The Indigenous Rights State

• Published date: 01 March 2020
• DOI: http://doi.org/10.1111/raju.12270
• Date: 01 March 2020
• Author: Benjamin Gregg

© 2020 University of Bologna and John Wiley & Sons Ltd.

Ratio Juris. Vol. 33 No. 1 March 2020 (98–116)

The Indigenous Rights State

BENJAMIN GREGG

Introduction

The notion of indigeneity is problematic in deployment because it is indeterminate

in meaning. It retains political potential if it is not deployed as a global category to

ground a general or universal right of indigenous peoples. Its potential lies in pursu-

ing each particular case of indigenous rights-claims locally: within the nation state.

This alternative to legal internationalist indigenism is an “indigenous rights state”:

a metaphorical state of self-selected activists who advocate for indigenous internal

self-determination within the corresponding nation state. Just as every nation state

is significantly different from every other, and just as local goals differ greatly from

community to community, so is every indigenous rights state unique.

To develop my proposal for an “indigenous rights state” as a means of advancing

relevant political interests, I address (1) the political challenges of indeterminacy in

politics, (2) the untenable notion of a general or universal right of indigenous peo-

ples, (3) the social construction of indigeneity as a political act in the nation state,

(4) possibilities for indigenous internal self-determination in the nation state, (5) my

proposal for “indigenous rights states,” (6) and three issues any indigenous rights

state confronts: securing individual rights in the context of group rights; the inherent

tension between group rights and political liberalism; and the fraught relationship

between the idea of an indigenous rights state and the legal, moral, and political

aspiration to normative internationalism (the aspiration of the human rights idea,

for example).

1. The Political Challenges of Indeterminacy

One widespread understanding of indigeneity refers to an abiding distinctiveness: to

objective or immutable or freestanding, abiding, characteristics of a certain kind of

people, “indigenous” people, peoples somehow originary in contrast to other mem-

bers of the same evolved human species who are not “indigenous.” Yet any attempt

to specify a general meaning for this term fails. None of the following questions, for

example, have definite, unequivocal answers capable of consensus among scholarly

observers, let alone among the affected groups:

• Can a group acquire indigeneity or lose it?

• Are there degrees of indigeneity?

99

Ratio Juris, Vol. 33, No. 1 © 2020 University of Bologna and John Wiley & Sons Ltd.

The Indigenous Rights State

• Can indigeneity be extended to groups outside the category (groups not previ-

ously regarded as possessing indigeneity)?

• Is an indigenous population an ethnic minority or is it something else

altogether?

• Is a “first people” indigenous but not an autochthonous group (such as the

Bushmen)?1

• To qualify for the status of an “indigenous” group, must an indigenous group

live together in a particular, delimited territory?2

• Is “indigeneity” some particular type of diversity within a political community

distinct from other types of politically relevant diversity?3

• Is “indigeneity” some kind of biological category?4

• Are “indigenous” peoples necessarily defined by the experience of “settler

colonialism”?

No single definition has been embraced consensually by those who regard them-

selves as indigenous; none has been embraced by scholars of indigeneity.5 The same

holds for nation states: While the Philippines enshrines the notion of indigenous peo-

ples in its state documents, China’s government rejects the term for what it calls

China’s “national minorities.” The governments of Bangladesh, India, Indonesia, and

Myanmar regard all members of their respective populations as “indigenous,” none a

particular kind of group embedded in a larger society. Some peoples in Africa describe

themselves as indigenous in ways incompatible with various of the internationalist

understandings on offer (Nyamnjoh 2007). A coalition of ethnic minorities in Thailand

identifies members’ indigeneity with the rise of the modern Thai state, which in turn

views this coalition of ethnic minorities as illegal migrants (Morton 2017).

If no single trait or feature is necessary to the definition of the term indigenous (and

none is agreed upon), and if traits featured in one understanding are not featured in

others—for example, claims to being the first inhabitants of a territory, or to having

suffered colonization by foreign powers—then the term is indeterminate in meaning.

It is indeterminate for individuals and groups, for those who identify as indigenous

and for those who do not, for nation states as well as for cultures and communities.

The term is usually a claim to difference of some kind, marking off the minority

indigenous communities from the larger, nonindigenous communities in which they

are embedded. Thus no one argues that, as members of a species that evolved in Africa

around 200,000 years ago (and then populated all other continents except Antarctica

between 50,000 and 80,000 years ago), all humans are equally indigenous as a species.

But what that difference might be, and of what magnitude, is always and everywhere a

1 Cf. Nyamnjoh 2007.

2 For example, most self-identified indigenous Australians live in towns and cities rather than

in a particular territorial community (Taylor and Biddle 2008).

3 Nigeria and Canada claim that they each regard internal diversity adequately and that the

addition of indigeneity would be otiose.

4 Consider, for example, the Rehoboth Basters of Namibia, descended from primarily Dutch

men from the Cape Colony and Khoi and other African women; they regard themselves as

indigenous.

5 Absent a universally accepted definition of indigenous peoples, the nation state can always

argue that it can best decide the issue. And in the past, “states would decide who constituted

indigenous ‘people,’ thus ignoring the emphasis on self-definition that had emerged from over

20 years of debate in UN fora” (Oldham and Frank 2008, 7).