Critical Indigenous Rights Studies

Giselle Corradi, Koen de Feyter, Ellen Desmet, Katrijn Vanhees, Giselle Corradi, Koen de Feyter, Ellen Desmet, Katrijn Vanhees

• Publisher: Routledge
• Year: 2018
• eBook ISBN: 9781351747554
• Edition: 1
• Topic: Law
• Subtopic: Civil Law
• Index: Law

The field of 'critical indigenous rights studies' is a complex one that benefits from an interdisciplinary perspective and a realist (as opposed to an idealised) approach to indigenous peoples. This book draws on sociology of law, anthropology, political sciences and legal sciences in order to address emerging issues in the study of indigenous rights and identify directions for future research.

The first part of the volume investigates how changing identities and cultures impact rights protection, analysing how policies on development and land, and processes such as migration, interrelate with the mobilisation of identities and the realisation of rights. In the second part, new approaches related to indigenous peoples' rights are scrutinised as to their potential and relevance. They include addressing legal tensions from an indigenous peoples' rights perspective, creating space for counter-narratives on international law and designing new instruments.

Throughout the text, case studies with wide geographical scope are presented, ranging from Latin America (the book's focus) to Egypt, Rwanda and Scandinavia.

1 The contours of a field of critical indigenous rights studies

Giselle Corradi, Koen De Feyter, Ellen Desmet and Katrijn Vanhees

1. Setting the scene

The identification, conceptualisation and realisation of indigenous peoples’ rights give rise to a variety of – often unexpected or unforeseen – challenges.¹ Some of these are related to the interplay between diverging cosmologies and subjectivities, marked by the colonial encounter. Others may be caused by the fact that not all issues relevant for indigenous peoples today are extensively or appropriately covered by existing legal frameworks and/or in academic research. Questions arise as to the normative content of indigenous peoples’ rights, the transformative potential of rights discourse, and the limits of law to realise human dignity.

This volume proposes to move towards a field of ‘critical indigenous rights studies’.² During the past decades, indigenous scholars have given shape to the emerging discipline of ‘critical indigenous studies’,³ characterised as “a knowledge/power domain whereby scholars operationalize Indigenous knowledges to develop theories, build academic infrastructure, and inform our cultural and ethical practices”.⁴ In this context, the term ‘critical’ is used to distinguish between indigenous and non-indigenous epistemologies and analytics. The field of critical indigenous studies, then, aims to “challenge the power/knowledge structures and discourses through which Indigenous peoples have been framed and known”.⁵

When suggesting to engage in ‘critical indigenous rights studies’, the editors of this volume – being non-indigenous lawyers and legal anthropologists – have a different, and more modest, ambition. The research focus is more specific, pertaining to the rights of indigenous peoples. The terms ‘indigenous peoples’ rights’ and ‘indigenous rights’ are used interchangeably in the book. It should be noted, however, that the meaning of either term may vary according to the context the authors are dealing with. The terms can either refer to rights of indigenous peoples as recognised in international law or to indigenous rights as understood by indigenous peoples themselves. There is a degree of overlap between these two ways of perceiving of indigenous rights. Indigenous peoples participated in the drafting of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), for instance, and the document thus reflects many of indigenous peoples’ own understandings of their rights. Indigenous peoples also regularly invoke the rights attributed to them by international or domestic law as their rights. But it is also very well possible that elements of an indigenous people’s own conception of rights are not reflected in the law, or that an indigenous people contests the authority of others to legislate on certain matters relating to their internal and local affairs, including on the determination of rights that they should have or not have.

In this volume, the term ‘critical’ refers to an attitude of questioning the content, functioning and potential of law: how, why and by whom are indigenous peoples’ rights given shape? Which tensions arise in these struggles relating to the identification, conceptualisation and realisation of indigenous peoples’ rights, and where do opportunities lie for the realisation of their rights? How do indigenous rights interrelate with other human rights, other branches of the law and other strategies of social action?

A critical approach to indigenous rights studies aims to go beyond a mere ascertainment of ‘implementation gaps’, the latter presupposing rights the content of which is set and not called into question any more, but which ‘only’ have to be implemented in order to realise their transformative potential. Although we do not underestimate how serious these gaps are, we believe that in order to understand the role of indigenous peoples’ rights in social change, it is fundamental to examine the actors and factors that interplay with the formulation of rights and influence how they acquire meaning and impact in concrete contexts.

As we explain in more detail on page 15, a critical approach to indigenous rights benefits from an interdisciplinary outlook. Various chapters in this book therefore draw on several disciplinary perspectives, including sociology of law, (legal) anthropology and political sciences. In addition, a critical approach to indigenous peoples’ rights does not equal a detached or neutral stance. Most chapters in (especially the second part of) this book seem – at least implicitly – to aim to contribute to a more effective realisation of indigenous peoples’ rights through their analysis.

