From the Theory of Discovery to the Theory of Recognition of Indigenous Rights: Conventional International Law In Search of Homeopathy

From the theory of discovery to the theory
of recognition of indigenous rights
Conventional international law in search of

Natalia Álvarez Molinero

In recent decades, international human rights law has been enriched with different mechanisms and treaties aimed at further protecting human rights, a development that has been seen as a sign of growing international concern and commitment to these ideals. Indeed, it seems that those states that have ratified most of the human rights treaties (regional or universal) offer greater expectations of legal remedies for violations of human rights in their jurisdiction. However, when individuals or collectives claim to be victims of human rights violations and resort to an international mechanism, a complex process begins. In these cases, even when the alleged victim wins a case, it is just the beginning of a long and difficult path towards obtaining the implementation of the international decision at the national level. The result of the process can sometimes be very disappointing and leave the victim in the same or even in a worse situation: a paradoxical process notably illustrated by the claims of indigenous peoples.

The starting point of my argument is that the legalization of human rights is not the only possible approach to human rights violations. By legalization of human rights I understand their exclusive consideration through legal instruments and remedies, as understood by legal positivism. Legal positivism’s failure to regard human rights as a process prevents it from taking into account other elements that are very much related to human rights violations. A legal positivist perspective is concerned with the identification of norms applicable to the case. It does not consider the legal process itself in terms of the agents involved other than state entities; the expectations created by the process; authoritative decisions, claims and counter-claims and any historical debts owed to, or injustices suffered by peoples.

Some omitted elements, particularly remarkable when it comes to the violation of indigenous peoples’ rights, are: the empowerment of peoples; the creation of a public debate in democratic states; the democratization of the structures of the state and the (de)construction of the exclusive assumptions of identity present in the nation-state. From an International Law perspective, these elements can be translated into the question of legal personality in International Law and the relationship between democracy, nation-state and human rights.

The second argument I will focus on is that the dominant legalization of the human rights paradigm results in that the only human rights remedies available are those fitting the nation-state structure. Any solution that might jeopardize the assumption of one nation in one state is rejected. In this respect, legal positivism tries to separate law from morals and politics, although not always successfully. As Hall says from a natural law perspective, ‘States, including both their domestic and international organs, become strategically positioned to cast and recast human rights as an act of malleable will responsive to shifting political objectives’ (Hall 2001:304).

In the case of indigenous peoples, the obsession with preserving the nation-state structure in International Law is especially problematic given that human rights violations are often intimately connected with the identification of one single nation with one state. The values, beliefs, customs and cultural features that (re)create and construct the nation are based on dominant conceptions arising from Western countries and societies. These imposed values are the source of some of the current human rights violations that indigenous peoples suffer in our world today.

This has produced an exigent state-centred international legal system that seeks remedies for human rights violations that legitimize and reinforce the structure of the nation-state. This perturbation has affected every relationship that International Law has formed with different subjects throughout history. In this chapter, I focus on some aspects of the relationship between indigenous peoples and International Law, and the existence of a persistent pattern of remedies that International Law has applied to the claims of indigenous peoples in order to render those claims compatible with the system.

This adaptation is due to the treatment of indigenous peoples’ claims by conventional International Law in which the main patterns of concern were the evident symptoms of incompatibility of indigenous peoples’ claims with International Law itself, especially the ones related to the self-determination, territory and cultural identity of indigenous peoples.

