Handbook of Indigenous Public Policy 1800377002, 9781800377004

Table of contents :
Front Matter
Copyright
Contents
Contributors
Introduction: Indigenous public policy in global context
Part I Indigenous peoples, policy and governance
1. Violence as care: Indigenous policy and settler colonialism
2. Indigeneity, national unity, modernity and public policy in Africa
3. Self-determination, sovereignty and policy: how does a focus on Indigenous rights transform policymaking?
4. Self-determination: at the heart of Indigenous humanisation
5. Nation building and Indigenous institutions
Part II Land and law
6. Contemporary critical legal accounts of the relationship between international law and domestic law and policy
7. Treaty and public policy in the settler colonies
8. Constitutional transformation and public policy for Indigenous Peoples’ rights
9. Indigenous land and water policy
10. On gendered ground: land and colonialism
11. Indigenous political economy and public policy
Part III Domestic policy
12. Public policy and Indigenous Peoples’ right to health in Brazil and Mali
13. Kichwa Amazonian life routes in education: foregrounding the ‘inter’ in intercultural educational policy
14. Indigenous food sovereignty: embodying Nuu-chah-nulth principles of ʔuʔaałuk (to take care of), ʔiisaak (to be respectful) and hišukʔiš c̓awaak (everything is interconnected) in policy and practice
15. Indigenous language rights, frameworks and policies
16. Indigenous Peoples in the justice system
Part IV Legacies of the past, possibilities for the future
17. Indigenous rights and reconciliation: lessons from Australia
18. Truth commissions and truth-telling
19. Indigenous resurgence
20. Quest for equality: redefining Indigenous–state relationships
Index

Citation preview

HANDBOOK OF INDIGENOUS PUBLIC POLICY

HANDBOOKS OF RESEARCH ON PUBLIC POLICY Series Editor: Frank Fischer, Rutgers University, New Jersey, USA The objective of this series is to publish Handbooks that offer comprehensive overviews of the very latest research within the key areas in the field of public policy. Under the guidance of the Series Editor, Frank Fischer, the aim is to produce prestigious high-quality works of lasting significance. Each Handbook will consist of original, peer-reviewed contributions by leading authorities, selected by an editor who is a recognised leader in the field. The emphasis is on the most important concepts and research as well as expanding debate and indicating the likely research agenda for the future. The Handbooks will aim to give a comprehensive overview of the debates and research positions in each key area of focus. For a full list of Edward Elgar published titles, including the titles in this series, visit our website at www​.e​-elgar​.com

Handbook of Indigenous Public Policy Edited by

Sheryl Lightfoot Professor of Political Science, Department of Political Science and School of Public Policy and Global Affairs, University of British Columbia, Canada

Sarah Maddison Director of the Australian Centre and Professor of Politics, University of Melbourne, Australia

HANDBOOKS OF RESEARCH ON PUBLIC POLICY

Cheltenham, UK • Northampton, MA, USA

© Sheryl Lightfoot and Sarah Maddison 2024

All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical or photocopying, recording, or otherwise without the prior permission of the publisher. Published by Edward Elgar Publishing Limited The Lypiatts 15 Lansdown Road Cheltenham Glos GL50 2JA UK Edward Elgar Publishing, Inc. William Pratt House 9 Dewey Court Northampton Massachusetts 01060 USA A catalogue record for this book is available from the British Library Library of Congress Control Number: 2023951216

This book is available electronically in the Political Science and Public Policy subject collection http://dx.doi.org/10.4337/9781800377011

ISBN 978 1 80037 700 4 (cased) ISBN 978 1 80037 701 1 (eBook)

EEP BoX

Contents

List of contributorsvii Introduction: Indigenous public policy in global context Sheryl Lightfoot and Sarah Maddison PART I

1

INDIGENOUS PEOPLES, POLICY AND GOVERNANCE

1

Violence as care: Indigenous policy and settler colonialism Elizabeth Strakosch

18

2

Indigeneity, national unity, modernity and public policy in Africa Elifuraha Laltaika

35

3

Self-determination, sovereignty and policy: how does a focus on Indigenous rights transform policymaking? Rauna Kuokkanen

4

Self-determination: at the heart of Indigenous humanisation Aküm Longchari

70

5

Nation building and Indigenous institutions Raymond Foxworth and Moroni Benally

98

PART II

53

LAND AND LAW

6

Contemporary critical legal accounts of the relationship between international law and domestic law and policy Claire Charters, Fleur Te Aho and Tracey Whare

7

Treaty and public policy in the settler colonies Anya Thomas and Sarah Maddison

8

Constitutional transformation and public policy for Indigenous Peoples’ rights Mukta S. Tamang

9

Indigenous land and water policy Justin McCaul

v

121 138

157 177

vi  Handbook of Indigenous public policy

10

On gendered ground: land and colonialism Isabel Altamirano-Jiménez

198

11

Indigenous political economy and public policy Frances Abele

214

PART III DOMESTIC POLICY 12

Public policy and Indigenous Peoples’ right to health in Brazil and Mali Mariam Wallet Med Aboubakrine

227

13

Kichwa Amazonian life routes in education: foregrounding the ‘inter’ in intercultural educational policy Gioconda Coello and Diana Chávez Vargas

242

14

Indigenous food sovereignty: embodying Nuu-chah-nulth principles of ʔuʔaałuk (to take care of), ʔiisaak (to be respectful) and hišukʔiš c̓awaak (everything is interconnected) in policy and practice Charlotte Coté

253

15

Indigenous language rights, frameworks and policies Candace Kaleimamoowahinekapu Galla and Amanda Holmes

272

16

Indigenous Peoples in the justice system Valmaine Toki

293

PART IV LEGACIES OF THE PAST, POSSIBILITIES FOR THE FUTURE 17

Indigenous rights and reconciliation: lessons from Australia Samara Hand and Damien Short

308

18

Truth commissions and truth-telling David B. MacDonald and Joanne Garcia-Moores

332

19

Indigenous resurgence Adam J. Barker and Emma Battell Lowman

351

20

Quest for equality: redefining Indigenous–state relationships Dalee Sambo Dorough

372

Index399

Contributors

Frances Abele is Distinguished Research Professor and Chancellor’s Professor Emerita at the School of Public Policy and Administration, Carleton University in Ottawa, Canada. She is also Co-Director of the Rebuilding First Nations Governance Project. Isabel Altamirano-Jiménez is Professor of Political Science and Canada Research Chair in Comparative Indigenous Feminist Studies. Her research program interrogates how different modalities of natural resource extraction are operationalised and embodied by Indigenous communities in Canada and Mexico. Adam J. Barker is a human geographer (PhD, University of Leicester, UK, 2013) specialising in settler colonialism, social change and decolonial activism. He is a settler Canadian originally from the overlapping territories of the Haudenosaunee Confederacy and Anishinaabe Nations of what is currently called southern Ontario. Adam currently resides in Leicester with his partner and co-author, Dr Emma Battell Lowman. Emma Battell Lowman is a historian and sociologist (PhD, Warwick University, UK, 2014) specialising in the settlement of the Pacific Northwest, the role of Christianity and missionisation in settler colonisation, and critical methodological approaches to the past, identity and knowledge production. She is a settler Canadian originally from overlapping territories of the Haudenosaunee Confederacy and Anishinaabe nations of what is currently called southern Ontario. Emma is the co-author (with Adam Barker) of Settler: Colonialism and Identity in 21st Century Canada (Fernwood Press, 2015). Moroni Benally is a PhD candidate in the Evans School of Public Policy at the University of Washington, Seattle, Washington, USA, where his research is focused on developing a Diné Policy Framework. He has worked in several capacities managing Tribal policy agendas. He currently serves as the Government Affairs Representative of the Navajo Nation to Utah. He also works in developing the Navajo workforce for high-tech reservation jobs and serves as the chair of the development committee in his local reservation community. He has a Bachelor’s degree from Stanford University, a Master of Public Policy from Brigham Young University, and a Master of Science in Public Policy and Management from the University of Washington. Claire Charters (Ngati Whakaue, Tuwharetoa, Nga Puhi and Tainui) is Professor of Law at the University of Auckland, New Zealand. Her research is in Indigenous peoples’ rights in international and constitutional law, often with a comparative focus, vii

viii  Handbook of Indigenous public policy

including the UN Declaration on the Rights of Indigenous Peoples; tikanga Māori and the state legal system; the relationship between human rights and Indigenous peoples’ rights; and the legitimacy of Indigenous peoples’ rights under international law. From 2010 to 2013, Professor Charters worked for the UN’s Office of the High Commissioner for Human Rights in the Indigenous Peoples and Minorities Section, focusing on the Expert Mechanism on the Rights of Indigenous Peoples. She was a trustee on the UN Voluntary Fund for Indigenous Peoples (2014–2020) and an advisor to the President of the UN General Assembly (2016–2017). Diana Chávez Vargas is an Indigenous planner from the Ecuadorian Amazon, specializing in territorial planning, informal settlements, education, and placeknowing. Holding an MA in Regional and Community Planning with a focus on Indigenous planning from the University of New Mexico in USA. Diana combines her academic expertise with a deep commitment to advocating for Indigenous rights and sustainable development. She is a member of the Pastaza Kichwa Nation Council and actively contributes to the creation of management and governance frameworks for Indigenous nations in the Amazon region. She has been a speaker at various forums, a Tinker Foundation Fellow, and a collaborator with the Indigenous Design and Planning Institute at UNM. Gioconda Coello is an Andean Ch’ixi woman who lives and works in Guayaquil, Ecuador. Her work is committed to transform educational spaces, broadly understood, by thinking and futuring learning with Afrodescendant and Indigenous philosophies and educators. Coello has a PhD in Curriculum and Instruction from University of Wisconsin-Madison, USA. She is a lecturer/researcher in the Area of Intercultural Arts Education at the Universidad de las Artes in Ecuador. Charlotte Coté (Tseshaht/Nuu-chah-nuth Nation) is Professor in American Indian Studies at the University of Washington in Seattle, Washington, USA. Dr. Coté is the author of A Drum in one Hand, A Sockeye in the Other: Stories of Indigenous Food Sovereignty from the Northwest Coast (UW Press, 2022) and Spirits of Our Whaling Ancestors: Revitalizing Makah and Nuu-chah-nulth Traditions (UW Press, 2010) as well as numerous articles. She serves as Series Editor for UW Press’ Indigenous Confluences series and is the founder of UW’s annual ‘Living Breath of wǝɫǝbʔaltxʷ’ Indigenous Foods Symposium. Raymond Foxworth (Navajo Nation) is research associate at the Institute of Behavioral Studies at the University of Colorado, Boulder, USA. Raymond previously served as Vice President of First Nations Development Institute and Visiting Scholar at the University of New Mexico. He holds a PhD in Political Science from the University of Colorado at Boulder, USA Candace Kaleimamoowahinekapu Galla (Kanaka Hawaiʻi) is Associate Professor in the department of Language and Literacy Education and the Institute for Critical Indigenous Studies at the University of British Columbia (UBC), Canada. Her

Contributors  ix

scholarly work has sought to emphasise and contribute to Hawaiian language and Indigenous languages at the intersection of education, revitalisation, digital technology, and cultural practices and decolonising and Indigenising the academy to create pathways for Indigenous thinkers and scholars. Prior to joining UBC, she served as the Program Coordinator of the American Indian Language Development Institute at the University of Arizona, USA, and taught as a Visiting Assistant Professor in Ka Haka ʻUla O Keʻelikōlani College of Hawaiian Language at the University of Hawaiʻi in Hilo. Joanne Garcia-Moores (she/her) is a PhD candidate in the Department of Political Science at the University of Guelph, Ontario, Canada. She is also the Indigenization, Equity, Diversity and Inclusion (IEDI) Advisor in the Research Services Office. Her research in Indigenous rights and public policy compares COVID-19 vaccination policies in Canada and Aotearoa New Zealand to assess government implementation of the right to participate in decision-making and the right to health as set out in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). Samara Hand is a Worimi/Biripi woman, born on Awabakal country. She is currently completing her PhD at the University of New South Wales, Australia, a comparative analysis between Australia and Canada on the role that education has played in settler colonial genocides and the opportunities and limitations of human rights and transitional justice in supporting Indigenous Peoples to realise the empowering aims of education. Samara is also a co-founder of the National Indigenous Youth Education Coalition, an Indigenous-led organisation that backs the voices of First Nations young people in education. Amanda Holmes (she/her) is Kanien’keha:ka (Mohawk) on her mother’s side, Highland Scottish on her father’s side. She grew up in the Hudson River Valley of New York. She has had her Clan returned to her – she is Turtle Clan. Her community is Kanatsiohareke Mohawk Community. She earned her Doctorate in Indigenous language revitalisation, education and decolonising methodologies in the Department of Language, Reading and Culture in the College of Education at the University of Arizona, USA. Her work focuses on Indigenous cultural and language renewal and resurgence by re-centring intergenerational knowledge relations and focusing on Elder praxis to support Indigenous community self-determination and self-development. Rauna Kuokkanen (Sámi) is Research Professor of Arctic Indigenous Studies at the University of Lapland, Finland, and Adjunct Professor of political science at the University of Toronto. Her most recent, triply awarded book is titled Restructuring Relations: Indigenous Self-Determination, Governance and Gender (Oxford University Press, 2019), an Indigenous feminist investigation of the theory and practice of Indigenous self-determination, governance and gender regimes in Indigenous political institutions. Dr. Kuokkanen’s current research focuses on com-

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parative Indigenous politics, Indigenous feminist theory, governance, law and Nordic settler colonialism. Elifuraha Laltaika is Senior Law Lecturer at Tumaini University Makumira, Arusha–Tanzania. He holds a Doctorate from the University of Arizona, USA, and served as Harvard Law School Visiting Researcher. Between 2017 and 2019 he was a member of the UN Permanent Forum on Indigenous Issues. Currently he is a board member of the International Work Group on Indigenous Affairs (IWGIA), and Iso Lomso Fellow at Stellenbosch Institute of Advanced Study in South Africa. Sheryl Lightfoot (Anishinaabe) is Professor of Political Science in the Department of Political Science and the School of Public Policy and Global Affairs at the University of British Columbia, Canada. Her research focuses on global Indigenous politics, rights, and their implementation in global, national and regional contexts. Aküm Longchari (PhD) work focuses on conflict transformation, peacebuilding, nonviolence, self-determination, decolonisation and human rights. Since 1994, Aküm has been involved in grassroots peoples’ movements and currently volunteers with the Forum for Naga Reconciliation. He is co-founder and publisher of The Morung Express (2005), an independent English-language newspaper in Nagaland. David B. MacDonald is a mixed-race political science professor from Treaty 4 lands in Regina, Saskatchewan, Canada, with Trinidad Indian and Scottish ancestry. He is a full professor and in 2017 was appointed as the Research Leadership Chair for the College of Social and Applied Human Sciences. He is also the North American series editor for Global Political Sociology at Palgrave Macmillan. His work focuses on Comparative Indigenous Politics in Canada, Aotearoa New Zealand and the United States. He has also worked extensively in the areas of International Relations, American foreign policy, Holocaust and genocide studies and critical race theory. Sarah Maddison is Director of the Australian Centre and Professor of Politics at the University of Melbourne, Australia. She has published widely in the fields of reconciliation and intercultural relations, settler colonialism, Indigenous politics, gender politics, social movements and democracy. In 2021, Sarah won the Australian Political Studies Association Award for Academic Leadership in Political Science. Justin McCaul is a descendent of the Mbarbarum Traditional Owners of far north Queensland, Australia. He joined ANU College of Law as a research associate/PhD candidate in February 2019. He has worked in Indigenous policy and advocacy for more than twenty years, working with two Australian conservation organisations supporting Aboriginal-led environmental and cultural heritage projects across Cape York Peninsula, Arnhem Land and the Kimberley. He has worked in rural development and biodiversity conservation with Indigenous groups in northeast Cambodia; he was the National Manager of Oxfam Australia’s Aboriginal and Torres Strait Islander Peoples Program; and he was a researcher at the National Native Title Council, looking at the challenges Aboriginal organisations faced when utilising

Contributors  xi

their native title rights for economic development. His present research interests are in native title, deliberative democracy, and Indigenous rights and nationhood. Dalee Sambo Dorough (Inuit-Alaska) earned a PhD in Law from University of British Columbia, Canada, and a Master of Arts in Law & Diplomacy, The Fletcher School, Tufts University. She is former Chairperson of the Inuit Circumpolar Council (2018–2022) and presently Senior Scholar and Special Advisor on Arctic Indigenous Peoples, University of Alaska Anchorage, where she was Assistant Professor of International Relations. She has served as Chairperson (2014) and Expert Member of the UN Permanent Forum on Indigenous Issues (2010–2016) and Co-Chair of the International Law Association (ILA) Committee on Implementation of the Rights of Indigenous Peoples and has published contributions in the field of Indigenous human rights as well as Arctic Indigenous Peoples. In 2023, her nomination to the UN Expert Mechanism on the Rights of Indigenous Peoples was confirmed by the Human Rights Council. Damien Short is Professor of Human Rights and Environmental Justice at the School of Advanced Study, University of London, UK. He is also Co-Director of the School’s Human Rights Consortium and Editor-in-Chief of The International Journal of Human Rights. Elizabeth Strakosch Elizabeth Strakosch is a white settler scholar at the University of Melbourne, whose research focuses on how processes and institutions of public policy relate to political relationships in the context of colonialism, racism and structural violence. She is co-director of the Institute for Collaborative Race Research, which works outside the academy to put research to work for antiracist struggle. Mukta S. Tamang is an anthropologist and teaches at Tribhuvan University, Nepal. His areas of research include Indigenous Peoples, history and identity, participatory approaches, human rights, resilience and social inclusion. He received his PhD from Cornell University, Ithaca, New York, USA, and has been a visiting fellow at Jawaharlal Nehru University in New Delhi, India, and Goldsmiths College at the University of London, UK. He also worked as a research fellow at the New School for Social Research in New York. Fleur Te Aho (Ngāti Mutunga) is Senior Lecturer at the University of Auckland’s Faculty of Law, New Zealand. Fleur researches and teaches on Indigenous Peoples and the law and criminal law. She has a special interest in understanding how international law norms regarding Indigenous Peoples influence domestic law and policy and Māori and criminal justice. Anya Thomas is a PhD candidate in the School of Social and Political Science at the University of Melbourne, Australia. Her research areas are Indigenous resurgence, self-determination and Indigenous–state relations in Southeast Asia, where she is currently working on Indigenous land rights. Anya has previously worked in treaty

xii  Handbook of Indigenous public policy

negotiations in British Columbia, Canada and in the developing treaty process in Victoria, Australia. Valmaine Toki (Ngati Rehua and Ngapuhi) is Professor in Law at Te Piringa, University of Waikato, New Zealand. Professor Toki holds a BA LLB(Hons), MBA, LLM and PhD and is the first Māori and New Zealander appointed by the President of the UN Human Rights Council to the UN Expert Mechanism on the Rights of Indigenous Peoples. This appointment builds on her previous role as member of the UN Permanent Forum on Indigenous Issues, where she served two three-year terms. Mariam Wallet Med Aboubakrine is a Tuareg from Timbuktu in Mali. She received traditional Tuareg education and has a multidisciplinary background in medical, humanitarian and education sciences. For over twenty years, she has advocated for Indigenous Peoples’ rights. As former chair of the United Nations’ Permanent Forum on Indigenous Peoples, she built strong connections with Indigenous Peoples, member states, United Nation’s academics and other partners. She is currently a co-principal investigator of the Ărramăt ⴰⵔⵔⴰⵎⴰⵜ Biodiversity Conservation and the Health and Well-being of Indigenous Peoples and Adjunct Professor in the Faculty of Law at the University of Ottawa, Canada. Tracey Whare (Raukawa and Te Whānau-ā-Apanui) is a pouako (lecturer) at Waipapa Taumata Rau (University of Auckland), New Zealand, where they teach Law and Society, Tiriti issues, Indigenous Peoples’ rights and international law. Her research relates to Māori legal issues and Indigenous Peoples’ rights, with an interest in the reinvigoration and practice of tikanga Māori (Māori legal systems). Tracey works with Māori communities to strengthen and foster their rights and legal systems and, over the last twenty years, has regularly engaged in advocacy at the UN on Indigenous Peoples’ rights.

Introduction: Indigenous public policy in global context Sheryl Lightfoot and Sarah Maddison

PUBLIC POLICY AS POLITICAL ENCOUNTER The United Nations Declaration on the Rights of Indigenous Peoples was adopted by the United Nations General Assembly in 2007, and by early 2021 the General Assembly had reaffirmed it ten times as the global consensus on Indigenous human rights standards. While the UN Declaration clearly outlines, in 46 articles, how governments can and must respect Indigenous human rights, governments around the world are still struggling with how to respect and implement the human rights of Indigenous Peoples in policy and practice. As of this writing, ongoing conflicts over oil pipelines in Canada and the US, oil drilling in the Amazon, forest rights in India, coal mines and fracking in Australia, and reindeer culling in Norway all demonstrate the threats to Indigenous lands and livelihoods when Indigenous human rights are not properly respected in public policy decisions. Governments rarely question the legitimacy of their jurisdiction over Indigenous Peoples and, for the most part, continue their tendency to exercise colonial models of authority by treating Indigenous Peoples as mere subjects of domestic policy rather than as rights-bearing members of sovereign Indigenous Nations. All too often, government policymaking remains paternalistic in approach rather than working in partnership with Indigenous Peoples; assimilationist rather than recognising distinctive nationhood; universalist rather than appropriate to context; and reactive rather than creative. These dynamics persist despite extensive evidence from around the globe showing that policy developed by government and imposed on Indigenous people at best produces little benefit and at worst does considerable harm. As a result of these political dynamics, public policy globally remains a charged and complex domain of engagement between Indigenous Peoples and settler- or post-colonial states. Policy, therefore, is a critically important site of political encounter and engagement between Indigenous Peoples and the state (Strakosch, 2015, p. 2). In much of the world, the Indigenous policy domain has been marked by turmoil and change, and by contest and resistance. Settler colonial states were founded, to varying degrees, through the principles of the Doctrine of Discovery, a legal doctrine that emerged out of a set of Papal Bulls in the late 15th and early 16th centuries, which guided colonial practice and state making throughout the colonial period, based in principles of discovery and conquest. As Newcomb explains, the 1

2  Handbook of Indigenous public policy

Doctrine of Discovery contained an underlying assumption that ‘Europeans were higher … in intelligence than the Indians, and also suggest[ed] that the Europeans … possessed a higher position of power in relation to the lands … and the Indigenous peoples living there’ (Newcomb, 2008, p. ix). This meant, in practice, that the European ‘discoverers’ of lands presumed they held sovereignty over discovered lands and peoples who had already been living on those lands and governing themselves for centuries, or even millennia (Deloria, 1974[1985], p. 17). Colonising countries also typically presumed that Indigenous Peoples were uncivilised and childlike and therefore needed help to adapt and assimilate into Western society. In March 2023, the Vatican issued a statement formally ‘repudiating’ the more than five-hundred-year-old Doctrine of Discovery, maintaining that it had no place in Church teachings. In that statement, the Vatican claimed that it plays no role in contemporary legal and policy matters within settler colonial states and left resolution of the legacy effects of the Doctrine squarely on the shoulders of the settler states that originally used it to justify domination of Indigenous Peoples. In many parts of the world these colonial mindsets remain firmly in place, even unconsciously, and underlie much contemporary domestic policy making vis-à-vis Indigenous Peoples. Through policy, settler- and post-colonial states seek to know and to govern Indigenous lives, directing disproportionate energy, effort and resources towards Indigenous affairs administration despite the fact that Indigenous Peoples tend to be statistically small groups in their societies (Wolfe, 2016, pp. 37–38; Maddison, 2019, p. 229). Although Indigenous Peoples have refused to be eliminated, as the settler logic of elimination articulated by Patrick Wolfe (2006) would clearly prefer, in many ways and in many places the state ‘already has what it needs’ from Indigenous People and so ‘can afford the extravagances of its hit-and-miss social policies.’ The result is that Indigenous people may find themselves ‘supported, abandoned, sacrificed, and enabled’ as the state sees fit (Lea, 2020, p. 22). State efforts to construct and implement policy about/over Indigenous Peoples are not neutral or benign. Instead, by operating through the familiarity of state bureaucracy, colonial authority over Indigenous lives becomes naturalised (Strakosch, 2015, pp. 9, 51). Much contemporary public policy in the Indigenous domain is centred on the governance of Indigenous ‘disadvantage’. Through paternalistic policy regimes, Indigenous Peoples are ‘invented, constituted and assimilated into the neo-liberal body politic’, reduced to merely a socio-economically disadvantaged group without reference to history, context, location or the present-day effects of colonisation, racism and discrimination. This is a complex and powerful racial project in which neoliberal states justify their interventions in Indigenous lives and their reconfiguration of Indigenous politics (Howard-Wagner, 2018, p. 1334). In fact, the neoliberal state deploys policy as a means of producing particular types of Indigenous citizen; those who are economically productive and actively participating in mainstream society and economic life (Howard-Wagner, 2018, p. 1340). Much public policy is directed specifically towards those ends, which essentially amounts to another form of assimilation and elimination. States have attempted to legally confine and

Introduction  3

constrain Indigenous Nations so that they must conduct their external relations ‘only with and through state institutions’ (Lightfoot & MacDonald, 2017, p. 25). For the most part, however, the Indigenous public policy domain remains unproblematised by mainstream political scientists and policy scholars and the legitimacy of state jurisdiction over Indigenous Peoples is rarely questioned (at least by non-Indigenous People). This neglect rests on a number of problematic assumptions, for example, Indigenous peoples are understood as unimportant minorities within liberal multicultural polities; Indigenous peoples’ experiences are positioned as marginal to the functioning of mainstream politics; mainstream politics itself is understood in neutral liberal terms rather than as colonial and as still colonising; Indigenous political participation is seen as desirable but not essential, and only on settler terms; Indigenous political systems are rendered invisible and/or insignificant; the authority of settler political institutions in Indigenous lives is seen as appropriate and unproblematic rather than as a colonising practice that fails to acknowledge Indigenous sovereignties. (Nakata & Maddison, 2019, p. 418)

Liberal recognition, and the policy domain it structures, bolster ‘the objective reality of colonial domination’ while simultaneously undermining Indigenous (and other) efforts to oppose it (Elliott, 2018, p. 67). Indeed, in various forms around the globe, colonialism is not an historical remnant but an ongoing process, ‘foundational to the international system of states built on stolen Indigenous lands’ (Picq, 2017, p. 1). Settler state governments claim ‘absolute political sovereignty over Indigenous lands, institutions, and peoples’ even as these claims are contested and resisted by Indigenous Peoples (Lightfoot & MacDonald, 2017, p. 25). Indeed, Indigenous Peoples around the globe continue to resist colonial domination, including through the articulation and ongoing assertion of their social, political and cultural rights to self-determination. As noted above, the UN Declaration on the Rights of Indigenous Peoples (‘the UN Declaration’ or UNDRIP) sets out the guiding framework for Indigenous–state relationships. The UN Declaration was the culmination of decades of collective work by Indigenous advocates and UN Member States within and beyond the UN. Despite its global standing, however, the concrete implementation of the human rights affirmed in the UN Declaration remains elusive. Implementation of these rights, within and between states, is a challenging and transformative process that requires a deep and broad restructuring of both settler-colonial and post-colonial governance and policy. While the implementation of Indigenous Peoples’ human rights is now a global imperative, governments and civil society everywhere are struggling with the vexing question of how such implementation could be realised in policy and practice. The Indigenous public policy domain, then, is rife with conflict and contestation. As the chapters in this volume outline, Indigenous public policy reaches into every aspect of Indigenous life and is shaped by both state assertions of sovereignty and Indigenous assertions of sovereignty and self-determination; and in almost all cases, no reconciliation of these co-existing sovereignties has occurred. Indigenous policymaking and practice remain deeply paternalistic and racialised.

4  Handbook of Indigenous public policy

PUBLIC POLICY AND INDIGENOUS SELF-DETERMINATION The language of self-determination, which derives from international law and forms the core of the UN Declaration, has become the central frame through which Indigenous Peoples around the globe articulate their policy demands on colonising states. Sámi scholar Rauna Kuokkanen (2019, p. 23) theorises self-determination as ‘a foundational value that seeks to restructure all relations of domination.’ It is a concept that, deployed in both domestic and international domains, can ‘produce different forms of politics and political claim-making’ (Nakata, 2020, p. 338). In Western law and politics, the principle of self-determination ‘relates the sovereignty of individual selves to the political legitimacy of state power’, evident in pivotal declarations of rights including the American Declaration of Independence (1776) and the French Declaration of the Rights of Man and Citizen (1791), in which ‘the consent of the governed underpinned the political legitimacy of the sovereign’ (Nakata, 2020, p. 337). Self-determination, in various forms, was also recognised in historical treaties between Indigenous Peoples and states, from the 1840 Treaty of Waitangi in New Zealand to the pre-confederation and numbered treaties in Canada to the hundreds of treaties made with tribes across the territory of what is now the United States. Self-determination developed as a fundamental principle in international law during the first half of the 20th century, and was clearly articulated in the UN Charter (1945) and the Universal Declaration on Human Rights (1948) as well as the Declaration on the Granting of Independence to Colonial Countries and Peoples (1960). Self-determination was eventually codified, in a legally binding way, in the International Covenant on Civic and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICERC) in 1966, both of which have been signed and ratified by nearly every country on Earth. The first article of both these treaties states, ‘All peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.’ Unfortunately, the term ‘peoples’ was left undefined, and such rights were not immediately considered relevant to Indigenous Peoples, however, and during the decolonisation era Indigenous minorities in settler colonies were not seen as beneficiaries of the newly encoded right to self-determination (Nakata, 2020, p. 339). In fact, Indigenous Peoples were deliberately excluded from the UN’s decolonisation project in the late 20th century when discussion arose about what ‘peoples’ hold the inherent right to self-determination and thus, the eligibility for decolonisation. While Belgium argued that all Indigenous Peoples, including those in settler-colonial states such as Australia, Canada, New Zealand and the United States, should be considered ‘peoples’ holding an equal right to self-determination as all other peoples, their argument was challenged by both the United States and the Soviet Union, who argued that such internal groups were actually Indigenous ‘populations’ rather than ‘peoples’; and therefore, they should be ineligible for decolonisation. While the United States and the Soviet Union rarely

Introduction  5

agreed on anything at the height of the Cold War, this was a firm point of agreement, with both countries fearful that a broad recognition of the right to self-determination had the potential to break up their large, multi-ethnic state structures. As a result, the ‘salt water’ thesis of decolonisation prevailed, meaning that only peoples located over ‘salt water’ from the colonising country held the right to self-determination and eligibility for decolonisation, leaving most Indigenous Peoples of the world ineligible and with a second-class right to self-determination (Anaya, 1996, pp. 9–13). Indigenous Peoples were thus left as the ‘unfinished business of decolonization’ (Henderson, 2008, p. 34). Nevertheless, the language of self-determination was quickly taken up by Indigenous actors. In the same year that the ICCPR and ICERC were adopted by the UN, the National Congress of American Indians (in their response to the planned continuation of Indian termination policy in the United States) argued for greater control of Native American policymaking based on the trust relationship with the federal government encoded in historical treaty provisions (Kuokkanen, 2019, p. 13). Similarly, in Canada, George Manuel wrote in 1974, There will be no significant change in the condition of unilateral dependence that has characterized our history through the past century or more until Indian people are allowed to develop our own forms of responsible government. The route to be followed to the Fourth World will be as diverse and varied as are the Indian tribes. (Manuel and Posluns, 1974 [2019], p. 217)

By the 1970s, Indigenous advocates around the world had taken up the ‘linked ideas’ of peoplehood and self-determination as a language for framing their political struggles (Nakata, 2020, p. 339). Indigenous activists and advocates noted that the international community was, on the one hand, opposing racial discrimination, codified in the form of the International Convention on the Elimination of All Forms of Racial Discrimination (1965), while at the same time it was excluding Indigenous Peoples from a full right to self-determination and decolonisation, and advocates began voicing the need to reconcile this problematic dichotomy (Lightfoot, 2016, p. 35). The new language of self-determination had particular impact in the United States where self-determination became the direction of federal Indian policy beginning with the Nixon administration. In 1970, President Nixon articulated this policy shift in an address to Congress, arguing, ‘The time has come to break decisively with the past and to create the conditions for a new era in which the Indian future is determined by Indian acts and Indian decisions’ (Richard Nixon, Special Message to Congress on Indian Affairs). In 1975, this new policy direction was codified in the Indian Self-Determination and Educational Assistance Act and later the Tribal Self-Governance Act (1994). Both pieces of legislation, while far from perfect, are thought to have ‘enhanced’ First Nations control over First Nations affairs, including both policymaking and service delivery (Kuokkanen, 2019, p. 14). The UN Declaration on the Rights of Indigenous Peoples is intended to rectify the exclusion of Indigenous Peoples from the right to self-determination by explicitly articulating,

6  Handbook of Indigenous public policy

in Article 3, ‘Indigenous peoples have the right to self-determination’ and, as articulated in Articles 1 and 2, on an equal basis with all other peoples of the world. From the international domain—where it became a framework for decolonisation and for questioning the legitimacy of colonial sovereignty—to the domestic sphere—where it frames questions about the ‘forms of policy and governance can legitimately be enacted over Indigenous Peoples by the colonial state’ (Nakata, 2020, p. 338), self-determination remains the foundational value structuring Indigenous– settler relations. As Dominic O’Sullivan (2020, p. 113) contends, ‘When people are self-determining, the state cannot be all powerful and singularly constraining.’ Self-determination functions to limit the state’s power and jurisdiction, and ‘recognises that the state is neither a neutral entity nor one with a natural tendency towards benevolence.’ Self-determination insists that Indigenous Peoples have an inherent right to participate in public affairs, and to shape, guide and direct the public policies that affect them. This is not merely an abstract or ideological claim, but a claim that requires institutions and processes designed to give Indigenous Peoples genuine authority over policy development and delivery, at all levels of the policy process (O’Sullivan, 2020, p. 119). The UN Declaration has been central to the mobilisation of self-determination as a foundational value, towards the institutionalisation of self-determining policy processes. The Declaration is beginning to shift ‘understandings of decolonization and self-determination … toward new future constructions’ (Lightfoot, 2016, p. 18). While Indigenous Peoples have long engaged in international politics—pursuing diplomatic negotiations, signing treaties and mounting legal challenges to the colonial states that had dispossessed them of their lands—it was only in the second half of the 20th century that collective rights of Indigenous self-determination ‘gained traction’ in the international legal system through the ILO Convention 169 (1989) and the UN Declaration on the Rights of Indigenous Peoples (2007) (Picq, 2017, p. 1). The UN Declaration establishes self-determination as a ‘foundational right and principle that gives rise to other central Indigenous rights’, centring the importance of free, prior and informed consent in relation to development on Indigenous Peoples’ territories and seeking to protect Indigenous cultural and intellectual property rights while limiting states’ powers to legislate and make policy over Indigenous lives (Kuokkanen, 2019, p. 2). Beyond this, the Declaration also ‘provides a framework for thinking about self-determination as not just a body of rights but also a body of capacities and powers’ (O’Sullivan, 2020, p. 114). O’Sullivan argues, ‘self-determination is an argument for the greatest possible indigenous [sic] political autonomy while pragmatically accepting the state’s right to govern.’ Indigenous people ‘may actively participate in state affairs to ensure that their perspectives are heard in day-to-day policymaking and to ensure that they are always placed to influence the operation of public institutions.’ O’Sullivan also notes, however, that the capacity to exercise such influence is enhanced or constrained by ‘the extent to which the right to self-determination is either present or curtailed’ (O’Sullivan, 2020, p. 8). This note of caution goes to the heart of concerns about the value of the UN Declaration. Kuokkanen (2019, p. 3) also argues that, while the UNDRIP is enor-

Introduction  7

mously significant, it still has ‘considerable shortcomings’. While the UN Declaration states, in Article 3, ‘Indigenous peoples have the right to self-determination’, it also contains Article 46, which states: ‘nothing in this Declaration may be interpreted as implying for any State, people, group or person any right to engage in any activity or to perform any act contrary to the Charter of the United Nations or construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States.’ Indigenous Peoples—First Nations—cannot easily secede or establish independent governance arrangements within a colonial order unless they meet the criteria of non-self-governing territories entitled to decolonisation under the United Nations regime. This is a bit of a departure from the usual understanding of self-determination in international law, where it has been largely understood as the right to independence as a territorial, sovereign state. The UN Declaration calls for an understanding of self-determination that decouples sovereignty from self-determination and must be reimagined to include ‘sovereignties that may be plural and multiple, and political relations that are grounded in mutual respect and ongoing negotiated power relations’ (Lightfoot, 2016, p. 19). This is a view of self-determination as framed by the UN Declaration as a relational process requiring ongoing negotiation, rather than as an absolute legal right (Lightfoot & MacDonald, 2017, pp. 27–28). The Declaration, then, is best understood not as a guarantee of justice, or even of more just public policy. Rather, the UN Declaration can be thought of as ‘an instrument of significant moral standing’ that supports Indigenous Peoples in their claims to self-determination and that, in turn, requires ‘a reimagination of the liberal state’s normative structure and underlying political values’ (O’Sullivan, 2020, p. 223). Such a reimagining, in turn, supports an Indigenous affairs policy discourse that centres on human dignity and equality based in ‘a claim to culture and to meaningful political authority’ (O’Sullivan, 2020, p. 223).

REFUSING PUBLIC POLICY Support for the UN Declaration is certainly not universal, either among states or— more critically—among Indigenous Peoples. Critics raise several concerns, among them the view that Indigenous human rights ‘weigh very little, if at all’ when they threaten the intersecting interests of states and global capital (Kuokkanen, 2019, p. 3). Indeed, with few exceptions, colonial states have proven quite impervious to assertions of Indigenous rights to self-determination. Settler colonialism, in particular, is maintained by a set of processes that, it is argued (Simpson, 2017, pp. 45–46), exist for the sole purpose of dispossessing Indigenous Peoples, even as they are represented as opportunities for engagement and transformation. These processes, evident in state practices of ‘consultations, negotiations, high-level meetings, inquiries, royal commissions, policy, and law’ create a ‘scaffolding’ for the relationship between Indigenous Peoples and the state, and while they may be experienced by Indigenous Peoples as temporary or microscale shifts that provide an opportunity

8  Handbook of Indigenous public policy

to change the relationship with the state, such promise may be little more than a mirage. Leanne Simpson cautions Indigenous people against the seductive nature of this shape-shifting ‘structure made up of processes’, pointing out that, despite appearances to the contrary, the state always uses its power to ensure that it ‘controls the processes as a mechanism for managing Indigenous sorrow, anger, and resistance, and this ensures the outcome remains consistent with its goal of maintaining dispossession.’ Simpson contends, ‘Colonialism as a structure is not changing. It is shifting to further consolidate its power, to neutralise our resistance, to ultimately fuel extractivism.’ Thus, while the structures of settler colonialism may appear fluid and permeable, potentially responsive to the discourse of Indigenous rights contained in the UN Declaration, too often Indigenous efforts at reform have resulted in disappointment and disillusionment. For the most part, this has meant that focusing on the state as a locus of change has produced little if any benefit for Indigenous people (Maddison, 2019). A further, philosophical concern with the UN Declaration as a means of either improving Indigenous policy or transforming Indigenous–state relations more broadly derives from a rejection of the state as a legitimate actor in Indigenous lives. For many Indigenous people, the UN Declaration is problematic in that it maintains an ongoing focus on the state. While settler colonial states mandate that Indigenous Peoples relate ‘only in and through states and their structures’ (Lightfoot & MacDonald, 2017, p. 28), this is far from the reality of Indigenous lives. As Rauna Kuokkanen (2019, p. 23) argues, an excessive—or worse, exclusive—focus on the rights discourse provides us with a limited legalistic and state-centered conception of Indigenous self-determination that neither reflects the breadth of Indigenous self-determination nor pays adequate attention to relations of domination beyond the state.

For Kuokkanen, ‘considering Indigenous self-determination solely through international law and as a right is extremely limiting, as it does not do justice to the depth and extent of the concept.’ On this view, focusing only on the rights framework provided by the UN Declaration diminishes the kinds of normative understandings of self-determination as a concept that derives from Indigenous ontologies and philosophies (Kuokkanen, 2019, p. 3). Kuokkanen contends that, while ‘the centrality of the state in the Indigenous struggles and vision for freedom is expected’—given ongoing colonial dominance in so many parts of the world—the meaning and content of Indigenous self-determination nevertheless continues to ‘exceed rights and the relations with the state and encompass myriad other relationships, including the land, kinship, spirituality, and others’ (Kuokkanen, 2019, p. 22). Indigenous self-determination extends well beyond discrete moments of political decision or policy making and can rather be conceptualised ‘as part of an ongoing set of relations and obligations—political, cultural and spiritual’ (Lightfoot & MacDonald, 2017, p. 35).

Introduction  9

A critical analysis such as this informs the discourse and practice of Indigenous ‘refusal’ of rights discourses, including refusal of the state itself and refusal of the Indigenous public policy domain. Audra Simpson (2016, pp. 327–328) points to the practices of refusal she has observed in her own Kahnawà:ke Mohawk polities, describing ‘the very deliberate, wilful, intentional actions that people were making in the face of the expectation that they consent to their own elimination as a people.’ In contrast to a politics of ‘recognition’ Simpson describes ‘refusal’, as ‘a political and ethnic stance’ that simultaneously demands the a priori acknowledgment of Indigenous Peoples’ ‘political sovereignty’ and calls into question the legitimacy and authority of states (Simpson, 2014, p. 11). Refusal involves the ‘everyday acts of Aboriginal resistance’ that problematise the ‘political space’ of Indigenous policy and policy-making (Howard-Wagner, 2018, p. 1334). Refusal holds open possibilities for all kinds of ‘political manoeuvring’ that distances Indigenous political action from government policy and decentres the need for Indigenous political life ‘to become intelligible to the settler state as a structure of governance’ (Rifkin, 2017, p. 182). By refusing to ‘consent to the apparatuses of the state’, Indigenous Peoples are able to articulate political projects that draw from pre-colonial political traditions and thereby resist settler domination (Simpson, 2016, p. 328). In practising refusal, Indigenous people turn away from the state and its policies intended to ‘uplift’ or ‘benefit’ Indigenous People.

OUTLINE OF THE BOOK The chapters in this volume respond to and engage with the complexity of Indigenous public policy as a field of contestation, engagement, advocacy and refusal. The many tensions we have outlined here run through the Indigenous public policy domain in all corners of the globe. While local histories and experiences vary widely—as one would expect given the vast diversity of Indigenous Peoples, cultures, languages and geographies—policy concerns that connect to questions of self-determination, sovereignty, culture, land and territory are universal themes. Capturing the true diversity, depth and complexity of Indigenous Peoples’ experiences of engaging with, contesting and refusing public policy is, of course, an impossible task. Nevertheless, in the chapters that follow, some of the world’s best Indigenous and non-Indigenous scholars have engaged with these concerns as they play out in both theory and practice. Some of the chapters take a global focus, while others centre on uniquely local experiences. All are rich and offer profound challenges to mainstream policy scholarship. Part I, Indigenous Peoples, Policy and Governance, maps the conceptual landscape that shapes and constrains the Indigenous Policy domain. In Chapter 1, non-Indigenous Australian policy scholar Elizabeth Strakosch argues that the apparent benevolence or neutrality of Indigenous policy in liberal democracies is a dangerous myth. Drawing on analysis of four contemporary settler colonies—Australia, Canada, New Zealand and the United States—Strakosch contends that the state

10  Handbook of Indigenous public policy

institutions that design and implement Indigenous policy are, in fact, the same state institutions that have sustained the colonial project through policy regimes including child removal, assimilation and other paternalistic modes of policy intervention, all of which have been justified under the rubric of ‘care’. Indigenous Peoples know all too well the violence of these supposedly caring policies yet to many non-Indigenous people, including many policy makers themselves, the work of policy is considered a technical and politically neutral project. Strakosch invites readers to instead begin any engagement with Indigenous public policy by recognising policy as a site of political contestation in which sovereign Indigenous Peoples challenge and fracture the alleged authority of the settler state. The high stakes involved in these policy contestations are made clear in Chapter 2, where Tanzanian international law expert Elifuraha Laltaika considers the profound tensions between the desire for national unity and the necessary assertion of Indigenous identities. Focusing on the African continent, Laltaika considers the work of the African Commission in promoting public policy that recognises Indigenous Peoples. This work has been slow and contentious and faces obstacles arising from a lack of knowledge of Indigenous rights. Public policy that is unfavourable to Indigenous Peoples in Africa has roots in the continent’s history of colonisation, compounded in recent decades by trends towards developmentalism and globalisation-driven nature conservation. Much of Laltaika’s argument is unique to the African context; however, the underlying debates that he explicates, particularly the concern that recognising indigeneity will threaten national unity and cohesion, apply far more widely. Indigenous Nationhood is central to the right to self-determination. In Chapter 3 Sámi political scientist Rauna Kuokkanen examines the emergence of self-determination in relation to the rights of Indigenous Peoples. As we note above, the right to self-determination is central to UNDRIP and is at the core of Indigenous rights discourse more broadly. It is problematic, then, that the right to self-determination has not translated into the widespread recognition of Indigenous Peoples as rights-bearing members of sovereign Indigenous Nations rather than mere subjects of domestic policy. Kuokkanen further argues that the expression of the right to self-determination in Indigenous rights discourse replicates the gendered exclusions and hierarchies that are perpetuated in international law towards women in general, a situation that prevents the comprehensive implementation of Indigenous self-determination. Kuokkanen presents an analysis of policy frameworks in Canada and Greenland to make the case that self-determination can only be meaningfully achieved when the state stays out of policymaking and marginalised people are placed at the centre. In Chapter 4, the Naga author Aküm Longchari offers another analysis of the significance of self-determination for Indigenous public policy. Longchari contends that many decolonisation processes have left Indigenous Peoples trapped in colonial relations, where former colonisers have handed power to particular groups who, themselves, continue to marginalise Indigenous groups. Presenting the case of the Naga People’s movement, Longchari suggests that the concept of self-determination must itself be decolonised in order to achieve what he calls JustPeace.

Introduction  11

In the final chapter in Part I, Diné scholars Raymond Foxworth and Moroni Benally, both citizens of the Navajo Nation, examine the emergence of nation building as a framework for the development and implementation of Indigenous public policy. Nation building has been taken up by Indigenous people around the world as a set of organising principles for (re)building Indigenous self-governance. While acknowledging the role that recent decades of non-Indigenous scholarship on nation building has played, Foxworth and Benally suggest that this approach remains embedded in Western institutionalism in ways that may be at odds with Indigenous values. The authors illustrate some of the limitations of the nation-building approach by articulating the K’é philosophies, systems and institutions of the Diné Nation as a culturally appropriate framework for Diné policy and governance. Part II of the book grapples with the big questions of Land and Law, situating policy contestation in international and domestic laws, and centring struggles over land as the source of life and as an economic base. In Chapter 6, Māori legal scholars Claire Charters (Ngati Whakaue, Tuwharetoa, Nga Puhi and Tainui), Fleur Te Aho (Ngāti Mutunga) and Tracey Whare (Raukawa and Te Whānau-ā-Apanui) examine the ways in which the intersections between international and domestic law shape Indigenous policy, with a particular focus on Aotearoa/New Zealand. By contrasting more formal understandings of the law with emerging research on the influence of legal norms, the authors articulate the relationship between international law and domestic state law and policy. While acknowledging that such an analysis does not challenge state jurisdiction over Indigenous Peoples, Charters, Te Aho and Whare nevertheless suggest that their more comprehensive account of this legal relationship elucidates the potentially powerful means through which Indigenous Peoples can realise their rights. The legal framework offered by treaties between Indigenous Peoples and states is the subject of Chapter 7, where non-Indigenous political scientists Anya Thomas and Sarah Maddison consider such agreements as evidence of co-existing sovereignties. The chapter focuses on the relationship between self-determination and Indigenous sovereignties in the governance structures of the four Anglo settler colonies (Australia, Aotearoa/New Zealand, Canada and the United States) as this relationship is reflected in diverse policies and governance structures. The authors consider the key lessons to be drawn from historical treaties that may shape more just relationships between Indigenous Peoples and settler states today, concluding that at the heart of treaty relationships is a promised shift from bureaucratic to diplomatic relationships. In Chapter 8, Nepalese anthropologist Mukta S. Tamang examines the role of national constitutions in Indigenous public policy. Tamang recognises constitutions as an important protection for Indigenous rights, providing states with a framework that both shapes and constrains legislation and policy that affects Indigenous Peoples. Contrasting the struggle for Indigenous recognition in the Nepalese constitution with provisions in the Indian and Bolivian constitutions, Tamang highlights Indigenous Peoples’ struggles for constitutional reform that provides recognition of cultural identity and citizenship; protects the right to equality and non-discrimination; pro-

12  Handbook of Indigenous public policy

tects the right to self-government; enables political participation; protects Indigenous rights to land and livelihood; protects the freedom of Indigenous spiritual practices and linguistic rights; and recognises customary law. The possibilities and limitations of law are also explored in Chapter 9, where politico-legal scholar Justin McCaul (a descendent of the Mbarbarum Traditional Owners of far north Queensland in Australia) examines struggles for control of land and water among Indigenous Peoples on the Australian continent. Fundamentally, these struggles are about the realisation of self-government. McCaul highlights the engagement with the Australian Native Title regime—a flawed and problematic legislative framework—as evidence of Indigenous Peoples’ willingness to engage with the state in order to pursue their self-governance ambitions. This pragmatism is a hallmark of Indigenous Peoples’ efforts to (re)assume responsibility for their territories, often using the policy process as it relates to land and water management as means of exercising their right to self-determination. In Chapter 10, Zapotec political scientist Isabel Altamirano-Jiménez reinforces the fact that land is central to the wellbeing of all Indigenous Peoples. The chapter draws out the connections between colonialism, land and gender, and examines the profound tensions between Indigenous ways of being in relation with land, which are acknowledged and respected in the wording of the UNDRIP, and the neoliberal, capitalist drive to extract profit from land and resources. These tensions are challenging for all Indigenous Peoples, but Altamirano-Jiménez draws our attention to the particular challenges experienced by Indigenous women from the Isthmus of Tehuantepec in Mexico, who are working to protect and defend their territories, and describes the process she calls ‘self-consultation’ as a method of enacting self-determination. In the final chapter in Part II, Chapter 11, non-Indigenous Canadian political economist Frances Abele considers the impacts that the expansion of global capitalism has had on Indigenous Peoples. She focuses on a range of analyses, primarily in the Anglo settler colonies, that seek to understand and engage with the complex, hybrid economies that have emerged as Indigenous Peoples seek to sustain aspects of their customary economies while simultaneously being drawn into capitalist, colonial economic life. The field of Indigenous political economy has produced a plethora of policy recommendations, yet Abele concludes that such scholarship needs to find conceptual linkages to ‘the big picture’ constraints on Indigenous economic self-determination, specifically the role of the state, of corporations and the power of capitalism itself. Part III considers several important areas of domestic policy that are of profound importance to Indigenous Peoples. Here the list could have been endless; there is no area of domestic policy that is not also Indigenous policy, as all public policy has distinct implications for Indigenous Peoples. The chapters we have included have implications for many other areas of policy. In Chapter 12, Taureg medical doctor, scholar and health advocate Mariam Wallet Med Aboubakrine examines the connections between public policy and the right to health of Indigenous Peoples in Brazil and Mali. Aboubakrine focuses on the

Introduction  13

political and legal frameworks in each country that present obstacles or opportunities for the implementation of the right to health. She emphasises the interdependence of Indigenous rights, with the right to health dependent on other human rights, such as the right to education, to a healthy environment, to food, to water, to land, to justice, to security, and to connection with culture and Indigenous knowledges. The analysis draws out the importance of domestic context and local Indigenous advocacy for policies designed to implement Indigenous rights. As Aboubakrine argues, there can be no ‘one-size-fits-all’ approach to Indigenous policy. Chapter 13 delves further into the significance of localisation in any consideration of Indigenous policy. Ecuadorian education scholar Gioconda Coello and Comuna San Jacinto Amazonian Kichwa researcher Diana Chávez Vargas present an analysis of what they describe as a ‘radical intercultural policymaking’ in relation to Indigenous education in Ecuador. Again, it is clear that any progress in relation to Indigenous policy has come about through Indigenous advocacy and struggle. In Ecuador this has resulted in a constitutional commitment to intercultural education. What this looks like in practice is the subject of ongoing dialogue and debate in Ecuador, where Indigenous Peoples continue to problematise notions of ‘inclusive’ policy as colonial in nature. Taking a Kichwa Amazonian perspective, the authors present an Indigenous framework for questioning public policy through the Kichwa Life Route, arguing that policy must embody people’s concerns or be doomed to fail in the quest to meet the needs of Indigenous Peoples and communities. In Chapter 14, Charlotte Coté (Tseshaht/Nuu-chah-nulth) considers the importance of Indigenous food sovereignty, a crucial aspect of self-determination and decolonisation because it requires the reinstatement of Indigenous authority over ancestral territories. The discourse of food sovereignty challenges settler colonialism through its emphasis on sacred and respectful relationships between Indigenous Peoples and the natural world. Focusing on her own Tseshaht/Nuu-chah-nulth communities, Coté argues for the importance of cultural and spiritual ties to salmon, which include the protection of salmon habitats, as crucial to their survival as people. The Nuu-chah-nulth Tribal Council have their own policies, in the form of the Uu-a-thluk Strategic Plan, which moves discourse on food sovereignty and related aspects of self-determination beyond a focus on state policy and towards an understanding that this work is a cultural responsibility that is inherent to Indigenous Peoples. In Chapter 15, Candace Kaleimamoowahinekapu Galla (Kanaka Maoli) and Amanda Holmes (Kanien’keha:ka), both language and education scholars, underscore the importance of policy that supports restoring, renewing and re-generating Indigenous languages. Protecting and revitalising Indigenous languages and cultural practices, which have been the subject of violent colonial efforts at elimination, including through residential schools, is profoundly significant work being undertaken by Indigenous Peoples around the globe. Galla and Holmes use a language rights framework to analyse specific policies and frameworks that are guiding Indigenous language recovery and revitalisation, including examples from Bangladesh, Nepal, Cameroon, the United States and Canada. They conclude that fraught relations between Indigenous Peoples and colonial states remain a significant

14  Handbook of Indigenous public policy

barrier to the implementation of language policy, and remind us that effective language policy must reflect Indigenous self-determination. The last chapter in Part III focuses on the justice system. In Chapter 16, Māori (Ngati Rehua, Ngatiwai, Ngapuhi) legal scholar Valmaine Toki considers the Western criminal justice system can be understood as a tool of colonisation that has caused great harm to Indigenous Peoples. Examining developments in Aotearoa/ New Zealand, Toki notes important attempts to indigenise the criminal justice system through reform initiatives that seek to recognise Māori culture and language, such as in the Te Ao Mārama model that incorporates tikanga (Māori customs and values) and te ao Māori (Māori world) into the existing District Court system, and the Te Kooti Rangatahi process, which emphasises the need for young people to (re) discover their identity. These initiatives are not without their critics, however, and from a Māori perspective may still be understood as functioning within a Western legal framework. This criticism also applies to legislative developments that recognise Māori cultural context. The question remains whether a separate Māori justice system underpinned by tino rangatiratanga or self-determination would be a more effective alternative. The final part of the book, Legacies of the Past, Possibilities for the Future, examines both the ongoing impact of colonisation (with the associated need for contemporary redress), and future pathways for the ongoing shaping and contestation of Indigenous public policy. In Chapter 17, Indigenous rights scholar Samara Hand (Awabakal of Worimi and Biripi descent) and non-Indigenous human rights scholar Damien Short examine reconciliation policies in settler colonial societies. Reconciliation has become a popular metaphor for addressing the divisions between Indigenous and non-Indigenous Peoples in settler colonies, implying that there are relationships to be mended even as colonial harms persist. Such ideas are inherently controversial. Through a case study of the problematic formal reconciliation process in Australia, Hand and Short reveal the extent to which such policy framings benefit the settler colonial state while doing little to recognise Indigenous rights or provide reparations for colonial harms. In Chapter 18, David B. MacDonald and Joanne Garcia-Moores pick up on Hand and Short’s argument for the necessity of truth-telling in any policy attempting to repair Indigenous–settler relations. Focusing on recent ‘transformative’ truth commissions in settler states, specifically Canada, Australia, Aotearoa New Zealand and the United States along with Guatemala (which has an Indigenous Mayan majority), MacDonald and Garcia-Moores contend that, even with their multiple shortcomings, truth commissions open up political space for Indigenous Peoples who are pursuing justice and self-determination. To be effective, however, and to minimise the harms done to Indigenous participants, truth-telling processes must be designed and led by Indigenous Peoples if they are to advance Indigenous rights. Taking quite a different tack, in Chapter 19 settler Canadian scholars Adam J. Barker and Emma Battell Lowman examine moves for decolonisation and Indigenous resurgence; movements that decentre the state and state policymaking in relation to Indigenous Peoples in favour of practices that foreground cultural practices and

Introduction  15

a reorganisation of political relationships. Resurgence movements take many forms, but all prioritise Indigenous cultures, knowledges and political authority as a more beneficial pathway for Indigenous Peoples seeking genuine self-determination. From a resurgence point of view, Indigenous autonomy and settler colonial sovereignty are incommensurable, meaning state policies will never provide the answer to the challenges facing Indigenous Peoples. In the final chapter in the volume, Iñupiaq expert in international human rights law and Indigenous Peoples’ rights, Dalee Sambo Dorough turns our attention back to the UN Declaration on the Rights of Indigenous Peoples. As all the preceding chapters in the book have made clear, the UNDRIP is not a perfect instrument. It has, however, proven to be a valuable tool for Indigenous Peoples around the globe seeking to build, lead and implement policy solutions for the many challenges they face. Dorough reviews the status of UNDRIP and reminds us of the tireless work of Indigenous advocates pursuing self-determination for their peoples. This work is incremental, and often invisible, but through the ‘subtle revolution’ that Lightfoot has earlier described it is apparent that Indigenous Peoples will continue to pursue their rights in policy of all kinds, and in all places. This book presents a very small snapshot of that work. It continues on every continent, in small communities, and on the international stage and everywhere in between. Where Indigenous policy succeeds it is invariably led by Indigenous Peoples themselves, who are tireless in their pursuit of self-determination, with or without the support of the state.

REFERENCES Anaya, S. J. (1996). Indigenous peoples in international law. New York, NY: Oxford University Press. Deloria, V. J. (1974 [1985]). Behind the trail of broken treaties: an Indian declaration of independence. Austin, TX: University of Texas Press. Elliott, M. (2018). Indigenous resurgence: the drive for renewed engagement and reciprocity in the turn away from the state. Canadian Journal of Political Science / Revue canadienne de science politique, 51(1), 61–81. Henderson, J. Y. (2008). Indigenous diplomacy and the rights of peoples: achieving UN recognition. Saskatoon, SK: Purich Publishing. Howard-Wagner, D. (2018). Governance of indigenous policy in the neo-liberal age: indigenous disadvantage and the intersecting of paternalism and neo-liberalism as a racial project. Ethnic and Racial Studies, 41(7), 1332–1351. Kuokkanen, R. (2019). Restructuring relations: indigenous self-determination, governance, and gender. New York, NY: Oxford University Press. Lea, T. (2020). Wild policy: indigeneity and the unruly logics of intervention. Stanford, CA: Stanford University Press. Lightfoot, S. (2016). Global indigenous politics: a subtle revolution. New York, NY: Routledge. Lightfoot, S. & MacDonald, D. (2017). Treaty relations between Indigenous peoples: advancing global understandings of self-determination. New Diversities, 19(1), 25–39.

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Lightfoot, S. & MacDonald, D. (2020). The UN as both foe and friend to indigenous peoples and self-determination. E-International Relations. Retrieved on 2 November 2023 from https://​www​.e​-ir​.info/​2020/​03/​12/​the​-un​-as​-both​-foe​-and​-friend​-to​-indigenous​-peoples​ -and​-self​-determination/​. Maddison, S. (2019). The colonial fantasy: why White Australia can’t solve Black problems. Crows Nest, NSW: Allen & Unwin. Manuel, G. & Posluns, M. (1974 [2019]). The fourth world: an Indian reality. Minneapolis, MN: University of Minnesota Press. Nakata, S. (2020). Who is the self in self-determination? In L. Rademaker & T. Rowse (Eds.), Indigenous self-determination in Australia: histories and historiography (pp. 335–353). Canberra: ANU Press. Nakata, S. & Maddison, S. (2019). New collaborations in old institutional spaces: setting a new research agenda to transform Indigenous–settler relations. Australian Journal of Political Science, 54(3), 407–422. Newcomb, S. (2008). Pagans in the promised land: decoding the doctrine of Christian discovery. Golden, CO: Fulcrum Publishing. O’Sullivan, D. (2020). We are all here to stay: citizenship, sovereignty and the UN Declaration on the rights of Indigenous peoples. Canberra: ANU Press. Picq, M. L. (2017). Indigenous politics of resistance: an introduction. New Diversities, 19(1), 1–6. Rifkin, M. (2017). Beyond settler time: temporal sovereignty and Indigenous self-determination. Durham, NC: Duke University Press. Simpson, A. (2014). Mohawk Interruptus: political life across the borders of settler states. Durham, NC: Duke University Press. Simpson, A. (2016). Consent’s revenge. Cultural Anthropology, 31(3), 326–333. Simpson, L. B. (2017). As we have always done: Indigenous freedom through radical resistance. Minneapolis, MN: University of Minnesota Press. Strakosch, E. (2015). Neoliberal indigenous policy: settler colonialism and the ‘post welfare’ state. Houndmills, Hampshire; New York, NY: Palgrave Macmillan. Wolfe, P. (2006). Settler colonialism and the elimination of the native. Journal of Genocide Research, 8(4), 387–409. Wolfe, P. (2016). Traces of history: elementary structures of race. London; New York, NY: Verso.

PART I INDIGENOUS PEOPLES, POLICY AND GOVERNANCE

1. Violence as care: Indigenous policy and settler colonialism Elizabeth Strakosch

INTRODUCTION The society of colonizers intends to be a managing society and works hard to give that appearance … the policeman [and] government specialist[s’] … professional habits find unhoped-for possibilities of expansion in the colony. (Memmi, 2003 [1965], pp. 93, 111)

Indigenous policy systems in liberal states are framed around the idea of ‘care’ (Kuokkanen, 2020; Lindroth & Sinevaara-Niskanen, 2018). For white settlers such as myself, such systems can present as neutral instruments for managing Indigenous lives, seeking to improve health, governance, education outcomes, employment, living standards and community management. Therefore, the questions that we ask of policy are usually technical and process based: How can policy better address Indigenous disadvantage? How can it better understand the nature of the problems? Who should have input into policy to achieve the best outcomes? Policy systems may be seen as inefficient, burdensome, ineffective or misguided, but usually, the non-Indigenous public and most policy scholars accept that they are fundamentally aimed at improving Indigenous wellbeing. All too often, we take Indigenous social policy ‘at its word’. Yet, it is these very state institutions that have enacted and continue to prosecute some of the most violent forms of colonisation, including assimilation, child removal, behavioural micromanagement and land theft (Foley, 2020; Watego, 2021; Watson, 2015). Indigenous Peoples see the illegitimacy and violence of policy much more clearly, including in its fundamental assumption of paternalistic settler state authority over Indigenous lives. The lines between the bureaucratic and carceral arms of the settler state blur; state systems of ‘care’ work reinforce state systems of ‘control’ (Bond, Singh & Tyson, 2021; Murphy, 2000). This chapter draws out this darker side of Indigenous policymaking. It does not suggest that policy can never be a site of Indigenous creativity, self-determination or material redress but instead seeks to show how these things exist despite rather than because of fundamental policy dynamics. It argues that policy systems are crucial to contemporary liberal settler colonial attempts to erase Indigenous political orders and to naturalise colonial claims to sovereign possession in their place (Moreton-Robinson, 2007, 2015). Bureaucratic policy institutions both enable large-scale control of and damage to Indigenous Nations and mask this control as a form of benevolent management for the benefit of an always-disadvantaged/ 18

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dysfunctional/deficient Indigenous subject. In this sense, liberal Indigenous policy is an inherently racialising process. It retells the basic story that colonial authority exists only to improve the lives of the colonised in a contemporary, technical and managerial register. The technical mode of policymaking tends to erase the deeply political, contested and colonial dynamics of liberal policy. As others have noted, colonisation is a practical process, and bureaucracy is on the frontline of colonisation (Borrows, 2004). For this reason, Indigenous policy systems remain sites of contestation between Indigenous and settler sovereignties and key spaces of resistance and renegotiation. This chapter focuses on the four British Empire settler colonies—Australia, Canada, New Zealand and the United States (US)—and argues that Indigenous public policy in settler colonies is simultaneously a state project of social improvement and a space of fundamental conflict over Indigenous and settler jurisdictions. In fact, it seeks to link the two together to draw out how this project of social improvement is deeply implicated in the violent imposition of settler authority. This can be clearly seen in Australia, where the absence of treaties or settler recognition of Indigenous collective political life positions Indigenous Peoples as a unitary domestic policy population subject to ‘legitimate’ hierarchical control by settler authorities. The more naturalised policy systems are, and the more we believe them to be legitimate and aimed at Indigenous wellbeing, the more deeply we reinforce the settler state’s claim to unilateral sovereignty and authority over its domestic Indigenous ‘subjects’. Indigenous polities resist this erasure and use policy spaces to exercise their sovereign right to care for their communities. Therefore, Australian Indigenous policy is a key site of intense political conflict despite its apparently technical nature (Strakosch, 2019). While I use several examples from the Australian case, I also draw the links to policy systems in the three other Anglophone liberal settler colonies. These four so-called CANZUS states (Canada, Australia, New Zealand and the US) ‘constitute a distinctive comparative set’ (Nikolakis, Cornell & Nelson, 2019, p. 15). All are economically developed liberal democracies. Colonisation in all these places was and continues to be violent and devastating and has led to systematic dispossession and marginalisation, including sustained policies of assimilation (Armitage, 1995; Wolfe, 2016). These were the only four states to vote against the United Nations Declaration on the Rights of Indigenous Peoples in 2007, although these stances have since changed (Lightfoot, 2016). Most importantly, across these four locations, Indigenous Peoples continue to survive, assert their sovereign authority and reclaim power (Hokowhitu, 2020). Colonial conflict in all four states is ongoing, and there have been important policy shifts based on Indigenous activism. Yet despite some moves towards participatory policy modes, these systems remain deeply problematic and contested. The wealth of all four states ‘has been built substantially on resources taken from [Indigenous] peoples, whose poverty – in the grand scheme of things – is a recent creation’ (Eversole, McNeish & Cimadamore, 2005, p. 199; Humpage, 2010). In all cases, Indigenous Peoples have significantly poorer health and socio-economic outcomes, but these differences are not uniform. Life expectancy gaps between

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Indigenous and non-Indigenous populations reflect this; while crude, the gap tracks what race scholar Ruth Wilson Gilmore (2007, p. 28) calls ‘the state-sanctioned or extra-legal production and exploitation of group-differentiated vulnerability to premature death.’ Based on the most recent available data, the US has the best outcomes, although Indigenous life expectancy has not increased in 20 years (remaining at a gap of 5.5 years) (McFarling, 2022), followed by New Zealand (7.2 years) (International Working Group on Indigenous Affairs, 2021), while Australia has the worst life expectancy gap (8.2 years) (Australian Government, 2020). Canada has a more complex and differentiated profile (and incomplete data collection), with life expectancy gaps between 4.5 for Metis and 11.4 for Inuit (Tjepkema, Bushnik & Bougie, 2019). Addressing this structural inequality and improving Indigenous wellbeing is a core social policy goal across all four settler states. While they aim to ‘close the gap’ in outcomes, settler social policy systems also serve other political functions. As Memmi (2003 [1965], p. 115) points out, some version of an ever-present ‘gap’ justifies racialised colonial control: In those differences, the colonized is always degraded … once the behavioral feature, or historical or geographical factor which characterizes the colonialist and contrasts him with the colonizer has been isolated, this gap must be kept from being filled …. What is actually a sociological point becomes labeled as being biological or preferably, metaphysical. It is attached to the colonized’s basic nature.

Indigenous policy systems have enacted and continue to enact large-scale violence in the name of care, for example, via ongoing child removal and administrative restriction of freedoms. It is rare that they actually close the social ‘gaps’ on which they fixate (Watego, 2021). In fact, the ‘problem’ of Indigenous suffering serves as a continual legitimisation and justification for the extension of authority of the ‘well-meaning’ colonial state. Settler colonies are violent political societies founded in an ongoing ‘originary’ violence that is disavowed by settler institutions (Watson, 2015). The policy system works to facilitate and enact this dispossessing racial violence, creating bureaucratic chains of distance that diffuse personal responsibility. Most importantly, these institutions launder colonial violence for the mass of those who benefit from it, assuring the mainstream public that everything is being done to improve Indigenous lives and at the same time displacing immediate responsibility for addressing colonial harms onto state agencies. In such a way, Indigenous social policy bureaucracies convert a mass of complicit colonists into a mass of innocent bystanders. Liberal Indigenous policy is a key tool for colonial states that claim to ‘care’ for those who they continue to dispossess. Yet Indigenous policy is not a site of unending and uncontested domination. Precisely because it is a field of sovereign struggle rather than technical best practice, Indigenous communities and community-controlled organisations use these systems to enact their sovereign mandate to care for their people and country. The colonial

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state generally views these organisations as service delivery bodies—as part of the hierarchy of effective policy delivery. Like Indigenous individuals, it often frames them in deficit terms as lacking governance capacity and needing to be ‘managed’ by the state. Yet, in reality, these organisations operate on profoundly different terms. They are exercising political authority, not (or not only) in the way they engage in political advocacy and relation with the settler state but in their fundamental practices of jurisdiction. They work within and beyond current policy systems to care for their communities in ways that connect to the long past and necessary future of Indigenous sovereignties. These community-controlled organisations are directed by, and accountable to, their Indigenous communities and are ultimately grounded in this authority rather than in any authorisation by the state. Yet they also act within state policy frameworks strategically from their base in this sovereignty. They find ways to exercise their responsibility to care for and protect their communities while performing the roles required by the state. This chapter is structured into three sections: policy and sovereignty, policy and bureaucracy, and policy and race. It suggests that some elements of these dynamics will be different across different locations. Each settler colonial Indigenous policy system has its own unique political formation that conditions its operation. However, in each of the three areas of sovereignty, bureaucracy and race, some fundamental dynamics remain resolutely the same: settler sovereignty, instrumental bureaucracy and white supremacy (Kuokkanen, 2020; Moreton-Robinson, 2021; Wolfe, 2016). The chapter concludes by raising important questions for change: How can the instruments of the settler state redress the harms they themselves create? What would a transformative or decolonising Indigenous public policy look like in a settler colonial context? What are the possibilities and constraints for Indigenous communities using policy systems to exercise authority? I suggest that any transformative Indigenous policy is inextricably connected to deeper political redistributions. However, even in the absence of institutional transformation, it is useful for more policy scholars and agencies to pay attention to public policy as a site of political contestation as well as technical management and as a space in which Indigenous sovereignty is asserted and enacted.

POLICY AND SOVEREIGNTY While on the surface, policy might look like more or less successful technical processes aimed at improving Indigenous wellbeing, at its heart it is a site of confrontation between jurisdictions. In all policy interactions, incomplete settler state authority aiming to ‘domesticate’ Indigenous Peoples meets the ‘resilient existent’ of Indigenous sovereignty (Moreton-Robinson, 2021). Indigenous sovereignty is both asserted in a collective political sense and enacted in the everyday practices of individuals, communities and non-government organisations within policy systems (Rigney, Bignall, Vivian & Hemming, 2022).

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Sovereignty here refers to foundational political jurisdiction. Therefore, it covers both settler sovereignty, built on a liberal democratic model of a unified territorial authority, and Indigenous sovereignty, built upon radically different ontologies and connections to land (Evans, Genovese, Reilly & Wolfe, 2012; Moreton-Robinson, 2015, 2021; Watego, 2021; Watson, 2015). Settler sovereignty is often considered a finished product, but Indigenous critical scholarship reveals its performative, fragile and colonising qualities. Moreton-Robinson (2015) famously described settler sovereignty as ‘the white possessive’—a patriarchal, racialising and consumptive force that claims exclusive territorial authority by erasing the presence of other political lifeworlds. Yet this remains a claim, not an accomplished fact: ‘the myth of colonialism is that it carried with it and applied sovereignty. The truth is that state sovereignty was claimed and constituted through colonialism’ (Watson, 2015, p. 15). In this way, settler sovereignty is defined by what it is not and what it desires to become: it is a form of ‘counter-sovereignty’ in fundamental conflict with Indigenous political orders (Simpson, 2014, p. 19; Vimalassery, 2014). While settler sovereignty is an ongoing project claiming to be a finished product (Macoun & Strakosch, 2012), Indigenous sovereignty simply is. As Irene Watson (2015, p. 7) argues, ‘First Nations have always been sovereign’, and while it is denied and claimed by settler authorities, Indigenous sovereignty endures. As expressed by critical Indigenous scholars from all the locations discussed in this chapter, Indigenous sovereignty is embodied in acts of resistance, refusal and being otherwise, and inheres in the land in a way that cannot be ceded or extinguished (Coulthard, 2014; Mutu, 2021; Simpson, 2014). Policy is a key site of interaction between the settler state and First Nations. Therefore, it is a key site of the ongoing conflict between these sovereignties. I use the examples of Australia and the US—which might at first glance appear to be very different regarding sovereign recognition—to show how policy in the settler colony is a site of jurisdictional conflict. Australian Indigenous–settler politics is almost exclusively expressed in the policy register (Davis, 2016; Strakosch, 2019). This is a direct result of the sovereign formation in which the state denies the existence of Indigenous sovereignty. Australian governments continue to resist recognising the Indigenous Peoples of Australia as collective political actors. What Marcia Langton (2019) calls ‘the denial at law of Indigenous sovereignty and, indeed, the very existence of Aboriginal polities’ has left Indigenous Peoples without the rights frameworks, based on treaty, legislation or judicial decisions, that have been important to Indigenous assertions of governing power in the other three CANZUS states (Ford, 2008; Moreton-Robinson, 2007; Nikolakis, Cornell & Nelson, 2019, p. 24). Terra nullius—the ‘skeleton legal principle’ of the Australian state and its claim to authority in this continent—is at heart a racial statement about the ‘inferior capacities’ of Indigenous Peoples deemed by colonisers not to have formed political societies and so to have remained in a ‘state of nature’. As Indigenous scholar Chelsea Watego expresses, Aboriginal and Torres Strait Islander Peoples in Australia are thus ‘both First Nations and first raced’ (in Pearson & Cromb, 2019). This long-standing framing continues to enable extreme forms of violence against Indigenous Peoples

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by the state, including one of the highest incarceration rates in the world (this rate continues to increase) (Vistonay, 2021). Aboriginal and Torres Strait Islander Peoples have always been dealt with as a domestic population who are legitimate subjects of state intervention and improvement. The resultant Indigenous policy system both constitutes the major site of Indigenous–state political interaction and is currently structured in hierarchical and non-participatory ways (Anderson, 2015; Sullivan, 2011). Constant efforts by Indigenous Peoples to assert political authority, and even to highlight the fact that they have better policy solutions to their own social problems, are refused or unheard (see, e.g., the Redfern Statement produced by the National Congress of Australia’s First Peoples [2016] that was completely ignored by government). Political conflict is constantly reframed as a question of best-practice policymaking to ‘close the gap’ in social outcomes. The US might at first appear to be at the other end of the ‘settler colonial sovereignty spectrum’; some Native Nations exercise extensive and legally protected jurisdiction over reservation land, and settler authority is justified in terms of ‘conquest’, absorption or cessation of sovereign Indigenous Nations. A 2021 viral video of a confrontation between state police and Native leader Nick Tilsen ends with police being forced to leave Indian land over which they have no authority. Tilsen tells them, ‘Don’t ever come on Indian collective property unannounced again motherf****rs’ (O’Bryan, 2021). Such interactions with police are unimaginable in Australia, where swearing at police regularly leads to assault charges, and there is no place that the settler state does not claim full legal jurisdiction. Yet, there is a long and ongoing history of broken treaties, land theft and attempts to erode tribal sovereignty (Deloria, 1969). While US settler sovereignty might be justified through a different narrative about Indigenous sovereignty—a story of recognition, enfolding and supersession rather than denial—Indigenous sovereignty continually exceeds the place allocated to it. ‘As counter-sovereignty, US sovereignty is in perpetual reaction to the prior and primary claims of Native peoples on the territories that the United States claims as its own. Seen in this light, US sovereignty will always be an unfinished project in perpetual crisis of unraveling’ (Vimalassery, 2014, p. 142). This means that, like settler sovereignty in other CANZUS states, the claim to colonial authority is constantly disintegrating and being put back together through its performance of itself. Therefore, while in some ways public policy looks very different in Australia and the US, in other ways it remains the same. The US federal government recognises the ‘domestic dependent sovereignty’ of some Native Nations, and since the Indian Self-Determination and Education Assistance Act 1975, these Nations control many aspects of their own health, education and criminal justice structures. However, policy remains a site of deep contestation (Wolfe, 2016). Service delivery disputes, legal challenges and settler government initiatives continue to attempt to ‘degrade tribal governments and relegate them to positions of special interest groups instead of legitimate governments with both the authority and duty to provide government services to their community’ (Webster, 2020, p. 304). The state of Texas, for example, is currently seeking Supreme Court approval to strike down laws that protect Native families in child welfare systems. In this case, as in earlier efforts by

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Trump to change Tribal exemptions from Medicaid work requirements (LeTourneau, 2018), the state argues that Native people should be treated as a ‘race’ rather than as sovereign nations, and as such should be subject to settler policy systems. In this way, debates over social policy, conducted in the name of Indigenous wellbeing, reveal a conflict between the more paternalistic bureaucratic social policy system and legal frameworks of sovereign recognition. At a deeper level, they lay bare the everyday conflicts between state control and Native sovereignty that have long existed in interactions of the Federal Bureau of Indian Affairs and Native Nations (Fixico, 2012). This points to another enduring and violent feature of Indigenous policy systems in settler colonies: the institutional structure of bureaucracy.

POLICY AND BUREAUCRACY Bureaucracy is an organisational form structuring all contemporary policy systems in liberal settler colonies. While many point to the problems that beset policymaking in Indigenous affairs—hierarchical decision-making, paternalism, the problematisation of Indigenous lives and so on—we rarely connect these problems to the underlying bureaucratic structure that conditions them. In this section, I argue that it is useful to think of bureaucracy as producing a particular interventionist state orientation to Indigenous worlds, allowing the state to enact colonial violence while framing it as technical best practice and, ultimately, as a form of care. Sociologist Max Weber famously defined bureaucracy as involving a clear hierarchical structure with formal lines of authority; a division of labour where complex problems are broken down into manageable repetitive tasks undertaken by separate offices/officers; a career structure with long-term continuity; decisions made according to written rules and regulations rather than personal judgement, with written records kept; and officials appointed on expertise in their areas and merit, as evaluated by criteria and not by individuals. The sum of these characteristics is an institutional structure defined by instrumental rationality, eliminating love, hatred and all purely personal, irrational and emotional elements from official business (Weber et al., 2015, pp. 67–79). Decisions are made and resources are allocated via the expert application of ‘calculable rules’ that ‘function without regard for persons’ (Weber, 1970 [1948], p. 216). Foucauldian scholarship highlights the concrete technologies and knowledge practices that have allowed bureaucracies to ‘know’ populations and govern them: statistics, audits, accounting, censuses, contracts, surveillance, self-reporting, financial trusteeship and so on (see, e.g., Howard-Wagner, 2018; Rowse, 2017). Such knowledge is inevitably reductionist and abstract, yet it becomes the basis for immense social interventions. The people affected, who know themselves differently, can therefore experience bureaucracy as an arbitrary and coercive institutional ‘machine’, unresponsive to their uniqueness and insensitive to human distress. This is especially the case when the dynamics of bureaucracy intersect with political, colonial and racial violence.

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As several scholars have observed in their analyses of the role of bureaucracy in the Holocaust, bureaucracy was a necessary condition of that mass political violence: Bauman identified bureaucratic organisation and rationali[s]ation [as a condition of possibility for the Holocaust] … argu[ing] that ‘the space extending between the idea’ of Endlösung [final solution] ‘and its execution was filled wall-to-wall with bureaucratic action’ (1989, p. 105). Bureaucratic action and the complex division of labour splits up the overall task into a huge range of smaller tasks, thus fragmenting the end into a proliferation of means. Technical responsibility is substituted for moral responsibility. In the process, the objects of bureaucratic action are dehumanised, reduced to a set of quantifiable measures. The ever-increasing distance, Bauman argued, between an act and its consequences – a fundamental institutional dimension of modernity – leads to a dangerous demoralisation or adiaphorisation of action. (Palmer & Brzezinski, 2022, p. 7; see also Arendt, 2006.)

At a deeper level, bureaucratic rationalisation leads to a framing of the world always in terms of ‘problems’ and ‘solutions’—society always being the problem and the state the solution. Bauman refers to this as the ‘modern gardening state’, which assumes the right to weed, tend and redesign social orders according to its own vision of progress. Much existing scholarship focuses on bureaucracy in fascist and socialist governments rather than liberal bureaucracies that are supposedly based on the consent of the governed and therefore operate in the name of improving those groups they control (Evans, 1997; Silverstein, 2023). Here, the violence of settler colonial bureaucracies is obscured by their claims to care for those they act upon and to act with their consent. For example, Ros Kidd, in her examination of Protection-era government records in Queensland, Australia, shows how this 20th-century bureaucratic regime of micromanagement of Indigenous lives, confinement to missions and forced labour is often misunderstood as a well-intentioned but misguided policy aiming to ‘care’ for Indigenous People considered ‘at risk’ (Kidd, 1997). In fact, as she meticulously documents, this policy regime was characterised by neglect as much as micromanagement, including stealing Indigenous wages held in trust and chronic starvation-level underfunding of missions. She demonstrates how the violence of liberal colonial bureaucracy is made up of multiple layers. It includes not only direct physical harm (e.g., in the genocidal removal of Indigenous children from their families) but also the maintenance of structural inequality (e.g., inadequate access to safe housing and healthcare) and symbolic and ‘slow’ forms of violence (e.g., regulating or problematising personal identity or maintaining conditions where violence is internalised) (Elridge & Reinke, 2018; Povinelli, 2011). Recently, mass graves of children at Canadian residential schools have been uncovered, highlighting the violence of the very recent practice of removing Native children from their loving communities and educating them in hostile, assimilatory institutions. Similarly, in Australia, the long-term, explicit and systematic policy of forcibly removing Aboriginal children to prepare them for a ‘better life’ at the bottom of white society created a legacy of trauma and cultural separation for these Stolen Generations (Krakouer, Tan & Parolini, 2021; Krakouer et al., 2022). Both

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these states have appropriately apologised for this past harm. However, they do not apologise for the intention underlying such policies—the desire to ‘improve’ a racialised population identified as problematic or deficient (Brigg & Murphy, 2003; Murphy, 2000). This framing of Indigenous policy intentions remains concerningly consistent: state policy institutions continue to be understood as ‘doing their best’ to improve Indigenous disadvantage. Many scholars critique the content of Indigenous policy decisions but continue to look to settler state bureaucracies as the natural decision-making authority in this area. Yet the effects of contemporary policies often remain the same as those of ‘bad’ past policies that liberal states now disavow. In Australia, Indigenous children are currently removed from their families at higher rates than during the official policy era of the Stolen Generations (Krakouer, 2019). Therefore, much Indigenous policy remains consistent in both intent and effect. These policy regimes have long had the effect of fracturing, dispersing and dispossessing Indigenous Peoples and undermining cultural and land-based sovereignty. They continue to express the intention of intervening benevolently in Indigenous lives from a position of unquestioned state authority. In turn, Indigenous communities resist many forms of state intervention, to the frustration of bureaucrats who ‘just want to help’ (Anderson, 2015). Settler colonial Indigenous policy bureaucracies are systems that enact colonial violence in the register of care. Mainstream white populations see the care, while Indigenous populations experience the violence. Far from being a rational or technical process of problem-solving, policy remains a site of colonial struggle over culture, survival and the basic terms of political authority. Over the past ten years, policy agencies have increasingly sought to engage Indigenous People and other social policy subjects in policy implementation and design. Using the language of ‘participatory policy’, ‘deep engagement’, ‘adaptive governance’ and ‘co-design’, there are greater efforts at consultation and cultural sensitivity in policymaking approaches (Brown, 2020). However, especially within Westminster systems, the dynamics of bureaucracy itself undermine such attempts and discipline policy agencies. As Weber describes above, such agencies are accountable upwards in direct reporting lines, ultimately ending with the minister who is an elected member of the legislature. The eye of such ministers is on the ‘public’, and in the CANZUS settler colonies, this means the non-Indigenous electoral majority (Goot & Rowse, 2007); thus, policies that profoundly affect Indigenous lives may not be made for, or accountable to, Indigenous communities themselves but instead respond to an imagined white public. In this case, ‘the public’ often endorses the structural bureaucratic scrutiny, suspicion and intensive administration of targeted Indigenous populations. In such a structured policy environment, attempts to genuinely share control with Indigenous People are resisted and undermined by a risk-averse bureaucracy and ministers who play to the assumptions of the electoral majority. There is an emotional economy of bureaucracy, in which perceptions of authority, trust, blame, impartiality, rationality and selflessness are allocated in regular patterns to different and differently racialised participants—the ‘impartial bureaucrat’, the ‘dysfunctional Indigenous policy subject’ and the ‘well-meaning but disinterested white public’.

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POLICY AND RACE It is here that the astonishing mental attitude called ‘paternalistic’ comes into play. A paternalist is one who wants to stretch racism and inequality farther – once admitted. It is, if you like, a charitable racism, which is not thereby less skillful nor less profitable. (Memmi, 2003 [1965], p. 120)

Finally, the structures of Indigenous policy in settler colonial states map onto the racial hierarchies that sustain the settler order. It is interesting to reflect upon the ways that this takes place through the failures of settler–Indigenous policymaking as much as through its successes in creating social change. The rhetoric of Indigenous policy failure is strong in Australia in particular, and it is certainly the case that the Australian Indigenous policy system is chaotic and ineffective. Yet, while it is important to point out how Indigenous policy systems continue to fail to achieve their stated aims of improving Indigenous wellbeing, such narratives of failure have their own racial logics. As Gomeroi scholar Alison Whittaker (2019) notes, despite the ‘good intentions’ of policy critique, it is too easy to focus on ‘a mismanaged or disadvantaged Indigenous public, rather than the colonial logic of managerialism itself. The answer becomes a more effectively-managed colony, not decolonisation. Oppression becomes “indigenous [sic] disadvantage” – a Black Problem’ (Whittaker, 2019). The very fact of constant policy failure comes to reinforce the negative racialisation of policy subjects—it is such a hard area; it is a wicked problem (i.e., the failure inheres in the problem, not the state [Head, 2022], so there is nothing the state can do even though it tries its best). The state conducts endless reviews of its own policy processes and vows to do better, ultimately extending its own authority and reassuring itself of its own benevolence. In this way, paradoxically, the constant focus on the failures of the state can serve to fundamentally reauthorise state control. Ultimately, this is a policy version of the oldest colonial justification story of all—that the authority of the European coloniser is needed to improve the lives of the colonised. This is the story of race. Race is used to mark out a biological ‘population’ rather than a politically constituted ‘people’ and so is deployed to justify the denial or overriding of Indigenous sovereignty (Moodie, 2017; Rowse, 2012). Although it is, of course, not a natural biological phenomenon it is ‘real’ in the sense that it identifies certain groups as subject to systematised forms of harm, marginalisation and violence (Hall, 2021). Importantly, as many critical race scholars have observed, race does not need to name itself explicitly to operate in the contemporary world (Goldberg, 2015). Racialising frames are operating in Indigenous policy, even where that policy appears to explain Indigenous ‘deficiency’ differently—for example, as the result of cultural practices to which Indigenous Peoples are biologically connected or of irresponsible individual practices or of loosely defined ‘social determinants’ (Bond et al., 2021). For example,

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in the Australian Northern Territory policy intervention of 2007,1 the language of Indigenous community ‘breakdown’ and ‘dysfunction’ tied together culture with race through tropes of savagery and disorder (Macoun, 2011). Indigenous Peoples are constructed as possessing inescapable yet deficient group identities that necessarily make those within them subject to intensive state oversight and justify their experiences of structural harm and inequality. This means that, despite speaking with the voice of sovereign authority, Indigenous Peoples are routinely positioned within mainstream discourse as disadvantaged policy subjects (National Congress of Australia’s First Peoples, 2016). Racialised constructions of Indigenous People continue to circulate throughout colonial society, in media, popular culture, art, science and public debates. However, it is important to identify the significance of the policy bureaucracy as a key generator of racial constructions. Its inherent focus on objectively ‘tending’ to problems in a rationally improvable society ultimately relies on the problematisation of its subjects (Bacchi, 2009). This problematisation has a particular cast in settler colonial contexts; settler governments since the 1800s have used the language of ‘the Aboriginal/Native/Indian Problem’ (Alfred, 2009, p. 3). While the specific framings of this problem rapidly change, there is an underlying policy recognition that the existence and character of Aboriginal people constitute some sort of ongoing difficulty and that ‘government, rather than citizens, is expected to ‘do something about it’ (Morrissey, 2006, p. 347). In Australia, the ‘Aboriginal problem’ is comprehensively rearticulated every decade or so. The very intensity and rapidity of this cycle indicates continuity. More than this, it points to the political utility of a racialised Indigenous population that is constantly presented as in need of the assistance of the settler state. As Nakata (2018) argues, the infantilisation of Indigenous Peoples by the state is systematic, antidemocratic and useful in the project of colonialism. Ultimately, policy bureaucracies require and sustain themselves based on this constant but constantly shifting ‘problem’ of Indigenous ‘deficiency’. Watego (2018) describes ‘The Aboriginal Problem‘ as ‘the very foundation of the relationship between us and the state, serving the interests of the colony financially and politically.’ She argues, ‘Indigenous despair is not a matter of good fortune or bad; it is an enabling apparatus to the colonial project, cleverly disguised behind an agenda of benevolence and good intentions’ (2017). Therefore, when we ask why policies are not working—for example, why the Australian Government cannot ‘close the gap’ in socio-economic outcomes—we may be asking the wrong question. Perhaps we should ask why governments lament their own failures while continuing to do the

1 The Northern Territory Emergency Response (NTER; often just called ‘the intervention’) was a militarised and unilateral federal state intervention that began in 2007. It was ostensibly aimed at preventing child sexual abuse but included a range of unrelated measures including welfare ‘quarantining’ (restricted access cards, similar to using food stamps), administrative takeovers of communities and bans on the consumption of alcohol. The federal government suspended the Racial Discrimination Act 1975 to apply these measures only to Indigenous communities. See Macoun (2011).

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same things in the same way. We could ask what purpose policy failure itself serves in the racial structure of the colony.

CONCLUSION For white colonists such as myself, for whom the state so often ‘works’, the violence of Indigenous social policy systems is strategically obscured. Discussion of policy seems technical, even boring. Policy agencies are ultimately framed as more or less successfully implementing social programs determined elsewhere, so those interested in debating the goals underlying these programs also look to other spaces. Ultimately, this means that a great deal of policy studies literature is technical and focuses on fine-tuning this instrumental process. There is much discussion of ‘best practice’, evidence, consultation, design and so on. This depoliticisation of policy systems has intensified in the neoliberal era, as market-based logics of efficiency and economic competition replace the language of social responsibility (Graeber, 2015). In fact, Indigenous policy systems in the liberal settler colonies routinely enact a form of technical, laundered and depoliticised violence that disperses responsibility and frames the state as neutral. Centring critical Indigenous scholarship and lived experience, which disrupts these assumptions and foregrounds the political nature of policy, is therefore critical to better policy research. Settlers already participate in policy, even if it is only through our tacit consent of the authority of that system over Indigenous lives. As discussed in the section on policy and bureaucracy, electoral politics and other dynamics often mean Indigenous policy is made for our benefit and consumption more than it is for Indigenous Peoples. As critical race scholar David Singh argues, it offers colonists a ‘redemptive dividend’ that offsets the reality of colonisation and tells us that, as a society, we care rather than colonise (see Moreton-Robinson et al., 2012). To quote Memmi (2003 [1965], p. 120) a final time, ‘Having founded this new moral order where he is by definition master and innocent, the colonialist would at last have given himself absolution.’ Yet, it is in the sovereign contestation of policy that its possibilities lie. It is necessarily a site of political conflict and social change—it is the location where collective institutions seek to take political goals and make them into reality via coordinated, large-scale implementation projects. The fact that policy is so often framed as technical and process oriented rather than politically transformative obscures this importance. Policy matters—how it is done and what it does matter intensely. Many Indigenous activists, organisations and communities engage in the policy process to achieve the best possible lives for their communities. They use these apparently technical spaces to exercise Indigenous sovereignty in ways that continually fracture colonial authority. There is better policy and worse policy, better outcomes and worse outcomes, and I certainly do not want to suggest that differences like these do not matter and do not have very real consequences. Depending on the sovereign distribution of a par-

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ticular state, policy may also be one of the only sites for struggle over Indigenous self-determination, survival and voice. Some see the possibility of using policy to force political change in the name of social wellbeing by holding the liberal state to account against its own declared values. This chapter ultimately suggests, however, that it is important to step back to understand the foundational politics of Indigenous policy formations in liberal settler colonies. Without this understanding of the political stakes, public policies—no matter how transformative their agendas—may continue to reperform the colonial violence in which they have so long been enmeshed. Transforming Indigenous policy means paying attention to Indigenous struggles for a new form of sovereign policymaking, which might truly enable the care of Indigenous lifeworlds.

