions of the state, multinational corporations, and intergovernmental organizations. Indigenous peoples' traditional decision-making institutions developed in relation to their societal needs -- needs far different from those generated by the powerful political and economic corporate interests that continually pressure indigenous peoples to negotiate for the concession of their lands and resources, or for compensation pursuant to past dispossession. Indigenous peoples' traditional structures are therefore not generally well-suited to the task of fairly and justly representing their interests in arenas constructed and dominated by states, multinational corporations, and intergovernmental organizations. Furthermore, many indigenous communities today are often represented by and subjected to the authority of political institutions not of their own choosing or of their own creation. These institutions are often regarded as "imposed" on them by the settler states, and are thus often also not regarded with a high degree of internal legitimacy. (7) Indigenous peoples need access to the resources necessary to the development of legitimate and effective political institutions. The most essential resource is knowledge. Indigenous peoples need support for educational programs focused both on their cultural traditions and history as well as about the political structure, motives, social processes of the settler societies. To promote indigenous participation in the educational institutions of the settler society is, by itself, not sufficient. Indigenous peoples themselves must be supported in the development of indigenous community-based educational programs, designed and controlled by indigenous peoples. Here they can begin to recover their own knowledge base as well as acquire knowledge about the settler societies within whom they co-exist in a manner appropriate to their own needs, as determined by the indigenous community. (8) Until indigenous communities develop effective and legitimate decision making mechanisms, negotiations over issues like resources and land claims, should be suspended, without diminishing or prejudicing their right to pursue these claims in the future. Many indigenous communities have developed mechanisms for negotiating effectively with states and other actors, and they have developed governing structures perceived internally to be legitimate. But many have not, since much of their time and energy has been consumed by the more immediate necessities of physical and cultural survival. Suspending negotiations may mean that a particular mining or hydroelectric project cannot proceed, and that negotiations over such controversial issues may be suspended indefinitely, until such time as the indigenous community itself feels confident of the legitimacy and effectiveness of its own decision making structures. This "wish list" is neither exhaustive nor does it represent conditions that all indigenous leaders, all over the world would necessarily agree on. It is my intention to carry on similar discussions with indigenous leaders in the U.S. and Canada, an elsewhere as time and opportunities allow. This list emerged as a result of discussions with indigenous peoples, and, after developing the list, each point was discussed with the indigenous leaders, activists, educators and scholars I spoke with during my ten days in Brisbane and Auckland, and among these individuals, there was complete agreement. The United Nations Working Group on Indigenous Populations has been working on a Declaration on the Rights of Indigenous Peoples since 1981, and has now completed a draft declaration (which has not yet been presented to the UN General Assembly for adoption). In 1995 the UN Subcommission on the Prevention of Discrimination and Protection of Minorities approved a resolution calling for a study of indigenous land rights. Current efforts are directed toward persuading key states, such as the United States, to adopt a favorable position on the declaration. A similar declaration is also being prepared by the Organization of American States InterAmerican Commission on Human Rights. The OAS document builds on the draft developed within the UN. Some settler states seem to be moving in the direction of satisfying some of these conditions, however reluctantly and, in some cases, however superficially, in response to the persistent activism of indigenous peoples. Upon reflection, there is another need, however, that I would like to add to the list from the perspective of those who the Maori (and all New Zealanders now) call "Pakehas" - the descendants of European settlers. There is also a need for education among descendants of settlers about the true history, heritage, aspirations and present situation of indigenous peoples. Activism by indigenous peoples and structural changes in their relationship with states can improve the conditions of indigenous peoples, but does not necessarily lead to the repair of relationships and the healing of the whole societies in which indigenous and European descendants co-exist. It is within the context of both structural change and consciousness-raising that the long-term prospects for peace and justice reside. 'See Wilmer, Franke THE INDIGENOUS VOICE IN WORLD POLITICS: SINCE TIME IMMEMORIAL (Saqe, Newbury Park Calij@ornia: 1993). Return to home page