International Law has interpreted indigenous claims as symptoms of a very dangerous illness and as a consequence has tried to suppress them. Suppressing or adapting indigenous claims could mean controlling the symptoms, but not the illness at the root of these symptoms. In this respect, adaptation does not eradicate the previous incompatibility that indigenous claims show with legal positivist interpretations of International Law. The result of following a symptom-based approach in International Law has been that indigenous peoples’ claims are treated either with euro-centric arrogance or with a decadent nostalgic regret about what the Western culture should have done but could not do. This approach ignores the potential remedies and information that can be gleaned by looking at the symptoms themselves. These can reveal not only incompatibilities but also common ground on which to construct new relationships. In this regard, indigenous peoples’ demands are a manifestation of claims for recognition and distributive justice over goods that International Law has assigned exclusively to states. Indeed, these claims are not totally focused on rights, which is the way that International Law has tried to reformulate them. These demands can be interpreted as a desperate attempt to heal and reorganize the whole system of International Law. They represent a demand for an inter-communal, mutual, recognition of different systems of political, cultural, economic and social organization in a fragile, incoherent and unfair world. What follows is an analysis of this relationship in International Law.

The theory of discovery and transfigurative politics

The encounter between Europeans and indigenous peoples implied an enormous challenge for the political and international conceptions of the time, but above all, Europe’s conquest was a ‘legal enterprise’ (Williams 1990:6) with the aim of dominating and subjugating peoples that were considered as external factors to the legal and political system itself.

Some of the ideas that were applied to indigenous peoples were inherited from medieval concepts deployed during the Crusades in which non-Christian peoples could be conquered and their lands confiscated by Christians, by dint of natural law (Williams 1990:6). The justifications developed by fifteenth- and sixteenth-century doctrine were founded on the idea that the New World, once discovered, had to be Christianized and effectively occupied in order to claim a valid title. All these legal justifications and conceptions created to subordinate indigenous peoples to the ongoing political and legal structures constitute what we call the theory of discovery.

The history of the conquest and genocide of indigenous peoples is a recurrent subject in history and law textbooks. It is also a useful introduction to articles on human rights and indigenous peoples, showing as it does the development of the protection of indigenous rights in International Law. However, this history shows how the origins of International Law have shaped its present. Indeed, the assumptions of International Law which created, and continue to (re)create, the encounter and relationship between indigenous peoples and Western culture, are rooted in an inability to look at ‘the other’ through an impartial lens.

But above and beyond these limitations of International Law stands the imperative to subordinate other forms of social and political organization to the nation-state system. It is not by chance then that one of the main characteristics of International Law is its lack of compatibility with other systems not based on the same conceptions of state sovereignty and the territorial and political integrity of nation-states. This incompatibility is the result of both Euro-centrism linked to universalist aspirations, and the perpetuation of an inherently rigid stated-centred structure. The operation of this is characterized by the presumption in International Law that what is good for the nation-state is good for all.

The Cayuga Indian Arbitration Claim is a good example of this dynamic. The Cayuga tribe resided in an area of land alongside Cayuga Lake in central New York State. At the time of the American Revolution, the Cayugas took the side of Great Britain and their territory was invaded by American forces. As a result, many moved to Buffalo, New York and, by 1790, the majority of the tribe had resettled in Canada. In 1789, the State of New York entered into a treaty with the Cayugas who remained at Cayuga Lake to recognize their territory and pay them compensation. However, from 1811, the whole sum of money paid under the treaty was paid to the Cayugas in the United States, and none to the Cayugas in Canada. This situation ended in a claim brought by Great Britain on behalf of Cayuga Indians in Canada against the United States. This claim was based on certain treaties signed between the State of New York and the Cayuga Nation in 1795, 1879 and 1890 and the Treaty of 1814 between the United States and Great Britain known as the Treaty of Ghent. The Arbitration Award said:

(Cayuga Indians, Great Britain v. United States 1926)

The argument behind this paragraph is, at the very least, challenging. The Cayuga tribe, it is said, is not a legal subject under International Law, but in some cases can be considered as a ‘state’ (in a certain domestic sense and for certain municipal purposes). In this regard, if the tribe exists as a legally recognized entity it is only as subject to New York law. This confusing argument is the result of two incompatible desires: legal positivism and nation-state building. The United States of America, as a nation-state, needed Indian lands and Indian sovereignty to establish a legitimate authority over the territory, but it also needed a coherent, objective and complete theory to justify territorial and political dispossession of indigenous lands. In fact, in the case of the United States and Canada, indigenous peoples possess a prior sovereignty and they were the first people to exercise it over the territory where they live or where they have lived (Macklem 1993:1333).