REFERENCES Alfred, T. (2009). Peace, power, righteousness: An indigenous manifesto (2nd ed.). Don Mills, Canada: Oxford University Press. Anderson, I. (2015). The crisis of Australia’s Indigenous policy. Meanjin, 74(3), 54–59. Arendt, H. (2006). Eichmann in Jerusalem: A report on the banality of evil. New York, NY: Penguin Books. Armitage, A. (1995). Comparing the policy of Aboriginal assimilation: Australia, Canada, and New Zealand. Vancouver, Canada: University of British Columbia Press. Australian Government. (2020). National agreement on closing the gap. Retrieved on 14 February 2023 from https://​www​.closingthegap​.gov​.au/​national​-agreement/​national​ -agreement​-closing​-the​-gap Bacchi, C. (2009). Analysing policy. Frenchs Forest, Australia: Pearson Australia. Bauman, Z. (1989). Modernity and the Holocaust. Ithaca, NY: Cornell University Press. Bond, C. J., Singh, D. & Tyson, S. (2021). Black bodies and bioethics: Debunking mythologies of benevolence and beneficence in contemporary Indigenous health research in colonial Australia. Journal of Bioethical Inquiry, 18(1), 83–92. https://​doi​.org/​10​.1007/​ s11673–020–10079–8 Borrows, J. (2004). Practical reconciliation, practical recolonisation? Land, Rights, Law: Issues of Native Title, 2(27) [n.p.]. Brigg, M. & Murphy, L. (2003). Whitegoods [current policies on Aboriginal affairs fail to acknowledge cultural difference]. Arena Magazine, (67), 30. Retrieved on 14 February 2023 from https://​discovery​.ebsco​.com/​linkprocessor/​plink​?id​=​d8a4656e​-5154–3c07–8b73​ -a278576a9dce Brown, P. R. (2020). Understanding barriers to new approaches: A case study from Australian remote Indigenous policy. Critical Policy Studies, 14(4), 408–425. https://​doi​.org/​10​.1080/​ 19460171​.2019​.1625795 Coulthard, G. S. (2014). Red skin, white masks: Rejecting the colonial politics of recognition. Minneapolis, MN: University of Minnesota Press. Davis, M. (2016). Gesture politics. The Monthly, 118, 8–12. Deloria, V. (1969). Custer died for your sins: An Indian manifesto. New York, NY: Macmillan. Eldridge, E. R. & Reinke, A. J. (2018). Introduction: Ethnographic engagement with bureaucratic violence. Conflict and Society, 4(1), 94–98. https://​doi​.org/​10​.3167/​arcs​.2018​.040108 Evans, I. T. (1997). Bureaucracy and race: Native administration in South Africa. Berkeley, CA: University of California Press.

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Evans, J., Genovese, A., Reilly, A. & Wolfe, P. (2012). Sovereignty: Frontiers of possibility. Honolulu, HI: University of Hawai’i Press. https://​ doi​ .org/​ 10​ .21313/​ hawaii/​ 9780824835637​.001​.0001 Eversole, R., McNeish, J.-A. & Cimadamore, A. (Eds.). (2005). Indigenous Peoples and poverty: An international perspective. London, UK: Zed Books. Retrieved on 14 February 2023 from https://​discovery​.ebsco​.com/​linkprocessor/​plink​?id​=​0441864e​-c11d​-3125​ -bfc6–058956f61693 Fixico, D. L. (2012). Bureau of Indian affairs. Santa Barbara, CA: Greenwood. Foley, F. (2020). Biting the clouds: A Badtjala perspective on the Aboriginals Protection and Restriction of the Sale of Opium Act, 1897. Brisbane, Australia: University of Queensland Press. Ford, L. (2008). Indigenous policy and its historical occlusions: The North American and global contexts of Australian Settlement. Australian Indigenous Law Review, 12(1), 69–80. Gilmore, R. W. (2007). Golden gulag: Prisons, surplus, crisis, and opposition in globalizing California. Berkeley, CA: University of California Press. Goldberg, D. T. (2015). Are we all postracial yet? Oxford, MA: Polity Press. Goot, M. & Rowse, T. (2007). Divided nation? Indigenous affairs and the imagined public. Carlton, Australia: Melbourne University Press. Graeber, D. (2015). The utopia of rules: On technology, stupidity, and the secret joys of bureaucracy. Brooklyn, NY: Melville House. Hall, S. (2021). Selected writings on race and difference. Durham, NC: Duke University Press. Head, B. W. (2022). Wicked problems in public policy: Understanding and responding to complex challenges. London, UK: Palgrave Macmillan. Hokowhitu, B. (2020). Routledge handbook of critical Indigenous studies. Hoboken, NJ: Taylor & Francis Group. Howard-Wagner, D. (2018). Moving from transactional government to enablement in Indigenous service delivery: The era of New Public Management, service innovation and urban Aboriginal community development. The Australian Journal of Social Issues, 53(3), 262–282. https://​doi​.org/​10​.1002/​ajs4​.53 Humpage, L. (2010). Revisioning comparative welfare state studies: An ‘Indigenous dimension’. Policy Studies, 31(5), 539–557. https://​doi​.org/​10​.1080/​01442872​.2010​.495902 International Working Group on Indigenous Affairs. (2021). The Indigenous world. Copenhagen, Denmark: International Working Group on Indigenous Affairs. Kidd, R. (1997). The way we civilise: Aboriginal affairs—The untold story. St Lucia, Australia: University of Queensland Press. Krakouer, J. (2019). The stolen generations never ended—They just morphed into child protection. The Guardian, 17 October. Retrieved on 14 February 2023 from https://​www​ .theguardian​.com/​commentisfree/​2019/​oct/​17/​the​-stolen​-generations​-never​-ended​-they​ -just​-morphed​-into​-child​-protection Krakouer, J., Nakata, S., Beaufils, J., Hunter, S.-A., Corrales, T., Morris, H. & Skouteris, H. (2022). Resistance to assimilation: Expanding understandings of First Nations cultural connection in child protection and out-of-home care. Australian Social Work, 1–15. https://​ doi​.org/​10​.1080/​0312407X​.2022​.2106443 Krakouer, J., Wu Tan, W. & Parolini, A. (2021). Who is analysing what? The opportunities, risks and implications of using predictive risk modelling with Indigenous Australians in child protection: A scoping review. Australian Journal of Social Issues, 56(2), 173–197. https://​doi​.org/​10​.1002/​ajs4​.155 Kuokkanen, R. (2020). The Deatnu Agreement: A contemporary wall of settler colonialism. Settler Colonial Studies, 10(4), 508–528. https://​doi​.org/​10​.1080/​2201473X​.2020​.1794211 Langton, M. (2019). Australia’s moral legitimacy depends on recognising Indigenous sovereignty. ABC Religion and Ethics, 8 July. Retrieved on 21 November 2023 from https://​

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www​. abc​. net​. au/​r eligion/​m arcia​- langton​- australia​- moral​- legitimacy​- and​- indigenous​ -sovere/​11287908 LeTourneau, N. (2018). Trump’s direct assault on Native American tribal sovereignty. Washington Monthly, 24 April. Retrieved on 14 February 2023 from https://​ washingtonmonthly​.com/​2018/​04/​24/​trumps​-direct​-assault​-on​-native​-american​-tribal​ -sovereignty/​ Lightfoot, S. R. (2016). Global indigenous politics: A subtle revolution. London, UK: Routledge/Taylor & Francis Group. Lindroth, M. & Sinevaara-Niskanen, H. (2018). Global politics and its violent care for indigeneity: Sequels to colonialism. London, UK: Palgrave Macmillan. Macoun, A. (2011). Aboriginality and the Northern Territory intervention. Australian Journal of Political Science, 46(3), 519–534. Retrieved on 14 February 2023 from https://​discovery​ .ebsco​.com/​linkprocessor/​plink​?id​=​a321c813–5946–361b​-9964–43c94f78c433 McFarling, U. L. (2022). Life expectancy for Native Americans has stagnated—Even long before Covid. Stat, 16 June. Retrieved on 14 February 2023 from https://​www​.statnews​ .com/​2022/​06/​16/​life​-expectancy​-native​-americans​-stagnated/​ Memmi, A. (2003 [1965]). The colonizer and the colonized (H. Greenfield, trans.). London, UK: Routledge. Moodie, N. (2017). Decolonising race theory: Place, survivance and sovereignty. In G. Vass, J. Maxwell, S. Rudolph & K. Gulson (Eds.), The relationality of race in education research (pp. 33–46). London, UK: Routledge. Moreton-Robinson, A. (2007). Sovereign subjects: Indigenous sovereignty matters. Crows Nest, Australia: Allen & Unwin. Moreton-Robinson, A., Walter, M., & Singh, D. (2012). Editorial. International Journal of Critical Indigenous Studies, 5(2), 1. https://​doi​.org/​10​.5204/​ijcis​.v5i2​.85 Moreton-Robinson, A. (2015). The White possessive property, power, and Indigenous sovereignty. Minneapolis, MN: University of Minnesota Press. Moreton-Robinson, A. (2021). Incommensurable sovereignties: Indigenous ontology matters. In B. Hokowhitu, A. Moreton-Robinson, L. T. Smith, C. Andersen & S. Larkin (Eds.), Routledge handbook of critical Indigenous studies (pp. 257–268). London, UK: Routledge. Moreton-Robinson, A., McMillan, M. & Singh, D. (2015). Editorial. International Journal of Critical Indigenous Studies, 8(1), 1. https://​doi​.org/​10​.5204/​ijcis​.v8i1​.128 Morrissey, M. (2006). The Australian state and Indigenous People 1990–2006. Journal of Sociology, 42(4), 347–354. Murphy, L. (2000). Who’s afraid of the dark? Australia’s administration in Aboriginal affairs (Master’s thesis, University of Queensland). Retrieved on 14 February 2023 from http://​ www​.kooriweb​.org/​foley/​resources/​pdfs/​134​.pdf Mutu, M. (2021). Mana Māori motuhake: Maori concepts and practices of sovereignty. In B. Hokowhitu, A. Moreton-Robinson, L. T. Smith, C. Andersen & S. Larkin (Eds.), Routledge handbook of critical Indigenous studies (pp. 269–282). London, UK: Routledge. Nakata, S. (2018). The infantilisation of Indigenous Australians: A problem for democracy. Griffith Review, 60, 104–116. doi:10.3316/informit.586577326214857 National Congress of Australia’s First Peoples (2016). The Redfern statement: Aboriginal and Torres Strait Islander peak organisations unite, 9 June. Retrieved on 14 February 2023 from https://​apo​.org​.au/​node/​67694 Nikolakis, W., Cornell, S. E. & Nelson, H. W. (2019). Reclaiming Indigenous governance: Reflections and insights from Australia, Canada, New Zealand, and the United States. Tucson, AZ: University of Arizona Press. Nikolakis, W. & Nelson, H. (2019). Trust, institutions, and Indigenous self-governance: An exploratory study. Governance (Oxford), 32(2), 331–347. https://​doi​.org/​10​.1111/​gove​ .12374

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O’Bryan, M. (2021). RCPD traffic stop escalates with confrontation. Kota ABC, 20 August. Retrieved on 14 February 2023 from https://​www​.kotatv​.com/​2021/​08/​19/​rcpd​-traffic​-stop​ -escalates​-with​-confrontation/​ Palmer, J. & Brzezinski, D. (Eds.). (2022). Revisiting modernity and the Holocaust: Heritage, dilemmas, extensions. London, UK: Routledge. Retrieved on 14 February 2023 from https://​ discovery​.ebsco​.com/​linkprocessor/​plink​?id​=​74509ca3–6d1c​-35​48–81b6–95​02d50c62e7 Pearson, L. & Cromb, N. (2019). Dr Chelsea Bond delivers a masterclass in Indigenous excellence. Retrieved on 14 February 2023 from https://​indigenousx​.com​.au/​dr​-chelsea​-bond​ -delivers​-a​-masterclass​-in​-indigenous​-excellence/​ Povinelli, E. A. (2011). Economies of abandonment social belonging and endurance in late liberalism. Durham, NC: Duke University Press. Rigney, D., Bignall, S., Vivian, A. & Hemming, S. (2022). Indigenous nation building and the political determinants of health and wellbeing (Discussion paper). Lowitja Institute, Melbourne. Rowse, T. (2012). Rethinking social justice: From ‘peoples’ to ‘populations’. Canberra, Australia: Aboriginal Studies Press. Rowse, T. I. M. (2017). The statistical table as colonial knowledge. Itinerario, 41(1), 51–73. https://​doi​.org/​10​.1017/​S0165115317000110 Silverstein, J. (2023). Cruel care. Clayton, Australia: Monash University Publishing. Simpson, A. (2014). Mohawk interruptus: Political life across the borders of settler states. Durham, NC: Duke University Press. Strakosch, E. (2019). The technical is political: Settler colonialism and the Australian Indigenous policy system. Australian Journal of Political Science, 54(1), 114–130. https://​ doi​.org/​10​.1080/​10361146​.2018​.1555230 Strakosch, E., & Macoun, A. (2012). The vanishing endpoint of settler colonialism. Arena Journal, 37/38, 40–62. doi:10.3316/informit.639920374125373 Sullivan, P. (2011). Belonging together: Dealing with the politics of disenchantment in Australian Indigenous Policy. Acton, Australia: Aboriginal Studies Press. Tjepkema, M., Bushnik, T. & Bougie, E. (2019). Life expectancy of First Nations, Metis and Inuit household populations in Canada. Health Reports, 30(12), 1–10. https://​doi​.org/​10​ .25318/​82–003​-x201901200001​-eng Vimalassery, M. (2014). Counter-sovereignty. J19: The Journal of Nineteenth-Century Americanists, 2(1), 142–148. https://​doi​.org/​10​.1353/​jnc​.2014​.0005 Vistonay, E. (2021). Indigenous prison population continues to increase, while non-Indigenous incarceration rate falls. Guardian Australia, 22 January. Retrieved on 14 February 2023 from https://​www​.theguardian​.com/​australia​-news/​2021/​jan/​22/​indigenous​-prison​ -population​-continues​-to​-increase​-while​-non​-indigenous​-incarceration​-rate​-falls Watego, C. (2017). Is chronicling Indigenous despair the only way we can get on television? The Guardian, 28 November. Retrieved on 14 February 2023 from https://​www​ .theguardian​.com/​commentisfree/​2017/​nov/​28/​is​-chronicling​-indigenous​-despair​-the​-only​ -way​-we​-can​-get​-on​-television Watego, C. (2018). Victims and Vultures: The profitability of problematising the Aborigine. IndigenousX, 15 January. Retrieved on 14 February 2023 from https://​indigenousx​.com​ .au/​chelsea​-bond​-victims​-and​-vultures​-the​-profitability​-of​-problematising​-the​-aborigine/​ #:​~:​text​=​%E2​%80​%9CThe​%20Aboriginal​%20problem​%E2​%80​%9D​%20is​%20the​,the​ %20colony​%20financially​%20and​%20politically Watego, C. (2021). Another day in the colony. Brisbane, Australia: University of Queensland Press. Watson, I. (2015). Aboriginal peoples, colonialism and international law: Raw law. New York, NY: Routledge. Weber, M. (1970 [1948]). From Max Weber: Essays in Sociology. London: Routledge & Kegan Paul.

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Weber, M., Waters, T. & Waters, D. (2015). Rationalism and modern society: New translations on politics, bureaucracy, and social stratification. New York, NY: Palgrave Macmillan. Webster, R. (2020). Tribal and local government agreements: Negotiating mutually beneficial terms for consideration of services. American Indian Quarterly, 44(3), 302–328. Whittaker, A. (2019). Not my problem. Sydney Review of Books, 8 November. Retrieved on 14 February 2023 from https://​sydneyreviewofbooks​.com/​review/​maddison​-colonial​-fantasy/​ Wolfe, P. (2016). Traces of history: Elementary structures of race. London, UK: Verso.

2. Indigeneity, national unity, modernity and public policy in Africa Elifuraha Laltaika

INTRODUCTION Over the last few decades,1 communities self-identifying as Indigenous Peoples have gained tremendous international traction as culturally distinct populations within modern states (Anaya, 2013). Indigenous Peoples have demanded the international community address the systemic marginalisation, subjugation and exclusion they experience within the nation-states that now encompass their traditional territories. Important gains have been made as a result of Indigenous Peoples’ steadfast struggles (Diaz, 2009; Miranda, 2010). These include the establishment by the United Nations (UN) of specific institutional mechanisms (the UN Permanent Forum on Indigenous Issues, UN Special Rapporteur on the Rights of Indigenous Peoples, and UN Expert Mechanism on the Rights of Indigenous Peoples; see Anaya, 2009) and normative standards (such as the UN Declaration on the Rights of Indigenous Peoples [UNDRIP]).2 Together, these institutions and norms guide states’ recognition, promotion and protection of the rights of Indigenous Peoples (Anaya, 2013). Despite these gains, however, Indigenous Peoples in Africa still grapple with towering public policy concerns, particularly because such concerns involve a choice between complex social values and conflict among these values. For example, tensions might arise when policies involve a choice between national unity and protection of the rights of communities on the margins (Hitchcock & Vinding, 2004). In most African countries, public policy has tended to focus on advancing national unity, and, at times, this affects the livelihoods of communities whose members self-identify as Indigenous Peoples. These policy dilemmas are often exacerbated in Africa because of the continent’s colonial past and the perceived need to uphold unity among numerous ethnic groups in the postcolonial era.

1 This periodisation aims to highlight normative and institutional developments that gained traction within the United Nations system from the 1960s onwards; it does not discount the fact that ‘Indigenous Peoples have appeared frequently in major treaties and published lectures contributing to the development of international law since the dawn of systemic European encroachment on distant lands half a millennium ago’ (Anaya, 2004, p. 15). 2 The norms in question are embodied in the UNDRIP, jurisprudence of UN treaty monitoring bodies and International Labour Organization Convention No. 169. See Anaya (2013).

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Specifically, African governments3 have raised questions about the usefulness of the concept of indigeneity and expressed concerns that its application in Africa is likely to generate divisions, deepen ethnic tensions and, consequently, cause ‘political instability, secessions, and threats to the territorial integrity of the African States.’4 Simultaneously, the communities that perceive themselves to be on the margins continue to self-identify as Indigenous Peoples and robustly engage with various national and supranational justice institutions to vocalise their disadvantaged positions (Dahl, 2009). Comprising mostly hunter–gatherers and some groups of nomadic pastoralists,5 these communities associate their marginality with their distinct livelihoods, which are often at odds with their countries’ development priorities (Dahl, 2009). While debates about the best public policy direction in Africa continue (see, e.g., Ndahinda, 2011), discussions gained prominence following the work of the African Commission on Human and Peoples’ Rights (ACHPR).6 Based in Banjul, Gambia, the ACHPR is an intergovernmental institution created by the African Charter on Human and Peoples’ Rights. The main task of the ACHPR is to supervise the Charter’s implementation through human rights promotion and protection. Specifically, Article 30 of the Charter tasks the ACHPR to ‘promote human and peoples’ rights and ensure their protection in Africa.’ In 2005, the ACHPR issued a signature report promoting a public policy change in favour of recognising Indigenous Peoples on the continent (see ACHPR, 2005). While the ACHPR’s work has not altered the direction of public policy on Indigenous Peoples in any significant way, a myriad of positive developments can nevertheless be attributed to it. For example, most African countries voted in favour of the UNDRIP when the UN General Assembly adopted it in 2007 because the ACHPR educated the continent’s policymakers on the relevance of the UNDRIP and reassured them that it does not in any way conflict with the rights recognised by the African Charter. It is noteworthy that the UNDRIP is, arguably, ‘the most comprehensive and advanced of international instruments dealing with Indigenous Peoples rights’ (Charters & Stavenhagen, 2009). Also attributable to the ACHPR’s work on public policy and the promotion of human rights are positive developments evident in two countries: the Central African Republic ratifying the International Labour Organization Convention No. 169 and Congo-Brazzaville enacting a specific law recognising the country’s Indigenous 3 A collective term used in most literature is ‘the African Group’, following a common position African governments adopted under the auspices of the ‘African Group’ that delayed the UN General Assembly’s adoption of the UNDRIP from 2006 to 2007. See, for example, Titanji (2009). 4 These concerns became clearer when African governments documented them to express their disapproval on the adoption of the UNDRIP. See Barume (2009). 5 For a full list of communities that self-identify as Indigenous Peoples in Africa, or ‘groups that could be considered to be indigenous in Africa’, see Bojosi and Wachira (2006, pp. 399–400). 6 For a comprehensive discussion on the ACHPR’s work, see Rudman (2016).

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Peoples (Johnson, 2011). These developments are, however, not a cause for too much celebration in a region with more than 50 countries. Nevertheless, they do help to dispel a bourgeoning body of literature that portrays Africa’s public policy on Indigenous Peoples as monolithic and posits that the concept of Indigenous Peoples is irrelevant and inapplicable on the continent.7 The examples of these two countries also debunk another claim arising from a review of constitutions and legal frameworks in 24 countries with explicit reference to Indigenous Peoples in Constitutions and other legal frameworks; the review erroneously dichotomised African public policy in the area of Indigenous Peoples,8 grouping countries into those that recognise or do not recognise Indigenous Peoples.9 This dichotomy cannot fully encompass the complexities of public policy pertaining to Indigenous Peoples on the African continent. For example, the two areas of scholarship mentioned above utterly overlook the persuasive intellectual influence of the ACHPR’s work, combined with the continued resilient advocacy by Indigenous communities across the continent working for more just public policy. Specifically, the ACHPR’s work planted seeds for ‘bold and creative’ interpretations of ‘traditional human rights norms through the lens of historically excluded and marginalized groups’ (Sing’Oei & Shepherd, 2010, p. 74). With time, the public policy direction that the ACHPR is promoting will potentially persuade policymakers in African countries to adopt more just public policy positions that address the challenges of communities on the margins. Accordingly, understanding these complexities relating to public policy and Indigenous Peoples in Africa in tandem with the ACHPR’s work is key to appreciating what transformations are and are not happening across the continent and the factors that make Indigenous rights particularly difficult to implement. The objective of this chapter is twofold. First, it aims to highlight the persuasive contribution of the ACHPR’s ‘bold and creative’ work in promoting a public policy direction in favour of Indigenous Peoples. Second, it hopes to bring to light factors that are thwarting policy environments conducive to promulgation of public policy in favour of Indigenous Peoples. The remainder of the chapter is structured as follows. Part One provides an overview of the development of Indigenous Peoples’ advocacy in Africa. Part Two 7 See, for example, Beukes (2010): ‘Although peoples’ collective rights are acknowledged in article 19 to 24 of [African] Charter, until fairly recently, Africa has been reluctant to engage in any dialogue on their scope and nature’ (p. 217). See also Bojosi and Wachira (2006): ‘African governments have always maintained that the concept of Indigenous Peoples is irrelevant in Africa since all Africans are indigenous to Africa’ (p. 406). 8 See Thornberry and Viljoen (2009): ‘with few notable exceptions such as elements in the Constitutions of Burundi and South Africa and the Draft Declaration in the Congo, States have not formally accepted the legal existence of Indigenous Peoples’ (p. 154). 9 The study covered the following African countries: Algeria, Botswana, Burkina Faso, Burundi, Cameroon, Central African Republic, Chad, Congo-Brazzaville, Democratic Republic of the Congo, Egypt, Eretria, Ethiopia, Gabon, Kenya, Mali, Morocco, Namibia, Niger, Nigeria, Rwanda, Tanzania, South Africa, Sudan and Uganda.

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addresses the convergence of the ACHPR’s policy preferences with Indigenous Peoples’ steadfast advocacy. Part Three focuses on the salient features of the ACHPR’s report that continue to influence change in public policy directions across the continent. Part Four highlights concrete situations in which the ACHPR has addressed Indigenous contestation and influenced the direction of public policy. Part Five addresses factors thwarting policy environments conducive to the promulgation of public policy in support of Indigenous Peoples. The chapter concludes with a summary and recommendations. It confirms that public policy supporting Indigenous Peoples is particularly hard to come by in Africa due to lack of knowledge and understanding among policymakers, both about who Indigenous Peoples are and what their rights are under international law.

PART ONE: CLAIMING INDIGENEITY: AFRICANS JOIN INTERNATIONAL INDIGENOUS MOVEMENTS Africa’s claimant Indigenous community representatives participated in the UN Working Group on Indigenous Populations (UN WGIP) sessions for the first time in 1989 (Dahl, 2009). This marked the community’s official connection with, and affiliation to, the broader international discussions on Indigenous Peoples’ rights. At the global level, contemporary Indigenous Peoples’ rights movements are traceable as far back as the 1960s and 1970s (Anaya, 1991, p. 4) following the establishment of the UN WGIP. S. James Anaya describes the timeframe between 1960 and 1970 as ‘a watershed in the International Commitment to indigenous issues’ (Anaya, 2013). The UN WGIP ‘extended [Indigenous Peoples’] efforts internationally to secure legal protection for their continued survival as distinct communities with historically based culture, political institutions, and entitlement to land’ (Anaya, 2013). Several reasons explain why Africans were late to join the global Indigenous movements. First, at the end of the 1960s, most African states had only achieved their political independence within the previous 10 years. As one would expect in such circumstances, the overriding public policy considerations at the time centred on decolonisation, national unity and economic development. In their speeches, African leaders promised to reorder government institutions to rebuild equitable and inclusive economies for their newly independent nations (Mbaku, 1995). They insisted that colonial institutional arrangements allowed for income generated in the economies ‘to accrue to European entrepreneurs leaving the majority of the Africans poor and severely deprived’ (Mbaku, 1995, p. 411). Accordingly, key messages contained in the speeches of African leaders at the time were ‘not human rights but anti-colonialism, anti-neocolonialism, anti-imperialism, anti-racism, anti-discrimination, and anti-apartheid’ (Terretta, 2012, p. 334). Given their experiences under colonial domination, the rhetoric largely resonated with the aspirations of most citizens. Correspondingly, communities currently self-identifying as Indigenous Peoples, like other members of African societies, were optimistic that independent governments would reverse the tide.

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Second, single-party democracies and military dictatorships still dominated the political landscape of most African countries during this time. Consequently, public policy space permitting distinct segments of national populations to claim their rights separate from the majority population was severely limited. In contrast, governments emphasised national unity,10 sometimes at the cost of suppressing fundamental human rights, particularly the right to freedom of association and political participation (see, e.g., Wambali, 2009). One legal historian puts it succinctly: ‘whatever justifications that have been given for [a single-party democracy or a military dictatorship], there can be no dispute that it was a system which severely restricted the right of association, especially … participation in political activity and leadership’ (Mwaikusa, 2006, p. 8). The period during which international Indigenous rights began to be articulated through the UN WGIP also witnessed the mushrooming of repressive laws in some states that gave executives unfettered extrajudicial powers. Tanzania’s notorious (now repealed) Preventive Detention Act of 1962 is a case in point. That law allowed the Minister of Home Affairs to detain any person they suspected to be dangerous to ‘peace or good order’ and disallowed any court from questioning the minister’s decision. Similarly worded legislation existed in most other parts of Africa, sanctioning turbulent treatment of political dissent without trial. Third, neither educated elites nor literature on Indigenous rights were available in much of Africa, especially among claimant Indigenous communities. Such literature was central to animating the Indigenous Peoples’ rights movement and powered its emancipatory discussions in other parts of the world.11 The scarcity of such literature and educated elites in Africa was largely due to colonial legacies of underdevelopment. Higher education was not a priority for colonial governments; hence, up to the time of independence, colonial administrators had built very few universities on the continent. In Tanganyika (now Tanzania mainland), for example, no fully fledged university existed by the eve of independence in 1961. Lack of education thus severely limited Indigenous Peoples’ representatives’ technical capacity to effectively engage in global discussions around international human rights. It was not until 1983—two decades after most African countries achieved political independence—that a former member of Tanzania’s Parliament, Moringe Parkipuny, made connections between the human rights situation of his pastoral community and international Indigenous Peoples’ rights claims (Dahl, 2009). In his presentation to the International Union of Anthropological and Ethnological Sciences’ meeting in Canada, Parkipuny posited that the predicament facing his community in relation

10 In Tanzania, for example, national was synonymous with independence itself, as indicated by the national coat of arms bearing the words ‘Uhuru na Umoja’ (‘Freedom and Unity’). 11 S. James Anaya (1991) attributes the presence of ‘a new generation of men and women educated in the ways of the societies that had encroached upon them’ and ‘the proliferation of scholarly literature [that] helped [to] establish Indigenous Peoples’ demands as legitimate among influential intellectual and elite circles’ as factors that animated the movement in the Americas.

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to the Tanzanian Government fit with the issues emerging from global discussions on Indigenous Peoples’ rights (Dahl, 2009). Specifically, Parkipuny drew attention to the large-scale land encroachment that threatened the continued existence of pastoralists, their cultures and spirituality, and indicated that the predicament resonated with the situation of Indigenous Peoples in other parts of the world. Parkipuny’s insights were eye-opening. They inspired actions by other African advocates whose traditional communities, notably pastoralists and hunter–gatherers, were similarly positioned on the margins. These groups started to question the unfriendly public policy preferences underpinning development models that threatened their communities’ cultures, religions and group survival, and the role of states in these practices. Things started changing momentously in the 1980s and 1990s, partly due to the end of the Cold War and the spread of neoliberalism. As a result, African governments experienced a surge of sensitisation seminars about a wide range of good governance, justice and human rights-related issues, including Indigenous Peoples’ rights. These issues came to the fore in the post-Cold War period because African countries needed to identify themselves with the West and its neoliberal values, as embedded in the Washington Consensus as a precondition for getting loans. Accordingly, one can argue that the wave of political change that took root in most parts of the continent in the 1990s expanded democratic spaces, including fostering political pluralism and encouraging the (re)emergence of non-governmental organisations (NGOs). NGOs were key to leading masses to agitate for the expansion of democracy and repeal of draconian legislation. The ACHPR’s work towards influencing this shift in public policy in favour of Indigenous communities happened during the wave of political change described above. In the next part, this chapter discusses the ACHPR’s work, which remains central to and highly influential in advocating for more accommodating public policy favouring recognition of Indigenous Peoples across the continent. It is noteworthy that the ACHPR’s progressive policy interpretation converged with Indigenous Peoples’ resilient advocacy.

PART TWO: ADVOCACY AND EMANCIPATORY POLICY INTERPRETATIONS CONVERGE Despite the friction or contestations over recognising Indigenous Peoples’ identity as Indigenous Peoples, as highlighted above, African communities self-identifying as Indigenous Peoples did not acquiesce. These groups protested and consistently expressed the need for public policy that would support their continued survival as distinct groups within the states that now encompassed them. Many of the communities in question accessed courts of law to protest the annexation of their ancestral lands and destruction of their sacred cultural sites (Laltaika, 2015). Political changes during the 1990s ushered in new possibilities for working across borders, including with the ACHPR.

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The ACHPR assesses state compliance with the African Charter in two main ways. First, it considers complaints that individuals and NGOs file alleging state violation of any right that the Charter protects. Second, the ACHPR examines initial and periodic reports that state parties are required to submit, detailing efforts undertaken to implement the rights that the Charter protects. In tandem with these two undertakings, the ACHPR conducts research, makes information visits and welcomes NGOs with observer status to make statements during the ACHPR’s regular sessions. These methods enable the ACHPR not only to obtain credible information on violations of rights protected by the African Charter but also to raise public awareness of its work. During the ACHPR’s research for its report, Indigenous Peoples made particularly effective use of the opportunity to participate and make statements in the ACHPR’s biannual ordinary sessions. Specifically, Indigenous Peoples provided the ACHPR with strong testimonies about gross human rights violations to which they had been subjected and showcased their vulnerability as distinct populations compared to mainstream or dominant communities (ACHPR, 2005). They agitated for recognition, respect and protection of their human rights on equal footing with other African communities in line with the African Charter.12 After analysing the claimant communities’ statements and testimonies, the ACHPR was convinced that ‘the African Charter on Human and Peoples Rights must form the framework for [the promotion and protection of Indigenous Peoples’ rights]’ (ACHPR, 2005, p. 8). Additionally, the ACHPR considered that ‘the protection and promotion of human rights of the most disadvantaged, marginalized and excluded groups in the continent’ was its major concern (p. 8). Consequently, the ACHPR passed the ‘Resolution on the Rights of Indigenous Populations/Communities in Africa’ during its 28th Ordinary Session. Among other things, the Resolution established a Working Group of Experts on Indigenous Populations (ACHPR WGIP),13 which should not be confused with the UN WGIP discussed elsewhere in this chapter, established by the UN. The ACHPR WGIP was created by the ACHPR with a purely regional scope. The ACHPR WGIP conducted a study analysing the concept of group rights as provided for in the African Charter. Based on this study, the ACHPR WGIP issued a signature report widely regarded as ‘a highly important instrument for the advance-

12 As stated in the report, Indigenous Peoples’ requests to their nation-states relate to ‘the right to survive as peoples, and to have a say in their own future, based on their own culture, identity, hopes and visions’ (ACHPR, 2005, p. 8). 13 According to the Resolution, the ACHPR WGIP has the following mandates: • Examine the concept of Indigenous People and communities in Africa. • Study the implication of the African Charter and human rights and well-being of indigenous communities. • Consider appropriate recommendations for the monitoring and protection of the rights of indigenous communities. • Submit a report to the ACHPR.

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ment of indigenous populations’ human rights situations’.14 In the next part, this chapter discusses how the report has addressed the contestation of indigeneity on the African continent in an attempt to influence public policy.

PART THREE: INFLUENCING PUBLIC POLICY THROUGH RESEARCH As previously mentioned, the ACHPR WGIP conducted a study on the applicability of the term ‘Indigenous Peoples’ in Africa. Specifically, the ACHPR WGIP consulted widely across the continent and studied the human rights situation of Indigenous Peoples in comparison to dominant groups within African states. Additionally, the ACHPR WGIP analysed the African Charter and its jurisprudence on the concept of ‘peoples’. It is noteworthy that, by reference to ‘peoples’, the African Charter explicitly recognises collective rights. This recognition was central to the ACHPR WGIP’s conclusion that the African Charter was compatible with public policy that would respect the rights of communities on the margin who self-identify as Indigenous Peoples. In a comprehensive report published in November 2003 (and adopted by the ACHPR in 2005), the ACHPR WGIP clarified who Indigenous Peoples are understood to be in the African context. The report posits that discussions on Indigenous Peoples ‘should put much less emphasis on the early definitions focussing on aboriginality, as it is difficult and not very constructive’ (ACHPR, 2005, p. 92). It further clarified that the use of the term ‘Indigenous Peoples’ in Africa does not aim to exclude other groups by denying them their original connection to the continent. The report confirmed that all Africans are indigenous to Africa because their presence on the continent predates colonial invasion. Using the term in the African context thus upholds its emancipatory connotation as a platform for seeking protection from emerging norms of international human rights law and moral standards by communities that experience disproportional marginality as a collective due to ‘structural relationships of inequality that have persisted after liberation from colonial dominance’ (ACHPR, 2005, p. 92). Understanding who Indigenous Peoples are in Africa thus calls for laying primacy on ‘the more recent approaches’ that put considerable emphasis on the right to self-determination, which entails (among other things) the right to self-identify as a distinct group within a state. Erica-Irene Daes, former Chairperson of the UN WGIP, is credited for suggesting four criteria for identifying Indigenous Peoples, which the ACHPR WGIP agreed are useful in identifying who Indigenous Peoples in

14 As envisaged during its adoption, the report has facilitated constructive dialogue between the ACHPR and African Union member states and has served as a platform for the ACHPR’s activities in promoting and protecting the human rights of Indigenous populations.

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Africa are (with a caveat that not all of them need to be present to qualify a community as Indigenous). The four criteria are: ● the occupation and use of a specific territory ● the voluntary perpetuation of cultural distinctiveness, which may include the aspects of language, social organisation, religion and spiritual values, modes of production, laws and institutions ● self-identification, as well as recognition by other groups, as a distinct collective ● an experience of subjugation, marginalisation, dispossession, exclusion or discrimination (ACHPR, 2005). Self-determination, for example, is widely considered foundational to how human rights norms are conceptualised.15 Its centrality in Indigenous Peoples’ rights discourses is in ensuring that states do not decide who Indigenous Peoples are but rather recognise, promote and protect the rights inherent to Indigenous Peoples who self-identify as such. In practical terms, group self-identification is usually affirmed by other groups within a particular country that regard the self-identifying group as culturally distinct. This distinction, based on a different culture, positions the community in question at the receiving end of human rights violations, most notably in relation to land dispossession and discrimination. This is because the distinctive culture may be seen as a barrier to state-promoted modernity. Accordingly, the report confirms that Indigenous communities disproportionally experience ‘subjugation, marginalization, dispossession, exclusion or discrimination’ because the peoples in question ‘have different cultures, ways of life or modes of production than the national hegemonic and dominant model’ (ACHPR, 2005, p. 91). In most cases, the marginality of a self-identifying group compared to other more dominant groups remains incontrovertible. Additionally, such distinctiveness is often characterised by special attachment to and use of traditional land that embeds special significance within the collective physical and cultural survival of the self-identifying peoples (Sing’Oei & Shepherd, 2010, p. 93). The traditional land use model of hunter–gatherers exemplifies this point. Hunting wild animals and collecting wild fruits are practices regarded to be at odds with modern development and, consequently, other land uses take precedence should there be a conflict over ancestral land. Based on the above, it is clear that the ACHPR has, through its Working Group’s report, responded to Indigenous contestation by clarifying the applicability of the term ‘Indigenous Peoples’ in Africa, at least conceptually. Beyond adopting the 15 See Sing’Oei and Shepherd (2010), who posit, inter alia, ‘Self-identification should neither detract from the validity of the term nor be seen as an empty mantra. One could argue that self-identification is in fact rooted in the autonomy of the self, the liberal personhood upon which human rights are vested. In fact, we should hold the view that self-identification, as opposed to narrower, inaccurate definition, provides flexibility in its application to the highly varied contexts within which indigenous groups exist globally’ (p. 72).

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report, the ACHPR continued to respond to Indigenous advocacy in concrete cases. Subsequent parts of this chapter highlight a communication filed by an Indigenous community in the Republic of Kenya and the ACHPR’s accompanying advisory opinions and resolutions, which further clarified who Indigenous Peoples are on the continent.

PART FOUR: BEYOND THE REPORT – APPLYING THE INTELLECTUAL BUILDING BLOCKS IN CONCRETE SITUATIONS The ACHPR has used some concrete opportunities to further clarify who Indigenous Peoples in Africa are, most notably, the Endorois Communication, advisory opinions and resolutions. These are discussed below. The Endorois Communication16 In 2009, the ACHPR considered a communication filed by the Endorois Indigenous community of Kenya. The communication provided the ACHPR with the opportunity to use the intellectual building blocks it had helped create in the form of its 2005 report. Accordingly, the ACHPR used the communication ‘to elaborate and clarify the group rights provision of the charter’ (Sing’Oei & Shepherd, 2010, p. 59). For example, the ACHPR reiterated that the term ‘Indigenous Peoples’ does not create a special class of citizens but addresses ‘present-day injustices and inequalities’ (see Endorois Decision, p. 149). Generally, the ruling ‘casts new light on the rights of Indigenous Peoples in Africa’ (Gilbert, 2011). But who are the Endorois and why did they bring their claim to the attention of the ACHPR? Based on the court ruling and as summarised by Sing’Oei and Shepherd (2010), the Endorois is a community native to the Lake Bogoria area, in Kenya’s Rift Valley Province, comprising approximately 400 families. The community is a subgroup of the larger Kalenjin-speaking ethnic group that practices pastoralism as their predominant livelihood system. In 1974, without prior consultations, the Government of Kenya converted the Endorois community’s ancestral lands into a wildlife reserve. The government promised to pay compensation but failed to honour this commitment. Instead, the government denied the community access to pastures and ancestral lands while simultaneously harassing and intimidating community leaders (Sing’Oei & Shepherd, 2010). Dissatisfied, the Endorois community channelled their grievances through 16 Center for Minority Rights Development (CEMIRIDE) on behalf of the Endorois Community v. Kenya, Comm. No. 276/2003, African Commission on Human and Peoples Rights (hereinafter Endorois Communication) available at https://​ minorityrights​ .org/ ​ w p ​ - content/ ​ u ploads/​ 2 015/​ 0 3/​ C EMIRIDE​ - on​ - behalf​ - of​ - the​ - Endorois​ - Community​ -Communication​-276​.pdf (accessed on 28 November 2022).

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various levels of the Kenyan judiciary, ultimately unsuccessfully. Undeterred, the Endorois filed a communication before the ACHPR, seeking a formal declaration that by evicting them from their ancestral land, the Kenyan Government had violated community rights protected by the African Charter. In addition, the Endorois community sought restitution of their lands, insisting that their culture and religion depend on access to their ancestral land. In response, the ACHPR recognised the nexus between access to land and natural resources and Indigenous cultural and spiritual rights, emphasising the significance of collective land ownership to Indigenous Peoples’ cultural and spiritual practices. In addition to sustaining livelihoods, land for most Indigenous Peoples is inextricably linked to their cultural and spiritual integrity. Among pastoralists, for example, pastures, sacred religious sites and medicinal plants are all situated in a holistic ‘territory of life’. Accordingly, forceful evictions affect not only an Indigenous People’s traditional ways of life but also their health, religion and cultures, which are all intimately connected to their ancestral lands. In recognising this connection, the ACHPR provided clarity around Indigenous Peoples’ communal land rights in relation to cultural and spiritual practices. The Endorois further requested that their land be demarcated and collective title be issued in the name of their community. They sought monetary compensation as recompense for their unlawful and forced evictions. The ACHPR ruled on merits, upholding all the Endorois community’s requests for relief. The ACHPR filed a court case on the same matter before the African Court on Human and Peoples’ Rights, which decided in favour of the ACHPR. However, at the time of this writing, the Kenyan Government is yet to implement the court’s decision.17 Issuing Advisory Opinions and Resolutions Another tool the ACHPR uses to shape public policy on Indigenous Peoples is its advisory opinions and resolutions. Through these documents, the ACHPR has emphasised the promotion and protection of Indigenous Peoples’ rights in Africa. For example, by issuing its Advisory Opinion on the UNDRIP (2007), the ACHPR clarified that the rights contained in the then-draft UNDRIP, including the right to self-determination, were not at odds with the African Charter or the jurisprudence of the ACHPR as a whole. Prior to the adoption of this Advisory Opinion, those African heads of state and governments (the African group) who had attended the UN General Assembly in 17 African Commission on Human and Peoples Rights v. Republic of Kenya, Application No. 006/2012 Judgement [of the African Court on Human and Peoples Rights] (hereafter Endorois Decision) available at https://​www​.african​-court​.org/​en/​images/​Cases/​Judgment/​ Application​%20006–2012​%20​-​%20African​%20Commission​%20on​%20Human​%20and​ %20Peoples ​ % E2 ​ % 80 ​ % 99 ​ % 20Rights ​ % 20v ​ . ​ % 20the ​ % 20Republic ​ % 20of ​ % 20Kenya ​ . ​ . pdf (accessed on 28 November 2022).

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2006 expressed their disapproval of some of the content of the draft UNDRIP. The African Group was concerned, for example, that establishing a specific category of rights holders could create ‘tension among groups and instability between states’ (African Group, 2007). Accordingly, the UN General Assembly deferred adoption of the draft UNDRIP to the subsequent year. It was during this deferment that the ACHPR successfully shaped public policy through its Advisory Opinion (2007), ultimately facilitating the UN General Assembly’s adoption of the UNDRIP in 2007. During its 16th Extraordinary Session, in July 2014, in Kigali, Rwanda, the ACHPR adopted ‘Resolution 291 on the World Conference on the Rights of Indigenous Peoples’. This Resolution further exemplifies the ACHPR’s success in shaping public policy in favour of Indigenous Peoples’ rights on the continent. In this Resolution, the ACHPR called on African Union member states to, among other things, ‘participate fully and actively in the preparation and deliberation of the world conference’.18 Initially, the UN General Assembly issued Resolution 65/198 of 21 December 2010, stipulating the General Assembly’s intention to hold a high-level plenary meeting to be known as the World Conference on Indigenous People. The purpose of the World Conference on Indigenous Peoples (held as planned in New York in September 2014) was to discuss challenges, best practices and perspectives in the realisation of the rights contained in the UNDRIP. The preceding discussion in this chapter has established that African states (in this case, members of the African Union) have been reluctant to fully embrace the existence of Indigenous People within their borders. However, the ACHPR has seized opportunities to shape public policy on the continent regarding Indigenous Peoples, thus advancing the promotion and protection of Indigenous Peoples’ rights in Africa. As indicated, the tools the ACHPR has used to promote favourable public policy include authoring a comprehensive report and issuing advisory opinions. These tools have solved concrete conceptual challenges at the international and regional level through advances such as successfully persuading the African Group to agree to the adoption of the UNDRIP by the UN General Assembly. Nevertheless, challenges remain. The next part of this chapter examines state-level factors thwarting public policy developments in favour of promoting and protecting Indigenous Peoples’ rights on the African continent.

18 In addition, the ACHPR called on African Union member states to (1) support the full and active participation of Indigenous Peoples and civil society organisations in the preparation and deliberation of the World Conference; (2) ensure that the drafting of the UN WGIP outcome document is done with the participation of Indigenous Peoples; (3) engage in constructive dialogue with the UN WGIP and civil society organisations working on indigenous issues; and (4) ensure that the outcome document of the UN WGIP recognises the work of regional human rights mechanisms, including the ACHPR’s work in promoting and protecting the rights of Indigenous Peoples in Africa.

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PART FIVE: HURDLES AT THE DOMESTIC LEVEL Robert Williams (1995) identifies challenges thwarting public policy that would advance Indigenous Peoples’ quest for self-determination in the United States, including racism and the failure to fully recognise Indigenous sovereignties. These factors resonate with the situation in other Western settler colonial states (namely, Canada, Australia and New Zealand). While the applicability of the factors that Williams identifies to Africa cannot be ruled out entirely, this part briefly outlines three additional factors that have severely undermined public policy in favour of Indigenous Peoples’ rights on the African continent: modernisation/developmentalism, wildlife conservation, and lack of knowledge and understanding on Indigenous Peoples’ issues. Modernisation/Developmentalism Joel Ngugi (2001) characterises modernisation as a mega force or public policy trajectory that has severely curtailed the full realisation of Indigenous Peoples’ rights by limiting Indigenous Peoples in their ‘full emancipatory potentials’ (p. 298). He contends that modernisation has justified the labelling of Indigenous Peoples as a ‘development problem’, thereby justifying ‘intervention by the national law and nation-state’ (p. 298). Ngugi’s theorising resonates with the reality of Indigenous communities in most African states. In Tanzania, for example, ‘pastoralists are often seen and treated as a problem likely to hinder the smooth implementation of government policies’ (Mwaikusa, 1993, pp. 144–145). Consequently, ‘when charting out policies, the interests of the pastoralists are not considered adequately – or at all’ (pp. 144–145). This explains why, in most African countries, public policy prioritises agribusiness, wildlife conservation, extractive industries and infrastructural development over Indigenous Peoples’ livelihoods and customary tenure (Laltaika & Askew, 2021). Apart from accelerating the loss of lands belonging to Indigenous communities, the ‘modernisation mission’ as a public policy trajectory has recently infiltrated courts of law and other tribunals in some parts of Africa. Cases involving Indigenous Peoples’ rights are replete with statements by judges zealously upholding a government’s efforts to ‘assist’ Indigenous Peoples to do away with their ‘backwardness’ and instead join mainstream society in the ‘development’ process. This has led to the piling up of precedents in which Indigenous Peoples are losers (Peter, 2007). Chris Maina Peter puts this in a broader context: the courts tend to openly side with ‘development’ view of the government and the need to ‘civilize’ the indigenous groups so that they can leave behind their ‘backwardness’ and enter the mainstream programmes of the government and the country. Hence, one notices a lot of impatience in the courts when dealing with cases involving Indigenous People. Therefore, in the majority of cases, the indigenous groups have been on the losing side of the coin. (2007, p. 484)

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In light of this, it seems indisputable that modernisation, compounded by biased judicial interpretations, continues to be a major factor thwarting public policy developments in favour of Indigenous Peoples’ rights in Africa. Wildlife Conservation Another public policy trajectory unfavourable to Indigenous Peoples on the continent pertains to wildlife conservation. A 2018 UN report posits, ‘conservation interventions around the world have far too often resulted in gross violation of human rights of Indigenous Peoples’ (UN Permanent Forum on Indigenous Issues, 2018, p. 2). Specifically, the report indicates that rights violations primarily occur through ‘forced displacement from their territories; the destruction of livelihoods; the loss of access to lands, resources and sacred sites; the loss of culture; and extra judicial killings’ (p. 2). Another study confirms that close to five million people globally have been forcibly removed from their ancestral lands and that attempts to return to their lands to harvest game or plants have been criminalised (Hershey, 2019). The public policy direction fostering fortress conservation is largely blamed on international conservation organisations that pressure national governments in developing countries to evict Indigenous communities from their lands to achieve exclusionary conservation goals (Hershey, 2019). These evictions cause severe suffering for Indigenous Peoples whose lands are inextricably connected to their physical, spiritual and cultural sustenance. Where local communities are permitted to coexist with wildlife, high restrictions on traditional livelihood systems are imposed. The Ngorongoro Conservation Area in Northern Tanzania exemplifies this point. Maasai pastoralists residing in the Conservation Area cannot access some strategic traditional grazing land due to restrictions contained in the area’s General Management Plan. Similarly, this plan disallows cultivation in the entire Ngorongoro Area without providing a viable alternative to supplement household food needs (Laltaika, 2013). Further, the involvement of powerful actors such as international conservation organisations with the support of their Western governments diminishes Indigenous Peoples’ capacity to engage. This makes conservation a public policy hurdle to Indigenous Peoples’ rights. Lack of Knowledge and Understanding Knowledge of human rights facilitates cultures that are more respecting and embracing of human rights (Laltaika, 2013). Lack of knowledge and understanding has been cited as the main factor inhibiting state implementation of the international human rights standards contained in the UNDRIP (Anaya, 2011). The knowledge deficit also applies to states—duty-bearers with obligations under international and regional human rights systems. In the context of Indigenous Peoples’ rights, lack of knowledge and understanding is undoubtedly a major barrier to African states adopting public policy favourable to Indigenous Peoples. Two points exemplify this theory.

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First, as discussed above, whenever the ACHPR has provided public education to policymakers (e.g., through issuance of advisory opinions), positive actions have resulted. A towering example in this regard relates to the African Group’s support of the World Conference on Indigenous Peoples. The ACHPR’s public awareness campaign among policymakers resulted in the African Group’s decision to support the holding of the World Conference by the UN General Assembly. Second, there is no doubt that the dominance of public policy unfavourable to Indigenous Peoples at the country level in Africa is caused by conflating indigeneity (as applied in the African context) with aboriginality or priority in time (which is more useful in the CANZUS states, comprising Canada, Australia, New Zealand, United States of America). Persistent conflation happens despite clarity around the contextual application of the term in the ACHPR WGIP’s report. Accordingly, lack of knowledge on who Indigenous Peoples are fuels reluctance to develop public policy that protects and promotes Indigenous Peoples’ rights in Africa. Associating the potential for divisions, secession and ethnic tensions with communities on the margins, such as hunter–gatherers, who are struggling to survive on a daily basis in harsh environments, is emblematic of the lack of knowledge and understanding on the part of African policymakers on Indigenous Peoples and their rights. Correspondingly, a state whose key officials are knowledgeable of human rights standards is more likely to fulfil its international obligations and pledges, including recognition and protection of Indigenous Peoples’ rights.

CONCLUSION The concept of Indigenous Peoples in Africa has attracted resilient opposition from African governments. However, the ACHPR’s work in response to persistent advocacy by Indigenous Peoples has addressed unfavourable public policy trajectories through research. Wherever the ACHPR has raised policymakers’ awareness, positive developments have resulted. However, other inhibiting factors remain—namely, developmentalism or modernisation and globalisation-driven nature conservation— which make developing public policy in favour of Indigenous Peoples’ rights particularly difficult on the African continent. Africa’s dominant public policy unfavourable to Indigenous Peoples has its roots in historical and contemporary factors. In historical terms, it is informed by Africa’s history of colonisation, which has promoted some livelihoods over others, and which remained uncorrected upon attainment of political independence. Contemporary factors include modernisation and development models, exclusionary or fortress conservation models that have the backing of Western governments through international conservation lobby organisations, and lack of knowledge and understanding. Cumulatively, these factors determine the prominence of public policies that severely undermine Indigenous Peoples’ capacity to flourish.

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REFERENCES Advisory Opinion of the African Commission on Human and Peoples’ Rights on the United Nations Declaration on the Rights of Indigenous Peoples. Adopted May 2007. African Commission on Human and Peoples’ Rights, 41st Ordinary Session, Accra, Ghana (UN Document A/HRC/EMRIP/2009/CRP.2). Retrieved on 10 June 2021 from https://​www​.iwgia​.org/​en/​resources/​publications/​305​-books/​2979​-advisory​-opinion​-of​-the​ -african​-commission​-on​-human​-and​-peoples​-rights​-on​-the​-united​-nations​-declaration​-of​ -indigenous​-peoples​.html African Charter on Human and Peoples’ Rights. Adopted 27 June 1981 (entered into force 21 October 1986). Organisation of African Unity (OAU Document CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982)). Retrieved on 10 June 2021 from http://​www​.achpr​.org/​files/​instruments/​ achpr/​banjul​_charter​.pdf African Commission on Human and Peoples’ Rights [ACHPR]. (2005). Report of the African Commission’s Working Group of Experts on Indigenous Populations/Communities. ACHPR and IWGIA. Retrieved on 10 June 2021 from https://​www​.iwgia​.org/​images/​ publications//​African​_Commission​_book​.pdf African Group. (2007). Aide memoire on the United Nations Declaration on the Rights of Indigenous Peoples, 9 November. New York, NY: Author. African Group, 2007 Anaya, S. J. (1991). Indigenous rights norms in contemporary international law. Arizona Journal of International and Comparative Law, 8, 1–39. Retrieved on 10 June 2021 from https://​scholar​.law​.colorado​.edu/​faculty​-articles/​880 Anaya, S. J. (2004). Indigenous peoples in international law. New York, NY: Oxford University Press. Anaya, S. J. (2009). International human rights and indigenous peoples. Philadelphia, PA: Wolters Kluwer. Anaya, S. J. (2011). Statement of the UN Special Rapporteur on the Rights of Indigenous Peoples, S. James Anaya to the 66th Session of the UN General Assembly. UN General Assembly, 66th Session, Third Committee, New York, NY, 17 October. Retrieved on 11 May 2022 from https://​unsr​.jamesanaya​.org/​?p​=​559 Anaya, S. J. (2013). The human rights of indigenous peoples: United Nations development. University of Hawaiʻi Law Review, 35, 983–1012. Retrieved on 11 May 2022 from https://​ scholar​.law​.colorado​.edu/​faculty​-articles/​1282 Barume, A. K. (2009). Responding to the concerns of the African states. In C. Charters & R. Stavenhagen (Eds.), Making the Declaration work: The United Nations Declaration of the Rights of Indigenous Peoples (IWGIA Document No. 127, pp. 170–182). Copenhagen, Denmark: IWGIA. Retrieved on 11 May 2022 from https://​ www​ .iwgia​ .org/​ images/​ publications/​making​_the​_declaration​_work​.pdf Beukes, M. (2010). The recognition of indigenous peoples, and their rights as ‘a people’. South African Yearbook of International Law, 35(1). Retrieved on 11 May 2022 from https://​hdl​ .handle​.net/​10520/​EJC100143 Bojosi, K. N. & Wachira, G. M. (2006). Protecting indigenous peoples in Africa: An analysis of the approach of the African Commission on Human and Peoples’ Rights. African Human Rights Law Journal, 6, 382–406. Retrieved on 29 July 2022 from https://​www​.ahrlj​.up​.ac​ .za/​bojosi​-k​-n​-wachira​-g​-m Charters, C. & Stavenhagen, R. (2009). The UN Declaration on the Rights of Indigenous Peoples: How it came to be and what it heralds. In C. Charters & R. Stavenhagen (Eds.), Making the Declaration work: The United Nations Declaration of the Rights of Indigenous Peoples (IWGIA Document No. 127, pp. 10–14). Copenhagen, Denmark: IWGIA. Retrieved on 29 July 2022 from https://​www​.iwgia​.org/​images/​publications/​making​_the​ _declaration​_work​.pdf

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Dahl, J. (2009). IWGIA: A history (Document No. 125). Copenhagen, Denmark: IWGIA. Retrieved on 29 July 2022 from https://​www​.iwgia​.org/​images/​publications/​0015​_IGIA​_​-​ _a​_history​.pdf Diaz, A. W. (2009). How indigenous peoples’ rights reached the UN. In C. Charters & R. Stavenhagen (Eds.), Making the Declaration work: The United Nations Declaration of the Rights of Indigenous Peoples (IWGIA Document No. 127, pp. 16–31). Copenhagen, Denmark: IWGIA. Retrieved on 29 July 2022 from https://​ www​ .iwgia​ .org/​ images/​ publications/​making​_the​_declaration​_work​.pdf Gilbert, J. (2011). Indigenous peoples’ human rights in Africa: The pragmatic revolution of the African Commission on Human and Peoples’ Rights. The International and Comparative Law Quarterly, 60(1), 245–270. Retrieved on 29 July 2022 from https://​www​.jstor​.org/​ stable/​23017106 Hershey, R. A. (2019). ‘Paradigm wars’ revisited: New eyes on Indigenous Peoples’ resistance to globalization. The Indigenous Peoples’ Journal of Law, Culture & Resistance, 5(1). https://​doi​.org/​10​.5070/​P651043049 Hitchcock, R. & Vinding, D. (Eds.). (2004). Indigenous people’s rights in Southern Africa (Document No. 110). Copenhagen, Denmark: IWGIA. Retrieved on 1 March 2021 from https://​www​.iwgia​.org/​images/​publications/​EN110​_INDIGENOUS​_PEOPLES​_RIGHTS​ _IN​_SOUTHERN​_AFRICA​.pdf International Labour Organization. (1989). Indigenous and Tribal Peoples Convention (Convention No. 169/C169), 27 June. Retrieved on 1 March 2021 from https://​www​ .ilo​.org/​dyn/​normlex/​en/​f​?p​=​NORMLEXPUB:​55:​0:​:​NO:​:​P55​_TYPE​,P55​_LANG​,P55​ _DOCUMENT​,P55​_NODE:​REV​,en​,C169​,/​Document Johnson, C. (2011) Congo: New law on rights of indigenous peoples. Retrieved on 1 March 2021 from http://​www​.loc​.gov/​law/​foreign​-news/​article/​congo​-new​-law​-on​-rights​ -of​-indigenous​-peoples/​ Laltaika, E. (2013). Pastoralists’ right to land and natural resources in Tanzania. Oregon Review of International Law, 15(1), 43–62. Retrieved on 1 March 2021 from http://​hdl​ .handle​.net/​1794/​17857 Laltaika, E. (2015). Business and human rights in Tanzania: Indigenous peoples’ experiences with access to justice and remedies. In C. M. Doyle (Ed.), Business and Human Rights: Indigenous Peoples’ Experience with Access to Justice in Africa, Asia and Latin America. Copenhagen, Denmark: IWGIA. Available on 1 March 2021 from https://​www​.iwgia​.org/​ en/​resources/​publications/​305​-books/​3193​-business​-and​-human​-rights​-indigenous​-peoples​ -experiences​-with​-access​-to​-remedy​-case​-studies​-from​-africa​-asia​-and​-latin​-america​.html Laltaika, E. I. & Askew, K. M. (2021). Modes of dispossession of Indigenous lands and territories in Africa. In E. C. Gabbert, F. Gebresenbet, J. G. Galaty & G. Schlee (Eds.), Lands of the Future: Anthropological Perspectives on Pastoralism, Land Deals, and Tropes of Modernity in Eastern Africa (pp. 99–122). Oxford and New York: Berghahn Books. Mbaku, J. M. (1995). Post-independence opportunism and democratization in Africa. The Journal of Social, Political, and Economic Studies, 20(4), 405–422. Miranda, L. A. (2010). Indigenous peoples as international law makers. University of Pennsylvania Journal of International Law, 32(1), 203–263. Retrieved on 1 March 2021 from https://​scholarship​.law​.upenn​.edu/​jil/​vol32/​iss1/​4/​ Mwaikusa, J. T. (1993). Community rights and land use policies in Tanzania: The case of pastoral communities. Journal of African Law, 37, 144–163. Retrieved on 1 March 2021 from https://​www​.jstor​.org/​stable/​745727 Mwaikusa, J. T. (2006). Tanzania’s constitutional history and development. In W. Binchy & C. Finnegan (Eds.), Human rights, Constitutionalism and the Judiciary: Tanzania and Irish Perspectives (pp. 3–19). Dublin, Ireland: Clarus Press. Ndahinda, F. M. (2011). Indigenousness in Africa: A Contested Legal Framework for Empowerment of ‘Marginalized’ Communities. Berlin, Germany: Springer.

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Ngugi, J. (2001). The decolonization–modernization interface and the plight of Indigenous Peoples in post-colonial development discourses in Africa. Wisconsin International Law Journal, 20(2), 297–352. Retrieved on 1 March 2021 from https://​heinonline​.org/​HOL/​ LandingPage​?handle​=​hein​.journals/​wisint20​&​div​=​16​&​id​=​&​page​=​ Peter, C. M. (2007). Human rights of Indigenous minorities in Tanzania and the courts of law. International Journal of Group and Minority Rights, 14(4), 455–487. http://​dx​.doi​.org/​10​ .1163/​138548707X247428 Rudman, A. (2016). The Commission as a Party before the Court: Reflections on the Complementarity Arrangement. PEJL/PER, 19, 1–29. https://​doi​.org/​10​.17159/​1727–3781/​ 2016/​v19i0a1225 Sing’Oei, K. A. & Shepherd, J. (2010). ‘In land we trust’: The Endorois’ Communication and the quest for indigenous peoples’ rights in Africa. Buffalo Human Rights Law Review, 16, 57–111. Retrieved on 1 March 2021 from https://​digitalcommons​.law​.buffalo​.edu/​bhrlr/​ vol16/​iss1/​2/​ Terretta, M. (2012). ‘We had been fooled into believing that the UN watches over the entire world’: Human rights, UN trust territories, and Africa’s decolonization. Human Rights Quarterly, 34(2), 329–360. Retrieved on 1 March 2021 from https://​www​.jstor​.org/​stable/​ 23254729 Thornberry, F. & Viljoen, F. (2009). Overview report of the research project by the International Labour Organization and the African Commission on Human and Peoples’ Rights on the constitutional and legislative protection of the rights of indigenous peoples in 24 African countries. Pretoria, South Africa: Centre for Human Rights, University of Pretoria. Retrieved on 28 March 2021 from https://​www​.ilo​.org/​global/​topics/​indigenous​ -tribal/​publications/​WCMS​_115929/​lang​-​-en/​index​.htm Titanji, E. D. (2009). The right of indigenous peoples to self-determination versus succession: One coin, two faces? African Human Rights Law Journal, 9(1), 52–75. Retrieved on 28 March 2021 from https://​www​.ahrlj​.up​.ac​.za/​titanji​-e​-d United Nations Declaration on the Rights of Indigenous Peoples. Adopted 13 September 2007. United Nations General Assembly Resolution 61/295 (UN Document A/RES/61/295). Retrieved on 28 March 2021 from https://​social​.desa​.un​.org/​issues/​indigenous​-peoples/​ united​-nations​-declaration​-on​-the​-rights​-of​-indigenous​-peoples United Nations Permanent Forum on Indigenous Issues. (2018). Study to examine conservation and Indigenous peoples’ human rights (UN Document E/C.19/2018/9). New York, NY: United Nations. Retrieved on 28 March 2021 from https://​undocs​.org/​Home/​Mobile​ ?FinalSymbol​=​E​%2FC​.19​%2F2018​%2F9​&​Language​=​E Wambali, W. (2009). The practice on the right to freedom of political participation in Tanzania. African Human Rights Law Journal, 9, 203–223. Retrieved on 28 March 2021 from https://​ www​.ahrlj​.up​.ac​.za/​images/​ahrlj/​2009/​ahrlj​_vol9​_no1​_2009​_michael​_wambali​.pdf Wiessner, S. (1999). The rights and status of indigenous peoples: A global comparative and international legal analysis. Harvard Human Rights Journal, 12, 57–128. Retrieved on 28 March 2021 from https://​harvardhrj​.com/​wp​-content/​uploads/​sites/​14/​2020/​06/​12​ _Wiessner​_Rights​-and​-Status​-of​-Indigenous​-Peoples​.pdf Williams, R., Jr. (1995). Sovereignty, racism, human rights: Indian self-determination and the postmodern world legal system. Review of Constitutional Studies, 2, 146–202. Retrieved on 28 March 2021 from https://​heinonline​.org/​HOL/​LandingPage​?handle​=​hein​.journals/​ revicos2​&​div​=​11​&​id​=​&​page​=​

3. Self-determination, sovereignty and policy: how does a focus on Indigenous rights transform policymaking?1 Rauna Kuokkanen

INTRODUCTION Since the 1970s, political and other discourses on Indigenous self-determination have become global due to the transnational Indigenous rights advocacy in the United Nations (UN) framework vis-à-vis international law and human rights mechanisms. However, as this edited volume painstakingly demonstrates through a wide range of cases from around the world, there are persistent and continuing threats to the existence of Indigenous Peoples as a distinct group with their own individual forms of social, economic, legal and cultural organisation. Many of these threats stem from governments’ public policy decisions that do not consider Indigenous rights, even in cases where they are constitutionally protected. The UN Declaration on the Rights of Indigenous Peoples (UNDRIP) is a global standard for Indigenous rights and provides a normative framework for restructuring Indigenous–state relations. In this chapter, I examine the following key questions from the vantage point of Indigenous self-determination and sovereignty: Why are Indigenous rights so difficult to implement? What are the core requirements and frameworks of policy and governance that respect Indigenous human rights? I will begin with a brief discussion of the emergence of the self-determination discourse starting in the United States (US) in the 1960s and how that has shaped domestic policymaking and vice versa. I then consider the current global Indigenous self-determination and human rights discourse. I examine its relationship first to the international norm of state sovereignty and second to exclusionary gender regimes and gendered violence, both considerable problems in Indigenous communities. I ask whether UNDRIP, notwithstanding its utmost significance as the international human rights instrument for the protection of Indigenous rights, stands in the way of implementing Indigenous self-determination and sovereignty in certain regards. In the second part of this chapter, I examine the question of policy frameworks in advancing and implementing Indigenous self-determination with the help of two cases: the Canadian ‘Inherent right to self-government’ policy adopted in 1995 and Greenland. The latter achieved extensive self-government and, thus, policymaking 1 This chapter draws partly on my book Restructuring relations: Indigenous self-determination, governance and gender (Kuokkanen, 2019).

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authority through a negotiated agreement with Denmark in 2009. The former case clearly demonstrates that when it comes to creating policies for advancing and operationalising Indigenous self-determination, the state is never a disinterested party and, for that reason, ought to stay out of policymaking. However, Greenland is one of the few regions in the world where Indigenous People (the Inuit Greenlanders represent 88 per cent of the country’s population) run their own affairs and are in charge of their own policymaking. Greenland is a unique case that allows assessing the success of an Indigenous-majority government in developing policies that respect the human rights of all Indigenous People. The questions I ask in this regard include: does the substance of a policy change when Indigenous People oversee policymaking, and how does this affect the implementation of self-determination? In conclusion, I suggest policy that promotes and protects Indigenous self-determination, as well as the rights of all Indigenous People, is made by placing marginalised groups at the centre of policymaking. I briefly discuss examples of this in traditional Indigenous governance models at the end of the chapter.

DISCOURSES OF INDIGENOUS SELF-DETERMINATION One of the first times the term ‘self-determination’ was employed in the Indigenous context was in 1966 by the National Congress of American Indians (NCAI) in response to the planned continuation of the Indian termination policy in the US. ‘Self-determination’ was used specifically to gain greater control of Native American policymaking, while maintaining the trust relationship with the federal government encoded in historical treaty provisions (Deloria & Lytle, 1984). The employment of explicit self-determination discourse led to the articulation of a new direction for federal Indian policy in 1968 by President Johnson, who presented a new goal ‘that ends the old debate about “termination” of Indian programs and stresses self-determination; a goal that erases old attitudes of paternalism and promotes partnership [and] self-help’ (Corntassel & Witmer II, 2008, p. 14). Federal Native American policy frameworks have sought to advance greater space for Indigenous governance, although their successes have been varied and limited (Borrows, 2016, p. 165). Following NCAI’s early invocation of self-determination, Native American grassroots activism and political lobbying by the American Indian Movement and other organisations bore fruit in 1970. President Nixon called for self-determination legislation. Five years later, Congress passed the Indian Self-Determination and Education Assistance Act 1975 to delegate authority to administer federal funds and control federal services on reservations (McClellan, 1990; Strommer & Osborne, 2014–2015).2 The Tribal Self-Governance Act augmented this Act in 1994, considered the beginning of the retribalisation of the Native American Government



2

For an early critical analysis of the Act, see Barsh and Trosper (1975).

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(Johnson & Hamilton, 1995). Under the provisions of the Act, Native American tribes were authorised to ‘redesign programs, activities, functions or services and reallocate funds of such programs, activities or services’ (cited in Johnson & Hamilton, 1995, p. 1268). Although far from perfect, these Acts have enhanced self-governance to a much greater extent than in Canada, for example, where Indigenous policymaking and service delivery are still largely under federal control (Borrows, 2016). However, there has been a simultaneous backlash in recent years as Congress and US Supreme Court decisions have slowly undermined tribal authority and sovereignty (see Corntassel & Witmer II, 2008; Duthu, 2013). Despite greater control of tribal affairs, the colonial legislative and policy framework that treats Indigenous Nations in the US as ‘domestic dependent nations’ remains firmly in place. The federal oversight of tribal governments continues today. Besides participation in domestic policymaking, Native Americans have been on the cutting edge in shaping the discourse on Indigenous self-determination in scholarship. Native American scholars, most notably the late Vine Deloria Jr., were the first to theorise Indigenous self-determination and the related concepts of sovereignty, nationhood and self-government (see Deloria, 1979). With Clifford Lytle, Deloria Jr. argued for distinguishing between nationhood and self-government, which for him represented ‘two entirely different positions in the world’ (Deloria & Lytle, 1984, p. 14). While nationhood entailed political autonomy and autonomous decision-making, self-government implied a municipal-level authority with external oversight and recognition of its legitimacy. Deloria was among the first to be concerned about how ‘self-government’ detaches political life from the social and cultural life of the community. He saw how the NCAI’s call for self-determination was soon turned against tribal leaders by the federal government through the appointment of compliant Native Americans to serve in various administrative positions (Deloria & Lytle, 1984). Since Deloria’s early writings, scholarship on tribal sovereignty in the US has contributed extensively to Indigenous self-determination’s political and public policy discourses, including the global human rights framework in international law, debated in arenas such as the UN. This framework has been vital for globally establishing the normative legal and political framework for Indigenous self-determination as we know it today, perhaps best in the form of UNDRIP. Self-determination is about relations. For Indigenous Peoples, self-determination is about a vision and struggle for restructuring relations of domination for a more just present and future for their societies. Indigenous rights advocates have successfully argued for a more accurate and inclusive interpretation of sovereignty and self-determination not limited to separation and non-interference, views promulgated by the states and settler state-driven international relations and law. I have established that in addition to being a fundamental right, self-determination is a foundational value that guides Indigenous People and their communities in their daily lives and in social, political and economic interactions at both individual and collective levels (Kuokkanen, 2019). In international human rights instruments, self-determination is typically conceptualised as a collective human right that enables a group to determine their own polit-

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ical, social, cultural and economic affairs. However, this right remains against the international legal norms of state sovereignty and territorial integrity (Anaya, 2009, p. 194). Due to the state-centred character of international law, Indigenous rights are always constructed through, and in relation to, that framework. The international Indigenous rights framework, including UNDRIP and the two International Labour Organization (ILO) conventions pertaining to the rights of Indigenous and tribal peoples (107 and 169), do not recognise that Indigenous Peoples possess sovereignty, a right considered to be vested only in states. UNDRIP upholds both the existing sovereignty in international law and the legitimacy of state sovereignty by assuming the existence of the states (Glenn, 2011; Macklem, 2015).3 Although UNDRIP conceptualises Indigenous Peoples as ‘international legal actors’, they do not inhabit the same international legal stage as sovereign states (Macklem, 2015, p. 156). This is most evident in the UNDRIP articles 4 and 5, which confine the application of the right of Indigenous self-determination to internal and local affairs. This limitation disregards the universal right to self-determination belonging to all peoples, codified in the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social, and Cultural Rights (ICESCR) in 1966. The doctrine of state sovereignty further restricts Indigenous self-determination by constraining the international system’s ability to get involved in or influence internal or domestic affairs, such as policymaking. A major obstacle to Indigenous policymaking by states is the states’ premise of treating Indigenous Peoples merely as subjects of domestic policy rather than rights-bearing members of sovereign Indigenous Nations (see Strakosch, 2015).

GENDERED HIERARCHIES AND EXCLUSIONS IN INTERNATIONAL LAW Another major concern with the international Indigenous human rights regime, including the discourse of self-determination, is that it reproduces and perpetuates exclusions and hierarchies towards Indigenous women—like those maintained by international law towards women in general. This is a major factor preventing greater implementation of Indigenous self-determination. As a state-centric right, Davis (2011) highlights (in the context of Australia) that self-determination: is skewed toward the Indigenous man as ‘Indigenous Peoples’ because it makes mistaken assumptions about the shared experiences of Indigenous men and women and has manifested in distorted policy-making and judicial decisions that impact negatively upon Aboriginal women. (p. 6)

3 For an in-depth discussion of the taken-for-granted nature of settler state sovereignty in Indigenous politics, see Nadasdy (2017) and Tully (2000).

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Indigenous feminist analysis has established that Indigenous self-determination is not possible without addressing gender violence and, specifically, violence against Indigenous women. Among the first comparative studies in this area was Eileen Luna’s exploration of Native American and Australian Aboriginal family violence programs. Showing how enhanced domestic violence services strengthened the self-determination of Indigenous communities, Luna established a direct link between collective and individual self-determination and the alleviation of violence against women. Luna (1999, pp. 8–9) argued that simultaneously empowering Indigenous women and communities is ‘the key to significant legal and policy advances.’ Empowering Indigenous women and eliminating gendered violence is impeded by a notable lack of statistics, detailed reports and disaggregated data on the extent of violence against Indigenous women in most regions worldwide (UNPFII, 2012). Scholars emphasise that the invisibility and lack of statistics pertaining to certain groups are neither accidental nor neutral. Rather than indicating an absence of violence, this lack of statistics attests to the limited importance afforded to the problem in society. The lack of statistics has major social and economic consequences because ‘statistics are fundamental to the distribution of funds and the creation of social policy’ (Bograd, 1999, p. 279). Gender violence negatively impacts not only women and girls but entire communities, typically creating cycles of violence and intergenerational individual and collective trauma, as well as contributing to the breakdown of family and kinship relations, including the removal of children to foster care and the child welfare system. This all has an immense impact on the community’s cohesion and community capacity, and thus a community’s ability to control its collective affairs. The effects of gender violence are felt by women who experience violence and by families and communities in terms of grief and suffering, as well as impacting the community’s capacity to function collectively (Giustina, 2008; Helliwell, 2002). My research has further shown that when violence against Indigenous women is not recognised as a public concern with extensive social consequences, it effectively stands in the way of implementing Indigenous self-determination. Considering the heightened levels of gendered violence in many Indigenous communities, gendered violence prevents a substantial percentage of community members from fully participating in self-determination efforts and governance initiatives. Nationhood is not possible in crisis conditions, as one of my research participants put it: ‘how can we be nations if we’re all beat up and bruised all the time, not just literally the women, but as families and communities?’ (Kuokkanen, 2019, p. 182). With regard to implementing Indigenous self-determination and, more broadly, the Indigenous rights stipulated in UNDRIP, the question of violence against Indigenous women highlights two related issues. First, the invisibility and separation of gendered violence from the self-determination agenda have material and often very negative effects on Indigenous women (who bear the disproportionate brunt) and, more broadly, on Indigenous societies in terms of community capacity. Second, if Indigenous women’s rights are not protected and advanced on par with those of Indigenous men, we are not respecting and promoting the human rights of all, but

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only certain groups and certain rights. In short, UNDRIP cannot be excluded from scrutiny in assessing its ability to equally protect all Indigenous individuals’ rights, including Indigenous women and two-spirit and queer individuals (LGBTQ2S+). There are several reasons why Indigenous rights are so difficult to implement. For one, it is not in the interest of settler colonial states to advance Indigenous self-determination and land rights because of states’ dependence on Indigenous dispossession of their lands and resources. What is less obvious is that the very human rights instruments and Indigenous rights mechanisms established to advance Indigenous self-determination have been constructed without attention given to the built-in gendered hierarchies and exclusions in international law. Next, I consider the relationship between the implementation of self-determination, often framed in terms of self-government and policymaking.

POLICY AND SELF-GOVERNMENT In Canada, the federal government recognised the inherent right of self-government as a policy (the ‘Inherent Right Policy’) in 1995 as an existing Aboriginal right under section 35.4 Initially, self-government was not entrenched in the Constitution Act 1982, which, under section 35, recognises Aboriginal peoples (i.e., Indians, Inuit and Métis) and affirms existing Aboriginal and treaty rights. Regardless of its lofty name, the federal ‘Inherent Right Policy’ does not recognise Aboriginal self-government as a right pre-existing in the establishment of the Canadian state but instead constructs it in narrow technical terms.5 Since the Inherent Right Policy, self-government agreements have often been negotiated as part of comprehensive land claims settlements (also known as modern treaties). A major problem with comprehensive land claims settlements is that they continue the extinguishment policy established in the historical treaties the Crown signed with Indigenous Nations (the 4 Notwithstanding the federal government’s interpretation of section 35 recognising self-government as part of existing Aboriginal rights, Canadian Courts have not yet explicitly confirmed the constitutional protection of the right to self-government. The Supreme Court of Canada has left the question open, while some lower courts maintain the right does not exist (see Christie, 2007; Imai, 1999) There are exceptions, such as Campbell v British Columbia (Attorney General) (2000), providing that Aboriginal self-government rights are constitutionally protected and have not been extinguished (Morellato, 2008). Canadian courts have also recognised the pre-existing sovereignty of Indigenous peoples (Supreme Court of Canada decision in Haida Nation v British Columbia (Minister of Forests), 2004). 5 In practice, ‘inherent’ means ‘constitutional’: by recognising the ‘inherent right’ of Aboriginal self-government, the federal government means that Aboriginal people have a right written into section 35 of the Constitution Act 1982 to govern themselves in relation to matters that are internal to their communities, their ‘unique’ cultures, identities, traditions, languages and institutions, and with respect to their special relationship to land and their resources. The 1995 ‘Inherent Right Policy’ also amended the previous land claims policy, making it possible to negotiate land claims and self-government simultaneously and be included in the same agreement (see Morse, 1999).

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numbered post-Confederation treaties 1 to 11, signed between 1871 and 1921). The extinguishment policy is a process in which undefined Aboriginal and treaty rights are surrendered in exchange for a degree of self-government, minuscule percentages of traditional territory and a financial settlement. Although no longer called ‘extinguishment’ (e.g., Nisga’a Nation, 1998), it has been noted that there is no difference between extinguishment and in so-called ‘release’, for the legal effect is the same (Manuel, 2015; Tully, 2000).6 Deloria’s (1979) early critical analysis of self-government policies continues to influence Indigenous scholars and policy analysts beyond the US. In Canada, his theories have informed criticism of the federal government’s Inherent Right Policy for its deliberately ambiguous language, if not double standard. While the right to self-government is recognised as ‘inherent’ in the abstract, the policy requires First Nations to negotiate to give effect to this ‘inherent’ right and limits it to the delegated municipal-style authority (Manuel, 2015; McNeil, 2007). Scholars have also criticised the current self-government framework in Canada not only for its limited authority but, more fundamentally, for allowing colonial structures and policy frameworks to remain unchanged. Meanwhile, self-management of poverty and social problems is delineated to Indigenous communities without supplying them with the resources necessary to tackle them (Coates & Morrison, 2008; Coulthard, 2007; Irlbacher-Fox, 2009; Maaka & Fleras, 2005; Monture Angus, 1998). Others argue that negotiated self-government represents continued dispossession of Indigenous territories to create certainty for the government and extractive industry (Asch, 2014; Coulthard, 2014; Manuel, 2015). An inherent problem of the Inherent Right Policy is its apparent objective to ‘simply modernize an unjust relationship’ (Irlbacher-Fox, 2009, p. 160). The colonial relationship remains unchanged, as the negotiated self-government agreement must fit within the Canadian constitutional framework and ‘[t]he original and ongoing dispossession of lands, resources, political autonomy and cultural integrity’ is not addressed at all (p. 161). With the inherent right approach, the core question of self-government identified by the Royal Commission of Aboriginal Peoples—the fair redistribution of land and resources—is overlooked. This is to the extent that some characterise the state-led self-government negotiations as ‘termination tables’ to put an end to Indigenous rights and turn First Nations into municipalities (Diabo, 2016). Indeed, it seems that the policy, specifically established to recognise and realise the ‘inherent’ right of Aboriginal self-government in Canada, has utterly failed to advance Indigenous self-determination. What does this say about the challenges of policymaking and creating policies to assist in implementing self-determination in 6 Unlike the Nisga’a, the Tsilhqot’in Nation, also in British Columbia, chose the court system over the modern treaty process. In a historic decision in July 2014, the Tsilhqot’in established Aboriginal title over 40 per cent (approximately 1,900 square kilometres) of their traditional territory and became a first Indigenous people in Canada to win title to their land in courts.

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concrete terms? The foundational problem is that, in its dealings with Indigenous Peoples, the state will, first and foremost, always protect its own interests. In Canada, this is evidenced by how the most recent Liberal Government (under Justin Trudeau) has continued to push for an aggressive extractive agenda in Indigenous territories— despite its lofty rhetoric about nation-to-nation relationships mattering most—upon coming to power in 2015. Even a schematic glance at how the 1995 Inherent Right Policy says one thing (recognising the ‘inherent’ right to self-determination) and does the other (terminating Indigenous rights) leads to the conclusion that the state should simply stay out of making policy for Indigenous Peoples. Thus, the question is not about what kind of public policy the state should be making vis-à-vis Indigenous Peoples but whether the state should be the primary authority or even an actor in Indigenous policymaking. The UNDRIP’s key articles on self-determination support this argument. Articles 4 and 5 specify that Indigenous Peoples have the right to their own political and other institutions and have the right to run their own internal affairs. Although policymaking is not specifically mentioned in these articles, it is obvious that ‘running their own internal affairs’ involves, first and foremost, the right to create policies according to their own needs and priorities.7 The Canadian Inherent Right Policy demonstrates that Indigenous self-determination is not a public policy issue. Let us take seriously the fact that Indigenous Peoples are distinct political communities with their own governing institutions and conventions. The state then has no business in drafting policies that prescribe the formula for self-government with pre-existing conditions and constraints. The shape that Indigenous self-determination takes in each circumstance must be left for Indigenous Peoples to deliberate and create according to their own principles and practices. Nevertheless, recognising that Indigenous self-determination also entails a shared rule implies the need for renegotiating Indigenous–state relations. A more viable option would be the legislative route—agreeing on and passing an Act to establish a framework within which Indigenous Peoples could shape their self-governing structures in a way they see fit. It goes without saying that the framework would need to be loose enough to enable broad enough jurisdiction and decision-making authority over internal affairs. There are several examples of this approach in Nordic countries. Greenland has negotiated and passed extensive self-government legislation with Denmark in 2009, while Norway, Sweden and Finland have passed more limited legislation regarding Sámi ‘cultural autonomy’ between 1988 and 1995. The significant difference between the two sets of legislation is that in Greenland, the Act establishes a public government. In contrast, in the other Nordic countries, the legislation applies only to the Sámi people. While discussing the Sámi legislation and policymaking is beyond this chapter, a brief cautionary note via an example is warranted. Particularly, the

7 It is interesting in and of itself that policymaking is not mentioned in UNDRIP except in reference to racist policies of the state in the preamble.

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case of the Sámi Parliament in Finland illustrates the need for robust legislation that encompasses the necessary authority and other tools to operationalise and develop self-determination in concrete terms. The national legislation enacted in 1995 in Finland for Sámi cultural autonomy established a general framework within which Sámi cultural autonomy was supposed to be developed. The development of Sámi cultural autonomy stalled after establishing new institutions, becoming a mere formal consultation practice between the government and the established Sámi Parliament. Due to the lack of judicial and public policy avenues, the Sámi Parliament and other key institutions have not been able to give meaning and substance to Sámi cultural autonomy (Guttorm, 2018). The Greenland Self-Government Act of 2009 provides Greenland sole authority for almost all areas of jurisdiction over which a government can exercise legislative and executive authority. Greenland’s self-government is commonly considered a leading example of implementing and exercising Indigenous self-determination, even though it is a public government, not a form of Indigenous self-government based on international norms for Indigenous Peoples’ rights. As Indigenous People, the Inuit in Greenland are globally at the forefront of running their own affairs and making their own policies virtually in all areas of government.8 There are policy areas of specific concern among Greenlanders, such as the development of mineral resources, and social policies, of which I focus here on violence against women. Many observe that the government of Greenland (Naalakkersuisut) is either not doing enough in these areas or has adopted an inappropriate approach (see Kuokkanen, 2019). Particularly the first four years of Greenland’s new self-government (2009–2013) were characterised by an intense push by Naalakkersuisut to develop the country’s vast mineral resources. The high commodity prices led to great interest in Greenland by transnational oil and other exploration corporations. Perhaps most pressingly, Naalakkersuisut was pushed to seek new sources of revenue as the annual block grant from Denmark had been frozen per the self-government agreement. Greenlanders saw the importance of diversifying the economy, which was based almost entirely on fishing. At the same time, many felt unease with the aggressive push for rapid exploitation of the country’s underground wealth, which was being made more accessible in part by climate change melting the icecap that covers over 80 per cent of Greenland’s land mass. One cause for concern in Greenland relates to the environmental and social standards in place to ensure healthy natural resources that safeguard the Inuit hunting and

8 Through the Self-Government Act, Greenland has the right to elect its own parliament and government, the latter with executive authority over the areas of jurisdiction included in the Act. The elected assembly or the Parliament of Greenland (Inatsisartut) consists of 31 members, who are elected by the population of Greenland for a four-year period. The elected assembly approves the government, which is responsible for the central administration, headed by a premier with a cabinet. The parliament also appoints the premier, who nominates the ministers for the cabinet. There are currently 10 ministers, the majority of whom are Inuit Greenlanders.

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fishing culture. Another growing concern has had to do with the shortcomings in consultation and transparency regarding planned activities. Two well-known examples, lifting the 25-year-old moratorium on uranium mining and awarding a licence for an iron-ore open pit mine known as Isua, illustrate these challenges well. A movement against uranium mining petitioned the government with 1,200 signatures, demanding a referendum on the issue. Many, including leading opposition politicians, were deeply critical of citizen involvement in the decision-making. Some suggested that the government adopted a deeply anti-democratic approach and failed to observe the key norm of UNDRIP: free, prior and informed consent (Olsvig, 2013). Similarly, the Isua project was criticised for inadequate public consultation and considerable environmental, cultural and socioeconomic impacts, including importing several thousand foreign labourers to construct and operate the mine. Another policy area that needs greater attention from the Greenland self-government is addressing violence against women. In Greenland, violence and homicide rates are high, but statistics on gendered violence in Greenland are next to non-existent. According to one survey, 63 per cent of the adult population perceive family violence as a problem, and 58 per cent perceive sexual abuse as a social problem (Poppel, Kruse, Duhaime & Abryutina, 2007). Moreover, young Greenlandic women report being sexually abused more than other groups in Greenland (Naalakkersuisut, 2013, p. 26). In 2013, the Naalakkersuisut launched its ‘Strategy and Action Plan against Violence, 2014 to 2017’, which remains by and large gender neutral. Beyond making a passing reference to violence being gendered and recognising that, in Greenland, perpetrators of violence are mostly men, the gendered character of violence is not considered. Rather than as a matter of Indigenous self-determination, violence is primarily seen as a social and criminal issue leading to ill health and the socioeconomic marginalisation of individuals. Although violence negatively impacts entire Indigenous communities, it is inadequate to consider violence in non-gendered terms, such as through the euphemistic terminology of ‘domestic violence’, ‘spousal abuse’ or ‘family violence’. Referring to the problem correctly—violence against women—legitimises it as a serious public social and political concern rather than a personal problem. It also helps identify and create specific and more appropriate policies, programs and laws to address the issue (Naranch, 1997, p. 24). Violence, abuse and aggression in intimate relationships are always gendered, and claims for gender symmetry obscure the facts, the problem and solutions alike (Bergen, 1998; Hamberger & Guse, 2002; Johnson, 1995; Kimmel, 2002; Saunders, 2002; Yllö & Bograd, 1988). Male violence against women and female violence against men are not identical because each takes place within specific contexts of gender shaped by history, culture, economy and politics. These contexts include women’s lower economic status within the family, a greater share of caregiving work and the very construct of the nuclear patriarchal family in which men can yield their privilege, power and control over their wives (Loseke & Kurz, 2005; Yllö & Bograd, 1988).

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INDIGENOUS POLICYMAKING The Greenland policymaking example demonstrates some of the challenges Indigenous governments face regarding policies that respect and uphold Indigenous rights. It points to the fact that Indigenous People gaining control of decision-making and policymaking in their own affairs does not automatically guarantee adherence to Indigenous rights as stipulated in international human rights instruments such as UNDRIP. Put bluntly, self-determination does not automatically mean ‘appropriate’ or ‘good’ policymaking—if ‘good’ policy implies ensuring that the human rights of all segments of society are taken into consideration. This brings us back to the questions asked in this chapter: How do we ensure that human rights apply to all, not only to certain groups, in society? What would be the requirements of such policy and governance? I suggest that one of the key requirements of policy that respects Indigenous self-determination in its fullest sense and the human rights of all Indigenous People is to place marginalised groups at the centre of policymaking. ‘Marginalised’ implies groups that have not conventionally been actively and/or meaningfully involved in Indigenous decision and policymaking, such as children, two-spirit/queer people and women. I eschew the term ‘special needs’ or ‘vulnerable’ used in UNDRIP in reference to Indigenous elders, women, youth, children and persons with disabilities (Article 22) because it implicitly assumes the male norm. It naturalises ‘special needs’—particularly those of women—instead of paying attention to structures and relations that actively construct and perpetuate them. Women, including Indigenous women, are not ‘special needs’. Their ‘vulnerability’ is socially constructed by patriarchal power relations, resulting in systemic and persistent gender discrimination and subjugation in society (Iorns, 1993; Jaggar, 2009). Gendered power relations in society are sustained by both material factors such as economic inequalities and by ideas and beliefs (Nedelsky, 2011). Especially concerning children, placing them at the centre of policymaking may first sound unconventional or even far-fetched. It does not mean that children would be actively involved in decision-making—although engaging youth more extensively and meaningfully in political and policy processes is something that many youths want and expect (Kuokkanen, 2019, p. 104). The idea of placing children at the centre of policymaking draws on the suggestion made by Wanda Nanibush, who maintains that, with regard to the survival and future of Indigenous societies, ‘children and their wellbeing is the first and last question’.9 Ultimately, Indigenous governance systems ought to be structured in a way that children would be not only at the centre of community life but also at the centre of all political decision-making in a way such that all community decisions would be about children and their wellbeing (Kuokkanen, 2019, p. 223).

9 Nanibush on a panel on Idle No More at the International Studies Association Meeting, Toronto, 24 March 2014.

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There are critical policy analyses considering the problems of existing child welfare systems in Indigenous communities. However, they do not go as far as to suggest establishing a framework in which all decision-making and policymaking centre around the wellbeing and needs of children (e.g., Sanderson, 2012). A common shortcoming of these analyses is their lack of gender analysis or consideration of the effects of the imposition of colonial institutions (such as child welfare) on gender relations and conceptions of family in Indigenous communities. And Indigenous child welfare policy must address the nuclear family’s implicit and explicit patriarchal ideologies and assumptions to amount to a radical but necessary policy and legislative shift. These extend to a number of other areas of legislation and policy, such as matrimonial property laws and housing questions that seriously impact women’s ability to protect themselves and their children from abuse and violence and ensure basic safety and security.10 I suggest that one potential way of addressing the challenge of excluding marginalised groups from policymaking and political participation is to closely consider certain traditional Indigenous governance systems that guarantee the participation of all segments and groups of society. One such example can be found in the Haudenosaunee, specifically, the Seneca governance model discussed in detail by Oneida legal scholar Robert Porter (1999). Very briefly, the traditional Haudenosaunee model of governance was and continues to be based on decision-making along gender-specific political roles, the main ones being the clanmothers and the chiefs (royaneh). ‘The royaneh are all men but are selected by the women from his nation whose family “holds” the particular title’ (p. 103). Clanmothers also removed chiefs from their positions if they failed to serve their people. If and when the chiefs neglected to heed the clanmothers’ advice, ‘both the men and women of the Confederacy would meet in their own separate councils to discuss the matter and give notice and warnings to the royaneh to take corrective action’ (p. 105). Porter (1999, p. 135) notes that the Haudenosaunee governance structure based on Gayanashagowa (the Great Law of Peace) worked ‘for one important reason – it promoted peace by ensuring that all members of Haudenosaunee society had a say in the governmental process.’ Porter submits that the idea of equal (i.e., same) rights to political participation does not necessarily square off with the unique historic gender-based decision-making of the Haudenosaunee in which women were politically equal with men but with clearly gender-differentiated political roles. To consider the traditional gender-differentiated Haudenosaunee governance system is not to propose to imitate or reproduce it, which would not amount to much more than appropriation and distortions. Rather, it is to point to the utmost significance of establishing governance structures that account for all members of a society in its decision and policymaking. Additionally, it shows the possibilities that exist. It may serve as an impetus for not only paying a closer look at existing systems but also taking the feminist argument about the imperative of responding to the needs

See my critique of Sanderson’s proposal in Kuokkanen (2019, ch. 6).

10

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and concerns of all citizens and community members seriously. Only by restructuring governance institutions in a way that the participation of every group is guaranteed can we achieve policymaking frameworks and platforms that take everyone’s rights into question in a way necessary for implementing Indigenous self-determination in its full sense.

CONCLUSION The fundamental problem with public policy is that it assumes state jurisdiction over Indigenous Peoples. It does this by creating them as subjects of domestic policy and then treating them as such without heeding the internationally established norm of recognising Indigenous Peoples as right-holders of self-determining Indigenous Nations and societies. Indigenous self-determination is not a public policy issue. Failure to recognise and treat Indigenous Peoples as distinct political communities is a normative problem, not just a matter of states’ inadequate respect for and support of Indigenous rights, including the right and foundational value of self-determination. In this chapter, I have examined the relationship between policymaking and the implementation of Indigenous self-determination, which remains challenging despite UNDRIP’s normative framework. I focused on one of the central questions framing this Handbook: What are the core requirements and frameworks of policy and governance that respect Indigenous human rights? To answer that question, I first considered why Indigenous rights and the norms specified in UNDRIP are so difficult to implement. Several interrelated obstacles prevent Indigenous rights in general and Indigenous self-determination specifically from being properly implemented and operationalised. One set of obstacles is the international human rights framework itself, within which UNDRIP is formulated and located. These include the norm of state sovereignty, which delimits and constrains Indigenous self-determination in a number of ways ranging from states’ unilateral imposition of authority and jurisdiction to protecting this jurisdiction within state boundaries as ‘internal’ or ‘domestic affairs’. Public policy and policymaking are central issues in this. Related and problematically to some, UNDRIP sustains the status quo of state sovereignty through the existence of the states. The third challenge is how the international human rights regime, including the legal and political discourse of Indigenous self-determination, marginalises women’s rights and concerns. One major concern is gendered violence, which, according to Indigenous women, is a central issue of Indigenous self-determination. When violence against Indigenous women is not identified as a public concern with extensive social consequences, it obstructs the implementation of Indigenous self-determination (Kuokkanen, 2019). First, the invisibility and separation of gendered violence from the self-determination agenda have material and often very negative effects not only on Indigenous women (who obviously bear the disproportionate brunt) but also, more broadly, on Indigenous societies in terms of community capacity.

