INDIGENOUS PEOPLES AND THE STATE: THE STRUGGLE FOR NATIVE RIGHTS

Vol. 13 No. 11 (November 2003)

INDIGENOUS PEOPLES AND THE STATE: THE STRUGGLE FOR NATIVE RIGHTS by Bradley Reed Howard. DeKalb, Illinois: Northern Illinois University Press, 2003. 252 pp. Cloth $42.00. ISBN: 0-87580-290-7.

Reviewed by Catherine Lane West-Newman, Department of Sociology, The University of Auckland, New Zealand. Email: l.westnewman@auckland.ac.nz

The opening assertion of this well-intentioned book sets the scene for much of what follows:

Parading down a technoconsumer superhighway into the new millennium, we are unintentional witnesses to an extraordinary event: a resurgence of activism among indigenous peoples, energetically asserting their international rights not only as individual human beings but as self-determining peoples, unique and independent cultures (p.2).

First, there is surprised admiration that while WE (unspecified, but presumably non-indigenous peoples) are engaged in ordinary technoconsumption, THEY have achieved the “extraordinary” feat of asserting international rights. Second, there is an (incorrect) implicit assumption that academic attention and indigenous activism are coextensive in time. In many settler societies indigenous activism has been more or less continuous since foreign invasion, though often successfully ignored by the state. Rather than a resurgence, it is simply that current attempts have achieved the more widespread popular and political attention that signals less success in containing dissent. Indeed, Howard’s own assemblage of material on Maori experience in Aotearoa New Zealand (to which I shall return later) documents just such a history of activism, as does his chapter on the Iroquois struggle for independence.

He is right, though, in noting that framing indigenous activism in terms of international rights is comparatively new. It is in fact a natural accompaniment to the globalizing economic impulse that in several ways renders state boundaries and sovereignty less omnipotent than they had been earlier in the twentieth century. It is also a natural extension of a post-World War II western expansion of the concept of international human rights to police behaviours that are seen as inimical to western value systems. Extended to a formulation of indigenous rights, this development has presented those whose colonizers did not at the dismantling of colonial empires, as they did in Africa and Asia, pack up and go home, with another means of arguing their cause—that is, a means for claiming relief from “foreign” rule and just reparations for land and everything else of which they had been forcibly relieved, freedom in fact to exercise their rights as indigenous peoples.

The term “indigenous,” which aggregates and defines people who preceded European arrival in many sites of colonial adventure, denotes a category formed and named within European epistemology. In recent years the relationship between many present day “indigenous peoples” and the settler states that displaced their traditional cultural modes of political, economic, and even conceptual, self governance has been the subject of new and quite intense scholarly interest. Central to this has been a growing recognition that relationships between colonizer (descendants of settlers) and colonized (indigenous) peoples are inevitably situated in historical circumstances and events and draw their political significance from the shape and context of those encounters. Contributions from law, anthropology, history, political theory, sociology, and from indigenous and non-indigenous researchers and activists now offer a rich diversity of evidence and argument around these issues.

One of the more immediate consequences of this development is that to compete effectively for readers’ inevitably limited time and interest, offerings in this field need to provide new evidence, sophisticated analysis, or at least a synthesis of materials not previously available in that form. As it turns out, these conditions are unfortunate for this book, which—although it contains a huge amount of detailed historical description drawn from a range of sources and reproduces in (often repetitive) detail, the contents of innumerable reports, submissions, and draft declarations—does not offer a clear line of argument or indeed an effective introductory explanation of the author’s position and purpose in writing it. This leaves the reader struggling, at times, to understand why she should engage with over two hundred pages of densely written detail.

The author of this volume, who holds degrees in history and in law, positions himself to combine legal and anthropological insights and information. The first of what I take to be his dual intentions in writing the book (not necessarily in his own order of importance) seems to be an invitation to anthropologists, justified by a compendium of historical evidence demonstrating anthropological complicity, active and passive, in the projects of colonization. The suggestion is that anthropologists bear a weight of guilt by collusion in the damage wrought in indigenous societies through the processes of colonization and their aftermath in white settler states. This guilt is to be assuaged through anthropological participation in projects that support indigenous activist claims for self-determination and reparative justice. Such support, it appears, might take the form of collecting and collating (as in this book) accounts of past wrongs and presenting them together with contemporary indigenous and other analyses of the indigenous predicament. The second part of this project draws together legal information about international human rights forums and instruments, in the form of a compendium of concepts, reports, recommendations, conventions, and proposals that might be relevant to the assertion of indigenous rights, to create a resource base for activists (and lobbyists).

This conception of dual purpose is the most likely explanation for what is, on the face of it, a quite strangely constructed book. Chapter One describes the nature of past relationships between American cultural anthropology and reproduces criticisms by Native American writers Vine Deloria and Russel Barsh as well as the United Nations Special Rapporteur Miguel Alfonso Martinez’ STUDY OF TREATIES, AGREEMENTS AND OTHER CONSTRUCTIVE ARRANGEMENTS BETWEEN STATES AND INDIGENOUS POPULATIONS to conclude that anthropology has been itself an anthropological problem whose solution could be that “the study of human rights in general and indigenous rights in particular should be institutionalized as a fundamental field of study in academic and professional anthropology programs” (p.7). The failure of many anthropologists to support indigenous claims for self-determination, even though they may be active in opposing racism and promoting human rights, is said to demonstrate “the sometimes subtle nature of the grievances and protests of indigenous people” (p.33).