Land and sovereignty had previously been negotiated between the Crown and the Indians. Both negotiated because they had the capacity to do so, so to speak: the control over the territory, the authority and the legitimacy. Indeed, Macklem maintains that the relationship between aboriginal peoples and the Canadian State was a unique constitutional relationship (Macklem 2001:5). In this respect, and from policy-oriented theories, indigenous peoples could be considered as recognized entities in International Law. Under this approach, International Law combines authority (community expectations about how decisions should be made and who should make them) and control (decisions that imply effective sanctions).

In this sense, however, there are many other actors in International Law than the states that create a ‘global process of authoritative decision making’ (McDougal and Reisman 1983). Indeed, for this theory indigenous peoples can be considered as agents in the sense that they exercised an authority and control over their communities and the lands they occupied. As Higgins says:

(Higgins 1994:9)

However, once the nation-state obtained the land, the control, and legitimacy from the Indians, the tribes then became only units of municipal law, without the power to negotiate or modify previous agreements in which it was recognized that they could emancipate their lands.

We can easily wonder, following this argument, whether subjects of law are a variable category that can be transfigured depending on external factors, instead of an element of law governed by objective criteria, as legal positivism proposes. For a rule-based approach, law has to be identified as norms and as a consequence the law-creating process has to be established by objective criteria (Koskenniemi 1989:163). In this case, legal subjects of law such as indigenous people at the time when they negotiated with the Crown, lost this status by virtue of new legal conditions that were not objectively specified in any stage of the law-creating process. The theory of discovery allowed, then, the inclusion of non-objective criteria in the creation and determination of the law applicable. Indigenous peoples lost their international status not because their legal personality was denied according to objective criteria, but because the theory of discovery legally allowed their subordination and subjection once the Crown had obtained legitimacy over the territory that indigenous peoples occupied.

Still, the most tragic aspect of this argument is that Indian tribes were subjects of International Law only for the purpose of losing their lands and sovereignty, but not for the purpose of negotiating and claiming compensation for the adverse consequences of the breach of these treaties signed between themselves and the Crown. In this regard, the law became the instrument, not only for conquering lands, but also for acquiring the necessary legitimacy to construct states based on solid and homogenous nations, denying competing claims over goods that were exclusively assigned to them.

Unfortunately, from the point of view of conventional International Law, the problem and the symptoms were not eliminated, and that is the reason why the Cayuga Indian claims did not stop there.

For the last 24 years, Cayuga Indians have been bringing land claims before courts in the United States. In 2000, US District Judge McCurn ruled that the Cayuga Indian Nation of New York and the Seneca Cayuga Tribe of Oklahoma had valid claims to approximately 64,000 acres of former reservation land. This decision meant that the State had illegally acquired Cayuga reservation land more than 200 years ago. Both sides appealed and the decision is still pending. In the meantime, in June 2004, a Memorandum of Understanding was signed between New York State and the Cayuga Indian Nation of New York. This agreement says that the State would pay compensation to the Cayuga Indian Nation and would open negotiations for the establishment of a casino on former Cayuga lands. The Cayuga Indians, on their side, would drop their pending land claims.

This case illustrates that although in 1926 Cayuga Indians were considered dependent nations under International Law, and subordinated to the State itself, the conflict did not end at that time. The Cayuga Indians continued fighting for recognition of their land claims, and after a long process, they are now negotiating a new agreement on their land rights with the State.

Noting the persistence of indigenous claims, it seems that conventional International Law has not solved conflicts with indigenous peoples. Almost 80 years after the International Arbitration Award, courts are still facing land claims by the Cayuga Indians. Domination, subordination and denial of international legal personality have not prevented the perpetuation of the conflict. It merely led to its transfer from an international arena to a domestic jurisdiction.