INDIGENOUS PEOPLES’ RIGHT TO SELF-DETERMINATION:

POSSIBLE INTERPRETATIONS OF THE CONCEPT AND ITS’

IMPLEMENTATION

Amjad Nazeer,

October 2010

“Indigenous peoples and individuals are free and equal to all other peoples and individuals and
have the right to be free from any kind of discrimination, in the exercise of their rights, in
particular that based on their indigenous origin or identity”.

(UNDRIP, Article 2)

Abstract:
Probing into the concept, scope and implementation patterns and potential of the indigenous
people’s right to self-determination, is the sole aim of this essay. Significant normative precepts as
enshrined in the international law and the exegeses that surround are analysed here coupled with
the implementation problems and possible solutions. Ultimately, it is states who are obliged to
implement the autonomy indigenous peoples are entitled to, hence, state behaviour and certain
responses are also reflected to understand the situation better. Real life difficulties and obstacles
that indigenous people confront in exercising their right to self-determination also run along. A few
good practices also feature in at the end to prescribe (1)suitable ways to emulate.

Introduction:
Championed by the ILO Convention169 (Article 7,1989), the tribal and indigenous people’s
right to participate and determine their own destiny, was finally acknowledged by the UN
Declaration on the Rights of Indigenous People (UNDRIP: 2007). Indigenous peoples’ right
to self-determination is identical with the common Article 1 of the 1966 Covenants,1 save the
right to secession. No condition or qualifications follow. The right, therefore, does not

1
International Covenant on the Civil and Political Rights and International Covenant on the Economic and
Social Rights (ICCPR & ICESCR: 1966)
constitute any form of sui-generis2. By the virtue of the very right, indigenous peoples are
free to pursue their economic and political development and exercise their sovereignty
through self-governance and autonomous choices. They are free to access, manage,
conserve and dispose of their natural wealth, promote their language, culture, education and
communicate their traditional religion, knowledge and skills to the coming generations. Any
intrusion, displacement, land-alienation, construction or extraction unauthorised by the
indigenous peoples is not only inadmissible by the law rather a violation to their basic rights.
Member states, henceforth, are obliged and responsible to implement these rights within
their constitutional frameworks and territorial integrity (Article 3,4,13,14, UNDDRIP:2007,
ILO,C.169, Article 14-3, Eide, Asbjorn 2007).

Interpreting the Right to self-determination:

It is impossible to interpret self-determination without a precise reference to the colonial

context, where most of the structural and institutional problems that indigenous people are
facing today are rooted in. Oppression, and dispossession of the indigenous people from
their ancestral land, and suppression of their languages, religions, cultures, identity, agency
and sovereignty was the creed of colonial invasion. Ceased not to merely a political control,
the colonial administration surveyed, mapped, divided, fenced, renamed, judicialized and
commoditized the indigenous land they occupied and exploited. So much so removing
children from their families, cultures and habitat was one of the official measures adopted by
the settler states of Australia and Canada to westernise and ‘civilise’ the ‘aborigines’ and
‘bushmen’. Like land, water, forests and other indigenous resources indigenous children too
were appropriated into a state property. National parks, reserves, conservations and the so
called development projects, all resulted in eroding indigenous peoples’ sovereignty and
sources of subsistence, during and after the colonial era (Sissons, Jeffrey 2005: 139-142).

Beyond land and locality much of the sovereignty lies in the ideological and cultural field.
Analogous to ‘orientalism’, as amply demonstrated by Edward Said in famous book
‘Orientalism (1974)’, the discourse of ‘Primitivism’ was also invented by the west profoundly
affecting the indigenous consciousness of the ‘self’ as the subject and as people. Different in
one particular sense ‘Primitivism’ was, nevertheless, heavily loaded with ‘evolutionary’
narratives to legitimize their ‘control’ and subjugation of the local people. It provided their

2
At the time of adopting the declaration, only two States i.e. USA and United Kingdom held reservations
regarding its meaning and implications. They argued that indigenous people’s right to self-determinations
cannot be the same as laid down in the common Article of ICCPR and ICESCR 1966. In their opinion, the said
law implies a sui-generis nature of right (Ahren, Matias. 2008:82-83).
subjects3 with an ‘authoritative discourse’ of their personhood, nature and essential
mentalities, causing a serious difficulty to think otherwise (Ibid.146-147). In most of the
cases it is still a dominant discourse with the post-colonial states in their treatment to the
indigenous people.

