Indigenous Rights

by

Sarah Sargent

• LAST REVIEWED: 27 February 2019
• LAST MODIFIED: 27 February 2019
• DOI: 10.1093/obo/9780199743292-0255

Introduction

The attention given to indigenous rights has increased since the approval of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) in 2007. Although it is a soft law declaration and technically not binding, it serves as the cornerstone of much of the contemporary research on indigenous rights. Four states that initially voted in opposition to the UNDRIP—Australia, Canada, New Zealand, and the United States—have now endorsed it. Despite the attention it garners, the UNDRIP is not the only international instrument that has been utilized to establish and protect indigenous rights and interests. The regional inter-American human rights system has also been key in the development and protection of indigenous rights. Another important facet of the UNDRIP is that it took twenty-two years of drafting effort before it was approved by the United Nations General Assembly. During those twenty-two years, many discussions, debates, and analyses were undertaken over the meaning of rights and principles included in the drafts of the declaration. Research and scholarship from the era before passage of the declaration is helpful in understanding the content of the document. But the approval of the declaration did not end the controversies over indigenous rights. Debate and examination of the evolving body of indigenous rights continues during the period after passage of the declaration. As well, indigenous rights are not simply “human rights”; rather, they are a complex set of rights that can impact a broad swath of other legal doctrines. Intersections of indigenous rights with laws regarding economic development, the environment, and land claims can give rise to new interpretations and understandings of the impact of indigenous rights. While the four “no states” might be what most readily comes to mind when thinking about where many indigenous peoples live, indigenous peoples are, in fact, scattered throughout the world, including Europe. Research on indigenous rights is not carried out only from a legal perspective. Indigenous rights cover many different kinds of rights. Some have an emphasis in international law doctrines, such as the right to self-determination and issues about indigenous and tribal sovereignty. Other rights emphasize the importance of culture and heritage, and it can be useful to consider research in other disciplines, including history, political science, and anthropology. This article includes research and resources in related disciplines as well as legal research and law-based resources. (A note about language: American references to indigenous peoples are inclusive of the words “American Indian” or “Indian.” “Indian” is a legal term of art used in federal and state statutes. Indigenous peoples in the United States refer to themselves as “Indians” rather than Native Americans. For these reasons, where appropriate, the article makes use of the terms American Indian and Indian in preference to Native American. This usage may be confusing to non-American readers and so a clarification is offered).

General Overviews and Background

The works cited are useful in gaining a broad understanding of the history of indigenous peoples and the growth of the indigenous rights movement. These selections would be useful at any level of study of indigenous rights—from the casual reader to the seasoned scholar. While indigenous rights are a rapidly growing and evolving area of law, the issues addressed in indigenous rights have persisted over time. These publications provide both an important background and an overview of indigenous issues and rights as well as a detailed consideration of indigenous history and contemporary developments—linking the current rapid expansion of indigenous rights to the events that contributed to present-day issues and challenges that confront indigenous peoples. Dee Brown was one of the first authors to provide an account of historical events from an indigenous perspective. Brown 1991 makes extensive use of historical documents to give a very detailed recounting of the events from contact with Spanish explorers until the final tragedy of the massacre at Wounded Knee in 1890. Robert Williams, himself indigenous, provides a useful counterpoint in his book that outlines the way in which Western history and thought has conceptualized indigenous peoples (Williams 1992). The book Black Elk Speaks (Neihardt 2008) records the words of the famed holy man himself, provided through a series of interviews with the writer John Neihardt. Black Elk was a witness to, and a participant in, many of the events of the late 1800s and early 1900s, including the Battle of the Little Big Horn (Custer’s Last Stand), and he traveled to Europe in a popular Wild West show. Black Elk’s perspective provides a rich and necessary understanding of historical fact, as well as giving a compelling indigenous voice and account of these events. Anaya 2004 provides a comprehensive description of the development of indigenous rights in international law prior to the approval of the 2007 UNDRIP. Sargent 2011 delivers a concise explanation of the intersection of children’s rights and indigenous rights within international law. Lenzerini 2008 provides in-depth coverage of the ways in which international law provides for reparations for breaches of indigenous rights. Miller, et al. 2010 details the effects of the doctrine of discovery in determining the outcome of indigenous land rights in the four states that initially voted against the UNDRIP—Australia, Canada, New Zealand, and the United States. Engle 2009 places indigenous rights within the international legal framework, with a focus on the interplay of culture and development with the right to self-determination. Williams 1997 provides an insightful discussion on indigenous rights development as part of the evolution of the author’s legal academic career, overcoming protests that an indigenous person could not be sufficiently objective to write about indigenous rights. Thornberry 2002 explores the evolution of indigenous rights as a distinct body of law within international law. O’Sullivan 2017 provides fresh insight into evolving indigenous rights in Fiji, Australia, and New Zealand through use of the concept of indigeneity as a political theory and process, rejecting the usefulness of liberal democratic theory.