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Second, if Indigenous women’s rights are not protected and advanced on par with those of Indigenous men, we are not respecting and promoting the human rights of all, but only certain groups and certain rights. In other words, there is a conspicuous lack of policies and governance frameworks aimed at eliminating violence against Indigenous women, considered a precondition of Indigenous self-determination. Conversely, research has also demonstrated that the concurrent empowerment of Indigenous women and Indigenous communities directly feeds into notable progress in policy. To answer the second question about requirements for policy that respects and promotes Indigenous rights, I considered two cases: the 1995 Canadian Inherent right to self-government policy and Greenland’s 2009 Self-Government Act. I maintain that Indigenous self-determination cannot be advanced or put into practice through public policy by the state. Policymaking by a settler colonial state is always informed by its own political and economic interests, which starkly oppose genuine Indigenous self-determination. I suggest that a better avenue is negotiating and passing framework legislation that grants and enables factual and substantial authority, jurisdiction and policymaking capacity to Indigenous People. As the example of the Sámi cultural autonomy legislation in Finland shows, simple framework legislation is incapable of providing the necessary tools for giving substance to or operationalising self-determination in practice. UNDRIP’s articles 4 and 5 enshrine that Indigenous Peoples have the right to their own political and other institutions and to run their own internal affairs. The Inuit in Greenland have achieved this through their public self-government legislation. I discussed two policy areas in this chapter, the development of the country’s mineral resources and the elimination of violence against women in Greenland, and conclude that the Inuit-led government of Greenland, or Naalakkersuisut, has not, however, yet successfully created policies that would equally protect the rights of all Inuit Greenlanders. Considering the challenges and shortcomings of existing policy decisions and frameworks—including those by Indigenous Peoples themselves—in advancing Indigenous self-determination, I turned in the final section of the chapter to a discussion of what a policy that takes the human rights of all Indigenous People into account would look like. I contend that the fundamental requirement is to position currently marginalised groups as the starting point of policymaking. Only in this way will public policy respect Indigenous self-determination in its entirety and the human rights of all Indigenous People. There are historical examples of Indigenous political communities where governance structures were such that they ensured the effective participation of all groups in society in important deliberations and decision-making. These examples illustrate the possibility of achieving Indigenous self-determination that heeds all Indigenous People’s rights and freedoms. At the same time, these examples show that focusing on Indigenous rights profoundly transforms policymaking. Implementing Indigenous self-determination to the fullest requires no less than the comprehensive restructuring of existing governance and policy frameworks.

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REFERENCES Anaya, S. J. (2009). The right of indigenous peoples to self-determination in the post-Declaration era. In C. Charters & R. Stavenhagen (Eds.), Making the Declaration work: The United Nations Declaration on the Rights of Indigenous Peoples (pp. 184–198). Copenhagen, Denmark: IWGIA. Asch, M. (2014). On being here to stay: Treaties and Aboriginal Rights in Canada. Toronto, Canada: University of Toronto Press. Barsh, R. L. & Trosper, R. L. (1975). Title I of the Indian Self-Determination and Education Assistance Act of 1975. American Indian Law Review, 3(2), 361–395. Bergen, R. K. (Ed.). (1998). Issues in intimate violence. Thousand Oaks, CA: Sage. Bograd, M. (1999). Strengthening domestic violence theories: Intersections of race, class, sexual orientation and gender. Journal of Marital and Family Therapy, 25(3), 275–289. https://​doi​.org/​10​.1111/​j​.1752–0606​.1999​.tb00248​.x Borrows, J. (2016). Freedom and Indigenous constitutionalism. Toronto, Canada: University of Toronto Press. Christie, G. (2007). Aboriginal nationhood and the inherent right to self-government. In Research paper for the National Centre for First Nations Governance. Vancouver, Canada: National Centre for First Nations Governance. Coates, K. S. & Morrison, W. R. (2008). From Panacea to reality: The practicalities of Canadian Aboriginal self-governance agreements. In Y. Belanger (Ed.), Aboriginal self-government in Canada: Current trends and issues (pp. 105–122). Saskatoon, Canada: Purich. Corntassel, J. & Witmer II, R. C. (2008). Forced federalism: Contemporary challenges to Indigenous nationhood. Norman, OK: University of Oklahoma Press. Coulthard, G. (2007). Subjects of empire: Indigenous Peoples and the ‘politics of recognition’ in Canada. Contemporary Political Theory, 6(4), 437–460. https://​doi​.org/​10​.1057/​palgrave​ .cpt​.9300307 Coulthard, G. (2014). Red skin, white masks: Rejecting the colonial politics of recognition. Minneapolis, MN: University of Minnesota Press. Davis, M. (2011). A reflection on the limitations of the right to self-determination and Aboriginal women. Indigenous Law Bulletin, 7(23), 6–8. Deloria, V. J. (1979). Self-determination and the concept of sovereignty. In R. Dunbar Ortiz (Ed.), Economic development in American Indian reservations (pp. 22–28). Albuquerque, NM: University of New Mexico Native American Studies. Deloria, V. J. & Lytle, C. (1984). The Nations within: The past and future of American Indian sovereignty. New York, NY: Pantheon. Diabo, R. (2016). Justin Trudeau continuing proud Liberal tradition of betraying Indigenous peoples. Rabble.ca, 27 October. Retrieved on 28 October 2016 from http://​rabble​.ca/​ blogs/​bloggers/​views​-expressed/​2016/​10/​justin​-trudeau​-continuing​-proud​-liberal​-tradition​ -betraying​-i Duthu, N. B. (2013). Shadow nations: Tribal sovereignty and the limits of legal pluralism. New York, NY: Oxford University Press. Giustina, J.-A. D. (2008). Violence against women in intimate partner relationships: Community responsibility, community justice. Contemporary Justice Review, 11(4), 351–361. https://​doi​.org/​10​.1080/​10282580802482611 Glenn, H. P. (2011). The three ironies of the UN Declaration on the Rights of Indigenous People. In S. Allen & A. Xanthaki (Eds.), Reflections on the UN Declaration on the Rights of Indigenous Peoples (pp. 171–182). Oxford, UK: Hart. Guttorm, J. (2018). Saamelaisten itsehallinto Suomessa—dynaaminen vai staattinen? (Unpublished doctoral thesis). Lapin yliopisto, Rovaniemi.

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Hamberger, L. K. & Guse, C. E. (2002). Men’s and women’s use of intimate partner violence in clinical samples. Violence Against Women, 8(11), 1301–1331. https://​doi​.org/​10​.1177/​ 107780102762478028 Helliwell, J. F. (2002). Globalization and well-being. Vancouver, Canada: UBC Press. Imai, S. (1999). Aboriginal law handbook. Scarborough, ON: Carswell Thomson. Iorns, C. (1993). The draft Declaration on the Rights of Indigenous Peoples. Murdoch University Electronic Journal of Law, 1(1), n.p. Irlbacher-Fox, S. (2009). Finding Dahshaa: Self-government, social suffering, and Aboriginal policy in Canada. Vancouver, Canada: UBC Press. Jaggar, A. M. (2009). Transnational cycles of gendered vulnerability: A prologue to a theory of global gender injustice. Philosophical Topics, 37(2), 33–52. Johnson, M. P. (1995). Patriarchal terrorism and common couple violence: Two forms of violence against women. Journal of Marriage and the Family, 57(2), 283–294. https://​doi​ .org/​10​.2307/​353683 Johnson, T. M. & Hamilton, J. (1995). Self-governance for Indian tribes: From paternalism to empowerment. Connecticut Law Review, 27(4), 1251–1280. Kimmel, M. S. (2002). ‘Gender symmetry’ in domestic violence. Violence Against Women, 8(11), 1332–1363. https://​doi​.org/​10​.1177/​107780102762478037 Kuokkanen, R. (2019). Restructuring relations: Indigenous self-determination, governance and gender. New York, NY: Oxford University Press. Loseke, D. R. & Kurz, D. (2005). Men’s violence toward women is the serious social problem. In D. R. Loseke, R. J. Gelles & M. M. Cavanaugh (Eds.), Current controversies on family violence (pp. 79–95). Thousand Oaks, CA: Sage. Luna, E. (1999). Indigenous women, domestic violence and self-determination. Indigenous Law Bulletin, 4(25), 8–10. Maaka, R. & Fleras, A. (2005). The politics of indigeneity: Challenging the state in Canada and Aotearoa New Zealand. Dunedin, New Zealand: Otago University Press. Macklem, P. (2015). The sovereignty of human rights. Cambridge, MA: Oxford University Press. Manuel, A. (2015). Unsettling Canada: A national wake-up call. Toronto, ON: Between the Lines. McClellan, E. F. (1990). Implementation and policy reformulation of Title I of the Indian Self-Determination and Education Assistance Act of 1975–80. Wicazo Sa Review, 6(1), 44–55. McNeil, K. (2007). The jurisdiction of inherent right Aboriginal governments. In Research paper for the National Centre for First Nations Governance. Vancouver, Canada: National Centre for First Nations Governance. Monture Angus, P. (1998). Journeying forward: Dreaming First Nations’ independence. Halifax, Canada: Fernwood. Morellato, M. (2008). The Crown’s constitutional duty to consult and accommodate Aboriginal and Treaty rights. In Research paper for the National Centre for First Nations Governance. Vancouver, Canada: National Centre for First Nations Governance. Morse, B. W. (1999). The inherent right of Aboriginal governance. In J. H. Hylton (Ed.), Aboriginal self-government in Canada: Current trends and issues (pp. 16–44). Saskatoon, Canada: Purich. Naalakkersuisut. (2013). Bryd tavsheden! Stop volden. Naalakkersuisut’s handlingsplan mod vold 2014–2017. Nuuk: Naalakkersuisut (Government of Greenland). Nadasdy, P. (2017). Sovereignty’s entailments: First Nation state formation in the Yukon. Toronto, Canada: University of Toronto Press. Naranch, L. (1997). Naming and framing the issues: Demanding full citizenship for women. In C. R. Daniels (Ed.), Feminists negotiate the state: The politics of domestic violence (pp. 21–34). Lanham, MD: University Press of America.

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Nedelsky, J. (2011). Law’s relations: A relational theory of self, autonomy, and law. Oxford, UK: Oxford University Press. Nisga’a Nation. (1998). Understanding the Nisga’a treaty. New Aiyansh, Canada: Nisga’a Tribal Council. Olsvig, S. (2013). Parliamentary uranium vote: A democratic failure. Retrieved on 23 April 2016 from http://​arcticjournal​.com/​opinion/​215/​parliamentary​-uranium​-vote​-democratic​ -failure Poppel, B., Kruse, J., Duhaime, G. & Abryutina, L. (2007). Survey of living conditions in the Arctic: Results. Anchorage, AK: Institute of Social and Economic Research, University of Alaska Anchorage. Porter, R. B. (1999). Decolonizing Indigenous governance: Observations on restoring greater faith and legitimacy in the Government of the Seneca Nation. Kansas Journal of Law and Public Policy, 8(2), 97–141. Sanderson, D. (2012). Redressing the right wrong: The argument from corrective justice. University of Toronto Law Journal, 62(1), 93–132. Saunders, D. G. (2002). Are physical assaults by wives and girlfriends a major social problem? Violence Against Women, 8(12), 1424–1448. https://​doi​.org/​10​.1177/​107780102237964 Strakosch, E. (2015). Neoliberal Indigenous policy: Settler colonialism and the ‘post-welfare’ state. London, UK: Palgrave Macmillan. Strommer, G. D. & Osborne, S. D. (2014–2015). The history, status, and future of tribal self-governance under the Indian Self-Determination and Education Assistance Act. American Indian Law Review, 39(1), 1–75. Tully, J. (2000). The struggles of indigenous peoples for and of freedom. In D. Ivison, P. Patton & W. Sanders (Eds.), Political theory and the rights of indigenous peoples (pp. 36–59). Cambridge, UK: Cambridge University Press. UN Human Rights Committee. (1999). UN Human Rights Committee: Concluding observations—Canada. Geneva, Switzerland: UN Human Rights Committee. UNPFII. (2012). Report of the international expert group meeting on combating violence against Indigenous women and girls: Article 22 of the United Nations Declaration on the Rights of Indigenous Peoples. New York, NY: ECOSOC. Yllö, K. & Bograd, M. (Eds.). (1988). Feminist perspectives on wife abuse. Thousand Oaks, CA: Sage.

4. Self-determination: at the heart of Indigenous humanisation1 Aküm Longchari

INTRODUCTION All peoples have the right to self-determination. Self-determination is a living process that embraces a spectrum of rights through which Indigenous Peoples are the makers of their destinies. It is a powerful and dynamic idea that serves as the source of all other rights and is at the heart of humanisation. As a collective right that is entitled to peoples, not states, self-determination is relevant for the creative evolution of a people. It is the fulcrum of a shared humanity (Longchari, 2016, p. 275). While the right of self-determination is included in the framework of the United Nations (UN) human rights instruments, inconsistencies exist in its meaning, interpretation and implementation. Further, most literature and government policies addressing self-determination have been confined to perspectives, definitions and models representing the dominant Eurocentric viewpoint dressed in legal clothing. This chapter analyses how the state-centric Westphalian world order has reduced the universality of self-determination to one of privilege, which undermines its humanising nature.2 With the Naga Peoples’ movement as an illustration, this chapter states why existing definitions and applications of self-determination need to be decolonised and transcend the Westphalian world order. The chapter highlights how the ‘decolonisation process’ is limited to the transfer of power from the colonisers to an exclusive group within an emerging decolonised entity, with the structures of colonisation largely remaining intact. As a result, decolonisation has not led to Indigenous Peoples’ emancipation; rather, it has trapped them within the colonial boundaries of emerging new states. By denying self-determination to Indigenous Peoples, decolonisation has created conditions of dehumanisation and conflict. Lessons from the Naga struggle for self-determination call for the

1 The primary content for this chapter originates from the book Self-determination: A resource for JustPeace (Longchari, 2016) and a survey questionnaire from August 2020. 2 Richard Falk (2002, pp. 312–313) says, ‘The Westphalian rubric is ambiguous in its usage as it serves both as a shorthand to designate a state-centric, sovereignty-oriented, territorially bounded global order and to identify a hierarchically structured world order shaped and managed by dominant or hegemonic political actors.’ In effect, ‘Westphalia’, Falk says, ‘contains an inevitable degree of incoherence by combining the territorial/juridical logic of equality with the geopolitical/hegemonic logic of inequality.’

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recovery of an Indigenous worldview and praxis of self-determination to unlock the door to humanisation and a JustPeace.3 Struggles to attain the destiny of humanisation are constantly confronted by issues of war, democracy, justice and peace and how a people exercise their self-determining capacities. Paulo Freire (2005, p. 43) reminds us, ‘while both humanization and dehumanization are real alternatives, only the first is the people’s vocation.’ He further explains that the vocation of humanisation is ‘constantly negated’ and ‘thwarted by injustice, exploitation, oppression, and the violence of the oppressors’ but ‘affirmed by the yearning of the oppressed for freedom and justice, and by their struggle to recover their lost humanity’ (Freire, 2005, p. 44). By this, we understand the praxis of self-determination is an ongoing process. Indigenous Peoples exercise their self-determination by narrating their own stories, participating in decision-making processes, assuming full ownership over their natural resources and taking responsibility to consciously determine their social, economic, cultural and political destinies. Consequently, it is vital for policymakers to understand that self-determination is not a static outcome that can be moulded by legal and bureaucratic statecraft. Based on the Naga People’s experience, this chapter makes the case for the recovery of self-determination as a praxis with all the humanistic values crucial to humanisation.

REVISITING SELF-DETERMINATION: IN SEARCH OF THE UNCONSTRUCTED Human history informs us that the idea and aspiration of exercising and living in freedom and charting one’s destiny are ‘ancient’ (Knight, 1985, p. 251). Our collective history is expressed through values, attitudes, spirituality, ethics, philosophies, behaviours, stories, worldviews and knowledge systems. The ideas emerging from this praxis reflect how territory is shared and power organised. Power, in turn, embodies the distinct structures, principles and standards of how a people govern themselves. For Indigenous Peoples, self-determination does not originate from international jurisprudence, norms and principles but is rooted in people’s lived cultures. It is constantly evolving as a humanising force to respond to people’s aspirations through transformative approaches that touch every aspect of human life. Self-determination is not an ‘end that is pre-conditioned, but one that has evolved through encounters with various influences and possibilities, resulting in creation of the new’ (Longchari,

3 JustPeace refers to a vision that recognises there can be no peace without justice. This vision emerges when all forms of injustices that destroy human dignity are addressed and overcome through genuinely inclusive and fair means. JustPeace requires transforming unjust systems, as well as building new paradigms where peace can be realised (Longchari, 2016, p. XXVII).

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2016, p. 23). It is primarily through self-determination that humans fully function as makers of culture.

UNDERMINING INDIGENOUS SELF-DETERMINATION People had exercised and practised self-determination long before the term itself was coined. Unfortunately, the natural evolution and recorded history of self-determination praxis were institutionalised by the modern state following the 1648 Treaty of Westphalia,4 which resulted in the Eurocentric Westphalian world order (Falk, 2002, pp. 312–313; Nanda, 1997, p. 477). Defined and confined within the spheres of state institutions, the praxis of self-determination lost its dynamism and flexibility in meaning and application. It acquired a very narrow and precise definition with limited purpose and application in international laws primarily derived from traditional European systems of jurisprudence. This confined the exercise of self-determination into one of exclusive privilege. While the right to self-determination is inherent and intended to benefit all peoples, in reality it is fully exercised by only certain segments of humanity. These conditions have marginalised Indigenous Peoples and created asymmetrical power relations. By coercing a struggle between power and rights, peoples have been either humanised or dehumanised.5 By not creating conditions enabling the exercise of self-determination by all peoples, Babu Ayindo says the modern state was simply not working towards JustPeace (Longchari, 2016, p. XLVI). With a legal persona constricted by state-centric interpretations, self-determination, for all practical purposes, became state determination. With this, self-determination’s humanistic values and emancipatory potential have been caged by its own legal definition and limited to issues of nationality, secession and state sovereignty.

4 Richard Falk explains, ‘Westphalia’ is simultaneously used to identify an event, an idea, a process and a normative sheet. As an event, Falk says that Westphalia refers to the peace settlement negotiated at the end of the Thirty Years War (1618–1648). As an idea, Westphalia refers to the state-centric character of world order premised on full participatory membership being accorded exclusively to territorially based sovereign States. As a process, Westphalia refers to the changing character of the state and statecraft as it has evolved during more than 350 years since the treaties were negotiated. Finally, as a normative score sheet, Falk says Westphalia refers to the strengths and weaknesses, as conditioned by historical circumstances, of such a sovereignty-based system, shielding oppressive states from accountability, and exposing weak and economically disadvantaged states to intervention and severe forms of material deprivation (Falk, 2002). 5 Humanisation implies the struggle to assert and claim humanity as opposed to dehumanisation, where one is not ‘fully human’. ‘Dehumanization’, Linda Tuhiwai Smith (1999, p. 27) states, was ‘often hidden behind justifications for imperialism and colonialism which were clothed within an ideology of humanism and liberalism and the assertion of moral claims which related to a concept of “civilized man”.’

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THE UN AND SELF-DETERMINATION’S PRINCIPLE OF UNIVERSALITY The victors of World War II formed the UN in 1945, with its member states designated as ‘peace-loving nations’. Article 1, paragraph 2 of the UN Charter says, ‘To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace.’ The clause ‘based on respect for the principle of equal rights and self-determination of peoples’ is listed as one of the UN’s main purposes and reappears again in Article 55 of the UN Charter.6 Even though the term ‘self-determination of peoples’ is listed in the UN Charter’s ‘purposes and principles’ with two direct and two indirect references, the Charter neither defines nor develops the meaning of self-determination. As a concept, it is treated more as a ‘principle’ than as a ‘right’ (Halperin, Scheffer & Small, 1992, pp. 20–21), and as such has remained undefined and imprecise with its scope unclear without identifying either self or peoples (Cardenas & Canas, 2002, p. 102). Although self-determination of peoples was identified as a measure to strengthen world peace, different interpretations of the right to self-determination by UN member states have created competing pathways. First, the omission of the right of self-determination from the UN’s Universal Declaration of Human Rights demonstrates a lack of commitment to recognising this right of self-determination for all peoples. In addition, each member state interpreted the principle according to its own interests. India, for example, ‘lodged a reservation restricting the applicability of the right of self-determination only to peoples under foreign domination and not to sovereign independent States or to a section of people or nation – which is the essence of national integrity’ (Centre for Human Rights, 1987, cited in Morton, Scheffer & Small, 1992, p. 22). Subsequently, the Netherlands ‘objected to India’s reservation, arguing that ‘the right of self-determination as embodied in the covenant is conferred upon all peoples’ (Centre for Human Rights, 1987, cited in Morton, Scheffer & Small, 1992, p. 23). Second, a crucial policy shift was made during the decolonisation process and through the human rights covenants. In 1960, the UN General Assembly (UNGA), in Resolution 1514 (XV), adopted the Declaration on the Granting of Independence to Colonial Countries and Peoples, where it embraced self-determination as a right and emphasised ‘the necessity of bringing to a speedy and unconditional end colonialism in all its forms and manifestations’ (Declaration on the Granting of Independence, 1960). In 1966, the UNGA further embodied Article 2 in Resolution 1514 (XV) and reproduced verbatim as Article 1, Item 1 in both the International Covenant on

6 This clause was first introduced at the San Francisco conference by the four sponsoring governments (Big Four) consisting of the United States of America, Great Britain, the Soviet Union and China, especially at the suggestion of the Soviet Union. This clause was ultimately established and recognised in both Articles 1 and 55 (Emerson, 1960).

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Economic, Social, and Cultural Rights and the International Covenant on Civil and Political Rights (2022), which reads as, ‘All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social, and cultural development.’ Third, the right to self-determination of all peoples has been recognised in other international and regional instruments and is a fundamental condition for enjoying other human rights and freedoms.7 Despite these advances, and although the covenants and declarations can accommodate an expansive definition, ‘a narrow, more constrained interpretation’ of self-determination has been adopted (Simpson, 1996, p. 41). In 1970, the UN further expanded the scope of self-determination in the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the principle of the UN Charter of ‘equal rights and self-determination’. The Declaration contains a prerequisite that distinguishes it from previous resolutions on self-determination. It specifies that protection of territorial integrity will apply to states ‘possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour’ (Declaration of Principles of International Law Concerning Friendly Relations, 1970). Fourth, as noted by Yash Ghai (1996, p. 174), decolonisation efforts were a result of the UN’s commitment to self-determination. However, as an exclusive club attempting to protect its own interests, the UN complicated the decolonisation process by introducing Resolution 1541, also known as the Blue Water Thesis or the Salt Water Thesis.8 This thesis limits the right of self-determination only in situations where ‘subjection to alien subjugation, domination and exploitation’ (Declaration on the Granting of Independence, 1960) is from beyond the sea or continent. Subsequently, a people whose colonising administration was not geographically separated were denied the right to self-determination (e.g., Karen of Burma, Tibetans and Kurds). Belgium countered the Blue Water thesis with the strategy that self-determination

7 Including the Declaration of Principles of International Law concerning Friendly Relations and Co-operation among States; the Helsinki Final Act; the African Charter of Human and Peoples’ Rights; the CSCE Charter of Paris for a New Europe; and the Vienna Declaration and Programme of Action adopted by the World Conference on Human Rights. It has been affirmed by the International Court of Justice in the Namibia case (1971 ICJ 16), the Western Sahara case (1975 ICJ 12) and the East Timor case (1995 ICJ 102) in which its ergaomnes character was confirmed. Further, the scope and content of the right to self-determination has been elaborated upon by the UN Human Rights Committee (1984 UN Doc. HRI/GEN/1/Rev.3) and the Committee on the Elimination of Racial Discrimination (1996 UN Doc. CERD/C/49/CRP.2/Add.7). 8 UNGA Resolution 1541 (XV), 15 December 1960, 69:2:21, was adopted the day after the Declaration on the Granting of Independence to Colonial Countries and Peoples was passed. Known as the Blue Water Thesis, it was in opposition to efforts of some colonial powers to expand the scope of obligations and procedures of Chapter XI of the UN’s Charter by including enclave Indigenous Peoples within non-self-governing territories (Anaya, 1996, p. 60).

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must be universally available to all subjugated peoples, whether in colonial territories or sovereign states, including newly independent ones (Lâm, 2000, p. 118). Finally, the restricted application of self-determination contradicts the universality of self-determination as a right of all peoples. Although the idea of self-determination provides the moral basis and legal rationale for decolonisation, the process was reduced to geopolitical adjustments (Danspeckgruber, 2002, p. 5), thereby upholding the constructs of colonisation. This is seen as an attempt to uphold the principle of territorial integrity and to limit the ‘self’ to whom the principle of self-determination could apply. Ghai (1996, p. 182) points out the irony when he notes, ‘On the one hand, the UN denounced the legitimacy of colonial regimes and boundaries; on the other hand, it sought to perpetuate them (though not as colonial).’ Therefore, in practice, the UN has been extremely selective by applying the principle only to peoples in recognised colonial territories, implying that the right of self-determination ends with decolonisation (Feith & Smith, 1995, p. 144). State sovereignty and its claim to territorial integrity overpowered the rights of colonised peoples, thereby restricting Indigenous Peoples from exercising their right to self-determination in creating their own political entity (Köchler, 2000, p. 137). State domination over peoples is enunciated by the fact that between 1947 and 1991, the independence of East Pakistan from Pakistan, which subsequently emerged as Bangladesh in 1971, is one rare instance where the people’s will prevailed to determine their territory (Morton, Scheffer & Small, 1992). Such rarity affirms the rigidity shown by the dominating statist perception that views state boundaries as permanent and non-negotiable (Moore, 1998, p. 1). Many years of persistent lobbying, advocacy and negotiations passed before Indigenous voices were recognised by the UN. It took 25 years of ‘contentious negotiations’ (General Assembly adopts Declaration, 2022) before the UNGA finally adopted the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) on 13 September 2007. The president of the General Assembly described it as a ‘major step forward’ towards human rights for all (General Assembly adopts Declaration, 2022). The UNDRIP ‘calls for the maintenance and strengthening of cultural identities and emphasises the right to pursue development in keeping with their own needs and aspirations’ (Declaration on Rights of Indigenous Peoples, 2007), including the Indigenous Peoples’ right to self-determination in the same terms as it is recognised for all peoples within the UN framework. This recognition upholds the need for self-determination to be multicultural and creates an opening for a shared language of self-determination to evolve. Lanusashi Longkumer (17 August 2020, pers. comm.), while acknowledging that the UNDRIP outlines ‘profound changes over the existing invidious State-Indigenous Peoples’ relationship’, says ‘there is still a long way to go in achieving self-determination for complete realization of rights, freedom, dignity, development and happiness.’ This, he says, is ‘for the simple reason that there is undefinable problem in understanding the definition of rights, freedom, etc., that are

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deeply rooted in the colonial past.’ Longkumer points to the need to explore new understandings and create new definitions. The UN institutionalisation of self-determination on notions of ‘victor’s justice’ and an exclusive knowledge system negates Indigenous and non-Western values, ethics and cultural understanding of self-determination, thereby restricting its meaning and praxis.

THE QUEST FOR A SHARED HUMANITY: FROM STATE DETERMINATION TO PEOPLES’ DETERMINATION In this third decade of the 21st century, self-determination must transition from state determination to peoples’ determination by recovering its humanistic values and emancipatory characteristics. The continued denial of the right to self-determination is the flashpoint of many conflicts. Rodolfo Stavenhagen (1996, p. 8) incisively observed, ‘the violence we see around is not generated by the drive for self-determination, but by its negation. The denial of self-determination, not its pursuit, is what leads to upheavals and conflicts.’ With the growing need for JustPeace and the realisation that humanity is shared, an emancipated world needs to be perceived in its wholeness. This means the state, as an institution, requires transformation, and the UN system needs to embrace and represent all humanity. To secure this transformation, self-determination needs to be at the heart of unlocking protracted conflicts and forming alternative institutes and systems of governance where power is with the people and not over the people. Moving forward warrants a journey that returns to the roots of Indigenous epistemology and spirituality. The praxis of self-determination involves recovering its basic revolutionary and humanising value that embraces Indigenous Peoples who were bypassed by the decolonisation process. Since self-determination is a right of all peoples, its praxis must constantly evolve to respond to the conditions and realities in which the self exists. Indigenous ways of understanding self-determination seek creative and imaginative approaches that transcend static political goals and existing state structures of power. In this way Indigenous cultures are empowered to be perpetually transforming, creating the new. Self-determination has been the fulcrum, the central point, of a shared humanity that keeps all else from falling apart (Longchari, 2016, p. 275). However, the legal institutionalisation of the praxis has reduced its capability to be an inherent right exercised by all peoples. The existing language of self-determination needs to be decolonised for Indigenous Peoples to secure their freedom and dignity and be part of a shared humanity.

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DECOLONISING SELF-DETERMINATION The decolonising process in the mid-20th century was insufficient in the quest for rehumanising society. Consequently, many Indigenous Peoples were not included in the structural changes that marked the decolonisation era. The interplay of colonial knowledge and colonial rule were the defining elements of colonisation. Nicholas B. Dirks (2001, p. 9) reminds us that colonial conquests and colonisation were ‘not just the result of the power of superior arms, military organization, political power, or economic wealth’ but were ‘made possible, and then sustained and strengthened, as much by cultural technologies of rule.’ Colonisation was absolutely a cultural project enabled by the production of colonial knowledge. Dirks (2001, p. 107) emphasises that ‘colonial conquest was about the production of an archive of (and for) rule.’ Winona LaDuke (2015) points out that the epistemology of the word colonisation has the same root as the word colon, which means to digest. She says that ‘colonization is a process of digestion of one culture by another through military, economic, political, religious mechanisms’ (LaDuke, 2015). This process of being consumed, she says, is what we see historically and what we see now. With language being an important ‘carrier’ (Ngũgĩ, 1996, p. 13) of an ‘evolving culture’ (Ngũgĩ, 1996, p.  14), it was crucial for colonial forces to dominate the language and ‘mental universe of the colonized’ (Ngũgĩ, 1996, p.  16). Language is an ingredient of power and vital to the structures of oppression, which generates and derives from the policy of domination, exploitation and subjugation. It has been an important carrier of colonial knowledge and colonial rule. Dirks (2001, p. 44) observes, ‘To keep India, the British felt the need to know India far better than they had, and now the knowledge had to be about the society of India, not just its political economy.’ As the process of decolonisation continues, new holistic, inclusive and participatory approaches that are contextually relevant need to emerge that transcend geopolitical transitions and reduce violence and conflict.

PROBLEMATISING THE LANGUAGE OF SELF-DETERMINATION In the process of decolonisation, it is necessary to problematise the language of self-determination. The integral role language assumed in facilitating and strengthening the colonial project among Indigenous Peoples makes it imperative to examine the existing language of self-determination. Colonised peoples, including Indigenous Peoples, were compelled to live within narrowly defined constructs of humanity. The collection and classification of information and knowledge about them were represented through the eyes of the West (Smith, 1999, p. 1). Edward Said referred to this process as a Western discourse about the ‘other’ that was supported by ‘institutions, vocabulary, scholarship, imagery, doctrines, even colonial bureaucracies and colonial styles’ (Said, 1978, pp. 2–3). Their patterns of human association were reduced

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to hierarchical structures of relations as defined by post-colonial states, which had given in to the old structures of the Westphalian state.9 The language of self-determination is predominantly grounded in European settings and the Western world. This negates many of the events, activities and processes of struggling people, particularly narratives of Indigenous Peoples. As a result, the praxis of self-determination lost its dynamism and became institutionalised with the state system upholding the status quo and legitimising policies that denied recognising Indigenous Peoples as equal political entities having self-determination (Longchari, 2016, p. 36). This has, in turn, resulted in an ongoing collision between Indigenous Peoples seeking self-determination as an emancipatory praxis and states restricting it to a repressive end. Ironically, those who once struggled for self-determination have, after attaining it, formed an exclusive men’s club through which they now deny others the same right to self-determination.10 The UN is an example of this exclusivity, which effectively caged self-determination into a narrow framework of decolonisation while simultaneously suggesting that those who continue to seek the right to self-determination are, in fact, seeking secession. For instance, after gaining independence, Bangladesh denied self-determination for the People of the Chittagong Hill Tracts. Ironically, the present language of self-determination raises fundamental questions for the UN since its founding purpose includes strengthening ‘universal peace’ based on peoples’ equal rights and self-determination. The denial of self-determination to the ‘cultural other’ remains a fundamental concern since this denial constitutes the core reason for the many conflicts between State and Peoples (Longchari, 2016, p. 62). The stand taken by this exclusive club makes the application of self-determination selective and one that is upheld only for them. Not only is this counterintuitive and destructive, but it implies that the existence of all other cultures is not self-determining.11 Such a discourse limits the true nature of the right to self-determination to one of privilege (Simpson, 1996, p. 37). This ignores the multiple overlapping spheres of community, authority, interdependence, interrelationships and interconnections that exist in the human experience. 9 The order of present sovereign states dates roughly to the Peace Treaty of Westphalia in 1648. The Westphalian state, named after this treaty, was a modus vivendi and became the most enduring, universal and invoked form of territorial sovereignty in international law (Danspeckgruber, 2002, p. 407). 10 Rodolfo Stavenhagen notes, ‘it would seem that for some people self-determination is somewhat akin to an exclusive club: you fight hard to gain access yourself, but once you’re in, you’d rather not see any new upstarts come along’ (1996, p. 1). 11 Stewart C. Easton is quoted by Ali Mazrui (1967) as saying that self-determination was not thought of by any European power to be applicable to the peoples of their colonies, who were not fit for self-government. Rupert Emerson (1960) suggests Woodrow Wilson did not seem certain about whether he wanted the principle of self-determination to apply to non-European peoples under colonial rule, in addition to dynastic intra-European empires.

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The meaning one gives to self-determination can either empower a people’s capacity to be makers of their own culture and history or be relegated as passive spectators with no participatory ownership in making their own history (Longchari, 2016, p. 31). For self-determination to be the ‘principle of the highest order’ and to ‘translate aspirations into reality, coupled with postulates of inherent human equality’ (Anaya, 1996, p. 75), the search for dignity and humanisation needs to form the focal point. All peoples must be able to effectively participate in decision-making processes, assume full ownership over their natural resources, and take responsibility for determining their social, economic, cultural and political destinies (Longchari, 2016, p. 39).

DECOLONISING SELF-DETERMINATION: AN INDIGENOUS PERSPECTIVE Indigenous Peoples are advocating for decolonising the existing language of self-determination and the creation of a new shared language that is inclusive, pluralistic, dynamic and enduring as a living value and life-giving principle. Linda Tuhiwai Smith (2012) reminds us that self-determination is more than a political goal. It is a goal of social justice that involves ‘the processes of decolonization, of healing, of transformation, and of mobilization of peoples’ (Smith, 2012, p. 120). Decolonisation carries a wide spectrum of understandings. It does not mean a total rejection of Western culture, jurisprudence and structure nor its knowledge system and certainly not ‘to glorify indigenous institutions’ (Ali A. Mazrui, in July, 1987, p. 243). For Indigenous Peoples, decolonisation means assuming a ‘form of emancipatory politics’ (Postero, 2017, p. 19) and provides a transformative framework that will create peaceful and just structures reflecting values, rights and aspirations. For example, under the Bolivian decolonisation policy (Postero, 2017, p. 12), a fundamental question arose as to whether any Indigenous structural alternatives were offered by former president Evo Morales. This question strengthens the view that an Indigenous State founded on Westphalian state structures will not emancipate Indigenous Peoples. Rather, it only sustains the status quo and legitimises the state system. Nancy Postero (2017, p. 14) emphasises that decolonisation ‘would require a transformation of the state, a recognition of the political, economic, and cultural practices of previously excluded peoples.’ This suggests ‘reconceptualising society’ and asserting ‘a new epistemological relation to the state, and recuperating non-Western culture, language, cosmology, and forms of being’ (Postero, 2017, p. 13). To decolonise self-determination entails decolonising the Westphalian state itself. As much as decolonisation is about revealing and dismantling, it aims to create a humanising culture. Storytelling plays a vital part in ‘telling our stories from the past, reclaiming the past, giving testimony to the injustices of the past’ (Smith, 2012, p. 36). The medium could be art, music, poetry or other creative forms of expression. All these, Smith (2012, p. 36) explains, are ‘strategies which are commonly employed

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by indigenous people struggling for justice.’ She reiterates that telling stories remains the ‘powerful imperative of a powerful form of resistance’ (Smith, 2012, p. 36). Decolonisation must occur at all levels of human interaction—the political, social, spiritual and psychological—to enable healing, renewal and restoration (Smith, 2012, p. 121). This will open space to begin exploring and designing a new language of humanity, which is the heart of self-determination. Newly humanised, self-determination becomes relatable and can be communicated with ease to everyone. Eventually, beneath the layers of technicalities, legal clothing and state pragmatism, self-determination remains the fulcrum of all other rights and the pathway to humanisation. As the Zapatistas would say, it is not to take power nor to become powerful but to dissolve power relations and to make the world and politics anew (Cherstich, Holbraad & Tassi, 2020, p. 49). This is a search for the true emancipated collective self. Self-determination becomes relational, practical, potent and relevant when exercised in and through community. So long as the self are the people, self-determination will be at the heart of JustPeace and humanisation.

THE NAGA SEARCH FOR SELF-DETERMINATION AND HUMANISATION The Naga conflict is ‘the oldest of the self-determination struggles’ (Manchanda & Bose, 2011, p. 51) and ‘one of the world’s least-known, but longest-running and bloodiest armed conflicts [and] one that has cost thousands of lives’ (Baruah, 2003, p. 321).12 It is said to be ‘one of the most persistent and least-known struggles of Indigenous Peoples in the world today’ (Chadda, 2006, p. 12) and ‘constitutes an important part of Asia where oppression is still in evidence’ (IWGIA, 1986, p. 1). According to Marcus Franke (2009, p. 39), the Nagas initiated ‘their own national movement for regaining of their sovereignty’, considered to represent the ‘first major challenge to the Indian state’s integrationist project’ (Manchanda & Bose, 2011, p. 51). This section provides an overview of how essential self-determination is for the Naga People’s healing and humanisation. According to Roy Burman (2008, p. 147), approximately 195 years ago, the ‘Naga conflict’ ‘appears to have surfaced after the British East India Company started flexing its politico-territorial control after defeating the Burmese and signing the Yandabo treaty in 1826.’ Since little was known about Naga pre-colonial history, the British constructed a language and image of the Naga that was consistent with their colonial project. This colonial language continues to be perpetuated by India, Burma and other dominant cultures when relating to the Naga. Understandably, the Nagas treated colonial intrusions into their territories as invasions.

12 Also, Das (2011, p. 70) says that the Naga national movement is considered to be ‘one of the oldest unresolved armed conflicts in the world.’

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As part of their struggle towards humanisation, Nagas naturally seek to reclaim their right to self-definition. Transcending all colonial constructs, the name Naga, from a Naga perspective, is the ‘common public character’13 that represents the self-conscious collective political identity (Lotha, 2008, p. 54) of a people with self-determining capacities.

A MATTER OF GEOPOLITICS Even as Nagas resisted the colonial powers, ‘partial conquest of the Naga hills’ (Franke, 2009, p. 31) became frontier areas of the British Empire.14 Nagaland, the Naga homeland,15 is a geographically compact and integrated territory ‘straddling the official boundary of India and Burma/Myanmar, from just south of the Chinese border’ (Chadda, 2006, p. 12). The Naga territory under the British was fragmented to ‘satisfy their allies and each time the lines inevitably moved further inside the Naga country’ (Luithui & Haksar, 1984, pp. 15–20). The Nagas were arbitrarily divided between two sovereign states—India and Burma—with the international boundary cutting through people’s houses, lands and villages, such as Lungwa village.16

13 David Miller (1995) points out that Belief, Historical Continuity, Active Identity, A Particular Geographical Space and a National Character are characteristics pertinent to the making of a member of National Community. 14 By the end of the 19th century, many Nagas came under British rule with the exception of Nagas in Tuensang, Arunachal and Burma, which is referred to as ‘Free Naga Territory’ (Shimray, 2005). 15 According to Johnson (1986, p. 6), the people called ‘Nagas’ live in the present state of Nagaland, in the Naga Hills of Manipur, in North Cachar and Mikir Hills, Lakhimpur, Sibsagar and Nowgong in Assam, in the north-east of Arunachal Pradesh, in the Somra tract and across the border into Burma. In Burma, Nagas occupy an area from the Patkai range in the north to the Thaunghut state in the south and from the Assam border in the west to the Chindwin River in the east. 16 According to Yhome and Zhimomi (2004), the Naga territory has been ‘left internationally divided by British colonialists through the Treaty of Peace at Yandaboo in 1826, the Pemberton Line in 1934, the Government of Burma Act 1935, and, laterally, through the Indo-Burma Border Agreement of 1978.’ They add, ‘On 10 March 1967, the Indo-Burmese Border Agreement was arbitrarily signed, consolidating and legitimizing the division of Nagas into the international boundary between India and Burma.’

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Within each country, the Naga territory was further divided.17 Imposing arbitrary boundaries and separating people into two or more states led to structural violence,18 which was crucial in fragmenting their collective identity and character. Through this, Nagas were denied self-definition while, simultaneously, new identities were defined by state borders, which influenced how power was organised. By imposing new state identities, Naga collective rights were undermined, and their solidarity weakened. According to Wati Aier, ‘nationalism for the Naga People is a frame of mind’ (pers. comm., 5 August 2020). Unlike modern-day territorial nationalism, Aier says, ‘it rises from the awareness of our memory and our self-hood. This is our identity. Our common memory, as in other peoples’ groups, is linked to self-determination’ (Wati Aier, pers. comm., 5 August 2020). When around 4,000 Nagas were sent to Europe as part of the Allied forces during World War I, Colin Johnson (1986, p. 7) says, a ‘new Naga nationalism was forged’ on the battlefields of France. By forming the Naga Club in 1918, the Nagas sought to create a new independent political identity. On 10 January 1929, the Naga Club made a submission to the British Statutory Commission stating that Nagas should be left alone ‘to determine for ourselves as in ancient times’. Nagas, along with other colonised people, sought to be free from domination and regain their freedom. Andrew Gray (1986, p. 44) says, ‘it was the Naga People themselves who, understanding the nature of the colonial rule, mapped their independence which they had had before the British came onto a national identity which arose within the conditions of colonialism.’ However, Franke (2009, p. 6) observed that the dramatic loss of standing and power in World War II forced the British to retreat from the subcontinent and hand over the Naga Hills to the successor creation, the Indian Union. Johnson (1986, p. 20) emphasises that, while the Naga decision for eventual independence may have been a reasonable solution, ‘the option disappeared when the Labour Government came to power at the end of the Second World War, and it was dropped as being unacceptable to both Indian and Burmese nationalists.’ In 1945, the Naga National Council (NNC) presented the ‘Case of the Naga People for Self-Determination’ to explore a process that would allow them the time and

17 After 1947, the Naga territory falling on the Indian side was divided and organised under four different administrative states: Arunachal Pradesh, Assam, Manipur and the present Nagaland State. The Nagas are a minority in the first three states. On the Burmese side, the Naga Youth Organisation–Burma, in its report on ‘Life under Military Rule’, lists 22 Naga ‘tribes’ in Burma and points out that the ‘Burmese General Ne Win divided the Naga territory within Burma between Kachin State and the newly created Sagaing Division.’ Further, as part of the policy to assimilate the Nagas into the ‘Burmese fold’, the military created a ‘Naga Self-Administrative Zone’, which, however, excluded most of the important townships and mineral-rich areas of the Nagas (Burmese Youth Organisation, 2010, p. 9). 18 Johan Galtung (2002, p. 127) points out that the division of a people among two or more states and that their separation is by ‘structural violence (often supported by direct violence) of forcing apart those who want to live together is similar to the structural violence (also supported by direct violence) of forcing together those who want to live apart.’

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space to develop their self-determining capacities. The NNC urged for setting up ‘an Interim Government for a period of ten years, at the end of which the Naga People will be left to choose any form of Government under which they live’ (Nuh & Lasuh, 2002, pp. 63–66). A Nine-Point Agreement, known as the Akbar Hydari Agreement, was negotiated in June 1947 to cover a 10-year period. It accorded Nagas the right to develop according to their expressed wishes and to ‘one unified administrative unit’, with the NNC having authority over Naga territory and its resources. The emerging Indian state saw this as a step towards bringing the Nagas under their control. The Nagas, however, understood this to mean that, after this period, they would be free to determine their own political status. However, Indian leaders, concerned that Naga territory would be isolated between India and China, were determined to make it a part of India.19 In this context, on 14 August 1947, the NNC declared, ‘Nagas will be independent’ and ‘[the] right of the people must prevail regardless of size’ (Nuh & Lasuh, 2002, p. 115). India became independent on 15 August 1947. To affirm its stand of independence, the NNC launched a Naga Voluntary Plebiscite on 16 May 1951, where an overwhelming majority voted to be independent. Andrew Gray (1986, pp. 63–64) asserts, ‘self-determination is a right to which one is born’ and that through these two political acts, Nagas affirmed ‘independence as the chosen manifestation of their self-determination.’ With decolonisation reduced to geopolitical adjustments (Danspeckgruber, 2002, p. 5) and transfer of power between elites (Herbst, 2002, p. 19), Nagas were denied the right to determine their own destiny. By continuing the same political and geographical construct of former colonisers, new states became extensions of colonialism. With major powers reproducing the Westphalian model of ‘nation-states’ throughout the so-called Third World countries (Herbst, 2002, p. 19), what exists today are borders that once served as administrative boundaries of colonial powers (Wohlforth & Felgenhauer, 2002, p. 229). The Westphalian state contradicts the universality of self-determination as a right of all peoples and prevents it from becoming a ‘potentially revolutionary and flexible democratic ideal’ (Simpson, 1996, p. 45).

STATES VERSUS PEOPLES The Indian stand ‘was (and is) that the Indian Union legally includes all the territories formerly embraced by British India’ (Young, 2001, p. 15). India holds the view that

19 Jawaharlal Nehru, who later became the prime minister of India, in his letter to NNC stated that the Naga territory is ‘much too small to stand by itself politically or economically.’ He further stated that the Naga territory lies between two huge countries, India and China, and part of it consists of rather backward people who require considerable help. When India is independent, it will not be possible for the British Government to hold on to the Naga territory or any part of it. They would be isolated there between India and China. Inevitably, therefore, this Naga territory must form part of India (Ramunny, 1988, p. 32).

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‘Nagaland forms an integral part of India and complete independence for the Nagas is a preposterous proposition’ (Means & Means, 1966, pp. 290–291) and asserts, ‘there could be no self-determination of an Indian against an Indian’ (Considerations of the Provisions, 2021). This was expressed in India’s response to Portugal’s complaint against India concerning Goa, Daman and Diu. For Visier Sanyü (cited in Longchari, 2016, p. 221), the assumption that India had the right to inherit British India is faulty. He explains that the former territories under British India, such as Pakistan, Burma and, subsequently, Bangladesh, all became independent. The Nagas say, ‘when the British left India, Nagaland was not part of India, but under direct occupation’ (Means & Means, 1966, p. 290) and a part of the ‘unfinished decolonization of the Indian subcontinent’ (Sundar, 2011, p. 48). While there was ‘no Indian nation-state prior to 1947’ (Burman, 2008, p. 154), ‘India has tried to forge an artificial homogenized nation in the Western sense of the term and create a nation-state for this artificial entity’ (B. K. Roy Burman, in Vashum, 2000, p. vii). The Indian freedom struggle, ironically, failed to imagine beyond the Westphalian world order and inevitably continued with the colonial structures of governance (Longchari, 2016, p. 223). Gray (1986, p. 58) observes, ‘structurally-speaking, the Indian take-over of Nagaland from the British has actually followed the historical pattern set up by the British of oppressive “conquest” followed by a repressive indirect rule.’ India’s ‘actions to effectively incorporate’ Nagas ‘into the economy and administration of the new polity’ (Franke, 2009, p. 82) made Nagas realise that, unlike the British Empire, the Indian state was there to stay (Franke, 2009, p. 25). Rosalyn Higgins suggests, ‘There can be no such thing as self-determination for the Nagas. The Nagas live within the political unit of India, and do not constitute the majority therein. Their interests are to be safe guarded by Indian obligations on human rights and the protection of minorities’ (quoted in Gray, 1986, p. 61). By this, Higgins implies that Indigenous Peoples, like the Nagas, do not constitute a self. Gray (1986, p. 61) responds that, within the Naga context, ‘[the] Nagas are not a minority and according to the views of the Naga nationalists, India is an invading colonial power.’ Higgins (Jayasinghe, 2002, pp. 170–171) also cites Nagas as an example to emphasise that small communities living within an internationally recognised state cannot claim self-determination as a right. This argument denies the self the right to self-definition and self-determination of all peoples. Further, on 6 April 1984, the UN supervised a ‘self-determination vote’ in the Indian Ocean coral island cluster known as the Cocos Islands, with a population of 261 people (Knight, 1985, p. 261). This demonstrates that an argument based on the population size is deceptive and erroneous.

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THE ‘GARRISON STATE’20 The years between 1947 and 1953 remained relatively nonviolent. Despite the arrest of many Naga leaders, the NNC demonstrated its nonviolent policy through civil disobedience, non-cooperation, non-payment of taxes and the boycott of Indian elections. Engagement between Nagas and the Indian state continued through negotiations and acts of persuasion. However, from 4 April 1953 onwards, the Nagas were branded a ‘Disturbed Area’.21 Eventually, the Government of India (GoI) extended this decree to the entire Naga Hills in January 1956, when military means were deployed to contain the Naga Peoples’ right to exercise their self-determination. In response, the Federal Government of Nagaland, with a Naga army, was formed in 1956. During the intervening years, the Naga national movement formed a ‘web of relationships between armed groups and insurgents in the north-east’ (Chadda, 2006, p. 12) of the subcontinent and with neighbouring countries like East Pakistan (now Bangladesh) and China in the 1960s and 1970s. Franke (2009, p. 7) reminds us, ‘British possessions in India developed into state-like structures that were equally militarised, its personnel poised for conquest and thus were adequately described as “garrison states”’, where ‘military force, or force as such, seemed to be the natural tools.’ After the departure of the British, the ‘garrison state’, Franke says, ‘had to employ terror to deter and criminalize those who resisted’ to ‘eradicate resistance’ (Franke, 2009, pp. 80–81). Naga Peoples faced strafe bombing,22 burning down of villages23 and torturing of men, women and

20 For Marcus Franke (2009, p. 7), ‘The British possessions in India developed into state-like structures that were equally militarised, its personnel poised for conquest and thus were adequately described as “garrison states”.’ He implies the ‘colonial mentality’ and a ‘garrison mentality’ continued to prevail post-independence. 21 The Naga Hills was declared a Disturbed Area after the Nagas demonstrated a symbolic act of collective nonviolence. On 30 March 1953, Indian Prime Minister Jawaharlal Nehru and Burmese Premier Thakin U. Nu came to Kohima. The Naga People that had gathered at the Kohima ground to meet them were informed by an Indian administrator that Nagas were denied the opportunity to make a statement and submit representation to the Indian and Burmese leaders. As a result, the Naga People left the Kohima ground just at the time the two leaders arrived (Hoho, 2002, p. 26). 22 An Indian Air Force Dakota aircraft was shot down by the Naga Army and the entire crew held prisoner. The captain of the Dakota, Flt. Lt. A.S. Singha, wrote to the Naga leader A. Z. Phizo (dated 10 January 1962) and pointed out that between 11 December 1961 and 6 January 1962, the Indian Air Force had bombed and fired rockets on seven occasions by a total number of 25 jet aircrafts operating at different times. The letter stated that the Naga People are ‘facing many hardships and sufferings’ (Young, 2001, p. 38). 23 Kaka D. Iralu (in Burman, 2008) writes that, from 1955 to 1956, the Indian security forces burned down 645 Naga villages of the 861 existing villages. Further, all village granaries were razed. He points out that within one year, over 100,000 Nagas died from bullets, aerial bombardments, rape, torture, murder, starvation or disease (see also Iralu, 2002).

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children (Haksar, 2005, p. 21) and ‘strategic grouping’.24 For Nandita Haksar (2005, p. 15), ‘like the Roman Empire, the Indian state has tried every dirty trick to divide the Nagas against each other, undermine their unity by psychological warfare and have tried to crush the Naga national movement by using its military might.’ The Indigenous Peoples’ experiences highlight how ‘even anti-colonial struggles may produce structures of power that reproduce the inhumanity of the states they repudiate’ (Dirlik, quoted by Lâm, 2000, p. 85). An example is the Armed Forces Special Powers Act (AFSPA) enacted by the Indian Parliament in 1958.25 The AFSPA empowers Indian armed forces to ‘shoot and kill’ on mere suspicion to ‘maintain law and order’. It also prevents any legal proceedings for acts perpetrated under this Act. While accusations of human rights violations committed under the Act were made, various agencies of the Indian state, including the military, legitimised their validity as necessary to protect India’s sovereignty as a democratic republic. Hutton (1966) in his letter to the Editor of The Assam Tribune notes that attempts to contain the Nagas by bringing in the Indian army made matters ‘infinitely worse’ and ‘the bitterness which has been engendered by the army occupation is perhaps one of the major obstacles in obtaining a settlement.’26 In their 1995 submission to the Commission on Human Rights, the Society for Threatened Peoples states, ‘the root cause of most of the cases of gross violations of human rights in the world today is the suppression of the right of self-determination of aggrieved peoples by stronger ones’ (UN Economic and Social Council, 1995). It urged, ‘the danger inherent in the suppression of the people’s rights [must] be looked into before it is too late, if peace and justice are to prevail.’

THE ILLUSIVE PEACE: NEED FOR NEW IMAGINATION The Indo–Naga history has been punctuated by agreements when the interplay of statecraft and force induces some form of peace agreement. This is intended to provide a basis for the state to claim legitimacy over the Nagas, as India has primarily focused on managing conflicts, rather than resolving them, using the colonial policy of divide et impera. 24 ‘Grouping’, also known as ‘strategic hamletting’ and ‘forced population removal’, is a special counter-insurgency strategy that has been applied in various parts of the world. This policy of ‘strategic hamletting’ was first used by the British in Malaysia and the United States of America in Vietnam. In India, this policy has been used extensively against the Mizos and the Nagas. For details, see Bhatia (2011) and Sundar (2011). 25 The AFSPA was initially introduced in 1958 by the Indian Parliament and later amended in 1972. It was enacted as a specific response to the Naga struggle. The AFSPA is virtually identical to the Armed Forces Special Powers Ordinance, which was introduced by the colonial British power in 1942 to quell the ‘Quit India’ movement. 26 Further, Hutton (1966), in his Letters to the Editor of The Assam Tribune, a newspaper, adds, ‘[the] Indian Army, naturally unable to cope with extremely mobile guerrillas, took to burning villages and destroying crops, no doubt behaving in many cases with great brutality.’

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Amid an intense military campaign against the Nagas from 1954 to 1964, India entered into an agreement with the Naga People’s Convention (NPC) in 1960,27 known as the Sixteen Point Agreement. Accused of being patronised by India, NPC was formed in 1957 when a vacuum was created by sustained military operations. This agreement, which led to the fragmentation of Naga territory by carving out ‘Nagaland State’, was designed to exclude the majority of the Naga Peoples and their land. Further, specific provisions of the Sixteen Point Agreement were incorporated as Article 371(A) of the Constitution of India. This Article grants ‘special provisions to protect religious or social practices of the Nagas, Naga customary law and procedure, and ownership and transfer of land and its resources’ (Chadda, 2006, p. 12). From India’s standpoint, the formation of ‘Nagaland State’ was interpreted as an act of incorporating Nagas into the Indian state, thereby ending the conflict.28 For Naga People, ‘Nagaland State’ was not a political settlement consistent with the right of self-determination. Gray (1986, p. 58) points out, ‘Nagaland State is a transformation of the notion of indirect rule in that Nagas are nominally in charge of a state which has its ultimate control in New Delhi.’ This implies the right of self-determination did not lie with the Naga People, and the agreement confers no creative power to translate the Naga Peoples’ aspiration into lived reality. A Ceasefire Agreement was signed in 1964 between the GoI and the Federal Government of Nagaland through the Peace Mission to pursue settlement through peaceful means.29 After six rounds of talks, the negotiations broke down when both sides held their positions and were unable to make any progress. When Naga leaders spoke about the two-nation theory and coexisting peacefully through friendship, Indian representatives replied, ‘all we are trying to persuade you to realize is that we are really not two nations living side by side’ (Means & Means, 1966, p. 300). ‘The ceasefire in the Naga hills’, Franke exclaims, ‘is a product of the war that is the consequence of the continuation of conquest and subjugation’ (Franke, 2009, p. 1). The

27 The Naga Peoples Convention was formed in 1957, under the guidance of S. M. Dutt, deputy director of the Intelligence Bureau, Government of India. Its main objective was to bring the Indian state and the Naga national movement to the negotiating table and to explore possibilities to work out a negotiated settlement. The NPC, however, failed to persuade leaders of the Naga national movement to negotiate with India. The Government of India saw the NPC as the ‘only chance to deal with a set of Naga leaders who abjured violence and did not demand complete independence’ (Kumar & Murthy, 2002, p. 52). 28 Hurst Hannum (1990, p. 173) says, ‘Nagas were among the last groups to be incorporated into India, after long periods of armed resistance, as their tribal cultures had always successfully resisted encroachment by the social and economic forces of the subcontinent to their south and west.’ 29 The Peace Mission comprised Bimla Prasad Chaliha, Jayaprakash Narayan and Michael Scott. The Peace Mission, while appreciating and understanding the desire of the Nagas for self-determination, appealed to both India and the Nagas to consider seriously a meeting point in the pursuit of an acceptable settlement to both sides through peaceful means (Nuh & Lasuh, 2002, pp. 218–222).

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Indian military operations resumed when India unilaterally terminated the ceasefire on 1 September 1972. A few years later, amid a climate of turmoil, fighting and intense military operations, the Shillong Accord between the GoI and ‘Representatives of Underground Organizations’ was signed on 11 November 1975. The Accord reads that these representatives conveyed their decision, ‘of their own volition, to accept without condition, the Constitution of India.’ Kumar Sanjay Singh explains that the Sixteen Point Agreement was intended to divide the Naga polity and society by separating their lands into different administrative units, while the Shillong Accord was designed to divide the Naga national movement. The divisions after the Accord led to the formation of the National Socialist Council of Nagaland (NSCN) in 1980, which, in turn, split in 1988.30 In 1972, 25 years after India unilaterally terminated the 1964 ceasefire, India acknowledged the Naga struggle as a political issue requiring a political solution through negotiations. Eventually, a breakthrough was reached,31 and during Prime Minister I.K. Gujral’s tenure, the GoI and NSCN (Isak and Muivah) signed a ceasefire agreement as two entities. The ceasefire came into effect from 1 August 1997 to facilitate negotiations. The terms of the ceasefire had earlier been ‘mutually agreed on 17 November, 1996, that political dialogue shall be at the highest, i.e. Prime Minister level; without pre-condition; and outside India in a third country.’32 India signed another ceasefire agreement with NSCN led by SS Khaplang and Kitovi Zhimomi on 28 April 2001 and subsequently with other groups. NSCN (Khaplang) also signed a bilateral ceasefire agreement with Burma on 9 April 2012. Eighteen years after signing the ceasefire, the GoI and the NSCN signed the ‘Framework Agreement’ on 3 August 2015, where they ‘recognized the unique history and position of the Nagas.’ The two entities ‘agreed to end violent confrontation’ and ‘[to share] the sovereign power as defined in the competencies.’ On 17 November 2017, the GoI and a working committee, the Naga National Political Groups (NNPGs),33 signed the ‘Agreed Position’. In this agreement, the GoI ‘recog-

30 The vice president of the Naga National Council, Isak Chishi Swu, and its general secretary, Th. Muivah, along with the president of the Eastern Naga National Council SS Khaplang (based in Burma), formed the National Socialist Council of Nagaland (NSCN) in 1980, with Swu as chairman, Khaplang as vice-chairman and Muivah as general secretary. In 1988, the NSCN split further into two camps: NSCN (Isak and Muivah) and NSCN (Khaplang). Since 2011, there have been further splits within NSCN. 31 The breakthrough followed a ‘secret meeting’ between the then Indian prime minister P.V. Narasimha Rao with NSCN leaders, Isak Chishi Swu and Thuingaleng Muivah, on 12 June 1995 (Balachandran, 2015). 32 Ceasefire Monitoring Cell, National Socialist Council of Nagalim. (1 August 2022), 25 Years of Indo-Naga Ceasefire (1997–2022), p. 2. 33 Formed on 13 December 2016, the NNPGs comprise seven groups in the Working Committee: GPRN/NSCN, FGN, NNC (Parent Body), NPGN/NNC (NA), NSCN (R), the NNC/GDRN (NA) and NSCN (Khango).

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nises the Historical and Political Rights of the Nagas to self-determine their future in consonance with their distinct identity.’34 Even though the GoI is not prepared to discuss the core issue of sovereignty, which led to the conflict in the first place, the ‘Framework Agreement’ and ‘Agreed Position’ are seen as preambles on which a working solution will be negotiated in consonance with ‘contemporary realities’ for an ‘enduring peaceful co-existence’.35 The Government of India made a unilateral decision for negotiations to conclude by 31 October 2019. However, this deadline ‘ended on a somewhat ambiguous note’ (Saikia 2019). While the negotiations with the NNPGs have been completed, they are still ongoing with the NSCN. In 2023, the outcome of the 26-year-old ongoing peace process remains uncertain and inconclusive on key issues, begging the question of whether a genuine and sustainable political agreement will be reached. Tragically, most states and governments, including the Indian state, approach peace processes from the traditional dominant template, focusing on short-term gains at the cost of long-term sustainable peace. The Indo–Naga peace process began with the 1997 ceasefire, towards the end of the last century, and occurred against the backdrop of significant global changes. The process began in good faith and provided both India and the Nagas an opportunity to creatively explore new ways of addressing self-determination and sovereignty-based conflicts. However, the process reveals that the GoI’s template is designed to manage the conflict rather than find a resolution for sustainable peace. An editorial in the Hindustan Times (26 August 2020) titled ‘Sustain the Naga Peace Talks’ captures this intent: The Indian State has a novel way of dealing with what seem to be intractable armed conflicts. Engage (with stakeholders, including rebels); assert (the State’s authority) and coerce; divide (especially rebel groups[,] which are often prone to fragmentation); concede (but only partially, without compromising on core principles); and repeat the cycle. The template helps ensure peace without concessions, maintains the centrality of the State, and either weakens rebel groups or creates incentives for them to stay within the framework of a peace agreement. (Hindustan Times, 2020)

Amid this protracted negotiating process and shifting global politics, the state-centric and bureaucratic approach to peace lacks creativity, imagination, transparency and accountability. Instead, it seeks to find a solution without making any concessions. During these 26 years of ongoing ceasefires, the Naga Peoples have been weakened.

34 Agreed Position between the Government of India (GOI) and Naga National Political Groups (NNPGs) Working Committee (WC) on Resolution of Naga Political Issue, New Delhi, 17 November 2017. 35 The phrases ‘contemporary realities’ and ‘enduring peaceful co-existence’ are mentioned in Framework Agreement between the Government of India (GoI) and the National Socialist Council of Nagaland, 3 August 2015 and Agreed Position between the Government of India (GoI) and Naga National Political Groups (NNPGs) Working Committee (WC) on Resolution of Naga Political Issue, New Delhi, 17 November 2017.

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New divisions have fragmented society, with corruption flourishing while a culture of impunity reigns where structural violence is embedded. State institutions in the name of development and peace have travelled deep into Naga villages even as traditional institutions are weakened and cultural assimilation is being pursued systematically. All this is eroding the Naga foundation to exercise future self-determination. Today, the Naga situation is entrenched in a situation where the peace process has not lapsed to armed violence, but neither has it made any qualitative progress towards sustainable peace. Within this stalemate, the task of finding a sustainable and enduring peace requires a shift in approach that involves a process that unites and partners in addressing the root causes of the conflict and engaging it on the principles of justice and rights of all peoples. These principles unlock creative and imaginative ways of reaching a settlement consistent with transformative justice and peace principles. This requires thinking beyond the Westphalian state system and ensuring that self-determination is the ‘cement and foundation’ for building long-term peace (a young Naga peace activist from Burma, pers. comm., 16 August 2020). Peace, after all, is ‘as practical as a good self-determination’ (Wati Aier, pers. comm., 5 August 2020).

IN LIEU OF A CONCLUSION: REHUMANISING THE RIGHT TO SELF-DETERMINATION The very essence and praxis of self-determination imply an idea that is constantly emerging. Its journey, since being interrupted by the Westphalian order, has been navigated by an exclusive club. Clothed within a particular culture and institutionalised in the realms of international law, a selective and restricted form of self-determination was erroneously presented in a global dimension as a remedy to colonisation. The institutionalised legal concept of self-determination has restricted humanistic components. Martin Ennals notes that ‘the present dilemma is multi-disciplinary and cross-cultural’ (quoted in Stavenhagen, 1996, p. 6). Now, self-determination needs to go beyond international law, embrace values of humanity and explore and extend its journey to the uncharted realms of the ‘cultural others’. Further, a legal system that remains stagnant is in danger of not only becoming irrelevant but committing grave injustices. Law, as an adjunct of society, needs to evolve and adjust when society changes (Lâm, 2000, p. 202). All of this requires a comprehensive examination (Knight, 1985, p. 250) located in an interdisciplinary and multicultural process not dominated by one culture. Imagination is called for if we are to explore a shared language of self-determination that involves embracing, recognising and respecting all human cultures, not simply the juxtaposition of cultures (Longchari, 2016, p. 113). For Toni Morrison (quoted in Smith, 1999, p. 37), it is a process of struggling to find the language to do this and then struggling to interpret and perform within that shared imagination. A dialogue between cultures is imperative so that a shared language of

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self-determination can emerge and evolve as a way of sharing one’s own culture and aspirations more broadly. The meeting of cultures can lead to ‘realization of freedom, in the guaranteed right of each culture to move in mutual respect, each one freely running the risk of being different, fearless of being different, each culture being for itself’ (Freire, 1992, p. 156). Reclaiming history (Smith, 2012, p. 32) and notions of the self are central to humanisation since ‘colonized peoples have been compelled to define what it means to be human because there is a deep understanding of what it has meant to be considered not fully human’ (Smith, 2012, p. 26). The definition and application of the self have become ‘hopelessly political and confused’ (A UN observer, 1993, p. 35). Nonetheless, the reference ‘of all peoples’ in UN documents and self-determination being established as a right in human rights treaties is consistent. Hans Köchler (2000, p. 141) claims, ‘it is not the state that is “eternal” and which enjoys “inalienable rights”, but the people as a collective social and cultural reality.’ He emphasises that only a peoples-centred framework of international law will be in conformity with the requirements of human rights and democracy. The term peoples can no longer be defined by ‘existing or perceived sovereign boundaries’ (Anaya, 1996, p. 79). Consequently, self-determination cannot be concerned only with narrow and exclusive definitions of peoples. In fact, in today’s world of rapidly changing communications technology, interconnectivity, interdependency and interactions, James Anaya (quoted in Muehlebach, 2003, p. 260) advocates that the term peoples needs to be understood in a flexible manner. This upholds the rationale that self-determination is ‘presumptively universal in scope and thus must be assumed to benefit all segments of humanity’ (Anaya, 1996, p. 76). The self in self-determination naturally concerns peoples not as objects but as makers of their own destinies. Accordingly, peoples represent ‘the spectrum of humanity’s complex web of interrelationships and loyalties’ (Anaya, 1996, p. 79) that recognises the ‘multiple, overlapping spheres of community, authority, and interdependence that actually exist in the human experience’ (Anaya, 1996, p. 78). Identity, as the self having the right to self-definition, is the thread woven through all basic needs. Self-determination empowers a people with the right to be identified as they choose. This becomes the foundation from which all other rights can be enjoyed (Longchari, 2016, p. 137). Taiaiake Alfred (1999, pp. xi–xii) suggests that the path to a shared and humanising language of ‘self-determination is uphill and strewn with obstacles’, and yet it needs to be taken to ‘recover our strength, our wisdom, and our [human] solidarity.’ Creating human solidarity uses language as a means and process of evolving culture as ‘culture cannot be tamed … and it wants life in all its richness; it demands and asserts its freedom, an impulse nothing can control’ (Geoffrey quoted in Dinh, 1987, p. 19). Like culture, the language of self-determination is seeking life in all its richness, which needs to reflect equity and justice that is translated into all peoples’ lived experiences (Bijoy referred to in Longchari, 2016, p. 126). Self-determination involves ‘a bottom-up approach that exhibits the vitality and potency of emergent trends favouring the extension of democratic practices and

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the deepening of human rights’ (see Falk, 2000, p. 6). A top-down approach limits self-determination to a remedial aspect where decolonisation is viewed as the formal process of transferring governmental instruments. However, merely granting of sovereignty by a colonial power does not comprise or ensure true independence—not politically nor economically and certainly not culturally. Crafting a shared language of self-determination is a significant step towards building a dignified, respectful and harmonious humanising culture. Respect, in this context, means a ‘reciprocal, shared, constantly interchanging principle which is expressed through all aspects of social conduct’ (Smith, 2012, p. 120). Kenneth Deer articulates this concern by asserting, ‘No-one has a patent over the definition of self-determination’, and explains, ‘Nobody exercises self-determination in isolation – it’s shared, and surrendered, and you make treaties all the time’ (Kenneth, quoted in Muehlebach, 2003, p. 259). Self-determination is relational. The praxis of self-determination embodies two scopes of rights: the right of the ‘self’ that does the determining and the ‘right’ that the ‘self’ determines. It stands up for all peoples and represents a right that is undivided and indivisible. This implies living in ‘right relationship’ and in ‘relational interdependence’ with fellow human beings, nature and the structures that govern them (Longchari, 2016, pp. 126–129). To be exercised responsibly, self-determination requires a common desire towards a shared future (Longchari, 2016, p. 132), which rests on a shared humanity. The Helsinki Final Act denotes self-determination as a right ‘all people always have’.36 This notion of continuity was explained at the UN by E. Young (quoted in Jayawickrama, 1996, p. 356), a British diplomat, as follows: ‘self-determination is not a single event – one revolution or one election. The exercise of this right is a continuous process.’ Clearly, self-determination is not an end and cannot be restricted to being a remedial element that would make it incapable of universal application. Rather, Indigenous movements advocate for self-determination to ‘be a prerequisite to the regulations of all social action and situations of cooperative interdependence’ (Muehlebach, 2003, p. 253). Kenneth Deer (2000, p. 106), amplifies, ‘without the right to self-determination, all the other rights have no grounding’. From this standpoint, the praxis of self-determination is the most basic and critical element towards humanising all peoples by respecting the multiple and overlapping spheres of human association and political ordering that characterises humanity. When no longer confined, caged and shrouded in the complex domain of international law, self-determination embodies a language that represents life-giving values and freedom to evolve and participate of their own free will without coercion. It embodies the basic human aspiration for dignity and the freedom of any collective with

36 The Helsinki Final Act, adopted by 35 European States in 1975, says, ‘by virtue of the principle of equal rights and self-determination of peoples, all people always have the right, in full freedom, to determine, when and as they wish, their internal and external political status, without external interference, and to pursue as they wish their political, economic, social and cultural development’ (Hannum, 1993, p. 28).

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a shared identity to determine their political status and pursue their social, economic and cultural future (Longchari, 2016, pp. 133–134). For too long, the praxis of self-determination in modern history has been caged by Westphalian order and state pragmatism. More than ever before in recent human history, the first two decades of the 21st century have revealed the intimate relationship between JustPeace, human security, human rights and democracy. All these values are dependent on self-determination. As a life force and creative energy, self-determination is a prerequisite for enjoying all other rights and freedoms. It influences all aspects of human development and interactions that are cultural, social, political and economic. At its core, self-determination is a liberating concept that is expected to ‘equally contribute to peace and security in the world’ (Point 12 of The Saskatoon Statement on Self-Determination, 1993). Indeed, it is ‘an idée force of powerful magnitude, a philosophical stance, a moral value, a social movement, a potent ideology’ (Stavenhagen, 1996, p. 2). The right to self-determination can no longer be limited to colonial and non-self-governing situations and the decolonisation process. The UN, states and Indigenous Peoples need to work together to develop a framework for a shared language of self-determination that embodies the evolving culture of all humanity. The recovery of self-determination as a praxis with all its humanistic values is crucial to humanisation. When self-determination is integral in the search for dignity and when peoples are placed at the centre of the humanisation process, then spaces for renewal, reconciliation and healing open. Through this, the praxis of self-determination embraces diverse cultural values, shared interpretations and contextual applications consistent with the dynamics of an interdependent and interconnected world where power is shared. Ultimately, the value of self-determination ‘is going to increase simply because it is more people-friendly … and its potential as an imaginative concept of restructuring the world along creative lines’ (Longchari, 2016, p. 271). Self-determination seeks to transform the unjust order and free the oppressed and oppressors from the structures of violence and domination. Since it is a right that belongs to all people, self-determination relies on a contextual interpretation over time and space so that values of equity, justice and dignity are embedded in creating conditions that make this principle manifest into reality (Longchari, 2016, p. 145). The humanistic values of self-determination are the key to unlocking the unjust relationship between states and Indigenous Peoples. It is a means, a pathway towards the destination of humanisation.

REFERENCES Agreed Position between the Government of India (GOI) and Naga National Political Groups (NNPGs) Working Committee (WC) on Resolution of Naga Political Issue, New Delhi, 17 November 2017.

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Anaya, S. J. (1996). Indigenous Peoples in international law. New York, NY: Oxford University Press. Balachandran, V. (2015). The Rao breakthrough. The Indian Express, 20 August. Available at https://​indianexpress​.com/​article/​opinion/​columns/​the​-rao​-breakthrough/​ (accessed on 18 July 2017). Baruah, S. (2003). Confronting constructionism: Ending India’s Naga War. Journal of Peace Research, 40(3), 321–338. Bhatia, B. (2011). Awaiting Nachiso. Kathmandu, Nepal: Himal Southasian Publication. Available at www​.himalmag​.com/​component/​content/​article/​4575​-awaiting​-nachiso​.html (accessed on 2 August 2011). Burman, Roy, J. J. (2008). Contours of the Naga upsurge. Asia Europe Journal, 6(1), pp. 145-156. Burmese Youth Organisation. (2010). Life under Military Rule: Human Rights Violations of Nagas In Burma. A report by Naga Youth Organisation–Burma, October. Cardenas, E. & Canas, M. F. (2002). The limits of self-determination. In W. Danspeckgruber (Ed.), The self-determination of peoples: Community, nation, and state in an interdependent world (pp. 101–118). London: Lynne Rienner Publishers. Ceasefire Monitoring Cell, National Socialist Council of Nagalim. (2022). 25 Years of Indo-Naga Ceasefire (1997–2022), 1 August. Centre for Human Rights. (1987). Human Rights: Status of International Instruments. New York, NY: United Nations. Chadda, M. (2006). Minority Rights and Conflict Prevention: Case Study of Conflicts in Indian Jammu and Kashmir, Punjab and Nagaland. Minority Rights Group Report. Cherstich, I., Holbraad, M. & Tassi, N. (2020). Anthropologies of revolution: Forging time, people, and worlds. Oakland, CA: University of California Press. Considerations of the provisions of other Articles (2021). Available at https://​www​.un​.org/​en/​ sc/​repertoire/​59–63/​59–63​_12​.pdf (accessed on 8 September 2021). Danspeckgruber, W. (Ed.). (2002). The self-determination of Peoples: Community, nation, and state in an interdependent world. London, UK: Lynne Rienner Publishers. Das, K. N. (2011). Naga peace parleys: Sociological reflections and a plea for pragmatism. Economic & Political Weekly, XLVI(25), 70–77. Declaration on the Granting of Independence to Colonial Countries and Peoples. (2022). Available at www​.ohchr​.org/​en/​instruments​-mechanisms/​instruments/​declaration​-granting​ -independence​-colonial​-countries​-and​-peoples (accessed on 8 September 2022). Deer, K. (2000). An Indigenous Understanding of Self-determination. In N. Y. Kly & D. Kly (Eds.), In Pursuit of the Right to Self-Determination: Collected Papers and Proceedings of the First International Conference on the Right to Self-Determination and the United Nations (pp. 104–107). Atlanta, GA: Clarity Press, INC. Dinh, T. V. (1987). Independence, Liberation, Revolution: An Approach to the Understanding of the Third World. Norwood, NJ: Ablex Publishing Corporation. Dirks, N. (2001). Castes of mind: Colonialism and the making of modern India. Princeton, NJ: Princeton University Press. Emerson, R. (1960). From empire to nation: The rise of self-assertion of Asian and African peoples. Boston, MA: Beacon Press. Falk, R. (2000). Preface. In N. Y. Kly & D. Kly, D. (Eds.), In Pursuit of the Right to Self-Determination: Collected Papers and Proceedings of the First International Conference on the Right to Self-Determination and the United Nations (pp. 6–11). Atlanta, GA: Clarity Press. Falk, R. (2002). Revisiting Westphalia, discovering post-Westphalia. The Journal of Ethics, 6(4), 311–352. Feith, H. & Smith, A. (1995). Self-determination in the 1990s: Equipping the UN to resolve ethno-nationalist conflicts. In K. Rupesinghe (Ed.), Conflict Transformation (pp. 143–160). London: Macmillan Press.

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Framework Agreement between the Government of India (GoI) and the National Socialist Council of Nagaland, 3 August 2015. Franke, M. (2009). War and nationalism in South Asia: The Indian State and the Nagas. New York, NY: Routledge. Freire, P. (1992). Pedagogy of hope: Reliving pedagogy of the oppressed. New York, NY: Continuum Publishing Company. Freire, P. (2005). Pedagogy of the Oppressed, New Revised 30th Anniversary Edition. New York, NY: Continuum Publishing Company. Galtung, J. (2002). The state/nation dialectic: Some tentative conclusions. In J. Galtung, C. G. Jacobsen & K. F. Grand-Jacobsen (Eds.), Searching for peace: The road to TRANSCEND (pp. 126–141). London, UK: Pluto Press. General Assembly Adopts Declaration on Rights of Indigenous Peoples. (2022). ‘Major Step Forward’ towards Human Rights for All, Says President. Available at https://​press​.un​.org/​ en/​2007/​ga10612​.doc​.htm (accessed on 8 September 2021). Ghai, Y. (1996). Reflections on self-determination in the South Pacific. In D. Clark and R. Williamson (Eds.), Self-determination: International perspectives (pp. 173–199). Houndmills: Macmillan Press; New York, NY: St. Martin’s Press. Gray, A. (1986). The British in Nagaland: Their anthropology and their legacy. In IWGIA, The Naga Nation and its struggle against genocide. Copenhagen: IWGIA. Haksar, N. (2005). In Shimray, S. A. (Ed.), Let freedom ring: Story of Naga nationalism (pp. 13–21). New Delhi: Promilla Co., Publishers. Halperin, M., Scheffer, D. & Small, P. (1992). Self-determination in the new world order. Washington DC: Carnegie Endowment for International Peace. Hannum, H. (1990). Autonomy, sovereignty, and self-determination: The accommodation of conflicting rights. Philadelphia, PA: University of Pennsylvania Press. Hannum, H. (1993). Rethinking self-determination. Virginia Journal of International Law, 34(1), 1–69. Herbst, J. (2002). Global change and the future of existing nation-states. In W. Danspeckgruber (Ed.), The self-determination of peoples: Community, nation, and state in an interdependent world (pp. 13–30). London: Lynne Rienner Publishers. Hindustan Times. (2020). Sustain the Naga peace talks, 26 August. Available at https://​ www​. hindustantimes​. com/​e ditorials/​s ustain​- the​- naga​- peace​- talks​- ht​- editorial/​s tory​ -vQ​Sl0a8bpvol​fEswewd7uI​.html (accessed on 5 November 2021). Hoho, N. (2002). White Paper on Naga integration. Adopted at the 7th Naga Hoho General Assembly, Senapati, 20–22 May. Senapati, India: Naga Hoho. Hutton, H. J. (1966). Solution to Naga problem. The Assam Tribune, 18 August. International Covenant on Civil and Political Rights (2022). Available at ww​.ohchr​.org/​ en/​instruments​-mechanisms/​instruments/​international​-covenant​-civil​-and​-political​-rights (accessed on 8 September 2021). International Covenant on Economic, Social and Cultural Rights (2022). Available at www​.ohchr​.org/​en/​instruments​-mechanisms/​instruments/​international​-covenant​-economic​ -social​-and​-cultural​-rights (accessed on 8 September 2021). Iralu, D. K. (2002). Nagaland and India: The blood and the tears. Privately published. IWGIA. (1986). The Naga Nation and its struggle against genocide. Copenhagen: IWGIA. Jayasinghe, S. (2002). The future of self-determination. Contemporary Review, 280(1634), 169–171. Jayawickrama, N. (1996). The right of self-determination: A time for reinvention and renewal in D. Clark & R. Williamson (Eds.), Self-determination: International perspectives (pp. 354–374). Houndmills: Macmillan Press; New York, NY: St. Martin’s Press. Johnson, C. (1986). A captured nation: The Naga dilemma. In International Work Group for Indigenous Affairs (Eds.), The Naga Nation and its struggle against genocide (pp. 6–36). Copenhagen, Denmark: International Work Group for Indigenous Affairs.

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July, R. W. (1987). An African Voice: The Role of the Humanities in African Independence. Durham: Duke University Press. Knight, D. B. (1985). Territory and people or people and territory? Thoughts on postcolonial self-determination. International Political Science Review, 6(2), 248–269. Köchler, H. (2000). Self-determination as a means of democratization of the United Nations & the international system. In Y. N. Kly & D. Kly (Eds.), In pursuit of the right to self-determination: Collected papers and proceedings of the First International Conference on the right to self-determination and the United Nations (pp. 133–142). Atlanta, GA: Clarity Press, INC. Kumar, R. N. & Murthy, L. (2002). Four years of the Ceasefire Agreement between the Government of India and the National Socialist Council of Nagalim: Promises and pitfalls. Civil society initiatives on the Naga peace process. New Delhi, India: Other Media Communications. LaDuke, W. (2015) Indigenous reflections on Christianity. Sacred Land Project, 27 May. https://​www​.youtube​.com/​watch​?v​=​OoxNyNWFvZw (accessed on 18 July 2017). Lâm, M. C. (2000). At the edge of the state: Indigenous Peoples and self-determination. New York, NY: Transnational Publishers. Longchari, A. (2016). Self-determination: A resource for JustPeace. Dimapur, India: Heritage Publishing House. Lotha, A. (2008). Naga identity: Enduring heritage. In M. Oppitz, T. Kaiser, A. von Stockhausen, & M. Wettstein (Eds.), Naga identities: Changing local cultures in the Northeast of India (pp. 47–55). Gent: Snoeck Publishers. Luithui, L. & Haksar, N. (1984). Nagaland file: A question of human rights. New Delhi: Lancer International. Manchanda, R. & Bose, T. (2011). Expanding the middle space in the Naga peace process. Economic & Political Weekly, XLVI(53), 51–60. Mazrui, A. (1967). Towards a Pax Africana: A study on ideology and ambition. Chicago, IL: University of Chicago Press. Means, G. P. & Means, I. N. (1966). Nagaland: The agony of ending a guerrilla war. Pacific Affairs, 39(3/4), 290–313. Miller, D. (1995). On nationality. New York, NY: Oxford University Press. Moore, M. (1998). Introduction: The self-determination principle and the ethics of secession. In Margaret Moore (Ed.), National self-determination and secession (pp. 1–13). New York, NY: Oxford University Press. Morton, H. H., Scheffer, D. J. & Small P. L. (1992). Self-determination in the new world order. Washington, DC: Carnegie Endowment for International Peace. Muehlebach, A. (2003). What self in self-determination? Notes from the frontiers of transnational indigenous activism identities. Global Studies in Culture and Power, 10(2), 241–268. Nanda, V. P. (1997). Revisiting self-determination as an international law concept: A major challenge in the post-cold war era. ILSA Journal of International & Comparative Law, 3(2), 443–453. Ngũgĩ, T., wa. (1996). Decolonizing the mind: The politics of language in African literature. Nairobi, Kenya: East African Educational Publishers; London, UK: James Curry. Nuh, K. V. & Lasuh, W. (Eds.). (2002). The Naga Chronicle. New Delhi, India: Regency Publications. Postero, N. (2017). The Indigenous state: Race, politics, and performance in plurinational Bolivia. Oakland, CA: University of California Press. Ramunny, M. (1988). The world of Nagas. New Delhi, India: Northern Book Centre. Said, E. (1978). Orientalism. London: Vintage Books. Saikia, A. (2019). The Naga question: Why the Centre is playing down the breakthrough in the Naga talks. Scroll.in, 2 November. Available at: https://​scroll​.in/​article/​942384/​why​-the​ -centre​-is​-playing​-down​-the​-breakthrough​-in​-the​-naga​-talks (accessed on 31 May 2020).

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Shimray, S. A. (2005). Let freedom ring: Story of Naga Nationalism. New Delhi, India: Promilla & Co. Simpson, G. J. (1996). The diffusion of sovereignty: Self-determination in the post-colonial age. In M. Sellers (Ed.), The new world order: Sovereignty, human rights, and the self-determination of peoples (pp. 35–56). Oxford, UK: Berg. Smith, L. T. (1999). Decolonizing methodologies: Research and Indigenous Peoples. 1st Edn. London: Zed Books. Smith, L. T. (2012). Decolonizing methodologies: Research and Indigenous Peoples. 2nd Edn. London: Zed Books. Stavenhagen, R. (1996). Self-determination: Right or demon? In D. Clark & R. Williamson (Eds.), Self-determination: International perspectives (pp. 1–11). Houndmills: Macmillan Press; New York, NY: St. Martin’s Press. Sundar, N. (2011). Interning insurgent populations: The buried histories of Indian democracy. Economic & Political Weekly, XLVI(6), 47–57. Taiaiake, A. (1999). Peace, power, and righteousness: An Indigenous manifesto. Ontario, Canada: Oxford University Press. UN Economic and Social Council. (1995). Submission by the Society for Threatened Peoples on The Human Rights Situation in Nagaland, to the Commission on Human Rights, Sub-commission on Prevention of Discrimination and Protection of Minorities, Forty-seventh session, Agenda item 6, E/CN.4/Sub.2/1995/NGO/35 on 10 August. Vashum, R. (2000). Nagas’ Right to Self-determination. New Delhi: Mittal Publications. Wohlforth, W. & Felgenhauer, T. (2002). Self-determination and the stability of the Russian Federation. In W. Danspeckgruber (Ed.), The self-determination of peoples: Community, nation, and state in an interdependent world (pp. 227–252). London: Lynne Rienner Publishers. Yhome, K. & Zhimomi, I. (2004). Indigenous education and the formation of Naga identity. Paper presented at Conference on Impact of Globalization, Regionalism and Nationalism on Minority Peoples in South East Asia, Chiang Mai, Thailand, 15–17 November. Unpublished. Young, G. (2001). Indo-Naga war: A journalist account (1961). Reprinted from the Observer. Gase Publications, Viphuora. Printed at NV Press, Kohima, Nagaland, India.

5. Nation building and Indigenous institutions Raymond Foxworth and Moroni Benally

INTRODUCTION Indigenous systems of governance have always been a threat to settler colonial states. During early years of contact, colonising nations learned and borrowed what today are called ‘democratic norms and practices’ from Indigenous nations. In the United States (US), British colonisers like Thomas Paine, Thomas Jefferson, James Madison and Benjamin Franklin were very familiar with Indigenous governments and their theories and practices of governance, and acknowledged that the ‘savage’ Indians were capable of developing functioning systems of government unlike any other in the Western world (Grinde & Johansen, 1991; Miller, 2015). However, the acknowledgement of Indigenous contributions to ‘modern’ systems of governance has often been suppressed, leading to misrepresentations and negative connotations of Indigenous political philosophies and governance systems. Representing Indigenous governance systems as non-existent, unsophisticated, authoritarian or in a warmongering ‘state of nature’ has furthered settler depictions of Indigenous Peoples as backward, aggressive and in need of saving. Viewing Indigenous Peoples as lacking governance sophistication helped justify the recognition of Native nations as ‘domestic dependent nations’ in US jurisprudence, in a state of pupillage, and in need of oversight and guidance by their US Government guardian. Moreover, the view that Indigenous Peoples lacked effective forms of government (despite colonial nations, including the US, having signed hundreds of treaties with Indigenous governments) justified a range of US federal policies, including the Indian Removal Act (1830) and General Allotment Act (1887)—policies that disrupted Indigenous forms of organisation, governance and land tenure systems (Cornell, 1990; Meranto, 2001; Nagel, 1997; Wilkins, 1997). Today, discussions of Indigenous governance continue, and much of this work is now encapsulated by the term ‘nation building’. Native nation building is relatively new in the lexicon and scholarship of Indigenous nations around the world. Nation building as a modern concept was originally popularised by non-Indigenous scholars at the Native Nations Institute (NNI) at the University of Arizona and the Harvard Project on American Indian Economic Development at Harvard University. Today, Indigenous nation building has been embraced by Indigenous scholars and leaders worldwide for its organising principles and calls to action for Indigenous nations to build their capacity and institutional strength for effective self-governance. 98

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Although the discourse of Indigenous nation building is new, Indigenous institutions and governance systems have existed since time immemorial. Often, the organising principles and values of Indigenous Peoples and institutions are contained in creation stories—stories that tend to discuss Indigenous origins in this world and universe. Many Indigenous origin stories contain lessons that guide and structure relationships between the human and more-than-human worlds. More importantly, these stories often root Indigenous Peoples to the land and geographic landscapes that shape Indigenous worldviews. What this means is that Indigenous governance systems, institutions and values have always been recognised by Indigenous Peoples as a part of their inherent and distinct rights. Historically, colonialism has been the dominant analytical framework used to understand the aggression of settler states and their desire to extinguish Indigenous societies. No doubt, settler aggression still persists today, but nation-building efforts also compel Indigenous nations to look inward and consider their overall capacity to self-govern. The concept of Indigenous nation building has led to a renewed interest among Indigenous Peoples in understanding Indigenous governance systems. Under the organising principles of nation building, Indigenous nations globally have made commitments to strengthen local institutions and build leadership and their overall capacity to govern. Moreover, many Indigenous nations have developed social programs to help stimulate and spark nation building. At the same time, there is growing recognition among Indigenous leaders, scholars and practitioners that nation building can be a narrow and limiting governance framework for Indigenous communities. Institutions and their role in governance principles have always been part of Indigenous systems of interaction. But for many Indigenous communities, Indigenous institutions are different and much more expansive than Western notions of institutions. Indigenous governance institutions are not simply about creating a creditable environment for business transactions or setting the rules for politicking; they have a deeper meaning, setting wide rules and norms for behaviour. Many Indigenous governance institutions also acknowledge phenomena beyond the natural world. They are personal, social and political, and rely on wisdom and knowledge systems that existed prior to Western democracies. In the Diné context, for example, Indigenous institutions seek to achieve balance and harmony for individuals, their relatives and all creation. Institutions are not a function of evolutionary development, as envisioned in the Western world. Rather, Indigenous institutions reinforce values, lifeways and ways of being between different worlds. In this sense, Indigenous governance institutions may have evolved differently around the world, but they still exist today and sometimes exist alongside institutions that mirror Western governance structures. This chapter has three goals. First, we trace the origins of nation building as a policy framework in the Western quest for power and hegemony (Payne, 2006). Nation building is an analytical framework to understand patterns of development rooted in the intellectual tradition of institutionalism, a school of thought among Western economists and policy scholars that places political institutions at the root of economic and political development for societies. Institutionalism defines

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institutions as enduring and resilient collections of rules and practices that prescribe appropriate behaviour among actors to engage in political and economic activity (March & Olsen, 1983, 2006). Institutions ‘set the rules of the game in a society’, including formal rules such as constitutions and laws that are enforced by a body of government. Institutions also make informal rules that are codes of conduct and other kinds of norms of behaviour and interaction (North, 1990). From a nation-building perspective, the development of enduring institutions is a necessary step in the political and economic development of societies. The second goal is to provide an understanding of how nation building as a Western construct has been applied to Indigenous governance, with a particular focus on Native nations in the US. Since the passage of the Indian Self-Determination and Education Assistance Act of 1975 (Public Law 93–638), there has been a renewed commitment to institutional development and nation building in Native America. Nation building has provided new opportunities for Native nations to look internally at their governance systems and how they have been influenced by settler colonialism and settler colonial policy all aimed at building the capacity of Native nations in order to generate long-term political and economic development. However, there is a growing critical examination of nation building by scholars, leaders and practitioners, who have suggested that nation building is a Western governance framework created by non-Indigenous academics advancing institutional engineering in an ahistorical and culturally inappropriate context. We explore these critiques. Finally, we draw on the experiences of the Diné Nation (sometimes referred to as the Navajo Nation) to examine the opportunities and limitations of nation building, with an eye towards understanding some of the trade-offs Indigenous nations may confront when trying to map Indigenous values to Western institutions developed under the guise of Indigenous nation building. The Diné Nation, like other Indigenous nations worldwide, has its own values and belief systems that guide and structure appropriate behaviour and identify the kind of society it wants to create and perpetuate. In other words, these complex systems are institutions, and, in the Diné context, they are K’é institutions. We draw on this philosophy to highlight some differences between traditional Diné institutions and Western notions of institutions.