In fact, Indigenous peoples’ notion of sovereignty emanates from their relationship with
nature. For instance, Maoris’ symbiotic linkage with land, lineage and legend constitutes the
core of their sovereignty. Maoriness, Awatere insists (as cited in Dominy, M.D. 1990: 250),
intertwines peoples’ affinity to their land and common ancestry with in-depth social and
emotional significance while the capitalist imperialism underpins, objectification, racism and
sexism. In her conception, Maori sovereignty was destroyed by western chronological and
spatial notion of history and commodification of land and time, contrasting Maori’s spiritual
unity with the past, present, life, death, nature and ancestry. It is a colonial and capitalist
illusion, plagued with excessive individualism and private property, which separates ‘man’
from ‘nature’ and in a way appoints him to be the master of nature. To her, Maori sovereignty
can be regained by decolonization and replacement of white male mechanical materialism
with their spiritual and rhythmic connection to nature and their ancestry (Ibid: 250-255).

Beyond international legal provisions, argues Rauna Kuokkanen (2008:127-135), the current
systems of self-determination obscure women’s voices in a struggle for autonomy and
recognition. While the fact is, without taking women’s concerns into account, claims to
indigenous autonomy will never proceed ahead of empty words. Supplementing that flaw,
neo-liberal economy and market-globalization proves adversarial to women’s status within
and indigenous collective self-identification and determination. Hands in glove with modern
states, global capitalist forces are devouring and devastating indigenous people’s resources,
their sacred lands and relationship with the past. Maintaining women’s subordination, she
asserts, any form of indigenous self-determination is bound to reproduce traditional
hierarchical and colonial structures.

On the other hand, there are scholars favouring abrogation of the very terms, ‘sovereignty,
‘self-determination,’ and ‘peoples’ to identify the indigenous people. ‘Self-determination’ must
exclusively remain a state preserve, they propose. Otherwise it will make the matters
ambiguous and unnecessarily infuriate sovereign states and prove counterproductive for the
rights of indigenous people. ‘Cultural integrity’ and ‘preservation,’ instead, better serve the

3
For instance, the disdainful behaviour of the Vice President of Botswana in 1996 about the San aptly reflects
the evolutionary discourse and colonial master’s subjectivity built through: ‘How can you have a stone age
creature continue to exist in the age of computers? They must change or otherwise like the dodo, they will
perish (Qouted by Festus, G. Moga as cited by Jennifer Hays 2000:27, Anguished laments...UFAHAMU, Number
II-III)
meaning and purpose, what most ‘indigenous groups’ are actually striving for (Corn.J.J &
Primeau, H.T.1995: 350-352).

Slightly differently but still weary from the notion, Adam Kuper (2003:390-395), lashes-out on
the notion of ‘idigenism’ and ‘sovereignty, what he believes are based on essentialism of
‘descent’, ‘identity’ and ‘locale,’ which are not only complicated and unempirical to trace
rather encourage forged claims to seek land and other benefits from state. The idea
resonates with the rightwing extremism and is even a kind of ‘neo-racism’ yielding
dangerous political consequences. Either romanticism or opportunism motivates the
indigenous rights campaigners, actually hunting for the resources held by UNOs & INGOs at
present. Number of scholars and experts retaliated on his false and phony perceptions about
indignity and self-determination. He is reminded of turning a blind eye to the historical and
contemporary oppression, dispossession and marginalization that indigenous peoples
suffered from. Movement for their right to self-determination is struggling for equal rights,
justice, reparation and restitution against the past and present injustices inflicted upon them.
It is a struggle to divert unequal relations of power and negotiate difference (Kenrick & Lewis
2004: 5-9, Saugestad.S.2008:170).

Implementing the Right to Self-determination:

There are no standard methods of implementing the right to self-determination. All depends
on the mutual consent and priorities of the indigenous peoples and their respective states to
implement certain rights in certain ways (Stevenhagen, S. 2008: 42-45). The right to self-
determination should preferably be implemented to remove the injustices and violations
meted out to the indigenous people in the past what could be termed as remedial self-
determination (Anaya, J. 2008: 50-57). It might pave the way for a much required
development of the indigenous people.

With the support of an INGO, San’s reclaim of their indigenous land through court (2004-
2006) in Botswana is one example of implementing indigenous people’s right to self-
determination. ‘The applicants, the court recognised in a final verdict, were lawfully in
possession of the land they occupied and.... were deprived of it forcibly without their
consent’. Despite much of the international media attention and its’ possible contribution
towards international customary law, the San are facing horrible consequences today. The
state of Botswana denies their indigenous status - as do most states for their indigenous
people – under threats of other political connotations and emerging demands. Less than 200
‘individuals’ – with their kids and spouses – were only allowed to return to the Central
Kalahari Game Reserve4 (CKGR), an indigenous abode of the Sans for thousands of years.
Another group, evicted from the same place in 2005, was never allowed to return. The
current returnees’ access to water and other vital services is severely constrained.
Recognising one right and that too in a truncated manner, the state of Botswana denies
several other rights to them. Abrogating their entitlements further, stigma, discrimination and
marginalization continue unabated (Saugestad, Sidsel. 2010).