• Anaya, S. James. Indigenous Rights in International Law. New York: Oxford University Press, 2004.

  This book offers a helpful insight into international law principles and the international law system as well as on the development and background to indigenous rights. It should be noted that this was published before the approval of the United Nations Declaration on the Rights of Indigenous Peoples in 2007 and therefore some of the information is dated.

• Brown, Dee. Bury My Heart at Wounded Knee: An Indian History of the American West. London: Vintage, 1991.

  This important book provides an in-depth historical analysis of the fate of American Indian tribes from the days of first contact with European explorers and settlers to the tragic massacre at Wounded Knee, South Dakota, in 1890. It was one of the first to consider historical events from the perspective of indigenous peoples.

• Engle, Karen. “Indigenous Rights Claims in International Law: Self-Determination, Culture and Development.” In Routledge Handbook of International Law. Edited by David Armstrong, 331–343. London: Routledge, 2009.

  This chapter provides an excellent overview as well as detailed analysis of the location of indigenous rights in international law. This chapter would be suitable for both undergraduates and postgraduates.

• Lenzerini, Federico, ed. Reparations for Indigenous Peoples: International and Comparative Perspectives. New York: Oxford University Press, 2008.

  An impressive and comprehensive collection of essays that covers a wide range of topics. The focus on reparation captures an important element of the UNDRIP, making this very much a cutting-edge book. It may be too complex for undergraduates but would be suitable for postgraduates and as a research resource.

• Miller, Robert J., Jacinta Ruru, Larissa Behrendt, and Tracey Lindberg. Discovering Indigenous Lands: The Doctrine of Discovery in the English Colonies. Oxford: Oxford University Press, 2010.

  DOI: 10.1093/acprof:oso/9780199579815.001.0001

  The “doctrine of discovery” has been used to justify European settler claims to indigenous lands. This book discusses the use of the doctrine as applied to the English colonies of Australia, Canada, New Zealand, and the United States (which are also the four states that voted to oppose approval of the UNDRIP). This might be too complex for undergraduates but would be a useful research resource for postgraduate students.

• Neihardt, John G. Black Elk Speaks. Albany: State University of New York Press, 2008.

  This book details the life of Black Elk. It traces in rich detail the events of his life during the “Indian Wars” in the 1800s, including the movement of his people to confinement on reservations and the hardships endured there.

• O’Sullivan, Dominic. Indigeneity: A Politics of Potential; Australia, Fiji and New Zealand. Bristol, UK: Policy Press, 2017.

  The concept of “indigeneity” as a political theory and process, and as a rejection of liberal democratic theories, is used to analyze the situation of indigenous people in Australia, Fiji, and New Zealand.

• Sargent, Sarah. “Indigenous Children.” In International Child Law. 2d ed. Edited by Trevor Buck, 425–448. New York: Routledge, 2011.

  This chapter covers the rights of indigenous children in international law, focusing on the United Nations Convention on the Rights of the Child and intersections and potential conflicts with the United Nations Declaration on the Rights of Indigenous Peoples. The material is suitable for undergraduates as well as postgraduate students. The chapter and the entire book are useful as both a textbook and a research tool.

• Thornberry, Patrick. “Minority and Indigenous Rights at the End of History.” Ethnicities 2.4 (2002): 515–537.

  DOI: 10.1177/14687968020020040401

  This article provides an excellent juxtaposition of minority and indigenous rights in international law, alongside the developing human rights canon. It provides a thorough examination of the issues raised in the development of indigenous rights as distinct from minority rights and of the shifts in international law that slowly begin to discard assimilative principles in legal instruments.

• Williams, Robert A., Jr. The American Indian in Western Legal Thought: The Discourse of Conquest. New York: Oxford University Press, 1992.

  This unique book provides an effective analysis of the way in which indigenous peoples have been viewed through Western eyes and the devastating consequences of these conceptions for indigenous peoples. Includes original and thorough research grounded in detailed discussion of historical events.

• Williams, Robert A., Jr. “Vampires Anonymous and Critical Race Practice.” Michigan Law Review 95 (1997): 741–765.

  DOI: 10.2307/1290045

  This details the experience of an American Indian law professor. It also explains the use of critical race practice, an outgrowth of critical race theory. This is a must-read article for anyone interested in not only an ivory-tower consideration of indigenous rights, but also what the application of legal theory and practice mean to the everyday lives of indigenous peoples.