NATION BUILDING IN THE ANGLOSPHERE: INSTITUTIONS, DEMOCRACY AND CAPITALISM Contemporary discussions of nation building in the Anglosphere emerged following the Second World War. Nation building became a common Western foreign policy goal for newly decolonised nations (as defined by the Blue Water Thesis) in Africa and Asia, where Cold War policy was focused on helping these newly free nations solve problems of weak political institutions, state power, national identity and economic underdevelopment. Nation building, including developing strong political instructions, was a framework and policy solution thought to solve these challenges for territories that were on their way to developing independent states with new

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open economies free from external influence. In postwar Japan and Germany, military occupation was justified under the guise of nation building and is credited for transforming these formerly imperial states into peaceful, prosperous and vibrant democracies. The development of constitutional liberal democracies in these recently defeated Axis countries was a key goal under the Marshall Plan and viewed as essential to fighting the influence of the Soviet Union (Keane, 2016). With the intensification of the Cold War, nation building—and its variations (including state building, political stability, institutional development and democracy)—remained a strong component of US foreign policy, especially for developing countries (Miller, 2019; Smith, 2000). These countries were viewed as laboratories of social development, where nation building became synonymous with modernisation and modernity. Scholars like Samuel Huntington, Walt Whitman Rostow and Gabriel Almond developed and advocated for evolutionary theories that linked social and political development to economic development and the promotion of liberal democracy globally (Almond & Verba, 1963; Huntington, 1971; Rostow, 1959). These theories of nation building idolised the development patterns of Western democracies, looking at Western history to identify stages and features of development that can and should be replicated by developing countries. Since nation building was viewed as a linear and sequential process, it was thought that emulation of Western development processes would lead to the eventual democratisation and liberalisation of the so-called Third World. Different flavours of modernisation identified different factors as prerequisites for development and modernity, including mass communications, urbanisation, education systems and macro economies (Arat, 1988; Huntington, 1971; Lipset, 1959; Rostow, 1959). It was thought that as these larger social and political processes evolved, individuals would move beyond their traditional forms of organisation, and traditional values would be replaced by ‘modern’ values, on a pathway to capitalist development and democracy (Inglehart & Baker, 2000; Lerner, 1958; Weiner, 1966). Huntington (2006) questioned the sociological evolutionary processes of modernisation theories, arguing that without political order, we would not see economic and social development. Although he agreed that large societal changes such as urbanisation and increased education can have significant effects on societies, he noted that these processes may actually lead to political instability and market failures because of the absence of political order. Huntington argued that political stability and order through institutionalisation were key pathways to stabilising power relationships in a society. For Huntington, the strength and scope of political institutions were fundamental to the achievement and maintenance of a community. He noted that the level of institutionalisation in a society ‘can be measured by its adaptability, complexity, autonomy, and coherence’ (Huntington, 1968, p. 12). In other words, institutionalisation is the process by which political organisation and procedures gain value, stability and order. For Huntington, political order through the development of strong institutions would inevitably lead to liberty, development and lasting stability. These Western theories of development, which Adas (2018) calls ‘ideologies of Western dominance’, were all developed in the context of the Cold War with

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a primary goal of stopping the spread and influence of Soviet socialism and communism. These theories were developed by social scientists in US think tanks and eventually made their way into US foreign policy. At minimum, these theories of local development justified US influence and intervention in the development of newly decolonised nations. At their worst, these theories drove US foreign policy, at times justifying the installation of brutal dictators in the developing world and ousting of democratically elected leaders for the sake of maintaining political order, hegemony and influence (Berger, 2003; Latham, 2000). Discussions of nation building were linked to the question of ‘What is a nation?’ Scholarly analysis focused on defining a nation was in part driven by the need for a deeper understanding of how to unify diverse populations in newly decolonised states. Relying on analyses of glorified Western histories, conceptions of nations and nationalism have been cast into two rival frameworks: constructivism and primordialism. Constructivist views of a nation situate state development and group attachments as socially constructed, invented, instrumental or imagined (Anderson, 2006; Brass, 1991; Fearon & Laitin, 2000). Primordialists view nations as perennial, historically given entities in which group attachments are shaped by birth and kinship networks. From the primordial perspective, modern nations emerge from pre-existing networks and affiliations and are durable over time (Connor, 1992; Geertz, 1963; Horowitz, 2002). The point here is that nation building has always been linked to trying to understand the so-called ‘ethnic problem’ of developing countries and policy interventions to build national identities and nationalism. Today, nation building rests in the Western intellectual tradition of ‘new institutionalism’. New institutionalism still draws exclusively on idolised experiences of Western democracies and relies heavily on the work of Douglass North, who asserted that institutions in any society are mechanisms to reduce uncertainty and lower transaction costs to create predicable environments for business transactions to occur (North, 1990, 1991). In North’s (1991) discussion of Third World economies, he argued that underdevelopment occurred in certain nations because institutional arrangements created incentives that encouraged market inefficiency. Just as institutions reduce transaction costs and produce economic efficiency, they are just as capable of the opposite, producing economic decline and stagnation (North, 1990, 1991, 1993). From a new institutionalist perspective, individuals have limited cognitive capacity to make sense of complex operational environments, so institutions play a significant role in influencing and constraining individual behaviour and shaping long-term economic outcomes (Acemoglu & Robinson, 2012; Engerman & Sokoloff, 2008; North, 1990). Like theories of modernisation, new institutionalism views the development of political institutions as an evolutionary process. For new institutionalists, strong and effective institutions became necessary as societies moved beyond lower forms of development, often characterised as tribal, local, family and kinship forms of social organisation. As societies move beyond lower forms of development, political institutions are needed to impersonally and neutrally deploy, impose and enforce rules. Bureaucratic development, in this evolutionary framework, emphasises the develop-

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ment of a meritocratic bureaucracy—a system in which social organisation is based on merit rather than kinship bonds—the rule of law, and property and individual rights (Fukuyama, 2011; North, 1990, 1993). To understand Indigenous nation building, we must understand the history of the term in the Anglosphere. Nation building as an analytical and policy concept emerged from a distinct period in global imperial history of managing the underdevelopment of formerly colonised lands and territories. The framework evolved from a fundamentally Eurocentric interpretation of global economic and political history that does not acknowledge the decolonial struggle of Indigenous Peoples globally. Although nation building was a policy framework applied to nations freed from colonial control following the Second World War, it eventually arrived as a policy framework for Indigenous Peoples in the 1980s. At its root, however, nation building emerges from a policy trajectory of social evolution in which nation building is seen as essential to changing the mass attitudes of ‘backward’ developing countries and setting them on a pathway towards capitalism and democracy. As the concept of nation building has evolved, the strength and legitimacy of institutions have become key features of economic and political development. These origins of nation building are important as they shape the language, focus, opportunities and limitations of Indigenous governance systems today.

NATION BUILDING COMES TO INDIAN COUNTRY There is some irony to the fact that Indigenous nations today have embraced the concept of nation building, given its origins are rooted in colonialism, a glorified view of Western history, evolutionary societal development and in Western democracies’ quest for global power. In fact, in many circles, ‘Indigenous nation building’ is used interchangeably with ‘Indigenous governance’ (Nikolakis, Cornell & Nelson, 2019) and has driven the development of academic and leadership programs (Brayboy, Solyom & Castagno, 2014), shaped philanthropic support (Colman, 2014) and, at times, become a catch-all phrase associated with modern attempts to fight colonial control and power. Since the 1980s, the Harvard Project on American Indian Economic Development (the Harvard Project recently changing its name to the Project on Indigenous Governance and Development) has advanced its view of nation building, which sees institutions as fundamental to economic development and improving the wellbeing of Native American communities in the US. Led by the Kennedy School of Government, with a sister organisation, the Native Nations Iinstitute (NNI) at the University of Arizona, scholars affiliated with these organisations have advised Indigenous communities around the world and published on topics related to the causes of Indigenous underdevelopment and the importance of strengthening Indigenous governance capacities. The Harvard Project emerged early in the era Native American policy experts refer to as the Indian Self-Determination era, a change in the 1970s marked by US

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federal policy shifting away from overt termination and assimilation of Indigenous nations toward a stated commitment to strengthening Indigenous self-determination. The Self-Determination era came about through a period of Native American protest activity across the US (Cornell, 1990). The era saw new social policies at the federal level that were more inclusive of Native Americans and the passing of Native-specific legislation to again codify Native American rights to self-determination. As part of this new era in federal Indian policy, new capacity demands were placed on Tribal governments as they fought to gain control over local social development, efforts including federally funded programs historically controlled by the Bureau of Indian Affairs (BIA). The NNI (n.d.) defines Native nation building as follows: Nation building involves building institutions of self-government that are culturally appropriate to the nation and that are effective in addressing the nation’s challenges. It involves developing the nation’s capacity to make timely, strategically informed decisions about its affairs and to implement those decisions. It involves a comprehensive effort to rebuild societies that work. In other words, a nation building approach understands that tribes are not merely interest groups, but governing nations confronting classic problems of human societies.

The pillars of Native nation building, as defined by the NNI (n.d.), include: • Sovereignty: The Native nation should be the one to make major decisions. • Capable governing institutions: Authority of the nation should be backed with competence. • Strategic orientation: Decisions should focus on the long-term priorities of the nation. • Public-spirited leadership: The nation must have leaders who see the need for change and engage the community to make change happen. • Cultural match: Indigenous governance must be reflected in institutions.

Similar to Western discussions of nation building, this definition of Native nation building focuses on the role of government instability and weak political institutions in explaining the underdevelopment of Indigenous societies. The solution, suggest Indigenous nation-building scholars, is that Native nations initiate a myriad of solutions including tribal constitutional revision (Cornell & Kalt, 2000), develop more parliamentary systems of decision-making (Akee, Jorgensen & Sunde, 2012), develop leadership capacity and appropriate term limits for tribal leadership (Cornell & Kalt, 1992), and/or develop independent judiciaries and separation of powers (Cornell & Kalt, 2000). These ‘institutional fixes’ will lift Native nations out of poverty and dependency and put them on the path to economic self-sufficiency. Over time, Native nation building has become less prescriptive in its approaches to strengthening governance capacity (Cornell, 2019). From acknowledging (although perhaps still not appropriately valuing) the importance of ‘cultural fit’ in Indigenous institutional development to recognising that Indigenous good governance practices may not squarely align with Western individualist good governance principles, Indigenous nation building has evolved, like any intellectual tradition, over time.

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Moreover, nation building has fundamentally changed the pathways for the study of Indigenous governance around the world. Indigenous leaders and scholars have looked beyond the narrow and failed pathways to economic development initiated by the BIA and other failed national government experiments (Vinje, 1985) and refocused internally to examine how Indigenous capacity and systems may stimulate or hinder local development. Some nations have initiated constitutional revisions (Hopfensperger, 2013), moving beyond constitutions and governing structures packaged by the BIA (Wilkins & Lightfoot, 2008), and other kinds of institutional change, with an eye to initiating Indigenous-led pathways to community and economic development. There is no denying that Indigenous nation building has filled a crucial gap in the development of Indigenous governance discourse and practice. In many ways, it has helped scholars, Indigenous leaders and practitioners move beyond limited intellectual traditions that defined the early years of Indigenous studies, which tended to focus solely on colonialism, the loss of Indigenous rights and disempowerment. These intellectual traditions were pathbreaking and are still relevant as settler colonial aggression continues to run rampant today. This aggression includes anti-Indigenous scholarship that has labelled Indigenous governance as corrupt, unprofessional and unruly, suggesting that Native nations concede legal authority and jurisdiction to states as they can govern best for Indigenous Peoples today (Anderson & Parker, 2008, 2009). Given these persistent attacks on Indigenous governance and society, there remains a clear need for Indigenous nations and scholarship to look internally at their capacity to self-govern while also challenging colonial policy and power. There are growing critiques of Indigenous nation building from Indigenous peoples. Critics of nation building suggest that this model treads in the direction of institutional engineering that has emerged in other parts of the world largely to perpetuate inequities and power imbalances between developing and developed countries (Przeworski, 2004). Moreover, others suggest that these institutional explanations have provided little empirical evidence to substantiate the claims that institutions matter in explaining growth, decline and overall well-being in Native American communities. Critiques also suggest that this literature provides an ahistorical framework for understanding the role of colonialism in shaping Indigenous governance systems and economies. In sum, these critiques question the extent to which the Western origins of nation building translates to Indigenous governance systems (Alfred & Corntassel, 2005; Dowling, 2005; Hunt & Smith, 2006; Smith, 2005; Sullivan, 2007; Yazzie, 1996; Zion & Yazzie, 2006).

COLONIAL POLICY AND DINÉ GOVERNANCE For the Diné people in the US, traditional governance systems were significantly disrupted starting in the mid-1800s, during the US invasion of the southwest and following the ‘Navajo Wars’, where the US military proclaimed that the Navajo would either be exterminated or would surrender (Denetdale, 2006, 2007). Following

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Kit Carson’s brutal scorch-and-burn campaign against Diné families, thousands of Diné were forced to march to and be interned at Bosque Redondo, near Fort Sumner, from 1864 to 1868. After the death of thousands of Diné people from starvation and disease, sexual assault, rough winters and thin growing seasons, the Navajo Nation agreed to a ceasefire by signing the Navajo Treaty of 1868. With their return to Dinétah, the Diné people came back to their homelands in the four sacred mountains and attempted to maintain their traditional governance practices. This continued until the 1920s, when US need for oil and gas forced the creation of the Navajo Business Council, charged with the sole responsibility of negotiating oil and natural gas leases under the direction of Indian commissioners appointed by the BIA. The Navajo Business Council was appointed by the Commissioner to the Navajos, a federal agency, and only men could serve on the council. This council forever altered Native governing institutions and practices, in part by minimising the leadership roles of women (Denetdale, 2006, 2007). In the 1930s, the US Government began promoting the Indian Reorganization Act (Public Law 73–383) to Native people across the US. The Navajo rejected the Act, in large part because they viewed the Navajo Business Council and Indian Commissioner John Collier as responsible for the livestock reduction program that began in the 1930s that disrupted Navajo economies and subsistence practices. Still, the Navajo Nation undertook government reform measures in the 1930s, creating rules for the Navajo Business Council in 1938, including the expansion of the Native Business Council to 74 delegates based on representational needs. In 1989, the Navajo Nation again engaged in government reform, creating a three-branch system of government, with executive, legislative and judicial branches; setting forth new rules that allowed for formal separation of powers between branches; and defining and setting limits on powers between branches. These reforms also expanded the legislative body to 88 members, representing 110 Navajo chapters. In 2010, Navajo voters reduced the size of the Navajo legislative body from 88 council delegates to 24 district delegates, representing 110 Navajo chapters.

DINÉ INSTITUTIONS Numerous conditions affect nation building in the Navajo Nation. Non-Western-trained Diné scholars have highlighted tensions between the social ordering of Diné and the Western nation building pillars and framework. A key concern is the separation of the material and immaterial in the conceptualisation of foundational ‘institutions’ for regulating markets and society. Neuroscience suggests that complex neuronal pathways are responsible for how humans perceive and interact in the world, and this is formed in specific contexts (see, e.g., Bagnis et al., 2020; Bai, Ramos & Fiske, 2020; Faust, Chatterjee & Christopoulos, 2019; Fiske, 2009). These studies imply that the aforementioned concern is legitimate. The growing neuroscience literature informs how political and policy scientists approach critiques about ‘white’ theories

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and raises serious questions about whether their theoretical prescriptions (Meyer & Rowan, 1977) adequately circumscribe Diné social organisation. Outside the academy, Diné scholars (Benally, 1988; Diné Policy Institute, 2008; Maryboy and Begay, 1999) have worked on a theory of Diné being that can be used to better understand Diné, with particular emphasis on education. In Diné, this process started with Diné College, the Diné tribal college, asking whether its ‘philosophy of education’ matched Diné values. This catalysed scholars (both Western and non-Western trained) to think about fundamental existential questions and how they affect and shape the Navajo people’s practical behaviour (Willeto, 1997). These scholars debated and wrote about the nature of Diné being and society, referencing the ‘extant literature’ of the Diné people, stored in prayers, songs, stories and practice. This literature guided the creation of new institutions and organising paradigms for education and learning. In other words, these scholars used a form of Diné analytic methods of reasoning, otherwise known as Nabik’id Tsaahákees, to recognise a set of principles that structure behaviour between people, society, earth, and one’s thoughts and stories. This set of institutions, called k’é hwindzin, is also the foundation of Diné governance. Reconceptualising Diné structured behaviour as institutions necessarily raises tensions that scholars such as Levi, Thelen, Skocpal and Ostrom have hinted at within the academy. Their work has led to a notion of institutions that are dynamic in both time and space. This theorising of dynamic institutions expands the range of meaning for ‘institutions and culture’ in the nation-building discourse. The following sections build on the work of Diné scholars and describe Diné ways of being that are linked to Diné governance systems.

K’É HWINDZIN K’é hwindzin is a relational system designed to transform the four pillars of hozhoo (goodness and happiness) into hozhoo relations, for our Ntsáhkees (cognitive functioning) to be connected to Sa’a Naaghai Bike’h Hozhoo (SNBH; or the power that compassionately sustains the universe), our ats’iis (body) to be connected to SNBH, our áni (mind) to be connected to SNBH, and our hooghan (home-place) to be connected to SNBH. In short, k’é is a relational system quickened by SNBH (i.e., all creation) in ways that lead to a K’é/hozhoo relation with SNBH itself. It is hoozhojii saad (Holy words), hozhoojii Ntsáhkees (Holy thoughts) and so on. K’é is the core feature of Aha’ana’ooniil (the family of Mother Earth and Father Sky). Changing Woman (a deity and mother of all Diné) taught k’é to ensure all our relations were harmonious.1 K’é is imbued with the ethos of SNBH and designed so that each Diné can improve and progress on tadadiin e’etiin (corn pollen path), where the (corn) pollen



1

‘Clan’ is too limited an expression but highlights one level of K’é.

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is a representation of light and knowledge associated with SNBH. K’é outlines how to properly—and appropriately—apply each of the Four Knowledges to restore our beings to hozhoo. From Diné Beehozin, we posit that there are four thematic institutions of k’é that correspond to the Four Knowledges. The appropriate application (i.e., balance2) of these k’é categories initiates the formation, access and presence of hozhoo—a requisite condition to be continuously restored to SNBH. K’é structures hozhoo interactions within the complex of interactions connected to sustain the material and immaterial aspects of SNBH. Its ethos orients the internal parts of one’s essence—nstahakees, nihigáál, ání and hoghaan—towards hozhoo. A function of k’é is to continuously remind, restore and reorient, through the k’é/ hozhoo relation, our being with the universal essence known as SNBH. Thus, any structured expression acknowledging all creation as family is meant to remind us of the inherent hozhoo expression of k’é. K’é hwindzin, or knowledge of the relationality system, is also a gradual acknowledgement (hwindzin) of one’s connection to all creation of SNBH and to SNBH, and that one has been or will be (choohoo’iih) restored to all holy goodness, hozhoo nahasdlii, which is SNBH. K’é terms will be used within the complex interactions associated with all the (contradictory) meanings of the Four Knowledges. K’é dispositions such as compassion, empathy, unconditional love and understanding, mercy, patience and healing indignation (connected to compassionate reproving and a hozhoo commitment to move the reproved towards hozhoo) will serve as the guides to a continuous restorative relationship with SNBH (or hozhoo).

BIKEHGO DA’IINANII—E’EAH/NTSÁHKEES Bikehgo Da’iinanii manifested as k’é are those ideal structured interactions that ensure one’s essence has a hozhoo relationship with one’s own essence in order to be in a hozhoo relationship with SNBH. K’é consists of speaking and accepting kindness, forgiving one’s essence and others (based on hozhoo), compassion (based on hozhoo) for all creation, or all the qualities/manifestations that direct one’s life to hozhoo. In its most general sense, this classification, or k’é, structures how one interacts with all the essences whose dominant essence is tied to the adiindiin (the essence enabling one’s essence to exist—and see—beyond the material and into the unending SNBH) inherent in Bikehgo Da’iinanii. K’é, then, for example, ought to be present in the complex of interactions associated with religion, all modes of communication that direct life and all (SNBH-based) decision-making expressions associated with any mode of movement that manifests as Bikehgo Da’iinanii.

2 From extant Diné Beehozin, it is unknown whether there is a strict unchanging standard to access hozhoo or whether that access is predicated on any indication of the essence to move towards hozhoo. More research is required.

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In short, this is a set of K’é institutions designed to guide one’s essence to a continuously restorative hozhoo relation with the entirety of essences associated with the complex of Ntsáhkees manifestations of Bikehgo Da’iinanii.

NIHIGÁÁL—SHADIAAH/ATS’IIS Nihigáál, manifested as k’é, are those ideal structured interactions that ensure one’s SNBH movement (sacred holy movement) will lead to one’s essence having a hozhoo relationship—informed by the knowledge and light embedded in the east—with all essences, behaviours, activities, events, plans, thinking, desires and yearnings that provide hozhoo sustenance and nourishment to SNBH and hozhoo. Nihigáál represents movement informed and guided by SNBH (and reflecting SNBH) that ‘the world has been created and organized in such a way as to be beneficial not just to the people but to the grandchildren of the people [and to all life]’ (Benally, 1997, p. 91). In this instance, life is considered ííná, as discussed above. These institutions govern all meanings and categories directly and indirectly present in the complex interactions inherent in making a livelihood or that provide sustenance and nourishment to the life-giving force known as SNBH in a way that reflects one’s measure of hozhoo. For example, a Diné-reasoned implication is that k’é hwindzin can structure all interactions in the exhaustive complex of interactions in, for example, one’s employment. In this example, k’é will guide the behaviour of one’s essence towards authentic behaviour that restores the imbalance (and caused by the violence) of sexual harassment or some other form of assault based on one’s physical manifestation of their essence (also known as gender-based violence). Regardless of one’s alignment with hozhoo, any action that leads to substantial declination of hozhoo, via k’é, reverberates to all connected and bound together by and as SNBH.3 In a practical sense, this means that when someone goes missing, the various levels and meanings of family are affected, as is their state of hozhoo. Thus, according to Diné, when someone is missing, their missingness is a (violent) act that disrupts one’s rightful place in the family (ani), impacting all creation; thus, all experience a degree of imbalance commensurate with their measure of hozhoo. In short, this is a set of k’é institutions designed to guide one’s essence to a continuously restorative hozhoo relation with the entirety of essences associated with the complex of Ats’iis manifestations of Nihigáál.

3 This, for example, would require any essence’s movement (hogáál) connected to the livelihood realm of economics to abide by a set of institutions that function, in some ways, like a Pareto improving economics game to ensure shared hozhoo.

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AHA ANA’ OONIIL Aha ana’ ooniil, manifested as k’é, is the complex of ideal hozhoo-inducing structured interactions within all material and immaterial movement (directly or indirectly) associated with this structure of hozhoo, that directly or indirectly leads one towards the gathering or restoration of one’s essence with the essences of all creation or relatives or the unending, love-bound family of the universe, or SNBH. 1. Ntsáhákéés (k’é institutions), informed by this structure of hozhoo, obliges the shí level to yield to the hozhoo/k’é relations with one’s self. This yielding is imperative for SN or BH (or some combination thereof) to authentically emerge in their material expression through the k’é relations with all creation.4 2. Ats’iis, or blood family/consanguinity-structured relations known as doone’é, is inherently connected to the comprehensive Diné understanding of Ats’iis— otherwise known as clan/kinship5 relation. This doone’é institution was meant to preserve biological continuity. The disconnected and necessary but insufficient translation of the possessive but disconnected, troublesome personal pronoun ‘I’ related to sexual production (or the doone’é) stems from this ats’iis essence of k’é. 3. Ání, family/community/nation/world, otherwise known as those who are blood family (established earlier), is governed by doone’é. All bila ashdlaii (those with five fingers) are family, although not directly or indirectly related through the doone’e system. Doone’e is used to structure k’é interactions with all bila ashdlaii. K’é relations form over time. The shó mechanism establishes a k’é relationship with the material/immaterial relations. How it functions remains unknown, but it is empirically6/observably operational, despite non-existent consanguineal relations. 4. Hooghan, or the comfort that comes with knowing one’s essence, is reviving or undergoing a material and immaterial salubrious process to restore one to the universal ‘home’, or SNBH, or structured hozhoo universe called hooghan. Hooghan, therefore, implies an entire set of k’é institutions (e.g., values, norms, practices, decisions) that are consonant with the hozhoo (balance)-giving essences/ethos/powers inherent or hwiisizii (present within) the structure of hozhoo called Holdilzin doo Ha’ayiih. K’é institutions associated with the hooghan aspect of Aha’ana’oo’niil ought to govern/guide/persuade all action connected to the complex of interactions associated with hooghan towards hozhoo. The family within the hooghan of SNBH, therefore, includes the indef-

4 The non-hozhoo (imbalanced) manifestation is often known as shá, a state often referred to as ‘their sacred movement is disconnected from SNBH and therefore all creation’. This is often known as the insult ‘he walks as if he has no family’. 5 Some have noted this is where the knowledge of iina itlool (genetics related to understanding inhabits) comes from. 6 Diné aligned with some of the major tenets of Western empiricism.

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inite, unending, infinite, continuously restoring of one’s essence to hooghan of SNBH (i.e., universal home) and all empirically observed and unobserved material and immaterial creation. The home of SNBH is everything known and all unknown, or the universe. In the Blessing Way, the primary Hooghan Biyin relates to what a home is to Diyin Diné’é (or SNBH). This Hooghan Biyin emphasises the ineffable goodness that comforts and brings rest to all creation, both material and immaterial essences. In this yin (literature, philosophical treatise), Talking God speaks, referring to the hooghan of the Nihookaa’ Diné’e they were visiting, and expressing the following: hooghan hodiyin léí di níyá. The best rendering of this is that all things related to the complex of purposes, roles and activities associated with hooghan are encompassed and marked by an unending, infinite holiness and sacredness that nurtures and provides salubrious material and immaterial rest, reverence, awe and connection within the hooghan of the universe. Thus, the k’é terms are applied to non-bila ashdlaii or to the remainder of Nihookaa’ Diné’e and all other immaterial (in space and time) ííná (SNBH imbued moving, breathing, thinking essence) in the hooghan (one level of understanding being the universe) of SNBH. Thus, the authentic and necessary relation—reflected in the intensity of the implied or yearned for connection in the mother–child, consanguineal relation—is the living and fluid standard (tied to one’s capacity to access SNBH further mediated by their yearnings, despite the degree of their internally observed imbalance). The authentic hozhoo relationship within this structure is informed by the primeval k’é relationship in Azdaa Nadleehi’s instruction to the Nihookaa’ Diné’e within the Hoozhijii philosophical treatises by Diné scholars Slim Curly, Frank Mitchell and Curly Tó Aheedlinii,7 as recorded by Haile. These scholars posit that all bila ashdlaii dine’e are the five-fingered, materially manifested essences identified among the Nihookaa’ Diné’e and recognised by SNBH as human (Diné). The treatises of these Diné scholars imply that non-five-fingered earth surface essences, known as naaldlooshi, are quickened by the life-giving forces inherent in the balancing of the four aspects of hozhoo or SNBH. Nihookaa’ (Diyin) Diné’e8 are the materially/physically manifested life—quickened by hogáál (a power of SNBH), which continuously restores one’s essence, through alignment with the four structures of hozhoo. The alignment or restoration or return to SNBH is predicated on a set of k’é institutions to remind us that all within the hooghan of SNBH is k’éí (the most expansive notion of relations). The Doon’é institution is actually meant to ensure hozhoo consanguineal relations. But more importantly, it serves as the pattern, guide and instruction manual for implementing the k’é institutions that structure all categories of interactions with all 7 Curly is Herbert Benally’s cheii (maternal grandfather) and the great-grandfather of Moroni Benally. 8 This classification system needs refinement.

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categories of creation (SNBH). The k’é institutions lead to continuous restoration to the family of the universe and ensure the pillars of hozhoo are balanced, enabling restoration to SNBH or hozhoo. In Nahasdzaan Shima, Na- is the unending, compassionately indefinite expression of SNBH through the dzaa or sagacious feminine. Shí (already treated) and má are an indication of maternal ideal relation, otherwise known as Mother Earth. Nihokaa’ Diné’e consider the earth their mother, and the k’é terms used to address creation are also a recognition of their hogáál (the prefix ho indicating some aspect of the totality of SNBH power; the verb stem gáál is the power that enables essences to move, breathe, eat, think, walk, pray and be restored to SNBH). Hogáál, then, is SNBH/universe’s movement mediated by commensurate alignment of the structures of hozhoo. Diné believe that one’s movement is essential to restoring one to SNBH or hozhoo. Thus, Diné would seem to use k’é relations with all naaldlooshi and all essences inherent within the breadth of meaning of Nihookaa Diné’e, or all essences quickened by hogáál, or the sacred movement of SNBH within the reach of our material gaze and within the immaterial realm. As there is order in the Diné world (alke sinil), we know there are k’é institutions, premised on the Third Knowledge of k’é given by Changing Woman to regulate blood relations by and towards hozhoo. This Doone’é system is but one expression of the k’é institutions and serves as a pattern for structuring interactions with the essences (quickened by SNBH through hogáál) associated with the other Knowledges. Understanding of the scope, application and intent of k’é is found in the Four Knowledges. The primary pattern governing the k’é is found in Doone’e hane. The titles (like Shima or Shizhe’e) are meant to continuously restore us to the unseen essence of hozhoo expressed as Shima or Shizhe’e. Additionally, these terms enable one to view all creation with compassion, empathy, love and charity, or through the lens of hozhoo. In Diné, an action is complete if and only if that action is first immaterially formed and then materially expressed. In other words, the two parts of that Diné notion of action are a critical feature for an authentic expression of k’é. Thus, knowing the aní of k’é is requisite for any interaction one has while moving (-gáál). There are 16 general categories of k’é that are with specific intent and aligned with the Four Knowledges. Diné Beehozin hints at far more than we were able to analyse. The typology in Table 5.1 and graphic in Figure 5.1 are a crude attempt at outlining the many ways k’é is expressed. K’é can take a SN protective positionality, a BH nurturing positionality, or a balance of the two. Evidence of this typology is found within the extant Diné Beehozin. If we view k’é itself as having ání, which Diné assume, then k’é is a set of living institutions with the aní of the Four Knowledges that enables hozhoo. Figure 5.1 does not complete all connections but does convey the complexity. Much confusion about the meaning of k’é stems from being unable to see beyond the Doone’e part regulating consanguineal relations in a hozhoo way. Doone’e is the primary pattern ungirding k’é. However, it also, and more importantly, manifests itself among the complex of institutions associated with the Four Knowledges and its connection to the four aspects of one’s essence. This is why we tell hané in the

Source:

Hooghan

Ani

Ats’iis

Ntsáhkees

includes manufacturing, mining,

manifestation to hozhoo.

one’s ani back to the SNBH.

Institutions designed to recognise, Institutions designed to restore

movement in the universe.

the world, and with all observable scientific endeavours and so on.

family, community, nation and

to reflect the SNBH in themselves, relations with all creation. This

material and immaterial).

institutions that structure a hozhoo relation with

with all material and immaterial, formed and unformed essences of SNBH.

world and all else in the hooghan of SNBH.

sacred reverence in a hozhoo way family, community, nation, the

structure hozhoo material relations nurture and restore themselves, with all moving creation (both

all creation.

SNBH.

universal consciousness known as

being continuously restored to the

understanding of the meaning of

Institutions like governance ought Institutions that guide hozhoo

the universe.

Institutions designed to restore and Institutions designed to recognise, Institutions designed to ensure

creation in the hooghan of SNBH. Specifically,

hozhoo intent in our interactions with all

Institutions designed to restore and structure

movement of all creation.

immaterial, formed and unformed

a hozhoo way towards material and

community, nation, the world and essences in the universe. An

with the mind, immaterial essence of all creation. and restore one’s ani to the sacred nurture and restore one’s material

Institutions designed to recognise

consanguineal relations.

thought, word and deed.

Institutions designed to have a hozhoo relation

Dooné’é to guide hozhoo

Institutions that reify SNBH and hozhoo in

inherent in all creation.

all consanguineal relations,

a hozhoo way towards all iina with in a hozhoo way towards

constant connection, through Ntsáhkees with life sacred movement on earth.

in moral and analytic thinking about others. Or

thinking, disposition and intent in

K’é institutions that structure

thinking, disposition and intent

K’é institutions that structure

K’é institutions that structure

K’é institutions designed to ensure Ntsáhkees or

that hozhoo orients one towards a hozhoo relation thinking, disposition and intent in

Holdilzin

Aha ana’ oniil

Nihigáál

Bikehgo Da’iinanii

Typology of K’é

Created by authors.

Table 5.1

Nation building and Indigenous institutions  113

114  Handbook of Indigenous public policy

Source:

Created by authors.

Figure 5.1

K’é hwindzin

winter (aha ana oniil) that the hane have specific principles of structuring behaviour for specific settings. The primary function and purpose of k’é is to structure all our interactions with all aspects of SNBH to continuously restore us to hozhoo.

CONCLUSION Colonisation has significantly disrupted Indigenous governance systems, and this was a strategic focus of colonial policy. Consequently, Indigenous Peoples the world over have been grappling with how to best govern; preserve land, sovereignty and culture; and respond to the demands of their citizens. All the while, Indigenous nations are still battling colonial aggression. In this chapter, we have attempted to lay out the origins of nation building as an analytical concept and a set of policy solutions for understanding governance systems. Discussions of nation building emerged in the Western world after the international push for decolonisation following the Second World War. That push excluded certain Indigenous nations under the Blue Water Thesis, which posited that only overseas colonies were eligible for decolonisation. The global policy push of nation building drew on an idealised history of Western nations and focused on initiating large social processes for culture change, strengthening the institutions of newly free nations and building strong national identities. Nation building arrived in Indian Country in the US in the 1980s, with a similar focus on building and strength-

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ening institutions. Indigenous nation building has similarly focused on strengthening Indigenous institutions through institutional design, constitutional reform and more. At the same time, Indigenous nations have always had their own distinct institutions, governance systems and governance philosophies. As an example of the resilience of Indigenous governance, we have outlined some key tenets of Diné philosophy and institutions, which have always been key to Diné governance systems. From a Diné philosophical and institutional standpoint, the purpose of the concept of k’é is to structure all interactions with all aspects of SNBH to restore hozhoo. This way of seeing the world—through balance and harmony—has driven Diné lifeways since time immemorial. All this is to say that Indigenous nations, including the Diné, have always had governance institutions to structure the life of people, families and the nation, and these structures can form the basis of Indigenous governance now and in the future.

REFERENCES Acemoglu, D. & Robinson, J. A. (2012). Why nations fail: The origins of power, prosperity, and poverty. New York, NY: Crown Publishers. Adas, M. (2018). Machines as the measure of men: Science, technology, and ideologies of Western dominance. Ithaca, NY: Cornell University Press. Akee, R., Jorgensen, M. & Sunde, U. (2012). Constitutions and economic development: Evidence from the American Indian Nations. Unpublished manuscript. Alfred, T. & Corntassel, J. (2005). Being Indigenous: Resurgences against contemporary colonialism. Government and Opposition, 40(4), 597–614. https://​doi​.org/​10​.1111/​j​.1477–7053​ .2005​.00166​.x Almond, G. & Verba, S. (1963). The civic culture: Political attitudes and democracy in five nations. Princeton, NJ: Princeton University Press. Anderson, B. (2006). Imagined communities: Reflections on the origin and spread of nationalism. New York, NY: Verso Books. Anderson, T. L. & Parker, D. P. (2008). Sovereignty, credible commitments, and economic prosperity on American Indian reservations. Journal of Law and Economics, 51(4), 641–666. https://​doi​.org/​10​.1086/​590205 Anderson, T. L. & Parker, D. P. (2009). Economic development lessons from and for North American Indian Economies. Australian Journal of Agricultural and Resource Economics, 53(1), 105–127. https://​doi​.org/​10​.1111/​j​.1467–8489​.2007​.00426​.x Arat, Z. F. (1988). Democracy and economic development: Modernization theory revisited. Comparative Politics, 21(1), 21–36. Bagnis, A., Celeghin, A., Diano, M., Mendez, C. A., Spadaro, G., Mosso, C. O., Avenanti, A. & Tamietto, M. (2020). Functional neuroanatomy of racial categorization from visual perception: A meta-analytic study. NeuroImage, 217, Article 116939. https://​doi​.org/​10​ .1016/​j​.neuroimage​.2020​.116939 Bai, X., Ramos, M. R. & Fiske, S. T. (2020). As diversity increases, people paradoxically perceive social groups as more similar. PNAS, 117(23), 12741–12749. https://​doi​.org/​10​ .1073/​pnas​.2000333117 Benally, H. (1988). Diné philosophy of learning. Journal of Navajo Education, 6(1), 10–13. Benally, H. J. (1997). The pollen path: The Navajo way of knowing. In R. P. Foehr & S.A. Schiller (Eds.), The Spiritual Side of Writing (pp. 84–94). Portsmouth, NH: Boynton/Cook.

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Berger, M. T. (2003). Decolonisation, modernisation and nation-building: Political development theory and the appeal of communism in Southeast Asia, 1945–1975. Journal of Southeast Asian Studies, 34(3), 421–448. https://​doi​.org/​10​.1017/​s0022463403000419 Brass, P. R. (1991). Ethnicity and nationalism: Theory and comparison. New Delhi and Newbury Park: Sage Press. Brayboy, B. M. J., Solyom, J. A. & Castagno, A. E. (2014). Looking into the hearts of Native Peoples: Nation building as an institutional orientation for graduate education. American Journal of Education, 120(4), 575–596. https://​doi​.org/​10​.1086/​676908 Colman, N. (2014). Native nation-building spans strategies & generations. Bush Foundation. Retrieved on 27 October 2023 from https://​www​.bushfoundation​.org/​story/​native​-nation​ -building​-spans​-strategies​-generations Connor, W. (1992). The nation and its myth. In T. Lynn (Ed.), Ethnicity and nationalism (International Studies in Sociology and Social Anthropology, vol. 60, pp. 48–57). Leiden: Brill. https://​doi​.org/​10​.1163/​9789004474871​_005 Cornell, S. (1990). The return of the Native: American Indian political resurgence. New York, NY: Oxford University Press. Cornell, S. (2019). From rights to governance and back: Indigenous political transformations in the CANZUS states. In W. Nikolakis, S. Cornell & H. W. Nelson (Eds.), Reclaiming Indigenous governance: Reflections and insights from Australia, Canada, New Zealand, and the United States (pp. 15–37). Tucson, AZ: University of Arizona Press. Cornell, S. E. & Kalt, J. P. (1992). Reloading the dice: Improving the chances for economic development on American Indian reservations (Joint Occasional Papers on Native Affairs No. 2003–02). Tucson, AZ; Cambridge, MA: Udall Center for Studies in Public Policy and Harvard Project on American Indian Economic Development. Cornell, S. & Kalt, J. P. (2000). Where’s the glue? Institutional and cultural foundations of American Indian economic development. The Journal of Socio-Economics, 29(5), 443–470. https://​doi​.org/​10​.1016/​S​1053–5357(​00)00080–9 Denetdale, J. (2006). Chairmen, presidents, and princesses: The Navajo Nation, gender, and the politics of tradition. Wicazo Sa Review, 21(1), 9–28. Retrieved on 27 October 2023 from https://​www​.jstor​.org/​stable/​4140296 Denetdale, J. (2007). Reclaiming Diné history: Legacies of Navajo Chief Manuelito and Juani. Tucson, AZ: University of Arizona Press. Diné Policy Institute. (2008). Navajo Nation Constitutional Feasibility and Government Reform Project, 20 October. Tsaile, AZ: Diné Policy Institute. Retrieved on 27 October 2023 from https://​www​.dinecollege​.edu/​wp​-content/​uploads/​2020/​10/​dpiStudyReport​.pdf Dowling, C. (2005). The applied theory of First Nations economic development: A critique. Journal of Aboriginal Economic Development, 4(2), 120–128. Engerman, S. L. & Sokoloff, K. L. (2008). Debating the role of institutions in political and economic development: Theory, history, and findings. Annual Review of Political Science, 11, 119–135. Faust, N. T., Chatterjee, A. & Christopoulos, G. I. (2019). Beauty in the eyes and the hand of the beholder: Eye and hand movements’ differential responses to facial attractiveness. Journal of Experimental Social Psychology, 85, Article 103884. https://​doi​.org/​10​.1016/​j​ .jesp​.2019​.103884 Fearon, J. D. & Laitin, D. D. (2000). Violence and social construction of ethnic identity. International Organization, 54(4), 845–877. Fiske, S. T. (2009). From dehumanization and objectification to rehumanization: Neuroimaging studies on the building blocks of empathy. Annals of the New York Academy of Sciences, 1167, 31–34. https://​doi​.org/​10​.1111/​j​.1749–6632​.2009​.04544​.x Fukuyama, F. (2011). The origins of political order: From prehuman times to the French Revolution. New York, NY: Farrar, Straus & Giroux.

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Geertz, C. (1963). The integrative revolution: Primordial sentiments and civil politics in the new states. In C. Geertz (Ed.), Old societies and new states: The quest for modernity in Asia and Africa (pp. 105–157). New York, NY: The Free Press. Grinde, D. A., Jr & Johansen, B. E. (1991). Exemplar of liberty: Native America and the evolution of democracy. Native American Politics Series No. 3. Los Angeles, CA: University of California Press. Hopfensperger, J. (2013). Tribes across the country are re-examining their constitutions. Star Tribune, 6 July. Retrieved on 27 October 2023 from https://​www​.startribune​.com/​tribes​ -across​-the​-country​-are​-re​-examining​-their​-constitutions/​214497871/​ Horowitz, D. L. (2002). Constitutional design: Proposals versus processes. In A. Reynolds (Ed.), The architecture of democracy: Constitutional design, conflict management, and democracy (pp. 15–36). Oxford: Oxford University Press. https://​doi​.org/​10​.1093/​ 0199246467​.003​.0002 Hunt, J. & Smith, D. E. (2006). Building Indigenous community governance in Australia: Preliminary research findings. Canberra, ACT: Centre for Aboriginal Economic Policy Research, ANU. Huntington, S. P. (1968). Political order in changing societies. New Haven, CT: Yale University Press. Huntington, S. P. (1971). The change to change: Modernization, development, and politics. Comparative Politics, 3(3), 283–322. https://​doi​.org/​10​.2307/​421470 Huntington, S. P. (2006). Political world in changing society. New Haven, CT: Yale University Press. Inglehart, R. & Baker, W. E. (2000). Modernization, cultural change, and the persistence of traditional values. American Sociological Review, 65(1), 19–51. https://​doi​.org/​10​.2307/​ 2657288 Keane, C. (2016). US nation-building in Afghanistan (1st ed.). Farnham, UK; Burlington, VT: Ashgate; Routledge. Retrieved on 27 October 2023 from https://​www​.taylorfrancis​.com/​ books/​9781317003199 Latham, M. E. (2000). Modernization as ideology: American social science and ‘nation building’ in the Kennedy era. Chapel Hill, NC: University of North Carolina Press. Lerner, D. (1958). The passing of traditional society: Modernizing the Middle East. New York, NY: Free Press. Lipset, S. M. (1959). Some social requisites of democracy: Economic development and political legitimacy. American Political Science Review, 53(1), 69–105. https://​doi​.org/​10​.2307/​ 1951731 March, J. G. & Olsen, J. P. (1983). The new institutionalism: Organizational factors in political life. American Political Science Review, 78(3), 734–749. https://​doi​.org/​10​.2307/​1961840 March, J. G. & Olsen, J. P. (2006). Elaborating the ‘new institutionalism’. In S. A. Binder, R. A. W. Rhodes & B. A. Rockman (Eds.), The Oxford handbook of political institutions (vol. 5, pp. 3–20). Oxford: Oxford University Press. https://​doi​.org/​10​.1093/​oxfordhb/​ 9780199548460​.003​.0001 Maryboy, N.C. & Begay, D.H. (1999). Living the Order: Dynamic cosmic process of Diné cosmology. Nanit’a Sa’ah Naaghai Nanit’a Bik’eh Hozhoon. Diss. California Institute of Integral Studies. Meranto, O. (2001). From Buckskin to Calico and back again: An historical interpretation of American Indian feminism. New Political Science, 23(3), 333–349. https://​doi​.org/​10​.1080/​ 07393140120080976 Meyer, J. W. & Rowan, B. (1977). Institutionalized organizations: Formal structure as myth and ceremony. American Journal of Sociology, 83(2), 340–363. Retrieved on 27 October 2023 from https://​www​.jstor​.org/​stable/​2778293 Miller, J. M. (2019). Cold War democracy: The United States and Japan, 1945–1963. Cambridge, MA: Harvard University Press.

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Miller, R. J. (2015). American Indian constitutions and their influence on the United States Constitution. Proceedings of the American Philosophical Society, 159(1), 32–56. Retrieved on 27 October 2023 from https://​www​.jstor​.org/​stable/​24640169 Nagel, J. (1997). American Indian ethnic renewal: Red power and the resurgence of identity and culture. New York, NY: Oxford University Press. Native Nations Institute [NNI]. (n.d.). What is native nation building? Native Nations Institute. Retrieved on 25 February 2021 from https://​nni​.arizona​.edu/​programs​-projects/​what​-native​ -nation​-building Nikolakis, W., Cornell, S. & Nelson, H. W. (Eds.). (2019). Reclaiming Indigenous governance: Reflections and insights from Australia, Canada, New Zealand, and the United States. Tucson, AZ: University of Arizona Press. North, D. C. (1990). Institutions, institutional change and economic performance. Cambridge University Press. North, D. C. (1991). Institutions. Journal of Economic Perspectives, 5(1), 97–112. Retrieved on 27 October 2023 from https://​www​.jstor​.org/​stable/​1942704 North, D. C. (1993). Institutions and credible commitment. Journal of Institutional and Theoretical Economics, 149(1), 11–23. Retrieved on 27 October 2023 from https://​www​ .jstor​.org/​stable/​40751576 Payne, J. L. (2006). Does nation building work? The Independent Review, 10(4), 597–608. Retrieved on 27 October 2023 from https://​www​.independent​.org/​publications/​tir/​article​ .asp​?id​=​576 Przeworski, A. (2004). Institutions matter? Government and Opposition, 39(4), 527–540. https://​doi​.org/​10​.1111/​j​.1477–7053​.2004​.00134​.x Rostow, W. W. (1959). The stages of economic growth. The Economic History Review, 12(1), 1–16. https://​doi​.org/​10​.2307/​2591077 Smith, D. E. (2005). Researching Australian Indigenous governance: A methodological and conceptual framework. Canberra, ACT: Centre for Aboriginal Economic Policy Research, ANU. Smith, P. H. (2000). Talons of the eagle: Dynamics of U.S.–Latin American relations. New York, NY: Oxford University Press. Sullivan, P. (2007). Indigenous governance: The Harvard Project, Australian Aboriginal organisations and cultural subsidiarity (DKCRC Working Paper No. 4). Desert Knowledge CRC. Retrieved on 27 October 2023 from https://​ www​ .nintione​ .com​ .au/​ resources/​ rao/​ indigenous​- governance​- the​- harvard​- project​- australian​- aboriginal​- organisations​- and​ -cultural​-subsidiarity/​ Vinje, D. L. (1985). Cultural values and economic development on reservations. In D. Vine Deloria Jr (Ed.), American Indian policy in the twentieth century (1st ed., pp. 155–175). Norman, OK: University of Oklahoma Press. Weiner, M. (Ed.). (1966). Modernization: The dynamics of growth. New York, NY: Basic Books. Wilkins, D. E. (1997). American Indian sovereignty and the U.S. Supreme Court: The masking of justice. Austin, TX: University of Texas Press. Wilkins, D. E. and Lightfoot, S. (2008). Oaths of office in tribal constitutions: Swearing allegiance, but to whom? American Indian Quarterly, 32(4), 389–411. Willeto, P. (1997). Diné College struggles to synthesize Navajo and western knowledge. Tribal College Journal, 9(2): 11. Retrieved on 27 October 2023 from https://​tribalcollegejournal​ .org/​dine​-college​-struggles​-synthesize​-navajo​-western​-knowledge/​ Yazzie, R. (1996). ‘Hozho Nahasdlii’—We are now in good relations: Navajo restorative justice. St. Thomas Law Review, 9, 117–124. Retrieved on 27 October 2023 from https://​ heinonline​.org/​HOL/​LandingPage​?handle​=​hein​.journals/​stlr9​&​div​=​19​&​id​=​&​page

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Zion, J. W. & Yazzie, R. (2006). Navajo peacemaking: Original dispute resolution and a life way. In D. Sullivan & L. Tifft (Eds.), Handbook of restorative justice: A global perspective (1st ed., pp. 151–156). London, UK: Routledge.

PART II LAND AND LAW

6. Contemporary critical legal accounts of the relationship between international law and domestic law and policy Claire Charters, Fleur Te Aho and Tracey Whare

INTRODUCTION There is a myriad of ways in which international law, policy and practice and domestic law, policy and practice influence one another. Orthodox and positivistic legal accounts in which states are the dominant lawmakers and the main subject of international law do not adequately capture that intersection. The intersection is much thicker, more dynamic, dialogic and profound, yet also legal in nature and impact than formal rules suggest. After a necessarily short summary of international law relevant to Indigenous Peoples, we illustrate with examples how international law and domestic law and policy interact in legally important ways beyond formal legal accounts. This more informal legal interaction between the international and domestic legal orders is especially important to Indigenous Peoples. It demonstrates how Indigenous Peoples can (and have) used both legal and non-legal but legally consequential methods to reform domestic law and policy to better align with international law and realise Indigenous claims and rights. Our examples come from our own ‘everyday’ experience of the intersection of international law and domestic law and policy, as members of our Indigenous communities, as Indigenous advocates, as former United Nations (UN) officials, academics and as independent experts advising Indigenous Peoples’ organisations and the New Zealand Government. Through these experiences, we deliberately attempt to uncover the ‘real’ international law rather than formal or state-centric/dominated narratives of it (Eslava & Pahuja, 2012). We adopt a contemporary critical approach: we do not reject international law altogether as hopeless or unable to reform to accommodate Indigenous Peoples’ claims. However, we do still view it as continuing to be a particularly colonial system largely serving the interests of (especially European) states (Anghie, 2005). The chapter is presented in three parts. First, we briefly introduce international legal norms relevant to Indigenous Peoples. Second, we contrast formal understandings of the law with new accounts of the influence of legal norms. Third, in this chapter’s main focus, we seek to capture the relationship between international law and domestic state law and policy, focusing on the courts, legislature and the

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executive as the primary bodies with authority in state policy.1 We focus on our own jurisdiction—Aotearoa (New Zealand)—partly because we know it best and because it is a valuable case study with lessons applicable elsewhere. We anticipate that the other chapters in this book, which draw on experiences in different jurisdictions, will provide a wider cross-section of examples of this intersection. We close with a brief reference to similar dynamics from Canada and Australia to signal the broader existence of this intersection.2

INTERNATIONAL LEGAL NORMS REGARDING INDIGENOUS PEOPLES Key international legal norms regarding Indigenous Peoples can be grouped broadly into four areas. First, there is the right to self-determination, which can be realised in several different ways, from sovereignty to participation in non-Indigenous governance, including the right of free, prior and informed consent. Second, there are rights relating to lands, territories and resources, which also include collective rights and Indigenous concepts of the ownership and use of land and resources. Third, a range of cultural, social and economic rights address education, health, employment and development. Last, some rights address equality and non-discrimination. International legal norms regarding Indigenous Peoples first emerged in the work of the International Labour Organization (ILO) last century. The ILO’s attention began with concerns regarding the exploitation of Indigenous workers. The earliest of its major treaties regarding Indigenous Peoples was adopted in 1957: the ILO Convention concerning the Protection and Integration of Indigenous and Other Tribal and Semi-Tribal Populations in Independent Countries (Convention 107). However, this Convention was subsequently discredited as assimilationist in intent. Efforts to revise it resulted in the ILO Convention concerning Indigenous and Tribal Peoples in Independent Countries (Convention 169), adopted in 1989. The provisions of this Convention advance Indigenous Peoples’ land and resource rights, cultural integrity, and participation in decision-making, among other matters. It, too, was initially rejected by Indigenous Peoples, given shortcomings in its adoption and content, including its failure to affirm Indigenous Peoples’ right to self-determination. However, over time many Indigenous Peoples have pragmatically expressed support for its ratification (Anaya & Rodríguez-Piñero, 2018, p. 44; Rodríguez-Piñero, 2005, pp. 319, 328). It remains the main binding international treaty regarding Indigenous Peoples, albeit with a low ratification rate of 23 states predominantly from Latin America.

1 This chapter does not capture the crucially important, legal relationship between international law and Indigenous Peoples’ own law and ‘policy’. 2 Aspects of this chapter are drawn from Te Aho (2021) and Charters (2017b).

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Parallel to these developments, Indigenous Peoples’ rights gained momentum within the UN human rights-focused institutions from the 1970s, following sustained Indigenous advocacy. The UN Declaration on the Rights of Indigenous Peoples (UNDRIP) is the crowning achievement of these standard-setting efforts. The UNDRIP was adopted by the UN General Assembly (UNGA) in 2007 after more than two decades of negotiations between states and Indigenous Peoples. Although a declaration, it is now the most comprehensive and globally accepted articulation of Indigenous Peoples’ rights norms. Significantly, it represents the first time in international law that the rights bearers themselves—Indigenous Peoples—played a pivotal role in negotiations on the content of their rights instrument. The UNDRIP sets out a broad range of Indigenous rights norms. Fundamentally, it affirms (in Article 3) Indigenous Peoples’ right to self-determination, restating the common Article 1 of the International Covenant on Civil and Political Rights (ICCPR) and International Covenant on Economic, Social and Cultural Rights (ICESCR). It affirms rights that are collective in nature, including rights to self-government and autonomy, cultural integrity, lands, territories and natural resources, social welfare and development, and treaties (Anaya & Rodríguez-Piñero, 2018, p. 61). It also affirms the application of basic individual human rights to equality and non-discrimination, life and personal integrity, nationality, and access to justice for Indigenous Peoples. The UNDRIP’s recognition of collective rights and Indigenous Peoples’ ‘authority rights’ is noteworthy. International law has been reluctant to embrace collective rights (Weller, 2018, p. 121). It also struggles with Indigenous Peoples’ authority rights, which originate in their prior exercise of sovereignty over their territories, given the challenge they pose to the continuing authority of colonial states (Charters, 2017a, p. 564). This struggle speaks to the tension inherent in using the international legal framework, which reflects and constitutes colonial power interests, to advance Indigenous Peoples’ aspirations. The UNDRIP sits within a larger constellation of international legal instruments and machinery promoting, elaborating and interpreting Indigenous Peoples’ rights norms. The UNDRIP is the guiding source of law for the three UN mechanisms focused on advancing Indigenous Peoples’ rights: the Special Rapporteur on the rights of Indigenous Peoples (SRIP), the Permanent Forum on Indigenous Issues, and the Expert Mechanism on the Rights of Indigenous Peoples (EMRIP). Bodies monitoring the core international human rights treaties have contributed to the progressive development of Indigenous rights norms through their jurisprudence and interpretations of those human rights treaties, in parallel with the development of the UNDRIP. For instance, Article 27 of the ICCPR provides that ethnic, religious and linguistic minorities ‘shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.’ This article has often been the basis for Indigenous Peoples’ successful claims for better protection of their rights. In its General Comment on Article 27 (1994, paras 3.2, 7), the Human Rights Committee has interpreted it so that culture includes ways of life associated with using land

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resources. Article 15(1)(a) of the ICESCR expresses the right of everyone to take part in cultural life. The Committee on Economic, Social and Cultural Rights has strongly endorsed the UNDRIP in its General Comment on the right to culture, affirming that Indigenous Peoples have the right to all human rights and fundamental freedoms as expressed in the UNDRIP (UNCESCR, 2009, p. 7). Article 30 of the Convention on the Rights of the Child states that a child belonging to an ethnic, religious or linguistic minority or who is Indigenous ‘shall not be denied the right, in community with other members of his or her group, to enjoy his or her own culture, to profess and practise his or her own religion, or to use his or her own language.’ The Committee on the Rights of the Child, in its General Comment on Indigenous children and their rights under the Convention, notes that the UNDRIP ‘provides important guidance on the rights of Indigenous Peoples.’ They urge state parties to adopt a rights-based approach to Indigenous children based on, among other things, the UNDRIP (UNCRC, 2009, paras 10, 82). The International Convention on the Elimination of all Forms of Racial Discrimination is directed at ‘racial’ or ethnic equality. The Committee on the Elimination of Racial Discrimination (1997) has also issued a General Recommendation on the rights of Indigenous Peoples. A host of further international and regional bodies have also contributed to elaborating Indigenous rights norms. Regarding Charter-based mechanisms, several special procedure mandates (beyond the SRIP) have focused on Indigenous Peoples and their rights, including the working group on the issue of human rights and transnational corporations and other business enterprises (HRC, 2013). The UNDRIP and Indigenous rights concerns are also frequently raised during the UN Human Rights Council’s (HRC) Universal Periodic Review process, which provides for the periodic peer review of all member states’ human rights records. Regional human rights systems are also developing significant jurisprudence on Indigenous Peoples, notably the inter-American system, which adopted its own Indigenous rights declaration, the American Declaration on the Rights of Indigenous Peoples, in 2016 (General Assembly of the Organization of American States [OAS], p. 167). Additional to the ILO, Indigenous Peoples’ rights norms inform the law and policy of other international institutions beyond the human rights sphere, including under the auspices of the Convention on Biological Diversity (at art. 8(j)), the World Intellectual Property Organization (2022) and the World Bank (2022).

FORMAL LAW AND NEW ACCOUNTS OF INFLUENCE/ COMPLIANCE Formally, settled international and domestic rules regulate the relationship between the international legal order and domestic legal orders. These include monist and dualist approaches, distinctions between hard law, which is binding as a matter of international law, and soft law, which is less so. Monism provides that an international treaty immediately becomes incorporated into domestic law once ratified, while dualism requires international treaties to be incorporated into national law

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before they are enforceable. Hard law refers to international instruments that are formally binding, such as treaties and conventions, while soft law applies to other international instruments, such as declarations. These concepts frame the positivist approach to law. Despite these binary concepts of international law, the character of the legal relationships between domestic legal systems and international law is much more fluid, reactive and inclusive of multiple actors with influence, to the point that the intersect could be more accurately described as a legal dialogue. In other words, international norms and actors and domestic norms and actors interact in legally important and consequential ways that are not completely determined by, or captured by, positivistic, formal rules—both downwards (international law to domestic law) and upwards (domestic law to international law).3 We seek to illustrate this dynamic. Equally, however, dialogic inter-legal system interactions are not completely foreign to formal international law with regard to the relationship between the international and domestic legal systems. For example, even under ‘hard’ international legal rules, domestic juris-generative actors have an important role in developing international law. Under Article 38(1) of the Statute of the International Court of Justice, domestic actors, including courts and tribunals, also play an important role: contributing to the development of customary international law, developing general principles of law and, as secondary, but authoritative, ‘sources’ of international law. Similarly, rules around the distinction between hard and soft law are not as definitive as they are presented as a matter of orthodox and formal legal thought. Formally, the UNDRIP is ‘soft’ law because it was created ‘only’ by a resolution of the UNGA, and so does not carry the binding legal force of a treaty, which states must ratify to be binding on them. However, many of the norms affirmed in the UNDRIP evolved from human rights norms already binding on states under international treaty law (Stamatopoulou, 2011, p. 395). Further, some leading scholars and institutions, including the International Law Association (2012), argue that aspects of the UNDRIP reflect customary international law and are binding on all states in any case. In any event, empirical research shows that whether a specific human rights norm is viewed as ‘hard’ or ‘soft’ is not the determining factor in whether that norm has an impact (Shelton, 2004, pp. 449, 458). In practice, the UNDRIP carries considerable weight and legitimacy due to the very inclusive process by which it was drafted and adopted, the substance of the rights it contains, and the extent to which states have engaged with it (Charters, 2009b). Indigenous Peoples have contributed to the changing legal character of the intersection between international and domestic legal systems more generally by arguing for applying international Indigenous Peoples’ norms domestically in ways not captured by the formal legal narrative. Similarly, Indigenous Peoples have contributed

3 As the focus of this chapter is on how international law influences domestic law and policy, we simply note that domestic law and policy in turn can also influence international law.

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‘upwards’ to the content of international law by raising examples of domestic law, policy and practice in international institutions in ways that influence and reinforce developing international law. International law and its rules are being adapted and buttressed in legally significant ways by these more informal and non-traditional interactions between legal systems. While our intention is not to review related literature, it is notable that the less formal yet legal intersections between international law and domestic policy are closely related to, and can be significant to, considerable international law and international relations scholarship on a number of topics. This includes, for example, the contest between international legal and international political accounts of the influence of international law and policy, the effectiveness and the legitimacy of international law, and fuller and more nuanced accounts of the influence of soft law (Bailliet, 2012; Brunnee & Toope, 2010; Koh & Hathaway, 2005). There is a considerable scholarship that explains various phases or steps in the domestic process towards conformity with international law. Moreover, social movement theory highlights the role of non-state actors in this intersection between international law and domestic law and politics (Risse, Ropp & Sikkink, 1999, 2013). Of course, some informal influences on formal law are more political in nature, such as lobbying (compared to, for example, legal advocacy involving submissions in court cases arguing for expansive interpretations of domestic and international norms based on legal interpretive methodology). Informal political strategies to advance Indigenous Peoples’ rights at the domestic and international levels are both constrained and potentially enhanced by respective domestic and global international politics more generally. For example, where there is a greater appetite, especially of non-Indigenous majorities, for Indigenous Peoples’ rights at the domestic level, receptiveness to progressive interpretations of international Indigenous Peoples’ norms at the domestic level will grow. Similarly, the state will likely take stronger positions on interpreting rights at the international legal level, including, for example, in the HRC and UNGA. Of course, the converse is also true. When there is less appetite for Indigenous Peoples’ rights domestically, sometimes due to a non-Indigenous majority backlash against perceived Indigenous privilege, receptiveness to stronger international Indigenous Peoples’ norms might wane. The state’s position on Indigenous issues can become more conservative. Receptiveness to stronger Indigenous Peoples’ rights at the international legal level will depend on the aggregate political appetite of nation-states at the domestic level and the strength of relationships between states on opposite sides of a relevant political divide. So, for example, the UNGA’s adoption of the UNDRIP might, in part, be a by-product of a moment in time when there existed a particular and favourable constellation of comparatively favourable political environments with respect to Indigenous Peoples’ norms at the domestic level. It is also a by-product of the strength and political capital expended by states in favour at that moment.

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SITES OF INFLUENCE OF INTERNATIONAL LAW ON STATE LAW AND POLICY IN AOTEAROA, NEW ZEALAND The example of Aotearoa, New Zealand, offers lessons on the relationship between international law and domestic law and policy that are applicable more widely. In comparable Anglo-liberal and democratic states with similar histories of European colonisation, there are similarities in respective legal traditions, including the common law system and method, formal rules around the legal relationship between domestic and international law, and the content of state law, such as the law on Aboriginal title. Nonetheless, each jurisdiction has its own peculiar constitutional and legal idiosyncrasies that impact the influence of international law domestically and vice versa. New Zealand is no exception. Before introducing the sites of influence of international Indigenous rights norms on New Zealand state law and policy, we briefly introduce the peculiarities of the New Zealand context. The formal—positivist—description of New Zealand state law on the role of international law is as follows. Based on a Westminster form of governance, New Zealand does not have a formal constitution written in one document, entrenched and binding on all arms of government. Nonetheless, it has longstanding constitutional law, including formal rules around the reception of international law. Parliament is absolutely sovereign, and its laws cannot be overturned. New Zealand is dualist: conventional international law must be incorporated into legislation before it can be enforced. However, international customary law is part of the common law. Some legislation incorporates international law relevant to Māori, such as Section 20 of the Bill of Rights Act 1990, which mirrors the cultural rights set out in Article 27 of the ICCPR. Te Tiriti o Waitangi and the Treaty of Waitangi, the agreements signed between (some) rangatira (Māori leaders) and the British Crown in 1840, are not binding unless incorporated into legislation. New Zealand has made commitments to international norms regarding Indigenous Peoples. Most notably, New Zealand (belatedly) endorsed the UNDRIP in 2010. New Zealand has also ratified the core international human rights treaties interpreted as elaborations of Indigenous Peoples’ rights. At the same time, it has consistently refused to ratify ILO Convention 169 despite growing Māori support for this instrument. The political context in New Zealand is also unique. Te Tiriti o Waitangi, the Māori language version of the Treaty of Waitangi, guarantees ongoing Māori sovereignty, with some governance powers ceded to the Crown to regulate non-Māori. It includes rights to lands, territories, resources and cultural rights, and remains central to Māori claims to rights politically and legally. Māori comprise 16.5 per cent of New Zealand’s population, enabling significant political influence (Stats NZ, 2019, ‘Ethnicity’). Moreover, with a small population and a liberal democratic governance structure, New Zealand citizens arguably have a greater sense of government proximity than most nations. There is a strong sense of democracy, underpinned by the primacy of parliament in New Zealand’s constitutional structure and a sense of pride in the perception that New Zealand is a good international citizen.

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Tikanga Māori—Māori law—continues to be practised and retains authority in te Ao Māori (the Māori world). Tikanga Māori has more recently been incorporated into state law in several ways, including in legislation and case law. Māori also participate actively in international law, processes and institutions that support Indigenous Peoples’ rights. In the remainder of this section, we draw on examples from Aotearoa, New Zealand, to illustrate how international law norms regarding Indigenous Peoples slowly embed into domestic law and policy. In Aotearoa, New Zealand, the influence of international law norms regarding Indigenous Peoples is most pronounced in the judicial sphere, with growing influence evident within the legislative and executive branches of the state. Māori have been central to these developments. Our focus is primarily on the influence of the UNDRIP as it is the most comprehensive international statement of Indigenous Peoples’ rights norms. We also stress that consistent with our overall thesis in this chapter, while some of the examples below relate to politics, such as members of parliament citing the Declaration in support of the legislation, the consequences are very much legal in effect. The Courts International Indigenous Peoples’ rights norms, specifically as affirmed in the UNDRIP, have increasingly been cited in New Zealand court and Tribunal decisions. Importantly, they have influenced such decisions by supporting reasoning based on domestic law (Charters, 2019). The Supreme Court, New Zealand’s highest court, has led the way in its openness to argument based on and willingness to cite the UNDRIP. Supreme Court justices reference the UNDRIP in five cases: Takamore v Clarke, New Zealand Maori Council v Attorney-General (‘NZMC Freshwater’), Paki v Attorney-General (No. 2), Proprietors of Wakatū v Attorney-General and Ngāti Whātua Ōrākei Trust v Attorney-General. These cases are briefly touched on to illustrate favourable judicial engagement with the UNDRIP in New Zealand. In Takamore, which concerned a dispute over the burial of a Tūhoe man (Mr Takamore), Elias CJ referenced the UNDRIP as an indicator of the significance to Indigenous Peoples of repatriation of the dead (Supreme Court decision, para. 12). The UNDRIP also received notable attention from the majority decision of the Court of Appeal, where the court recognised the collective dimension of Indigenous Peoples’ rights with reference to the UNDRIP (Court of Appeal decision, paras 242, 250, 252, 253). Māori interests in freshwater were the focus of NZMC Freshwater, following plans to partially privatise the state-owned enterprise Mighty River Power. There, the unanimous Supreme Court commented on the relationship between the UNDRIP and the principles of the Treaty of Waitangi. Positively, it stated, ‘the Declaration provides some support for the view that those [the Treaty] principles should be construed broadly.’ However, it doubted that ‘the Declaration add[ed] significantly to the principles of the Treaty’ recognised in statute (para. 92). It has been argued

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that the latter point suggests that the Supreme Court views the Treaty principles and UNDRIP rights as co-extensive (Charters, 2017b, p. 824). Paki (No. 2) (2015) centred on Māori claims to the riverbed of the Waikato River. In that case, Chief Justice Elias referred to the UNDRIP’s provisions regarding Indigenous Peoples’ right to redress for lands, territories and resources taken from them without their free, prior and informed consent in making obiter comments on the possible equitable duties owed to Māori by the Crown (para. 158). She also referred to Article 28—the redress provision of the UNDRIP—as supporting restitutionary remedies where possible (paras 158, 164). Justice Glazebrook referenced the UNDRIP too, remarking that the UNDRIP ‘may also be relevant’ in the context of comment on research ‘on the history of land transactions and on Māori custom’ following Re. The Bed of Wanganui River (para. 317). In issue in Wakatū were fiduciary duties owed by the Crown to customary owners of land historically sold to the Crown in relation to land reserves. Notably, the UNDRIP was relied on by Chief Justice Elias and Justice Glazebrook (both in dissent on this point) to support a more flexible interpretation of rules regarding standing (para. 657). Chief Justice Elias identified that an inflexible approach to standing is ‘difficult to reconcile with [the UNDRIP], to which New Zealand is a signatory’ (para. 491).4 Wakatū is positive for the UNDRIP in two respects. Newman (2019) and Charters (2019, p. 109) argue that Chief Justice Elias cites the UNDRIP in Wakatū in a manner suggesting that it played a greater determinative role in her reasoning than the UNDRIP had in previous cases, tipping the balance on the standing issue; albeit the UNDRIP was only one of the relevant factors she considered in her dissent. Charters (2019) also explains that only in Wakatū (and perhaps, in aspects, Paki (No. 2)) could the outcome of these five Supreme Court cases be understood as coming close to being UNDRIP-consistent in the sense of upholding Māori claims (pp. 107–109). Ngāti Whātua Ōrākei concerned judicial review of a ministerial decision to transfer properties over which Ngāti Whātua Ōrākei claimed mana whenua (territorial authority) to other iwi (tribal collective) as part of the Treaty of Waitangi settlements negotiated by those iwi. Ngāti Whātua sought several declarations, one of which was that the ministerial decision was inconsistent with the UNDRIP. The majority of the court did not accept this claim because it was inconsistent with the principle of parliamentary non-interference. Chief Justice Elias (dissenting from the majority on this point) would have allowed counsel’s argument that the Minister’s decision should be consistent with the UNDRIP to be heard. In her view, it was an argument likely to recur in the Crown’s relationship with Ngāti Whātua Ōrākei and other iwi (paras 127–128). The most significant aspect of these Supreme Court references is that they are helping to embed the UNDRIP in New Zealand’s legal landscape. References to

4 Note that, despite the Chief Justice’s language, as the Indigenous Declaration is not a treaty it is not ‘signed’.

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the UNDRIP that do not form part of the reasoning of the Supreme Court’s decision are highly persuasive and indicate to lower courts how the law might develop in accordance with the UNDRIP. These references will likely inspire further pleadings and counterarguments based on the UNDRIP. In this way, the UNDRIP will become further ingrained in New Zealand law and policy, increasing the compliance pull of the rights it affirms (Charters, 2019, p. 113). The Waitangi Tribunal The Waitangi Tribunal, a distinctive commission of inquiry formally part of the executive, has identified the UNDRIP as ‘perhaps the most important international instrument ever for Māori people’ (2011a, p. 233). It has used the UNDRIP to inform the Tribunal’s understanding of Māori claims based on the Treaty, including the UNDRIP’s affirmation of self-determination. The Waitangi Tribunal’s earliest substantive engagement with the then-draft UNDRIP was in The Taranaki Report: Kaupapa Tuatahi in 1996, where the synergy between the Treaty and the draft UNDRIP was recognised. Several UNDRIP articles were referenced, including those protecting autonomy and land rights (pp. 20, 308). In the 2011 report on the management of the petroleum resource, which followed New Zealand’s endorsement of the UNDRIP, the Tribunal recognised the UNDRIP as ‘an important affirmation of existing fundamental rights of Indigenous Peoples’, including the ‘central tenet’ of self-determination (2011c, p. 153). Subsequently, the report on stage 1 of the national freshwater and geothermal resources claim described the UNDRIP as a ‘base standard’ and used it to support the right to develop customary resources (2012, pp. 140, 235). The UNDRIP, particularly Article 13, was also identified in support of language rights in the report on the kōhanga reo claim (2013, p. 66). In Ko Aotearoa Tēnei, a significant report concerning Māori culture and identity, the Waitangi Tribunal (2013, p. 43) cited several provisions of the UNDRIP as relevant to its inquiry and suggested, importantly, that the UNDRIP could be beginning to crystallise into customary international law (2011b, p. 672). However, the UNDRIP is engaged with most significantly by the Tribunal in its 2015 report on the Māori Community Development Act claim. The Tribunal’s report on the Māori Community Development Act claim is central for its illustration of the Tribunal’s reliance on the UNDRIP in its decision-making and the nature of the rights relied on, which include Indigenous Peoples’ authority rights. This claim by the New Zealand Māori Council (NZMC) pivots on the right of Māori to self-determine their institutions—specifically, the legislatively created NZMC. It is sufficient to note that, in its finding supporting the NZMC’s claim, the Waitangi Tribunal relied substantially on the UNDRIP to ‘assist in the interpretation of and application of … [the] Treaty principles’ (2015, p. 47). It also recognised Māori rights to authority in ways broadly consistent with the UNDRIP. When discussing the authority rights in the UNDRIP (including the right to self-determination in Article 3), it stated, ‘[a]ll these articles are consistent with the notion that Māori should have authority and local self-government over their own spheres of influence

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and affairs’ (p. 41). Charters (2017a, pp. 585–587) points out that the Tribunal’s understanding of tino rangatiratanga (political and legal authority or self-determination) in the report, with its express reference to the right to territorial integrity, is informed by international law too. Helpfully, the Tribunal sets out a schema of how it sees the UNDRIP rights connecting with Treaty principles (2015, pp. 56–53). This schema may be useful in future claims before the Waitangi Tribunal or possibly in the courts or other tribunals when the Treaty principles are in issue. Parliament International Indigenous rights norms play a role in how legislation is made. While there is no legislation to give effect to the UNDRIP in Aotearoa, New Zealand,5 it is used by members of parliament to influence the content of the law. The UNDRIP and its rights have been referenced in numerous debates on bills, including the Human Rights Amendment Bill in 2016, the Education (Update) Amendment Bill in 2017 and the Electoral (Entrenchment of Māori Seats) Amendment Bill in 2019. The fact that these norms are making their way into parliamentary debate is highly significant. It demonstrates that international Indigenous rights norms influence the highest form of lawmaking in Aotearoa, New Zealand, even if the resulting law is not always fully aligned with those norms. More broadly, New Zealand’s statutory framework incorporates elements of New Zealand’s international human rights commitments, aspects of which have special relevance for Indigenous Peoples and the enjoyment of their rights. Section 19 of the New Zealand Bill of Rights Act 1990 (BORA) affirms that everyone has the right to be free from discrimination on the grounds of, inter alia, ‘race’ and ethnicity. This right is reflected in Article 26 of the ICCPR and throughout the ICERD, which has been applied to Indigenous Peoples (Charters, 2009a; McHugh, 2008). Additionally, Section 20 of the BORA reflects the minority rights commitment in Article 27 of the ICCPR, which, as noted above, has also been interpreted to apply to Indigenous Peoples. However, the BORA is narrow in its protection of Indigenous Peoples’ rights. It does not contain a right to self-determination or express recognition of collective rights. Nor does it mention Indigenous Peoples, Māori or the Treaty (Adcock, 2013). The Executive There are current indications that the executive in Aotearoa, New Zealand, is taking more cognisance of international Indigenous Peoples’ rights norms. This has important ramifications as the executive holds significant responsibility for the enjoyment of Indigenous Peoples’ rights in practice. For instance, it determines the international

5 Iwi Māori have sought to include references to the Indigenous Declaration in legislation enacting historical Treaty settlements, but to date this has not been successful.

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law instruments the government will approve, sign onto and ratify. It also directs policymaking and the legislative agenda just examined.6 By way of example, international Indigenous rights have been acknowledged as informing policy behind the Marine and Coastal Area Act 2011, which deals with Māori interests in the foreshore and seabed, and the in-development of a whole-of-government response to the Waitangi Tribunal’s Ko Aotearoa Tēnei report (New Zealand Parliamentary Debates, 2011; Te Puni Kōkiri, 2022; Waitangi Tribunal, 2011a). This is not to say that New Zealand policy in these areas will comply with the UNDRIP. It does, however, illustrate that the UNDRIP is being utilised for the progressive realisation of Indigenous Peoples’ rights in Aotearoa, New Zealand. Recent moves suggest that the UNDRIP will play a greater role in national policymaking going forward. In March 2019, Cabinet approved the Minister of Māori Development to lead the development of a national plan of action on New Zealand’s progress towards the objectives of the UNDRIP (Te Arawhiti, 2019). This would position New Zealand as one of the first states to plan for implementing the UNDRIP directly and systematically in domestic law and policy. The Independent Monitoring Mechanism, endorsed by the Iwi Chairs Forum, played a pivotal role in catalysing this development, including advocating for a technical advisory assistance mission from the UN EMRIP to assist in developing the plan. That mission, which occurred in 2019, resulted in extensive critical commentary and ‘advice’ from EMRIP to the government on the plan (UN High Commissioner for Human Rights, 2019). A technical advisory working group reported to the minister in 2019 on the form and content of a plan and an engagement process with Māori in a report titled He Puapua (Charters et al., 2019). Planning is now underway for engagement with Māori and the wider public on the action plan. Other Jurisdictions We noted at the outset that the experience of Aotearoa, New Zealand, offers insights regarding the relationship between international law and policy and domestic law and policy that are applicable more widely. We flag here some examples from two comparable settler colonial states—Canada and Australia—that illustrate the downward influence of the UNDRIP in ways that are at odds with formal accounts of the interaction between international and domestic legal systems with respect to the non-binding UNDRIP. Canada has now enacted legislation requiring that Canadian laws be consistent with the UNDRIP and obliging the government to prepare and implement a national action plan (Bill C-15, 2021). However, even before this formal recognition of

6 Additionally, the executive represents New Zealand in international fora concerning Indigenous Peoples’ norms and has routinely cooperated with international institutions providing oversight of the position of Māori.

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the UNDRIP, the UNDRIP had, for example, been cited in more than 50 cases in Canada. In several of those cases, the UNDRIP was embraced as a tool for informing the interpretation of Canadian domestic law (Junger, 2019). In Australia, as in New Zealand, there is no legislative incorporation of the UNDRIP. However, the recent movement by Aboriginal and Torres Strait Islander Peoples for constitutional reform at a federal level, culminating in the Uluru Statement from the Heart in 2017—which called for a constitutionally enshrined Indigenous voice to parliament, treaties with Australia’s Indigenous Peoples and truth-telling about Australia’s history—was informed by the UNDRIP (Davis, 2018; Hobbs, 2020, pp. 613, 623–628). The UNDRIP, through the Uluru Statement from the Heart, has, in turn, influenced the newly elected government with Prime Minister Anthony Albanese, in his election victory speech committing in full to the statement and progressing this commitment via a constitutional amendment (Birch & Lawrence, 2022). Significantly, state/territory-level processes now underway in Victoria, Queensland and the Northern Territory to negotiate treaties with Aboriginal and Torres Strait Islander Peoples are to some extent influenced by the UNDRIP (Hobbs, 2019). Similarly to New Zealand and elsewhere, the UNDRIP has also been used to interpret statutory provisions, notably before Australia’s apex court: the High Court (Wurridjal v The Commonwealth of Australia, 2009; Maloney v The Queen, 2013).

CONCLUSION In this chapter, we have outlined juris-significant but unorthodox ways in which international and domestic law, policy and practice influence each other with respect to Indigenous Peoples’ norms. Taking this approach paints a more comprehensive and accurate picture of this relationship. It illustrates unique and potentially powerful ways that Indigenous Peoples and other non-state actors can better realise Indigenous Peoples’ rights in their territories. New Zealand is formally dualist, requiring conventional international law to be explicitly incorporated into domestic law before it is enforceable as law, and the UNDRIP is not formally binding. However, New Zealand’s highest court has referred to it influentially when developing the common law and interpreting statutory provisions relevant to Māori claims. The Waitangi Tribunal has similarly referenced the UNDRIP in support of its interpretation of the principles of the Treaty of Waitangi, as have members of parliament when developing legislation. Further, the UNDRIP looks set to play an increasingly influential role in policy development, with a national plan of action to implement the UNDRIP currently in development. We note, however, the limitations of our conclusions. The juris-significant ways in which non-formal interactions between domestic and international law are described in this chapter are consistent with more incremental changes to domestic law to better realise Indigenous Peoples’ rights and claims. Moreover, fundamentally, they do not challenge the jurisdiction of the state over Indigenous Peoples by focusing on ways

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in which non-formal methods influence state law. This approach is somewhat inconsistent with calls for the sorts of transformations that would challenge state authority in Indigenous territories. In our view, however, pragmatic steps are required on the journey towards the kind of transformational change we all agree is needed to truly and ultimately realise justice for Indigenous Peoples globally.

REFERENCES Adcock, F. (2013). Maori and the Bill of Rights Act: A case of missed opportunities. The New Zealand Journal of Public and International Law, 11(1), 183–212. Advancing the Treaty Process with Aboriginal Victorians Act 2018 (Vic). Anaya, J. & Rodríguez-Piñero, L. (2018). The making of the United Nations Declaration on the rights of Indigenous Peoples. In J. Hohmann & M. Weller (Eds.), The UN Declaration on the rights of Indigenous Peoples (pp. 38–62). Oxford, UK: Oxford University Press. Anghie, A. (2005). Imperialism, sovereignty and the making of international law. Cambridge, UK: Cambridge University Press. Australian Government (2022) Indigenous Voice. Retrieved on 24 October 2023 from https://​ voice​.niaa​.gov​.au/​# Bailliet, C. M. (Ed.). (2012). Non-state actors, soft law and protective regimes: From the margins. Cambridge, UK: Cambridge University Press. Birch, T. & Lawrence, C. (2022). Native title year in review 2021–2022: Treaty update— Federal government commits to Uluru Statement from the Heart while treaty momentum gathers in the States. Retrieved on 24 October 2023 from https://​www​.ashurst​.com/​en/​news​ -and​-insights/​insights/​federal​-government​-commits​-to​-uluru​-statement​-from​-the​-heart​ -while​-treaty​-momentum​-gathers/​ Brunnee, J. & Toope, S. J. (2010). Legitimacy and legality in international law: An interactional account. Cambridge, UK: Cambridge University Press. Charters, C. (2009a). Do Maori rights racially discriminate against non Maori? Victoria University Law Review, 40(3), 449–668. https://​doi​.org/​10​.26686/​vuwlr​.v40i3​.5257 Charters, C. (2009b). The legitimacy of the UN Declaration on the rights of Indigenous Peoples. In C. Charters & R. Stavenhagen (Eds.), Making the declaration work: The United Nations Declaration on the rights of Indigenous Peoples (pp. 280–303). Copenhagen, Denmark: International Work Group for Indigenous Affairs. Charters, C. (2017a). Finding the rights balance: A methodology to balance Indigenous Peoples’ rights and human rights in decision-making. New Zealand Law Review, 553–596. Retrieved on 24 October 2023 from https://​heinonline​.org/​HOL/​P​?h​=​hein​.journals/​ newzlndlr2017​&​i​=​558 Charters, C. (2017b). The rights of Indigenous Peoples under international law and their domestic relevance in Aotearoa New Zealand. In M. Bedggood, K. Gledhill & I. McIntosh (Eds.), International human rights law in Aotearoa New Zealand (pp. 795–838). Auckland, New Zealand: Thomson Reuters. Charters, C. (2019). Wakatū in peripheral vision: Māori rights-based judicial review of the executive and the courts’ approach to the United Nations Declaration on the rights of Indigenous Peoples. New Zealand Law Review, 85–118. Retrieved on 24 October 2023 from https://​heinonline​.org/​HOL/​P​?h​=​hein​.journals/​newzlndlr2019​&​i​=​89 Charters, C., Kingdon-Bebb, K., Olsen, T., Ormsby, W., Owen, E., Pryor, J. … & Williams, G. (2019). He puapua: The report of the Independent Working Group on a Plan of Action to Realise the Declaration on the Rights of Indigenous Peoples. Obtained under Official Information Act 1982, request to Te Puni Kōkiri, the Ministry of Māori Development.

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Convention on Biological Diversity, opened for signature 5 June 1992, 1760 UNTS 79 (entered into force 19 December 1993). Davis, M. (2018). The long road to Uluru: Walking together—Truth before justice. Australian Journal of Politics and History, 60(13), 41–45. Retrieved on 24 October 2023 from https://​ search​.informit​.org/​doi/​10​.3316/​INFORMIT​.585254385255524 Education (Update) Amendment Bill 2017 (NZ). Electoral (Entrenchment of Māori Seats) Amendment Bill 2019 (NZ). Eslava, L. & Pahuja, S. (2012). Beyond the (post)colonial: TWAIL and the everyday life of international law. Journal of Law and Politics in Africa, Asia and Latin America— Verfassung und Recht in Übersee (VRÜ), 45(2), 195–221. https://​dx​.doi​.org/​10​.2139/​ssrn​ .2034228 General Assembly of the Organization of American States (OAS). (2016). Declarations and resolutions adopted by the General Assembly. OAS, Dominican Republic. Retrieved on 24 October 2023 from https://​www​.oas​.org/​en/​sare/​documents/​DecAmIND​.pdf Hobbs, H. (2019). Treaty making and the UN Declaration on the Rights of Indigenous Peoples: Lessons from emerging negotiations in Australia. The International Journal of Human Rights, 23(1–2), 174–192. Hobbs, H. (2020). The road to Uluru: Constitutional recognition and the UN Declaration on the Rights of Indigenous Peoples. Australian Journal of Politics and History, 66(4), 613–632. https://​doi​.org/​10​.1111/​ajph​.12707 Human Rights Amendment Bill 2016 (NZ). International Labour Organization ‘Convention 107’, opened for signature 26 June 1957 (entered into force 2 June 1959). International Labour Organization ‘Convention 169’, opened for signature 27 June 1989, 71 ILO Official Bull 59 (entered into force 5 September 1991). International Law Association (2012). Resolution No 5/2012: Rights of Indigenous Peoples. Junger, R. (2019). Implementation of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) in Canada. Presented to the CBA National Aboriginal Law Conference Banff, June 2019. Retrieved on 24 October 2023 from https://​mcmillan​.ca/​ wp​-content/​uploads/​2020/​07/​Implementation​-of​-the​-United​-Nations​-Declaration​-on​-the​ -Rights​-of​-Indigenous​-Peoples​-in​-Canada​.pdf Koh, H. & Hathaway, O. (2005). Foundations of international law and politics. New York, NY: Foundations Press. Maloney v The Queen. (2013). HCA 28. McHugh, P. (2008). Treaty principles: Constitutional relations inside a conservative jurisprudence. Victoria University Law Review, 39(1), 39–72. https://​doi​.org/​10​.26686/​vuwlr​.v39i1​ .5453 New Zealand Maori Council v Attorney-General (2013) NZSC 6, (2013) 3 NZLR 31 (‘NZMC Freshwater’). New Zealand Parliamentary Debates (2011) 670 NZPD 16976 (Christopher Finlayson, Attorney-General). Newman, D. (2019). Wakatū and transnational dimensions of Indigenous rights discourse. New Zealand Law Review, 61–83. Retrieved on 24 October 2023 from https://​heinonline​ .org/​HOL/​P​?h​=​hein​.journals/​newzlndlr2019​&​i​=​65 Ngāti Whātua Ōrākei Trust v Attorney-General. (2018). NZSC 84, (2019) 1 NZLR 116. Northern Territory Treaty Commission. (2020). Treaty discussion paper. Paki v Attorney-General (No. 2). (2015). NZSC 118, (2015) 1 NZLR 67. Proprietors of Wakatū v Attorney-General. (2017). NZSC 17, (2017) 1 NZLR 423. Queensland Government. (2020). Treaty statement of commitment and response to recommendations of the Eminent Panel. Retrieved on 24 October 2023 from https://​documents​ .parliament​.qld​.gov​.au/​tp/​2020/​5620T1358​.pdf Re. The Bed of Wanganui River. (2015). NZSC 118, (2015) 1 NZLR 67.

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Risse, T., Ropp, S. C. & Sikkink, K. (Eds.). (1999). The power of human rights: International norms and domestic change. Cambridge, UK: Cambridge University Press. Risse, T., Ropp, S. C. & Sikkink, K. (Eds.). (2013). The persistent power of human rights: From commitment to compliance. Cambridge, UK: Cambridge University Press. Rodríguez-Piñero, L. (2005). Indigenous Peoples, postcolonialism and international law: The ILO regime (1919–1989). Oxford, UK: Oxford University Press. Shelton, D. (2004). Commentary and conclusions. In D. Shelton (Ed.), Commitment and compliance: The role of non-binding norms in the international legal system (pp. 449–463). Oxford, UK: Oxford University Press. Stamatopoulou, E. (2011). Taking cultural rights seriously. In S. Allen & A. Xanthaki (Eds.), Reflections on the UN Declaration on the Rights of Indigenous Peoples (pp. 387–412). Portland, OR: Hart Publishing. Stats NZ. (2019). 2018 Census population and dwelling counts. Retrieved on 24 October 2023 from https://​www​.stats​.govt​.nz/​information​-releases/​2018​-census​-population​-and​-dwelling​ -counts​#:​~:​text​=​The​%202018​%20Census​%20usually​%20resident​,and​%202013​%20(0​.7​ %20percent) Takamore v Clarke. (2011). NZCA 587, (2012) 1 NZLR 573. Takamore v Clarke. (2012). NZSC 116, (2013) 2 NZLR 733. Te Aho, F. (2021). The Aotearoa New Zealand State and Indigenous Peoples’ Rights under international law: Complacent ‘leadership’. In A. Hood & A. Hertogen (Eds.), International law in Aotearoa New Zealand (pp. 183–218). Auckland, New Zealand: Thomson Reuters. Te Arawhiti. (2019). Developing a plan on New Zealand’s progress on the United Nations Declaration on the Rights of Indigenous Peoples [Cabinet release]. Te Puni Kōkiri. (2022). UN Declaration on the Rights of Indigenous Peoples. Retrieved on 24 October 2023 from https://​www​.tpk​.govt​.nz/​en/​a​-matou​-whakaarotau/​te​-ao​-maori/​ un​- declaration​- on​- the​- rights​- of​- indigenous​- peoples​# :​~ :​t ext​=​N ew​% 20Zealand​% 20is​ %20committed​%20to​,addressing​%20indigenous​%20rights​%20and​%20interests The Uluru Statement. (2017). Uluru Statement from the Heart. National Constitutional Convention, Uluru. United Nations Committee on the Elimination of Racial Discrimination. (1997). General Recommendation 23 on the rights of indigenous peoples, A/52/18. United Nations Committee on the Rights of the Child (UNCRC). (2009). General Comment No. 11 Indigenous children and their rights under the Convention, CRC/C/GC/11. United Nations Declaration on the Rights of Indigenous Peoples Act 2021, C-15, 43–2 (CA). United Nations Declaration on the Rights of Indigenous Peoples, GA Res 61/295, UN GAOR, 61st sess., 107th plen. mtg, Supp No. 49, UN Doc. A/RES/61/295 (13 September 2007). United Nations Human Rights Council. (2013). Report of the Working Group on the issue of human rights and transnational corporations and other business enterprises. United Nations International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976). United Nations International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976). United Nations Office of the High Commissioner for Human Rights. (2019). The Expert Mechanism on the Rights of Indigenous Peoples Country Engagement Mission. Waitangi Tribunal. (1996). The Taranaki Report: Kaupapa Tuatahi. Wai 143. Waitangi Tribunal. (2011a). Ko Aotearoa Tēnei Tuatahi. Wai 262. Waitangi Tribunal. (2011b). Ko Aotearoa Tēnei: Te Taumata Tuarua Volume 2. Wai 262. Waitangi Tribunal. (2011c). The report on the management of the petroleum resource. Wai 796. Waitangi Tribunal. (2012). The stage 1 report on the national freshwater and geothermal resources claim. Wai 2358. Waitangi Tribunal. (2013). Matua Rautia: The report on the Kōhanga Reo Claim. Wai 2336.

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Waitangi Tribunal. (2015). Whaia Te Mana Motuhake/In Pursuit of Mana Motuhake: The Māori Community Development Act Claim. Wai 2417. Weller, M. (2018). Self-determination of Indigenous Peoples. In J. Hohmann & M. Weller (Eds.), The UN Declaration on the Rights of Indigenous Peoples (pp. 115–149). Oxford, UK: Oxford University Press. World Bank. (2022). Environmental and Social Standards (ESS). Retrieved on 24 October 2023 from https://​www​.worldbank​.org/​en/​projects​-operations/​environmental​-and​-social​ -framework/​brief/​environmental​-and​-social​-standards World Intellectual Property Organization. (2022). Intergovernmental committee (IGC). Retrieved on 24 October 2023 from https://​www​.wipo​.int/​tk/​en/​igc/​ Wurridjal v The Commonwealth of Australia. (2009). HCA 2.

7. Treaty and public policy in the settler colonies Anya Thomas and Sarah Maddison

INTRODUCTION Coexisting sovereignties are an embedded reality in settler colonial societies. In the face of the multiple effects of the ongoing colonisation of their territories, Indigenous Peoples continue to insist that their sovereignties are distinct and that they should practise self-governance without interference. Indigenous Nations are increasingly moving away from political advocacy focused on seeking recognition or policy change from governments towards a resurgence of self-governing practices: rebuilding nations and exercising their right to self-determination through governance, the act of ‘making and implementing collective decisions according to their own rules, values and, ideally, law’ (Cornell, 2019, p. 17). The existence—or non-existence—of treaties between Indigenous Peoples and settler states has proven to be a key factor that facilitates or obstructs the exercise of Indigenous sovereignties. Treaties between governments and Indigenous Peoples have and continue to play a central role in discourse on self-determination in the ‘CANZUS’ nations (Canada, Australia, New Zealand and the United States [US]). All but Australia have historical treaties, and even Australia is embarking on treaty-making processes with Indigenous Peoples, at least at the subnational jurisdictional level. Canada has an ongoing modern treaty process in the province of British Columbia (BC), and the US and New Zealand have their own histories of treaty-making along with modern processes of agreement-making, interpretation and application of treaty commitments that shape contemporary governance and Indigenous–state relations. In recent decades, CANZUS governments have enacted various policies, programs and initiatives to support Indigenous Peoples’ control over their lands, resources and communities. More often than not, however, these initiatives continue to be motivated by the desire for state certainty and control and do not go far enough in supporting Indigenous autonomy. While governments in each of the four CANZUS nations have contended with Indigenous Peoples’ sovereignties differently, all four offered support for the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) and thereby have committed to transforming their respective political landscapes to some extent to respect Indigenous Peoples’ right to self-determination. While such transformations may seem daunting, in this chapter we contend that there is much to be learned from historical treaties that may provide guidance for moving towards more just relationships. 138

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In what follows, we provide a brief overview of how self-determination and Indigenous sovereignty are viewed in each of the four CANZUS nations’ governance structures before considering key lessons from historical treaties that may shape more just relationships between governments and Indigenous Peoples today. The chapter then examines modern treaty-making processes, suggesting that they have not paid sufficient heed to lessons from history. Instead, these processes may perpetuate control, elimination and extraction in ways that still seek to subsume Indigenous Peoples into state sovereignty rather than enabling renewed relationships. The chapter concludes by arguing that the transformative potential of treaties lies in the capacity of governments to transition from a bureaucratic or service delivery orientation towards engagements with Indigenous Nations based on diplomacy, as the history of early treaty-making suggests.

