Incommensurate Indigenous Rights?

Duane Champagne

When Indigenous Peoples claim rights to self-government, land, and cultural autonomy—the primary items in a collection of indigenous rights—are they asking for exceptional benefits or special rights from their surrounding nation state? For most nation-states and international agencies, including the Declaration on the Rights of Indigenous Peoples, indigenous nations must live within the laws and institutions of their host nation states.

The arguments of exceptionalism and special rights are red flags for the view that Indigenous Peoples have citizenship rights as all other citizens within the nation state, but indigenous rights violate the political and legal equality laws and values. Exceptions and special rights are singled out for reversal in court cases and legislation, since they are contrary to the main premise of equal rights for all national citizens. In this view, Indigenous Peoples are entitled to the rights of citizens that all other citizens have, and no more. This is the premise of the Declaration and the practice of most nation states around the world.

Indigenous Peoples, however, do not agree that the label of special rights or exceptional rights should be applied to indigenous rights. Indigenous Peoples in the U.S., Canada, New Zealand, and elsewhere reject an assimilationist version of national citizenship, they do not reject national loyalty or citizenship rights. Indigenous Peoples live outside mainstream society, government, and culture, often by choice, and by cultural and political commitment. As individuals, Indigenous Peoples often resist participation in mainstream culture and institutions, and prefer to establish relations with nation states through collective national or community organizations.


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davidche-weilee's picture
Submitted by davidche-weilee on
Dear Duane, thank you for validly re-justifying the nature of indigenous rights—incommensurability. Once again, you have highlighted the difference between civil rights and indigenous rights. Readers who never read, follow, or truly figure out, Duane’s writings about indigenous rights may misconceive Duane’s intention of writing this article, or carelessly criticize his overconfident argument. But, in fact, holding this kind of attitude may oversimplify Duane’s legitimate stance and indirectly ignore his sound premise that he wrote in his following argument. Are Indigenous Peoples asking for exceptional benefits or special rights from their surrounding nation state when asserting their rights to self-government, land, and cultural autonomy? Before answering this question, we need to recognize that the answer to this question would be basically problematic if wrongly interpreting the use and concept of exceptional benefit and special right. Technically, audience will, or should will, obtain the positive answer based on a legitimate argument after reading throughout his justification in this article. To make audience validly question the application and generalization of exceptionalism/special rights defined by most nation states and the Declaration all over the world to indigenous rights, Duane firstly pointed out the role that exceptionalism or special rights often play within nation states. However, indigenous peoples do not accept, or even resist, the assimilationist ideology behind the national citizenship rights. I would further to argue that they have the valid right to de-stigmatize the brand of freely enjoying the special preferential treatment offered by the dominant governance. I agree with Duane’s point that most indigenous peoples are willing and able to conform to national loyalty or citizenship rights. Here I would further to note that most indigenous nations have a peace-loving character. In other words, they often do not take the initiative to provoke a conflict with other nations unless necessary. There is a lot of available literature and historical evidence to support this point. But, fairly speaking, few nation states do not, seriously and respectfully, pay due attention to comprehend the nature of indigenous rights and their legitimacy. Then, what is the legitimate basis of justifying indigenous rights? The answer is in Duane’s text, noting that “From the indigenous point of view, indigenous cultures, governmental institutions, and territories existed long before the formation of nation states. Most indigenous nations have not voluntarily surrendered their inherent claims to land and self-governments. Indigenous Peoples are usually not parties to the construction of constitutions of nation states, and usually are not citizens by consent. Most Indigenous Peoples are nation state citizens only by the declarations or legislative mandates of a nation state, which individualizes them as citizens and negates their commitments to indigenous nations.” Duane acknowledged that there must be some backlashing coming out when recognizing this sound argument by noting a fact that most nation states and international entities do not, or purposely I would assume, establish agencies to defend and support indigenous rights. Simply criticizing that it is unfair to offer special indigenous rights that share different treatments from non-indigenous nation state citizens is not enough to legitimatize a true social justice. The main reason is that most nation states do not provide relatively due respect and room for indigenous peoples to live within their tribes in their self-sustaining ways that fit their special needs, even these indigenous peoples never think about, or actually, bothering other nation state citizens. Dominant governments only want indigenous peoples to conform to the dominant legal rules, laws, or life ways, but ignore that they should reversely recognize and respect their essential cultural differences. Fairly speaking, non-indigenous nation state citizens should also learn indigenous cultures. Most dominant groups would be more likely to engage mainstream cultures for upward mobility, rather than to engage indigenous cultures for authentically mutual understanding and learning. I agree that there is an institutionally incommensurable system existing between indigenous and non-indigenous governments. But beware of interpreting Duane’s argument. What he means is the incommensurability of the nature and does not imply that there is no bridge (mechanism) that can justly link them together. Although Duane did not dwell on the details of how to establish the transformative mechanisms between two different legal systems, he at least points out a due attitude that we should hold on to always toward that incompatible dilemma in his last paragraph—that is, “Nation states need to recognize, welcome, and support indigenous goals and rights, which should create greater economic, political and cultural understanding and mutual benefits.” Sincerely, Che-Wei Lee

davidche-weilee's picture
Submitted by davidche-weilee on
To respond to Duane’s question in the first paragraph, the answer should be like this: No, indigenous peoples “are not” asking for exceptional benefits or special rights from their host nation states. Rather, indigenous peoples “have to” ask for exceptional and special rights to protect their due survival space based on their earlier existence on their lands before other national invasions, including the rights to territory, land, natural resources, and so forth. But this request is not, and should not be interpreted as, a patronizing move. As well, this is an affirmative action, rather a preferential treatment or benefits. In fact, few indigenous peoples really benefit from the dominant governments.