Chapter Two – titled “Indigenous Cultures and the Law in North America” – describes the European age of discovery, colonization and genocide in the Americas and relationships between Indian Nations and first, Europeans, and then the United States of America. One section briefly considers American Indians in early international law, noting that Europeans considered them “demonic infidels” and therefore “did not consider their enslavement and execution a crime” (p.41) and that “the English followed Dutch and Swedish practice based on the Roman and medieval doctrine of immemorial possession and entered into treaties with the indigenous nations, thereby acknowledging the absolute territorial and national sovereignty of the indigenous nations through acts of international law” (p.42). Significant cases that mark the shape and turning points in these relationships are briefly described, and the interpretations of a number of scholars, many Native American, are included. Howard concludes that the fact that Native Americans “have been and continue to be systematically precluded from achieving justice – that is, justice in their own terms – in US courts of law or by any other domestic means” makes it a “logical and necessary” rather than a “radical” decision for them to pursue justice in international law and courts (pp.65-66).

This mode of historical description punctuated by analysis and quotation from other scholars and commentators is applied also in Chapter Three to consider “The Iroquois Struggle for Independence.” This account concludes with two internationally focused initiatives. First, the twenty point Declaration of Principles of indigenous nations produced in 1985 by the International Indian Treaty Council, the Indian Law resource Center, the Four Directions Council, the National Aboriginal and Islander Legal Service, the National Indian Youth Council, and the Inuit Circumpolar Conference and presented to the United Nations Working Group on Indigenous Populations to assist in the development of the Declaration of the Rights of Indigenous Peoples. Second, the Mohawk Nation’s claim before the Fourth Russell Tribunal in 1980 “that the United States denied the Mohawk Nation their right to their homeland on the basis of a fraudulent treaty and that the State of New York imposes an alien government on the Mohawk peoples” (p.91). Howard links the success of this claim before the Tribunal with successful Mohawk negotiations later that year for the disbanding of tribal police and the return to traditional Mohawk trustee governance rather than a state imposed Tribal Council.

Chapter Four describes at length and under seventeen separate headings, a range of concepts and forums that may be relevant to the work of indigenous rights activists. These include the status of indigenous peoples under positive international law, international crimes of genocide and apartheid, opinions of the International Court of Justice, other UN complaint procedures, treaties between states and indigenous peoples, regional human rights regimes, populist tribunals, and international conferences. Situations and cases relating to Brazil, Canada, The Netherlands, Norway and Denmark, and Namibia are also briefly described.

Chapter Five focuses explicitly on the place of the United Nations in indigenous rights issues. The work of a number of conferences is detailed, and statements and declarations, including the Draft Declaration on the Rights of Indigenous Peoples, responses to it, and the possibilities for its future are reproduced. Like so much of the book, though, here the discussion stops at around 1995. And this brings me to the central problem with this book; that, regrettably, it appears to have been compiled in the mid-1990s and only marginally updated for publication in 2003.

This same problem is all too evident in the next chapter which summarizes the work of several local historians and legal scholars to offer a brief history of Maori-settler relations in Aotearoa New Zealand. Here a suggested parallel with the Iroquois history given earlier is not explicated to make clear the author’s reason for this inclusion. In this chapter difficulties of time lag in information are compounded by elementary factual mistakes that would be gratuitous to list in detail but which include the creation of a new Conservative Party in government (presumably The National Party). Historic incidents and details of Maori cultural practices are sometimes misinterpreted or misreported. For example, Hone Heke’s attacks on the flagpole (not the flag) at Kororareka (not Kororeraka) were not undertaken as a rebellious individual (Maori society is essentially collective) or as a “symbolic” gesture. They were a direct challenge to the English presence there – an invitation to war. Neither was Kororareka actually a New Zealand Company settlement. The concluding brief section on the Waitangi Tribunal is perfunctory, and again, despite the existence of extensive and up to date literature which might have been consulted, stops in the early 1990s. This, in a book which relies almost entirely on description in lieu of analysis, is seriously misleading because it leads to the omission of a number of more recent developments – including two subsequent major settlements of one hundred and seventy million dollars each to two claimant tribes – which are relevant to the reasons for including this chapter in the book. Nor did the National Government’s intention to place a fiscal cap on settlements, with which this chapter ends, eventuate.

So, why have I reviewed the book at this length? Because there is a great deal of information collected here which, used with caution, will be of service to teachers, researchers, and activists. At the end, though, it also serves as a sobering reminder of just how many words have already been produced in pursuit of workable solutions to the many outstanding injustices consequent to indigenous experiences of European colonization.

REFERENCES:

Barsh, Russel Lawrence. 1988. “Are Anthropologists Hazardous to Indians’ Health?” 15 THE JOURNAL OF ETHNIC STUDIES 1-38.

Barsh, Russel Lawrence, and James Youngblood Henderson. 1980. THE ROAD : INDIAN TRIBES AND POLITICAL LIBERTY. Berkeley: University of California Press.

Deloria, Vine, Jr. 1969. CUSTER DIED FOR YOUR SINS: AN INDIAN MANIFESTO. New York: Macmillan.

United Nations. 1992. SUB-COMMISSION ON PREVENTION OF DISCRIMINATION AND PROTECTION OF MINORITIES. “DISCRIMINATION AGAINST INDIGENOUS PEOPLES: STUDY ON TREATIES AGREEMENTS AND OTHER CONSTRUCTIVE ARRANGEMENTS BETWEEN STATES AND INDIGENOUS POPULATIONS: FIRST PROGRESS REPORT.” Submitted by Miguel Alfonso Martinez, special rapporteur. E/CN.4/Sub.2/1992/32.

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