SELF-DETERMINATION, COURTS AND FEDERALISM IN NORTH AMERICA Each of the CANZUS states has contended with the sovereignty of Indigenous Nations a little differently. However, they have in common the fact that Indigenous authority can only be exercised within state legal and governance structures (Starblanket, 2019, p. 13). In Canada, successive court rulings have affirmed Aboriginal rights based on historic occupation and legal authority over Canadian soil, despite courts having also agreed that European colonisation and the establishment of a settler government has diminished Indigenous sovereignty. While the inherent right to self-government is recognised in section 35 of the Canadian Constitution, this recognition does not confer sovereignty ‘onto’ Aboriginal people (Brennan, Gunn & Williams, 2004, p. 327). At the same time, however, First Nations have and continue to negotiate treaties and other agreements with Canadian governments on a ‘government to government’ basis, leading some to argue that the Crown in Canada implicitly acknowledges Aboriginal political authority and the capacity to share in the sovereignty of the federation, much like provincial and territory governments (Macklem, 1993, p. 1324; McNeil, 2020, p. 1). As such, First Nations are considered part of the federal structure. Through agreement-making, First Nations’ rights and responsibilities are laid out along with those of other governments in relationship with them. The benefit of this approach is that First Nations in Canada have a seat at the table: their rights are protected in the Constitution, and they are viewed as regular and key players in the Canadian political landscape. The shortcoming of this approach is that it roots Indigenous authority into the settler colonial system, requiring First Nations to function in accordance with the rules and powers of the settler state. Papillon (2020) contends that since the failure of the Charlottetown Accord (which would have established a third level of Indigenous government in the Constitution), First Nations have no formal standing in the federal system. Their authority is delegated from the federal and provincial governments. Therefore, while the BC treaty process

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(discussed below), various court cases1 and legislation have imbued Aboriginal governments with substantive authority in some cases, the Canadian federal system has remained a stubbornly fixed two-tier system. In the US, Native Nations have long been considered distinct, independent political communities that have retained their natural rights, including tribal sovereignty,2 which has been defined in various laws. Native Nations have the authority to govern themselves as ‘domestic dependent nations’ or ‘nations within’ (Deloria & Lytle, 1998). This translates into jurisdictional authority that the federal, state and local governments need to contend with, usually through the negotiation of jurisdiction-sharing ‘contracts’, although tribal authority can be increased or curtailed at any time by Congress. As such, much like in Canada, Indigenous authority provides for the redistribution of power and resources, but ultimate power remains vested in the settler state. There is no constitutional recognition of tribal rights to self-government; however, tribal sovereignty is acknowledged in political and policy (bureaucratic) language. Treaties are an important part of this political landscape. Between 1778 and 1871, the US Government signed 370 treaties across 48 states, which, as in Canada, is considered an implicit acknowledgement of tribal sovereignty. However, successive US governments viewed these treaties as little more than real estate contracts, while Native Nations saw them as guarantees of their right to govern themselves and remain on their land (Calloway, 2016, pp. 546–548). Regardless of early intentions, the federal government has violated every treaty. Throughout US history, Native Nations have sought to protect their political authority, while the US Government has worked to minimise it. Consequently, there have been various court cases concerning Indigenous sovereignty, several of which affirmed its existence—notably Johnson v. M’Intosh (1823),3 Cherokee Nation v. Georgia (1831),4 Worcester v. Georgia (1832)5 and United States v. Wheeler (1978).6 Although Congress defines the parameters of tribal self-governance, it does not confer the right to sovereignty (as tribal sovereignty is retained from pre-contact) (Brennan et al., 2004, pp. 329–330). Despite these significant legal steps, at the time of writing the US Congress still has unfettered power over Native Nations, including to define the limits of their self-governing powers (Indian Land Tenure Foundation, 2016, p. 11).

1 In particular, see Calder et al. v. British Columbia (Attorney General) (1973), which required governments to negotiate with First Nations. 2 Tribal sovereignty is officially referred to as ‘residual sovereignty’. 3 The M’Intosh ruling held that ‘tribes’ sovereignty was diminished but not extinguished by British colonisation.’ 4 Cherokee Nation v. Georgia ruled that ‘treaties were a sign of recognition of sovereignty.’ 5 The ruling in Worcester held, ‘when a weaker State seeks the protection of a stronger State, it does not lose its status as a State.’ 6 Wheeler ruled that ‘Indigenous sovereignty [though] vulnerable to extinguishment however is an inherent right.’

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RIGHTS AND REPRESENTATION IN OCEANIA In New Zealand, the 1840 Treaty of Waitangi/Tiriti o Waitangi (the Treaty) was signed by the first colonial governor of New Zealand on the instruction of the Crown and 500 tribal chiefs. Differences in the English language and Te Reo Māori language versions of the Treaty resulted in the rejection of its authority and relevance for many years (Brennan et al., 2004, p. 331). Today, however, the Treaty is recognised as placing a lean or restriction on the sovereignty of the Crown, meaning that the state needs to consider its implications or interactions with Māori rights and authorities in exercising its own authority. In practice, this means policy and decision-making undertaken by the government are weighed against the principles set out in the Treaty. This puts government in constant conversation with Māori leadership, and the public service is required to always consider Māori rights. The Treaty also ensures that all title arrangements are based on an understanding of Māori traditional ownership of the land. Any Māori group can make a claim against the state for violations of the Treaty to the Waitangi Tribunal, which researches and recommends settlements. However, while the Treaty of Waitangi provides important protections for Māori, it does not have constitutional protection and is largely left to the interpretation of the New Zealand bureaucracy and Waitangi Tribunal. The government does not acknowledge Māori sovereignty and has not negotiated Māori self-government. Self-determination is supported through government initiatives to enhance Māori capacity to take on the power to manage matters that affect their lives within the parameters of Crown authority (Brennan et al., 2004, p. 331). Australian governments have done far less than any of the other CANZUS nations to contend with the pre-existing sovereignties of Indigenous Nations on the continent. Aboriginal and Torres Strait Islander peoples are not acknowledged in the Australian Constitution, a matter that has been the subject of sustained activism for many decades. And while treaty processes are currently being advanced in some subnational jurisdictions, recent federal governments have remained staunchly opposed to treaty. First Nations in Australia have advocated tirelessly for recognition as self-determining political entities. Self-determination has most often been expressed through the work of Aboriginal community-controlled organisations and, for a period of time between 1990 and 2005, through the work of the Aboriginal and Torres Strait Islander Commission, which had both a representative and bureaucratic function in the governance of Indigenous affairs. Today, self-determination is widely referenced in bureaucratic commitments but remains poorly defined and is broadly treated as a guiding principle in policy and program design rather than as a collective right of Indigenous Peoples. First Nations’ rights to land and connections to Country7 are variously recognised through land rights and Native Title legislation, although in every

7 ‘Connection to Country’ is an expression used by many Aboriginal and Torres Strait Islanders to refer to their ancestral relationship with their traditional territories. For many

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instance, these rights are curtailed in favour of overarching state authority. In 2017, a government-appointed Referendum Council produced the Uluru Statement from the Heart following an extensive process of consultation and deliberative dialogue. Under the banner of Voice, Treaty, Truth, the statement proposed a constitutionally enshrined ‘Voice to Parliament’ and a Makarrata Commission that would ‘supervise agreement-making between governments and First Nations and truth-telling about our history’ (Referendum Council, 2017). The proposals in the statement were comprehensively rejected by the government of the day in October 2017 but have retained political currency through ongoing debate and development. All four settler nations have committed to the UNDRIP, which affirms Indigenous Peoples’ right to self-determination, including the right to autonomy and self-government (Article 4), but only Canada has passed legislation that lays out a framework for implementing the UNDRIP. Canada, the US and New Zealand all have historical treaties between the Indigenous Peoples of those lands and the settlers who arrived in the last several hundred years. Only Australia has no such history of treaty-making and, consequently, lags behind its settler-majority Commonwealth peers in terms of both the legal and political dimensions of treaty relationships. This is not to say that the other three countries are maintaining just treaty relationships in their governance structures or that Indigenous Nations within those countries are content with their relationships with these states. However, those CANZUS states with a history of treaty-making do have the precedent of partnership with original Nations against which the current political regimes can be evaluated.

LOOKING BACK TO LOOK FORWARD: LESSONS FROM HISTORICAL TREATY-MAKING While the relationship between Indigenous Nations and settler states remains fraught due to state abuses of power and the ongoing occupation of Indigenous lands, writings from the early contact periods between European arrivals and Indigenous Nations and scholarship interrogating very early treaty-making practices provide insight into what just, diplomatic relations between Indigenous Nations and governments could look like (see Borrows, 2018a; Simpson, 2011; Starblanket, 2019). Initial meetings between Indigenous Nations and settlers were characterised by more equal power relations, and consequently, agreements drew on both parties’ legal and political customs. Diplomacy was critical for harmonious cohabitation and, ultimately, survival for both Indigenous Peoples and settlers. While the power differential between Indigenous Nations and settler states today is vast, the tools of diplomacy used in early contact periods are still relevant and necessary.

Indigenous peoples in Australia, the concept of ‘Country’ includes political, spiritual and material dimensions.

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Many early treaties were negotiated in circumstances in which the benefit from the agreement was shared in recognition of vulnerabilities attached to both parties. Some early treaties were negotiated in the context of Indigenous expectations that they would be agreements of alliance and shared obligation. Treaty-making is a long tradition for many Indigenous Peoples who historically made treaties with non-human relations and Indigenous neighbours to support accountable, sustainable coexistence with all living things and the land. Treaties with neighbouring First Nations did not consider the takeover of another’s territory or the loss of sovereignty or governing authority. When Europeans arrived, Indigenous leaders expected the same meaning and practice of treaty-making: that there would be agreements about peaceful coexistence and sharing of land resources (Simpson, 2011, p. 114). Anishinaabe/Ojibway scholar John Borrows (2018a, p. 64) writes of the central role that mutuality played in early treaties between Canadian First Nations and representatives of the British Crown, highlighting the importance of limits within treaty relationships, whereby the parties are limited by ‘mutual aid and interdependence’. For instance, early treaties in Canada contain rights granted to the Crown by First Nations for the occupation and use of their land and resources; they are equally binding on both Indigenous Nations and the Crown (Borrows, 2018a, p. 62). In other words, by entering into treaty relationships, the Crown and First Nations in Canada both gained certain rights and agreed to be limited by certain commitments. In Canada, early treaties often represented a coming together of vastly different political traditions to achieve peaceful coexistence. The report of the British Columbia Claims Task Force, the founding document of the modern BC treaty process in Canada, summarises early interactions between First Nations and European arrivals: Before the arrival of Europeans in BC, the aboriginal societies lived as distinct and self-sufficient nations each having its own language, its own economy, its own system of law and government and its own territory. Nations interacted through trade, social relations, sharing of resources and, at times, warfare …. During the decades following the first arrivals, the First Nations carried on a trading relationship as relative equals with the itinerant new comers. With minimal contact, there was little conflict. Colonization had not yet taken place …. By their actions the foreigners accepted the domestic jurisdiction of the First Nations. For their part, the First Nations and their communities continued to be self-sufficient and self-governing, knowing the land and seas to be theirs. (British Columbia Claims Task Force, 1991, p. 2)

First Nations developed and maintained their legal and governance systems long before European arrival. In signing agreements with one another, Indigenous leaders and representatives of the British Crown in pre-colonial Canada and the US set out an intention to peacefully coexist, each according to their legal and governance systems, and to share resources, each deriving authority to enter such agreements from sources rooted in their respective nationhoods. As Gina Starblanket (2019) argues: Indigenous peoples’ authority was not positioned as having been created or granted by the Crown, but as emanating from customary law. As Indigenous governance pre-dated the

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arrival of newcomers, treaties represented a commitment to direct this authority towards maintaining good relationship in agreeing to share the land with them. (p. 16)

Starblanket (2019, p. 16) sums up the motivation of these early arrangements as ‘peace and good order’ between sovereign authorities. As in Canada, early treaties in the US brought together vastly different political and legal systems. Calloway (2016, p. 539) argues, ‘early colonial treaties involved a hybrid of diplomacy of Native rituals and European protocols, and business was conducted with wampum and oratory as much as with pen and paper.’ Before treaties were predominately about land, European and Indian representatives brought together their diplomatic traditions, often through the use of translators, to achieve agreements that would ensure harmonious coexistence. Settlers’ survival depended on learning Indian protocols and understanding the principles that underpinned their tribal lifeways. Despite colonial assault, many of these protocols are still practised today between Indian tribes. Likewise in New Zealand, European arrival was not the advent of sovereignty or legal tradition on the lands. As Jones (2018, p. 13) argues, ‘The assertion of Crown sovereignty over New Zealand did not arrive in a landscape devoid of constitutional thought and practice. A Māori constitutional tradition was already in operation, revolving around a set of key underlying values and principles.’ It is within the context of Māori constitutional tradition that Māori leaders and British representatives had their first interactions, establishing the foundations of their political relationship, including the negotiation and signing of the Treaty of Waitangi in 1840. Despite contentions over translation, the Treaty continues to represent an instrument of Māori law and a Māori vision and intention for peaceful coexistence with European settlers (Jones, 2018, pp. 13–14). As in the other places that would become settler-majority states, Indigenous Peoples on the Australian continent had long maintained their respective legal traditions and diplomatic relations with one another before the arrival of Europeans. Ambellin Kwaymullina (2017, p. 5) contends that First Nations on the continent now known as Australia ‘formed complex networks of relationships, traded goods, entered into negotiations over shared law spaces’ and that these practices constituted an ‘international legal order [that] did not begin with writings of Grotius or Vattel or the rise of the Westphalian State.’ Newcomers to the continent ‘imposed themselves onto ancient international legal orders arising from the interactions of the Indigenous Nations on this earth’ (Kwaymullina, 2017, p. 5). Today, Australia remains the only British settler-majority nation in which no treaties were negotiated between Indigenous Nations and European arrivals. The broad posture of early Australian settlers was one of takeover and Indigenous elimination (Wolfe, 2006), justified by the doctrine of terra nullius, or the principle of ‘empty land’. Unlike the Americas, new arrivals were less motivated by gaining access to natural resources than by establishing a British penal colony. With few exceptions, early interactions were characterised by violence, control and dispossession, with a period of frontier warfare ensuing for over a century (Reynolds, 2013).

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It is unquestionably true that the history of Indigenous–state relations in all four countries is predominately characterised by colonial control and domination— dynamics that Indigenous Peoples have refused and resisted since their territories were first invaded. Nevertheless, the practices of early treaty-making in Canada, New Zealand and the US offer insight into the qualities of early diplomatic relationships when the parties were considered more equivalent in power, resources and vulnerability. By coming together in agreement-making, treaty signatories introduced their respective legal and governing traditions, that is, ‘the collection of rules, principles and practices that shape the way in which public power is exercised within a political community’ (Jones, 2018, p. 14), beginning a dialogue of diplomatic exchange. In these early interactions, good diplomacy was essential. This included learning and practising the traditions of the other. Respect for authority, allowing time for relationships to develop, understanding one another’s interests and reaching agreement on what was considered a fair exchange were all critical. Treaties have received renewed attention in recent decades as CANZUS governments contend with international and domestic pressures to address Indigenous Peoples’ right to self-determination. It is well known that not all participants in early treaty negotiations were interested in harmonious, balanced relationships. There is ample evidence of the use of coercion, deceit and manipulation by settler representatives seeking to gain access to land and resources from First Nations. Additionally, subsequent interpretations of the treaties have been dominated by the colonial worldview, resulting in the failure of these agreements to protect Indigenous Peoples from atrocities inflicted on them at the hands of settler states in the years that followed. While the BC treaty process in Canada is deeply criticised for its serious structural setbacks, it is the most advanced modern treaty-making process globally and is considered a model for treaty-making. In New Zealand, the Waitangi Tribunal, while not a treaty negotiation process, hears claims regarding breaches of the Treaty of Waitangi, setting precedents for how the Treaty applies in contemporary New Zealand. In the US, advocacy continues for renewed commitments to and respect for early treaties. However, in the meantime, agreement-making with Native Nations is an accepted component of the American political landscape. Australia’s budding treaty processes are still in their very early stages, but there is some optimism that they may open up a new direction in Indigenous–state relations in the country. The next section discusses these processes and considers whether modern treaty-making and interpretation represent a move towards renewed relationships between Indigenous Nations and settler governments or are merely further efforts to advance state colonial projects.

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MODERN TREATY-MAKING: RENEWED RELATIONSHIPS OR AN INSTRUMENT OF CONTROL, ELIMINATION AND EXTRACTION? While early treaty-making practices in Canada, New Zealand and the US offer some lessons for balanced diplomatic relations between Indigenous Nations and settlers, in the centuries that followed the creation of these agreements, settler states entrenched and evolved their colonial tactics from the overt oppression of Indigenous Peoples to more covert tactics of control, elimination and extraction. In his influential paper Settler colonialism and the elimination of the native, Patrick Wolfe (2006, p. 388) argues that settler colonialism is a systemic elimination of Native Peoples. It ‘destroys to replace’, with the core objective being to gain access to the land, which necessitates the removal of the original owners. Wolfe takes great care to differentiate between genocide and the ‘logic of elimination’ that undergirds settler colonialism. Elimination can take on many forms, for instance, through assimilation, which is a form of elimination that does not threaten peace or the rule of law. Wilmer (1996, p. 7) observes that, ultimately, ‘the project of remaking non-western people into the “image of the white man” is central to the process of colonization.’ While genocide was the modus operandi of colonial exploration (an event), elimination is the project of settler colonialism (a structure) that followed (Wolfe, 2006, p. 402). Tuck and Yang (2012, p. 6) similarly argue that ‘In order for the settlers to make a place their home, they must destroy and disappear the Indigenous peoples that live there.’ Today, these manifestations of coloniality are often enacted through ‘reconciliatory acts’, such as formal recognition processes and self-determination or co-management initiatives, which are widely practised in CANZUS states. From a state-centric perspective, these initiatives are ways of embracing and making space for Indigenous Peoples and their rights. However, viewed from another perspective, these are mechanisms of control. For instance, formal recognition is an action taken by governments in response to calls from Indigenous Nations to be recognised as having a distinct place in the settler state. While the last several decades of recognition/reconciliation politics have seen some improvements in Indigenous–state relations, recognition-based approaches, in fact, affirm the colonial relationship by placing the state in the position of the recogniser and Indigenous Peoples as those to be recognised. In other words, the state exercises its colonial authority by maintaining control of recognition—the scope, terms and language around an Indigenous group’s place within and relationship to the state—and entrenches the idea that the path to progress laid by the settler state is the only way forward. As a result, Indigenous Peoples continue to be viewed as simply another interest group and may limit themselves to seeking minimal gains from the state— concessions where these are available and the paths of least resistance (Elliott, 2016, pp. 414–415). Self-determination or co-management initiatives are often little more than efforts to pacify Indigenous Peoples’ concerns through the invitation to participate in state decision-making processes. While often touted as an act of political inge-

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nuity, the ‘partnership’ between Indigenous groups and governments tends to differ very little from other forms of comprehensive stakeholder engagement whereby individuals provide input into the governmental process within restricted parameters. Even contemporary efforts to accommodate Indigenous Peoples’ unique rights (e.g., in resource-sharing arrangements, affirmative action employment schemes and impact–benefit agreements) are built on and around settler capitalist interests (Coulthard, 2014, p. 171). This is a far cry from the relationship between two distinct polities as was modelled in very early treaty-making.8 Where Indigenous representatives do have a say in the form or structure of the partnership, it remains squarely within state infrastructure over which departmental leadership or the minister has ultimate authority. Treaty and agreement-making processes are also not immune to such acts of coloniality. In fact, some argue that control, elimination and extraction are also advanced through treaty-making and treaty-interpretation processes in CANZUS states. Starblanket and Stark (2018, p. 179), for instance, posit that contemporary treaty processes (and other processes of ‘reconciliation’) are mechanisms of advancing settler ‘nation-building’ objectives. Instead of establishing renewed relationships with Indigenous Nations that may help to repair colonial legacies and restore original diplomatic relations, contemporary treaty processes are oriented towards reconciling Indigenous Peoples to the unyielding sovereignty of the Crown. From the perspective of Indigenous treaty-making practice, modern treaty-making is viewed as a contractual exchange rather than a commitment of relationship bound by mutual obligation: It is often seen as a form of betrayal, a trick to put in place a contract assuring certainty and finality in relations, tit-for-tat exchange, instead of a relation of mutual obligations, promises, rights and responsibilities. (Noble, 2018, p. 322)

Indeed, modern treaty-making and interpretation processes occur within the framework of settler legal structures and are typically predicated on the objective of reconciling Indigenous rights and title to state law and authority. As an example, since its inception, the BC treaty process in Canada has nurtured two often competing narratives: one of justice for the losses Indigenous Peoples have endured; and the second of certainty for business and the state, which demand legal clarity with respect to Aboriginal rights and title in Canada. To date, the pursuit of certainty has prevailed (Woolford, 2002), underscoring the settler colonial need to ‘restore territorial control and economic security’ (de Costa, 2002, p. ii). Egan (2013) contends that the BC treaty process remains deeply colonial: the treaty process, as it is currently structured, works to entrench dominant Western forms of property across Aboriginal territories in a highly separate and unequal manner, and as

8 It is pertinent to note that by the time numbered treaties (1871–1921) were negotiated in Canada, settler representatives had largely abandoned diplomatic tools in favour of colonial tactics in their dealings with First Nations.

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such, serves to reinscribe asymmetrical relations of power between Aboriginal peoples and the Crown. (p. 33)

Modern treaties in BC bring First Nations’ rights to land into the Canadian legal framework. This provides legal certainty about what First Nations citizens can and cannot do on and with the lands returned to them through the treaty process. However, the legal vehicle for exercising these rights is not up for negotiation; it must harmonise with provincial property law. Because of this, treaty-making processes in Canada are often viewed as convenient means by which state control over Indigenous lands can be secured (Asch, 2018, p. 31). In New Zealand, the Treaty of Waitangi claims process is also centred on achieving certainty about control over land and on extracting Māori lands for the state. The Tribunal itself and the settlement process were established without Māori participation: it was presented to Māori as a complete package. Writings from the time of its development suggest there was little, if any, intention of involving Māori in decision-making around settlements (Mutu, 2019, p. 7). Today, while the process delivers land and monetary settlements to Māori groups in response to violations of the Treaty, it has forced some hapū (tribes) into ‘settling groups’ that are not consistent with their history and culture. These groups have also had to sacrifice significant segments of their traditional territory in return for some parcels of land (Coates, 2018, p. 167). In a review of the effects of the Waitangi claims settlement process on Māori Peoples, Mutu (2019, p. 1) found that the claims process has largely traumatised and divided Māori communities and facilitated a return of lands that equal less than 1 per cent of the claimed territory. Concerning the approximately 60 Deeds of Settlement the Waitangi Tribunal has finalised since 1998, Mutu (2019) concludes: Deeds of Settlement disingenuously describe these huge appropriations as acts of great magnanimity on the part of the iwi or hapū (grouping of extended families), falsely implying that they are willingly giving up almost all their lands and forgoing compensation ‘to contribute to the development of New Zealand’. (p. 2)

Mutu goes on to detail various tactics the Crown employs to devalue and minimise the lands being returned to Māori communities through the settlement process. In the US, while early treaties represented a form of hybrid diplomacy, subsequent treaties signed in the 19th century were centred on securing control of the land by creating land reservations and measures to ‘civilise’ tribal members (Calloway, 2016, p. 539). Between 1778 and 1871, treaty-making resulted in the transfer of over two million square miles of land to the state. This amounts to roughly two square miles per hour, an undertaking that laid the foundation for future relations between the US Government and Native Nations (Spirling, 2012, p. 84). The practice of treaty-making ceased in 1871. Treaties still have legal effect, but few are observed. Contemporary relations between Native Nations and the settler state have been shaped by these beginnings. Today, Native Nations have some jurisdiction over their reservation lands and practise agreement-making with state and federal governments in accordance with the Indian Self-Determination and Education Assistance Act

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1975 (the Act). Agreements are negotiated on a case-by-case basis and are typically administrative in nature, concerning the delivery of government services and devolution of resources and authority, relieving states from responsibilities, and allotting tribal governments some authority and autonomy on their lands and communities (Johnson, Kaufmann, Dossett, Hicks & Davis, 2009, pp. 3–5). While this practice of agreement-making and the US Government’s broader promotion of self-determination has undoubtedly improved socio-economic outcomes for many Native Nations and strengthened tribal governance, this framework is proving inadequate for the task of responding to the broader assertions of sovereignty and rights Native Nations are making as they grow in strength (Cornell & Kalt, 2010, pp. 15, 27). In looking closely at the quality of agreements made under the Act, Wilson (2012, p. 906) concludes: the more tribes pursue services of various kinds from the federal government to a stronger economic future, the more tribes effectively reinforce their position as a ward to the federal government, which has historically positioned itself as a legal guardian to virtually every aspect of Indian life.

In other words, the more Native Nations engage in state agreement-making processes, entering into arrangements of devolved governmental responsibilities and increased jurisdictional authority, the more subject they are to the power of the colonial state. After many decades of Indigenous advocacy in Australia, the negotiation of treaties between First Nations and the settler state is, at last, becoming a reality. Four Australian jurisdictions—Victoria, Queensland, Tasmania and the Northern Territory—have now committed to treaty processes with First Nations, and while these processes are still in their early days (with Victoria the most advanced), there is a growing realisation of the profound effects that treaty will have on Indigenous–state relations. To date, in Australia, the concept of Indigenous political authority and the right to self-determination has largely been viewed as a threat to state sovereignty. Notwithstanding emerging treaty processes, there is no formal recognition of Indigenous sovereignty or rights in the country or a history of agreement-making that has helped to define or distribute authority. Treaty itself has been actively resisted by successive Australian governments, leaving the emerging treaty processes vulnerable to political will. While contemporary treaty and agreement-making processes in CANZUS states purport to usher in an era of new relationships between Indigenous Nations and the settler state, a closer look at their political and legal infrastructure and the practice of agreement-making tells a different story: one of control, elimination (weakening) and extraction of Indigenous Peoples and their lands by the settler state to advance its colonial project. Both the structures and practices of settler governments are oriented towards maintaining state dominance and control over Indigenous Peoples. While Indigenous sovereignty and rights are gifted significant rhetoric, there is very little action that genuinely contends with the notion of other sovereign authorities in a shared space. Central to this dynamic is the relegation of Indigenous–state relations to bureaucratic processes, situating Indigenous rights squarely within the

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administrative machinery of state governance, bringing it into alignment with settler logics. The only way renewed relationships will be achieved is if Indigenous–state relations are ‘repoliticised’, that is, brought outside of settler bureaucracy and back into the domain of diplomacy–international relations, where it originated and where negotiations between sovereign political entities belong.

TREATIES AND PUBLIC POLICY: TRANSITIONING FROM BUREAUCRATIC TO DIPLOMATIC RELATIONSHIPS As has been discussed, early treaties represented a coming together of different authorities and constitutional traditions, creating a rich, albeit a complex political relationship that has proven challenging for CANZUS states (Borrows, 2018b, p. 30). Unfortunately, the common response of governments to this challenge has been the domination of Indigenous Peoples and their lands—an active attempt to eliminate or minimise the political challenge posed by Indigenous Peoples and their inherent political authority. A key tactic of elimination and control is assimilation, not just of individuals into the dominant culture but also of authorities and rights of peoples that originate outside the state into the settler state machinery. Wolfe (2011) writes how the US Government achieved this during the post-frontier period, during which it actively ‘depoliticised’ Indian–state relations, a process by which it shifted its relationship posture towards tribes from one of diplomacy to bureaucracy (Wolfe, 2011, pp. 13–14). Relegating Indigenous–state dialogue to administrative processes diminishes the political power of the Indigenous party. This is accomplished through complex, state-controlled administrative processes that require significant time and expertise to navigate. These processes remain the norm of contemporary Indigenous– state relations in CANZUS states, including treaty-making and treaty interpretation practices. More just relationships between Indigenous Peoples and settler states will require states to acknowledge and address their coloniality and the practices this perpetuates. In considering early treaty-making compared to contemporary treaty processes, we see a stark difference in the spirit in which those relationships were entered into. Rather than the principles of extraction, elimination and control that are enacted today, many early treaties were based on principles of relational diplomacy—mutual respect, acknowledgement of interdependence, relational obligations and continuous renewal of commitment—which we will examine further below. While these are not common concepts in domestic governance and political discourse, they are well-established norms of international diplomatic relations. Indigenous Nations whose territories are within CANZUS countries have long understood Indigenous– settler engagement in relational diplomatic terms and continue to engage in treaty and other agreement-making processes with this expectation. In the context of contemporary treaty-making, the first principle—mutual respect— requires Crown representatives to recognise Indigenous Peoples’ sovereignty as an authority that originates from a different source than that of the state (British Crown).

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The UNDRIP affirms Indigenous Peoples’ status as political entities and their right to establish and maintain their own governing systems. Various scholars have written about Indigenous sovereignties and how they originate from different sources than those of internationally recognised states (Mills, 2016, p. 854), and ‘international relations’ in Indigenous traditions are guided by different principles than those in international law (Lightfoot, 2016, p. 19). In traditional Indigenous practices of making treaties with neighbouring nations, the question of takeover or loss of sovereignty or governing authority was never on the table. When Europeans arrived, Indigenous Peoples expected the same meaning and practice of treaties: that they would be agreements about peaceful coexistence and sharing of land and resources (Simpson, 2011, p. 43). Just relationships between Indigenous Peoples and settler governments require respect for the other’s autonomy, whereby two political entities exist side by side, each retaining their ‘collectivity, difference and jurisdiction’, with neither subject to the authority of the other, bound by reciprocal obligations freely entered into and regularly affirmed (Noble, 2018, p. 332). Bringing together Indigenous and settler constitutional systems is a complicated task requiring a ‘transformation of our shared political community’. This can be accomplished through treaties (Mills, 2016, p. 861); it is not beyond the capacity of CANZUS governments to recognise and respect Indigenous Peoples’ political autonomy and partner with them in the same spirit as they do when they engage in relationships with other nation-states. The second principle of relational diplomacy is the acknowledgement of the long and deep interdependence of settler society and Indigenous Peoples. Indigenous and non-Indigenous Peoples in both settler and other colonial societies are inextricably interdependent by virtue of sharing histories and territory. This interdependence is through the land, cultural and relational intermingling—through sharing a fate by cohabiting in these ways. However, this does not mean the lines between Indigenous and settler culture and peoples have been erased, but rather that the two are intertwined, deeply affecting each other: Let’s be very clear that this isn’t because of a reduction to sameness. It’s because distinct Indigenous–settler realities are deeply interwoven: we can no longer affect the other without also profoundly affecting ourselves. (Mills, 2018, p. 140)

Wherever an Indigenous people chooses not to secede, the only option is to attend to the health of its interdependence with the state. Healthy interdependence between Indigenous Peoples naturally takes the form of treaties because of their priority of interdependence as opposed to something reflecting a contractual relationship (Mills, 2016, p. 861). In the context of Indigenous–state relations, this would look like a diplomatic rather than contractual or bureaucratic relationship whereby, despite power differences between the parties, treaties are negotiated honourably based on the idea of ‘mutual sharing’ (Asch, 2018, p. 33). The third principle we consider is the fact that treaties need to be understood as documents of mutual obligation that stem from a commitment to a relationship rather

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than as statements of contractual imperatives. A treaty is not a signed document but rather the ‘relational network imploding and radiating in a living-with arrange of exchanges at the moment of affirming a living-together relation’ (Noble, 2018, p. 320). In other words, it is the act or practice of doing the relationship that is the treaty, not the document that sets out parameters. Noble (2018, p. 320) calls this ‘treaty praxis’ or ‘treaty ecology’. It is the practice of a relationship between two political entities without one subsuming the other. This relies on both entities ‘honouring the source of authority informing the other’ and behaving consistently with ‘reciprocity and equitably’. As Mills (2018) puts it: Treaty is the relation of travelling the circle in our unique, respective ways, together. We recognise that through our mutual rootedness we’re always already in relationship, and through treaty we choose to strengthen that relationship and thereby honour one another. This now intentional relationship strengthens our capacity to share our gifts with one another, so that all have their needs met. Treaty is the ongoing relationship that allows for all exchange, not the set of terms that establish actual exchange in a given instance (i.e. treaty is not a contract). (pp. 157–158)

Treaties require responsive relationality, which refers to the fulfilment of responsibilities towards that other that arise from the choice to have entered into the relationship. Such relational obligations are not prescriptive or a framework to be implemented, or even static, but rather iterative, fluid, responsive to the polities and the circumstances, enacted through ongoing interactions and negotiation (Noble, 2018, pp. 321–326). Finally, related to the above, the final principle of relational diplomacy we consider requires that just treaty relationships rely on the commitment to relationship practices. Relational diplomacy ultimately is a practice, and treaties are like living entities through which that practice needs to be exercised. Traditional forms of Indigenous diplomacy are relational, characterised by consensus decision-making, ongoing negotiation, non-hierarchical relations, sustainability and mutual respect—qualities Lightfoot (2016, p. 19) refers to as ‘Indigenous ontologies’. She points out that while these practices have recently been touted as new and modern approaches to politics and diplomacy, they are, in fact, age-old political tools of Indigenous international relations (see also Simpson, 2017, pp. 55–70). In early treaty-making, considerable time was given to story-telling and sharing to understand the other’s perspective and eventually arrive not at agreement but a place of seeing one another (Borrows & Tully, 2018, p. 10). The practice of ceremony, which refreshes or reminds and recommits the parties of and to the purpose and principles of the relationship, was also seen as central to the health of the partnership (Noble, 2018, pp. 317–319). In this way, the parties were responding to the needs of the relationship, maintaining its health through reciprocal practice. Transforming Indigenous–state relations from bureaucratic relations to diplomatic relations does not mean that states and Indigenous Peoples must necessarily have equal power. However, they must have equal influence over the structure and content of the relationship and receive equitable benefits from the relationship. This is commonly practised in international relations. For instance, the five permanent

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members of the United Nations Security Council are not equal in power generally, but the terms of the relationship between the member states ensure that no one party can dominate over the others. International treaties are similarly structured to ensure no one state is subject to another beyond reason. Treaties can be an effective mechanism for learning and developing new relationship principles and practices. To move from a bureaucratic to a diplomatic relationship, however, the process of treaty or agreement-making needs to be revisited. For instance, broadly, in contemporary processes, the mandate of the agreement is typically set by the state; negotiations take place in accordance with settler cultural norms and governmental timeframes; the signing and ratification of the agreement must adhere to, or mirror, state approval processes; and implementation is dictated by funding allocations controlled by the state. Every stage of the process remains firmly embedded in the state’s bureaucratic machinery. For the relationship to be one based on relational diplomacy, the parties need to engage in political rather than administrative dialogue (Curran, 2019, p. 2). Political dialogue does not necessarily change the content or relationship-building objectives of the exchange; rather, it has to do with the negotiating culture, the autonomy of the parties and the distribution of power in the process. In administrative dialogue, the process and infrastructure of the relationship are set by the state, or externally, or with one party invited into processes controlled by another (as is the standard approach in state–Indigenous relations). Disagreement is viewed as a barrier, and the parties are not regarded as autonomous, representative entities. In political dialogue, in contrast, the ‘how’ itself is also subject to negotiation. In other words, the process, timing, location and norms of the dialogue are mutually designed and agreed. This means the legal, governance and diplomatic practices of both parties are given equal weight and opportunity to be reflected in the infrastructure of the relationship (rather than one being required to adopt those of the other to participate). Autonomy is also a critical quality of political dialogue. In Indigenous–state relations, particularly agreement-making, this includes considering where the funding levers lie. For example, is the Indigenous party subject to government funding rules to participate in the dialogue? It also requires consideration as to the requirements of decision-making processes, including how decisions are made, how they are communicated and their timing. Broadly, autonomy is respected when equal time and weight are given to either party’s decision-makers and processes in the context of the discussion. Lastly, unlike in administrative discussions, in political dialogue, difference and disagreement are welcome. While achieving agreement is the goal, robust discussion that allows for a diversity of views and leaves no matter of importance to either party unexplored can ensure that the resulting agreement is genuine, sustainable and allows Indigenous Nations to exercise their sovereignty in harmony with settler states.

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CONCLUSION Coexisting sovereignties are a contemporary reality, even as settler states continue to resist this fact. Since the early colonial period, the colonial projects in Australia, New Zealand and North America have sought to eliminate Indigenous Nations to secure access to land and resources (Wolfe, 2006) through a singular sovereignty. However, as has been thoroughly covered in the literature, these efforts have been unsuccessful (Simpson, 2011, p. 212). Indigenous Nations still exist, along with their sovereignty and the rights and responsibilities this authority holds. Contemporary treaty-making rests on the recognition of these other sovereign entities with whom the settler state might negotiate agreements. While the four CANZUS nations have each made limited efforts to engage with Indigenous political authority, their principal orientation towards Indigenous Nations remains one of bureaucratic engagement. Early treaties may offer guidance on creating more just Indigenous–state relations now and in the future. Unpacking and generating alternatives to coloniality in Indigenous–state relations is a daunting undertaking, but treaties can potentially unsettle the settler order through their ability to uproot norms that perpetuate colonial principles. The principles that guide the relationship are well established (i.e., control, elimination and extraction), making it difficult to imagine a different kind of coexistence. However, it was not long ago that different principles framed the relationship between settlers and Indigenous Peoples—principles of mutual respect, interdependence, relational obligations and continuous renewal of commitment. The lion’s share of the work towards renewed, just relationships is the responsibility of settler governments. The key is a transition to diplomatic rather than bureaucratic engagement. Drawing on norms in international law and traditional Indigenous treaty-making practices, settler states may become partners in diplomatic relations with the Indigenous Peoples within their borders rather than oppressors’ intent on perpetuating relations of colonial domination.

REFERENCES Asch, M. (2018). Confederation treaties and reconciliation: Stepping back into the future. In M. Asch, J. Borrows & J. Tully (Eds.), Resurgence and reconciliation: Indigenous–settler relations and earth teachings (pp. 29–48). Toronto, Canada: University of Toronto Press. Borrows, J. (2018a). Earth-bound: Indigenous resurgence and environmental reconciliation. In M. Asch, J. Borrows & J. Tully (Eds.), Resurgence and reconciliation: Indigenous–settler relations and earth teachings (pp. 3–25). Toronto, Canada: University of Toronto Press. Borrows, J. (2018b). Origin stories and the law: Treaty metaphysics in Canada and New Zealand. In M. Hickford & C. Jones (Eds.), Indigenous peoples and the state: International perspectives on the Treaty of Waitangi (pp. 30–57). New York, NY: Routledge. https://​doi​ .org/​10​.4324/​9781351240376 Borrows, J. & Tully, J. (2018). Introduction. In M. Asch, J. Borrows & J. Tully (Eds.), Resurgence and reconciliation: Indigenous–settler relations and earth teachings (pp. 3–28). Toronto, Canada: University of Toronto Press.

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Brennan, S., Gunn, B. & Williams, G. (2004). ‘Sovereignty’ and its relevance to treaty-making between Indigenous Peoples and Australian governments. Sydney Law Review, 26(3), 307–352. British Columbia Claims Task Force (1991). The report of the British Columbia Claims Task Force. Retrieved on 22 February 2022 from https://​ www2​ .gov​ .bc​ .ca/​ assets/​ gov/​ environment/​natural​-resource​-stewardship/​consulting​-with​-first​-nations/​first​-nations/​ report​_british​_columbia​_claims​_task​_force​_full​.pdf Calloway, C. G. (2016). Treaties and treaty-making. In F. E. Howie (Ed.), The Oxford handbook of American Indian history (pp. 539–552). New York, NY: Oxford University Press. Coates, N. (2018). Future contexts for treaty interpretation. In M. Hickford & C. Jones (Eds.), Indigenous Peoples and the state: International perspectives on the Treaty of Waitangi (pp. 166–186). New York, NY: Routledge. https://​doi​.org/​10​.4324/​9781351240376 Cornell, S. (2019). From rights to governance and back: Indigenous political transformations in the CANZUS states. In W. Nokolakis, S. Cornell & H. Nelson (Eds.), Reclaiming Indigenous governance: Reflections and insights from Australia, Canada, New Zealand and the United States (pp. 15–37). Tucson, AZ: University of Arizona Press. Cornell, S. & Kalt, J. P. (2010). American Indian self-determination: The political economy of a policy that works (Harvard Kennedy School Working Paper No. RWP10–043). Cambridge, MA: Harvard Kennedy School. Coulthard, G. (2014). Red skin, white masks: Rejecting the colonial politics of recognition. Minneapolis, MN: University of Minnesota Press. Curran, D. (2019). Indigenous processes of consent: Repoliticising water governance through legal pluralism. Water, 11(3), 1–16. https://​doi​.org/​10​.3390/​w11030571 de Costa, R. N. J. (2002). New relationships, old certainties: Australia’s reconciliation and treaty-making in British Columbia (Doctoral thesis, Swinburne University of Technology). Retrieved on 28 February 2022 from https://​researchbank​.swinburne​.edu​ .au/​file/​bad58057–0bbe​-4f84​-b915–4f777650fe6c/​1/​Ravindra​%20Noel​%20John​%20de​ %20Costa​%20Thesis​.pdf Deloria, V. & Lytle, C. M. (1998). The nations within: The past and future of American Indian sovereignty. Austin, TX: University of Texas Press. Egan, B. (2013). Towards shared ownership: Property, geography, and treaty making in British Columbia. Geografiska Annaler: Series B, Human Geography, 95(1), 33–50. Elliott, M. (2016). Participatory parity and Indigenous decolonization struggles. Constellations, 23(3), 413-424. https://​doi​.org/​10​.1111/​1467​-8675​.12235 Elliott, M. (2018). Indigenous resurgence: The drive for renewed engagement and reciprocity in the turn away from the State. Canadian Journal of Political Science, 51(1), 61–81. Indian Land Tenure Foundation (2016). Native land law: Can Native American people find justice in the U.S. legal system? Washington, DC: Indian Land Tenure Foundation. Johnson, S., Kaufmann, J., Dossett, J., Hicks, S. & Davis, S. (2009). Government to government: Models of cooperation between states and tribes. Retrieved on 6 March 2022 from https://​www​.ncsl​.org/​documents/​statetribe/​2009​_gov​_to​_gov​.pdf Jones, C. (2018). Māori and state visions of law and peace. In M. Hickford & C. Jones (Eds.), Indigenous peoples and the state: International perspectives on the Treaty of Waitangi (pp. 13–29). New York, NY: Routledge. Kwaymullina, A. (2017). Aboriginal Nations, the Australian nation-state and Indigenous international legal traditions. In I. Watson (Ed.), Indigenous peoples as subjects of international law (pp. 5–17). New York, NY: Routledge. Lightfoot, S. (2016). Global Indigenous politics: A subtle revolution. London, UK: Routledge. Macklem, P. (1993). Distributing sovereignty: Indian nations and equality of peoples. Stanford Law Review, 45(5), 1311–1367.

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McNeil, K. (2020). Shared Indigenous and Crown sovereignty: Modifying the state model. Osgoode Legal Studies Research Paper. Retrieved on 9 May 2022 from https://​ digitalcommons​.osgoode​.yorku​.ca/​scholarly​_works/​2815/​ Mills, A. (2016). The lifeworlds of law: On revitalizing Indigenous legal orders today. McGill Law Journal, 61(4), 847–884. Mills, A. (2018). Rooted constitutionalism: Growing political community. In M. Asch, J. Borrows & J. Tully (Eds.), Resurgence and reconciliation: Indigenous–settler relations and Earth teachings (pp. 133–174). Toronto, ON: University of Toronto Press. https://​doi​.org/​ 10​.3138/​9781487519926 Mutu, M. (2019). The treaty claims settlement process in New Zealand and its impact on Māori. Land, 8(52), 1–18. https://​doi​.org/​10​.3390/​land8100152 Noble, B. (2018). Treaty ecologies: With persons, peoples, animals, and the land. In M. Asch, J. Borrows & J. Tully (Eds.), Resurgence and reconciliation: Indigenous–settler relations and earth teachings (pp. 315–343). Toronto, Canada: University of Toronto Press. Papillon, M. (2020). Nation to nation? Canadian federalism and Indigenous multilevel governance. In H. Bakvis & G. Skogstad (Eds.), Canadian federalism: Performance, effectiveness, and legitimacy (4th ed., pp. 395–425). Toronto, Canada: University of Toronto Press. Referendum Council (2017). Uluru Statement from the Heart, 26 May, retrieved on 27 April 2022 from https://​www​.referendumcouncil​.org​.au/​sites/​default/​files/​2017–05/​Uluru​ _Statement​_From​_The​_Heart​_0​.PDF Reynolds, H. (2013). Forgotten war. Sydney, NSW: NewSouth Publishing. Simpson L. B. (2011). Dancing on our turtle’s back: Stories of Nishnaabeg re-creation, resurgence and a new emergence. Winnipeg, Canada: Arbeiter Ring Publishing. Simpson, L. B. (2017). As we have always done: Indigenous freedom through radical resistance. Minneapolis, MN: University of Minnesota Press. Spirling, A. (2012). US treaty making with American Indians: Institutional change and relative power. American Journal of Political Science, 56(1), 84–97. Starblanket, G. (2019). Constitutionalizing (in)justice: Treaty interpretation and the containment of Indigenous governance. Constitutional Forum Constitutionnel, 28(2), 13–24. Starblanket, G. & Stark, H. K. (2018). Towards a relational paradigm – Four points for consideration: Knowledge, gender, land and modernity. In M. Asch, J. Borrows & J. Tully (Eds.), Resurgence and reconciliation: Indigenous–settler relations and earth teachings (pp. 175–208). Toronto, Canada: University of Toronto Press. Tuck, E. & Yang, K. W. (2012). Decolonization is not a metaphor. Decolonization: Indigeneity, Education & Society, 1(1), 1–40. Wilmer, F. (1996). Domination and resistance, exclusion and inclusion: Indigenous people’s quest for peace and justice. Peace and Conflict Studies, 3(1), Article 4. Retrieved on 28 February 2022 from https://​nsuworks​.nova​.edu/​pcs/​vol3/​iss1/​4 Wilson, M. D. (2012). Reclaiming self-determination from the Indian Self-Determination and Education Assistance Act of 1975. International Journal of Qualitative Studies in Education, 25(7), 905–912. Wolfe, P. (2006). Settler colonialism and the elimination of the Native. Journal of Genocide Research, 8(4), 387–409. Wolfe, P. (2011). After the frontier: Separation and absorption in US Indian policy. Settler Colonial Studies, 1(1), 13–51. Woolford, A. (2002). Between justice and certainty: Treaty making in modern day British Columbia (Doctoral thesis, University of British Columbia). Retrieved on 28 February 2022 from https://​open​.library​.ubc​.ca/​soa/​cIRcle/​collections/​ubctheses/​831/​items/​1​.0090699

8. Constitutional transformation and public policy for Indigenous Peoples’ rights Mukta S. Tamang

CONSTITUTION AND PUBLIC POLICY A constitution provides the foundation for public policy. It constitutes the structure and format for the policymaking process. A constitution as a supreme document inscribes principles and laws by which the state is governed and future aspirational goals are achieved. The consent of the governed is the basis of the legitimation of most democratic constitutions. In addition to the protection of fundamental freedoms and rights of its citizens, a democratic constitution is expected to recognise Indigenous Peoples, women, immigrants, refugees and other minorities and make provisions for the protection of their specific rights (Uhr, 2006). Several modern and post-colonial constitutions around the globe, however, generally exclude these groups in their constitutional practices. Even when Indigenous Peoples are acknowledged in constitutional laws and policies, they are often driven by the modern legacy of assimilation or neoliberal ideology (Strakosch, 2015; Tully, 1995). In the contemporary world, the formal adoption of a constitution by nation-states is nearly universal (Smith & Beeman, 2020). The Comparative Constitution Project enumerates 195 countries with national constitutions ranging from the United States and France to communist countries and post-colonial states in the Global South (Comparative Constitution Project, 2023). The formal adoption of a constitution, however, does not necessarily make all democracies. Constitutions are also being used as a tool for domination over marginalised populations. Indeed, constitutions have become a site of contestation and the struggle for their transformation in order to ensure social justice for historically disenfranchised peoples continues into the 21st century. Constitutionalism has also been a productive site for multicultural dialogue to reach new social contracts for constituting states with multiple nations. The conventional notion of constitutionalism emphasises the purpose of the constitution to limit the government through the separation of power. The positive definition of constitutionalism, however, stresses the purpose of a constitution as enabling the successful functioning of government to achieve its end, namely, ‘the advancement of the people’s well-being’ (Barber, 2018, p. 18). This new emphasis emerged after the demise of European colonialism and as international law began to put greater value on human rights and human dignity. The Indian Constitution of 1950 was the first example of a constitution that incorporates a broad range of social rights and recognises the claims of cultural communities and marginalised groups. Many new constitutions have since been adopted around the world. Countries in 157

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Latin America are at the forefront of crafting new constitutions that include commitments to the social, economic and cultural rights of colonised groups, including long-marginalised Indigenous Peoples (Van Cott, 2010). The Bolivian Constitution came into effect in February 2009 and is the latest example of constitutional transformation. The new Constitution of Bolivia is based on the concept of plurinationalism in which internal sovereignty, autonomy and the legal systems of Indigenous Peoples are recognised as belonging to ‘Nations’ and the values, languages and worldviews of different Indigenous Peoples in the country are made central to the articulation of the social contract (Thomson, Barragán Albó, Qayum & Goodale, 2018). Scholars have characterised these instances as forms of ‘transformative’ constitutionalism (Dinghra, 2014; Gargarella, 2017). The transformation of a constitution involves the reconstitution of the relationship between the state and society through the redistribution of power and the adoption of new values (Pogany, 1996). These constitutional reforms were the key means of re-establishing the legitimacy of democratic governments. It must be noted, however, that despite these transformations, Indigenous Peoples still face many challenges, including necessary changes in the public policy. A constitution should safeguard and promote Indigenous rights. For this task, states are obliged through constitutional law to formulate the necessary policies, including relevant laws, programs and institutional frameworks for achieving them. Following the conventional view, public policy is often described as ‘what governments do, why they do it, and what difference it makes’ (Dye, 2017, p. 2). In this perspective, policies are decisions made about taking or not taking a certain course of action by a state authority, with particular goals in mind. Public policy can also be understood as the outcome of compromises reached through dialogue and negotiations between different interest groups beyond government authority (Maddison & Denniss, 2009). A constitutional framework is generally understood as a political institution through which policymaking is constrained. Nevertheless, it is important to emphasise that constitutions must also be understood as a framework document for guiding the stages of policymaking processes, including the meaningful participation by Indigenous Peoples and other minority groups themselves (MacPherson & Midgley, 1987). Movements of Indigenous Peoples and other disadvantaged groups around the globe have been one of the factors in many such constitutional and policy reform processes. Features of these movements vary from country to country due to the diversity of Indigenous Peoples and their specific historical circumstances, including their demographic situation. Similarly, the adoption of constitutional and other legislative provisions varies in the ways they seek to recognise and safeguard the rights of Indigenous Peoples and other minority groups. Depending upon a country’s history, circumstances and existing constitutional provisions, Indigenous Peoples’ demands for constitutional reform may differ. Nevertheless, such demands share some basic commonalities. Apart from the country-specific constitutional history, Indigenous Peoples’ demand for constitutional reform generally draws from the Universal Declaration of Human Rights and subsequent human rights treaties on the civil, political, economic, social and cultural

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rights of each individual. The rights of Indigenous Peoples, however, are not limited to general human rights and minority rights. The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) and the International Labour Organization (ILO) Convention No. 169 articulate the rights specific to Indigenous Peoples. Historic injustice is an important normative justification for international standards concerning the rights of Indigenous Peoples, including colonisation and dispossession from traditional lands, territories and resources, along with the denial of Indigenous rights to development in accordance with their own needs and interests. Indigenous Peoples’ rights are mostly formulated as collective rights, and they differ with regard to rights over land and territories. The right to self-determination within the framework of the state also makes Indigenous Peoples’ rights distinct. These rights are regarded as the minimum standards necessary for the survival, dignity and wellbeing of Indigenous Peoples. Through the arguments made by Indigenous Peoples’ movements (Bijoy, Gopalakrishnan & Khanna, 2010; Davis, 2017; Fisher, 2014; Rousseau, 2011; Tamang, 2022; Van Cott, 2002), as well as through ongoing international dialogue, several shared reform agendas can be identified. At the foundational level, Indigenous Peoples aim to reclaim Indigenous constitutionalism, rooted in lifeworlds constituted of land, language, knowledge, skills, labour and the earth itself (Mills, Drake & Muthusamipilla, 2017; Randazzo, 2023). To a certain degree, Indigenous constitutionalism is incommensurable with the liberal conception of constitutionalism. Nevertheless, there is still a need for dialogue and accommodations. The following issues provide a guide for how liberal constitutions may be reformed to safeguard the rights of Indigenous Peoples. I categorise Indigenous Peoples’ issues and demands for constitutional reform into eight broad categories: 1. Recognition of cultural identity and citizenship. This entails constitutional provisions that recognise cultural diversity within a specific jurisdiction and identify Indigenous Peoples in line with their own self-identification. 2. The right to equality and non-discrimination. This second category is a most important concern. 3. Right to self-government. This third category refers to the right to self-government through political, territorial or administrative autonomy. This is a key to the realisation of the right to self-determination within the structure of the state and accommodates multiple Nations. 4. Political participation. The fourth major demand is political participation and representation. 5. Collective land rights. Ensuring Indigenous Peoples’ collective rights over their ancestral territories, land and natural resources forms the fifth concern of constitutional reform. 6. Right to livelihood. The sixth area that requires attention in constitutional provision is ensuring Indigenous Peoples’ right to economic wellbeing, including

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their traditional livelihood mechanisms and access to health, educational and vocational training services. 7. Freedom of spiritual practices and linguistic rights. Indigenous Peoples demand that the Constitution guarantees their rights to maintain and develop their cultures, cultural identities and practices while participating in the development process. 8. Recognition of customary law. The eighth issue concerns the constitutional recognition of Indigenous legal systems and customary laws. This is linked to the concept of legal pluralism and recognition of Indigenous constitutionalism. What follows in this chapter is a discussion of Indigenous Peoples’ concerns regarding constitutional reform and related public policy and offers a brief comparative case of three countries on how Indigenous rights are accommodated or omitted. It describes Indigenous Peoples’ advocacy in 2015 for the making of a new Constitution of Nepal and its outcomes. For a simple comparative view, a brief overview of the provisions in the constitutions of India and Bolivia is also presented. Based on these cases, I suggest that there are certain encouraging trends in the constitutional recognition of Indigenous Peoples’ rights, but I also caution that these groups and Nations still face serious barriers from both dominant nationalist legacies and the homogenising paradigm in constitutionalism.

INDIGENOUS PEOPLES’ STRUGGLE FOR CONSTITUTIONAL REFORM IN NEPAL Indigenous Peoples’ movements for constitutional recognition of their rights as Nations have intensified in recent years worldwide. Colombia, Bolivia, Ecuador, Panama and Venezuela are countries at the forefront of the movement for constitutional reform in Latin America (Andolina, 2003; Fisher, 2014; Rousseau, 2011; Van Cott, 2010). Similar voices are also being raised in the Asian continent from the Philippines, Malaysia and Bangladesh to Nepal (Bhattacharyya, 2010; Davis, 2017; Tamang, 2006; Williams, 2014). Canada and Australia have a vibrant debate on how their constitutions recognise and accommodate the rights of First Nations (Borrows, 2010; King & Pasternak, 2018; Randazzo, 2023). Indigenous Peoples’ struggle for constitutional accommodation in Nepal over the past two decades is a recent example of such movements. Nepal went through a long process of making a new constitution from 2008 to 2015. Nepal is a landlocked country located on the southern slope of Central Himalaya in South Asia. It was ruled by an autocratic monarchy for two and a half centuries since its formation in the mid-18th century. King Prithvi Narayan Shah, who belonged to the Hindu upper caste Kshatriya lineage from one of the small kingdoms, conquered the other small polities and Indigenous areas through a military campaign (Whelpton, 2005). The conquest and subsequent rule dominated by the Hill Hindu Upper Caste (Lawoti, 2005) resulted in the end of Indigenous Peoples’ political autonomy, dispossession

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of land and deterioration of culture. Caste and ethnicity-based discrimination were institutionalised during the 19th century (Höfer, 1979). Contrary to the official narrative, which describes the geographic expansion to form the state of Nepal as unification, Indigenous Peoples understand the process as one of conquest and internal colonisation. The effects of the rule during this period, characterised by feudal, caste/ethnicity-based discrimination, was detrimental to Indigenous societies and other minorities. Indigenous Peoples in Nepal are referred to as Adivasi Janajati or Indigenous Nationalities and were officially recognised by the National Foundation for Development of Indigenous Nationalities Act in 2001. The Indigenous population comprises approximately 36% of the total population in the country, with more than 59 cultural groups with rich linguistic diversity. Other disadvantaged groups and minorities include Madhesi, Dalit and Muslim communities, with approximately 15%, 13% and 4% of the total population, respectively. In 1991, Indigenous groups founded a pan-Indigenous umbrella organisation called the Nepal Federation of Indigenous Nationalities (NEFIN) to reclaim their rights. Three decades of Indigenous movements for social justice in Nepal had foregrounded these issues in public deliberation. In 2006, a massive peoples’ movement enabled the Maoists and the government to end the armed conflict by signing the Comprehensive Peace Agreement (CPA). Following the CPA, the Interim Constitution (IC) was promulgated in 2007. In both the CPA and IC, commitments were made to address issues of equality, justice and non-discrimination through the restructuring of the state. Creating a new constitution with elected representatives in the Constituent Assembly (CA) was the next step. The making of the new Constitution in 2015 required a significant departure from the previous one in terms of transforming its structure and value. Nepal was on the journey from kingship to a republic, from a centralised and unitary country to a federal state and from a Hindu kingdom to a secular nation-state (Ghai & Cottrell, 2011; Hachhethu, 2017). Recognition of the rights of Indigenous Peoples was identified as one of the central themes in the task of transforming Nepal. Indigenous Peoples advocated for the constitutional recognition of their rights through various avenues. These included civil society involvement through NEFIN, the formation of political parties and litigation measures. The formation of NEFIN was one of the milestones in the history of Indigenous advocacy for the rights of the Indigenous Peoples in Nepal. NEFIN and its member Indigenous Peoples’ Organizations staged rallies, street demonstrations, strikes and public deliberation during the process of constitution-making. A Struggle Committee was formed in 2007 to ensure that the constitution-making and state restructuring processes recognise the rights of Indigenous Peoples. During this period, Indigenous Peoples also organised themselves in several political parties to engage in the political process, including the election of the CA. The political parties included the Janmukti Party, the Mongol National Organization, the Tamsaling Rastriya Dal and the Napa Rastriya Party, among others. The third avenue of the battle was through legal measures. The Lawyers Association for Indigenous

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Peoples’ Human Rights (LAHURNIP) was actively involved in litigation measures, filing cases against the government demanding the implementation of international human rights laws ratified by Nepal on the rights of Indigenous Peoples. Indigenous women were equally active in the process of constitution-making through their own organisation, the National Indigenous Women’s Forum. More specific demands in the drafting of the new Constitution to address Indigenous Peoples’ political rights came from the Indigenous Peoples Caucus in the first CA (CA-I). On 18 July 2009, a caucus was formed by 176 members of the CA belonging to different political parties but who all came from an Indigenous background. Although Indigenous CA members were affiliated with different political parties, they expressed their commitment to working together towards the incorporation of Indigenous Peoples’ issues in the new Constitution. This was a pioneering initiative in deliberative democracy in Nepal. Through the process of constitution drafting, the caucus made a concerted effort to inform the CA committees and the CA body and engaged in dialogue with the wider public. One of the important pieces of work that the caucus did was to undertake a detailed review of the reports of all committees from an Indigenous rights perspective. On 23 February 2011, they submitted their 188-page-long proposal to the chair of CA-I, in which they detailed each article and sub-article that needed to be added, reworded or deleted.1 The proposal included a comprehensive list of the concerns of Indigenous Peoples and other marginalised groups, such as Dalit, Madhesi, women and religious minorities.

AFFIRMATION AND DENIAL OF INDIGENOUS CONCERNS The first CA was held on 10 April 2008. Unfortunately, on 28 May 2012, CA-I was dissolved without completing its work. The second CA (CA-II) election took place on 19 November 2013. On 20 September 2015, the new Constitution was finally promulgated. The CA-I had done a significant job in terms of affirmation of Indigenous concerns. The reports of the CA-I committees made several recommendations that were directly relevant to the respect and protection of the rights of Indigenous Peoples and minorities. CA-II, however, was disappointing. The new Constitution promulgated in 2015 by and large postponed or denied the Indigenous proposals.

1 Sambidhan Sabha BisayagatSamitiharukoprarambhikmasyaudapratibedanma Adivasi JanajatiSabhasad Sabha (Kakas) koSamsodhan, parimarjantathatippani, 2067 [Amendment, Revision and Comments on the various Subject Committees of Constituent Assembly by Adivasi JanajatiSabhasad Sabha (Kakas)] (2011). The caucus also presented its revision proposal on the draft of the Constitution in July 2011. The report is titled NepalkoSambidhanma Adivasi JanajatiAdhikarSambandhiAdivasi JanajatiSabhasad Sabha (Kakas) koAbdharanapatra [Concept note of Indigenous Nationalities’ Constituent Assembly Caucus on the Constitution of Nepal].

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The period of CA-I tenure was a productive and optimistic phase in terms of addressing the demands of marginalised communities in Nepal. At the first meeting of the CA-I, held on 28 May 2008, the monarchy was abolished and Nepal was declared a republic, which symbolised the feudal and centralised political system. CA-I had 11 committees working on various themes.2 Engagement of these committees in collecting suggestions from experts and ordinary citizens on the various issues related to constitutional drafting characterised a vibrant moment in the democratic life of the country. Recommendations made by the various CA committees reveal a significant affirmation of Indigenous Peoples’ rights. The Committee on State Restructuring is instructive in this regard. In Clause 3.2, for example, the committee report states, [the] federation, states, local units, and special structures shall protect and preserve Nepal’s national unity, integrity, sovereignty, and country’s long-term interest, overall development, human rights, rule of law, separation of power, control and balance, an equitable and pluralistic society based on ethnic equality, multi-party competitive democratic system and the rights of proportionate and inclusive representation and identity.

Further, the committee recommended that the provision of self-rule and the right to Indigenous self-determination be inscribed in the Constitution. The recommendation reads: ‘The identity, self-rule, and autonomy of the indigenous people and indigenous nationalities living in the state, local unit, and special structure shall be guaranteed’ (Clause 3.3). Affirmation by CA-I on federalism as a way of accommodating diversity is reflected in its decision based on restructuring. The 43-member Committee on State Restructuring in CA-I agreed unanimously on ‘identity and capability’ as the main basis for restructuring the Federal Democratic Republic of Nepal. The basis of identity included five constituting elements: the ethnic/community, linguistic, cultural, geographic and historical continuity of the ethnic groups. The committee passed the proposal to carve out 14 federal units and proposed an autonomous region, special region and protected region for 23 Indigenous minorities.3 Further, due to lingering disagreements, the government formed the State Restructuring Commission with seven experts on 6 December 2011 to refine the proposal. This commission produced its report on 31 January 2012, which recommended 10 provinces in line with the 2 The 11 committees under the CA-I included the Committee on National Interest Protection, Protection of Rights of Minority and Marginalized Communities, Determination of the Basis for Cultural and Social Solidarity, Structure of Legislative Body, Constitutional Bodies, Judiciary, Fundamental Rights and Directive Principles, Natural Resources, Economic Rights and Revenue Distribution, Constitutional Committee, Executive Structure, State Restructuring and Distribution of the State Power. 3 Report on Concept Paper and Preliminary Draft (2010), by Restructuring of the State and Distribution of Power Committee, CA-I proposed (1) Khaptad, (2) Karnali, (3) Jadan, (4) Magarat, (5) Tamuwan, (6) Narayani, (7) Tamsaling, (8) Newa, (9) Lumbini-Avadh-Tharuwan, (10) Sunkoshi, (11) Sherpa, (12) Mithila–Bhojpura–Koch–Madhes, (13) Kirat and (14) Limbuwan.

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agreed bases of identity and capability.4 Both the State Restructuring Committee and the Commission recommended names for the five provinces following Indigenous historical and linguistic heritage. The agenda of representation and participation is condensed into the concept of ‘inclusion’ in the Nepalese context. Reflecting the commitment of the political parties in the CA-I election, the agenda of inclusion was addressed by all committees. The Constitution in the making, as seen in these reports, had high regard for notions of inclusive democracy, an inclusive state and inclusive rule. Social ‘inclusion’ is one of the key terms that appeared in the draft reports submitted by all 11 CA committees. More than 60 entries related to inclusion are identified in these reports. A provision recommended by the Committee on Fundamental Rights (8) under the heading of (27) Rights Regarding Social Justice is an illustrative case. The committee writes in Clause 8.1: Women, Dalits, Madhesis, Indigenous Nationalities (Adivasi Janajatis), minorities and the marginalised, Muslims, the gender and sexual minority community, disabled people, youths, backward classes, farmers and laborers, and oppressed groups, who are socially backward, shall have the right to participate in state structures based on the principles of proportionate inclusion.

The Fundamental Rights Committee on Rights regarding Language and Culture (Clause 17.1) affirmed that ‘every person and community shall have the right to use their own language’. This right is guaranteed to communities and people of the respective communities. The Committee on the Protection of the Rights of Minorities and Marginalized Communities elaborates on the right to language and establishes that ‘all the languages spoken as mother tongues in different parts of Nepal are the languages of the nation and the State shall provide equal treatment to all mother tongues.’ On the right to religious freedom, the Fundamental Rights Committee, in its Clause 11.1, writes, ‘Every person shall have the freedom to profess, practice and preserve his or her own religion in accordance with his or her faith, or to refrain from any religion.’ Although this clause provided no specific provision for Indigenous religious traditions and spiritual practices, the provision on religious freedom ended the past privilege of the Hindu religion in the country. Finally, regarding Indigenous Peoples’ right to natural resources, the Committee on Natural Resources, Economic Rights and Revenue Allocation recommended that first-use rights should be provided to Indigenous, ethnic and other communities in 4 Report of High Level Commission on State Restructuring (2012), recommended 11 provinces including one non-territorial province. The 10 proposed identity and capability-based names are (1) Karnali–Khapdad, (2) Magarat, (3) Tamuwan, (4) Narayani, (5) Tamsaling, (6) Newa, (7) Madhes–Avadh–Tharuwan, (8) Madhes–Mithila–Bhojpura, (9) Kirat and (10) Limbuwan. The three members representing Nepali Congress in the Commission who did not agree with the majority decision submitted a separate report. They proposed six provinces with no specific names.

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natural resources and their use. The committee explained that this clause is necessary as ‘Indigenous, ethnic and local communities are dependent on natural resources.’ The Committee on Fundamental Rights and Directive Principles also recommended constitutional commitments to the provision of basic requirements in education, culture, employment, health and so forth for flourishing human lives for all citizens. The committee recommended various affirmative actions and special measures to achieve equality. The Committee on the Protection of Minorities and Marginalized Communities offered recommendations under the right to equality in Clause 3, which states, provided that the State shall make special arrangements, along with a provision for compensation for victimisation in the past, on the basis of positive discrimination for the protection, development, and empowerment of those who are economically, socially, politically, and educationally backward and those who are poor in health condition by identifying such communities or classes.

The sense of achievement derived from the work of these committees waned dramatically soon after the dissolution of CA-I when the Indigenous agenda faced systematic pushback. While it had been agreed that the CA-II would build on the progress made by the CA-I, unfortunately, this did not happen. Further, the process of decision-making was gradually confined to top political leaders and became increasingly exclusionary (Tamang, 2011). The denial of the voice of Indigenous Peoples and other marginalised communities started within the political parties. The presentation of a joint concept paper by the Nepali Congress and Communist Party of Nepal Unified Marxist-Leninist (CPN–UML) to the chair of the Constitutional Dialogue and Political Committee was a surprise.5 The proposal submitted on 2 November 2014 advocated for seven provinces, mostly with names from existing zones. Although the proposal mentioned that the federal division of the provinces was based on ‘identity and capability’, the recognition of identity that Indigenous Peoples aspired to was erased from the new delineation of the units. The 16-point agreement between the four political parties reached on 8 June 2015 was the ultimate blow to the aspirations of Indigenous Peoples and other marginalised groups. The first point of the agreement stated, ‘the Federal Democratic Republic of Nepal will have eight provinces based on five criteria of identity and four criteria of capability.’ The second point of agreement postponed the task of naming the provinces and stated, ‘[a] two-thirds majority of provincial assemblies will name the provinces.’ This agreement ignored the outcomes of CA-I and postponed Indigenous aspirations for autonomous regions.

5 See the Letter to Chairperson of Constitutional Dialogue and Consensus Committee jointly presented by Nepali Congress/CPN–UML and others (2 November 2014). Signatories include Sushil Koirala, KP Sharma Oli, Surya Bahadur Thapa, Biswendra Paswan, Atahar Kamal Musalman and Chandreshowr Jha.

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The principle of proportional representation, which was thought to have enabled the political parties to bring representatives from hitherto-underrepresented communities, was distorted. Instead of a proportional election system, a mixed electoral system was adopted. Although the new Constitution defined the state as secular, the concept of secularism was explained as the protection of Sanatan Dharma or Hindu religion. Indigenous Peoples’ rights over natural resources that had been recommended by CA-I were scrapped altogether. Further, Indigenous Peoples’ agendas were placed under the Directive Principles of the State, which is merely suggestive with no enforceability. By the time the Draft Constitution reached the voting stage in CA-II, many Articles on Indigenous Peoples’ rights had been omitted, and their wording either fragmented or distorted. On 20 September 2015, President Ram Baran Yadav officially promulgated the Constitution of Nepal 2015 (‘Constitution of Nepal 2015 promulgated’, 2015). This was the moment when the country was also grieving from the devastating 2015 earthquake. The political parties leading CA-II claimed the new Constitution to be the most progressive statute the country ever had. A closer look, however, shows other sides too. Protests against the new Constitution were sparked in different parts of the country. Legal analysis of the new Constitution from the perspective of Indigenous Peoples’ rights found it to be exclusionary on various counts (Rai & Thami, 2016).6 CA-II ignored the long process of deliberation and the agreements that had been reached that would have provided a strong basis for public policy formulation that would accommodate Indigenous Peoples’ concerns. Despite the denial of key issues fundamental to the rights of Indigenous Peoples, the 2015 Constitution of Nepal did take some positive steps concerning democratisation. The Constitution reaffirmed that Nepal is a multi-ethnic, multilingual, multireligious, multicultural country that defines itself as a secular, inclusive, federal democratic republican state (Adhikari, 2020). The constitutional safeguards applicable to all citizens in Nepal, including Indigenous Peoples, are summarised in Table 8.1. Constitutional provisions directly relevant to Indigenous Peoples are few. One of the state policies outlined in Article 51(j.8) under Directive Principles, Policies, and Responsibilities of the State concerning policies regarding social justice and inclusion mentions: making special arrangements to ensure the rights of Adivasi Janajatis (Indigenous ethnic groups) to lead a dignified life with their respective identities, and making them participate in decision-making processes that concern them, and preserving and maintaining the traditional knowledge, skill, experience, culture and social practices of Adivasi Janajatis and local communities.

6 The analysis was carried out by a team consisting of Shankar Limbu, Bhim Rai, Dinesh Kumar Ghale, Nanda Kandangwa, Tanka Bahadur Rai and Ram Hari Shrestha.

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Table 8.1

Constitutional safeguards relevant to all citizens, including Indigenous Peoples

Article 16

Right to live with dignity

Article 18.1

Equality before law

Article 18.2

Prohibition of discrimination on the grounds of origin, religion, race, caste, tribe, sex, economic condition, language or geographical region and ideology

Article 18

Special provisions by law for the protection, empowerment or advancement of the women lagging behind socially and culturally, Dalits, Adivasi, Madhesi, Tharus, Muslims, oppressed class, backward communities, minorities, marginalised groups and others

Article 26.1

Right to religious freedom

Article 31

Right to compulsory and free basic education and free education up to the secondary level

Article 32.1

Right to each person and community to use their language

Article 32.2

Right to every person and community to participate in the cultural life of its community

Article 32.3

Right to each community to preserve and promote its language, script, culture, cultural civilisation and heritage

Article 33

Right to employment

Article 35

Right to health care and access to clean water and hygiene

Article 36

Right to food and protection from a state of starvation resulting from lack of foodstuffs

Article 37

Right to housing

Article 42

Right to social justice

Source:

Constitution of Nepal promulgated, 2015.

Despite the strength of this language, however, this is merely a suggestion as to how state policy is to be made. Another important constitutional measure that may have a positive role in protecting and advancing Indigenous rights is the setting up of the Indigenous Nationalities Commission (INC). In Article 261, the Constitution provides for the establishment of such a commission as a constitutional body. The INC is mandated to make policies concerning Indigenous Peoples and recommendations to the government for its implementation. The Constitution has also made some progress regarding linguistic rights. For example, in Article 6, the Constitution recognises all the mother tongues spoken in Nepal as the national language. Although the Nepali language written in Devanagari script is still the only language of official business in Nepal, Article 6.2 opens space for the use of languages other than Nepali in the provinces. On the use of mother tongue in education, Article 31.5 states, ‘every Nepali community living in Nepal shall have the right to acquire education in its mother tongue up to the secondary level, and the right to open and run schools and educational institutions as provided for by law.’ Similarly, Article 32.3 provides every community the right to preserve and promote its language, script, culture, cultural civilisation and heritage. Despite these positive developments, however, the continued denial of the protections for Indigenous Peoples that had been recommended by CA-I has left the new Constitution incomplete in its ability to accommodate Indigenous rights. Even those constitutional provisions that do affirm the rights of Indigenous Peoples require the

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development of laws and policies to translate them into action. So far, there have been only two noteworthy developments on this front. The first is the Indigenous Nationalities Commission Act of 2017. This Act enabled the establishment of the INC with a mandate to empower Indigenous Nationalities for the protection and promotion of their rights by recognising their history and culture. Another development was the formulation of the Language Commission Act in 2017. In 2021, the Language Commission recommended using the 11 languages as the official languages in provinces in addition to the Nepali language. Among these recommended languages, six (Gurung, Limbu, Magar, Newar, Tamang and Tharu) belong to Indigenous groups. Overall, the process of making necessary policies has been tremendously slow.

THE CONSTITUTION OF INDIA The Constitution of India presents an instructive example with respect to the comparative study of Indigenous Peoples’ rights. Unlike Nepal, the Indian Government refuses to adopt the term ‘Indigenous Peoples’ and maintains that all citizens of the country are Indigenous Peoples of India. Although India has also not ratified ILO Convention No. 169 on Indigenous and Tribal Peoples, the Constitution of India does provide Indigenous Peoples with constitutional safeguards and provisions for socio-economic and political development (Bijoy et al., 2010). Indigenous Peoples in India are officially referred to as Scheduled Tribes (STs). Article 366(25) of the Constitution of India defines STs as ‘such tribes or tribal communities or parts of, or groups within such tribes, or tribal communities as are deemed under Article 342 to be Scheduled Tribes for the purposes of this Constitution.’ The President of India, under Article 342, declares the ST status of a group through a public notification in the state/Union Territory. Although not standardised, ‘distinctive culture’ and ‘backwardness’ are taken as basic defining criteria for ST identification (Ministry of Tribal Affairs Government of India, 2023). According to the 2011 census, the STs number 104,545,716, or 8.6% of the total population of the country (Office of the Registrar General and Census Commissioner, 2011). There are around 700 communities identified as STs in India, spread across different states with varying sizes. In addition to the measures protecting the fundamental rights and freedoms applicable to all citizens, there are also many Articles and two special Schedules of the Constitution of India that directly relate to STs. Articles 366 and 342 deal with the definition of STs. Articles 14 and 15 ensure the right to equality and non-discrimination for all residents of India. Articles 16, 46 and 275 contain safeguards related to educational, economic and public employment for STs, including additional support and funding from the state for Schedule Areas. Articles 25 to 28 include provisions for religious freedom for all Indian citizens. Similarly, Articles 29 and 30 ensure freedom of culture and education. Reserved seats for the STs in political decision-making bodies are one of the salient features of the Indian Constitution (Rao, 1968). The seats for STs (as well as for Scheduled Castes [SCs]) are allocated in the Union Houses of Legislature, State

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Legislative Bodies, Panchayats (Article 243D) and Municipalities (Article 243T). Articles 330(1) and 332, for example, provide for reserved seats for the STs (and SCs) in the legislative bodies of the Union of India and its states, respectively. The number of seats reserved is determined based on the population of STs in the state. The principle is articulated in the following words in Article 330(2): The number of seats reserved in any State [or Union territory] for the Scheduled Castes or the Scheduled Tribes under clause (1) shall bear, as nearly as may be, the same proportion to the total number of seats allotted to that State 2 [or Union territory] in the House of the People as the population of the Scheduled Castes in the State 2 [or Union territory] or of the Scheduled Tribes in the State 2 [or Union territory] or part of the State or Union territory, as the case may be, in respect of which seats are so reserved, bears to the total population of the State 2 [or Union territory].

There are two Schedules (or appendices to the Constitution) that provide special arrangements for the areas inhabited by the STs as Scheduled Areas (Rao, 1968).7 The Fifth Schedule empowers the governors of states to administer the Scheduled Areas. Under the Fifth Schedule, Scheduled Areas are declared by the president in consultation with the governors of the state, who can alter, increase, decrease, incorporate new areas or rescind any orders relating to ‘Scheduled Areas’. General criteria for declaring a Scheduled Area are the size of the area, a predominance of Tribal population and the relative backward status.8 The Fifth Schedule provides some distinct measures to protect and benefit STs in the Scheduled Areas. In particular, the governor of a state that includes Scheduled Areas is empowered to make regulations that (i) prohibit or restrict the transfer of land from STs; (ii) regulate the business of money lending to the members of STs; and (iii) allow the governor to repeal or amend any Act of Parliament or of the legislature of the state that applies to the area in question. As per Article 244, the Fifth Schedule applies to all the states for the administration of Scheduled Areas and STs. The Sixth Schedule, however, is applied to the administration of Tribal areas in the states of Assam, Meghalaya, Tripura and Mizoram. The Constitution provides for the making of Autonomous Districts and Autonomous Regions as well as District Councils, Autonomous Councils and Regional Councils (Article 244(2)) for governing these Tribal territories. These councils are empowered to exercise a range of legislative, judicial and executive powers in governing their territories. Special provisions made in the Constitution for certain north-eastern states also provide an illustrative case for comparison. In Article 371, special status is granted to the states of Nagaland, Assam, Manipur, Sikkim, Mizoram and Arunachal Pradesh. 7 Most of these areas inhabited by the STs were declared Excluded/Partially Excluded Areas during the British colonial period and were administered under the Scheduled District Act 1874 and the Government of India (Excluded and Partially Excluded Areas) Order 1936. 8 These indicators are fairly arbitrary and problematic in themselves for their colonial and assimilationist assumptions.

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The autonomy provided to the STs on religious and social practices, customary law and ownership, and transfer of land and its resources has far-reaching implications regarding Indigenous Peoples’ rights. Further, Article 338A of the Constitution enables the establishment of a National Commission for ST. One of the main duties of the Commission is ‘to investigate and monitor all matters relating to the safeguards provided for the ST under this Constitution or under any other law for the time being in force or under any order of the Government and to evaluate the working of such safeguards (Article 338A(5) (a)).’ Based on the Constitution, the Indian Government has formed various institutions and formulated policies related to STs. The National Commission for STs was created by a constitutional amendment in 2004. The Ministry of Tribal Affairs was constituted in 1999 with the objective of ‘providing more focused attention on the integrated socio-economic development of the most underprivileged sections of the Indian society namely, the STs, in a coordinated and planned manner.’ It has responsibility for overall policy, planning and coordination of programs for the development of STs. Most states with significant ST populations have separate departments or ministries for Tribal welfare. Tribes Advisory Councils is another example of an institution. Paragraph 4 of the Fifth Schedule to the Constitution requires that every state with areas under that Schedule, or any other state whose governor should so direct, must have a Tribes Advisory Council. These councils are expected to advise the governor and to be consulted on policy matters relating to STs. The Scheduled Castes and the STs (Prevention of Atrocities) Act 1989 is aimed at deterring atrocities against STs (and Scheduled Castes). The STs and Other Traditional Forest Dwellers (Recognition of Rights) Act 2006 recognised the rights of STs and other forest dwellers over forests and forest resources. Under the Panchayat (Extension to Scheduled Areas) Act 1996, the state governments across India have amended the state-level Panchayati Raj legislation to make special provisions for panchayats in Scheduled Areas. Other legislation has been formulated at the state level. For example, the Nagaland Village and Area Council Act 1978 is state-level legislation that gives statutory recognition to traditional Village Councils in the governance system. Similarly, the 1967 Odisha (Scheduled Areas) Debt Relief Regulation and the Odisha Scheduled Areas Moneylenders Regulation provide relief to STs from indebtedness, the control of money lending and the setting up of Debt Relief Courts. Despite these legislative advances, however, the full and effective implementation of the Constitution of India and associated policies is still challenging (Xaxa, 2021). Currently, Indigenous Peoples in India face the grave challenge of ever-increasing militarisation, the extraction of natural resources by corporations and ongoing displacement. The Tribal peoples in India continue to demand autonomy and self-determination. For example, in Kerala, tribals have formed their own social organisation, Adivasi Gotra Maha Sabha, to articulate their problems and fight for their rights. Bharat Jan Andolan (the Indian People’s Movement) is another organisation that has mobilised people under the slogan ‘our village, our rule’ (Jojo, Beck,

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Toppo & Renee, 2008). The Tribal Intellectual Collective India, started in 2015, has emerged as an active platform for producing knowledge and public debate on various tribal issues (Ambagudia & Mohanty, 2020). The seven decades of Indian experience since proclamation of the Constitution in 1950 provide rich ground for understanding both the successes and challenges of constitutional transformation and policy implementation in India.

CONSTITUTION OF THE PLURINATIONAL STATE OF BOLIVIA Bolivia offers another example of the strengths and limitations of constitutional reform in the protection of Indigenous Peoples’ rights. In 2009, Bolivia adopted a new Constitution that emerged from the Indigenous movement for state transformation in the preceding decades (Van Cott, 2002). In 2005, Evo Morales, a rural leader, became the first Indigenous president in Bolivia’s history and led the new Constitution-making process. The new Constitution declared the country to be a ‘unitary, social, plurinational, communitarian state governed by the rule of law.’ The concept of plurinationalism derives from the idea that local cultural specificities and peoplehood can be accommodated in the common national citizenship (Gustafson, 2009). Communitarianism recognises that individual and social identities are shaped by community relationships rather than individualism. The Bolivian Constitution is among the world’s most advanced constitutions in terms of the recognition and protection of Indigenous Peoples’ rights. Bolivia is an Indigenous-majority country. The 2001 National Census counted 62% of the Bolivian population aged 15 or over as of Indigenous origin. There are 36 recognised Indigenous Peoples. Quechua (49.5%) and Aymara (40.6%) are the two largest Indigenous groups. Both groups inhabit the western Andes mountains. Others among the 34 Indigenous groups, including Chiquitano (3.6%), Guaraní (2.5%) and Moxeño (1.4%), live in the lowlands of the country. Bolivia achieved independence from Spain in 1809. Most of its history has been characterised by the continued oppression of the Indigenous Peoples and their resistance to the rule, including that of the post-colonial state (Klein, 2011). After decades of political crisis, Evo Morales from the national political party Movement Towards Socialism (Movimiento al Socialismo) was elected president with a campaign to convene a CA to rewrite the Constitution. The new Constitution was debated in the 2006–2007 CA and declared after a referendum in which 61% voted in favour. In 2008, Bolivia ratified ILO Convention No. 169 on Indigenous and Tribal Peoples, having previously adopted the UNDRIP, which was incorporated into its new Constitution in 2009 (Lightfoot, 2016). Chapter IV of the Bolivian Constitution is devoted to the recognition and protection of Indigenous Peoples’ rights. Section 30 defines Indigenous Peoples as, ‘A nation and rural native indigenous people consists of every human collective that shares a cultural identity, language, historic tradition, institutions, territory and world

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view, whose existence predates the Spanish colonial invasion.’ Section 30(III) states, ‘[the] State guarantees, respects and protects the rights of the nations and the rural native Indigenous Peoples consecrated in this Constitution and the law.’ The Constitution recognises the identity and cultural practices of the Indigenous majority. In Section 30(II), it affirms Indigenous rights (Section 30(II)(1)) to be free. Section 30(II)(2) establishes Indigenous rights to live and express their cultural identities, religious beliefs, spiritualties, practices and customs according to their own worldview, and Section 30(II)(9) maintains that their traditional Indigenous teachings and knowledge, traditional medicine, languages, rituals, symbols and dress must be valued, respected and promoted. For identification, the Constitution states (Section 30(II)(3)) that the cultural identity of each member, if they so desire, should be inscribed together with Bolivian citizenship on any identity card, passport or other identification documents with legal validity. The Constitution also recognises the 36 Indigenous languages, along with Spanish, as official languages and provides for intercultural, intracultural and multilanguage education in all educational systems (Section 30(II)(12)). The other important provisions in line with the UNDRIP concern Indigenous Peoples’ right to self-determination and autonomy. Section 30(II) stipulates that Nations and Rural Native Indigenous Peoples have the right to self-determination and territoriality (Section 30(II)(4)); to create and administer their own governance systems, means and networks of communication (Section 30(II)(8)); to practice their political, juridical and economic systems in accord with their world view (Section 30(II)(14)); as well as to participate in the organs and institutions of the state (Section 30(II)(18)). Rights to land, territories and natural resources are other areas that the Constitution guarantees for Indigenous Peoples in Bolivia. Section 30(II) states that Indigenous Peoples have the right to the collective ownership of land and territories (Section 30(II)(6) to collective ownership of the intellectual property in their knowledge sciences and learning, as well as to its evaluation, use, promotion and development (Section 30(II)(11)); to participate in the benefits of the exploitation of natural resources in their territory (Section 30(II)(16)); to autonomous Indigenous territorial management; and the exclusive use and exploitation of renewable natural resources existing in their territory without prejudice to the legitimate rights acquired by third parties (Section 30(II)(17)). Similarly, in sections 31 and 32, the Constitution provides for the protection of, and respect for, the Nations and the rural native Indigenous Peoples, including Afro-Bolivian groups and those in danger of extinction, in voluntary isolation and not in contact. Finally, in the spirit of Indigenous Peoples’ right to free, prior, informed consent articulated in international human rights instruments, the Constitution guarantees the right for Indigenous Peoples to: be consulted through appropriate procedures, in particular through their institutions, whenever planned legislative or administrative measures may affect them. Within this framework, the right to mandatory prior obligatory consultation by the State, in good faith and

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upon agreement, in connection with the exploitation of non-renewable natural resources located in the territory they inhabit, shall be respected and guaranteed. (Section 30(II)(15))

Over the past decade, the Bolivian state has formulated and enacted public policies based on the framework provided by the Constitution concerning autonomy, resource distribution, customary justice and self-management for the empowerment of Indigenous Peoples (Hammond, 2011; Schilling-Vacaflor, 2011). Assessment of these policies and their implementation is beyond the scope of this chapter, but two examples can assist in understanding the process. The first concerns the creation of Indigenous autonomies. Pursuant to Article 294(II) of the Constitution, in 2010, the Third Transitory Provision of Law No. 4021 was passed, which established that through a referendum, the Indigenous and Native Peoples could vote to turn their existing municipal administrative units into Indigenous autonomies. The process of formation of Indigenous autonomies is now underway, and so far, three of 36 autonomies have been formed (Tamburini, 2021). Another noteworthy law passed by Bolivia is The Law of Mother Earth. This law is based on the principle of equality of nature and human beings and maintains that Mother Earth is to be considered a subject of rights. The law is also premised upon the concept of vivir bien (living well). The Law on Mother Earth, approved under Law No. 071, operationalises the constitutional provision of consultation of the Indigenous Nations and Peoples through prior and informed consent on the mobilisation of natural resources. The Bolivian experience shows that more substantial constitutional transformation is possible and desirable to ensure the rights of Indigenous Peoples and re-envision the state as plurinational where a sense of shared unity coexists with pluralities. The Bolivian Constitution is a good example of how international instruments such as UNDRIP can be implemented through constitutional transformation. A brief review of the Constitution shows that it has provided an exemplary framework for public policies that respect and protect Indigenous Peoples’ rights. The implementation of public policies, nevertheless, remains a challenging endeavour.

CONCLUSION Constitutional transformation is critical to ensure the respect and protection of Indigenous Peoples’ rights. As constitutions provide a basic foundation for public policymaking, such transformation is elemental in translating principles into reality. In this chapter, I have outlined Indigenous Peoples’ struggles in the making of a new Constitution in Nepal. The country’s journey towards a new Constitution and associated state restructuring began with a promise to ensure the rights of Indigenous Peoples and other marginalised communities. The state promised that Indigenous identities would be recognised and respected, Indigenous political autonomy ensured, and that policies of inclusion would be institutionalised. The new Constitution, however, has forgotten many of these promises and overlooked the very purpose of the new Constitution. While dominant communities celebrated,

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Indigenous Peoples burned the Constitution as discriminatory and demanded it be rewritten. Mass protests against the new Constitution in Madhes and Tharu region in southwestern Nepal became violent, and the government used brutal force to suppress them. Fundamentally, the new Constitution lacked the consent and acceptance of the Indigenous Peoples and other marginalised groups. Despite these disappointments, the new Constitution of Nepal has some salient features in terms of its promises of equality, non-discrimination and protection of the rights of the marginalised, including Indigenous Peoples. Yet when the achievements in Nepal’s Constitution are compared with those of India and Bolivia, it is clear that there is still a long way to go. India, despite its reluctance to come to terms with international standards, has provided constitutional measures to ensure autonomy to its STs, at times with far-reaching implications. Bolivia is at the forefront of constitutional transformation and should be an example for other countries. Constitutional transformation for the protection of Indigenous rights involves restructuring the state for power-sharing and reconstituting its value for a new kind of state-and-society relationship. This is a challenging task, but such transformation is a crucial step for enabling public policies that ensure the realisation of Indigenous Peoples’ rights within the framework of a liberal state.

REFERENCES Adhikari, B. (Ed.). (2020). A treatise on the constitution of Nepal 2015. Kathmandu, Nepal: Vajra Publications. Ambagudia, J. & Mohanty, S. (2020). Adivasis, integration and the state in India: Experiences of incompatibilities. International Review of Social Research, 9, 108–121. Andolina, R. (2003). The sovereign and its shadow: Constituent assembly and indigenous movement in Ecuador. Journal of Latin American Studies, 35, 721–750. Barber, N. W. (2018). The principles of constitutionalism. Oxford, UK: Oxford University Press. Bhattacharyya, H. (2010). Federalism in Asia: India, Pakistan and Malaysia. New York, NY: Routledge. Bijoy, C. R., Gopalakrishnan, S. & Khanna, S. (2010). India and the rights of Indigenous Peoples: Constitutional, legislative and administrative provisions concerning Indigenous and tribal peoples in India and their relation to international law on Indigenous Peoples. Chiang Mai, Thailand: Asia Indigenous Peoples Pact Foundation. Borrows, J. (2010). Canada’s indigenous constitution. Toronto, Canada: University of Toronto Press. Comparative Constitution Project. (2023). Timeline of constitutions. Retrieved on 9 January 2022 from https://​c​omparative​constituti​onsproject​.org/​chronology/​ Constitution of Nepal 2015 promulgated. (2015). The Kathmandu Post, 20 September. Retrieved on 9 January 2022 from https://​kathmandupost​.com/​valley/​2015/​09/​20/​people​ -celebrate​-constitution​-promulgation​-in​-photos Davis, M. C. (2017). Strengthening constitutionalism in Asia. Journal of Democracy, 28, 147–161. Dinghra, A. (2014). Indian constitutionalism: A case of transformative constitutionalism. Asian Journal of Multidisciplinary Studies, 2, 135–139. Dye, T. R. (2017). Understanding public policy. Boston, MA: Pearson.

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Fisher, E. (2014). Constitutional struggle and Indigenous resistance in Latin America: The case of Panama. Latin American Perspectives, 41, 65–78. Gargarella, R. (2017). Constitutional changes and judicial power in Latin America. In T. G. Falleti & E. A. Parrado (Eds.), Latin America since the left turn (pp. 189–213). Philadelphia, PA: University of Pennsylvania Press. Ghai, Y. & Cottrell, J. (2011). Federalism and political inclusion: Choices facing Nepal. In R. Saxena (Ed.), Varieties of federal governance (pp. 282–312). New Delhi, India: Foundation Books. Gustafson, B. (2009). Manipulating cartographies: Plurinationalism, autonomy, and indigenous resurgence in Bolivia. Anthropological Quarterly, 82, 985–1016. Hachhethu, K. (2017). State restructuring and Federalism in Nepal. In T. Thami & G. Chhantyal (Eds.), Nepal ma Adivasi Adhikar: Nitigat Abastha, Chunauti ra Abasarharu [Indigenous Peoples’ right in Nepal: Policies, challenges, and opportunities] (pp. 367–381). Kathmandu, Nepal: LAHURNIP. Hammond, J. L. (2011). Indigenous community justice in the Bolivian Constitution of 2009. Human Rights Quarterly, 33, 649–681. High Level Commission on State Restructuring (2012). Recommendation on State Restructuring. Kathmandu, Nepal: High Level Commission on State Restructuring. Höfer, A. (1979). The caste hierarchy and the state in Nepal: A study of the Muluki Ain of 1854. Innsbruck, Austria: Universitatsverlag Wagner. Jojo, B. K., Beck, H., Toppo, E. & Renee, D. S. (2008). Tribal empowerment and electoral politics. Mumbai, India: Tata Institute of Social Sciences. King, H. & Pasternak, S. (2018). Canada’s emerging Indigenous rights framework: A critical analysis. Toronto, Canada: Ryerson University. Klein, H. S. (2011). A concise history of Bolivia. New York, NY: Cambridge University Press. Lawoti, M. (2005). Towards a democratic Nepal: Inclusive political institutions for a multicultural society. Thousand Oaks, CA: Sage. Lightfoot, S. R. (2016). Global indigenous politics: A subtle revolution. New York, NY: Routledge. MacPherson, S. & Midgley, J. (1987). Comparative social policy and the Third World. Brighton, Australia: Wheatsheaf Books. Maddison, S. & Denniss, R. (2009). An introduction to Australian public policy: Theory and practice. New York, NY: Cambridge University Press. Mills, A., Drake, K. & Muthusamipilla, I. T. (2017). An Anishinaabe constitutional order. In P. Smith (Ed.), Reconciliation in Canadian courts: A guide for judges to Aboriginal and Indigenous law, context and practice. Ottawa, Canada: National Judicial Institute. Retrieved on 9 January 2022 from https://​digitalcommons​.osgoode​.yorku​.ca/​scholarly​_works/​2695 Ministry of Tribal Affairs Government of India. (2023). Constitutional and legal matters. Retrieved on 9 January 2022 from https://​tribal​.gov​.in/​Clm​.aspx Office of the Registrar General and Census Commissioner. (2011). 2011 Census. Ministry of Home Affairs, India. Retrieved on 9 January 2022 from https://​censusindia​.gov​.in/​census​ .website/​ Pogany, I. (1996). Constitution making or constitutional transformation in post-communist societies? Political Studies, 44, 568–591. Rai, S. K. & Thami, T. (Eds.). (2016). Adivasi Janajati Adhikarko sandarbhama ‘Nepal ko Sambidhan’ ko Adhyayan tatha Bisleshan [Analysis of Constitution of Nepal in reference to Indigenous Peoples’ rights]. Kathmandu, Nepal: LAHURNIP. Randazzo, M. S. (2023). Constitutionalism of Australian First Nations: A comparative study. New York, NY: Routledge. Rao, B. S. (1968). The framing of India’s Constitution. New Delhi, India: Indian Institute of Public Administration.