Not very different from other parts of the world, the indigenous people in Australia, Canada
and New-Zealand have lost their natural claim to land. Like children having gone through a
radical transformation in missionary schools, the land went through intensive and extensive
processes of legal, administrative and commercial appropriation. As children, returned to
their parents after a prolonged removal by the settler states, are never the same, land too,
even if returned to 3rd or 4th generation, is never the same. Sovereignty is impossible to be
applied unless the indigenous people share and control their own development planning and
implementation. Repossession, as one possibility of self-determination in New-Zealand and
Australia, generates unsubstantiated, alienated and tenuous reconnection with their land. It
fails to become a natural ownership, as they had had. Compartmentalization of indigenous
land remains a major barrier to the Native’s reclaim. Hundreds of thousands of acres are
already engulfed by the towns like Wellington and New-York. What is left out there to return
(Sissons, Jeffry. 2005: 143-150)?

A largely successful rather emblematic case of indigenous self-determination is the case of

Nordic Sami people, though not without lacunas of its’ own. To begin with, a Nordic group-of-
experts produced a draft Nordic Sami Convention in 2002, declaring them to be a distinct
people authorised to exercise their social, political and economic autonomy as prescribed by
the international law. The Samis are acknowledged both as the indigenous people and
people by all the three countries i.e. Sweden, Norway and Finland they have been living in
since ancient times. The respective governments introduced adequate constitutional
amendments and administrative changes empowering them to determine their own
economic, cultural and educational development (Henrick. B. J. 2008: 7-9, Scheinin, Martin.
2008: 58-62).

Laila Susanne (2008: 65-75), however, still advocates for more constitutional amendments
to empower the Sami further to exercise their external self-determination as well, which
cannot be super-ordinated by the respective states without the Sami consent. Likewise,

4
Central Kalahari Game Reserve is a plain area comprising around 5200 SqKm inhabited by the San People for
thousands of years, declared as a game reserve in 1961, See:
http://en.wikipedia.org/wiki/Central_Kalahari_Game_Reserve).
Fjellheim R.S. (2008: 98-103) points out that despite enormous and audacious
acknowledgement and opportunities provided by the Norwegian government to Sami people,
97% of the economic and 93% of the policy instruments are still formulated and
administrated by the state. 60% of the annual appropriation for Sami objectives is still
expended by the centre not by the Sami parliament, reducing it to an advanced administrator
of the state’s Sami policy. In the field of education, once again, it is the national plans and
curricula adapted by the Norwegian parliament that Sami people and parliament have to
adjust to (Balto, M. & Hirvoenn. V. 2008: 120-125). Fjellheim prescribes a proportionate
model of Sami policy formulation and economic appropriation for a perfect self-
determination.

Conclusion:

By and large, indigenous peoples are not autonomous to exercise their right to self-
determination as inscribed in ‘the declaration’ anywhere in the world. Almost all of the states,
overtly or covertly, limit their autonomy and restrict their access to their land and
conventional resources. Extending them modern facilities remains a low priority for the host
states. Marginalisation, stigma and discrimination also malign their identity and agency to
exercise autonomy. As the states monopolise representation of all peoples within their
jurisdiction, multiple barriers hamper the implementation of their right to self-determination
(Magga, H. 2008: 92-94, Kenrick & Lewis, 2004: 5-8). Powerful states, like India, China and
Russia, simply deny the existence of any indigenous people in their territories for obvious
reasons of any potential demands that might emanate from (Corn. J. J & Primeau, H. T.
1995: 346-347).

Despite enormous difficulties, certain examples of implementing indigenous peoples’ rights

to self-determinations, howsoever compartmentalized and fragmented, can be found in
several states around the world. South African and Cameroon’s adoption of the policy for
indigenous people (2004), Morocco’s lifting of the ban on Amazigh language and culture,
Brundi’s constitutional recognition and Gabon’s development plan for the Indigenous
peoples and their resources are the promising signs so far (Saugestad, Sidsel. 2008: 171).
But an out and out implementation of their right to self-determination, in letter and spirit, is
yet to be seen. Who knows that good times are coming ahead?

*********

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