It is submitted that a critical approach towards indigenous peoples’ rights benefits from adopting a realist (as opposed to an idealised) approach towards indigenous peoples. The ‘otherness’ of indigenous peoples, combined with their historically marginalised position in society, have injected a flavour of glorification and idealisation into much academic research. Regarding the relationship with the natural environment, for instance, the Romantic image of Indians as noble savages, expressed in the writings of Locke and Rousseau, was taken up again in the twentieth century to refer to the supposedly balanced relationship of indigenous peoples with their surroundings.⁶ Such idealised constructions and stereotypes limit the possibility to adopt a critical perspective in indigenous rights research. Moreover, if such romantic images of indigenous peoples turn out to be not supported by reality, this may have detrimental consequences for the recognition of and respect for the rights of these groups.⁷ As such, the assumption of a harmonious relationship of indigenous peoples with nature has had the contradictory consequence that higher expectations have been attached to the attitudes and actions of these peoples towards the environment.⁸ Similarly, discussions on indigenous justice have tended to either idealise it as an expression of communal harmony or demonise it as barbaric and inherently incompatible with human rights.⁹

The book is divided into two parts. The first part investigates how changing identities and cultures impact rights protection. In the second part, new approaches related to indigenous peoples’ rights are scrutinised as to their potential and relevance. They include addressing legal tensions from an indigenous peoples’ rights perspective, creating space for counter-narratives on international law, and designing new instruments. The case studies cover a wide geographical scope, with a focus on Latin America, but including studies on Egypt, Rwanda and Scandinavia, as well. After briefly presenting the various contributions, this introduction reflects on what the chapters teach us regarding the critical indigenous rights approach, and identifies directions for future research.

2. Presenting the chapters

2.1. Changing identities and cultures

The definition of indigenous peoples has always been a thorny issue, not least in international law. The main risk associated with the adoption of a legal definition is that it may allow states to interpret it in a restrictive manner in order to exclude from rights protection entire groups with legitimate claims. But although international law does not define indigenous peoples, the following elements have been associated with the identification of indigenous peoples: self-identification, their existence as a group prior to colonisation, their non-dominant position in society, their multidimensional relationship to their lands, territories and resources, and their intention to maintain a distinctive way of life. The chapters in the first part of this book remind us that the fluid and hybrid nature of identity calls for a critical examination of these elements and how they are mobilised in concrete cases.

Today’s increasingly interconnected world poses challenges for indigenous peoples’ identities. Indigenous peoples’ responses to these challenges can be situated on a spectrum that ranges from assimilation strategies to the essentialisation of their distinctiveness. Against this backdrop, Part I of the book focuses on identification processes and mobilising indigeneity strategies. Dominant societies are characterised by hegemonic identity discourses that do not tolerate the coexistence of other identities. These discourses are enforced through various strategies, such as framing any attempt to recognise an aberrant identity as a threat to national security. Chapters 2 and 3 by Janmyr and Vanhees, respectively, argue that there is a need for indigenous peoples to address and discuss issues that arise from these contentious situations. Chapter 4 by Martínez de Bringas identifies the legal challenges entailed by the fluid and dynamic nature of identity in contexts of migration. How do indigenous identities evolve in contexts where these identities are often a priori delineated? This question constitutes a common denominator of the three chapters of the first part of the book. In addition, these chapters move beyond the ideal image of indigenous peoples as a homogeneous and harmonious group.

In Chapter 2, Janmyr focuses on the struggle of the Nubian people for the return to ancestral land in Egypt. She identifies the tension between preserving the hegemonic narrative of a unified, national Egyptian identity and the challenges of the Nubians to be recognised as a group with a particular identity. Throughout the years, Nubians have employed different frameworks to advocate for a return to their ancestral lands, each with varying success. She explains how the Nubians have endeavoured to frame themselves as indigenous, as a strategical manoeuvre to claim back their ancestral lands. However, framing their cause as indigenous has meant a setback for their advocacy efforts because their claim was considered as a hostile threat to national unity by the Egyptian government. Changes in political power and the wave of Arab nationalism further complicated their struggle for a return to their ancestral lands. By explaining how the Nubians attempt to mobilise different frames to negotiate a return to their ancestral lands, Janmyr sheds light on how these discourses may coexist and how they are flexibly employable. She discusses how both the minority rights discourse and the indigenous rights framework can be relevant for the Nubians’ struggle. Furthermore, Janmyr draws our attention to the fact that actors with opposite interests can appropriate exactly the same discourses. To illustrate this point, she describes how the Egyptian government enforced a resettlement programme for the Nubians under the guise of ‘development’ policies. This political move instigated the Nubians to reappropriate the development discourse to lobby for a return.