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Restructuring of the State and Distribution of Power Committee (2010). Report on Concept Paper and Preliminary Draft. Kathmandu, Nepal: Constituent Assembly. Rousseau, S. (2011). Indigenous and feminist movements at the constituent assembly in Bolivia: Locating the representation of Indigenous women. Latin American Research Review, 46, 5–28. Schilling-Vacaflor, A. (2011). Bolivia’s new constitution: Towards participatory democracy and political pluralism? European Review of Latin American and Caribbean Studies, 90, 3–22. Smith, R. M. & Beeman, R. R. (2020). Modern constitutions. Philadelphia, PA: University of Pennsylvania Press. Strakosch, E. (2015). Neoliberal Indigenous policy: Settler colonialism and the ‘post-welfare’ state. New York, NY: Palgrave Macmillan. Tamang, M. S. (2022). Indigenous People’s struggle for political rights and recognition: Constitution-making and federal design. In P. Kharel (Ed.), Reading Nepali transition (2006–2015) (pp. 163–194). Kathmandu, Nepal: Martin Chautari. Tamang, S. (2011). Exclusionary processes and constitution building in Nepal. International Journal on Minority and Group Rights, 18, 293–308. Tamang, S. R. (Ed.). (2006). Nepalko Sandarbhama Rajyako Punsamrachana [State restructuring in Nepalese context]. Kathmandu, Nepal: Samana Prakashan. Tamburini, L. (2021). Bolivia. In D. Mamo (Ed.), The Indigenous world 2021 (pp. 338–345). Copenhagen, Denmark: The International Work Group for Indigenous Affairs. Thomson, S., Barragán R, R., Albó, X., Qayum, S. & Goodale, M. (Eds.). (2018). The Bolivia reader: History, culture, politics. Durham, NC: Duke University Press. Tully, J. (1995). Strange multiplicity: Constitutionalism in an age of diversity. Cambridge, UK: Cambridge University Press. Uhr, J. (2006). Constitutions and rights. In B. G. Peters & J. Pierre. (Eds.), Handbook of public policy (pp. 169–185). London, UK: Sage. Van Cott, D. L. (2002). Constitutional reform in the Andes: Redefining Indigenous–State relations. In R. Sieder (Ed.), Multiculturalism in Latin America: Indigenous rights, diversity, and democracy (pp. 45–73). New York, NY: Palgrave Macmillan. Van Cott, D. L. (2010). Indigenous Peoples’ politics in Latin America. Annual Review of Political Science, 13, 385–405. Whelpton, J. (2005). A history of Nepal. Cambridge, UK: Cambridge University Press. Williams, S. H. (2014). Social difference and constitutionalism in Pan-Asia. Cambridge, UK: Cambridge University Press. Xaxa, V. (2021). Tribal politics in India: From movement to institutionalism. In J. Ambagudia & V. Xaxa (Eds.), Handbook of tribal politics in India (pp. 29–42). New Delhi, India: Sage.

9. Indigenous land and water policy Justin McCaul

INTRODUCTION As former Special Rapporteur on the Rights of Indigenous Peoples James Anaya explains, land and natural resources are fundamental to Indigenous People’s1 cultural survival and, by implication, self-determination (Anaya, 2004, p. 141). Land and water are fundamental to Indigenous self-government, nation building and socioeconomic independence. They are the glue that binds the legal and political claims of Indigenous People—for self-government, self-determination and sovereignty—together. The United Nations Declaration on the Rights of Indigenous People (UNDRIP) articulates the rights of Indigenous People in relation to their lands, territories, waters and coastal seas, and other resources. Article 25 reads: Indigenous Peoples have the right to maintain and strengthen their distinctive spiritual relationship with their traditionally owned or otherwise occupied and used lands, territories, waters and coastal seas and other resources and to uphold their responsibilities to future generations in this regard. (United Nations, 2007; see Articles 25–32)

Calls to include Indigenous People and our knowledge in global biodiversity conservation efforts have been prominent since the 1992 Earth Summit in Brazil and the subsequent Rio Declaration. Principle 22 of the Declaration states: Indigenous People and their communities and other local communities have a vital role in environmental management and development because of their knowledge and traditional practices. States should recognize and duly support their identity, culture and interests and enable their effective participation in the achievement of sustainable development. (Antrim, 2019, p. 189)

While delegates of the Earth Summit were meeting in the first weeks of June 1992, the High Court of Australia delivered the historic Mabo decision (3 June 1992) 1 In this chapter, I use the term ‘Indigenous People’ on the assumption readers will be an international audience seeking an introductory discussion of land and water policy and Indigenous People. Australia has two Indigenous Peoples – Aboriginal people and Torres Strait Islanders. However, in Australia, while the terms ‘Aboriginal’ and ‘Torres Strait Islander’ are still widely used, there is a growing tendency to use names that are more specific to the territorial, cultural and language affiliations of groups such as my own group, Mbarbarum in far north Queensland, or Ngunnawal, the Traditional Owners of the land where I live and work in Canberra, Australia.

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declaring the pre-colonial rights of Australia’s Indigenous People was now both recognised and protected under Australian law. These two seemingly unconnected events have together been a catalyst for Indigenous People in Australia to demand a greater role in land and water policymaking. Yet since Mabo and the Earth Summit, and despite some strong public support for Indigenous-led conservation, Australian governments have struggled to meaningfully include Indigenous People’s perspectives, knowledges and aspirations in land and water policymaking. Indigenous people in Australia, as in other settler colonial states, may have more access to their lands and more engagement with governments, but this does not guarantee the power to influence decision making. Struggles over land and water issues permeate the relationship between Indigenous People and the State. The range of issues relating to Indigenous People’s rights to their traditional lands and waters are many and all cannot be covered in a single chapter. Here, I focus on Indigenous People’s efforts to exert greater control over land and water policy through the theory of deliberative democracy, using Australia as an example. In particular, the chapter highlights how Indigenous People engaging in Indigenous-led environmental management (known as Caring for Country in Australia) are exercising a degree of self-governance. Recognition of native title in Australia provides a unique (sui generis) legal right for Indigenous People in relation to land. What is less discussed is how this legal recognition creates a unique democratic space for greater engagement and deliberation between Indigenous People and the state on matters of public policy. Advocates of deliberative democracy argue democracy and decision making are enhanced through greater use of ‘talk-centric’ processes to compliment outcomes determined via voting, because deliberative democracy emphasises the importance of the communicative processes of opinion and will formation that precede (or follow) voting (Chambers, 2003; Elstub and McLaverty, 2014). One of the defining characteristics of deliberative democracy is the principle of reason-giving. In representative democracy, consent is said to have been secured through the procedure of voting. However, relying upon voting to resolve political disagreement is one of the central deficits of representative liberal democracy because of the disconnect between citizens’ involvement in the political decision-making process and the decision-making process of the parliament. Deliberative democracy does not seek to replace voting but to complement it by insisting parties resolve disagreement through mutual reasoning. As Gutmann and Thompson (2004, p. 3) argue: Most fundamentally, deliberative democracy affirms the need to justify decisions made by citizens and their representatives. Both are expected to justify the laws they would impose on one another. The first and most important characteristic of deliberative democracy is its reason-giving requirement.

Furthermore, the reasons that parties exchange should appeal to principles that individuals who are trying to find fair terms of cooperation cannot reasonably reject but should be accepted by free and equal persons seeking fair terms of cooperation.

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Deliberative democracy advocates argue that the moral basis for reason-giving is that people ‘should be treated not merely as objects of legislation, as passive subjects to be ruled, but as autonomous agents who take part in the governance of their own society’ (Gutmann & Thompson, 2004, p. 3). This is perhaps most important for Indigenous People, who often form an electoral minority in representative democracies. In essence, deliberative democracy insists that citizens should have greater direct roles in decision-making. This ideal strongly aligns with free, prior and informed consent as articulated in the United Nations Declaration on the Rights of Indigenous People (UNDRIP) (United Nations, 2007). Under native title legislation in Australia, Indigenous People are afforded a procedural ‘right to negotiate’ in relation to activities likely to affect their native title rights and interests. Despite the weakness of the ‘right to negotiate’ provisions (Indigenous People have no veto power under native title), Indigenous People can nonetheless voice their views and preferences in state planning and policy processes. In doing so, many Indigenous groups use the policymaking process in relation to land and water management as a mechanism for greater exercise of Indigenous self-governance. Australia is a wealthy nation with a high standard of living, world-class education and research, democratic governance and strong systems of public administration, and the kinds of citizen access to resources and technology expected of a modern, advanced nation state. The problem of incorporating Indigenous rights in public policymaking is not a lack of resources or know-how but a lack of political will. Realising the limits of Australia’s politicians and political institutions on the questions of sovereignty and self-determination, many Indigenous groups focus on the domain of planning and policy to renegotiate their political relationship with government. As others argue, reclaiming planning spaces is to reclaim Indigenous self-governance (Nikolakis et al., 2019; Walker et al., 2013). This chapter begins with a summary of international and Australian perspectives on the extent and importance of Indigenous-held lands and waters. The following section discusses Australia’s particular paternalistic approach to Indigenous affairs policy. It then shows how, through native title, Indigenous People have regained ownership and management responsibility for large areas of Australia. It concludes by discussing the practice of Caring for Country as an important step towards greater Indigenous self-government.

INDIGENOUS PEOPLE’S LANDS AND WATERS IN AUSTRALIA AND THE WORLD A 2018 study found that across 87 countries or politically defined territories, encompassing 38 million square kilometres—or about one quarter of the Earth’s land surface—Indigenous People hold either tenure rights or exercise some form of management responsibility. Using publicly available data (maps, publications, cadastral records), Garnett et al. (2018) claim that this study was the first time the extent of

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Indigenous held and managed lands had been aggregated on a global scale. As they explain, compiling reliable data on Indigenous People’s land holdings has significant implications not only for securing Indigenous People’s rights to lands, but also for the effective conservation and management of a significant proportion of terrestrial global biodiversity (Garnett et al., 2018). By mapping the extent to which Indigenous People are involved in managing areas of high conservation value, the authors hope to ‘contribute to global policy recognition of the conservation attributes of Indigenous People’s lands, including the Strategic Plan for Biodiversity 2011–2020 and its successor, the UN Sustainable Development Goals’ (ibid.). Defining land management as: the process of determining the use, development and care of land resources in a manner that fulfils material and non-material cultural needs, including livelihood activities such as hunting, fishing, gathering, resource harvesting, pastoralism and small scale agriculture and horticulture[,]

The study claims that despite constituting less than 5 per cent of the world’s population Indigenous People manage, or have rights to manage, much of the world’s most sparsely populated, ecologically intact places.2 In December 2022, representatives from 188 governments, civil society, conservation and Indigenous groups gathered for the 15th Conference of the Parties (COP 15) at the 2022 UN Convention on Biological Diversity (CBD). Billed as ‘the biggest biodiversity conference in a decade’, the aim of the conference was to reach a global agreement on protecting and restoring nature. Among the several key outcomes was a commitment by participating states to protect 30 per cent of the Earth’s land and sea by 2030 (30×30) (COP15: Nations Adopt Four Goals, 23 Targets for 2030 in Landmark UN Biodiversity Agreement, 2022). In the lead-up to COP 15, the United Nations Environment Program (UNEP) acknowledged the important role played by Indigenous communities and their ecological knowledge and practices in relation to the overall aims of the conference. The UNEP contended: There’s a growing realization among environmental advocates that the spread of indigenous [sic] practices is also crucial to the planet’s future. An emerging body of research suggests that traditional techniques, some millennia old, for growing food, controlling wildfires and conserving endangered species[,] could help arrest the dramatic decline of the natural world. (UNEP, 2022)

At the conclusion of COP15, the International Indigenous Forum on Biodiversity (IIFB) issued a press release welcoming the outcomes of the event, stating:

2 The authors of this report estimate globally Indigenous People constitute approx. 370 million people. However, in 2022, the United Nations Environment Program suggests globally, the number of Indigenous People is approx. 476 million.

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The IIFB celebrates the timely recognition of Indigenous People and local communities’ contributions, roles, rights, and responsibilities in the Global Biodiversity Framework. We have spoken and you have heard us[;] let us now put those words into action. (International Indigenous Forum on Biodiversity (IIFB), 2022)

Not all agreed. Cultural Survival, a US-based not-for-profit organisation that advocates for ‘Indigenous Peoples’ rights and supports Indigenous communities’ self-determination, cultures and political resilience’ issued a statement saying that Indigenous People’s access to power does not guarantee the power to influence decision making. ‘As we personally witnessed the deliberations at COP15, Indigenous Peoples still have yet to find a seat at the table as equals as all decisions continue to be made by powerful colonial states’ (Cultural Survival, 2022). There is a clear tension between commitments that government and non-government organisations make at international fora, to engage equitably with Indigenous People and utilise their traditional ecological knowledge in biodiversity conservation and a genuine role in decision making in relation to land. Australia is no exception to this, with Indigenous People now holding rights to land through native title and statutory state-based land rights legislations that accounts for almost 60 per cent of the Australian land mass. Research on Indigenous-led land and water management, Indigenous-protected areas management, natural resource and cultural management public policy is prolific. Notable scholars have published extensively on Indigenous land, water and natural resource management and the challenges and opportunities for increasing the participation of Indigenous People in environmental policymaking including Altman (Altman, 2014; Altman et al., 2007) and Kerins (Altman & Kerins, 2012), Hill et al. (2013), Ens & McDonald (2012), Weir et al. (2011), and Bauman & Smyth (Bauman et al., 2013; Bauman & Smyth, 2007; Smyth, 2006). Further, regions such as northern Australia and the Murray Darling Basin (MDB) in which tensions relating to land, water and Indigenous rights are acute, have also been of interest to researchers (Bark et al., 2015; NAILSMA Indigenous Water Policy Group, 2012; Putnis et al., 2008; Stoeckl et al., 2016; Woinarski et al., 2007) see Weir in Connell & Grafton, 2011; Davis, 2021; Hartwig et al., 2020). Others have recognised that the challenges Indigenous People face in land and water policy lie not just with governments but also with the field of professional planning. These scholars have criticised planning professionals and industry bodies for their lack of engagement with Indigenous People and lack of understanding of the responsibilities that looking after Country entails (Jackson et al., 2017; Porter, 2017; Wensing, 2018; Wensing & Porter, 2016). In 2020, the Our Knowledge, Our Way in Caring for Country report (Woodward et al., 2020) was published as a set of guidelines for government, industry, researchers and non-governmental organisations, and land and water policymakers. The report showcases innovative ways in which Indigenous People on the Australian continent are working with, and strengthening, their knowledge to build sustainable futures through their stewardship of land, water and sea Country. The authors wanted to provide examples of ways to strengthen knowledge of, and build partnerships under,

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the Caring for Country program. The most recent State of the Environment report claims approximately 57 per cent of the Australian landmass is now under some form of Indigenous ownership or management through either native title or statutory land title (Janke et al., 2021). The authors of that report suggest: legal and policy frameworks can support or hinder effective Caring for Country. Australia is gradually developing the frameworks required for Indigenous recognition and involvement, but most are still not adequate. There is a need to shift to a rights-based approach for self-determination and recognition of the stewardship role that Indigenous People have under customary laws. (Janke et al., 2021, p. 79)

Although native title and land rights legislation have been responsible for a ‘land titling revolution’ in Australia (Altman & Jackson, 2014), this expansion in responsibility for managing vast areas of land and water has not been matched with the necessary financial investment in Indigenous capacity to manage Caring for Country nor greater policy influence (Hill et al., 2013), prompting some to argue this lack of Indigenous inclusion in environmental management as Australia’s ‘miserable failure’ (Porter, 2017). This short appraisal of recent global and domestic perspectives illustrates a growing recognition of the importance of Indigenous People’s lands and waters and ecological knowledge in efforts to protect the world’s biodiversity. Further, Indigenous People’s cultural and kinship relationships to the natural world offer an important alternative to the dominant neoliberal economic viewpoint that treats the Earth’s land, waterways and oceans as an inexhaustible, readily available and exploitable resource. Yet despite this, many states such as Australia, remain unwilling to devolve power—or even share power—with Indigenous People in land and water management.

INTRANSIGENCE IN AUSTRALIAN INDIGENOUS POLICY Before discussing the domain of land and water policy, it is helpful to provide a sense of Australia’s approach to Indigenous affairs policy more generally. Paternalism, assimilation and (more often) indifference, permeate Indigenous affairs policy in Australia. Despite some clearly progressive initiatives such as the 1992 Mabo decision and the adoption of UNDRIP in 2009, Australia remains largely antagonistic to the idea of Indigenous self-government. Several notable scholars over many years have written extensively on the problems and issues plaguing government-administered Indigenous affairs policy, including Hinkson and Altman (Altman, 2013; Altman & Hinkson, 2007; Hinkson & Altman, 2019), Davis (Davis, 2016), Pearson (Pearson et al., 2015), Nakata and Maddison (Nakata & Maddison, 2019), Anderson (Anderson, 2017), Sullivan (Sullivan, 2013, 2011), Sanders (Sanders, 2002), Moran (Moran, 2016), Strakosch (Strakosch, 2019, 2015) and many others. The issues they highlight are varied, an indication of the

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complexity of Indigenous policy. But most share the view that better policies will come from listening to and adopting the proposals developed by Indigenous People. As Hinkson and Altman (2019, p. 115) explain: Indigenous affairs is a complex policy field because the Australian settler colonial state was largely built on a denial of Indigenous property rights or political and citizenship equality. It was only in the 1960s that Indigenous Australians became fully incorporated into the mainstream provisions of the Australian state and only in 1992 that the myth of terra nullius was legally buried by the Mabo High Court decision recognising native title at common law.

Nakata and Maddison (2019) argue that a fundamental problem in government-administered Indigenous affairs policy in Australia is the tendency to frame Indigenous People as a ‘problem’ requiring management and/or solutions, developed by non-Indigenous bureaucrats and experts to ‘fix’ Indigenous People. Another characteristic is the frequency of ‘policy churn’ in Indigenous affairs whereby old polices are abandoned as ‘failed experiments’, new policies are quickly ushered in, and administrative arrangements are dismantled and re-established to create so-called efficiency (Sullivan, 2011, pp. 87–88). Often new policies are simply a recycling of old, ‘failed’ policy solutions, as new conceptualisations of the ‘problem’ generate a need for new policies and programs (Moran, 2016, pp. 12–13). The unstable nature of Indigenous policy makes the exercise of Indigenous self-determination decidedly difficult, if not (intentionally) impossible. Megan Davis, a Cobble Cobble woman, Aboriginal legal academic and professor of law, laments the current state of Indigenous policy in Australia, arguing it was once the subject of policy innovation led by talented and committed Indigenous public bureaucrats. In recent years, however, innovation has given way to performative policy interventions and announcements by ministers and prime ministers to give the impression of ‘something being done’ while sidelining Indigenous knowledge, input and, more importantly, consent to proposed policies (Davis, 2016). However, despite this lack of national leadership on Indigenous self-determination, several sub-national governments (including Victoria, Queensland, Tasmania, and the Northern Territory) are preparing for treaty negotiations with Indigenous People. Victoria is the most advanced state in this regard and has supported the creation of the First Peoples’ Assembly of Victoria as an independent and democratically elected body to represent Traditional Owners of Country in Victoria with cultural authority to negotiate with the Victorian government. Through the Assembly, Traditional Owners in Victoria have called for the establishment of a number of new independent institutions to support treaty negotiations. The first new body is the Yoo-rrook Justice Commission, with powers to investigate past and ongoing injustices against Indigenous People in Victoria since colonisation. For many Indigenous People, truth-telling and the public sharing of experiences of injustice and discrimination are considered an essential first step in any treaty process. In June 2022, the Victorian government passed legislation (Treaty Authority and Other Treaty Elements Bill 2022) after reaching agreement with the First Peoples’ Assembly to

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establish a Treaty Authority that will function as an ‘independent umpire’ that sits outside of the usual government bureaucracy and will oversee the treaty process (Yoorook Justice Commission, 2022). These developments around treaty and truth-telling are connected to, but independent from, the proposals contained in the Uluru Statement from the Heart. In May 2017, Indigenous delegates at the Australian National Constitutional Convention at Uluru released the Uluru Statement, which proposed an amendment to the Australian Constitution that would enshrine a First Nations Voice to the Commonwealth Parliament. This new, advisory body would enable Indigenous People, communities and organisations to have a national voice on government policies and laws that affect Indigenous People’s lives. The proposal has inevitably attracted criticism— from Indigenous and non-Indigenous People alike—that such an institution will undermine Australian democracy, create racial division or actually marginalise Indigenous voices. Nevertheless, Australia will likely go to a referendum on the question of a constitutionally enshrined Voice to Parliament before the end of 2023. The ongoing debates about the Voice proposal and the developing treaty negotiations in Victoria and other jurisdictions illustrate some of the ways in which Indigenous People are remaining steadfast about wanting genuine and substantive input and control over laws and policies that affect us through the creation of new power-sharing institutions that respect Indigenous authority.

MABO AND NATIVE TITLE: A CHALLENGE TO WHO ‘OWNS’ LAND AND WATER IN AUSTRALIA Any discussion of Indigenous People in relation to land and water in Australia must recognise the importance of the Mabo decision and native title. In 1992, the High Court of Australia, in Mabo and others v. Queensland (No. 2) [1992] HCA 23, delivered arguably Australia’s most important legal decision when it declared the pre-colonial land rights of Indigenous People in land (native tile) had survived British sovereignty and could now be recognised and protected under Australian law where traditional connection to land could be proven. The decision overturned the notorious colonial-era legal doctrine of terra nullius (meaning land without people), which had been the accepted legal basis for two centuries of dispossession and non-recognition of Indigenous People’s property, political and citizenship rights. Mabo and the recognition of native title has been the focus of considerable Australian and international scholarship (Brennan et al., 2015; McHugh, 2004; McNeil, 1989; Strelein, 2009; Watson, 2002). As Australian legal scholar Maureen Tehan explains, Mabo and the recognition of native title, …signalled a new era in the relationship between Indigenous People and the settler state. It acknowledged inherent, surviving Indigenous property rights, based upon traditional and continuing connections with land. The recognition of Indigenous property interests

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has challenged the dominant property paradigm under which no Indigenous interests were recognized, and any interests claimed were subjugated to the dominant settler interests. Recognition of native title has produced a new set of conflicting land uses and interests in public and in limited circumstances, private land. (Tehan, 1998, p. 786).

Despite the potential gains, however, there are many deficiencies with native title in Australia. For example, Indigenous People are owed no compensation for historical loss of land and culture in the advent of a successful native title determination. Nor does native title provide Indigenous People with rights in mineral resources that may exist on land held under native title. Although mining and resources extraction is highly contentious for Indigenous People, to say the least, resource extraction does present an opportunity for economic independence. This is also true of Australia’s adoption of a ‘marketplace’ or ‘real estate’ approach to native title. As former native title lawyer David Ritter explains, the marketplace approach is based in the belief that overcoming Indigenous socioeconomic disadvantage is best attained through the ‘buying and selling’ of access to Indigenous lands and people (Ritter, 2009). This neoliberal economic confidence in the power of markets to address Indigenous socioeconomic disadvantage was most acute during the era of government led by the then prime minister, John Howard (1996–2007). Howard was responsible for implementing his infamous ‘Ten Point Plan’,3 which declared a pastoral lease did not necessarily extinguish native title (Howard-Wagner, 2018; Watson, 2005). This greatly expanded the land open to claim by Indigenous people through native title. Indigenous lawyer and native title rights advocate Noel Pearson said Wik was a test of Australia’s commitment to the ideal of coexistence (Pearson, 2003, p. 2). Howard’s plan proposed changes to the Native Title Act 1993 that weakened native title rights at the expense of strengthening non-Indigenous title and gave greater emphasis to negotiation between Indigenous groups and private interests through Indigenous Land Use Agreements (ILUAs). The amended legislation was eventually passed by the Australian parliament in July 1998 and described by legal scholars as subordinating native title to all other land interests, in particular mining and pastoral industries: ‘Native title is accorded an essentially inferior status, entailing a denial of equality before the law’ (Bartlett, 1997, p. 64).

3 The ‘Ten Point Plan’ was the legislative response from Howard to the Wik decision of the High Court of Australia in December 1996. The court decision declared pastoral leases (which cover a large area of Australia) did not necessarily extinguish native title, meaning Indigenous people could now claim native title to much more land than was previously believed after the Mabo decision. This decision was hailed by Indigenous lawyer and rights advocate Noel Pearson as a test of Australia’s commitment to ‘co-existence’. Howard’s plan substantially diminished native title rights that Indigenous people might otherwise have held in pastoral leases and diminished native title rights in reserves, towns and cities, and placed limits on compensation. Legal scholars such as Bartlett argued the Howard government changes to native title legislation had abandoned any commitment to the maintenance of equality before the law for native title holders.

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The expectation that Indigenous People will leverage their native title rights to maximise economic benefit remains a feature of native title in Australia. What emerges is a combination of public underinvestment in Indigenous disadvantage and an expectation that Indigenous People can negotiate with powerful private interests through native title processes. Despite these and other limitations, native title has nonetheless raised important questions and tensions about land ownership, land and water resource use and management, and the broader nature of Indigenous–settler state relations in Australia. As cultural geographer Sue Jackson explains, because of Mabo: Two tenure systems are now recognised in Australia: the introduced colonial system, from which freehold and leasehold title flow, and the pre-existing – ​and, indeed, the world’s oldest surviving –​system of land tenure, from which native title rights spring. These tenure systems derive from the two systems of law and political organisation, which are to be understood to be ‘grounded in different authorities’ and are now part of Australia’s environmental and land governance landscape. (Jackson et al., 2017, p. 177)

Perhaps most importantly, Indigenous People and advocates of Indigenous rights argue that the recognition of native title is in fact recognition of the right to self-government. The rationale for this claim centres on the fact that a native title determination requires claimant groups to present evidence that they continue to adhere to their own customary system of laws governing land. As legal scholars Jeremy Webber (1999) and Lisa Strelein (2001) argue, despite the explicit non-recognition of Indigenous governance in Australian native title jurisprudence, ‘native title is self-government’. Despite the Australian legal system’s limiting native title to recognition of an Indigenous property right and therefore limited to questions of land, as Strelein (2009, p. 8) argues, there is clear acknowledgment of Indigenous People practising ‘traditional law, custom and governance’ and accepting Indigenous societies as ‘makers and keepers of law’ in Australian native title jurisprudence. I now turn to discuss how Indigenous People exercise self-government through the practice of Caring for Country.

CARING FOR COUNTRY: DEMOCRATISATION THROUGH PUBLIC POLICYMAKING Caring for Country is the term Indigenous People in Australia use to describe the management and protection of traditional lands, sea, waterways and cultural heritage over ancestral territories. The term encompasses a wide range of environmental, natural resource and cultural heritage management activities undertaken by Indigenous communities and organisations across Australia for customary, community, conservation and commercial reasons. These activities have their origins in the holistic relationship between traditional Indigenous societies and their customary land and sea estates—or ‘Country’—that have evolved over at least 50,000 years (Hill et al., 2013). As Jon Altman and Sean Kerins argue, Caring for Country has

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emerged as both a practice and policy forum for Indigenous People to reassert rights over land, re-establishing cultural institutions and decision-making, as well as deriving a living from the modern political economy (Altman & Kerins, 2012). Caring for Country is now a well-established concept in the Australian public policy lexicon (Ens & McDonald, 2012; Pleshet, 2018). In this section I examine Caring for Country as a nexus between law (settler and Indigenous customary), public policy and Indigenous self-governance. Australian public policy scholar, Elizabeth Strakosch, argues that the domain of policy is a contested political space and therefore a crucial site of political encounter between Indigenous People and the state in Australia and other settler colonies (Strakosch, 2015, pp. 2–3). Likewise, Caring for Country has evolved as a means for reasserting Indigenous rights and jurisdiction within a ‘politics of place’ created by native title (Agius et al., 2007). It involves Indigenous People using a recognised property right to shape public policy and rebuild Indigenous capacity for self-government. This combination of law, public policy and Indigenous self-governance is a kind of unintended democratic innovation, produced by the recognition of native title. Deliberative democracy scholars Stephen Elstub and Oliver Escobar (2019, p. 14) explain that democratic innovations are ‘processes or institutions that are new to a policy issue, policy role, or level of governance, and developed to reimagine and deepen the role of citizens in governance processes by increasing opportunities for participation, deliberation, and influence.’ Democratic innovations are commonly thought of as new institutions, or as mechanisms that increase inclusiveness or include more people in a decision-making process; alternatively, they might increase the degree of thoughtfulness or quality of deliberation in a decision-making process, or both (Elstub & Escobar, 2019, p. 16). Widely used and studied democratic innovations include citizen’s juries, town hall meetings and participatory budgeting. Democratic innovations have gained popularity in response to the shortcomings of representative democracy and growing interest from scholars, civil society groups and citizens in participatory and deliberative forms of democracy. Democratic innovations may vary, but what is fundamental to all is the use of processes of participatory and deliberative democracy to bring state and civil society actors together to deliberate upon policy and politics. This makes sites of democratic innovation, rich places for the study of governance and citizenship (Elstub & Escobar, 2019, p. 28). Native title’s ‘unintended democratic innovation’ has been to create both a space and a process for Indigenous People to convene and deliberate with public officials, civil society actors and each other, in relation to land and water policy matters and political issues. In part, the domain of policymaking has emerged as a key site of engagement for Indigenous People and the state because of the inability of institutions such as courts and parliaments to resolve the question of Indigenous self-government. Through Caring for Country, Indigenous People engage in a practice I call deliberative policymaking. This practice, conforming with the ideals of deliberative democracy theory, insists that people likely to be affected by laws and policies must be included in any decision-making process. Caring for Country is an example of a

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‘deliberative turn’ in policymaking that makes space for a persuasive and reflexive dimension in the decision-making process (Goodin et al., 2008). These ideals of inclusion and reflection in decision-making processes of the state strongly align with the principle of free, prior, and informed consent (FPIC) as articulated in Article 19 of UNDRIP, which states: States shall consult and cooperate in good faith with the Indigenous Peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.

In line with international understandings, in Australia, the Human Rights Commission says FPIC means any negotiation with Indigenous people should be free of coercion, intimidation or manipulation being placed upon Indigenous people. The word prior should imply that engagement has been conducted well in advance of any commencement of activities beginning on Indigenous lands likely to affect Indigenous people, and that adequate time for consultation and reaching consensus with Indigenous people has been allocated. Informed should imply that information is provided to ensure the nature, size, pace and scope of any proposed project or activity is given as well as the reason(s) or purpose(s) of the project and/or activity, its duration, areas that will be affected, likely economic, social, cultural and environmental impact, and potential risks. And lastly, consent should be interpreted as Indigenous People having understood what is being proposed (Aboriginal and Torres Strait Islander Justice Commissioner, 2010, pp. 151–152). Through Caring for Country, Indigenous knowledge, perspectives and ideas in the development of policy responses are asserted through deliberation and contestation with the state by a range of Indigenous community and non-government organisations (NGOs). For example, Indigenous land councils, recognised native title bodies (known as prescribed body corporates or PBCs), land management organisations, and ranger groups are active within domain of land and water policy and planning and are engaged in public advocacy and policy development related to Caring for Country (Putnis et al., 2021). Meetings between native title groups and public officials become participatory and deliberative forums in which Indigenous people engage with each other and others over proposed policies and outcomes. These groups engage in deliberative policymaking by challenging the exclusive role of government and bureaucrats to decide policy options. Advocates of deliberative democracy argue that deliberative approaches to policymaking are more legitimate in the minds of citizens than decisions made exclusively by elites, such as politicians and bureaucrats. Deliberative approaches to policymaking empower citizens and help overcome democratic deficits in the policy process (Goodin et al., 2008, pp. 669–686). Political theorist Mark Warren (2009) calls this idea of strengthening democratic governance through policymaking, governance-driven democratisation. Other political theorists including Frank Fischer (2003; Fischer et al., 2007), Archon Fung (Fung & Wright, 2003), Robert Goodin (Goodin et al.,

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2008), and Martin Hajer and Hendrik Wagenaar (2003) also recognise the potential of policymaking for strengthening democratic governance. However, what distinguishes Indigenous forms of deliberative policymaking is the relationship these processes have with Indigenous sovereignty and self-determination. As Māori professor of planning and environmental policy Hirini Matunga explains, Indigenous planning ‘unsettles’ Western planning and theory and its totalising (assimilationist) tendencies. ‘Beyond all the rhetoric, Indigenous planning provides an intellectual and political space for Indigenous Peoples to define themselves, to spatialise indigeneity and, most importantly, mark out their future’ (Porter et al., 2017, p. 641). Caring for Country therefore offers an understanding of Indigenous self-governance and ideas of sovereignty that are reflected in land and water management policies. I now discuss, in brief, three examples of how Caring for Country becomes a space and process for greater Indigenous self-governance. During my time at Bush Heritage Australia (BHA), the Wunambal Gaambera Traditional Owners of the north Kimberley region were finalising their Healthy Country Plan (Wunambal Gaambera Healthy Country Plan, 2010) to look after Country. As the Wunambal Gaaambera Traditional Owners explain in their plan, looking after Country must be carried out in accordance with: Wanjina Wunggurr Law[,] protecting and sharing our cultural places as our traditional Law says. We will be respected as the proper owners and managers of Wunambal Gaambera Country and our future generations, will have the cultural knowledge of our elders, our country will be giving us and our future generations a healthy life. (p. 7)

For the Wunumbal Gaambera People, to manage Country is to practise and apply Wanjina Wunggurr Law. That is to say, only Wunumbal Gaambera law and political authority can legitimately manage Country (Moorcroft et al., 2012; Wunambal Gaambera Healthy Country Plan, 2010). Managing Country in accordance with customary law becomes a discernible political act. For the people of the Ngarrindjeri Nation in South Australia, engaging in public policy processes in land and water resource management is not simply a platform to shape policy but an opportunity to rebuild Ngarrindjeri nationhood and the capacity for self-government. As they explain, since the mid-1990s Ngarrindjeri people have worked towards establishing a new governance body, Ngarrindjeri Regional Authority, and negotiated the Kungun Ngarrindjeri Yunnan Agreement (KNYA) with the South Australia government. For Ngarrindjeri, nation rebuilding is occurring through negotiations in the context of water and natural resource management (Nikolakis et al., 2019, pp. 71–103). As they explain, in settler societies such as Australia, Indigenous People have developed complex and transformational legal and policy strategies for looking after Country that can be influential in changing the political processes and structures of authority. Rebuilding Ngarrindjeri Nation environmental governance capacity through major environmental programs such as securing water allocations through political negotiations, helps to assert a powerful

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discourse of Indigenous environmental knowledge associated with First Nations rights concerning governance of Country (Hemming et al., 2019, 2017). For members of the Gugu Badhun Aboriginal Nation in central Queensland, a culturally appropriate model of economic development is key to their aspirations for self-government. As expressed in their Gugu Badhun Community Plan 2014–2020, the people of the Gugu Badhun Nation want to build economic prosperity as part of their future plans for living and working on country. Rejecting neoliberal economic thinking, the Gugu Badhun Community Plan guides decision-making processes with regard to economic development strategies and makes it clear that the prosperous economy cannot come at the expense of maintaining and enhancing culture, community and country (Petray & Gertz, 2018). The Gugu Badhun nation-building strategy incorporates the concept of pre-figurative politics in which groups enact their ideal or preferred relationship with the state rather than wait for the state to change its stance towards Indigenous sovereignty and self-determination (Cooper, 2017). For example, if an Indigenous group seeks a relationship with the state based on recognition of their sovereignty and right to self-government, the group in question begins to act and operate as a sovereign nation as a strategy to unsettle the status quo. Indigenous People often expressed this pre-figurative stance as think sovereign, act sovereign (see Nikolakis et al., 2019, p. 25). Within Australia, the move towards Indigenous nation building has been inspired in large part by the efforts of First Nations in North America and the Harvard Project on American Indian Economic Development and its theoretical and practical examples of Native American self-determination through the rebuilding of nationhood. In Australia, the term Indigenous Nation building has slowly gained traction and is largely inspired by efforts from First Nations in North America, namely the Harvard Project on American Indian Economic Development and its theoretical and practical examples of rebuilding nationhood as a form of Native American self-determination. But, as Stephen Cornell (2015, pp. 3–5) explains, ‘the terminology is less important than the concept behind it’. Indigenous People, groups, and communities, with distinct cultures and historical heritages, also constitute—or wish to constitute—distinct political entities. Entities that should rightfully exercise control over their own lands and over their own internal affairs, including how they govern those affairs, even as they continue to exist within encompassing states. Cornell calls this movement an Indigenous politics of self-government (Cornell, 2015, pp. 3–5; see also Cornell & Kalt, 1998). What these three examples highlight is the importance of community planning, visioning and deliberation. The development of a healthy Country plan, a community plan or establishing a new governance body, requires the dedication of resources (human and financial) and a collective commitment to pursue these initiatives from participants. The policymaking process then becomes both a site and a means for groups to enact Indigenous self-government. Thus, deliberative policymaking in relation to Caring for Country has a democratising effect as discussions of policy between the state and Indigenous groups open up space for Indigenous

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self-government. This challenges the role of the state to decide policy, while also giving practical effect to Indigenous decision making. Critical policy scholars have discussed how social movement groups challenge the role of elites that dominate law and policymaking in liberal democracies. These groups directly challenge: …technocratic governance, with the fact that their voices are routinely discounted, or ignored by the political powers that be. In contrast to those who take such movement to be problematic, especially as they threaten existing power relationships, the critical policy perspective embraces them, not only as an opportunity to develop the focus of investigation, but also as an opportunity to advance democratic governance and the democratisation of policy inquiry. (Fischer et al., 2015, p. 7).

Other political democracy theorists, such as Wagnaar, Torgerson and Fung, also discuss the potential of policy processes for greater democratisation. As Torgerson (2003) explains, ‘the prospect (is) that democracy might be enhanced not against or in spite of policy discourse, but through it’ (p. 113). When citizens participate in public policy formulation, it can strengthen democratic engagement between the parties. For Torgerson, deliberative policymaking is a reflective style of policy discourse, in which the contestation of policy brings with it a closer association with politics. By engaging in deliberative policymaking through Caring for Country, Indigenous People are no longer acting as passive recipients of policy decided by the state (government) but actively involved in deciding and implementing our own policy initiatives (self-governance) (Cini & Felicetti, 2018; Warren, 2020). As the example with the Ngarrindjeri Nation illustrates, agreements reached with government can often articulate a distribution of authority, over land and water in which governments recognise Indigenous People and communities as decision-making entities (Nikolakis et al., 2019; see also Vivian et al., 2017). As Cornell explains, despite a lack of a formal right to self-government for Indigenous People in Australia, groups are nonetheless engaged in finding ways to self-govern, assume responsibility wherever they can, develop rules for collective decision-making and dispute resolution, and make agreements with governments. Such communities may lack a specified right to self-government, but they engage in governance nonetheless, searching out openings in the constraint regime that they can exploit to push against the limits on self-governing power. The result is a vibrant area of innovation and change. (Stephen Cornell in Nikolakis et al., 2019, p. 25)

Caring for Country functions, then, as a type of Indigenous critical policy inquiry to better incorporate Indigenous aspirations in public policy and, by doing so, works to rebuild Indigenous self-governance. Caring for Country is a space for Indigenous People to redefine their relationship with the state through policymaking over land and natural resource management. It is also the basis for Indigenous Nation building, in spite of Australia’s ongoing refusal to recognise Indigenous groups as sovereign entities exercising governmental power of their lands.

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Land and water are fundamental to Indigenous People’s cultural survival and our political claims to sovereignty and self-determination. As research and various reports make clear, Indigenous People in Australia (and globally) hold management responsibilities over vast areas of land, water and biodiversity. The return of land through native title, coupled with the principles established by UNDRIP, has enabled Indigenous People to redefine our relationship with the state from one of government to self-governance through the process of public policymaking. Although the overall situation with regard to Indigenous People’s involvement in, and control over, land and water policy in Australia and globally is not positive, there is nonetheless a clear intention by Indigenous People to influence policy through deliberative policymaking, creating a link between effective environmental management and Indigenous self-government. The problem for modern, technically advanced liberal democratic states, such as Australia, is not one of a lack of resources or Indigenous People with policy expertise and the determination to develop and implement policy and programs, but a lack of political will.

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Garnett, S. T., Burgess, N. D., Fa, J. E., Fernández-Llamazares, Á., Molnár, Z., Robinson, C. J., Watson, J. E. M., Zander, K. K., Austin, B., Brondizio, E. S., Collier, N. F., Duncan, T., Ellis, E., Geyle, H., Jackson, M. V., Jonas, H., Malmer, P., McGowan, B., Sivongxay, A. & Leiper, I. (2018). A spatial overview of the global importance of Indigenous lands for conservation. Nature Sustainability, 1(7), 369–374. https://​doi​.org/​10​.1038/​ s41893–018–0100–6 Goodin, R., Moran, M. & Rein, M. (Eds.). (2008). The Oxford Handbook of Public Policy. Oxford, UK: Oxford University Press. Gutmann, A. & Thompson, D. (2004). Why Deliberative Democracy? Princeton, NJ: Princeton University Press. Hajer, M. A. & Wagenaar, H. (2003). Deliberative Policy Analysis: Understanding Governance in the Network Society. Cambridge, UK: Cambridge University Press. Hartwig, L. D., Jackson, S. & Osborne, N. (2020). Trends in Aboriginal water ownership in New South Wales, Australia: the continuities between colonial and neoliberal forms of dispossession. Land Use Policy, 99, 104869. https://​doi​.org/​10​.1016/​j​.landusepol​.2020​ .104869 Hemming, S., Rigney, D., Bignall, S., Berg, S. & Rigney, G. (2019). Indigenous nation building for environmental futures: Murrundi flows through Ngarrindjeri country. Australasian Journal of Environmental Management, 26, 216–235. https://​doi​.org/​10​.1080/​14486563​ .2019​.1651227 Hemming, S., Rigney, D., Muller, S. L., Rigney, G. & Campbell, I. (2017). A new direction for water management? Indigenous nation building as a strategy for river health. Ecology and Society, 22(2). Retrieved on 5 November 2023 from https://​ecologyandsociety​.org/​ vol22/​iss2/​ Hill, R., Pert, P. L., Davies, J., Robinson, C. J., Walsh, F. & Falco-Mammone, F. (2013). Indigenous Land Management in Australia: Extent, Scope, Diversity, Barriers and Success Factors. Cairns: CSIRO Ecosystem Sciences. Hinkson, M. & Altman, J. (2019). Lurching between consensus and chaos: shades of populism in Australian indigenous affairs. In Kapferer, B. & Theodossopoulos, D. (Eds.), Democracy’s Paradox (pp. 74–96). London and New York, NY: Berghahn Books. Howard-Wagner, D. (2018). Governance of indigenous policy in the neo-liberal age: indigenous disadvantage and the intersecting of paternalism and neo-liberalism as a racial project. Ethnic and Racial Studies, 41(7), 1332–1351. https://​doi​.org/​10​.1080/​01419870​.2017​ .1287415 International Indigenous Forum on Biodiversity (IIFB) (2022). Indigenous Peoples and Local Communities celebrate COP15 deal on nature, and welcome the opportunity of working together with states to implement framework, 19 December. Jackson, S., Porter, L. & Johnson, L. C. (2017). Planning in Indigenous Australia: From Imperial Foundations to Postcolonial Futures. London, UK: Taylor & Francis Group. Janke, T., Cumpston, Z., Hill, R., Woodward, E., von Gavel, S., Harkness, P. & Morrison, J. (2021). Australia State of the Environment 2021: Indigenous, independent report to the Australian Government. Commonwealth of Australia. McHugh, P. G. (2004). Aboriginal Societies and the Common Law. Oxford, UK: Oxford University Press. McNeil, K. (1989). Common Law Aboriginal Title. Oxford, UK: Clarendon Press. Moorcroft, H., Ignjic, E., Cowell, S., Goonack, J., Mangolomara, S., Oobagooma, J., Karadada, R., Williams, D. & Waina, N. (2012). Conservation planning in a cross-cultural context: the Wunambal Gaambera Healthy Country Project in the Kimberley, Western Australia. Ecological Management & Restoration, 13(1), 16–25. https://​doi​.org/​10​.1111/​j​ .1442–8903​.2011​.00629​.x Moran, M. (2016). Serious Whitefella Stuff: When Solutions Became the Problem in Indigenous Affairs. Melbourne: Melbourne University Press.

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NAILSMA Indigenous Water Policy Group (2012). Indigenous people’s rights to the commercial use and management of water on their traditional territories: An Indigenous Water Policy Position. Retrieved on 27 March 2023 from https://​www​.nintione​.com​.au/​?p​=​3158 Nakata, S. & Maddison, S. (2019). New collaborations in old institutional spaces: setting a new research agenda to transform Indigenous–settler relations. Australian Journal of Political Science, 54(3), 407–422. Nikolakis, W., Cornell, S. & Nelson, H. (Eds.). (2019). Reclaiming Indigenous Governance: Reflections and Insights from Australia, Canada, New Zealand, and the United States. Tucson, AZ: University of Arizona Press. Pearson, N. (2003). The High Court’s Abandonment of ‘the Time-Honoured Methodology of the Common Law’ in Its Interpretation of Native Title in Mirriuwung Gajerrong and Yorta Yorta: Sir Ninian Stephen Annual Lecture 2003. Australian Indigenous Law Reporter, 8, 1–10. Pearson, N., Hunter, N., Mason, A., Bowden, D., Ingrey, C., Philips, S., Briggs, P., Trust, I., Gordon, S. & Jose, F. (2015). Empowered Communities: Empowered Peoples: Design Report. Sydney, Australia: Wunan Inc. Petray, T. L. & Gertz, J. (2018). Building an economy and building a nation: Gugu Badhun self-determination as prefigurative resistance. Global Media Journal, 12(1), 12. Retrieved on 5 November 2023 from https://​www​.hca​.westernsydney​.edu​.au/​gmjau/​?p​=​3439 Pleshet, N. (2018). Caring for Country: history and alchemy in the making and management of Indigenous Australian Land. Oceania 88(2), 183–201. Porter, L. (2017). Indigenous People and the miserable failure of Australian planning. Planning Practice & Research, 32(5), 556–570. https://​doi​.org/​10​.1080/​02697459​.2017​.1286885 Porter, L., Matunga, H., Viswanathan, L., Patrick, L., Walker, R., Sandercock, L., Moraes, D., Frantz, J., Thompson-Fawcett, M., Riddle, C. & Jojola, T. (Eds.). (2017). Indigenous planning: from principles to practice/A revolutionary pedagogy of/for Indigenous planning/ settler–Indigenous relationships as liminal spaces in planning education and practice/ Indigenist planning/What is the work of non-Indigenous People in the service of a decolonizing agenda?/Supporting Indigenous planning in the city/Film as a catalyst for Indigenous community development/Being ourselves and seeing ourselves in the city: enabling the conceptual space for Indigenous urban planning/Universities can empower the next generation of architects, planners, and landscape architects in Indigenous design and planning. Planning Theory & Practice, 18(4), 639–666. https://​doi​.org/​10​.1080/​14649357​.2017​ .1380961 Putnis, A., Josif, P. & Woodward, E. (2008). Healthy country, healthy people: supporting indigenous engagement in the sustainable management of Northern Territory land and seas: a strategic framework. Winnellie, NT: CSIRO Sustainable Ecosystems. Putnis, A., O’Leary, P., Leach, A., Ings, E. & See, P. (2021). Strong on Country: sustaining success in Indigenous land and sea management in Australia. Country Needs People, Canberra. Ritter, D. (2009). The Native Title Market. Crawley: University of Western Australia Press. Sanders, W. (2002). Towards an indigenous order of Australian government: rethinking self-determination as indigenous affairs policy. Canberra: Centre for Aboriginal Policy Research, ANU. Smyth, D. (2006). Indigenous Protected Areas in Australia. Parks: The International Journal for Protected Area Managers, 16(1), IUCN World Commission on Protected Areas, 14–20. Stoeckl, N., Grainger, D., Esparon, M., Farr, M., Larson, S., Kennard, M., Álvarez-Romero, J. G., Cattarino, L., Adams, V., Douglas, M., Pressey, B. & Pannell, D. (2016). Economic values and Indigenous Protected Areas across Northern Australia. Townsville, Australia: James Cook University. Strakosch, E. (2015). Neoliberal Indigenous Policy: Settler Colonialism and the ‘Post-Welfare’ State. Houndmills: Palgrave Macmillan.

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Strakosch, E. (2019). The technical is political: settler colonialism and the Australian Indigenous policy system. Australian Journal of Political Science, 54(1), 114–130. https://​ doi​.org/​10​.1080/​10361146​.2018​.1555230 Strelein, L. (2001). Conceptualising Native Title. Sydney Law Review, 23, 95–124. Strelein, L. (2009). Compromised Jurisprudence: Native Title Cases Since Mabo, 2nd ed. Canberra: Aboriginal Studies Press. Sullivan, P. (2011). Belonging Together: Dealing with the Politics of Disenchantment in Australian Indigenous Affairs Policy. Acton, ACT: Aboriginal Studies Press. Sullivan, P. (2013). Disenchantment, normalisation and public value: taking the long view in Australian Indigenous Affairs. The Asia Pacific Journal of Anthropology, 14(4), 353–369. https://​doi​.org/​10​.1080/​14442213​.2013​.804871 Tehan, M. (1998). Customary title, heritage protection, and property rights in Australia: Emerging patterns of land use in the Post-Mabo Era. Pacific Rim Law and Policy Journal, 7, 765–802. Torgerson, D. (2003). Democracy through policy discourse. In Hajer, M. A. & Wagenaar, H. (Eds.), Deliberative policy analysis: Understanding governance in the network society (pp. 113–138). Cambridge: Cambridge University Press. UNEP (2022). Tapping into indigenous knowledge to protect nature, UNEP. Retrieved on 26 March 2023 from http://​www​.unep​.org/​news​-and​-stories/​story/​tapping​-indigenous​ -knowledge​-protect​-nature United Nations (2007). United Nations Declaration on the Rights of Indigenous Peoples. United Nations General Assembly. Vivian, A., Jorgensen, M., Reilly, A., McMillan, M., McRae, C. & McMinn, J. (2017). Indigenous self-government in the Australian Federation. Australian Indigenous Law Review, 20, 215–242. Walker, R., Jojola, T. & Natcher, D. (2013). Reclaiming Indigenous planning. Montreal, Canada: McGill-Queen’s University Press. Warren, M. E. (2009). Governance-driven democratization. Critical Policy Studies, 3, 3–13. https://​doi​.org/​10​.1080/​19460170903158040 Warren, M. E. (2020). Participatory deliberative democracy in complex mass societies. Journal of Deliberative Democracy 16(2). https://​doi​.org/​10​.16997/​jdd​.395 Watson, I. (2002). Aboriginal laws and the sovereignty of terra nullius. Borderlands e-Journal 1(2), 15–32. Watson, N. (2005). Howard’s End: The real agenda behind the proposed review of Indigenous Land Titles. Australian Indigenous Law Reporter, 9(4), 1–12. Webber, J. (1999). Native Title as self-government. UNSW Law Journal, 22(2), 600–603. Weir, J., Stacey, C. & Youngetob, K. (2011). The Benefits Associated with Caring for Country: Literature Review. Canberra: Australian Institute of Aboriginal & Torres Strait Islander Studies (AIATSIS). Wensing, E. (2018). Indigenous rights and interests in statutory and strategic land use planning: some recent developments. James Cook University Law Review, 24, 169–190. https://​ doi​.org/​10​.1080/​02697459​.2017​.1286885) Wensing, E. & Porter, L. (2016). Unsettling planning’s paradigms: towards a just accommodation of Indigenous rights and interests in Australian urban planning? Australian Planner, 53(2), 91–102. https://​doi​.org/​10​.1080/​07293682​.2015​.1118394 Woinarski, J., Mackey, B., Nix, H. & Traill, B. (2007). The Nature of Northern Australia: Its Natural Values, Ecological Processes and Future Prospects. Canberra: ANU E Press. http://​doi​.org/​10​.22459/​NNA​.07​.2007 Woodward, E., Hill, R., Harkness, P. & Archer, P. (2020). Our Knowledge, Our Way in Caring for Country: Indigenous-led approaches to strengthening and sharing our knowledge for land and sea management. Best Practice Guidelines from Australian experiences. NAILSMA and CSIRO.

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10. On gendered ground: land and colonialism Isabel Altamirano-Jiménez

INTRODUCTION Land is essential to the life and wellbeing of Indigenous Peoples. For many communities worldwide, protecting their lands and territories means ensuring future survival and a foothold on economic development. The 2007 adoption of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) represented a landmark for protecting the world’s approximately half-billion Indigenous Peoples globally. While not legally binding on signatory states, UNDRIP obliges states to recognise, affirm and protect over 40 collective rights that adhere to Indigenous Peoples as distinctive ‘peoples’. These include, among many others, Indigenous Peoples’ right to the lands, territories and resources they have traditionally owned or occupied (Article 26) and the ‘right to determine and develop priorities and strategies for the development and use of their lands’ (Article 32). Additionally, this declaration mandates signatory states to provide effective mechanisms for the prevention of and redress of ‘any action which has the aim or effect of dispossessing Indigenous Peoples of their lands, territories, or resources’ (Article 8). It requires states to ‘consult and cooperate in good faith with Indigenous Peoples concerned … to obtain their free, prior, and informed consent before adopting and implementing legislative or administrative measures that may affect them’ (Article 19). This is to be done ‘prior to the approval of any project affecting lands, particularly in connection with minerals, water and other resources’ (Article 32). Although UNDRIP constitutes a landmark for protecting Indigenous rights, financial institutions, corporations and states have actively promoted and financed the liberalisation of land, mining, hydrocarbons and timber sectors across the globe (Sawyer & Gómez, 2008). Given the widespread territorial conflicts involving Indigenous communities, exploring the connection between the implementation of UNDRIP and these economic processes is urgent. While the principle of free, prior and informed consent has received significant attention, this right must be considered in relation to broader economic and governance processes. Focusing on the nexus between land, gender and colonialism, this chapter has three goals. First, it explores the tensions and legal dissonances that arise between implementing UNDRIP and the neo-liberalisation of land and natural resources. Second, it examines how economic configurations shape the interpretation of Indigenous rights and the challenges Indigenous Peoples, particularly women, face in defence of their territories in the Isthmus of Tehuantepec, Mexico. Third, focusing on 198

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self-consultations, it explores the self-determining strategies enacted by Indigenous communities in interpreting UNDRIP in ways that align with their aspirations. I argue that self-consultations can provide important opportunities for Indigenous women to participate in making decisions over what happens on their lands and for Indigenous Peoples to influence the implementation of policies. The Isthmus of Tehuantepec in Oaxaca, Mexico, is a relevant case. Mexico has the largest Indigenous population in the Americas. It is linguistically the most diverse, with 69 languages and hundreds of variants. According to the National Institute of Statistics and Geography, 21.5 per cent of the population identifies as Indigenous. Oaxaca is the most diverse state in this country (El Economista, 2018). This chapter is organised in the following way. First, it maps the connections between colonialism, gender and land. It shows that while land has historically been central to colonialism, men and women have experienced this process differently. I also demonstrate that despite the independence movement, colonial encroachment of land continued. Second, it explores the contradictions of liberalising land and recognising Indigenous collective rights and its effects on Indigenous women. Third, it analyses the complex terrain in which the Isthmian Indigenous Peoples struggle to defend their territory. Fourth, it discusses self-consultation as a de facto right to self-determination.

COLONIALISM, LAND AND GENDER IN OAXACA This section explores the complex contestations and challenges Indigenous Peoples have confronted in refusing colonial and state policies. Generally, colonisation involves violently asserting control over Indigenous territories. Mbembé and Meintjes have argued that colonial occupation includes controlling a specific territory, classifying people according to different categories and manufacturing cultural imaginaries (2003, p. 25). Due to Indigenous and African nations being historically located on the other side of the divide, land theft, violence, domination, slavery and genocide characterise imperial expansions (Atiles-Osoria & Whyte, 2018). In the first decades of Spanish colonisation, Indigenous communities experienced gigantic changes. Based on a racial hierarchy separating colonisers from the colonised, the Republica de Españoles (Spanish Republic) and the República de Indios (Indian Republic) structured the colonial society. With the creation of these two republics, Indigenous and Spanish lands emerged as two distinct forms of property that divided colonisers from the colonised. Indigenous Peoples managed to maintain control over some of their lands and traditional governance systems in return for paying tribute to the Spaniards (Florescano, 1997, p. 186). As land was reorganised, the Spanish Crown removed Indigenous women from positions of authority and their ability to own land and resources, making them dependent on their spouses (Powers, 2005, p. 47). As time progressed, the colonial economy started to require more land. The encomienda emerged as an institution that rested upon large enclosures of land granted

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to Spaniards to reward them for their military services. Although the encomienda did not legally confer property rights to settlers, it involved the right to demand tax from Indigenous communities and limited labour conscription (Yeager, 1995, p. 850). The encomienda, however, was not consistent across geographies. In humid areas, for instance, Indigenous agricultural communities were dispossessed of some of their lands. Meanwhile, in areas of low agricultural productivity, Indigenous communities were subject to a different economic system, the repartimiento de afectos, which forced Indigenous Peoples to sell their agricultural products to Spaniards and later buy goods at much higher prices. By the seventeenth century, this system had replaced the encomienda, forcing Indigenous communities to provide their men and women to do low-paid or unpaid labour for weeks or months at Spanish-owned farms, textile factories and public projects. During the eighteenth century, the repartimiento de afectos became a major source of profit for the Spaniards and resentment for Indigenous communities (Knight, 2002, pp. 155–156). Since women were the main textile producers, they often bore the bulk of unpaid labour. Conflicts arose not only over abusive practices and Spanish authorities’ interference within Indigenous communities’ affairs but also due to land encroachment (Altamirano-Jiménez, 2013, p. 182). Colonial records, including testaments, petitions and testimonies, shed light on communities’ efforts to maintain their autonomy, lands and communal practices in the face of such economic practices and massive depopulation. Indigenous women were particularly active in using colonial courts to simultaneously defend their rights as women and their communities’ lands (Kellogg, 2005; Sousa, 2017), reflecting Indigenous women’s previous abilities to hold land. Although Indigenous communities adapted their governance institutions to respond to the impact of colonisation, they also defended their political, social and economic independence (Zeitlin & Thomas, 1992, p. 286). Oaxaca remained a distinctive region, as it was an area where Indigenous communities managed to control more lands than the Spaniards. Difficulty in accessing this region made it possible for Indigenous communities to continue to reproduce themselves as autonomous entities, maintaining their communal governance practices and institutions as a means of resisting colonialism. Colonial forms of domination coexisted with subversion, refusal and contestation practices. These practices merged with the independence movement of 1810. Shaped by different interests, regional cleavages and racial dynamics, the transformation of Mexico into a new country brought new challenges for Indigenous Peoples. Independence from colonial rule turned into a form of neocolonial politics that attempted to eliminate Indigenous political life. The independence movement opened the door to the emergence of a political elite that conceived of state sovereignty in Western terms. The new form of Indigenous domination was justified by racial myths, a unitary legal system, and liberal notions of citizenship and individual property. Indigenous Peoples were constructed as unproductive and a primitive reminder of the colonial past. In contrast, individualism and capitalism were seen as a sign of modernity that led to the legal restructuring of Indigenous lands (Altamirano-Jiménez, 2021). The Leyes de Reforma or Reform Laws were key to this process, which aimed at privatis-

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ing Indigenous land tenure systems and the Church’s lands. Indigenous communities fiercely opposed this legislation. However, their resistance was often framed as revolts that threatened the safety of Creoles (Spaniards born in Mexico) and Mestizos (people of mixed race) rather than as movements against land dispossession. Despite neocolonial efforts to dispossess Indigenous communities, their biopolitical reorganisation was fragmented and incomplete (Williams, 2011). Legal pluralism and Indigenous communal governance institutions continued to exist throughout Mexico and particularly in Oaxaca, where they became a means through which communities resisted land encroachment and state sovereignty (Altamirano-Jiménez, 2017). Indigenous uprisings against land dispossession continued through the nineteenth century until they merged with the Mexican Revolution of 1910. The emergence of Indigenous leaders such as Emiliano Zapata and the Southern Liberation Army put Indigenous collective land rights on the political agenda. These rights were protected in the Mexican Constitution of 1917, where Article 27 shielded more than half of this country’s territory from the market and legitimised Indigenous and peasants’ demand for land distribution. After the Revolution movement of 1910, the Mexican Government attempted to assimilate or integrate Indigenous people into the Mestizo society. With the formation of the revolutionary state, Indigenous Peoples were turned into ethnic minorities, whose integration into the society was sought through different policies that aimed to end the ‘Indigenous problem’. However, ongoing struggles for land rights and the existence of de facto Indigenous political autonomy constantly challenge these efforts.

RECOGNISING INDIGENOUS RIGHTS, ALIENATING LAND In the 1980s, new dynamics began to shape Indigenous Peoples’ land rights in Mexico. In 1982, the Mexican Government announced it could no longer meet its debt obligations and threatened to default. In response, the International Monetary Fund demanded the restructuring of the Mexican State, substituting state-driven economic policy with market-oriented development. Between 1982 and 1991, Mexico received 13 structural and sectoral adjustment loans to deregulate private investment, eliminate import substitution policies, privatise publicly owned corporations and substantially reduce subsidies for the countryside (Liverman & Vilas, 2006). This economic restructuring also led to the elimination of tariffs and import permits for agricultural goods and the dismantling of state-run agricultural institutions. The consequent contraction of domestic market prices and cuts in the state’s support for agriculture made traditional Indigenous livelihoods extremely challenging, fuelling massive international and urban migration as families struggled to make ends meet (Altamirano-Jiménez, 2020). In this context, narratives of democracy and the free market intersected. The Mexican Government was also pressured to advance free elections and human rights, which transpired, among other things, in adopting the International Labour

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Organization’s Convention 169 in 1989. This convention is the only international treaty open for ratification dealing with the rights of Indigenous and Tribal Peoples in Independent Countries. According to Article 1 of Convention 169, ‘tribal peoples in independent countries are those whose social, cultural, and economic conditions distinguish them from other sections of the national community, and whose status is ruled wholly or partially by their own customs and traditions or by special laws or regulations.’ Article 8(2) states that tribal and Indigenous Peoples ‘have the right to retain their customs and institutions, where these are not incompatible with fundamental human rights defined by the national law and with internationally recognized human rights’ (ILO Convention 169, 1989). The restructuring of the Mexican State coalesced into the North American Free Trade Agreement (NAFTA). While this agreement was being negotiated, the Mexican Federal Government was further pressured to modify several constitutional articles and legislation concerning land and natural resources to create certainty for foreign private investment. Importantly, in 1991, Article 27 of the Mexican Constitution was amended to loosen Indigenous and peasants’ control over their agricultural communal lands and ejidos. The ejido system had been recognised in Article 27 of the Mexican Constitution of 1917. It opened new spaces for dispossessed Indigenous peasants to reclaim lands and get their communal lands recognised by the state. With the amendment of this article, ejidos were transformed into private property that could be sold, mortgaged and rented to create a land market and open opportunities for business. Moreover, while previously land plots had been granted mainly to men, women had historically participated in agricultural activities and accessed land and resources based on customary practices (Altamirano-Jiménez, 2013, p. 83). Changes to Article 27 formally prevented Indigenous women from accessing the resources they used and the customary inheritance rights they enjoyed (Deere & León, 2000). Instead, women, particularly Indigenous women, became the target of neo-liberal policies claiming to foster their empowerment and responsible citizenship. To pacify the Indigenous movement opposing the modification of Article 27, in 1992, the Mexican Government amended Article 4 of the Constitution 1917 to recognise the ‘pluricultural’ nature of the Mexican State. Along the lines of the ILO Convention 169, the right of Indigenous Peoples to self-determination and to exercise their customary laws in the internal regulation of their communities was recognised. Although the Mexican Constitution recognised Indigenous rights, states were given the option to implement these rights on an individual basis. Oaxaca became the first state to change its internal constitution in 1995, recognising Indigenous normative systems and traditional forms of governance, a long-standing claim of the Indigenous movement. Later in 1998, Oaxaca recognised the right to Indigenous autonomy. In 2001, as a result of Indigenous Peoples’ demand for the implementation of the ‘San Andres Accord’—negotiated in 1996 between the government and the Zapatista National Liberation Army—Articles 1, 2, 4, 18 and 115 of the Mexican Constitution were also modified. In 2007, Mexico voted to adopt the UNDRIP. While Indigenous rights were being recognised in 1992, the Mining Law was also modified to establish free mining in the country. Later, this legislation was further

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transformed to make private investment more appealing by preventing municipalities from imposing taxes on mining corporations and lifting the ceiling for foreign investment in the industry. With these changes, mining concession holders can now demand that land occupied by towns be vacated to facilitate their endeavours (Bacon, 2013, p. 44). Since then, thousands of hectares have been given in concessions without the knowledge of the communities affected. Since the implementation of NAFTA, the extraction of minerals and other raw materials has grown exponentially throughout the country (Heidrich, 2016). I argue that the simultaneous recognition of Indigenous rights and the privatisation of Indigenous land and natural resources created a legal dissonance situation worth analysing. It invites us to think about how economic interests shape how states interpret the rights of Indigenous Peoples. Importantly, it also encourages us to think about how these peoples interpret UNDRIP and ILO Convention 169 in enacting practices of resistance to land encroachment.

WIND POWER GENERATION AND INDIGENOUS RIGHTS The Isthmus of Tehuantepec in the State of Oaxaca is the shortest stretch of land between the Gulf of Mexico and the Pacific Ocean and is home to the Zapotec and Ikoot peoples. This region is 220 km wide in its narrowest part and is a plateau covered by rivers, coastlines and marine lagoons. The northern slopes contain tropical forests rich in biodiversity, and the southern slopes are hot and dry and include some of Mexico’s largest sea lagoon systems. The southern part of the Isthmus is home to the Binnizaá and Ikoot peoples (also known as Zapotecs and Huaves, respectively). Many of these communities continue to rely on fishing and subsistence farming activities. From Spanish colonisation until now, this culturally and biodiverse region has been the focus of state intervention, foreign interests and private investments. Historically, the political practices of these communities have been expressed in defence of territorial rights and collective identity. Notably, in the 1980s, the emergence of the Coalition of Workers, Peasants and Students (COCEI in Spanish) propelled the creation of the first autonomous municipality in Mexico (Altamirano-Jiménez, 2013, Hernández Díaz, 2001). Due to its strategic location and richness in natural resources, this region has long been coveted by national and foreign elites. Oaxaca, particularly the Isthmus of Tehuantepec, constitutes an important case for analysing how Indigenous Peoples interpret UNDRIP and the ILO Convention 169 in refusing land dispossession. As noted earlier, Oaxaca is Mexico’s most culturally diverse state; it is well known for its communal property regimes and for the strength of Indigenous governance institutions. Although the federal government retains ownership of ejidos (collectively held land) and communal property, these land designations preserve Indigenous Peoples’ rights to their traditional lands and Indigenous normative systems. In the Isthmus of Tehuantepec, both types of land were widely used in the 1980s. Some ejidos were semi-privatised in the late 1990s through the Program for the Certification of Ejido

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Land Rights and the Titling of Urban House Plots (Programa de Certificación de Derechos Ejidales y Titulación de Solares Urbanos, or PROCEDE). However, many communities continue to hold lands communally. In the early 1980s, sustainable development for Indigenous communities became a public policy in Mexico. During this time, numerous small economic projects, such as organic coffee and community-driven forest conservation, were established with the support of international non-governmental organisations. In the Isthmus, where neither coffee cultivation nor forestry was an option, in 1986, the Federal Electricity Ministry (Comisión Federal de Electricidad, or CFE) installed devices to measure the velocity, intensity and variability of the north–south winds flowing abundantly across the region. Later, in the early 1990s, the Atlas of Oaxaca was published by the United States Department of Energy and the National Renewable Energy Laboratory, identifying the characteristics and distribution of wind resources in the region. A grid was drawn on an intricate territory of agricultural fields, lagoons, wetlands, villages, communal lands and ejidos to take advantage of wind riches. This was done without the knowledge of the Indigenous communities, let alone their permission. Wind energy has been commodified and extracted from the region for over two decades. Without the knowledge of the communities involved, several companies formalised their economic interests in developing large-scale wind power generation projects, forcing the government to divide the region and allocate land to foreign wind power companies (Ávila-Calero, 2017, p. 996). Foreign wind energy corporations and the Oaxaca government’s representatives started arriving on the Isthmus in the late 1990s, bribing individual land holders to gain support. Wind power corporations and government representatives constructed Indigenous lands as ‘wastelands’ that could be used better and subsistence agriculture as environmentally destructive. Instead, wind farming was represented as an economical, sustainable opportunity (Altamirano-Jiménez, 2013, p. 202). Since, in Oaxaca, many Indigenous communities continue to control their lands communally, wind power companies’ attempts to extract wind have manifested in practices that Indigenous communities deemed illegal. Misappropriation of land, co-optation of state and local authorities, and intimidation of Indigenous protesters, particularly women, became common (Montemayor, 2008). Binnizaá and Ikoot communities have opposed wind farming projects. Some Indigenous communities have interpreted the lack of consultations as violating their right to free, prior and informed consent. Despite claiming to embrace sustainability, the construction of industrial wind power farms has more recently intersected with mining concessions granted, again, without the communities’ knowledge or consent. Although mining and wind power generation constitute distinctive modalities of development, the first to extract minerals from the subsurface, and the latter to mitigate climate change, both face harsh Indigenous opposition. From Indigenous land defenders’ perspectives, these forms of development may not contaminate the land to the same extent, but both alter territorial dynamics and affect Indigenous people’s sources of livelihood. Indigenous opposition to land encroachment raises questions about the legality and legitimacy of these development projects. According to Indigenous lawyer Francisco

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López Bárcenas (2017), while the Mexican State has the authority to grant use of its land and waters, Indigenous landholders cannot be dispossessed from their land without the permission of the communal assembly of landholders who hold titles collectively. However, the Indigenous Law of 2001, specifically Article 2, section VI, recognises Indigenous Peoples’ rights to access their lands and resources according to the property regimes established in the constitution. In addition, such use and enjoyment of their lands are not extended to areas considered ‘strategic’ to the state (Constitución Política de los Estados Unidos Mexicanos de 1917). Similarly, while the state can grant access to the natural resources found in the subsurface, the land is needed to access these resources. These issues point to the dissonance created in contexts where legal pluralism exists. Moreover, although the origin of these conflicts often points to the lack of consultation, for many Indigenous communities, the problem is not consultation, which they perceive to be a trap, but an issue of consent and the right to self-determination. Both ILO Convention 169 and UNDRIP contain clauses stating that Indigenous Peoples should be consulted prior to any development on their lands. UNDRIP also establishes Indigenous Peoples’ right to free, prior and informed consent as a central component of the right to self-determination. According to UNDRIP, Indigenous Peoples have the right to be protected from any action aimed at affecting their integrity, to maintain and develop legal systems, and to participate fully in the state’s political, economic, social and cultural life. The realisation of Indigenous rights requires the creation of appropriate mechanisms and political will on the part of the state. This requires the state’s active and positive participation. Although Mexico was among the first Latin American countries to ratify the ILO Convention 169, it was not until 2014 that this country recognised Indigenous Peoples’ right to be consulted. Moreover, this legislation falls short in not including the right to Indigenous participation nor the necessary legal mechanisms (Martínez Mejía, 2014). There are several obstacles to limiting Indigenous collective rights, including the restrictions imposed by the Mexican State on Indigenous rights on areas considered strategic. Most jurisdictions have not yet created the appropriate mechanisms to undertake consultations (Rea Granados & Alejandro, 2015, p. 1104). Moreover, in many contexts, the right to consultations has been understood only as informing communities about the development activities that will take place on their lands. Although wind power generation farms had been built in the Isthmus since the late 1990s, the first consultation about this development in the community of Juchitán did not occur until 2014. In Mexico, municipalities constitute a third level of government and often bind together several communities. Despite the criticism of the process, however, the government maintained that consultations generated majority support for the project. This stance engendered a lack of trust in the affected communities. Certainly, not all communities are united or represent a unified front. Internal divisions exist in many communities, specifically along gender and generational lines, which are exacerbated when decisions regarding land use and economic projects are made. Corporations often fuel such divisions and the exclusion of women from these processes, making it difficult for communities to effectively have a say regarding

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development projects on their land. Despite provisions in international treaties emphasising Indigenous women’s participation in matters related to their territory, specific mechanisms for this purpose are non-existent in Mexico. Moreover, the lack of a gender perspective in existing mechanisms for participation in decision-making effectively excludes women. These dynamics have prevented Indigenous communities from seeing consultation as something positive. Indeed, it has been noted that for many Indigenous communities and organisations, consultation has been used to legitimise resource extraction and land dispossession. This is because Indigenous Peoples’ voices are not fully represented in these processes. Mexico has been criticised for not doing enough to protect the rights of Indigenous Peoples. Victoria Tauli-Corpuz, United Nations Special Rapporteur on the Rights of Indigenous Peoples, issued a technical note on consultation and free, prior and informed consent in this country. The Rapporteur noted the importance of consultations and the need for environmental, social and cultural assessments prior to approving extractive projects (the ‘informed’ element of FPIC) (Comisión Nacional de Derechos Humanos, 2019, p. 35). Tauli-Corpuz also reminds us that the participation of Indigenous women is necessitated by a broad sense of free determination and from provisions in the Convention on the Elimination of All Forms of Discrimination Against Women (Carvajal, 2015, p. 17). In theory, the right to prior consultation increases Indigenous participation in the design and implementation of public policy regarding the use of land and resources. In theory, it is the state’s responsibility to create mechanisms to ensure that the rights of Indigenous Peoples are respected. However, I argue that it is important to consider how the alliances between the state and multinational corporations and commitments derived from trade agreements work to circumscribe and limit how Indigenous rights are understood, establishing a playing field that always benefits extractive industries (Altamirano-Jiménez, 2013; Sawyer & Gómez, 2008). These alliances have manifested in the negotiation of NAFTA and the US–Mexico–Canada Agreement (USMCA). While international tools protecting the rights of Indigenous Peoples are often taken as aspirational, free trade agreements are governance agreements that can override national laws. For example, the tense renegotiation of NAFTA was initiated in 2017 and concluded in 2018 with the USMCA, which includes some important changes; the new agreement deepens cross-border ties in oil and gas, mining and the energy sector. Important for this chapter’s purpose is that the Sunset Clause stipulates that the terms of the agreement will remain effective for 16 years, at which time they can be revisited. For example, in August 2022, current Mexican President López Obrador announced that he had sent a letter to US President Joe Biden signalling his intention to revoke energy-related licences for US companies and to modify regulations governing the use of natural gas pipelines (Urioste, 2022). Both Canada and the US filed a request for dispute settlement under the USMCA, as governments cannot unilaterally change the terms of the agreement. In terms of Indigenous Peoples, although USMCA establishes a general exception to protect Indigenous interests, such a provision limits Indigenous interests only to producing handicrafts and limited harvesting of natural resources (Barrera, 2018;

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Schwartz, 2018). While these changes were celebrated for being progressive, they fell short regarding the proposal submitted by the International Inter-Tribal Trade and Investment Organization to the Canadian Government in 2017. This proposal called for cooperative activities designed to build capacity and improve Indigenous Peoples’ living conditions in the three countries through engagement in cross-border trade. The proposal also suggested stronger reservations to protect Indigenous rights and interest in land, guaranteeing the free movement of Indigenous Peoples across the Canada–US border and greater protection of Indigenous cultural property and traditional knowledge (International Inter-Tribal Trade and Investment Organization, 2017). These developments, in my mind, reveal the complex legal terrain in which Indigenous communities find themselves when trying to defend their territories. At the same time, these processes reveal that Indigenous rights cannot be understood as a solution in themselves but rather should be seen as a terrain of struggle in which Indigenous Peoples find ways to articulate their own interpretations of UNDRIP or ILO Convention 169, as I will show in the next section.

SELF-CONSULTATION, GENDER AND SELF-DETERMINATION Territorial conflicts manifest in cultural scenarios shaped by specific Indigenous meanings of territory, which is as a space of collective life, and co-constituted by the network of relationships between the human and non-human worlds. In contrast, economic rationality rests upon the separation of people from their territories and underpinned by capitalist processes of accumulation. In the Isthmus of Tehuantepec, as in other regions in Mexico, the defence mechanism more profusely used by Indigenous communities is the Mexican Agrarian Law, which safeguards those agrarian units whose tenure of the land is collective or communal. Despite government efforts to privatise Indigenous lands in Oaxaca, many Indigenous communities have consciously chosen to refuse the titling of their lands and remain organised as communal legal entities. Thereby, these communities invoke their rights to confront the Mexican state. An analysis of cases in Oaxaca where communities have successfully stopped extractive projects reveals that for Indigenous Peoples, self-determination translates into enacting their own Indigenous law and revitalising their communal legal status (Altamirano-Jiménez, 2020). When the state works in concert with transnational corporations to advance the latter’s interest, the maintenance and revitalisation of traditional Indigenous forms of governance, such as the communal assembly, have been a means to prevent external influence and internal division. Traditional communal governance institutions have been crucial to building consensus and spaces of deliberation sensitive to communities’ needs and aspirations. These institutions have been key spaces for communities to make a collective front of opposing land encroachment and responding to the perceived flaws of government-driven consultation processes.

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Indigenous communities have opted to create consultation protocols and implement their self-consultation processes (Rivasplata Cabrera & Castro Barnechea, 2018). Self-consultation departs from the idea that, as a right, it can be exercised directly by Indigenous Peoples when confronted with inadequate or inefficient state mechanisms to implement consultations. Indigenous self-consultation has started to be recognised as an expression of Indigenous political autonomy and self-determination. An Indigenous community decides to develop their own protocols and organise an internal dialogue about a project that could affect their lands according to their normative systems, rules and worldviews. It is a participative process organised from below and through Indigenous institutions such as the communal assembly, as in the case of Mexico, which operates through consensus building. Other mechanisms such as plebiscites, free voting and general assemblies are used in other cases. Indigenous self-consultations adhere to the standards set in the ILO Convention 169. Self-consultation must be culturally appropriate, and the process must include enough information in an accessible language to be effective. Indigenous participation must also respect the rhythm and times of the communities involved. Often, external observers are invited to attend. The results from these self-consultation processes are signed by all participants and often also notarised. In a recent process of self-consultation organised by Mayan communities opposing the creation of industrial pig farms in Yucatán, Mexico, the United Nations Human Rights Office of the High Commissioner was also invited to attend the process as an external observer (Rojas, 2021). Organised under the banner of ‘Never Again Without Our Consent’, the communities of Celestun, Kinchil y San Fernando, insisted that self-consultation was an expression of their right to self-determination and to say no (García, 2021). There are at least two important aspects of self-consultation. First is the principle that consultation cannot be separated from consent. Second, it is grounded on Indigenous Peoples’ right to develop their own protocols. Indigenous governance institutions such as the communal assembly have provided the space for participation and free voting. In some cases, judges have accepted the results of these processes as legal records of a community’s decision to oppose extractive projects (Rivasplata Cabrera & Castro Barnechea, 2018). While self-consultation is a novel participatory process, it results from the extensive knowledge that Indigenous communities have accumulated due to having to interact with different legal systems that shape their communal life. Self-consultations reveal the novel ways Indigenous Peoples interpret and execute international tools such as the ILO Convention 169 and UNDRIP for their own purposes instead of just depending on the state’s goodwill to protect their rights. I argue that self-consultation can be seen as a de facto exercise of Indigenous self-determination and the right to say no. In contexts with no clear and trusted state mechanisms and protocols to implement consultations, Indigenous self-consultation is becoming an important mechanism for Indigenous communities to have a say on what happens on their lands. It has been used in Ecuador, Bolivia, Guatemala and Peru.

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Certainly, not all Indigenous communities oppose economic development or are committed to protecting the environment. Some participate in economic projects such as mining (Perreault, 2014). Some communities use self-consultation to engage in meaningful dialogue with the state and corporations. There are communities— such as some of the Tehuantepec Isthmus—that oppose wind power to the extent this prevents them from using their territories and their resources (Altamirano-Jiménez, 2017, 2021). There are also important challenges that must be considered in the processes of organizing Indigenous self-consultation to prevent the reproduction of gender-exclusionary practices. As active land defenders, Indigenous women have pushed for participation that includes their voices. Women not only want to be invited to participate; they demand the inclusion of their own experiences and desires in the generation of information and any decision concerning their territories. This involves understanding that the impact of capitalist development is gendered and has rested on colonial constructs that have affected Indigenous women in particular ways. In Oaxaca, for example, Indigenous women’s position within their communities varies. In some communities, women participate in the community’s political life through their households. In others, when women marry, they lose their right to hold land and to participate in the communal assembly, which is the ultimate political space where communal citizenship is exercised. In many communities, when men migrate, the responsibility for the survival of the household and even the maintenance of men’s community citizenship falls upon women. At the same time, migration has opened up spaces for transforming communal practices. For example, recent data confirm that 1,100 women currently occupy leadership posts in those municipalities ruled by traditional Indigenous governance systems. Women have been elected as mayors in 5 per cent of these municipalities; this shows an important trend (Valladares de la Cruz, 2018, p. 19). Since the household unit is crucial to the functioning of Indigenous governance systems, when men migrate, women are left responsible for contributing to communal work. Although men have often been landholders, increasingly Indigenous women have started participating in communal land assemblies. Indigenous and Afro-descent women in Latin America have been critical of extractive projects. Due to their roles and responsibilities as caregivers and lack of land rights, women are particularly vulnerable when external actors exercise control in their territories (Carvajal, 2015, p. 18). In the Isthmus of Tehuantepec, Zapotec women have claimed that although men are often the communal landholders, women are a fundamental part of the reproduction of communal life. They guarantee the food sovereignty of their communities and contribute to their communal life (Pronunciamiento de las Jeromeñas en Contra de la Minería, 2016). Indigenous women have often been the target of attacks, acts of intimidation and sexual violence and, in some cases, have been made to simply disappear in the contexts of conflicts. In the Isthmus, women activists are often arrested on fabricated charges, and their reputations are destroyed in their communities. In small, close-knit Indigenous communities, spreading rumours about women’s morality has

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been a common way to discredit their political work (Altamirano-Jiménez, 2021). Indigenous women daring to defend their land in community contexts also face community backlash. In some cases, when women take action to defend their territory or human rights, they are perceived as challenging sociocultural norms and stereotypes about femininity (Martínez Cruz, 2016, p. 172). At the same time, their activism contributes to opening avenues for their voices to be heard. Self-consultation has the potential to open spaces for Indigenous women’s participation. Communities can create inclusive dialogue spaces where Indigenous women can express their concerns regarding extractive projects and transform gender relations.

CONCLUSION This chapter has mapped the importance of land in the communal life of Indigenous communities. Centring the nexus of land, gender and colonialism, I analysed the legal dissonances arising from the intersection of the implementation of international legal instruments tools and the neo-liberalisation of land and natural resources. I demonstrated that the perils of implementing Indigenous rights cannot be separated from the broader economic and governance contexts in which such rights are recognised and exercised. Focusing on the state of Oaxaca and, more specifically, the territorial conflicts unfolding in the Isthmus of Tehuantepec, I showed that to counteract the alliances between the state and private investment, Indigenous communities have found novel ways to interpret Indigenous rights and specifically self-consultation as a de facto exercise of self-determination. These novel ways have emerged from communities’ self-determining practices, how they interpret the ILO Convention 169 and UNDRIP and enact their own Indigenous laws. At the same time, Indigenous women challenge these practices seeking to transform the patriarchal values of their communities. Although Indigenous women call attention to their rights to participate in decision-making, they see their communities’ Indigenous governance systems as dynamic entities that can evolve to incorporate the active participation of Indigenous women.

REFERENCES Altamirano-Jiménez, I. (2013). Indigenous encounters with neo-liberalism: Place, women and the environment in Canada and Mexico. Vancouver, Canada: UBC Press. Altamirano-Jiménez, I. (2017). The sea is our bread: Interrupting green neo-liberalism. Marine Policy, 80, 28–34. https://​doi​.org/​10​.1016/​j​.marpol​.2017​.01​.015 Altamirano-Jiménez, I. (2020). Free mining, body land and the social reproduction of Indigenous life. In A. Dombrowski & F. Macdonald (Eds.), Turbulent times, transformational possibilities? Gender and politics, today and tomorrow (pp. 159–176). Toronto, Canada: University of Toronto Press. Altamirano-Jiménez, I. (2021). Possessing land, wind and water in the Isthmus of Tehuantepec, Oaxaca. Australian Feminist Studies, DOI:10.1080/08164649.2021.191998.

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Atiles-Osoria, J. & Whyte, D. (2018). The state of exception, law and the economy: A socio-legal approach to the state of exception in the era of crises. Oñati Socio Legal Series, 8(6), 808–818. Retrieved on 30 August 2023 from https://​ ssrn​ .com/​ abstract​ =​ 3248981 Ávila-Calero, S. (2017). Contesting energy transitions: Wind power and conflicts in the Isthmus of Tehuantepec. Journal of Political Ecology, 24(1), 992–1012. https://​doi​.org/​10​ .2458/​v24i1​.20979 Bacon, D. (2013). The right to stay home: How US policy drives Mexican migration. Boston, MA: Beacon Press. Barrera, J. (2018). New Trade Agreement a ‘step up’ from NAFTA on Indigenous Rights. CBC, 1 October, retrieved on 23 January 2023 from https://​www​.cbc​.ca/​news/​indigenous/​ usmca​-trade​-deal​-indigenous​-rights​-1​.4846073 Carvajal, L. M. (2015). Women’s participation in consultation processes within the framework of defense of territories and nature in Latin America. In C. Papadopoulous & L. M. Carvajal (Eds.), Women defending territory: Experiences of participation in Latin America (pp. 9–45). Bogota, Columbia: Fundación Cultural de Artes Gráficas. Comisión Nacional de Derechos Humanos. (2019). Preguntas y respuestas sobre el derecho a la consulta previa, libre e informada, de buena fe y culturalmente adecuada de los pueblos indígenas y afromexicana. Mexico City, Mexico: Comisión Nacional de Derechos Humanos. Retrieved on 23 January 2023 from http://​ appweb​ .cndh​ .org​ .mx/​ biblioteca/​ archivos/​pdfs/​Consulta​-Indigenas​-Afromexicanas​.pdf Constitución Política de los Estados Unidos Mexicanos de 1917, reformado y publicado en el Diario Oficial de la Federación del 14 de agosto de 2001 [Political Constitution of the United Mexican States of 1917, amended and published in the Official Gazette of the Federation on 14 August 2001]. Deere, C. D. & León, M. (2000). Ciudadanía y derechos económicos: la importancia de la tierra para las mujeres latinoamericanas. Bogotá, Columbia: Tercer Mundo and Universidad Nacional de Colombia. El Economista. (2018). Dos de cada 10 mexicanos se identifica como indígena. El Economista, 12 December. Retrieved on 31 October 2023 from https://​www​.eleconomista​.com​.mx/​ politica/​Dos​-de​-cada​-10​-mexicanos​-se​-asumen​-indigenas​-20181212–0049​.html Florescano, E. (1997). Etnia, estado y nación. Mexico City, Mexico: Aguilar. García, D. (2021). Convocan pueblos mayas a autoconsulta contra construcción de granjas de cerdos. Somoselmedio, 15 July. Retrieved on 23 January 2023 from https://​ www​ .somoselmedio​.com/​convocan​-pueblos​-mayas​-a​-autoconsulta​-contra​-construccion​-de​ -granjas​-de​-cerdos/​ Heidrich, P. (2016). Determinants, boundaries and patterns of Canadian mining investment in Latin America (1995–2015). Latin American Policy, 7(2), 195–214. https://​doi​.org/​10​ .1111/​lamp​.12106 Hernández Díaz, J. (2001). Reclamos de la identidad: La formación de las organizaciones indígenas en Oaxaca. Mexico City, Mexico: Miguel Ángel Porrúa and Universidad Autónoma Benito Juárez de Oaxaca. ILO 169 Indigenous and Tribal Peoples Convention, 1989. Retrieved on 23 January 2023 from https://​www​.ilo​.org/​dyn/​normlex/​en/​f​?p​=​NORMLEXPUB:​55:​0:​:​NO:​:​P55​_TYPE​ ,P55​_LANG​,P55​_DOCUMENT​,P55​_NODE:​REV​,en​,C169​,/​Document International Inter-Tribal Trade and Investment Organization. (2017). Submission by the International Inter-Tribal Trade and Investment Organization to the Government of Canada for the Renegotiation and Modernization of NAFTA. Retrieved on 23 January 2023 from https://​iitio​.org/​nafta/​ Kellogg, S. (2005). Weaving the past: A history of Latin America’s Indigenous women from the prehispanic period to the present. Oxford, UK: Oxford University Press. Knight, A. (2002). Mexico: The colonial era. Cambridge, UK: Cambridge University Press.

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Liverman, D. & Vilas, S. (2006). Neoliberalism and the environment in Latin America. Annual Review of Environment and Resources, 31, 32–363. López Bárcenas, F. (2017). La vida o el mineral: Los cuatro ciclos del despojo minero en México. Madrid, Spain: Akal. Martínez Cruz, A. (2016). Tejiendo identidades estratégicas: Asamblea de Mujeres Indígenas de Oaxaca [Weaving strategic identities: Assembly of Indigenous women of Oaxaca]. Nómadas, 45, 169–187. Retrieved on 23 January 2023 from http://​www​.scielo​.org​.co/​scielo​ .php​?script​=​sci​_abstract​&​pid​=​S01​21–75502016000200012 Martínez Mejía, E. (2014). El derecho humano a la consulta de los pueblos y comunidades indígenas: principios internacionalesy su aplicación en México. Diario de Campo, 45, 78–85. Retrieved on 31 October 2023 from https://​revistas​.inah​.gob​.mx/​index​.php/​ diariodecampo/​article/​view/​5727/​6573 Mbembé, J. & Meintjes, L. (2003). Necropolitics. Public Culture, 15(1), 11–40. Retrieved on 23 January 2023 from https://​www​.muse​.jhu​.edu/​article/​39984 Montemayor, C. (2008). La minera canadiense [The Canadian mining company]. La Jornada, 10 and 11 July. Retrieved on 23 January 2023 from https://​www​.jornada​.com​.mx/​2009/​12/​ 16/​opinion/​011a1pol Perreault, T. (2014). What kind of governance for what kind of equity? Towards a theorization of justice in water governance. Water International, 39(2), 233–245. Powers, K. V. (2005). Women in the crucible of conquest: The gendered genesis of Spanish American society, 1500–1600. Albuquerque, NM: University of New Mexico Press Pronunciamiento de las Jeromeñas en Contra de la Minería, Movimiento Mesoamericano contra Modelo extractivo Minero. Retrieved on 30 January 2023 from https://​ www​ .biodiversidadla​.org/​Documentos/​Mexico​_Pronunciamiento​_de​_las​_jeromenas​_contra​_el​ _proyecto​_minero​_de​_Ixtepec Rea Granados, S. A. & Alejandro, S. (2015). Derecho a la consulta y la participación de los pueblos indígenas, la experiencia constitucional en los casos de México y Chile. Boletín Mexicano de Derecho Comparado, XLVIII(144), 1083–1117. Rivasplata Cabrera, F. & Castro Barnechea, C. (2018). Protocolos de Consulta: Experiencias en Latinoamérica. Derecho, Ambiente y Recursos Naturales. Retrieved on 30 January 2023 from https://​dar​.org​.pe/​archivos/​docs/​ProtocolosdeConsulta​.pdf Rojas, S. (2021). ONU-DH reconoce proceso de autoconsulta indígena en Yucatán, 29 July. Milenio. Retrieved on 30 January 2023 from https://​www​.milenio​.com/​politica/​organismos/​ onu​-dh​-reconoce​-proceso​-autoconsulta​-indigena​-yucatan Sawyer, S. & Gómez, E. T. (2008). Transnational governmentality and resource extraction. Geneva, Switzerland: United Nations Research Institute for Social Development. Schwartz, E. (2018). Unpacking equity: the fight for Indigenous rights under USMCA. The Public Policy and Governance Review, November 28. Retrieved on 28 November 2022 from https://​ppgreview​.ca/​2018/​11/​28/​unpacking​-equity​-the​-fight​-for​-indigenous​-rights​ -under​-usmca/​ Sousa, L. (2017). The woman who turned into a jaguar and other narratives of women in the archives of colonial Mexico. Stanford, CA: Stanford University Press. Urioste, J. (2022). Can Mexico leave the USMCA? The Yucatan Times, 21 August. Retrieved on 28 November 2022 from https://​www​.theyucatantimes​.com/​2022/​08/​can​-mexico​-leave​ -the​-usmca/​ Valladares de la Cruz, L. R. (2018). El asedio de las autonomías indígenas por el modelo minero extractivo en México [The siege of Indigenous autonomies and the extractive mining model in Mexico]. Iztapalapa Revista de Ciencias Sociales y Humanidades, 85(39), 103–131. http://​dx​.doi​.org/​10​.28928/​revistaiztapalapa/​852018/​atc5/​valladaresdelacruzlr Williams, G. (2011). The Mexican exception: Sovereignty, police and democracy. New York, NY: Palgrave Macmillan.

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Yeager, T. (1995). Encomienda or slavery? The Spanish Crown’s choice of labour organization in sixteenth-century Spanish America. The Journal of Economic History, 55(4), 842–859. Retrieved from http://​www​.jstor​.org/​stable/​2123819 Zeitlin, J. F. & Thomas, L. (1992). Spanish justice and the Indian Cacique disjunctive political systems in sixteenth-century Tehuantepec. Ethnohistory, 39(3), 285–315.

11. Indigenous political economy and public policy Frances Abele

INTRODUCTION Indigenous political economy examines the evolving relationships between social relations of production and state power as these have engaged Indigenous Peoples during the global expansion of capitalism. The field is in dialogue with and draws upon both ‘classical’ political economy and Indigenous political thought. Historical analysis—tracing social, political and economic transformation over time—and attention to practice and theory are central to the tradition.1 Classical political economy was born as scholars tried to understand the fundamental economic transformations that began in 16th-century Europe and then expanded to reorganise productive human life around the globe. Early European political economists (e.g., Serra, 2013) studied mercantilism and the rise of trading cities such as Venice.2 As agriculture was ‘improved’ and supplemented by manufacturing in 17thand 18th-century England, Adam Smith and others aimed to explain the dynamics of the new economies emerging before their eyes. These were characterised by changes to production methods, expansion of a landless workforce, burgeoning trade including trade in human slaves, colonial innovation in Ireland, appropriation of Indigenous lands and the establishment of plantations in the ‘New World’. Of course, these political economists studied the rise of capitalism through European eyes, limited by what they knew and cared about. For example, John Locke meant to justify or regularise the land grabs and new practices of subjugation that went along with capitalism’s expansion (Arneil, 1996; Tully, 1994; Wood, 1984).3 Studying radically new relations of production and the emergence of what would eventually become the modern state, political economists wrote from the summit of power or to advise those who were there. Such was not the case for another school of social and economic analysts, who allied themselves with the poor, dispossessed and workers. Karl Marx, Friedrich Engels and Rosa Luxemburg are the best-known

1 ‘Indigenous Peoples’ refers to the nations and societies whose lands were appropriated by global imperialism and concomitant incursions onto their territories. The understanding of ‘political economy’ used in this chapter is compatible with Clement and Drache (1978), ‘Editorial statement’ (1979), ‘Editorial’ (1974) and Gamble, Payne, Hoogvelt, Dietrich and Kenny (1996). None mentions an Indigenous perspective. 2 For example, Serra (2013). For an overview, see the introduction to Reinert (2011). 3 For a rich reflection on property and dispossession, see Greer (2018).

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classical writers in this vein. Indigenous political economy draws—often critically— upon these authors and others whose work is inspired by the Marxist tradition, correcting its Eurocentrism. It also builds upon insights from Indigenous political thought as these have become increasingly available and upon the political purposes and lived experiences of Indigenous people worldwide (e.g., Borrows, 2010; Ladner, 2003). The goals are to understand the historical processes that have produced present circumstances and to provide guidance for building a more just present and future. Given the global reach and wide variety in the study of Indigenous political economy, within the compass of a single chapter it is possible only to treat select themes and certain authors. Thus, this chapter discusses the academic literature produced in or about settler colonies, mainly Canada and Australia, in the last fifty years.4 These countries share much in terms of colonial history, staple resource bases, introduced political and economic institutions, and how their evolving contemporary states have responded to Indigenous political mobilisation. All this literature has necessary implications for policy and decision-making as one site of the Indigenous struggle to realise self-determination (see Altman & Rowse, 2005), alongside internal political and social development, litigation, and both parliamentary and extra-parliamentary political mobilisation. Indigenous political economy arises from the confrontation between Indigenous Peoples and evolving capitalist relations. One aspect of this confrontation—namely, the changes to the structure of community economies—is discussed below. In what follows, I trace Australian and Canadian research on mixed or hybrid economies, Indigenous social innovations in the response to the opportunities and pressures that came with capitalism, debates over the implications of this, and, in particular, new considerations of how wage labour affects familial and kin relations.

THE FOUNDATION: PRIMITIVE ACCUMULATION Numerous scholars have used the concept of primitive accumulation to describe the appropriation of Indigenous lands and labour by settler societies. Glen Coulthard (2014, pp. 7–8) writes:5 Marx’s historical excavation of the birth of the capitalist mode of production identifies a host of colonial-like state practices that served to violently strip—through ‘conquest, enslavement, robbery and murder’—noncapitalist producers, communities and societies from their means of production and subsistence. In Capital these formative acts of violent dispossession set the stage for the emergence of capitalist accumulation and the reproduction of capitalist relations of production by tearing Indigenous societies, peasants and other I recommend readers interested in a broader compass to consult, initially, Ince (2018). Primitive or original accumulation was first described by 18th-century Scottish political economists Adam Smith and James Stuart, and later reinterpreted by Karl Marx, who emphasised its exploitative character. The term itself refers to original or primary accumulation, the term ‘primitive’ being an artefact of translation from the German. 4 5

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small-scale self-sufficient agricultural producers from the source of their livelihood—the land …. The historical process of primitive accumulation thus refers to the violent transformation of noncapitalist forms of life into capitalist ones.

Like Rosa Luxemburg, David Harvey and others, Coulthard (2014, pp. 9–15) sees primitive accumulation not as a stage in social transformation (as Marx did initially) but as a permanent and integral feature of the expansion of capitalism.6 This insight explains why Indigenous labour has continued to be incompletely proletarianised in colonial settings and draws attention to the expression of primitive accumulation at the family and community levels. It also makes considering Indigenous understandings of the process and alternatives easier. Building upon the early work of Franz Fanon and reflecting upon the political trajectory of his own people, Dene of the Canadian Northwest Territories, Coulthard (2014, p. 17) identifies ‘the field of power through which colonial relations are produced and maintained.’ He shows how this field of power channels political action towards seeking recognition by the state. He counsels that, instead of remaining within the colonial field of power, seeking recognition and mutuality, Indigenous people instead should focus on self-recognition and critical re-evaluation, reconstruction and redeployment of culture and tradition towards a radical alternative to colonial domination (Coulthard, 2007, p. 456).7 In practical terms, what does (or would or could) this look like? The basis for answering these questions lies in research begun in settler colonies at least two generations ago. This work aims to document and understand lifeways that developed and persisted on the frontier defined by ever-expanding capitalist relations of production and the original Indigenous economies—the very moment at which primitive accumulation occurs and is resisted. While there are many particular instances of this process around the globe, for present purposes, we will focus on each country’s

6 Coulthard (2014) acknowledges the work of David Harvey, Silvia Federici, Taiaiake Alfred, Rauna Kuokkanen, Andrea Smith and Peter Kropotkin in demonstrating ‘the persistent role that unconcealed, violent dispossession continues to play in the reproduction of colonial and capitalist social relations in both domestic and global contexts’ (p. 9). Coulthard notes that, until near the end of his career, Marx viewed primitive accumulation as an early phase of capitalism, to be superseded by subsequent phases. This aligns with a typically 19th-century conceptualisation of a chronological continuum of social formations, from ‘primitive’ pre-capitalist societies through feudalism to capitalism, and so on. See Tilley, Kumar and Cowan (2017) and Nichols (2021a, 2021b). 7 Similarly, Heather Dorries follows Patrick Wolfe in understanding settler colonialism as a ‘colonizing force [that] does not leave but rather seeks to replace Indigenous society with settler colonial society’—that is, with a regime of permanent settlement based upon the appropriation of land. She notes, ‘logic of elimination is the “organizing grammar” of settler colonialism that permeates all aspects of settler society and can be read in multiple forms of physical and structural violence. The constant violence of elimination renders colonialism an enduring structure rather than a singular (past) event.’ Dorries (2019, p. 27) traces these forces through the deceptively anodyne processes of town planning and urban development that read out of decision-making Indigenous sovereignty and livelihood.

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northern regions, what has been called the mixed economy in Canada and the hybrid economy in Australia. Each can be seen as an artefact of Indigenous Peoples’ resistance to the loss of independence entailed by primitive accumulation.

HYBRID AND MIXED ECONOMIES Peter Usher and like-minded scholars (Abele, 2009; Asch, 1977; Harder & Wenzel, 2012; Natcher, 2009; Usher, Duhaime and Searles, 2003) documented the mixed economy that emerged in Northern Canada as Dene, Metis, Inuvialuit and Inuit adapted to the challenges and opportunities presented by capitalist development in its successive phases. Beginning with trade in the time of mercantilism, Indigenous people incorporated new material and cash into their existing production practices, taking advantage of evolving opportunities to enhance their productivity and expand the range of consumer goods available to them. To this day, in mixed economy communities, cash income from social welfare, commodity sales, wages and other sources are pooled within households to support harvesting by providing the means to purchase necessary equipment and supplies. In turn, the income in kind (such as food, hides, bone and horns) from harvesting is shared within and among households. Over time, the mix of sources of income has varied in response to shifting opportunities for wages, commodity sales and social transfers, as well as fluctuations in available fish and mammals. The dynamic mixed economies of the Canadian North have thus proven to be remarkably resilient and durable—among other benefits providing an economic buffer in the inevitable ‘bust’ cycles of resource economies (Abele, 2009; Asch, 1977; Harder & Wenzel, 2012; Natcher, 2009; Usher, 1976; Usher & Weihs, 1989).8 In Australia, Jon Altman developed a similar line of analysis focusing on the hybrid economy, which exists in several expressions at the intersection of state programs, customary practices and the market (Altman, 2004a, 2004b; Buchanan, 2014, 2016).9 He noted that the customary sphere had survived the modernisation of Indigenous productive practices that are, in part, now supported by government transfers and participation in the market. For example, ‘articulation’ between the state and the customary sector in the form of repurposed income support can provide improved livelihood options for Indigenous people without requiring a full transformation of their economic base from what they have known for millennia. With appropriate policy stewardship, the hybrid economy can foster land-based production

8 This is, of course, a heuristic model meant to capture the essence of many particular expressions. See Elias (1997) on Usher and Stabler among others, the discussion of Marshall Sahlin’s (1972) concept of the original affluent society and Daschuk (2019) for a synthesis of the evolution of Indigenous economies in the mercantilist phase of capitalism. 9 See the very helpful discussion of Pearson and Altman in Curchin (2015) and the recent articles devoted to Altman’s work in Sanders (2016). See also Carson (2011).

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and concomitant attachment to the land in a fashion that integrates cash income from various sources. Usher and Altman thus offer complementary understandings of the intersection of Indigenous economies and capitalism that explain the historical persistence of Indigenous productive practices and envision their continuation into the future as the material basis for Indigenous self-determination. Rather than assimilation, they point towards the possibility of integration on Indigenous people’s terms, provided that economic development policies and programs support this mixed or hybrid economic structure. Both see the mixed or hybrid economies as relatively stable, capable of adapting to new pressures (competition for resources from industrial development) and opportunities (the availability of new technologies) while maintaining their essential character and continuity with original culture and lifeways. Others have reached different conclusions. Noel Pearson (2000, 2009) sees full participation in the wage economy as a necessary feature of Australian Indigenous Peoples’ future wellbeing. Pearson has, over many years, explained the benefit of Indigenous people joining what he calls ‘the real economy’.10 His analysis turns on a central insight that for people and for a society to be healthy, there needs to be a material and visible connection between effort and reward. He notes that this was present in the original Indigenous economy and is presently in capitalist wage relationships. It is not present when people’s livelihood relies upon state support; social assistance payments awarded based on need make no connection between effort and reward. So, far from supporting traditional productive activity, they eventually undermine social and individual health. Pearson thus rejects a role for the state in providing cash support to individuals. While acknowledging that embracing wage employment may result in some cultural loss and social transformation, he insists that people may, by their own choice, walk in both worlds, preserving features of their societies while succeeding in the mainstream. He argues, though, that they may enjoy a good life only by finding an economic position in which their own labour supports them. A complementary analysis to Pearson’s understanding of the situation in Northern Australia has been proposed for Northern Canada by economists working with the concept of the dual economy. This heuristic is an alternative to the mixed or hybrid economy concepts as described by Usher and Altman. The concept of the dual economy is drawn from the international development literature. It envisions analytically separate ‘traditional’ and ‘modern’ or waged segments of the economy (Stabler, 1989). Rather than focus on the process by which people are separated from the land and from their customary means of making a living—that is, on primitive accumulation—the dual economy model assumes a desirable process of ‘development’. This progresses as workers move from the traditional sector to the wage sector, leaving the former behind, except as a form of recreation. Policies that facilitate this transition—for example, employment training programs—are recommended.

In Canada, see Helin (2006).

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Newhouse (2000) sees the same process with a less sanguine eye. He likens the capitalist system to the Borg, a fictional civilisation portrayed in the TV series Star Trek. The Borg are adapted to absorb individuals from other civilisations, integrating them into a hive mind from which there is no escape. Newhouse (2000, pp. 152–3) observes: The idea that we can somehow participate in capitalism without being changed by it is in my view wrong-headed. We already participate in the central institutions of capitalism in our own communities: we have private property, production for the market, institutions for access to credit, and local governments which pass by-laws to support the development of local businesses. We have a desire to accumulate wealth and to use that wealth to create more wealth, and we have accepted the idea, for the most part, that progress is measured in material terms.

Although he does not discuss dispossession and the separation of producers from the land, Newhouse draws our attention to the impact of participation in the central institutions of capitalism on people’s values and consciousness. His insight, in this respect, converges with Coulthard’s discussion drawing upon Fanon. Notably, while these authors look at more or less the same circumstances—life in the littoral zone at the intersection of capitalism and traditional Indigenous ways of making a living—they apply contrasting analytical frameworks differentiated by normative principles and a few assumptions.11 Thus Indigenous people of working age are seen as current or potential labourers—in dual economy terms, ‘waiting’ for employment in the wage sector.12 Meanwhile, in the hybrid or mixed economy model, the same individuals appear as members of households who are adept at combining sources of income in a way that permits continuity with the long-standing, productive practices of their society. Polities that understand the persistence of distinctive Indigenous societies as a prime value will build policy choices on the hybrid model; those who would promote incorporation into capitalist relations—or those who, like Newhouse (2000) see this process as well underway and inevitable—will favour the dual economy model.

ANALYSING THE PROCESS Kuokkanen (2011b) disputes Newhouse’s (2000) conclusions about the inevitability of absorption into capitalism and blunter endorsements of capitalism from other Indigenous voices. She points out that, before accepting Indigenous social and economic relations have been supplanted, it is necessary to consider the historical effects of the global market economy on Indigenous economies, taking into consideration ‘competing land and resource uses, colonial state regulations and environmental 11 For a discussion of the impact of disciplinary choices, see Altman and Rowse (2005, pp. 176–177). 12 See Stabler (1989, p. 147).

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destruction, the diminished or lack of access to traditional territories and resources due to expropriation of lands or intrusion of outsiders’ (p. 216). Against these forces, Kuokkanen holds up the subsistence economy and the role of women in sustaining it. She understands subsistence as ‘both an economic and a social system … characterized by endless circulation of goods, services and other products.’ She presents empirical evidence that this economic system survives at least in Northern Canada and assembles more evidence of Indigenous women’s resistance to the forces that would destroy it from elsewhere. Approvingly, Kuokkanen (2011a, p. 275) quotes Green’s (2002, pp. 31–32) diagnosis of the problem to which Newhouse (2000) alludes: The world of globalized capitalism drives not only colonial governments, but, increasingly, Aboriginal ones. Some pursue profits and capitalist methods like union-busting. Some seek an accommodation with capitalist development that might benefit Indigenous communities, an example being the current agreement between the James Bay Cree and Quebec [concerning the] arguably environmentally problematic hydro development. Those who would choose non-capitalist alternatives are at odds with the dominant culture, political ideology and economic structure.

Kuokkanen (2019) and Green (2002) draw our attention to the liminal social and political institutions structured by the imperatives of capital. Kuokkanen sees the possibility of restructuring ‘all relations of domination premised on inequality and injustice’ (Kuokkanen, 2019, p. 2). In this regard, she refers to ‘relations of settler colonialism, neoliberal capitalism, paternalism, misogyny, sexism, homophobia, and gender violence’ (p. 2). I would add that this entails attention to the state and Indigenous governance institutions and structures through which these relations are expressed and replicated. Kuokkanen and Green have in mind a social, historical process akin to Karl Polanyi’s (2001 [1944]) double movement. This is identified in his study of the emergence of capitalism as a dialectical process: commodification and a corresponding push for social protection. Kuokkanen (2011b) does not mention the double movement, but it is implied in her analysis: Subsistence economy is considered a threat to capital accumulation because it does not comply with the capitalist logic and goals but instead is a sign of independence, self-sufficiency, and self-reliance. Karl Polanyi maintains that the institution of the market economy requires the destruction of traditional social structures such as village communities and clan solidarity. (p. 230)

She approvingly quotes Polanyi’s (1945, p. 157) assertion that ‘a social calamity is primarily a cultural and not an economic one.’ Polanyi writes: Not economic exploitation, as often assumed, but the disintegration of the cultural environment of the victim is then the cause of the degradation. The economic process may, naturally, supply the vehicle of the destruction, and almost invariably economic inferiority will make the weaker yield, but the immediate cause of his undoing is not for that reason economic; it lies in the lethal injury to the institutions in which his social existence is embodied.

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Hall’s (2022) study of the impact of work in the booming diamond mining sector of the Northwest Territories economy on women and families led her to see the mixed economy not entirely as stable and resilient but rather contested, a zone of struggle. Her conversations with women of mining families—both miners and their spouses— showed her, over time the ever-shifting social relations of this place have borne the tensions—gendered, racialized, and, arguably violent—between the capitalist temporal imperative to extract surplus value and subsistence-oriented relations revolving around peoples, land, and animals. (p. 4)

These tensions penetrate the domestic or mixed economy; they are expressed in the home as family tensions and sometimes as domestic violence. This is the violence of primitive accumulation internalised, bringing about cultural and social change. Many scholars comment on the resilience and persistence of the mixed or hybrid economy, lauding its capacity to respond to changes in external pressures and incorporate new opportunities. Often there is an implicit assumption of a consistent trajectory in which the mixed economy more or less ‘automatically’ adapts to shifting exogenous pressures and opportunities. Hall’s historical perspective disputes this. She draws upon the concept of ‘rupture’ from Tlicho Dene’s political thought, which aligns well with Polanyi’s vision of change. Following Dene political philosopher John B. Zoe, Hall notes:13 Tlicho cosmology is oriented around ruptures in social relations that are then negotiated and resolved. The concept of ‘rupture’ acknowledges the impact of new relations and the labour necessary to manage the impact, but it does not approach the new relations as totalizing. Instead, eras marked by the rupture of new relations make space for a new set of dialectically emergent relations. What is distinctive about the Tlicho approach to new eras/ relationships is the importance it places on the past and on the values that were established in previous eras when new agreements and practices and the new relationships that came with them were being forged. (Hall, 2022, pp. 9–10)

This understanding of primitive accumulation captures both the violence of primitive accumulation as an externally driven force and the reality of the double movement: the recognition that human societies, faced with ineluctable forces, respond not simply by resisting but also by striving to shape the society in which they wish to live. After several centuries of interaction with capitalism in all its phases, it is evident that Indigenous Peoples will strive to build future societies that reflect their fundamental ways of being and understanding. Of course, it remains to consider the extent to which this is ultimately possible and which policy choices will favour it. 13 See also Hall 2022. George Wenzel’s decades of work with Inuit at Clyde River, Nunavut, led him to the following comment on the impact of climate change on harvesting and many aspects of daily life: ‘Inuit face complex changes in social, economic and climate conditions, but they have a millennium of experience adapting to change.’ See Wenzel 2009 and also Hosmer and O’Neill (2004).

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However, as Curchin (2016) has observed: [T]he challenge inherent in deriving a livelihood from uniquely Indigenous practices while safeguarding the distinctive moral understandings which inform these practices has analogies in many other fields. Knowing that partial commodification does not always lead to corruption of non-market values provides grounds for optimism. At the same time we should avoid a blind celebration of hybridity. Economic hybridity threatens lose–lose scenarios just as much as it promises win–win ones. It would be a mistake to equate the bliss point of the hybrid economy with the overlapping of all three sectors. Rather what matters are ‘the norms governing the production and circulation of goods’ in particular contexts [Anderson, 1993, p. 166]. To know this we will need further careful empirical study of the details of local Indigenous economies. (p. 75)

FINAL THOUGHTS Indigenous political economy as a broad field of inquiry has illuminated the history of Indigenous societies’ encounter with capitalism and, on this basis, has much to offer public policy formulation. It seems clear, though, that more work is needed. This includes the careful empirical study of local Indigenous economies that Curchin recommends above. Indeed, further comparative analysis would also be beneficial, considering the prevalence of single location case studies. But what about policy recommendations? Here there is a gap. Over the last several decades, scholars in several settler societies, including most of those discussed in this chapter, have built a bank of policy and program recommendations. For example, Usher and Weihs (1989) and Altman (2004b) have each produced reports directed to governments based on their models of Indigenous economies. Other scholars (Abele, 1989; Bernauer, 2019, 2020; Hodgkins, 2009; O’Faircheallaigh, 2006; Parlee, 2015), including the author of this chapter, have analysed specific situations of resource extraction to offer recommendations for policies that would permit local Indigenous people to benefit from employment and business opportunities. As useful as it is, this work generally lacks conceptual linkage to ‘the big picture’. Instead, the purposes and perquisites of large corporations, the accepted roles of the state, the usually very constrained purview of Indigenous governments and organisations and, above all, the power of capitalism itself, are rarely acknowledged. They tend to be silently accepted as framing the rules within which policy must be made and programs designed. There are good reasons for this—these factors powerfully shape every situation. As I think the argument in this chapter suggests, however, if they define the space available for action, they need not constrain our analysis. What is missing from our understanding of possibilities in the littoral zone between capitalism and Indigenous societies are meso-level concepts that could connect insights about the underlying process of primitive accumulation to specific potentialities and actions. Informed by the deep understanding of the Indigenous political economy, the meso-level concepts must speak directly to the political institutions through which policies are debated,

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formulated and implemented. These institutions can provide policy ideas and proposals to advance the wellbeing and the degree of collective self-determination that Indigenous people seek.

REFERENCES Abele, F. (1989). Gathering strength: Employment training programs in the Northwest Territories. Arctic Institute of North America. Abele, F. (2009). The state and the Northern social economy: Research prospects. The Northern Review, 30, 37–56. Altman, J. C. (2004a). Economic development and Indigenous Australia: Contestations over property, institutions and ideology. The Australian Journal of Agricultural and Resource Economics, 48(3), 513–534. https://​doi​.org/​10​.1111/​j​.1467–8489​.2004​.00253​.x Altman, J. C. (2004b). Economic futures on Aboriginal land in remote and very remote Australia: Hybrid economies and joint ventures. Centre for Aboriginal Policy Research. Altman, J. & Rowse, T. (2005). Indigenous affairs. In P. Saunders and J. Walter (Eds.), Ideas and influence: Social science and public policy in Australia (pp. 159–177). University of New South Wales. Anderson, E. (1993). Value in ethics and economics. Harvard University Press. Arneil, B. (1996). John Locke and America: The defence of English colonialism. Oxford University Press. Asch, M. (1977). The mixed economy. In Mel Watkins (Ed.), Dene nation: The colony within (pp. 47–61). University of Toronto Press. Bernauer, W. (2019). The limits to extraction: Mining and colonialism in Nunavut. Canadian Journal of Development Studies/Revue canadienne d’études du développement, 40(3), 404–422. https://​doi​.org/​10​.1080/​02255189​.2019​.1629883 Bernauer, W. (2020). Producing consent: How environmental assessment enabled oil and gas extraction in the Qikiqtani region of Nunavut. The Canadian Geographer/Le Géographe canadien, 64(3), 489–501. https://​doi​.org/​10​.1111/​cag​.12611 Borrows, J. (2010). Drawing out law: A spirit’s guide. University of Toronto Press. Buchanan, G. (2014). Hybrid economy research in remote Indigenous Australia: Seeing and supporting the customary in community food economies. Local Environment, 19(1), 10–32. https://​doi​.org/​10​.1080/​13549839​.2013​.787973 Buchanan, G. (2016). From Samoa to CAEPR via Mumeka: The hybrid economy comes of age. In W. Sanders (Ed.), Engaging Indigenous economy: Debating diverse approaches (Vol. 35, pp.  15–28). ANU Press. http://​www​.jstor​.org/​stable/​j​.ctt1d10hpt​.8 Carson, D. (2011). Political economy, demography and development in Australia’s Northern territory. The Canadian Geographer/Le Géographe canadien, 55(2), 226–242. https://​doi​ .org/​10​.1111/​j​.1541–0064​.2010​.00321​.x Clement, W. & Drache, D. (1978). A practical guide to Canadian political economy. James Lorimer and Company. Coulthard, G. (2007). Subjects of empire: Indigenous Peoples and the ‘politics of recognition’ in Canada. Contemporary Political Theory, 6, 437–460. https://​doi​.org/​10​.1057/​palgrave​ .cpt​.9300307 Coulthard, G. (2014). Red skin, white masks: Rejecting the colonial politics of recognition. University of Minnesota Press. Curchin, K. (2015). Two visions of Indigenous economic development and cultural survival: The ‘real economy’ and the ‘hybrid economy’. Australian Journal of Political Science, 50(3), 412–426. https://​doi​.org/​10​.1080/​10361146​.2015​.1049976

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Curchin, K. (2016). If the market is the problem, is the hybrid economy the solution? In W. Sanders (Ed.), Engaging Indigenous economy: Debating diverse approaches (Vol. 35, pp.  65–78). ANU Press. http://​www​.jstor​.org/​stable/​j​.ctt1d10hpt​.12 Daschuk, J. (2019). Clearing the plains: Disease, politics of starvation, and the loss of Aboriginal life. University of Regina Press. Dorries, H. (2019). Introduction to H. Dorries, R. Henry, D. Hugill, T. McCreary, and J. Tomiak (Eds.), Settler city limits: Indigenous resurgence and colonial violence in the urban prairie west. University of Manitoba Press. Editorial. (1974). Review of African Political Economy, 1(1), 1–8. https://​doi​.org/​10​.1080/​ 03056247408703233 Editorial statement. (1979). Studies in Political Economy, 1(1), iv–vi. https://​doi​.org/​10​.1080/​ 19187033​.1979​.11675735 Elias, P. D. (1997). Models of Aboriginal communities in Canada’s north. International Journal of Social Economics, 24(11), 1241–1255. https://​doi​.org/​10​.1108/​03068299710193598 Gamble, A., Payne, A., Hoogvelt, A., Dietrich, M. & Kenny, M. (1996). Editorial: New political economy. New Political Economy, 1(1), 5–11. https://​doi​.org/​10​.1080/​13563469608406234 Gibson, V. (2008). Negotiated spaces: Work, home and relationships in the Dene Diamond Economy (Doctoral dissertation). University of British Columbia. Retrieved on 15 November 2023 from https://​open​.library​.ubc​.ca/​collections/​ubctheses/​24/​items/​1​.0066393 Green, J. (2002). Decolonizing in the era of globalization. Canadian Dimension, 1, 31–33. Greer, A. (2018). Property and dispossession: Natives, empires and land in early modern North America. Cambridge University Press. Hall, R. (2016). Caring labours as decolonizing resistance. Studies in Social Justice, 10(2), 220–237. https://​doi​.org/​10​.26522/​ssj​.v10i2​.1353 Hall, R. (2022). Refracted economies: Diamond mining and social reproduction in the North. University of Toronto Press. Harder, M. T., and Wenzel, G. W. (2012). Inuit subsistence, social economy and food security in Clyde River, Nunavut. Arctic, 65(3), 305–318. Helin, C. (2006). Dances with dependency: Out of poverty through self-reliance. Open Road. Hodgkins, A. (2009). Re-appraising Canada’s northern ‘internal colonies’. The Northern Review, 30, 179–205. Hosmer, B. & O’Neill, C. (2004). Native pathways: American Indian culture and economic development in the twentieth century. University Press of Colorado. Ince, O. U. (2018). Colonial capitalism and the dilemmas of liberalism. Oxford University Press. Kuokkanen, R. (2011a). From Indigenous economies to market-based self-governance: A feminist political economy analysis. Canadian Journal of Political Science/Revue canadienne de science politique, 44(2), 275–297. Retrieved on 15 November 2023 from http://​www​ .jstor​.org/​stable/​41300542 Kuokkanen, R. (2011b). Indigenous economies, theories of subsistence, and women: Exploring the social economy model for Indigenous governance. The American Indian Quarterly, 35(2), 215–240. https://​doi​.org/​10​.5250/​AMERINDIQUAR​.35​.2​.0215 Kuokkanen, R. (2019). Restructuring relations: Indigenous self-determination, governance, and gender. Oxford University Press. https://​doi​.org/​10​.1093/​oso/​9780190913281​.001​ .0001 Ladner, K. (2003). Governing within an ecological context: Creating an AlterNative understanding of Blackfoot Governance. Studies in Political Economy, 70(1), 125–152. https://​ doi​.org/​10​.1080/​07078552​.2003​.11827132 Natcher, D. C. (2009). Subsistence and the social economy of Canada’s Aboriginal North. The Northern Review, 30, 83–98.

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Newhouse, D. (2000). 6. Resistance is futile: Aboriginal People meet the Borg of capitalism. In J. D. Bishop (Ed.), Ethics and capitalism (pp. 141–155). University of Toronto Press. https://​doi​.org/​10​.3138/​9781442674660–008 Nichols, R. (2021a). Disaggregating primitive accumulation. In J. A. Gordon and D. Cornell (Eds.), Creolizing Rosa Luxemburg (pp. 18–28). Rowman & Littlefield. Nichols, R. (2021b). Theft is property! Dispossession and critical theory. Duke University Press. O’Faircheallaigh, C. (2006). Aborigines, mining companies and the state in contemporary Australia: A new political economy or ‘business as usual’? Australian Journal of Political Science, 41(1), 1–22. https://​doi​.org/​10​.1080/​10361140500507252 Parlee, B. L. (2015). Avoiding the resource curse: Indigenous communities and Canada’s oil sands. World Development, 74, 425–436. https://​doi​.org/​10​.1016/​j​.worlddev​.2015​.03​.004 Pearson, N. (2000). The Light on the Hill: Ben Chifley Memorial Lecture. Bathurst Panthers League Club. Retrieved on 15 November 2023 from http://​gooriweb​.org/​pearson/​ chifley12aug00​.pdf Pearson, N. (2009). Radical hope: Education and equality in Australia. Quarterly Essay Issue, 36, 1–105. Polanyi, K. (1945). The great transformation. Farrar & Rinehart. Polanyi, K. (2001 [1944]). The great transformation. Beacon Press. Reinert, S. A. (2011). Translating empire: Emulation and the origins of political economy. Harvard University Press. Sahlin, M. (1972). Stone age economics. Aldine de Gruyter. Sanders, W. (Ed.) (2016). Engaging Indigenous economy: Debating diverse approaches. Australian University Press. Serra, A. (2013). A short treatise on the wealth and poverty of nations (1613). In S. A. Reinert (Ed.), Economic ideas that built Europe. Anthem Press. Stabler, J. C. (1989). Dualism and development in the Northwest Territories. Economic Development and Cultural Change, 37(4), 805–839. Retrieved on 15 November 2023 from http://​www​.jstor​.org/​stable/​1154129 Tilley, L., Kumar, A. & Cowan, T. (2017). Introduction: Enclosures and discontents— primitive accumulation and resistance under globalised capital. City, 21(3–4), 420–427. https://​doi​.org/​10​.1080/​13604813​.2017​.1331562 Tully, J. (1994). Aboriginal property and Western theory: Recovering a middle ground. Social Philosophy and Policy, 11(2), 153–180. https://​doi​.org/​10​.1017/​S0265052500004477 Usher, P. J. (1976). Evaluating country food in the northern native economy. Arctic, 29(2), 105–120. Usher, P. & Weihs, F. (1989). Towards a strategy for supporting the domestic economy of the Northwest Territories. Special Committee on the Northern Economy. Usher, P., Duhaime, G. & Searles, E. (2003). The household as an economic unit in Arctic Aboriginal communities, and its measurement by means of a comprehensive survey. Social Indicators Research, 61(2), 175–202. Retrieved on 15 November 2023 from http://​www​ .jstor​.org/​stable/​27527068 Wenzel, G. W. (2009). Canadian Inuit subsistence and ecological instability—if the climate changes, must the Inuit? Polar Research, 28(1), 89–99. https://​doi​.org/​10​.1111/​j​.1751–8369​ .2009​.00098​.x Wood, N. (1984). John Locke and agrarian capitalism. University of California Press.

PART III DOMESTIC POLICY

12. Public policy and Indigenous Peoples’ right to health in Brazil and Mali Mariam Wallet Med Aboubakrine

INTRODUCTION The level of recognition and implementation of Indigenous Peoples’ rights vary greatly from one country to another. Fourteen years after the adoption of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), only a few states have sufficiently reflected its adoption in their national legislation, policies and practices (Scallan & Wilson, 2019). The literature shows a few best practices for adopting and implementing the UNDRIP. Across the seven sociocultural regions of Indigenous Peoples,1 the recognition and national political, economic, social and cultural contexts are very diverse, and typically, incomplete. This chapter highlights how structural gaps in the public policy framework can negatively impact implementation of the right to health of Indigenous Peoples, as illustrated in the cases of Brazil and Mali. These two states are quite dissimilar in their approaches to the rights of Indigenous Peoples, particularly the right to self-determination, and this chapter will attempt to demonstrate how the right to health depends on the implementation of other human rights. Specifically, the right to health can only be effectively achieved if other rights, such as the right to education, a healthy environment, food, water, land, justice, security, culture and traditional knowledge are also upheld. Although Brazil has a legal framework for upholding Indigenous Peoples’ rights, including an Indigenous-specific healthcare system, the implementation and enforcement of Brazil’s legal framework need further consideration in order to be effective (OHCHR, 2021). With regard to Mali, the context is slightly different: while the country endorsed the UNDRIP, it does not recognise that there are Indigenous Peoples in Mali. However, at the same time, Mali’s peace accord allows autonomy for northern populations to lead and define their socio-economic development priorities, which is in alignment with the principles of the UNDRIP (United Nations Peacemaker, 2015). This chapter considers the following question: what are the policy frameworks in Brazil and Mali that are relevant for the implementation of the rights of Indigenous 1 According to the United Nations, the seven sociocultural regions of Indigenous Peoples are Africa; the Arctic; Asia; Central and South America, and the Caribbean; Central and Eastern Europe, the Russian Federation, Central Asia and Transcaucasia; North America; and the Pacific.

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Peoples, specifically the right to health? To address this question, the chapter examines the public policy frameworks that address the right to health of Indigenous Peoples in Brazil and Mali, in comparative perspective.

INDIGENOUS HEALTHCARE IN BRAZIL: CURRENT SITUATION AND CHALLENGES MOVING FORWARD In the context of the Americas, a milestone in the recognition of Indigenous rights was the adoption of the American Declaration on the Rights of Indigenous Peoples by the General Assembly of the Organization of American States in 2016, almost 10 years after the UNDRIP. The American Declaration faced the objection of the United States, the ‘non-position’ of Canada, and the opposition of Colombia on provisions concerning free, prior and informed consent and military activities. Two subjects more relevant to the region were highlighted in this declaration. First, Article 26, which describes the right for Indigenous Peoples to live in voluntary isolation or initial contact—which, in the UNDRIP, is only generally addressed by Article 8. Second, Article 30, which concerns Indigenous Peoples affected by armed conflicts—which, in the UNDRIP, is addressed by Article 40 in a more general approach. Along with the UNDRIP, the American Declaration reinforces the obligation of states to implement Indigenous Peoples’ rights. Brazil is one of the supporters of the American Declaration, thus renewing Brazilian Indigenous Peoples’ opportunity to effectively exercise their rights. Brazil is the largest country in South America, covering almost half the continent and accounting for around half its population. According to the last national census, Indigenous Peoples in Brazil comprise approximately 0.43 per cent of the country’s population, distributed among 305 ethnic groups who speak 274 different Indigenous languages (IBGE, 2010). Indigenous lands officially recognised by the state correspond to approximately 13.75 per cent of the national territory, most of which is located in Legal Amazonia (FUNAI, 2021). Inequalities in the recognition of Indigenous Peoples’ rights can be found across different regions of Brazil. Correlated to the colonial relationship with the state, some Indigenous lands in Amazônia Legal are very large and others ‘encompass little more than the residences of the Indigenous population’ in regions that were first colonised (Santos et al., 2019). Associated with the economic interests exploiting the natural resources located in these lands, we find varying examples across the country, such as the presence of illegal goldminers in Yanomami territories (in the North Region) and of agribusiness landowners in Mato Grosso do Sul (in the Centre West Region), where Guarani and Kaiowá peoples live in constant conflicts over the lands. Moreover, the flexibility of environmental legislation to allow mining activities and agribusiness partnerships on Indigenous lands increased drastically under President Bolsonaro, who pledged that ‘there will not be a centimeter more of indigenous land’ set aside under his leadership (as quoted in Mondardo, 2022). As this chapter attempts to show, Indigenous Peoples’ rights to their lands and resources are strongly

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connected to their health outcomes (Scalco & Louvison, 2020) and cannot be disconnected in effective public policy. In the late 1970s and early 1980s, a national pro-indigenous rights movement emerged in Brazil, which emphasised a holistic approach to Indigenous Peoples’ rights. The First National Conference for the Protection of Indigenous Health was held in 1986. Along with other social movements and supported by politicians, the conference influenced the 1988 Federal Constitution—a milestone for Indigenous rights that recognised Indigenous Peoples’ right to cultural, religious, cosmological and traditional occupation of their lands (Article 231) (Santos et al., 2019; Vieira & Quack, 2016; Yamada, 2009). A Unified Health System (SUS) was created in Brazil in 1990. Nine years later, and still as a consequence of social movement activism, the Subsystem for Attention to Indigenous Health (SASISUS) was established to deliver primary healthcare in Indigenous territories. An intercultural approach was essential due to the sociocultural diversity and logistical specificities needed to guarantee access to primary healthcare. In 2002, the National Policy for the Attention to Health of Indigenous Peoples was launched to guide differentiated healthcare within SUS. Formed by a network of 34 Special Indigenous Health Districts (DSEIs), the SASISUS healthcare model has multidisciplinary health teams of doctors, nurses, dentists, nursing assistants, oral health assistants, and Indigenous health and sanitation agents, in addition to other professionals who provide support, such as pharmacists and psychologists (Mendes, Leite, Langdon & Grisotti, 2018). Unfortunately, precarious employment contracts and difficult work conditions increase the turnover of health professionals working under the SASISUS healthcare model, negatively impacting delivery of Indigenous Peoples’ healthcare. This high turnover affects the ability to build links with the community, which is essential for delivering culturally competent healthcare services and promoting articulation between traditional medicine and Western medicine. Further, SASIUS does not provide sufficient relevant training on cultural competence and cross-cultural issues to the multidisciplinary health teams and DSEI’s managers (Garnelo, 2012). Social participation is one of the principles of Brazil’s Indigenous healthcare policy approach. Health councils and conferences establish social participatory spaces that allow for the formulation and deliberation of public health policies to include civil society, health professionals and official government representatives. Local Indigenous health councils are usually located in a village or a group of villages, their participants being Indigenous council members chosen by the community. There are also district Indigenous health councils, which include elected local Indigenous councils that bring local perspectives to discussions with health professionals and government officials. In this way, decisions are made at the district management level. At the national level, a forum of Indigenous health district councils’ presidents acts as a consultative body for the national managers. National, district and local Indigenous health conferences were held in 1993, 2001, 2006 and 2013. However, these institutionalised spaces do not necessarily provide the conditions for Indigenous participants to make their voices heard, as bureaucratic procedures limit

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their traditional ways of making community decisions (Demetrio & Kozicki, 2019; Peres, 2018). To reduce the difficulty in obtaining reliable official epidemiological data, a Health Information System for Indigenous Peoples was created in 2000 to collect demographic and health data on women’s health, food and nutrition surveillance, oral health, collective preventive educational activities, mortality and morbidity. Unfortunately, access to this system is restricted to SASI’s providers and managers (Ministério da Saúde, 2019). In 2010, the Special Secretariat for Indigenous Health (SESAI) was created within the Ministry of Health to manage the subsystem of Indigenous health, which had previously been managed by different governmental institutions. In 2019, there were around 765,600 Indigenous persons registered, assisted by over 800 multidisciplinary healthcare teams (Ministério da Saúde, 2019). That same year, there were attempts to extinguish SESAI from the structure of the Ministry of Health, raising the controversial ‘municipalisation of indigenous health’ as a possible scenario—that is, the transfer of management of the service from the Indigenous nations to the municipalities, therefore diminishing differentiated healthcare in Indigenous territories. Health inequities for Indigenous populations are evidenced by higher infant mortality rates and higher incidence of and mortality rates from infectious diseases such as tuberculosis. The epidemiological transition—meaning the shift from a higher prevalence of infectious diseases to chronic degenerative diseases—is happening at different rates in Indigenous groups, depending on the community’s location (Garnelo, 2012; Mendes et al., 2018; Rodrigues, 2018). A substantial increase in academic research on Indigenous health was witnessed following implementation of the Indigenous subsystem, which can contribute to the visibility of these health inequalities and the identification of gaps to be addressed in the process of social justice (Kabad, Pontes & Monteiro, 2020). The COVID-19 pandemic has highlighted health inequities in Brazil, along with social and racial injustice, that have also translated into different morbidity and mortality rates. The right to health implies not only the availability and accessibility of COVID-19-related health services and the continuity of essential health services but also addressing the social determinants of health that affect the risk of COVID-19 morbidity. Brazil’s large and varied geography means COVID-19 has had different rates of spread among Indigenous communities, according to their location, their proximity to urban areas, the logistics to access them and their social behaviour. For instance, Indigenous Peoples who migrated to urban areas to work and then returned to their communities of origin during the pandemic contributed to the spread of the virus. In remote communities, the invasion of their territories by illegal miners, loggers, farmers and missionary groups (which already exacerbates the malaria situation) saw their exposure to COVID-19 increased. The National Vaccination Plan for COVID-19, launched on 16 December 2020, included Indigenous Peoples living on Indigenous lands as a vulnerable group and a priority group for vaccination (Ministério da Saúde, 2021b).

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According to SESAI, until epidemiological week 20 of 2020, the incidence rate of COVID-19 among Indigenous Peoples living on Indigenous lands was 860.6 per 100,000 population, and the mortality rate was 16.9 per 100,000 population. For the same period, the national incidence rate was lower (757.8 cases per 100,000 population) and the mortality rate was higher (21.1 per 100,000 population) (Ministério da Saúde, 2021a). Factors associated with these differences might include a higher number of people per household; risky social behaviours, including traditional gatherings; higher testing rates by multidisciplinary healthcare teams in the communities; a more comprehensive approach to healthcare; appropriate monitoring of vulnerable individuals; following up suspected and mild cases; and guaranteeing timely referral according to case severity. The Articulation of Indigenous Peoples of Brazil agency shares data on COVID-19 among Indigenous Peoples living in and outside their traditional territories. According to their website, on 30 May 2021, there were 54,785 cases and 1,092 deaths among Indigenous Peoples (ISA, n.d.). The Supreme Court Decision on Action of Noncompliance with Fundamental Precept (ADPF) number 709 demands a plan for addressing COVID-19 among Indigenous Peoples living on Indigenous lands, regardless of the status of their territories, and the implementation of measures to protect their territories from invaders, especially territories with voluntary isolated and recently contacted peoples (more at risk). Based on Human Rights Council Resolution 33/25 (para. 2) concerning the country engagement mandate of the Expert Mechanism on the Rights of Indigenous Peoples (EMRIP),2 a private, non-profit, Indigenous organisation named Coordenação das Organizações Indígenas da Amazônia Brasileira (COIAB), supported by the Indian Law Resource Centre, requested the EMRIP to engage at the country level on the situation of Indigenous Peoples in Brazil during the COVID-19 pandemic. As a result, the Advisory Note – Protection of Indigenous Peoples’ rights in Brazil under COVID-19 (OHCHR, 2021) was released on 30 March 2021, with short- and long-term recommendations for how Brazil can ensure Indigenous Peoples’ rights during and in the aftermath of the pandemic. The advisory note highlights Law No. 14.021, published in Brazil in July 2020, on protecting vulnerable groups, including Indigenous Peoples, during the COVID-19 crisis (OHCHR, 2021). As the Brazil case demonstrates, existing policy frameworks for Indigenous Peoples’ rights to health are insufficient to achieve better health outcomes for Indigenous peoples within their traditional lands because these policy frameworks do not consider other human rights of Indigenous Peoples in a holistic manner. The protection of existing lands is ineffective, and the demarcation and registration processes have yet to be finished. Self-determination of Indigenous Peoples in their lands is not recognised and implemented. In addition, public health policies developed for Indigenous Peoples in Brazil lack effective implementation as an intercultural health

2 Available at https://​undocs​.org/​Home/​Mobile​?FinalSymbol​=​A​%2FHRC​%2FRES​ %2F33​%2F25 (accessed on 20 January 2021).

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system with Indigenous Peoples’ participation throughout the planning, monitoring and evaluation cycle.

RECOGNISING INDIGENOUS PEOPLES’ RIGHTS IN AFRICA: EXAMPLE OF THE RIGHT TO HEALTH IN MALI Indigenous Peoples throughout the seven sociocultural regions remain deprived of the implementation of their rights, including the right to life, health, education, employment, housing, social security and an adequate standard of living. Various international, regional and national instruments guarantee Indigenous peoples’ rights, but the lack of domestic implementation of these rights, in policy and practice, has led Indigenous Peoples, and their allies, to advocate for wider adoption and implementation of the UNDRIP—an international instrument that offers a national-level legal framework for the implementation of Indigenous Peoples’ rights. Article 3 of the UNDRIP is particularly important as it guarantees the right of Indigenous Peoples to freely determine their economic, social and cultural development (United Nations Economic and Social Council, 2017)—in essence, the right to self-determination. While the UNDRIP and its principles have been widely welcomed by Indigenous Peoples and their allies around the world, it should be noted that some, including the Africa Group, opposed the UNDRIP, particularly because it devotes such a central place to the self-determination of Indigenous Peoples. Self-determination, in this instance, should be interpreted in the same way as Article 1 of the International Covenant on Economic, Social and Cultural Rights, which states, ‘All peoples have the right to self-determination. According to this right, they freely determine their political status and freely ensure their economic, social, and cultural development.’ At the African regional level, the African Charter on Human and Peoples’ Rights, in its Article 20.1, also insists on self-determination in these terms: ‘Every person has the right to exist. Every person has an inalienable right to self-determination. He [sic] freely determines his political status and ensures his economic and social development according to the path he has freely chosen.’ In Africa, self-identified Indigenous Peoples comprise around 77.9 million people (FIMI, 2020). Yet, despite being such a sizable population, they continue to be left behind in accessing education and healthcare and are facing increasing insecurity. For example, in Namibia, only 67 per cent of San children attend school and only 1 per cent finish secondary school (United Nations Department of Economic and Social Affairs, 2017). The situation is no better for the Kel Tamasheq (Tuareg) in Niger, where 65.4 per cent of children under the age of 5 years are not vaccinated against measles (Loutan & Paillard, 1992). This suggests a real concern for the fulfilment of the fundamental human rights of Indigenous Peoples in Africa. Paradoxically, there is low participation of African states in meetings on Indigenous issues. For example, the Indigenous Peoples’ Centre’s review of the research found that in 2017, at the annual session of the United Nations Permanent Forum on Indigenous Issues, only

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three African states (Botswana, Namibia and South Africa) made a plenary statement (Docip, n.d.). Nevertheless, Indigenous Peoples in Africa are mobilising at the international, regional, national and local levels to promote and contribute to the implementation of their rights. One historical example of Indigenous Peoples’ perseverance and commitment to the implementation of their rights concerns the attempted eviction of Ogiek People from their territory in the Mau Forest, Kenya; the Ogiek People brought a case before the African Court on Human and Peoples Rights, which found in their favour (IWGIA, 2006). Certain African states have made efforts to acknowledge, to a certain extent, international instruments favourable to the recognition and implementation of Indigenous Peoples’ rights. For example, the Central African Republic has ratified ILO Convention 169 (United Nations Department of Economic and Social Affairs, 2017). Namibia is working in collaboration with the United Nations Department of Economic and Social Affairs on a white paper for the ‘Development of National Legislation Protecting the Rights of Indigenous Peoples in Namibia’ (Republic of Namibia, 2017) and, in April 2021, the National Assembly of the Democratic Republic of the Congo voted in support of a law protecting the human rights of the Pygmy People (Isako, 2021). Debates on the rights of Indigenous Peoples are opening or intensifying in all African subregions. However, the pace is slow and relative to the local, subregional or national context. For example, some states, like the Democratic Republic of the Congo, have directly referred to the rights of Indigenous Peoples and named them according to the internationally recognised terminology of ‘Indigenous Peoples’ (Isako, 2021). In Burundi, a Batwa woman, Imelde Sabushimike, was appointed Minister of National Solidarity, Social Affairs, Human Rights Human and Gender (La Présidence de la République, n.d.). Having an Indigenous woman in this portfolio is significant to the Batwa people in Burundi, whose rights have long been violated, including their right to identity, land, education and political participation (Lewis, 2001). Note, however, at the state level, positions on the rights of Indigenous Peoples are not consistent. For example, Mali participates in some United Nations work related to Indigenous Peoples, such as annual sessions of the United Nations Permanent Forum on Indigenous Issues (UNFPII) and meetings of the Rome Informal Group of Friends of Indigenous Peoples (FAO, 2021). Further, the Malian representative at one meeting of the Rome group welcomed the contribution of Indigenous Peoples to food security and sustainable food systems. Conversely, at the Fourteenth Session of the UNFPII, the Malian representative took the floor, to state Mali’s position that ‘there are no Indigenous Peoples in Mali’ (United Nations, 2015, n.p.). Unfortunately, this position, that there are no Indigenous Peoples in Africa (or, all Africans are Indigenous), has frequently been taken by a number of African states. To advance the implementation of the rights of Indigenous Peoples in Africa, it is important to understand the history of African peoples and their colonial heritage, including the new dynamics imposed by this colonial legacy. The dynamic in regions

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such as the Sahel must be considered, which is why this chapter now turns to the case of Mali. Mali is a landlocked country in West Africa, covering an area of 1,240,190 km2 (two-thirds of which is desert) with approximately 19,972,000 inhabitants (Mali Data Portal, n.d.). Mali shares borders with seven countries: Algeria, Burkina Faso, Ivory Coast, Guinea, Mauritania, Niger and Senegal. These borders were drawn after the Berlin Conference of 1884 to 1885 (Poncelet, 1986), to the detriment of the Indigenous Peoples. The main purpose of the Berlin conference was to divide Africa among European countries, including access to resources and the coasts. Africans were not invited to this conference, nor were their existing territories or political organisations respected or considered (Haddad, 2020). Consequently, the territories of certain peoples, such as the Kel Tamasheq, were dismantled, and these people became, numerically speaking, an ‘ethnic minority’ in the states inherited from colonisation, such as Mali (Lecocq & Klute, 2013). The Malian economy is ‘a low-income economy, not diversified and exposed to fluctuations in commodity prices’ (World Bank, n.d.). The main national institutions are the Presidency, Prime Minister, Constitutional Court, Supreme Court, High Council of Territorial Communities, Economic and Social Council, and National Assembly. The role of the National Assembly is to pass laws, ensure control of government action and ensure national representation (Mali Republic, n.d.). It should be noted that there is often a huge distance and disparity between the Malian central state and citizens at the local level, which the governmental policy approach of decentralisation has sought to bridge. Since 2012, however, Mali has been marked by growing insecurity and political instability, exacerbated by both the climate crisis and the COVID-19 pandemic (UNDP, 2021). In this context, traditional and religious authorities have enjoyed an increased role in local public management (United Nations Peacemaker, 1992). The evolutions of these crises have roots in the failure of Mali and its partners to realise the holistic rights of Indigenous Peoples. The Constitution of Mali guarantees security and non-discrimination regardless of colour, language, race, sex, religion and political opinion to all citizens. Further, ‘education, instruction, training, work, housing, leisure, health and social protection are recognized rights’ (Title I, Article 17). However, for the Kel Tamasheq (Tuareg), Mali (through its various successive republics) has failed to implement these fundamental rights. Worse, after its independence, and in the name of national sovereignty, Mali sought to assimilate the Kel Tamasheq by imposing a profound change in their way of life. For example, they were forced to be sedentary and constitute and organise themselves in villages instead of remaining nomad pastoralists, as was their traditional lifeway. This significantly contributed to the Kel Tamasheq revolts (Aboubacrine, 2017). The years 1962 to 1964 saw the first significant revolt of the Tuareg within the newly independent Mali, in response to the political and social organisation imposed on them. Such organisation was not appropriate for their lived reality and, worse, ignored and despised their preferred mode of organisation, ways of living and means of subsistence. Overnight, the Tuareg saw themselves transferred from the French colonial authority to the

Public policy and Indigenous Peoples’ right to health in Brazil and Mali  235

oppressive regime of Modibo Keita. The causes of the subsequent Tuareg revolt were not identified or addressed by the nascent Mali state, and the Tuareg’s voices were ignored. Instead, the Malian state sought to crush the rebellion by committing massacres of humans and animals and poisoning wells in Tuareg areas (Pierre, 2012). Later, in 1990, in the context of a general social crisis in Mali, there was a second Tuareg rebellion, which had the same central demands as the first revolt, most notably the right to self-determination. The difference was that its leaders were better prepared than in the previous revolt, and the affected areas were not limited to the northeast of Mali. This second rebellion attracted more attention at the national, regional and international levels. Like the first rebellion, the Malian state undertook massacres of civilians and animals and displaced populations. There have never been any reparations or compensation paid for these crimes. This second Tuareg revolt resulted in the Tamanrasset Peace Accord (UNESCO, 1991) and the National Pact. This pact provides a special status for the northern regions, whose elected representatives could: define and promote the economic, social, cultural development program that they desire. […] They [i.e., the programs] will cover sectors and activities such as agriculture, animal husbandry, hydraulics, town planning, habitat, ecosystem preservation, industry, transport, communication, health, education, culture, tourism, research and promotion of local languages, crafts, the development and protection of historic sites, management of land assets and encouragement for the exploration and exploitation of natural resources. (National Pact, Title 3, Paragraph 15)

These promises were not kept by successive Mali governments, resulting in several more Tuareg uprisings. The last major uprising, in 2012, occurred in the context of a heated political and social situation in Bamako, wherein the northern regions were completely abandoned by the government (in terms of economy, social development, security, etc.). Thus, little by little, a large part of Mali’s north fell under the control of various armed groups. Unfortunately, this complex crisis effectively drowned out the claims of the Kel Tamasheq. In 2015, the Algiers Accord was signed between the Malian Government and several armed groups, including some representatives of the Kel Tamasheq. This agreement, via Article 1.c, grants autonomy: ‘taking charge by the populations of the effective management of their own affairs through a system of governance that takes into account their aspirations and their specific needs’ (United Nations Peacemaker, 1992). Chapter 4, Article 8, confers autonomy/self-governance to the regions ‘within a general framework previously defined by legislative and regulatory means, in matters such as economic, social and cultural plan and program’ (United Nations Peacemaker, 1992). Notably, health is included in this autonomy/ self-governance policy framework. However, while the Algiers Accord elicited much enthusiasm and support among the populations of Mali’s northern regions, particularly the Kel Tamasheq, the details in Annex 3 regarding health are emergency solutions only and do not support the regions’ people in taking leadership or control of meeting their own health needs (United Nations Peacemaker, 1992).

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In the search for a solution to the ongoing multidimensional crisis (political, social, institutional and security), Mali must re-examine the conclusions and recommendations of current and previous national debates and processes to effectively support all Malian peoples and their aspirations. The government must rebuild a country where every citizen, regardless of their ethnicity or geographic background, does not have to be assimilated to enjoy fundamental human rights. Regarding national health policies, it will be crucial to have a holistic approach, consider the determinants of health, and place the Indigenous Peoples (women, youth and elders) at the heart of decision-making and solutions to their issues, with respect for and deference to their own forms of leadership. In terms of linking a holistic approach to Indigenous human rights and health, there are two important positive examples. The first is related to the response to COVID-19 by the Tinhinan Mali Association, a non-profit organisation that intervenes in several areas in collaboration with women, men, young people, elders, and state and non-state actors. Secondly, in Timbuktu (part of a Health Cluster3), from the onset of COVID-19, Tinhinan members crafted information and awareness messages in Indigenous languages. Subsequently, in the summer of 2020, women from this organisation undertook COVID-19 prevention activities by renewing information and awareness messages, and sharing personal protective equipment, targeting the populations least likely to be reached by the activities undertaken by other actors (Global Protection Cluster, 2020; WHO, 2021).

CONCLUSION An extraordinary amount of work remains to effectively implement Indigenous Peoples’ rights, particularly the right to health, and no one-size-fits-all response will fill the gap. Advances to date are due to the perseverance of Indigenous Peoples and their (and their allies) own advocacy, as demonstrated in the cases of Brazil and Mali. In Brazil, although the political situation does not favour advances in the holistic implementation of Indigenous Peoples’ rights, social movements have become stronger, with national and international allies. The fight is mainly against the setback of the rights guaranteed by the existing policy framework and the advancement of new legislation with conflicting interests, such as that favouring agribusiness. In Mali, the Kel Tamasheq have never given up claims to their collective rights, including the right to self-determination and defining their socio-economic development according to their priorities, in respect to their traditional way of life. Considering that the socio-political situation in Mali remains fragile and unpredictable, the only real opportunity for the Kel Tamasheq to see their rights implemented depends on all parties’ observance of the 2015 Algiers Accord and its translation into



3

See https://​healthcluster​.who​.int/​countries​-and​-regions (accessed on 11 February 2021).

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policies. Indigenous Peoples’ rights (such as the right to self-determination) should be added to the next ‘Projet de Developpement Social’ and Mali’s Constitution. As these two country cases have demonstrated, the right to health depends on other human rights, such as the right to education, a healthy environment, food, water, health, land, justice, security, connection with one’s culture and traditional knowledge. Indigenous Peoples—in Brazil, Mali and everywhere else—need effective health policies that allow and enable Indigenous Peoples’ self-determination and leadership, and invite and accommodate their traditional knowledge in governance and medicine. Based on this chapter’s analysis, it is recommended that, at all levels (international, regional, national and local): ● Indigenous Peoples’ traditional knowledge and healthcare practices must be respected, protected and considered in policies and processes. ● Health policies for Indigenous Peoples must have an intercultural approach. ● Indigenous Peoples must be involved in planning, monitoring and evaluating these health policies. ● Disaggregated data on Indigenous Peoples must be collected to better address their needs and, thus, facilitate more effective policies. ● Health research among Indigenous Peoples should be encouraged to increase the visibility of their health issues and identify best practices, and community-based participatory research should be valued. ● The social determinants of health must be addressed to overcome health inequities among Indigenous Peoples. ● Implementation of the UNDRIP must be associated with implementation of related international treaties and conventions and implementation of national frameworks related to Indigenous Peoples’ wellbeing and health.

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Lecocq, B. & Klute, G. (2013). Tuareg separatism in Mali. International Journal, 68(3), 424–434. http://​www​.jstor​.org/​stable/​24709398 Lewis, J. (2001). The Batwa Pygmies of the Great Lakes Region. Minority Rights Group International. Retrieved on 18 February 2021 from https://​minorityrights​.org/​wp​-content/​ uploads/​2015/​07/​MRG​_Rep​_BatwaGL2001​_FRE​.pdf Loutan, L. & Paillard, S. (1992). Measles in a west African nomadic community. Bulletin of the World Health Organization, 70(6), 741–744. Retrieved on 16 December 2020 from http://​apps​.who​.int/​iris/​bitstream/​handle/​10665/​261584/​PMC2393409​.pdf Mali Data Portal. (n.d.). Retrieved on 5 October 2021 from https://​mali​.opendataforafrica​.org/​ Mali Republic. (n.d.). Rôle du Parlement. Retrieved on 5 October 2021 from http://​assemblee​ -nationale​.ml/​role​-du​-parlement/​ Mali Republic. (2014). Programme de Developpement Socio-Sanitaire 2014–2018. Retrieved on 4 March 2021 from http://​www​.sante​.gov​.ml/​docs/​PRODESS​%20III​%20Version​ %20finale​.pdf Mendes, A. M., Leite, M. S., Langdon, E. J. & Grisotti, M. (2018). O desafio da atenção primária na saúde indígena no Brasil. Pan American Journal of Public Health, 42. https://​ doi​.org/​10​.26633/​RPSP​.2018​.184 Ministério da Saúde. (2019). Saúde indígena: análise da situação de saúde no SasiSUS. Brazil: Ministério da Saúde [Ministry of Health], Brazil. Retrieved on 4 March 2021 from http://​bvsms​.saude​.gov​.br/​bvs/​publicacoes/​saude​_indigena​_analise​_situacao​_sasisus​.pdf Ministério da Saúde. (2021a). Informe Epidemiológico 55: Doença por Coronavírus (COVID-19) em populações indígenas. Semana Epidemiológica (SE) 20 (16/05/2021 a 22/05/2021). Brazil: Ministério da Saúde [Ministry of Health], Brazil. Retrieved on 20 August 2021 from https://​saudeindigena1​.websiteseguro​.com/​coronavirus/​pdf/​Informe​ %20Epidemiol​%C3​%B3gico​%20SE​%2020​_2021​_SESAI​_COVID​-19​.pdf Ministério da Saúde. (2021b). Plano nacional de operacionalização da vacinação contra a COVID-19. Brazil: Ministério da Saúde [Ministry of Health], Brazil. Retrieved on 20 August 2021 from https://​www​.gov​.br/​saude/​pt​-br/​coronavirus/​vacinas/​plano​-nacional​-de​ -operacionalizacao​-da​-vacina​-contra​-a​-covid​-19 Mondardo, M. (2022). In defense of indigenous territories in Brazil: Rights, demarcations and land retake. GEOUSP, 26(1). https://​doi​.org/​10​.11606/​issn​.2179–0892​.geousp​.2022​ .176224 Peres, S. C. (2018). Indigenous activism, territorialization and ethnicity in the middle Rio Negro. Vibrant: Virtual Brazilian Anthropology, 15(2). https://​doi​.org/​10​.1590/​ 18​09–4341201​8v15n2a403 Pierre, B. (2012). 9. 1963–1964: la révolte. In Les Touaregs Kel Adagh. Dépendances et révoltes: du Soudan français au Mali contemporain (pp. 317–350). Paris: Karthala. Retrieved on 16 December 2020 from https://​www​.cairn​.info/​les​-touaregs​-kel​-adagh​-​-9782811106355​ -page​-317​.htm Poncelet, M. (1986). L’Afrique Noire depuis la Conférence de Berlin: Colloque international de mars 1985. Paris, Éditions du Centre des Hautes Études sur l’Afrique et l’Asie Modernes, 1985 [Review]. Études internationales, 17(4), 889–891. https://​doi​.org/​10​.7202/​702096ar Republic of Namibia. (2017). Remarks on the outcome document of the World Conference on Indigenous Peoples, 28 April. New York: United Nations. Retrieved on 8 March 2021 from http://​statements​.unmeetings​.org/​media2/​14684112/​namibia​.pdf Rodrigues, D. A. (2018). Epidemiological invisibility characterizes Brazilian native Indians’ health. Revista paulista de pediatria, 36(2). https://​doi​.org/​10​.1590/​1984–0462/​ ;2018;36;2;00018 Santos, R. V., Guimarães, B. N., Simoni, A. T., da Silva, L. O., de Oliveira Antunes, M., de Souza Damasco, F., Colman, R. S. & do Amaral Azevedo, M. M. (2019). The identification of the Indigenous population in Brazil’s official statistics, with an emphasis on demographic censuses. Statistical Journal of the IAOS, 35(1), 29–46. https://​doi​.org/​10​.3233/​sji​-180471

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Yamada, E. M. (2009). International human rights law in the context of Indigenous Peoples: moving from legislation to implementation—lands rights’ cases at the Brazilian Federal Supreme Court (Doctoral thesis). Rogers E. College of Law, University of Arizona. Retrieved on 9 March 2021 from https://​repository​.arizona​.edu/​handle/​10150/​631496

13. Kichwa Amazonian life routes in education: foregrounding the ‘inter’ in intercultural educational policy Gioconda Coello and Diana Chávez Vargas

INTRODUCTION Indigenising education policy requires questioning and redefining the notion of ‘public’ in public education. That work must come from an honest process of dialogue and imagining what public policy means and what education means, which embraces clashing cultures and worldviews. The thinking that sustains Indigenous views on governance and ways of knowing should not be disciplined into current and colonially inherited governmental reason under the disguise of ‘inclusion’ or ‘conviviality’. Rather, a contentious debate on public policymaking should be upheld to arrive at perfectible and dynamic strategies and conceptions from all the cultures in a country to create, in this case, education policy. The most radical intercultural policymaking in Ecuador happens on the streets. Intercultural education is recognised in the country’s constitution as ‘the national system of education [that] will include teaching programs according to the diversity of the country. Its management will include administrative, financial, and pedagogical decentralization strategies’ (Ecuador Constitution 2008:59 art. 343). This concept was finally brought into national policy only after several uprisings, most often traced back to the 1930s. This statement is not about origins but significant, society-shaking Indigenous education projects. One of those greatly moving projects, in terms of politics, society, and the way education has been thought of, was Dolores Cacuango’s clandestine schools in the 1930s.1 The demands and struggles for education relevant and respectful for Indigenous cultures have not stopped. Decades later, Indigenous movements continue to go to the streets to make governments accountable for effective support of intercultural education, as well as other policies regarding Indigenous and national wellbeing. From 13 to 30 June 2022, Ecuador was shaken by uprisings led by the Indigenous movement and supported by many civil society groups. The people, discontent, took over many city centres across the country. Several committees of Indigenous pueblos arrived at Quito, the capital. On the first day of the protests, the government illegally detained Leonidas Iza, president of the Confederation of Indigenous Nationalities of Ecuador (CONAIE), leading the upris1 Cacuango organised the first schools in Kichwa and as sites of resistance to exploitation and racism. See Gonzales (2015).

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ings. Soon after, the president of Ecuador declared a state of exception, announcing the ‘progressive use of force’ against all protesters. In the following days, more people came out to the streets in rage over these events. After his release, Leonidas Iza asserted: Mr. President, we [CONAIE] handed in a document at your desk a year ago, and we have handed it in again this Monday 13 of June, at your office in the presidency of the republic. We need answers. We do not need sentences for the [Indigenous] leaders, we do not need murders, we do not need more violence, we do not need more people detained. We need answers. (CONAIE, 2022)

Iza referred to a document detailing 10 demands to the government,2 which included respecting the right to an effective intercultural bilingual education. The 10 demands were mostly a call for action on basic issues such as ensuring a budget for providing public hospitals with medicines and delivering campaign promises. Instead of financing dialogue tables and projects to attend to those issues from the very beginning, the government invested in 18 days of cruel repression—that course of action ended in eight dead and hundreds of injured people, including children and elders. By the eighteenth day of protests, a process of dialogue and negotiation was finally established. The president did not show up to the dialogue but sent ministers who could not make decisive commitments. After three days of negotiation, tables of dialogue were established to arrive at policies and actions to alleviate some of the country’s problems. Regarding intercultural education policy, the uprisings made possible the rise of the public funds destined for intercultural bilingual education. The Ministry of Education transferred some functions to the Department of Bilingual Intercultural Education. However, these actions did not respond fully to the demands made by the Indigenous organisations regarding administrative and financial independence to 2 (1) Stopping the rise of gasoline prices (freeze Diesel price at $1.50 and Gasoline Extra and Ecopais at $2.10) and start a process of focus for groups that need subsidies: agriculture workers, transportation workers, fishers. (2) Moratory of bank debts for a year and stopping the embargo of houses, lands and cars. (3) Just prices for agricultural products for small production to be sustainable. (4) State investment and public policy to stop work precariousness and guarantee the sustainability of popular economies. (5) Moratory on the expansion of the mining and oil extraction territories, auditing and integral reparation of socio-environmental impacts. Protection of territories, water sources and fragile ecosystems. (6) Respect the 21 collective rights, including Intercultural Bilingual Education, Indigenous Justice, informed, free consent previous to actions, self-determination of Indigenous Peoples. (7) Stopping the privatisation of strategic sectors (like hydroelectric companies, social security, communication services, roads, health and banks, among others). (8) Policies for the control of prices and speculation of basic need products. (9) Health and education. Urgent provision of medicines in hospitals. Guarantee access to higher education to youth and the improvement of schools, high schools and universities. (10) Security, protection and effective public policy to confront violence, killings, delinquency, narcotraffic, kidnapping and organised crimes. See https://​ radiolacalle​.com/​los​-10​-puntos​-de​-la​-conaie​-para​-la​-movilizacion/​ (accessed on 11 August 2022).

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increase autonomy in decision-making. Importantly, the changes in the budget did not change the logic underpinning how intercultural education should work or how Indigenous communities are involved in its production. The similitudes on the events over decades of protests showcase the consistent governmental unwillingness to create, reform or act upon the existing public policy that ensures the wellbeing of most people in the country, not only Indigenous people. However, as some people pointed out to spectators disappointed with the results after the 18 days of protest, those who steadily continue to raise their voices, lead the protests and die in them are Indigenous Peoples and Ancestral pueblos. Considering this reality, it is important to ask what public policy counts as Indigenous public policy. In Ecuador’s context, imagining that intercultural policy is a policy protecting Ancestral pueblos’ interests and attending to their demands seems rather naïve, for two reasons. First, Indigenous lives are touched by every aspect of living in Ecuador and thus are touched by all its policies. Second, intercultural policy tends to be a policy for a convivial relationship negotiated on the terms and with the underlying reason of the dominant culture. With those premises, an urgent question arises: What does public policy sustained by Indigenous thought and praxis look like? It is urgent because amidst the tensions, conflicts and clashes that such a policy might bring to a country with many cultures so deeply shaped by its colonial history, something different, more respectful and more just could arise. This chapter attempts to open that contentious conversation from a Kichwa Amazonian perspective. We will draw on the thoughts of three Kichwa Elders to analyse existing policy and ponder what a policy based on Indigenous thought might look like. First, we will analyse some discussions at one of the dialogue meetings on intercultural education. Second, the chapter will articulate the thought of the Elders as a theoretical framework. Third, it will examine the plan de vida (life route) policy/planning tool of the Amazonian Kichwa group self-named Comuna Ancestral San Jacinto del Pindo of the Indigenous Tribe of Puyo, which encircles thirty-six Indigenous communities. Last, it will reflect on Kichwa Amazonian thought that could indigenise public policy.

AT THE TABLE Discussion tables sprouted from the uprisings on June 2022. They were proposed as ways to negotiate with the government to achieve specific resolutions to which it could be held accountable. Some additional tables emerged as spaces to ponder how to arrive at a public policy that would meet major demands. One of those tables was about how to improve intercultural education. Diana participated in this table, which was recorded, and Diana and Gioconda analysed the conversations held in it. This section is dedicated to further analysis of the conversations held at the table by articulating our thoughts with the thoughts the Elders of the San Jacinto del Pindo organisation shared with us.

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The invited speakers—all women, most of them Kichwa—brought up several important points. Perhaps the most interesting of those points sprouted when adding thoughts more than answering the questions and comments posed by the host, a Kichwa intellectual leaning towards right-wing politics. Those ‘added’ thoughts pointed to the historical conflict between the national(ised) culture and epistemology deeply marked by coloniality and Indigenous and Afro-descendant cultures and epistemologies. When watching the recording of the table, we noted precisely that same conflict. While the questions and comments of the host drove the conversation towards indicators (often inadequate) and budgets (often nonexistent), the conversation remained stagnant on one idea about what public policy and intercultural education might be. Perhaps, then, it is important to acknowledge that ‘intercultural’ policy and education are products of coloniality (Maldonado-Torres, 2007). This is so because they have been propounded as regulations and knowledge towards ‘inclusion’. Historically, ‘inclusion’ has been an expression of assimilationist conviviality, with its most progressive expression being political participation. Nevertheless, it continues to be participation under the state’s rules and logic in spaces hosted by embracers of such logic. This was evident at the table with the emergence of the commonly emphasised reflection of guests that the creation and implementation of policy for Indigenous Peoples cannot happen without Indigenous organisations and communities. This reflection pointed at how conversations, participations and proposals continue to happen within what is possible and imaginable inside national(ised) colonial reason. In this sense, the discussion spaces need to be more than spaces for participation; they need to be spaces for epistemological radicalisation. This kind of radicalisation means allowing the ‘clash of two brains’ (see the section below) of multiple brains, welcoming all clashes so that something different may arise from the sparks and fires. Perhaps that would open the door to new ideas about what ‘public’ means and how to make ‘policy’ so that an intercultural dialogue may occur. This would challenge the current happenings where people from diverse cultures uphold and discuss ideas within a singular official bureaucratic culture. A productive collision like the one proposed would entail openness to questioning the thought and reasoning underlying policy. The ‘council of experts’ who produce policy and arrive at negotiation tables would have to be prepared for a dialogue with councils of wise people from the pueblos, who have been producing policy together with techniques of resistance towards survivance. Here survivance is thought, with Chippewa scholar Gerald Vizenor (2008), as removed from ‘victimry’ and grounded on the will to continue to be. A radical intercultural discussion would have to allow for the survival of Indigenous political reason and the flourishing of Ancestral pueblos’ diverse muskuy or dreaming (see the section below).

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THINKING WITH THE ELDERS—A FRAMEWORK TO QUESTION PUBLIC POLICY Muskuy: Dreaming and Questioning How to Live The possibility of creating any path towards a more respectful society starts with dreaming of it. In this case, muskuy, a Kichwa word for ‘dream’, is not simply a projection. Muskuy implies a conversation among the ayllu, the family or the community. Amazonian Kichwa People periodically have guayusa rituals to discuss muskuy among the ayllu. Guayusa rituals are conversations that happen early in the morning before sunrise, where people drink guayusa tea and discuss the dreams they had the night before or important matters about the community to solve problems or propose projects. Dreams are considered a window into the possibilities of the future(s). Most dreams are interpreted through mediating and discussing the dream with the community. There is a collaborative contemplation of the signs already offered by the ancestors and elders, human and more-than-human (animals, trees, spirits). Understanding the utterances of dreams and the messages of ancestors and land is important to see the present and prepare for the future(s). Tito Merino (2022) proposes muskuy as a process of creating a view on how to live life and how to relate within the community and with the state. This process is a particularly important political strategy when the ‘state represents almost no one’ (Merino, 2022). In the face of that reality, community gatherings with ancestors and elders are a rebellious call towards collaborative clarity on agreeing on the pillars that would ensure the continuation of Kichwa practices, knowledge and traditions. Simultaneously, it is a call to affirm the grounds on which the creation of new Kichwa knowledge respectful to Kichwa memory, elders and land is possible. In this regard, muskuy is an ethical and political vision that expands the terrain of the political beyond human action. Marisol de la Cadena (2010, 2015) has proposed with her research on cosmopolitics in the Andes, Indigenous politics include more-than-human people as political subjects. She proposes that Earthbeings, for example, are political actors because, from the viewpoint of Indigenous activists, they are active participants in the political struggles towards protecting certain spaces and ways of life. For instance, she describes how Mount Ausagante in Peru was considered part of the luchas (fights) against its destruction through mining. We here propose that muskuy also has that sensibility towards more-than-human beings as actors, but regards them as more-than-political subjects within state reason. All beings—including humans, animals and Earthbeings—who have family belonging or are ayllu can be Elders, holders of wisdom. The insights they offer not only legitimise political action and leadership but, importantly, underpin the creation of norms and guidelines for the community, which could be called Indigenous communities’ public policy.

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THE COUNCIL OF THE WISE A Kichwa community is structured on the basis of ayllus or family groups (Ashanga, 2022). The ayllu, however, is based upon ties of belonging and familiarity and not necessarily ties of blood. As Merino (2022) explains, it is possible to have trees, jaguars and anacondas be part of one’s family, according to the way ancestors show up in the lives of a community. The general guidance of the community is organically composed of the Elders of the ayllus, including grandmothers, grandfathers, leaders and members (vocales) of an assembly. Together they institute a body of wisdom to sustain the values of a community, solve problems and give advice. They are a crucial point of reference in the process of decision-making that happens in assemblies with all the members of the community. Grandfathers and grandmothers give kamachina, a Kichwa word that resembles ‘advice’. Kamachina implies offering observations over behaviours and work, sharing knowledge about how to relate to others in the community, and cautions for life outside the community. Regarding living well within the community, kamachina is offered while drinking guayusa, in minkas—spaces for the collective work of caring for people and land in the community—or in quotidian moments of learning. The advice is expected to be learned and implemented immediately, otherwise it will be brought up again by the Elders (Ashanga, 2022). Kamachina for life outside of the community is described as advice attending the ‘clash of two brains’ and tends to be cautionary for the demand of respect, self-care and protecting girls from abuse (Ashanga, 2022; Merino, 2022; Vargas, 2022). ‘Leaders are those who see, show a path, and continue seeking’ (Ashanga, 2022). Leaders in the community exercise a kind of wisdom that stems from an awareness of the internal problems of the community and the families composing it—to mediate, solve problems or propose projects towards attending to the needs of ayllus. Those proposals often require relating with organisations outside the community and national institutions. In this sense, leaders address the clash between ways of living, knowing and doing politics, particularly concerning national(ised) living and state public policy. Leadership strengthens with the oversight of community members. Vocales (members) of the local community organisations bring the community’s problems to the leaders’ attention. They check that decision-making responds to the needs of people in their ancestral territory. Ideally, articulating all the perspectives supporting the good of the community as a whole. Following the logic of the Council of the Wise, wisdom and wise decisions are forged through several levels of discussion and relationality between people, organisations and the state. Perhaps these dynamics are similar enough to the ideal of national democracy. The crucial difference lies in the reason and desires underpinning them, which is explained here through muskuy as a vision. The political visions of the Amazonian Kichwa communities propose a critical pause to reconsider what is considered living and how to arrive at a common or collective good. The first implication of that pause is to question who is included in

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that collective good. The guarantee of respect to the lives and health of lands, Elders and ayllu of all kinds is included in Kichwa collective good. Further, the construction of norms towards ensuring collective good is built upon practical, spiritual and historical knowledge that is simultaneously traditional and constantly in revision. This means that the making of and abiding by Kichwa’s ‘public policy’ implies dreaming as the exercise of memory and a projection towards wellbeing. Muskuy builds upon affectivities and sensibilities that do not simply regulate life for present and future harmony or development. Rather, it articulates memory and vision to ensure the continuation of the life and health of ayllus and their relationships with others. The collective good is a collective responsibility, where the collective exceeds the human and any simple definition of community life. The ‘public’ is redefined, expanded and constantly in revision through various exercises of listening and projecting. For all these reasons, this kind of public policy cannot be simply technocratic, index-based, stiff or enforced solely by leaders.

PLAN DE VIDA/LIFE ROUTE: EXERCISING MUSKUY AS A VISION FOR A WAY OF LIVING AND DOING PUBLIC POLICY This section suggests that, even though the possibilities of the intercultural have not allowed a radical rethinking of the public, the Plan de Vida or Life Route3 is an instrument of the sovereignty of the Comuna San Jacinto del Pindo. In practical terms, the Life Route is a document that describes the current situation of the communities and their needs according to their priorities and in relation to state care. It also contains a historical review, an overview of the demographic and economic aspects of the San Jacinto del Pindo population, a description of access to services and a recount of the community’s natural resources. It was elaborated by community members who collected primary information through participatory workshops, surveys and semi-structured interviews, and paired it with information available in different national institutions. That information was taken as a foundation to present the current situation of the community and propose management and territorial development actions. The community used research tools that could arrive at a proposal understandable within the logic of the state. As an expression of the aspiration for an effective intercultural public policy, the Life Route is a deep translation of muskuy into the state bureaucracy. The proposal the document makes towards greater social care uses languages and perspectives that 3 Indigenous Amazonic organisations have elaborated Life Routes in the past. The first Life Routes were not necessarily the effort of local communities’ organisations. The San Jacinto del Pindo community is an exception because their leaders accessed funds that allowed them to do an extensive research that could fit in the national models for local policy. Since 2019, there have been more funds available for grassroot organisations, which have been used in researching and writing local policy as a strategy to negotiate with the national government.

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align with the nationalised and westernised logic of the public. Nevertheless, that translation is strategic as it has become recognised as a local public policy tool. In the absence of local tools, regional policies apply. The existence of the Life Route establishes a policy buffer zone from where the people of San Jacinto del Pindo organisation can establish priorities. Muskuy arises as policy encauzamiento (channelling). The Life Route is an exercise of muskuy in a world where ‘two brains clash’. While some actions towards improvement in public services are desired by the community, the how and where are contentious. Regarding education, through the Life Route, the community denounces the lack of spaces dedicated to education to which the community has a reach and the acculturation demanded by the national education system in the few spaces available. This is evident in the absence of teachers who are fluent or native speakers of Kichwa—the ancestral language of San Jacinto—as well as materials on all subjects in Kichwa and pedagogical practices or even activities that value the knowledge, views and culture of the comuna. As Merino (2022) mentioned, the aspiration of most families in the San Jacinto comuna is that their children have access to both Kichwa and national(ised) education to cultivate and nourish both ‘brains’. This would prepare them ‘to live in whatever world they have to’ (Merino, 2022). Simultaneously, the desire to nourish both ‘brains’ is to contribute to both cultures to transform society towards one that respects the Ancestral pueblos and their lands. Kichwa knowledge could contribute greatly to ground reason and actions in the ‘inter’ zone of intercultural efforts. Taking as an example the area of education, it is evident that the ‘clash of two brains’ is an exercise of care. The proposal in terms of education aims to avoid migration to the cities of parents who want their children to cultivate ‘both brains’ and stop the weakening of transmission of ancestral knowledge often implied with migration. Building upon the stated mission of the Ministry of Education to guarantee access to an education of quality, intercultural and supportive of the use of ancestral languages, the San Jacinto del Pindo comuna has proposed a plan of action for education within and outside the national system to teach local ancestral knowledge (Merino, 2022). The proposal involves protecting sacred sites that are ‘curriculum locales’ for Kichwa knowledge. These include compiling, publishing and socialising the historical memory of the community, teaching Kichwa language and culture to increase the number of speakers and self-identify Kichwa community members, promoting the participation of the young population in workshops on ancestral techniques of chakra cultivation and natural medicine, and training groups of midwives. These concrete practices are to be immediate and foundational actions to support a larger vision of the community’s future. That vision in the Life Route is muskuy translated into indicators to protect the Amazonian Kichwa way of knowing and living. Evidently, the format of local policies, indicators and evaluation processes is constraining for dreaming and sustaining future(s). However, the Life Route is one of many strategies for channelling governmental action in Indigenous territories so that it may be welcomed and respectful. Instruments like the Life Route, even though limited by bureaucratic reasoning, can aid in caring for the integrity of communities, which might have access to a more relevant education closer to home.

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Indigenous communities go through epistemic negotiations as part of the many strategies to fight towards a muskuy. Organising the San Jacinto community’s needs in languages and structures understandable to national governments is an action pushing the borders of what is possible in current intercultural policymaking. It has brought the concerns of the ayllus into the Life Route, a tool finally supported and recognised by legislation on Amazonian development approved in 2018. The 2018 Law on Territorial Planning (Ley Orgánica Para La Planificación Integral De La Circunscripción Territorial Especial Amazónica) created two funds to be used for development projects in the Amazon region and to regulate its territorial planning. These funds come from the revenues of oil extraction and mining. The law and the funds were not thought of as ways of promoting Indigenous or intercultural approaches to local governance. The fact that Indigenous communities have used the funds to articulate priorities on the revitalisation of ancestral knowledge, the protection of Indigenous territory and Indigenous autonomy speaks precisely to pushing the borders of what is possible with the official instruments and funds available. In this regard, Life Routes are a first attempt to embody the sparks of the ‘clash of two brains’. Despite the compromise of adopting the national bureaucratic culture in crafting a social care path, the Life Route has not yet been considered by government authorities. Disregarding communities’ efforts undermines the ‘inter’ field in intercultural relations. People opt for street policymaking when too many initiatives get stuck in the mud of inconsequential dialogues. Most of the more significant national commitments—for example, the abolition of haciendas, the recognition of citizenship for Indigenous people, intercultural rights and budgets for already-existing intercultural education policy to work—have been sealed thanks to uprisings. The call towards a more radical intercultural reasoning where brains clash loudly and honestly is also a call to not having to clash so much on the streets where lives, eyes, trust and more are sacrificed. The radicality rests in creating an ‘inter’ space where the meaning of the public policy and public reason itself might be challenged and transmogrified. There should also be a clear understanding that such space is not to attend to ‘minorities’ but to transform society for the benefit of all. Here all does not mean a universalisation overdetermined by one culture, as is the case currently, but dynamic attention towards an action that respectfully supports the lives of peoples. As shown by the 2022 uprisings, sometimes those actions start simply with a serious consideration of peoples’ health and harsh conditions in their livelihoods.

TOWARDS AN INDIGENISED PUBLIC POLICY A way of strengthening the place of ‘inter’ in intercultural public policy is indigenising it. This chapter suggests that such work requires questioning and redefining the notion of ‘public’. That redefinition would imply the clash of many brains, as many as culturally shaped reasons abide in a country. Kichwa thought has made many important contributions to the contentious debate public policymaking should

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be. One of them is muskuy as a political vision for guiding life. That is dreaming understood as the articulation of the Elders’ memory and the pueblos’ vision towards respectful social wellbeing. Such dreaming fills policy with sensibilities beyond regulation and prioritises responsibilities of care. Indigenising public policy then requires much more than attempting ‘inclusion’ or convivial negotiations under the reason and rules of one culture. As Priscila Ashanga (2022) put forth, historical learnings from intercultural relations start with resistance. Acknowledging and embracing all the tensions and historical conflicts multinational and pluricultural countries have is crucial for consequential change. The call is not to enliven hurtful memories or remain standing in painful history. Rather, it is a call to build trust and honest dialogue where there has been discursive remediation and colonial ‘inclusion’. The resistance we propose must come from all of us who make the greater community of a country. Resistance is not a burden to be placed upon minoritised communities but a responsibility to suspend political assumptions of good practices, necessary regulations, universal wellbeing and unavoidable actions. Resistance is not only a right of democracies but a crucial tool to respectfully and sincerely clash, to seek not the resolution of differences but the contentious flourishing of life. Collectively building the space of ‘inter’ in intercultural thought and indigenising public policy requires diverse political training. Kichwa Elders assert that people should continue to be part of minkas and community meetings from when they are 8 years old, as has been the case traditionally. Listening to the discussions and seeing the dynamics of community decision-making is part of effective political education. Acknowledging political education in communal spaces is necessary to continue companionship between elders and youth in positions of leadership and communal councils. Maintaining and strengthening spaces for people to be trained in their own political tradition and thought could sustain processes of intercultural policymaking where different political cultures shape policy. Suspending the ‘common sense’ of policymaking, implementation and evaluation could allow for the articulation of diverse strategies of accountability. The Amazonian Kichwa Life Route brings an important point to consider in terms of educational policy: Indigenised educational policy needs to embody people’s concerns. Policy made without people, not even with relevant fieldwork, which is deployed over territories, violates the sovereignty of Ancestral pueblos and cannot respond to the particular needs of Indigenous communities. Processes of consultation are not enough. Local policymaking by Ancestral pueblos must be supported by the state and put into use. Similarly, evaluation processes must be multiple to adjust practices and regulations in ways that support the muskuy of people in their territories. This is especially true for educational policy. An indigenised education policy must aim at sustaining multiple knowledges, ways of knowing and sites of knowledge. In a country with 14 Indigenous nations and 18 Ancestral pueblos, the production and evaluation of policy require variability understood as flexible action towards the flourishing of different lives and reasons. Embracing contentious relationships and history is truthfully seeing the value of difference. This vision does not reduce

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the value of difference to ‘enriching’ any one culture. Rather it grounds the value of difference in respect of existences, histories, knowledges and memories and makes it possible to work among cultures, sometimes to know together and sometimes to clash loyally and honestly.

REFERENCES Ashanga, P. (2022). Amazonian Kichwa perspectives on policy and education policy. Kichwa Leaders’ Conversation in Comuna San Jacinto, Puyo-Ecuador, August 19. CONAIE. (2022). Pronunciamiento 15 de Junio. Retrieved on 14 November 2023 from https://​ www​.facebook​.com/​conaie​.org/​videos/​pronunciamiento​-15​-de​-junio/​509199350956582/​ de la Cadena, M. (2015). Earth beings ecologies of practice across Andean Worlds. Duke University Press. de la Cadena, M. (2010). Indigenous cosmopolitics in the Andes: Conceptual reflections beyond politics. Cultural Anthropology, 25(2), 334–370. https://​doi​.org/​10​.1111/​j​ .1548–1360​.2010​.01061​.x Ecuador Constitution. (2008). Constitución de la República del Ecuador. Quito: Tribunal Constitucional del Ecuador. Registro oficial Nro, 449, 79–93. Gonzales, M. I. (2015). Las escuelas clandestinas en Ecuador. Raíces de la educación indígena intercultural. Revista Colombiana de Educación, 69, 75–99. Maldonado-Torres, N. (2007). On the coloniality of being: Contributions to the development of a concept. Cultural Studies, 21(2–3), 240–270. https://​doi​.org/​10​.1080/​09502380601162548 Merino, T. (2022). Amazonian Kichwa perspectives on policy and education policy. Kichwa Leaders’ Conversation in Comuna San Jacinto, Puyo-Ecuador, August 30. Vargas, M. (2022). Amazonian Kichwa perspectives on policy and education policy. Kichwa Leaders’ Conversation in Comuna San Jacinto, Puyo-Ecuador, August 19. Vizenor, G. (2008). Survivance: Narratives of native presence. Lincoln, NE: University of Nebraska Press.

14. Indigenous food sovereignty: embodying Nuu-chah-nulth principles of ʔuʔaałuk (to take care of), ʔiisaak (to be respectful) and hišukʔiš c̓awaak (everything is interconnected) in policy and practice1 Charlotte Coté2

INTRODUCTION c̓ išaaʔaqsupsi ʔaḥʔaaʔaƛ nuučaan̓ułʔaqsup. histaqšiƛsi c̓uumaʕas. I come from the Indigenous community of Tseshaht and the larger Nuu-chah-nulth Nation. The Tseshaht call the area in which we live c̓ uumaʕas, which refers to the river that runs through our community (this river was renamed the Somass River by white settlers and much of this area became the city of Port Alberni). We are 14 autonomous communities along the west coast of Vancouver in British Columbia, Canada. With a population of approximately 10,000, we are connected through language, culture, shared waters and lands, and a tradition of hunting whales. Like other Indigenous Nations worldwide, Nuu-chah-nulth-aht (Nuu-chah-nulth people) are enacting food sovereignty to achieve food security and health and wellness in our respective communities. Positioned within the contexts of Indigenous self-determination and decolonisation, food sovereignty entails reinstatement of authority over our ḥaḥuułi, ancestral territory and—through the development of strategies and implementation of policies aimed at the sustainable production and consumption of our haʔum— cultural foods through ecologically sound food systems. In March 2020, the world faced a global pandemic, and people worldwide began experiencing various levels of economic and social devastation. COVID-19 does not discriminate, and people from all walks of society have been impacted. However, the pandemic exposed socioeconomic inequalities embedded in state systems and weaknesses in global food systems worldwide. In the United States and Canada, this severely impacted Indigenous Peoples, communities of colour and women’s ability to respond to the virus, ultimately resulting in higher infection and death rates. For Indigenous Peoples in particular, many of our communities lacked the means 1 Some of the material presented in this chapter is adapted from my book, A drum in one hand, a sockeye in the other: Stories of Indigenous food sovereignty from the Northwest Coast (Seattle, WA: University of Washington Press, 2022). 2 Tseshaht/Nuu-chah-nulth.

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to reduce the risk of contagion. Things like having access to adequate healthcare, having fresh, clean water to wash our hands or even having access to personal protective equipment like masks, gloves and hand sanitisers were, and still are, major concerns. In our Indigenous communities, people often live in close quarters with each other or have many people living under one roof, which makes spreading this type of infectious disease that much easier. All of this is made worse by the fact that settler colonialism continues to undermine Indigenous societies. We face continual assaults on our cultural identity and attacks on our indigeneity that negatively impact our physical, emotional and spiritual health. As the global devastation of the pandemic continues, it highlights three key issues contributing to the health disparities that make Indigenous Peoples more susceptible to COVID-19: (1) historical lack of access to traditional and mainstream healthcare infrastructure; (2) the importance of access to and control over ancestral homelands to support Indigenous self-determination; and (3) the lack of access to cultural and nutritious foods to support and strengthen physical, emotional and spiritual health. This makes enacting Indigenous food sovereignty essential to strengthening health and wellness in our respective communities. In this chapter, I explore the notion of food sovereignty and how Indigenous People are utilising this concept to challenge settler colonialism and revitalise and restore our sacred relationships to our nism̓ a (lands), čaʔak (waters) and haʔum (cultural foods) as we strive for self-determination. I focus my discussion on my Tseshaht/Nuu-chah-nulth communities and how exercising food sovereignty aligns with our understanding that we must honour the wisdom and values of ancestral knowledge in maintaining responsible and respectful relationships with the natural world. Hence, Nuu-chah-nulth food sovereignty is grounded in our philosophies of ʔuʔaałuk (to take care of), ʔiisaak (to be respectful) and hišukʔiš c̓awaak (everything is interconnected). I end with a brief discussion and analysis of realising Indigenous food sovereignty through Canadian domestic policy reform, utilising the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) articles as a framework. Political and legal recognition of Indigenous rights through state domestic policy and implementation of the UNDRIP can be significant to Indigenous decolonisation and self-determination and support Indigenous food sovereignty. However, I question placing emphasis on a rights-based discourse in achieving food sovereignty that focuses on state political and legal recognition of Indigenous rights rather than the food sovereignty work being conducted by Indigenous Peoples within and for their communities.