Interestingly, Janmyr questions the relevance of land ownership for the construction of Nubian identity in present-day Egypt. Does the loss of ancestral lands imply an impoverishment of their collective identity? Besides mapping mobilisation strategies from an heterogenous identity perspective, she utilises a realistic approach to highlight intragroup tensions. By de-essentialising the Nubian identity, she diversifies Nubians’ advocacy tactics along generational lines. No consensus is reached when it comes to deciding which strategic path should be chosen to support their cause. The old generation prefers to handle the issue through domestic frameworks, such as the development frame. Yet, the younger generation prefers to take the matter up to the regional level by filing a complaint against the Egyptian government with the African Commission on Human and Peoples’ Rights.

The next chapter by Vanhees explores the struggles of Twa people to position themselves within the Rwandan discourse on identity at the political level and highlights two possible pitfalls when choosing ‘indigenousness’ as a category of analysis and advocacy work. Twa people of Rwanda claim to be descendants of the Pygmy communities of Eastern Africa. Often forgotten or ignored in accounts on Rwanda, Twa people are the third group identity in Rwanda, besides Hutu and Tutsi. Research has estimated that nowadays, 25,000 to 30,000 Twa people live in Rwanda, which is an estimated 0.41% of the entire population. Prior to the rezoning of the forests and the rise of green politics, Twa used to live in the forestry areas of Rwanda as hunter–gatherers. However, their way of living was threatened due to the increasing loss of forests. Nowadays, their socio-economic situation is characterised by poverty, a low education level, discrimination and landlessness. In its efforts to improve Twa’s living conditions, civil society denounces the ongoing structural discrimination and their impoverishment. During the process by civil society of exploring different advocacy pathways, the notion of indigenousness has come to the fore. In her chapter, Vanhees points out different challenges when mobilising this framework. To begin with, explicitly emphasising a particular identity that deviates from the Rwandan notion of ‘oneness’ constitutes a threat to national security. The political discourse of unified identity in Rwanda does not allow for any identity diversification, given the country’s horrendous past with hegemonic identity politics.

In the second part of her chapter Vanhees elaborates on how identifying as indigenous entails a risk of essentialising Twa’s lifestyle. Their socio-economic situation is often too easily causally linked to the fact that they are part of a discriminated or historically marginalised group. Their current land situation is indeed significantly worse than that of other groups in Rwandan society; however, the reason behind this cannot be entirely based upon their identification as a marginalised group. Consequently, this chapter explores how Twa’s socio-economic identity has changed because of different survival strategies in order to adapt to an ever-changing society. It touches upon three main themes concerning land: the genocide of 1994, the formalisation of the land market and land scarcity.

The final part of the chapter draws attention to the intragroup dynamics within Twa communities that create opposing interests and claims to land. It focuses specifically on Twa women’s struggle to gain access to land and how they articulate certain land claims within their community. By highlighting women’s experiences, this part intends to shed light on the intersectional features of Twa’s socio-economic situation that need to be taken into account during the identification process. In her conclusion, Vanhees states that exploring the challenges of Twa communities when advocating for their specific needs reveals the complexities of manoeuvring in a society that is characterised by dominant identity discourses. Moreover, her chapter points out the need to accommodate transformative and intersectional (gender) features of group identity in the identification debate in order to avoid reification of their destitute socio-economic status.

In Chapter 4, Martínez de Bringas analyses how migration processes affect the identities and rights of indigenous peoples, drawing on insights from, among others, international human rights law and the sociology of law. The growing international recognition of indigenous rights has not been matched by a comparable enthusiasm of states for migrant rights in general or indigenous migrant rights in particular. From a methodological point of view, Martínez de Bringas points out that both the lack of sociological data on indigenous migratory processes and the absence of a conceptual framework on the relationship between indigenous peoples and migration pose specific challenges for this type of research. Mapping indigenous migratory processes, he distinguishes between ‘indigenous ancestral mobility’ and ‘transnational indigenous migration’ and takes the rural world/urban world dialectic into account. To analyse the sociological complexity of indigenous migration, he suggests to study both the causes of migration (i.e. voluntary and forced migration) and its consequences, distin...

Table of contents

• Cover Page
• Critical Indigenous Rights Studies
• Routledge Research in Human Rights Law
• Title
• Copright
• Contents
• List of Contributors
• 1 The Contours of a Field of Critical Indigenous Rights Studies
• Part I Changing Identities and Cultures
• Part II Innovating the Law
• Index