SETTLER COLONIALISM AND ITS IMPACT ON INDIGENOUS HEALTH AND FOOD INSECURITY My Nuu-chah-nulth community of Tseshaht is situated within the larger area defined as the Northwest Coast, extending over 1,400 miles and encompassing the jagged coastlines of southeast Alaska, British Columbia, Washington and Oregon states,

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and northern California. It is an area characterised as the ‘land of salmon and cedar’ and was the home of some of the most diverse and richest Indigenous cultures in the world, nations that flourished in an abundance of marine mammals and dense vegetation in an area with mild winters and moist summers (Ames & Maschner, 1999; Stewart, 1984). The lands, waterways and rainforest, populated by Western Red and Yellow Cedar, provided us with an impressive material culture. Biological diversity created an abundance of haʔum (cultural foods), which we and other coastal Indigenous Nations harvested by fishing, hunting, gathering and cultivating plants for food and medicine. The harvesting, cultivation, preparation, sharing and trading of our haʔum were conducted within our prescribed cultural values based on respect, reciprocity, interdependency and ecological sustainability. Our food systems functioned in healthy interdependent relationships with our environment and were maintained through active participation in traditional land and food systems (Kuhnlein & Receveur, 1996). The kinds and quantities of haʔum available to us depended on keeping this symbiotic relationship strong and healthy. It was maintained by transferring traditional ecological knowledge and monitoring the environmental health and species diversity as stewards and protectors. As a result, our traditional foodways were/are enmeshed in the ecosystems in which we thrive. When I was growing up, a good portion of my daily diet consisted of haʔum, and we frequently ate a variety of seafood such as salmon, halibut and herring eggs, as well as deer and moose meat and a variety of berries and plants, which we harvested and processed. This was typical of many coastal Indigenous diets. So, how did we get to this place of unhealthiness and food insecurity that we are in today? As an Indigenous food studies scholar born and raised in my Tseshaht community, I have studied, witnessed and experienced how colonisation, the ongoing impacts of settler colonialism, boarding schools, habitat destruction, socioeconomic marginalisation and the imposition of a Western diet have impacted my people’s physical, nutritional and spiritual health and led to food insecurity for us and Indigenous Peoples worldwide. The United Nations’ (UN) Food and Agriculture Organization (FAO) defines food security as a situation that ‘exists when all people, at all times, have physical, social and economic access to sufficient, safe, and nutritious food that meets their dietary needs and food preferences for an active and healthy life.’ However, in 2019, of the more than 7.7 billion people in the world, almost half experienced food shortages and food insecurity. This food insecurity largely stems from the global shifts in food production starting in the mid-eighteenth century. This resulted in a move away from small-scale polyculture farming to a more industrialised and capitalist mode of food production that focused on monoculture agriculture (Jarosz, 2014; Patel, 2009; Rosset, 2008; Trauger, 2015; Wittman, Desmarais & Wiebe, 2010).3 Industrialised wealthy countries initiated the movement to a global food system to raise agricultural productivity through infrastructure and research, and government investment and



3

See also https://​viacampesina​.org/​en/​, accessed 20 March 2019.

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intervention in markets. All of this led to globally standardised agricultural practices and the development of globalised agri-capitalism in the early twentieth century (Anand et al., 2015; Inglis & Gimlin, 2009). By the end of the century, neoliberal trade policies, supported by the World Bank, the World Trade Organization and the International Monetary Fund, promoted agricultural and food practices aimed at maximising efficiency, reducing costs and increasing production (Anand et al., 2015). As a result, the world is currently producing more than 1.5 times the food needed to feed every person on the planet, yet one-sixth of its population cannot afford to buy this food (Anand et al., 2015; Holt-Giménez, 2011). In other words, while more food was being produced, more people globally were becoming food insecure (Holt-Giménez, 2011). The approximately 400 million Indigenous Peoples worldwide face the most serious food insecurity because of the incessant impact of settler colonialism (Kuhnlein, 2014). Settler colonialism, as Yellowknives Dene scholar Glen Coulthard (2014) explains, ‘refers to the dispossession of Indigenous peoples from their lands’ (p. 25). This dispossession, scholars Eve Tuck (Aleut/Unangax) and K. Wayne Yang (2012) articulate, ‘operates through internal/external colonial modes simultaneously because there is no special separation between metropole and colony’ (p. 5). Settler colonialism, as contrasted with colonialism, includes both ‘displacement and replacement’ and, as Tuck and Yang explain, ‘settlers come with the intention of making a new home on the land, a homemaking that insists on settler society over all things in their new domain …. In order for settlers to make their home, they must destroy and disappear Indigenous peoples that live there …. Indigenous peoples must be erased, must be made into ghosts’ (2012, pp. 5–6). As Coulthard (2014) asserts, colonial erasure includes stripping Indigenous Peoples of their ‘self-determining authority’ (p. 25). The colonial erasure goes beyond removing Indigenous Peoples from their ancestral homelands and waterways. It weakened Indigenous relationships with their traditional territories and the cultural foods within these lands that provided dietary, spiritual and cultural nourishment. Indigenous Peoples are united in place-based cultures embedded and shaped by deep and meaningful relationships to the land, waters, plants and animals that have sustained our cultures. Within Indigenous cosmologies, landscapes and foodscapes occupy a simultaneously physical, spiritual and social geography. Harvesting traditional foods can be seen as the most direct manifestation of the relationships between Indigenous Peoples and our homelands (Grey & Patel, 2015). Indigenous People held autonomy over their food systems for thousands of years before contact with Europeans. They maintained food security through the rich knowledge of their environment and food resources, passed down through oral tradition and long-standing land stewardship and cultivation practices (Turner & Turner, 2008). Before colonisation, traditional hunting, fishing and gathering activities provided nutrient-rich diets to Indigenous communities. Dependent on what was available in the geographic area, these diets were high in animal proteins, animal fats and fat-soluble vitamins. They also contained lots of plant sources such as wild rice, tubers, chenopods, beans, seeds, maize, squash, berries and leafy vegetables

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(Mailer & Hale, 2013). Post-colonisation, however, there has been a continual shift in Indigenous diets towards processed foods (National Collaborating Centre for Aboriginal Health, 2013). Like everyone else, Indigenous People were also pulled into the savvy marketing of multi-billion-dollar capitalist corporations to get their industrialised, processed foods on our tables and into our diets. The tragic history of settler colonialism and the resulting economic, social and cultural marginalisation has had profound impacts on Indigenous Peoples’ health and food security worldwide. This has contributed to the alarming rise of lifestyle diseases such as diabetes, heart disease and autoimmune disease, reaching epidemic levels for many Indigenous communities (Egeland & Harrison, 2013; Gracey & King, 2009; Jernigan, Duran, Ahn & Winkleby, 2010; King et al., 2009; National Collaborating Centre for Aboriginal Health, 2013). Canadian and United States policies, such as the boarding school system, weakened cultural practices and knowledge transfer, broke down our languages, and severed Indigenous Peoples from their cultural foods (Egeland & Harrison, 2013). In recent years, we have seen research that connects contemporary Indigenous health issues with the boarding school system and the forced dietary change on the Indigenous children attending these schools. In 2008, Canada created the Truth and Reconciliation Commission (TRC) to acknowledge the history and legacy of Indian Residential Schools, to document the trauma of former boarding school students, to honour the resiliency of former students and their families and communities, and to guide the process of truth, healing and reconciliation. In 2015, the TRC issued its final report, Honouring the truth, reconciling for the future: Summary of the final report of the Truth and Reconciliation Commission of Canada. The TRC findings affirmed what former students attending boarding (residential) schools in Canada have said about the atrocities they experienced in these schools, with students succumbing to infectious disease, particularly tuberculosis, sexual and physical abuse, ‘as well as separation from families and communities, caused lasting trauma for many others’ (p. 205). The report findings exposed the realities of federal education policy and that these schools ‘endangered the health and well-being of the children who attended them’ (p. 205).

FOOD SOVEREIGNTY AS A GLOBAL FOOD REGIME Indigenous food sovereignty is directly linked to efforts to nurture health and wellness in our respective communities and resist Western and unhealthy foods that were forced on us—forms of culinary imperialism and food hegemony. Re-indigenising our diets is at the heart of the cultural resurgence and revitalisation movements we are witnessing in our communities today. In the early 1990s, we saw the birth of the food sovereignty movement, and scholars worldwide began framing their theories and ideas around global food security and insecurity. Food sovereignty is defined as ‘the right of peoples to healthy and culturally appropriate food produced through ecologically sound and sustainable methods, and their right to define their own food and agricultural systems’ (Declaration of

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Nyéléni, 2007). The concept of food sovereignty was framed within a larger rights discourse and the ability for all people to produce their own foods freely and independently in a political framework that recognised territorial autonomy. Therefore, food sovereignty is linked to Indigenous struggles for self-determination and achieving political autonomy over our ancestral homelands (Declaration of Nyéléni, 2007). Food sovereignty challenges the hegemony of transnational capital in the food system, articulating the need to stop viewing food as a ‘commodity’ and that the political rights to produce and distribute food be returned to the producers and consumers (Trauger, 2015). The notion of food sovereignty became a uniting call to small-scale farmers fighting for their voices to be heard in the global food regime discourse and among Indigenous Peoples worldwide. While this movement developed in an agrarian-based, Latin American context (Trauger, 2015), Indigenous Peoples with fishing, hunting and gathering traditions were able to connect to its underlying philosophy that all nations, including Indigenous Nations, have the right to define strategies and policies and develop food systems and practices that reflected our own cultural values around producing, consuming and distributing food. In the mid-1990s, Indigenous Peoples in Canada and the United States began exploring ways food sovereignty could be employed to create dialogue and action around revitalising Indigenous food practices and ecological knowledge. Indigenous Peoples came together to begin articulating ways in which food sovereignty could be defined and applied to address pressing issues facing Indigenous communities as they responded to their own health needs. One of the first Indigenous groups in Canada to explore the new concept of food sovereignty is the Working Group on Indigenous Food Sovereignty (WGIFS), created in 2006. The WGIFS developed four key principles of Indigenous food sovereignty that Indigenous Peoples and communities could use as a framework as they addressed their own food needs. These were: 1. Sacred sovereignty: food is a sacred gift from the Creator. 2. Participatory: a call to action that people have a responsibility to uphold and nurture healthy and interdependent relationships with the ecosystem that provides the land, water, plants and animals as food. 3. Self-determination: it needs to be placed within a context of Indigenous self-determination with the freedom and ability to respond to community needs around food. 4. Policy: provides a restorative framework for reconciling Indigenous food and cultural values with colonial laws and policies (Morrison, 2011). These growing Indigenous foods and food sovereignty movements are positioned within the larger decolonial struggle to decolonise our homelands and rebuild and strengthen cultural and sacred relationships with the plants, animals and ecosystems that provide us with healthy and nutritious foods. In my community of Tseshaht, as

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well as other Northwest Coast communities, salmon is at the core of our food sovereignty initiatives.

THE CULTURAL SIGNIFICANCE OF SALMON TO TSESHAHT/NUU-CHAH-NULTH FOOD SOVEREIGNTY You enter my community of Tseshaht by driving across a bridge that demarcates our community from the city of Port Alberni. The bridge crosses a river we call c̓ uumaʕas, meaning ‘cleansing or washing’ (Arima et al., 1991, p. 190), but it became known as the Somass River, a name used by the mamałn̓i (white settlers) who began moving into our territory in the mid-1800s. The c̓ uumaʕas streams through our ancestral waters like a life vein, bringing the precious salmon that nourish and feed our community. Before colonisation forced political, social, spiritual and economic societal change, coastal Indigenous cultures and economies were marine based. We derived most of our sustenance from the oceans, rivers and inlets flowing through our territories. These waterways provided abundant food and, intertwined with the rainforest, provided the basis for an impressive material culture. Our rich marine and coastal environment supported the development of societies with large populations and permanent residences and complex social hierarchies with permanent leadership positions reinforced through the Potlatch system (Ames & Maschner, 1999). Potlatches reinforce reciprocity, uphold social obligations, strengthen familial ties, and reaffirm respectful relationships between humans and their nonhuman kinfolk. Food was, and still is, at the core of the Potlatch, and the sharing and gifting of food were/are entwined in the cultural, political and social elements that frame this tradition. My family has held many Potlatches over the years, and these are times that bring us all together in the harvesting and processing of our haʔum (cultural foods) that are shared with our guests. Potlatches continue to serve important social, economic and cultural functions through the sharing and distribution of food. As previously stated, food sovereignty is defined as ‘the right of peoples to healthy and culturally appropriate food produced through ecologically sound and sustainable methods’ (Declaration of Nyéléni, 2007). Beyond nutritional health, Indigenous food sovereignty reinforces familial and social bonds of generosity and reciprocity in the harvesting, sharing and eating of our haʔum (cultural food) while also decreasing our dependence on processed foods. Eating our foods grounds us to place and reinforces our connections and relationships to our homelands. When we eat our foods, Salmón (2012) writes, we are eating our landscape, eating the stories, eating our histories and eating our worldviews. Our foods ‘are more than nourishment; they are markers of identity interwoven with landscapes and culturally symbolic events that occurred on those lands.’ As Indigenous People, we have an emotional connection to our traditional foods, and our physical, spiritual and dietary health is directly related to our ability to eat our cultural foods. Restoring our traditional food practices allows us to experience a special connection to our cultures and our lands because every plant and animal

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carries their own spiritual gifts. Thus, ‘a sense of vitality and belonging’ comes with eating the foods that provided our ancestors with optimum health and longevity (Krohn & Segrest, 2010). In Feeding the people, feeding the spirit, Krohn and Segrest (2010) explain how the unity experienced in harvesting, processing and preparing traditional foods and the sharing of meals is an integral part of Indigenous cultural identity that honours our nonhuman kinfolk that give themselves as food: People understood that food is precious, is a gift from nature, and is necessary for our existence. Eating foods in this way helps feed the desire for wholeness within us, and it can be amplified when the entire family participates in a meal together. Individuals can become enriched, as they partake in a fundamental aspect of survival with the ones they love, and the family becomes strengthened. (p. 33)

I have witnessed this first hand, and was raised in a family and community that has continued to harvest various salmon, especially miʕaat, sockeye salmon, our most important haʔum. The Northwest Coast provides an exceptionally rich and nurturing environment for salmon and a sustainable balance between salmon and human ecosystems, which has evolved into a respectful and reciprocal relationship for thousands of years. Salmon is at the heart of our stories and shared experiences; it is the foundation of our culture and has remained an important nutritional food in our diets. Salmon was a primary food source that allowed coastal Indigenous cultures to flourish, and this was never taken for granted. In the coastal Indigenous belief system, everything has a spirit. Prayers and ceremonies are conducted to show respect to their spirit and thank them for bringing their physical bodies to our communities to feed us. The spirit of the salmon is celebrated through the First Salmon Ceremony, which honours its return each year and maintains this important relationship. This ensures that our salmon relatives continue to visit us and provide their physical forms to us as food (Kidwell, 2005; Turner, 2005). Ask any person from a Northwest Coast tribal community about the foods they grew up with, and the first one they most often mention is salmon. Wild salmon is high in protein, low in saturated fat and rich in omega-3 fatty acids. Numerous studies have shown how essential fatty acids derived from fish and sea mammal oils reduce the risks of heart disease and type 2 diabetes (Breslow, 2006; Carpentier et al., 2006; Connor, 2001; De Caterina et al., 2007). Omega-3 fatty acids can also reduce inflammation that can cause heart disease, stroke, autoimmune disorders and certain types of cancer (Berbert et al., 2005; Löfvenborg et al., 2014). Omega-3 fatty acids and Omega-6 fatty acids are classified as polyunsaturated fats (PUFAs). Research has found that their consumption supports both our physical and mental health and reduces the risk of depression, dementia, psychosis and attention deficit hyperactivity disorder (Bentsen, 2017). Salmon was and still is integral to our spiritual and cultural identity and plays a major role in our nutritional health as well as the health of our ecosystems, with the nutrients the fish carry through our waterways and the animals that depend on them for food. Therefore, maintaining our cultural and spiritual ties to

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salmon and protecting its habitats are crucial to our very survival as people, putting it at the heart of our food sovereignty. Tseshaht, like other coastal Indigenous Nations, have within our worldview the understanding of 13 moons in a calendar year that represented cyclical changes and were named for the seasonal harvesting, hunting, fishing and gathering activities that occurred during this period. For example, the huyaaqimł, the wild geese or flying geese moon, in May denotes the beginning of the whaling season when the geese arrive. The qawašimł, or berry moon in June, tells us it is time to harvest certain berries. Many of our moons directly link to salmon harvesting periods and would determine the species of fish that would be available during this time—for example, the sac̓ upimł, the spring or king salmon moon in August, the hink̓uuʔasimł, the dog salmon moon in September, and the č̓iyaaqimł, the cutting fish moon in October (Drucker, 1951; Ross Sr., 2015; Sapir & Swadesh, 1939). To ensure their continual return, traditional salmon stock management was built on sustainability with cultural sanctions in place and the transfer of ecological and ancestral knowledge of salmon life cycles. Coastal Indigenous Peoples understood the cyclical and predictable nature of these salmon runs. We had complex technological, social and ritual practices in place to harvest them, which were the basis of our subsistence economies (Mathews & Turner, 2017). Hence, Indigenous ecological knowledge demonstrated a well-developed and complex understanding of the environment.

NUU-CHAH-NULTH GOVERNANCE, RESOURCE MANAGEMENT AND FOOD SOVEREIGNTY The Tseshaht and other Nuu-chah-nulth communities are working to restore traditional food harvesting and management practices that maintain our connections to salmon and our other cultural foods, which are situated within the concept of food sovereignty. Contemporary Nuu-chah-nulth strategies and practices are built on traditional economic sustainability, as stated in Hawilthpatak Nuu-chah-nulth, Nuu-chah-nulth Ways of Governance (1999). This background paper centres on elder knowledge in governance and decision-making. Respect for the resources and the Nuu-chah-nulth’s essential dependency on the resources resulted in a high value being placed [on] sustainability. The fish were not treated as a commodity for human consumption. Rather, fish were respected for what they were in and of themselves. Human beings interacted with fish out of respect for the fish. Certain protocol was required when dealing with living beings out of respect for life and because of the need for the resource to sustain people forever. Nuu-chah-nulth people and governments acted out of long-term consideration.

Nuu-chah-nulth-aht (Nuu-chah-nulth people) are seeking self-determination through a resurgence in traditional governance, resource management practices and food sovereignty initiatives that are grounded in Nuu-chah-nulth values and principles of ʔuʔaałuk (to take care of), ʔiisaak (to be respectful) and hišukʔiš c̓awaak (everything

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is interconnected). As place-based cultures and societies, Nuu-chah-nulth view people, land, water, air and all living creatures within that land as inseparable and interdependent (Hawilthpatak Nuu-chah-nulth). The underlying vision of ʔuʔaałuk is to ‘take care of’ our ḥaḥuułi (ancestral homelands) in a way that is consistent with Nuu-chah-nulth values and principles of respect and is a responsibility given to our people through n̓ aas, our Creator (Uu-a-thluk Strategic Plan, 2018–2023). Our principle of ʔiisaak applies to all life forms as well as to the land and water and, at its most basic understanding, teaches that all life forms are held in equal esteem. Our relationships with the plants and animals that give themselves as food derives from ʔiisaak, which enforces sustainability and places sanctions on those who are stingy or wasteful (Atleo, 2004; Turner et al., 2000). The principles of ʔiisaak and ʔuʔaałuk are embedded within an overarching philosophy of hišukʔiš c̓awaak. In his book Tsawalk: A Nuu-chah-nulth worldview (2004), Nuu-chah-nulth hereditary Chief Umeek, Richard Atleo, defines an ontology drawn from Nuu-chah-nulth origin stories to explain how our philosophy of hišukʔiš c̓awaak is embedded in a Nuu-chah-nulth worldview. In viewing the universe as a ‘network of relationships’, hišukʔiš c̓awaak represents the unity of the physical and metaphysical in a relationship embodied in the principle of ʔiisaak. This philosophy connects people, animals, plants and the natural and the supernatural or spiritual realms in a seamless and interconnected web of life where all life forms are revered and worthy of mutual respect. The land, water, animals and plants are regarded as our kinfolk, not as a commodity that can be exploited (Atleo, 2004; Raymond et al., 2013). This philosophy, which Chief Umeek outlines in his book, served as the foundation for the stewardship of our homelands, and it is this ideology that we are striving to revitalise. Nuu-chah-nulth hereditary chief Tom Mexsis Happynook (2000) maintains that embedded within these human and nonhuman relations is the understanding of responsibilities Indigenous Peoples strive to uphold in our social, cultural and economic practices. These responsibilities have evolved into unwritten laws over millennia: ‘These responsibilities and laws are directly tied to nature and is a product of the slow integration of cultures within their environment and the ecosystems.’ Thus, Happynook says, ‘the environment is not a place of divisions but rather a place of relations, a place where cultural diversity and bio-diversity are not separate but in fact need each other’ (2). This cultural biodiversity has developed and been nurtured over millennia and is the basis of Nuu-chah-nulth philosophy hišukʔiš c̓awaak—that everything in our natural and spiritual worlds is interconnected. In March 2005, the Nuu-chah-nulth Tribal Council (NTC), which provides services and support to the 14 Nuu-chah-nulth Nations, launched Uu-a-thluk Fisheries, an aquatic resource management organisation administered through the NTC. The organisation is guided by a Council of Haw̓ iiḥ (hereditary chiefs) who meet three times per year to provide guidance and direction through the sharing of ecological knowledge and ancestral wisdom with the Uu-a-thluk staff and seasonal interns. The vision of Uu-a-thluk is to manage the ḥaḥuułi ‘in a sustainable way’ rooted in Nuu-chah-nulth ecological knowledge, language and culture. It is also to create a management scheme that fulfils Nuu-chah-nulth’s ‘sustenance, ceremonial and

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societal needs, and provide an economic base for healthy communities’ (p. 6). This philosophy of marine management is consistent with efforts to become sustainable, self-determining nations, and reinforces the ruling authority of the ḥaw̓iłp̓atak ḥaw̓iiḥ (traditional governance). Uu-a-thluk policies and management uphold Nuu-chah-nulth ecological knowledge and values and are grounded in the principles of ʔiisaak, ʔuʔaałuk and hišukʔiš c̓awaak with the understanding that they connect, intersect and overlap, and cannot function or exist without each other.4 The Uu-a-thluk 2018–2023 Strategic Plan identifies three priority areas. One is to improve food security and ceremonial access to Nuu-chah-nulth marine-based foods by replenishing stocks and harvesting areas, supporting Nuu-chah-nulth fishers and communities, developing culturally sensitive protocols between nations, and engaging in meaningful negotiations with non-Indigenous governmental authorities such as Canada’s Department of Fisheries and Oceans. The second is to implement Nuu-chah-nulth fishing rights and support fishing rights cases and negotiations. As I have discussed, coastal Indigenous communities depend on salmon for our cultural and economic survival and our tiičʕaqƛ (holistic health). Uu-a-thluk works at protecting and advancing Nuu-chah-nulth salmon fishing rights through the T’aaq-wiihak Fishery, meaning ‘fishing with permission of the ḥaw̓iiḥ’. It also provides training, education, mentorship and workplace opportunities to get more community members involved in salmon and marine harvesting and management. Moreover, Uu-a-thluk works to communicate Nuu-chah-nulth fishing positions and rights by working and creating alliances with other governments and organisations to strengthen Nuu-chah-nulth voices and perspectives at the local, regional and national levels.

CENTRING INDIGENOUS FOOD SOVEREIGNTY IN CANADIAN DOMESTIC POLICY REFORM On 13 September 2007, the UN adopted the UNDRIP. The UNDRIP called upon member states to adopt and maintain its provisions as a set of ‘minimum standards for the survival, dignity and well-being of the indigenous peoples of the world’ (United Nations, n.d.). In 2010, Canada, initially one of the four countries that voted against the UNDRIP (along with Australia, New Zealand and the United States), officially adopted it as an ‘aspirational document’. The Canadian Government acknowledged the document as ‘non-legally binding’ in its official statement. However, it noted that the UNDRIP provided ‘the opportunity to reiterate our commitment to continue working in partnership with Aboriginal peoples in creating a better Canada’ (Department of Justice, Government of Canada, 2020). In the previous section, I discussed Nuu-chah-nulth efforts to realise food sovereignty through policies and initiatives grounded in Nuu-chah-nulth principles and values. I turn my discussion to briefly exploring how Indigenous food sovereignty

4



Uu-a-thluk Strategic Plan, at https://​uuathluk​.ca/​about/​(accessed on 12 January 2019).

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can be recognised in Canada’s domestic policy reform by implementing articles in the UNDRIP. I situate this framework within three ways Canada’s domestic policy can align with Indigenous food sovereignty: (1) land reclamation and reform; (2) restorative food and land justice; and (3) health and reconciliation. Land Reclamation and Reform Reclaiming our ancestral territories and harvesting sites is central to achieving food sovereignty and security. Domestic policy reform must include reclamation, access and control over our lands and waters. This could be achieved through state adoption of Article 26 of the UNDRIP, which outlines Indigenous treaty and cultural rights to their lands. More specifically, it requires that states provide legal recognition and protection of Indigenous lands, territories and resources, and that recognition ‘be conducted with due respect to the customs, traditions and land tenure systems of the indigenous peoples concerned’ (UNDRIP, Article 10). Restorative Food and Land Justice Loss of homelands and changing environments resulting from climate change and environmental degradation impacts Indigenous Peoples’ ability to be food secure and have contributed to the rise of disease in Indigenous communities (Egeland & Harrison, 2013). State domestic policy needs to strengthen environmental laws and protect Indigenous lands, waters and harvesting areas. Policy must recognise Indigenous political authority in ‘maintaining and developing their political, economic, and social systems or institutions’, which can be achieved by adopting Article 20 into law. This action supports Indigenous food sovereignty by legally affirming rights to engage, subsist and develop traditional economic activities. It would ensure Indigenous Peoples are entitled to ‘just and fair redress’ as stated in Article 20, if the state undermines or ignores their food sovereignty initiatives (UNDRIP, articles 8 and 9). Health and Reconciliation Domestic policy must reconcile colonial wounds and the harm settler colonialism has inflicted on Indigenous People’s health and wellbeing. The TRC’s Call to Action 18 summons Canada to acknowledge that the current state of Indigenous health ‘is a direct result of previous Canadian government policies, including residential schools, and to recognize and implement the health-care rights of Aboriginal people as identified in international law and constitutional law, and under the Treaties’ (Truth and Reconciliation Commission of Canada [TRC] 2015, p. 207). The TRC Report states, ‘Without truth, justice, and healing, there can be no genuine reconciliation. Reconciliation is not about “closing a sad chapter of Canada’s past,” but about opening new healing pathways of reconciliation that are forged in truth and justice’ (TRC 2015, p. 12). Paulette Regan, director of research for the TRC of Canada, has

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argued that ‘real truth and reconciliation can only occur when settlers genuinely begin to understand and take responsibility for the legacy of systematic violence and oppression that characterized the residential school system and Indigenous settler relations in Canada more generally’ (quoted in Mosby, 2013, p. 170). Thus, reconciliation can be achieved by adopting UNDRIP Article 23, which affirms Indigenous People’s right ‘to be actively involved in developing and determining health, housing and other economic and social programmes affecting them.’ As stated in this chapter, enacting food sovereignty is directly linked to Indigenous efforts to nurture health and wellness in our respective communities. Having the political and cultural right to our cultural foods recognised by governments through policy can provide a framework for reconciling Indigenous food and cultural values (Morrison, 2011). This can be achieved through the adoption of articles 20 and 24. Article 20 states, ‘Indigenous peoples have the right to maintain and develop their political, economic and social systems or institutions, to be secure in the enjoyment of their own means of subsistence and development, and to engage freely in all their traditional and other economic activities’ (p. 8). Article 24 states, ‘Indigenous peoples have the right to their traditional medicines and health practices, including the conservation of their vital medicinal plants, animals and minerals’ and ‘have an equal right to the enjoyment of the highest attainable standard of physical and mental health’ (p. 18). Adopting these articles would support Indigenous food sovereignty.

CONCLUSION: SHIFTING THE DISCOURSE In 2016, Canada took some legal steps and endorsed the UNDRIP as part of the movement towards reconciliation with Indigenous Peoples. In 2019, British Columbia and the Northwest Territories made a political move to write the UNDRIP into their provincial and territorial laws (Last, 2019). In 2020, Canada responded to the TRC’s call to action and to the 2019 final report of the National Inquiry into Missing and Murdered Indigenous Women and Girls. These called on Canada ‘to recognize, protect, and support Indigenous self-government and self-determination’ and amend its constitution ‘to bring it into conformity with UNDRIP’ (National Inquiry into Missing and Murdered Indigenous Women and Girls, n.d., p. 62). On 3 December 2020, the Canadian Government introduced legislation to implement the UNDRIP into law (Government of Canada website). Canada started drafting legislation in collaboration with national Indigenous organisations, such as the Assembly of First Nations, Inuit Tapiriit Kanatami and the Métis National Council, as well as regional organisations representing women, the two-spirit community, youth, territorial and provincial governments and industry stakeholders. This has led to Bill C-15, the UNDRIP Act. In Bill C-15, Canada proposed to affirm the Declaration as a universal international human rights instrument

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with application in Canadian law. The Bill also provides a framework for its implementation by the Government of Canada.5 Bill C-15 requires Canada to consult with Indigenous Peoples to ensure Canadian laws are consistent with UNDRIP and include measures to address injustice, discrimination and violence against Indigenous Peoples, and promote mutual respect and understanding (Department of Justice, n.d.). The act supports Indigenous Peoples’ right to self-determination and upholds rights contained in the treaties and other agreements between the Canadian Government and Indigenous Nations (Government of Canada website). On 16 June 2021, the Canadian Senate passed Bill C-15 and, five days later, received royal assent. It is now being implemented into Canadian law (Bill C-15). Political and legal recognition of Indigenous rights through state domestic policy and implementation of the UNDRIP can be significant to Indigenous decolonisation and self-determination and support Indigenous food sovereignty. However, I continue to question the process of looking at Indigenous food sovereignty through a rights-based lens and an emphasis on state political and legal recognition of Indigenous rights. The UNDRIP has created a space for dialogue and action and Canada has recently adopted it into law; however, Sium, Desai and Ritskes (2012) query, ‘Is it possible to decolonize institutions of colonial power? Can we decolonize through more equitable recognition from colonial institutions?’ (p. iv). The answer is ‘no’ for Coulthard (and other Indigenous scholars). Coulthard (2014) asserts, ‘the contemporary politics of recognition is ill equipped to deal with the interrelated structural and psycho-affective dimensions of colonial power’ (p. 26). In examining Nuu-chah-nulth efforts to achieve food sovereignty, we shift the discourse beyond a political and legal right recognised by states and reframe it as a cultural responsibility that honours and upholds Indigenous Peoples’ relationships with the land, water, plants and animals that have sustained our cultures. Indigenous food sovereignty is positioned within our struggles for decolonisation and self-determination and is central to restoring food security, health and wellness in our respective communities. In this chapter, I have elucidated how my Nuu-chah-nulth people are restoring respectful and meaningful relationships with our environment by developing our own policies, moving Indigenous food sovereignty beyond a political right defined by state policy. These strategies are situated within the concept of food sovereignty and grounded in our values and principles of ʔuʔaałuk (to take care of), ʔiisaak (to be respectful) and within the overarching philosophy of hišukʔiš c̓awaak (everything is interconnected).

5 At https://​www​.canada​.ca/​en/​department​-justice/​news/​2020/​12/​government​-of​-canada​ -introduces​-legislation​-respecting​-the​-united​-nations​-declaration​-on​-the​-rights​-of​-indigenous​ -peoples​.html (accessed on 14 November 2023).

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Phonetic key a

sounds like the ‘a’ in what

aa

sounds like a long, drawn-out ‘a’, as in father

c

sounds like the ‘ts’ in hats

c̓

a glottalised sound, like ‘ts’ but pronounced forcefully

č

sounds like the ‘ch’ in church

č̓

a glottalised sound, like ‘ch’ but pronounced forcefully

e

has the sound in pet

ee

has the sound in eggs

h

has the sound in house

ḥ

sounds like an ‘h’ made deep in the throat, like when breathing on glasses to clean them

i

sounds like the ‘i’ in it

ii

sounds like a long ‘e’, as in greed

k

sounds like the ‘k’ in kite

kʷ

sounds like the ‘qu’ in quick

k̓

a glottalised sound, like ‘k’ but pronounced forcefully

k̓ ʷ

a glottalised sound, like ‘qu’ but pronounced forcefully

ł

the barred ‘l’, a hissed version of ‘l’, resembling the English ‘th’ sound

ƛ

the barred lambda; sounds like ‘tl’

ƛ̓

a glottalised sound, like ‘tl’ but pronounced forcefully

m

sounds like the ‘m’ in mother

m̓

a glottalised sound, like ‘m’ but pronounced forcefully

n

sounds like the ‘n’ in nose

n̓

a glottalised sound, like ‘n’ but pronounced forcefully

oo

has the sound in paw

p

sounds like ‘p’ in pig

p̓

a glottalised sound, like ‘p’ but pronounced forcefully

q

sounds like a ‘k’ made deep in the throat

qʷ̣

sounds like a ‘k’ made deep in the throat with a ‘w’

s

has the sound in six

š

sounds like the ‘sh’ in shoe

t

sounds like the ‘t’ in toast

t̓

a glottalised sound, like ‘t’ but pronounced forcefully

u

has the sound in took

uu

has the sound in boot

w

sounds like the ‘w’ in wood

w̓

a glottalised sound, like ‘w’ but pronounced forcefully

x

the front ‘x’; sounds like a cat’s hiss

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a

sounds like the ‘a’ in what

aa

sounds like a long, drawn-out ‘a’, as in father

xʷ

like the front ‘x’ but with a ‘w’

x̣

the back ‘x’; a sound from the back of your throat, like clearing phlegm

x ̣ʷ

like the back ‘x’ but with a ‘w’

y

sounds like the ‘y’ in yes

y̓

a glottalised sound, like ‘y’ but pronounced forcefully

ʔ

the glottal stop, a closing of the vocal cords

ʕ

the pharyngeal stop, made by tensing the throat as if being strangled

REFERENCES Ames, K. M. & Maschner, H. D. G. (1999). Peoples of the northwest coast: their archaeology and prehistory. New York, NY: Thames & Hudson. Anand, S. S., Hawkes, C., de Souza, R. J., Mente, A., Dehghan, M., Nugent, R., … Popkin, B. M. (2015). Food consumption and its impact on cardiovascular disease: Importance of solutions focused on the globalized food system. A report from the workshop convened by the World Heart Federation. Journal of American College of Cardiology, 66(14), 1590–1614. https://​doi​.org/​10​.1016/​j​.jacc​.2015​.07​.050 Arima, E. Y, St. Claire, D., Clamhouse, L., Edgar, J., Jones, C. & Thomas, J. (1991). Between Ports Alberni and Renfrew: Notes on West Coast Peoples. Ottawa: Canadian Museum of Civilization. Atleo, E. R. (2004). Tsawalk: A Nuu-chah-nulth worldview. Vancouver: UBC Press. Bentsen, H. (2017). Dietary polyunsaturated fatty acids, brain function and mental health. Microbial Ecology in Health and Disease, 28, 1–6. Open access journal. Berbert, A. A., Kondo, C. R. M., Almendra, C. L., Matsuo, T. & Dichi, I. (2005). Supplementation of fish oil and olive oil in patients with rheumatoid arthritis. Nutrition, 21 (2005), 131–136. Breslow, Jan L. (2006). n-3 fatty acids and cardiovascular disease. American Journal of Clinical Nutrition, 83, 1477–1482. Carpentier, Y. A., Portois, L. & Malaisse, W. J. (2006). n-3 fatty acids and the metabolic syndrome. American Journal of Clinical Nutrition, 83, 1499–1504. Connor, W. E. (2001). n-3 fatty acids from fish and fish oil: Panacea or nostrum? American Journal of Clinical Nutrition, 74 (2001), 415–416. Coulthard, G. (2014). Red skin, white masks: Rejecting the colonial politics of recognition. Minneapolis, MN: University of Minnesota Press. De Caterina, R., Bertolotto, A., Madonna, R. & Schmidt, E. B. (2007). n-3 fatty acids in the treatment of diabetic patients. Diabetes Care, 30(4), 1012–1026. Declaration of Nyéléni. (2007). Declaration of the forum for food sovereignty, Sélingué, Mali. Retrieved on 1 September 2015 from http://​nyeleni​.org/​spip​.php​?article290 Department of Justice, Government of Canada. (n.d.). Backgrounder: United Nations Declaration on the Rights of Indigenous Peoples Act. Retrieved on 15 June 2021 from https://​www​.justice​.gc​.ca/​eng/​declaration/​about​-apropos​.html​#:​~:​text​=​Bill​%20C​%2D15​ %20would​%20require​,and​%20discrimination​%20against​%20Indigenous​%20people Department of Justice, Government of Canada. (2020). Government of Canada introduces legislation respecting the United Nations Declaration on the Rights of Indigenous Peoples, 3 December. Retrieved on 15 June 2021 from https://​www​.canada​.ca/​en/​department​-justice/​

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news/​2020/​12/​government​-of​-canada​-introduces​-legislation​-respecting​-the​-united​-nations​ -declaration​-on​-the​-rights​-of​-indigenous​-peoples​.html Department of Justice, Government of Canada. (2023). Implementing the United Nations Declaration on the Rights of Indigenous Peoples Act. Retrieved on 12 February 2023 from https://​www​.justice​.gc​.ca/​eng/​declaration/​index​.html Drucker, P. (1951). The Northern and Central Nootkan tribes: Bureau of American Ethnology Bulletin. Washington DC: Smithsonian, 1951. Egeland, G. & Harrison, G. (2013). Health disparities: Promoting Indigenous Peoples’ health through traditional food systems and self-determination. In V. H. Kuhnlein et al. (Eds.), Indigenous Peoples’ food systems & well-being: Interventions & policies for healthy communities (pp. 9–22). Rome, Italy: Food and Agriculture Organization of the United Nations & Centre for Indigenous Peoples’ Nutrition and Environment. Food and Agricultural Organization (FAO) of the United Nations. (2022). Committee on world food security: Global strategic framework (GSF). Retrieved on 10 December 2022 from https://​www​.fao​.org/​3/​nj988en/​nj988en​.pdf GBD. (2017). Diet Collaborators. (2019). Health effects of dietary risks in 195 countries, 1990–2017: A systematic analysis for the Global Burden of Disease Study 2017. The Lancet, 393(10184), 1958–1972. https://​doi​.org/​10​.1016/​S​0140–6736(​19)30041–8 Gracey, M. & King, M. (2009). Indigenous health, part 1: Determinants and disease patterns. The Lancet, 374(9683), 65–75. https://​doi​.org/​10​.1016/​S​0140–6736(​09)60914–4 Grey, S. & Patel, R. (2015). Food sovereignty as decolonization: Some contributions from Indigenous movements to food systems and development politics. Agriculture & Human Values, 32(3), 431–444. Happynook, T. M. (2000). The social, cultural and economic importance of subsistence whaling. Retrieved on 10 June 2010 from http://​oregonstate/​dept/​IIFET/​2000/​abstracts/​ happynook​.html Hawilthpatak Nuu-chah-nulth: Nuu-chah-nulth Ways of Governance. (1999). Background paper. Jurisdiction and Governance Mandate Working Group, Nuu-chah-nulth Tribal Council Archives, British Columbia, Canada. Holt-Giménez, E. (2011). Food security, food justice, of food sovereignty: Crisis, food movements and regime change. In A. H. Alkon & J. Agyeman (Eds.), Cultivating food justice: Race, class, and sustainability (pp. 309–330). Cambridge, MA: Massachusetts Institute of Technology. Inglis, D. & Gimlin, D. (2009). Food globalizations: Ironies and ambivalences of food, cuisine and globality. In D. Inglis & D. Gimlin (Eds.), The globalization of food (pp. 3–44). Oxford, UK: Bloomsbury. Jarosz, L. (2014). Comparing food sovereignty, food security discourses. Dialogues in Human Geography, 4, 168–181. Jernigan, V. B. B., Duran, B., Ahn, D. & Winkleby, M. (2010). Changing patterns in health behaviors and risk factors related to cardiovascular disease among Indians and Alaska natives. American Journal of Public Health, 100(4), 677–683. https://​doi​.org/​10​.2105/​ AJPH​.2009​.164285 Kidwell, C. (2005). First foods ceremonies and food symbolism. In S. J. C. O’Brien & D. F. Kelly (Eds.), American Indian religious traditions (pp. 301–307). Santa Barbara, CA: ABC/ CLIO. King, M., Smith, A. & Gracey, M. (2009). Indigenous Health, Part 2: The underlying causes of the health gap. The Lancet, 374(9683), 76–86. Krohn, E. & Segrest, V. (2010). Feeding the people, feeding the spirit: Revitalizing northwest coastal Indian food culture. Centralia, PA: Gorham Printing. Kuhnlein, H. V. (2014). Food system sustainability for health and well-being of Indigenous Peoples. Public Health Nutrition, 18(13), 2415–2424.

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Kuhnlein, H. V. & Receveur, O. (1996). Dietary change and traditional food systems of Indigenous Peoples. Annual Review of Nutrition, 16, 417–442. Last, J. (2019). What does implementing the UNDRIP actually mean? CBC News. Retrieved on 9 July 2020 from https://​www​.cbc​.ca/​news/​canada/​north/​implementing​-undrip​-bc​-nwt​ -1​.5344825 Löfvenborg, J. E., Andersson, T., Carlsson, S., Dorkhan, M., Groop, L., Martinell, M., Tuomi, T., Wolk, A. et al. (2014). Fatty fish consumption and risk of latent autoimmune diabetes in adults. Nutrition & Diabetes, 20(4), 1–6. Mailer, G. & Hale, N. (2013). Decolonizing the diet: synthesizing Native-American history, immunology, and nutritional science. Journal of Evolution and Health, 1(1), Article 7. Retrieved on 5 January 2018 from https://​escholarship​.org/​content/​qt83n957nb/​qt83n957nb​ .pdf​?t​=​q3sazi Mathews, D. L. & Turner, N. J. (2017). Ocean cultures: Northwest Coast ecosystems and Indigenous management systems. In P. S. Levin & M. R. Poe (Eds.), Conservation for the Anthropocene Ocean: Interdisciplinary science in support of nature and people (pp. 169–199). London: Academic Press. Morrison, D. (2011). Indigenous food sovereignty: A model for social learning. In H. Wittman, A. A. Desmarais & N. Wiebe (Eds.), Food sovereignty in Canada: Creating just and sustainable food systems (pp. 97–113). Winnipeg/Nova Scotia, Canada: Fernwood Publishing. Mosby, I. (2013). Administering colonial science: Nutrition research and human biomedical experimentation in Aboriginal communities and residential schools, 1942–1952. Social History, 46(91), 145–172. National Collaborating Centre for Aboriginal Health. (2013). An overview of Aboriginal health in Canada [Fact sheet], July. Retrieved on 15 June 2019 from http://​www​.nccah​-ccnsa​.ca/​ en/​publications​.aspx​?sortcode​=​2​.8​.10​&​publication​=​101 National Inquiry into Missing and Murdered Indigenous Women and Girls. (n.d.). Reclaiming power and place: Executive summary of the final report. Retrieved on 5 May 2021 from https://​www​.mmiwg​-ffada​.ca/​wp​-content/​uploads/​2019/​06/​Executive​_Summary​.pdf Patel, R. (2009). Food sovereignty. The Journal of Peasant Studies, 36, 663–706. Raymond, C. M., Gerald, G., Singh, K. B., Bernhardt, J. R., Levine, J., Nelson, H., Turner, N. J., Norton, B., Tam, J. & Chan, K. M. A. (2013). Ecosystem services and beyond: Using multiple metaphors to understand human–environment relationships. BioScience, 63(7), 536–545. Ross Sr., D. (2015). Personal communication, 11 August. Rosset, P. (2008). Food sovereignty and the contemporary food crisis. Development, 51, 460–463. Salmón, E. (2012). Eating the Landscape: American Indian Stories of Food and Resilience. Retrieved on 20 August 2018 from https://​bioneers​.org/​enrique​-salmon​-eating​-the​ -landscape​-american​-indian​-stories​-of​-food​-and​-resilience​-bioneers/​ Sapir, E. & Swadesh, M. (1939). Nootka Texts: Tales and ethnological narratives. Philadelphia, PA: University of Pennsylvania Press. Sium, A., Desai, C. & Ritskes, E. (2012). Towards the ‘tangible unknown’: Decolonization and the Indigenous future. Decolonization: Indigeneity, Education & Society, 1(12), I–XIII. Stewart, H. (1984). Cedar. Seattle, WA: University of Washington Press. Trauger, A. (2015). Putting food sovereignty in place. In A. Trauger (Ed.), Food sovereignty in international context: Discourse, politics and practice of place (pp. 1–12). New York, NY: Routledge. Truth and Reconciliation Commission of Canada. (2015). Honouring the truth, reconciling for the future: Summary of the final report of the Truth and Reconciliation Commission of Canada. Retrieved on 5 May 2021 from http://​publications​.gc​.ca/​site/​eng/​9​.800288/​ publication​.html

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Tuck, E. & Yang, K. W. (2012). Decolonization is not a metaphor. Decolonization, Indigeneity, Education & Society, 1(1), 1–40. Turner, N. (2005). The earth’s blanket. Seattle, WA: University of Washington Press. Turner, N., Ignace, M. B. & Ignace, R. (2000). Traditional ecological knowledge and wisdom of Aboriginal Peoples in British Columbia. Ecological Applications, 10(5), 1275–1287. Turner, N. J. & Turner, K. L. (2008). ‘Where our women used to get the food’: Cumulative effects and loss of ethnobotanical knowledge and practice; case study from coastal British Columbia. Botany, 86, 103–115. United Nations. (n.d.). United Nations Declaration on the Rights of Indigenous Peoples. Retrieved on 8 February 2020 from https://​ www​ .un​ .org/​ development/​ desa/​ indigenouspeoples/​declaration​-on​-the​-rights​-of​-indigenous​-peoples​.html United Nations. (2007). United Nations Declaration on the Rights of Indigenous Peoples. Retrieved on 8 February 2020 from http://​www​.un​.org/​esa/​socdev/​unpfii/​documents/​ DRIPS​_en​.pdf United Nations Declaration on the Rights of Indigenous Peoples Act 2021, Bill C-15, 43–2 (CA). U.S. Department of Indian Health Services. (n.d.). Indian health service [Fact sheet]. Retrieved on 8 February 2020 from https://​www​.ihs​.gov/​newsroom/​index​.cfm/​factsheets/​disparities/​ U.S. Department of Health and Human Services, Office of Minority Health. (2021). Heart disease and Native American/Alaska natives. Retrieved on 8 February 2020 from https://​ minorityhealth​.hhs​.gov/​omh/​browse​.aspx​?lvl​=​4​&​lvlid​=​34 Uu-a-thluk. (n.d.). Uu-a-thluk strategic plan: Building on our successes 2018–2023. Retrieved on 12 January 2019 from https://​uuathluk​.ca/​uu​-a​-thluk​-strategic​-plan/​ Wittman, H., Desmarais A. A. & Wiebe, N. (2010). The origins and potential of food sovereignty. In H. Wittman, A. A. Desmarais & N. Wiebe (Eds.), Food sovereignty: Reconnecting food, nature and community (pp. 1–14). Nova Scotia/Winnipeg, Canada: Fernwood Publishing.

15. Indigenous language rights, frameworks and policies Candace Kaleimamoowahinekapu Galla and Amanda Holmes

In proclaiming this Decade, the international community is recognizing that Indigenous Peoples represent a distinct group whose human right to language should be promoted and protected. This proclamation is also a call for action – the preservation of Indigenous languages not only requires greater awareness but also concrete commitments. Nada Al-Nashif, Deputy High Commissioner of Human Rights1

INDIGENOUS LANGUAGES Indigenous languages gather, hold and carry ancient epistemologies and cosmologies, knowledge systems, ways of knowing and being, teachings, capacities, principles and ethical systems. They connect people to their ancestors and lands, waters, natural world and all that is held within these, the beings (human and beyond human), spirit/ spirits, energies and forces that live there, together, as relatives. Languages carry the collective narrative memories (McLeod, 2007) of their Peoples. Restoring, renewing and regenerating Indigenous languages, as embedded and nested within and emergent from the lived, living, placed and deeply contextual universe of Indigenous Peoples, is critical to Indigenous survivance, ‘an active sense of presence, the continuance of native stories’ (Vizenor, 1999, p. vii), and ensuring self-determining futurities. Indigenous languages co-create Indigenous worlds of meaning, identity, understanding, knowledge and wisdom alongside reciprocities of interaction and exchange. Indigenous nationhood and peoplehood (Holm, Pearson & Chavis, 2003) are constituted by and through Indigenous languages. Their meaning lies far beyond Western conceptions of language as tools of communication. They are sacred gifts to their People from their Creator. Languages carry original instructions that are spiritual, physical, mental, intellectual, emotional, political, philosophical, geographical, social, cultural, ethical teachings and orientations—ethical teachings and orientations that are, at the root, and within all the branches, critically relational. They are relatives. From within Indigenous epistemologies, they are alive and living—relatives who have correspondingly suffered the onslaught of colonisation and settler colonialism as their People have. While colonisation has caused profound intergenerational 1 From UNESCO: https://​www​.unesco​.org/​en/​articles/​unesco​-launches​-global​-task​-force​ -making​-decade​-action​-indigenous​-languages (accessed on 29 October 2023).

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cultural and linguistic upheaval for Indigenous Peoples, communities continue to fight for their languages and cultural ways of knowing and being, defined on their own terms, within their own contexts of resilience, resistance, self-determination, collective transformation and resurgence (Galla, Kawaiʻaeʻa & Nicholas, 2014). Together, we have co-authored several writings that speak to Indigenous language and Indigenous education based on our current and lived realities, responsibilities and commitments. In this chapter, we situate linguistic diversity and the vitality of Indigenous languages globally, followed by Indigenous language loss and repression as it relates to education and residential and boarding schools. Using a language rights framework, we discuss linguistic human rights and language as a resource to orient readers to the fundamental right humans have to language, specifically Indigenous Peoples to their respective languages and knowledge systems. We then share specific language policies and frameworks that have guided Indigenous language recovery, restoration, revitalisation and renewal. We conclude by discussing the possibilities of and barriers to implementation.

LANGUAGE DIVERSITY In 2016, the United Nations Permanent Forum on Indigenous Issues stated that 40 per cent of the estimated 6,700 languages spoken around the world were in danger of disappearing. Most of these are Indigenous languages, and this ‘put[s] the cultures and knowledge systems to which they belong at risk’ (United Nations Educational, Scientific and Cultural Organization [UNESCO], 2018, n.p.). Recent international declarations are beginning to recognise the critical importance that Indigenous languages hold for their communities as expressions of their culture and lifeways. Language supports and sustains health, healing and foodways, education, traditional justice practices and political structures, traditional spiritual relations and knowledge relations. Indigenous languages inform practices that hold at their core the respectful, reciprocal praxes of relationality with the natural order. Indigenous languages also hold a central place in Indigenous Peoples’ assertion of their rights to their lands, livelihoods and lifeways, holding ancient knowledge systems and the collective memory of their People. International instruments and bodies are beginning to recognise in their discourses and policymaking—perhaps as the awareness of the grave imbalance in the world becomes more urgent in the unfolding global climate crisis—the ways that Indigenous languages are ‘[relevant] to sustainable development and the preservation of biodiversity as they maintain ancient and traditional knowledge that binds humanity with nature’ (UNESCO, 2020b, n.p.). As stated in the background to the United Nations (UN) 2019 International Year of Indigenous Languages, ‘[languages] represent complex systems of knowledge and communication and should be recognized as a strategic national resource for development, peace building and reconciliation’ (UNESCO, 2018, n.p.).

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International policies surrounding Indigenous languages have emerged out of long struggles by Indigenous Peoples at the grassroots and at the highest levels of international policymaking arenas. This chapter addresses the context of Indigenous language policy, highlighting some of the international policy frameworks constructed to support, protect and promote the critical importance of Indigenous languages and their Peoples.

INDIGENOUS LANGUAGE LOSS AND REPRESSION Indigenous languages and knowledges, like their Peoples and lifeworlds, have historically been and continue to be targeted by policies and practices for extraction, assimilation, eradication and removal. Settlers brought with them racialised ideologies that quickly transitioned into practices of cultural and linguistic replacement. Spack’s (2002) work on the politics of language during the late 19th century demonstrates, ‘Anglo Americans believed in the superiority of their own language and culture, and almost from the beginning they began to develop educational or civilization programs to impose the English way of life on the Native population’ (p. 3). Indigenous languages continue to be perceived by dominant nation-states and their civil institutions as having a lower status than majority languages. In her 2014 report to the Human Rights Council of the UN, UN Special Rapporteur on the Rights of Indigenous Peoples Victoria Tauli-Corpuz stated that these attitudes still hold sway today, noting: ongoing discrimination against Indigenous peoples has its roots in the perceived superiority of the colonial population and its descendants, perceptions that were historically accompanied by laws and policies aimed at suppressing or eliminating Indigenous identity and assimilating Indigenous Peoples into the dominant culture. (p. 12)

INDIGENOUS LANGUAGES AND EDUCATION Language issues are inextricably bound to education and schooling. Recognising and remembering that education for Indigenous Peoples is fraught with deep tensions surrounding brutal histories and dismemberments that remain tied to the ongoing legacies of colonisation, these tensions must be part of any discussion on Indigenous language policy in education. The practice of ‘education’ itself holds layers of diverse and often colliding meanings for Indigenous Peoples. Traditional Indigenous education—the millennia-old, community-centred, intergenerational process and protocols of language and cultural ways of knowing–being—is frequently delegitimised as inferior by state educational institutions and their policies. State-centred, externally enforced systems of education as surveillance and disconnection have frequently been employed to both marginalise Indigenous Peoples and force their assimilation into dominant settler colonial societies. The experiences of colonization

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and control through dominant schooling have placed at risk Indigenous Peoples’ unique sociocultural and linguistic identity. Education has been used as a tool for the marginalisation, exclusion and extermination of Indigenous languages through language repression, as dominant schooling has emphasised and, in many contexts worldwide, forced the transition of Indigenous and endangered language communities to dominant, majority languages. Formal schooling is implicated as one of the primary processes responsible for the disappearance of heritage languages worldwide (Dunbar, Skutnabb-Kangas, Baer & Magga, 2008). Simultaneously, however, education has the potential to play a crucial role in the health and survival of Indigenous languages.

RESIDENTIAL AND BOARDING SCHOOLS For a period of approximately 100 years, from the late 1800s to the 1970s, boarding or residential schools became widespread across the United States (US), Canada, Australia, New Zealand and settler colonies throughout the world. Dominant discourses on boarding or residential schools often focus on the singular goal of the assimilation of Indigenous children; however, settler colonial ‘governments intentionally removed Indigenous children to institutions as acts of colonial control, not assimilation’ (Jacobs, 2006, p. 202), ‘as an official strategy of … subjugation’ (p. 204). These institutions are an act of aggression by settler states. The Carlisle Indian Industrial School was founded in 1879. It soon became the prototype of Indian boarding schools and state-sponsored violence in the form of brutal physical, sexual and emotional abuse. Residential schools facilitated ethnocide and linguicide against Native children, their families and communities (National Centre for Truth and Reconciliation, n.d.). Carlisle was placed under the direction of Colonel Richard Henry Pratt, a veteran of the Washita massacre of the Cheyenne and Red River campaign against the Comanche, Kiowa, Southern Cheyenne and Arapaho, and former supervisor of the Indian prisoners at Fort Marion in Florida. By the time Pratt got to Carlisle, he was a seasoned veteran of US Indian eradication campaigns and had participated in multiple acts of genocide against Indigenous Peoples. Pratt summarised the colonialist technology of cultural and linguistic eradication through schooling in his operating motto: ‘Kill the Indian in order to save the man’ (as quoted in Smith, 2009, p. 4). More than 150 institutions across the US were established by the US Government and churches, with children from scores of distinct Nations. The goal was to eliminate any sign of students’ unique traditions and languages. This system resulted in the forced removal of 100,000 children from their homes. Across Canada, residential schools were organised by the Canadian Government and administered by churches with the explicit intent to indoctrinate First Nations, Inuit and Métis into Canadian society, with an estimated 150,000 children removed from their homes. Canada’s last residential school closed in 1996. The primary objectives of these schools were to forcibly remove and isolate children from their parents, extended families, communities, cultural roots and

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languages. The effects of the boarding/residential school system continue to be felt today by residential school survivors, their families and communities, and continue to exact a heavy toll on their health and wellbeing. Through personal and family narratives, testimonies and reports, there is extensive documentation of the severe abuse children suffered when they were caught speaking their Indigenous languages. As a direct consequence of the intergenerational trauma stemming from these experiences, community ideologies often shifted away from Indigenous knowledges and languages. They turned towards dominant and assimilationist settler colonial cultures in the vacuum created—not by choice, but purely to survive. These collective experiences shaped how survivors view and experience their linguistic and cultural identities and their ability to speak their language. Indigenous youth and adults have reflected on their forebearers’ memories and experiences of schooling, expressing that English is a foreign language used methodically to colonise a people—a language that has traumatised generations of ancestors with alien words, ideologies and worldviews. Generations of traumatised Indigenous parents dissuaded their children from speaking and learning their Native language. While some of this stems from an effort to accommodate mainstream life within dominant society, it also stems from feelings of internalised shame, inferiority and degradation that boarding/residential schools beat into students. Linguistic shame and guilt have become part of the burden that Indigenous people carry. They often feel that they must deny, hide and suppress their Native identities. Indigenous people are made to feel inferior because of their perceived difference and divergence from dominant society norms. Indigenous Peoples are challenged with living in a multitude of dynamic worlds because they have been denied the basic human right to be who they are as a People. Even in the 21st century, dominant knowledge production continues to perpetuate racist ideologies and repressive practices for Indigenous Peoples through educational systems. As Phyak (Phyak, personal communication, 4 February 2022) asserts, ‘if schools do not embrace Indigenous languages (arts, cultures, epistemologies, values, histories)[,] we cannot trust them.’ Indigenous Peoples are actively reframing language and education policies in ways that are meaningful, relevant, self-determining and resurgent to them. The restoration and renewal of languages and cultural knowledge systems in and through both formal and informal education is a foundational root of this movement. Indigenous Peoples are asserting that education policies must address the right to be educated in their own languages. Indigenous Peoples are confronting language loss through a focus on language regeneration and renewal, re-envisioning language planning, policy and practice, and engaging multilayered approaches that are deeply embedded within local Indigenous community-centred contexts.

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LANGUAGE RIGHTS FRAMEWORK: LINGUICIDE, LANGUAGE RIGHTS AND LINGUISTIC HUMAN RIGHTS The draft Convention on the Prevention and Punishment of the Crime of Genocide (E/794) (Article III) considered the crimes of linguistic and cultural genocide alongside physical genocide, defining cultural genocide to mean, any deliberate act committed with the intent to destroy the language, religion or culture of a national, racial or religious group on grounds of national or racial origin, or religious beliefs such as: a) Prohibiting the use of the language of the group in daily intercourse or in schools, or the printing and circulation of publications in the language of the group. (Skutnabb-Kangas, 2012, p. 316)

Although that article was vetoed and excluded from the final Convention adopted in 1948 by the United Nations General Assembly (Capotorti, 1979, p. 37), Skutnabb-Kangas and Phillipson (1995a) began to lay the groundwork for the field of linguistic human rights, defining linguistic genocide, or linguicide, as ‘the extermination of languages, an analogous concept to (physical) genocide’ (p. 83) and an ‘extreme form of deprivation of linguistic rights’ (Phillipson & Skutnabb-Kangas, 1995, p. 484). Developing linguistic justice and linguistic human rights as basic rights within international human rights law—an assertion that all people(s) should be able to freely use and maintain their languages, free from discrimination—is critical for the rights of Indigenous and tribal Peoples worldwide (Skutnabb-Kangas & Phillipson, 1995b; Skutnabb-Kangas & Phillipson, 2022). Within a human rights framework for linguistic justice, language is understood as central to the collective rights of minority groups.

LANGUAGE POLICIES AND FRAMEWORKS Indigenous Peoples have fought for generations to have their fundamental rights as self-determining Peoples recognised and promoted by international bodies. Over the last several decades, as awareness and recognition continue to grow internationally about the critical importance of Indigenous and endangered languages to their People and communities, we have seen a policy framework emerge. Indigenous languages ‘also foster and promote unique local cultures, customs and values which have endured for thousands of years. Indigenous languages add to the rich tapestry of global cultural diversity. Without them, the world would be a poorer place’ (UNESCO, 2018, n.p.). This global awareness is due in no small part to the persistent, collective organising of mutual support and solidarity movements spearheaded by Indigenous Peoples worldwide. After decades of pressure, Indigenous Peoples succeeded in gaining the passage of the UN Declaration on the Rights of Indigenous Peoples (UNDRIP). The principles put forward in international instruments within the UN have elaborated a policy framework that is beginning to recognise Indigenous

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Peoples’ inherent rights to their languages and cultural identities within an overarching framework of human rights. In subsequent sections, we discuss some important standard-setting international instruments with a specific focus on Indigenous languages. UNDRIP and Indigenous Languages In 2007, the UN General Assembly adopted the UNDRIP—the most significant international framework for Indigenous language rights. The UNDRIP addresses individual, collective and cultural rights alongside rights to identity, education and language. In total, 3 of its 46 articles address Indigenous Peoples’ rights regarding their respective Indigenous languages. Taking a rights-based approach, the UNDRIP asserts that Indigenous Peoples have the right to ‘revitalize, use, develop and transmit to future generations their … languages’ (Article 13.1) and ‘establish and control their educational systems and institutions providing education in their own languages’ in practices that are ‘appropriate to their cultural methods of teaching and learning’ (Article 14.1), including in diaspora and those ‘living outside their communities’ (Article 14.3). Though the UNDRIP is not a legally binding document, it sets an international standard that acknowledges the linguistic rights of Indigenous Peoples. The framework is ‘highly significant, as Indigenous peoples, including children, often remain victims of discrimination and/or deprived of equal opportunities. It is the only United Nations human rights instrument promoting comprehensively the rights of Indigenous peoples, including the right to education’ (UNESCO, 2019, p. 5). While recognising the UNDRIP as a significant instrument that asserts the rights of Indigenous Peoples within the international policy arena, there are persistent gaps in its articles. This is especially apparent in regard to Indigenous languages. Indigenous Peoples continue to experience language repression, discrimination and marginalisation in relation to their languages. Long histories of colonialism and genocide continue to shape regional and national policies around Indigenous languages, often relying on racist tropes about Indigenous communities and their languages. These dominant ideological discourses unfold in ways that affect the formation of language and education policies, even as Indigenous Peoples continue to challenge and contest the ongoing effects of colonisation and marginalisation. International Decade of Indigenous Languages 2022–2032 The International Decade of Indigenous Languages (IDIL) 2022-2032 intends to extend the work and goals of the International Year of Indigenous Languages 2019 to help protect and promote Indigenous languages by raising awareness in the global community about their precarious state. The IDIL aims to develop appreciation for the value of Indigenous languages to the world community and humanity. By encouraging all levels of society to make a long-lasting commitment to protect and strengthen Indigenous languages, the IDIL aims to improve the lives of Indigenous Peoples and communities (see UNESCO, 2020b). Former UN Assistant Secretary-General

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for Economic Development Elliott Harris states, ‘The International Decade of Indigenous Languages now offers a great opportunity to promote and implement indigenous peoples’ linguistic rights through activities that focus on policy development and implementation’ (as quoted in UNESCO, 2021, n.p.). The Los Pinos Declaration [Chapoltepek] of 2020 outlines guiding principles and an action plan for the IDIL, calling for ‘the implementation of the internationally recognized rights of Indigenous Peoples’ and placing Indigenous Peoples ‘at the centre of its recommendations, to be involved in every level of the decision-making and implementation process’ (UNESCO, 2020b, n.p.). The Declaration goes further to recognise ‘the full spectrum of human rights and fundamental freedoms that deal with language vitality and sustainability issues, greater engagement, inclusion and empowerment of indigenous language users’ (UNESCO, 2020a, n.p.). American Declaration on the Rights of Indigenous Peoples The American Declaration on the Rights of Indigenous Peoples was adopted by the Organization of American States General Assembly in 2016. The Declaration outlines the rights of Indigenous Peoples to language in the following ways: ● Article 2 lays out the recognition of and respect for ‘the multicultural and multilingual character of indigenous peoples.’ ● Article 6 recognises the collective rights of Indigenous Peoples, including that ‘States recognize and respect the right of indigenous peoples to their collective action … to use their own tongues and languages.’ ● Article 14.1 addresses systems of knowledge, language and communication, as ‘Indigenous Peoples have the right to preserve, use, develop, revitalize, and transmit to future generations their own histories, languages, oral traditions, philosophies, systems of knowledge, writing, and literature, and to designate and retain their own names for their communities, individuals, and places.’ ● Article 14.4 addresses languages of communication, asserting, ‘States, in conjunction with indigenous peoples, shall make efforts to ensure that those peoples can understand and be understood in their own languages in administrative, political, and judicial proceedings, if necessary through the provision of interpretation or by other effective means.’ ● Article 15.3 sets forth that Indigenous Peoples have ‘the right to establish and control their educational systems and institutions providing education in their own languages, in a manner appropriate to their cultural methods of teaching and learning.’ ● Article 15.4 supports the right to Indigenous–language medium instruction, affirming, ‘States, in conjunction with indigenous peoples, shall take effective measures to enable indigenous individuals living outside their communities, particularly children, to have access to education in their own languages and cultures.’ ● Article 15.5 lays out: ‘States shall promote harmonious intercultural relations, ensuring that the curricula of state educational systems reflect the pluricultural

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and multilingual nature of their societies and encourage respect for, and knowledge of, the different indigenous cultures. States, in conjunction with indigenous peoples, shall promote intercultural education that reflects the cosmovision, histories, languages, knowledge, values, cultures, practices, and ways of life of those peoples.’

RANGE OF POLICY SETTINGS GLOBALLY It is beyond the scope of this chapter to provide an exhaustive summary of national and international language policies and frameworks that affect Indigenous languages; instead, we provide several examples of contexts within which Indigenous language communities are situated and reshaping the policy landscape of Indigenous language maintenance and reclamation from the ground up. Indigenous language communities worldwide are engaged in the struggle to keep their languages alive within a wide range of contexts, ranging from more inclusive to repressive and deficit oriented. This section provides some nuance to the range of language policy contexts that affect Indigenous languages and communities around the world. Language and education policies of nation-states towards Indigenous languages, language education and schooling frequently reflect their policies towards Indigenous Peoples. These, too, often implicate longstanding, brutal histories of colonial/postcolonial occupation. Globally, education policies often fail to consider, much less support and sustain, Indigenous students’ and their communities’ languages within their everyday experiences of schooling. State-sponsored language and education policies often neglect and invisibilise Indigenous communities, languages and cultures by refusing to recognise and engage the rich family and community funds of knowledge that students bring with them to schools (Gonzalez, Moll & Amanti, 2005). Viewed through a deficit lens, Indigenous students are often forced to be schooled in the dominant language(s), knowledge and epistemology of mainstream society, while their own mother tongue/heritage language(s) is/are delegitimised in schooling rather than seen as a resource to be supported (Ruiz, 1984). Further, the knowledge systems embedded within the languages and sociocultural contexts Indigenous students bring with them to schools are often marginalised and excluded in the content and medium of instruction, mirroring the educational exclusion of their families and communities. Language policies and ideologies are as diverse and divergent as language communities themselves. While it is clearly impossible to provide an overview of language policies globally, it is critical to examine policies in regions not given as much space in the literature as those of the US and Canada. Here, we highlight some of the language policies of Bangladesh, Nepal and Cameroon to give a sense of the range of language policy contexts within which Indigenous communities engage in their own language planning and policymaking. These approaches reach beyond the national policies of the states whose borders and institutions cut across and intervene

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in Indigenous communities’ territories and self-organisation in ways that directly affect the state of their languages. Bangladesh The Chittagong Hill Tracts (CHT) of south-eastern Bangladesh, home to more than 50 different Indigenous communities and languages, have been subject to decades of military campaigns, massacres and forcible displacement by the Bangladeshi Government (Amnesty International, 1986, 2013; Chakma, 2010). Nyeu (2020a, 2020b; Endangered Languages Project, 2022a) theorises connections between language policies, empire, colonisation and the role of the nation-state in language endangerment from within the context of the CHT. Indigenous students of the CHT have exceptionally high dropout rates and illiteracy even at the elementary level and, until recently, had no opportunity to learn through their own languages (Nyeu, 2020a, 2020b; Endangered Languages Project, 2022a). Bangladeshi language and education policies utilise a strong centralised curriculum that emphasises memorisation and high-stakes assessment in the dominant Bangla language and culture. This sets up conditions of failure for Indigenous students of the CHT, whose linguistic and cultural resources have been cut off from their education (Nyeu, 2020a, 2020b; Endangered Languages Project, 2022a). Such state policies often further marginalise and exclude Indigenous language communities from mainstream society by operating as structures of surveillance through targeted assessment and employing deficit views of Indigenous languages and communities. Bangladeshi national monolingual language and cultural policies in education exclude CHT's Indigenous language communities. This is striking, particularly considering Bangladesh’s own history in relation to Bangla, the country’s ‘mother tongue language’; Bangladesh’s war for independence was fought largely over the right to the Bangla language. After partition from India, Pakistan declared Urdu the official language of the country as a way of encouraging a national identity. On 21 February 1952, several students from the University of Dhaka were killed during what is known as the Language Movement, or Bhasha Andolon, when the Bangla-speaking majority of then-East Pakistan rose up in protest against the imposition of Urdu as the sole national language of Pakistan. This movement precipitated a military response by the Pakistani Government (dominated by West Pakistan) in March 1971 that amounted to a genocide against the Bengali People. This prompted a declaration of Bangladeshi independence on 26 March 1971 and escalation into a nine-month war of independence. The state of Bangladesh was founded out of this conflict over language rights. The Bangladeshi Constitution declared Bangla the national language to represent the country’s national identity. In recognition of Bangladesh’s Language Movement Day, UNESCO declared 21 February International Mother Language Day in 1999. Yet even Bangladesh, a country that celebrates mother tongue languages, commemorates language martyrs in a national holiday and constructed the world’s first memorial to mother tongue languages (the Shaheed Minar monument in Dhakar), fails

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to recognise the existence of Indigenous languages or Peoples in its Constitution. Recently, however, the Bangladeshi Government instituted the possibility for grades K-3 instruction in mother tongue language in CHT. Nyeu (2020a, 2020b) discusses some of the language revitalisation initiatives occurring in communities in CHT, including newly built schools where students can learn content (including how to write in their own languages) through curricula that reflect their cultures and knowledge systems (Endangered Languages Project, 2022a). Nepal Nepal’s absolute monarchy, a ‘party-less’ autocratic regime (1960–1990), instituted a monolingual language policy of ‘one nation, one language’. All languages other than Nepali were banned from public spaces and schools, from elementary to higher education. This language policy had a decades-long effect on the Indigenous languages of Nepal,2 as Indigenous languages were viewed as a barrier to the regime’s project of linguistic nationalism (Endangered Languages Project, 2022b). Attending school during this time, Yaakthung/Limbu Professor Prem Phyak states, ‘Indigenous children were viewed as “languageless subjects” … [and it made us] self-censor ourselves’ (P. Phyak, personal communication, 4 February 2022). Over the last several decades, with the shift from the ‘party-less’ monarchical regime to multiparty democracy, Indigenous ethnic organisations have flourished throughout the country. These organisations have played a critical role in the struggle for language and cultural rights and revitalisation, literacy, mother tongue education and multilingual policies, with virtually every Indigenous Peoples having their own representative organisation.3 This collective activism has created space for Indigenous language rights in education to become part of the public discourse (Phyak, personal communication, 4 February 2022). The Nepali Constitution of 2015 recognised the rights to heritage language, to speak mother tongues and mother tongue education. However, making space for Indigenous languages continues to be a challenge and ‘recent studies have shown that Indigenous and minoritized languages are being systematically erased from schools’ (Phyak, 2021, p. 325). Phyak asserts, ‘Mainstream schools, both public and private, do not embrace the value of Indigenous languages and cultures’ (P. Phyak, personal communication, 4 February 2022). Indigenous languages and their speakers continue to be pushed to the margins in education, especially with the homogenising effects of globalisation and the push for English-language instruction in schools.

There are 124 official ‘mother tongues’ and 59 ‘scheduled’ Indigenous communities. At the national level, the Nepal Federation of Indigenous Nationalities is an umbrella organisation of Indigenous Peoples working for language and cultural revitalisation, including intangible cultural heritage and literacy. 2 3

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Cameroon Since European colonialism, the Indigenous languages of Africa have been viewed as holding an inferior status to colonial languages. Adegbija (2001) maintains, ‘Indigenous languages are officially considered unworthy of being used in official contexts, because of their low developmental status’ (p. 285). Linguistic imperialism, where ‘the dominance of English is asserted and maintained by the establishment and continuous reconstitution of structural and cultural inequalities between English and other languages’ (Phillipson, 1992, p. 47) has continued to affect the Indigenous languages of Africa. Throughout Africa, postcolonial leaders have often promoted policies that maintain colonial languages as a country’s official language as a way of achieving national unity and development. In places like Cameroon, such policies have split countries apart; after independence, Cameroon adopted the languages of both colonisers (French and English) ‘to the exclusion of Indigenous languages’ (Chumbow as quoted in Akumbu & Chiatoh, 2013, p. iii). Although there are 271 Indigenous languages in Cameroon, the country has been torn apart by a civil war over the colonial languages of French and English. As Kejom/Babanki linguist Pius Akumbu states, ‘The colonial system has spent over a century invisibilising Indigenous languages—it is hard for people to understand why they are necessary now …. The colonial master is still present’ (P. Akumbu, personal communication, 4 January 2022). Cameroon’s language policy in education does not prohibit mother tongue education, but neither does the policy promote it. Schooling at every level is conducted in French and English, and access to these languages is considered crucial for employment and economic success. In this context, access to colonial languages is viewed as necessary for global engagement, development and social mobility. Chiatoh and Akumbu (2014) argue that mother tongue medium and multilingual education are especially necessary so that students can learn in their first languages, scaffolding their learning by adding dominant languages as they proceed through schooling. Alignment of the language of instruction in schools with mother tongue medium education begins to make connections for students that support and enhance multiple pathways for their success (Chiatoh & Akumbu, 2014). One response to the perception that local Indigenous languages do not have the same currency as dominant languages has been to find ways to revitalise these languages with an emergent emphasis on ‘conceiv[ing] linguistic projects as community development projects’ (Akumbu, in press), moving away from the model of academic linguistic research that has traditionally neglected the survival needs of the language community members, ‘thereby legitimizing and accompanying language death’ (Akumbu, in press). Ngué Um (2017, 2019) and Akumbu (in press) assert that local Indigenous languages must become a vital part of education and sustainable development initiatives in Africa. Comprehending and envisioning local Indigenous language maintenance, revitalisation and multilingualism is critical to the long-term physical, social, economic and political health of African Nations. This disrupts deficit perspectives of local Indigenous languages, knowledge systems and communities by repositioning

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them as important actors in global knowledge production and innovation. Cameroon continues to contend with the pressures and imposition of the neocolonial structures of globalisation and development. Its language policies are situated within a continuum of dominance and marginalisation that simultaneously constitute and are constituted by complicated histories and contemporary contexts of oppression and resistance. Cameroonian language policies unfold in contested spaces that contend with resistance and struggle within larger contexts of coloniality and decoloniality, resistance and struggle that nuance understandings of the meanings of language, knowledge and power. United States Following the Civil Rights movement, the Title VII of the Elementary and Secondary Education Act of 1967 or Bilingual Education Act of 1968 (Public Law 90–247) was the first US federal legislation to recognise the needs of English Language Learners. Prior to the passing of this Act, it was assumed that non–English language speakers had a deficit to overcome; thus, teaching English at the expense of students’ first language became the primary objective in US schools (Ruiz, 1984). The Act underwent amendments and reauthorisation to reflect the needs of English Language Learners, dictating how non-English-speaking students were to be educated. Though the Bill was aimed at Spanish-speaking students, the Act applied to all linguistic minorities in the US, including Indigenous-language speakers. In 1990, the US passed the Native American Languages Act of 1990 (Public Law 101–477) to ‘preserve, protect, and promote the rights and freedom of Native Americans to use, practice, and develop Native American languages’ (Section 104 (1)). In 1992, the Native American Languages Act of 1992 (Public Law 102–524) was passed to ‘assist Native Americans in assuring the survival and continuing vitality of their languages’ (Section 803B) by funding various language revitalisation initiatives. In 2006, the Esther Martinez Native American Language Preservation Act (Public Law 109–394) provided for the revitalisation of languages through Native American language immersion programs. Although the US does not have an official language at the federal level, two states have adopted local Indigenous languages as official state languages. In 1978, Hawaiian became an official language of Hawaiʻi, alongside English. In 1986, the long overdue repeal of the Hawaiian Revised Statutes of 1896 was passed to overturn the policy prohibiting Hawaiian-language medium instruction in schools. This ban contributed to the widespread loss of the Hawaiian language. In 2014, Alaskan House Bill 216 designated 20 Native languages as official languages of Alaska: Inupiaq, Siberian Yupik, Central Alaskan Yup’ik, Alutiiq, Unangax, Dena’ina, Deg Xinag, Holikachuk, Koyukon, Upper Kuskokwim, Gwich’in, Tanana, Upper Tanana, Tanacross, Han, Ahtna, Eyak, Tlingit, Haida and Tsimshian. Once forbidden, these languages now hold the same status as English. Though these 20 languages hold official status, presumably equal to that of English, the state is not required to conduct its

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business or, in effect, do anything in any language other than English (Alaska State Legislature, 2014). These are two of the many examples in the US, where Indigenous grassroots efforts from within communities have struggled over generations to have their Indigenous language rights acknowledged, respected, valued and supported. While such legislative policies may be considered symbolic in nature, for Indigenous Peoples and communities in Hawaiʻi and Alaska (and beyond) who are revitalising and reclaiming their languages, these laws reflect the kind of consistent and continuous pressure it has taken, and that continues to build momentum for Indigenous communities to demand equal language rights and opportunities. Canada While the federal Official Languages Act (R.S.C., 1985, c. 31) was enacted in 1969 to recognise the equal status of English and French throughout Canadian federal institutions, the Act cannot be applied to provincial and municipal governments in Canada. Instead, some provinces and territories have adopted specific language policies and legislation to protect regional Indigenous languages. Via the Northwest Territories (NWT) Official Languages Act (1984, as amended), NWT acknowledge nine Indigenous languages as official languages alongside English and French: Chipewyan (Dëne Sųłıné Yatıé), Cree (Nēhiyawēwin), Gwich’in, Inuinnaqtun, Inuktitut, Inuvialuktun, North Slavey (Sahtúǫt’ı̨ ne Yatı̨ ́), South Slavey (Dene Zhatıé) and Tłı̨ chǫ. Under this Act, the official languages of NWT have equal status, rights and privileges in all government institutions. The Act allows everyone the right to use any of the official languages in debates, proceedings and any court established by the legislature. In 2008, the Inuit Language Protection Act (CSNu, c I-140) was passed to protect, promote, revitalise and transmit Inuit language, to guarantee the right to receive an education in Inuit language, allow Inuit language as a language of work in territorial institutions and affirm the use of Inuit language throughout all sectors of Nunavut society. In 2013, Nunavut’s Official Languages Act (C.S.Nu., c. O-20) established Inuktitut (Inuktitut and Inuinnaqtun), English and French as the territory’s official languages and stated the following rights: use of any official language in debates or other proceedings in the Legislative Assembly, use of any official language in Nunavut Court of Justice and appeal court proceedings, and that anyone can communicate in or receive services in any official language from any territorial institution. From 2007 to 2015, the Government of Canada provided funding to support the Truth and Reconciliation Commission’s work, which resulted in a summary of findings that included 94 calls to action to ‘redress the legacy of residential schools and advance the process of Canadian reconciliation’ (Truth and Reconciliation Commission of Canada, 2015, p. 1). Action 13 calls upon ‘the federal government to acknowledge that Aboriginal rights include Aboriginal language rights’, which aligns with Article 13 of the UNDRIP. Action 14, which calls on the government to ‘enact an Aboriginal Languages Act’, has since been implemented. On National

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Indigenous Peoples Day (21 June) in 2019, the Indigenous Languages Act (S.C. 2019, c. 23), received royal assent and acknowledged that Indigenous languages are at the core of reconciliation. This Act is committed to implementing the UNDRIP in affirming rights related to Indigenous languages and providing ‘adequate, sustainable and long-term funding for the reclamation, revitalization, maintenance and strengthening of Indigenous languages’ (Parliament of Canada, 2019). Since becoming law, the Act has included funding of CAD$333.7 million over the first five years and CAD$115.7 million committed annually thereafter (Canadian Heritage, 2019). This funding may, at first glance, seem like a significant amount of money. However, when considering the large diversity of more than 70 Indigenous languages in Canada, this amount is not so noteworthy as it might seem. In comparison, the Fraser Institute (2012) reported that Canada’s federal and provincial governments spent CAD$2.4 billion annually on official bilingualism of English and French. If Canada is to provide adequate, sustainable and long-term funding for Indigenous languages, funding should be at least equivalent to that of English and French—settler colonial languages of Canada. Indigenous language funding should reflect the real and diverse needs of Indigenous communities, in addition to redressing the language loss that has taken place across Canada and multiple generations as a direct result of Canadian governmental and institutional policy and practice. In 2019, the Government of British Columbia became the first Canadian jurisdiction to legislate the UNDRIP (as the Declaration on the Rights of Indigenous Peoples Act), thereby legally recognising Indigenous Peoples’ human rights in British Columbia law and adopting and implementing the UNDRIP as a framework for reconciliation (Government of British Columbia, n.d.). With over 5,000 laws and 203 distinct First Nations in British Columbia, it will be an immense undertaking to determine what laws are First Nations priorities (Yellowhead Institute, 2020). It remains to be seen whether the more than 30 Indigenous languages and over 90 dialects across British Columbia will be a priority. In 2021, the Canadian Government followed suit in moving to adopt and advance the implementation of UNDRIP. This was achieved in June 2021, with the passage of the United Nations Declaration on the Rights of Indigenous Peoples Act (S.C. 2021, c. 14). Each of the above-discussed policy settings points to challenges shaped by macro forces and broader socioeconomic, historical and political realities and contexts that affect Indigenous language policies, and a range of the responses by Indigenous Peoples. Indigenous scholars worldwide are elaborating critical policy agendas for Indigenous language maintenance and revitalisation that hold real possibilities for approaches that connect basic needs with community and cultural necessities. This has called for a shift of orientations, priorities and practices from dominant structures and institutional frameworks acting on Indigenous language policy. Community-driven initiatives speak to the many diverse and creative ways Indigenous communities respond to these challenges based on the diversity, creativity and knowledge that continues to be situated and generated from within their communities.

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IMPLEMENTATION: POSSIBILITIES AND BARRIERS As the carriers of their languages, Indigenous Peoples are best positioned to have control and exercise leadership over all language planning and policy affecting their languages. Plans of action around Indigenous language planning and policy initiatives must reflect Indigenous self-determination and self-determining dreams, goals and aspirations. The theme of the International Decade of Indigenous Languages 2022–2032 is, ‘Nothing for us without us’. Indigenous Peoples must be able to develop their own languages for themselves in ways that make sense to and within their communities, lands, and historical, linguistic and sociocultural contexts. Collaboration with outside entities (i.e., states, regional and local governments, policymakers, public and private partners, professional organisations, academia, civil society) must begin to follow relational practices of respect, reciprocity, accountability and responsibility. Indigenous Peoples must be able to engage in relevant and meaningful participation in any and all efforts in relation to language planning and cultural development. Yet this remains an elusive goal within all levels of Indigenous participation in local, regional, national and international decision-making and policymaking. Some other elements and considerations of implementation for Indigenous language restoration, renewal and resurgence are the need to leverage international instruments for regional and national action through policymaking and funding. State funding for this purpose is currently inadequate (and often misdirected). Funding for Indigenous language revitalisation must be not only adequate but also long term and sustainable. Communities must be able to strategically plan based on long-range funding models, particularly considering these are languages being rebuilt and not roads. Restoration and renewal take time, which must be reflected in the sustainability of funding models. Funding for justice and historical redress must consider the extraordinary resources invested by states and churches to strip Indigenous languages from their People, and it must fund community efforts to reclaim languages that states themselves are responsible for attempting to eradicate. Implementation has been challenging due to complicated factors such as states’ colonising histories and their ongoing fraught relationships of discrimination and marginalisation with Indigenous Peoples, whose lands they occupy and exploit. States’ non-participation and/or non-compliance with international instruments and recommendations, alongside their refusal to acknowledge, protect and promote the inherent rights of Indigenous Peoples, further complicate the matter. Other barriers to the restoration and resurgence of Indigenous languages in language planning and policy include the challenges of cross-border work where Indigenous languages and language communities span state borders. As traditional territories sometimes span multiple states or cross international borders, this makes coordination and consistency of policy and programs immensely challenging. The increasing number of Indigenous Peoples living in urban areas, where access to their languages and language-learning possibilities markedly decrease, poses further issues. There is also a shortage of teachers who are speakers of their languages and of teacher training

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programs. The issue of official language status in states that refuse to recognise Indigenous languages withholds the promise of elevating the status of Indigenous languages, within both Indigenous communities and mainstream civil society. A change here holds the possibility of shifting dominant language ideologies that perceive Indigenous languages as irrelevant, anachronistic or inferior. Adding to these challenges, the International Year of Indigenous Languages 2019 noted that Indigenous languages face endangerment due to ‘Indigenous Peoples [being] often isolated both politically and socially in the countries they live in, by the geographical location of their communities, their separate histories, cultures, languages and traditions’ (UNESCO, 2018, n.p.). The very factors that contribute to language endangerment contribute to difficulty in implementing the protections of the linguistic and cultural rights of Indigenous Peoples. Frameworks, paradigms, policies and practices developed by Indigenous Peoples are needed to guarantee linguistic human rights. Barriers to the implementation of Indigenous language policies in education— critical to the success of maintenance, preservation and renewal—include issues of funding, where governments and funding agencies frequently privilege language documentation over language revitalisation. The gap between official state policies on bilingualism/multilingualism and on-the-ground practice is often gaping, with few resources directed at ensuring practices align with official policies. Further, language and education policies must ensure that any intervention is appropriate and equitable in state-sponsored education systems. In cases of multilingualism, there is often the challenge of deciding which language will be the medium of instruction; these decisions are complicated not only by national language policies and ideologies but also by local policies and ideologies. When languages are seen as inferior, regardless of national policy, gaining acceptance in the classroom for their use as the medium of instruction is problematic, as is getting language speakers to use their language in the classroom and finding teachers (Ball, 2011). Due to the marginalisation of Indigenous languages, finding and training teachers can be a challenge. This is exacerbated in training first-language speakers, who are sometimes unable to read and write in their language, to be teachers (Ball, 2011; Benson, 2004; Pinnock, 2009). Further, Indigenous languages are primarily oral and may not have written materials developed for schooling (Trudell, 2016). Some of the possibilities and aspirations in Indigenous language planning and policy for the restoration, renewal and resurgence of Indigenous languages are: ● developing both local and global interconnected networks of Indigenous language centres to work together, sharing knowledge, resources, best practices and experiences ● collaboration with other Indigenous communities and language efforts to develop long-term, sustainable and relational networks of mutual support, vision and mobilisation ● collaborating to develop Indigenous strategies and standards for assessment

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● collaborating to develop Indigenous strategies and standards for intellectual property and technology development, use and ethics ● developing collaborations with academics and the academy in ways that are driven and controlled by Indigenous communities. It remains to be seen whether broader instruments and frameworks such as the UNDRIP, international bodies like the UN Permanent Forum on Indigenous Issues and the heightened awareness brought to the state of Indigenous languages through the International Decade of Indigenous Languages 2022–2032 will be effective in responding to Indigenous Peoples’ call for dialogue and co-participation in policymaking that is real, meaningful, and relevant for the vitality of Indigenous languages and their communities.

REFERENCES Adegbija, E. (2001). Saving threatened languages in Africa: A case study of Oko. In J. Fishman (Ed.), Can threatened languages be saved? (pp. 284–308). Bristol, UK: Multilingual Matters. https://​doi​.org/​10​.21832/​9781853597060–014 Akumbu, P. (in press). A community approach to language documentation in Africa. Berlin, Germany: Language Science Press. Akumbu, P. & Chiatoh, B. (Eds.). (2013). Language policy in Africa: Perspectives for Cameroon. Miraclaire Academic Publications. Alaska State Legislature. (2014). Bill history/action for legislature. Official Languages of the State. Enrolled HB 216. Alaska State Legislature. Retrieved on 29 October 2023 from http://​www​.akleg​.gov/​basis/​Bill/​Detail/​28​?Root​=​HB0216​#tab1​_4 American Declaration on the Rights of Indigenous Peoples. Adopted 15 June 2016. Organization of American States. Retrieved on 29 October 2023 from https://​www​.oas​ .org/​en/​sare/​documents/​DecAmIND​.pdf; https://​indianlaw​.org/​sites/​default/​files/​ADRIP​ %201–17–17​.pdf Amnesty International. (1986). Bangladesh: Unlawful Killings and torture in the Chittagong Hill Tracts. London. Retrieved on 29 October 2023 from https://​www​.amnesty​.org/​en/​wp​ -content/​uploads/​2021/​06/​asa130211986en​.pdf Amnesty International. (2013). Pushed to the edge: Indigenous rights denied in Bangladesh’s Chittagong Hill Tracts. London. Retrieved on 29 October 2023 from https://​www​.amnesty​ .org​.uk/​files/​pushed​_to​_edge​_amnesty​_report​_2013​.pdf​?VersionId​=​Vm2SwXedz07ApF0​ _SqL​.QjnQE​.yrWUed Ball, J. (2011). Enhancing learning of children from diverse language backgrounds: Mother tongue-based bilingual or multilingual education in early childhood and early primary school years. Paris, France: United Nations Educational, Scientific and Cultural Organization. Retrieved on 29 October 2023 from http://​unesdoc​.unesco​.org/​images/​0021/​ 002122/​212270e​.pdf Benson, C. (2004). The importance of mother tongue-based schooling for educational quality (2005/ED/EFA/MRT/PI/9). Background paper prepared for the Education for All Global Monitoring Report 2005. The Quality Imperative. Retrieved on 29 October 2023 from http://​unesdoc​.unesco​.org/​images/​0014/​001466/​146632e​.pdf Canadian Heritage. (2019). The Indigenous Languages Act receives royal assent [News release]. Ottawa, ON: Government of Canada. Retrieved on 29 October 2023 from https://​www​.canada​.ca/​en/​canadian​-heritage/​news/​2019/​06/​the​-indigenous​-languages​-act​ -receives​-royal​-assent​.html

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Capotorti, F. (1979). Study on the rights of persons belonging to ethnic, religious and linguistic minorities (UN Document E/CN.4/Sub.2/384/Rev.1 1991). United Nations Subcommission on Prevention of Discrimination and Protection of Minorities. Retrieved on 29 October 2023 from https://​digitallibrary​.un​.org/​record/​10387​?ln​=​en Chakma, B. (2010). The post-colonial state and minorities: Ethnocide in the Chittagong Hill Tracts, Bangladesh. Commonwealth and Comparative Politics, 48(3), 281–300. https://​doi​ .org/​10​.1080/​14662043​.2010​.489746 Chiatoh, B. & Akumbu, P. (2014). Enhancing English language studies in Cameroon: The mother tongue perspective. California Linguistic Notes, 29(1), 23–47. Dunbar, R., Skutnabb-Kangas, T., Baer, L.-A. & Magga, O. H. (2008). Forms of education of Indigenous children as crimes against humanity? Expert paper written for the United Nations Permanent Forum on Indigenous Issues (PFII) (UN Document E/C.19/2008/7). New York, NY: PFII. Retrieved on 29 October 2023 from https://​digitallibrary​.un​.org/​ record/​622014​?ln​=​en Endangered Languages Project. (2022a). Talk by Dr. Maung Nyeu [Video, 22 January]. YouTube. Retrieved on 29 October 2023 from https://​ www​ .youtube​ .com/​ watch​ ?v​ =​ OT5bHknBo​_Q​&​t​=​395s Endangered Languages Project. (2022b). Talk by Dr. Prem Phyak [Video, 22 January]. YouTube. Retrieved on 29 October 2023 from https://​ www​ .youtube​ .com/​ watch​ ?v​ =​ c8R80EnnvM0 Fraser Institute. (2012). Official language policies of the Canadian provinces – costs and benefits in 2006. Vancouver, BC: Author. Retrieved on 29 October 2023 from https://​www​ .fraserinstitute​.org/​sites/​default/​files/​official​-language​-policies​-of​-canadian​-provinces​-rev​ .pdf Galla, C. K., Kawaiʻaeʻa, K. & Nicholas, S. E. (2014). Carrying the torch forward: Indigenous academics building capacity through an international collaborative model. Canadian Journal of Native Education, 37(1), 193–217. Gonzalez, N., Moll, L. C. & Amanti, C. (Eds.). (2005). Funds of knowledge: Theorizing practices in households, communities, and classrooms. Mahwah, NJ: Erlbaum. Government of British Columbia. (n.d.). Declaration on the Rights of Indigenous Peoples Act [Factsheet]. Vancouver, BC: Author. Retrieved on 29 October 2023 from https://​news​.gov​ .bc​.ca/​files/​BC​_Declaration​_Act​-Factsheet​.pdf Holm, T., Pearson, J. D. & Chavis, B. (2003). Peoplehood: A model for the extension of sovereignty in American Indian studies. Wicazo Sa Review, 18(1), 7–24. Indigenous Languages Act (S.C. 2019, c. 23). Canada. Retrieved on 29 October 2023 from https://​laws​-lois​.justice​.gc​.ca/​eng/​acts/​i​-7​.85/​page​-1​.html Inuit Language Protection Act (CSNu, c I-140) (2008, as amended). Government of Nunavut. Retrieved on 29 October 2023 from https://​ www​ .nunavutlegislation​ .ca/​ en/​ consolidated​ -law/​inuit​-language​-protection​-act​-official​-consolidation Jacobs, M. D. (2006). Indian boarding schools in comparative perspective: The removal of Indigenous children in the United States and Australia, 1880–1940 (Faculty Publications No. 20). Lincoln, NE: Department of History, University of Nebraska–Lincoln. Retrieved on 29 October 2023 from https://​digitalcommons​.unl​.edu/​historyfacpub/​20 McLeod, N. (2007). Cree narrative memory: From treaties to contemporary times. Saskatoon, Canada: Purich. National Centre for Truth and Reconciliation. (n.d.). Reports. Winnipeg, MB: National Centre for Truth and Reconciliation, University of Manitoba. Retrieved on 31 May 2023 from https://​nctr​.ca/​records/​reports/​ Ngué Um, E. (2017). Beyond expanding the functions of threatened languages; expanding the life opportunities of communities who speak them. Economic empowerment and language revitalization in critical socio-economic conditions in Africa, 2 March. Paper presented at

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the 5th International Conference on Language Documentation and Conservation (ICLDC). Retrieved on 29 October 2023 from http://​hdl​.handle​.net/​10125/​42068 Ngué Um, E. (2019). Achieving sustainable language preservation through economic empowerment in endangered language settings in West Africa. In P. W. Akumbu & E. P. Chie (Eds.), Engagement with Africa: Linguistic essays in honor of Ngessimo M. Mutaka (pp. 375–395). Cologne, Germany: Köppe. Nyeu, M. T. (2020a). From Indigenous Elders’ stories to a critical thinking curriculum: A discussion-based literacy intervention using Indigenous students’ cultural narratives (PhD thesis). Harvard Graduate School of Education. Retrieved on 29 October 2023 from https://​dash​.harvard​.edu/​handle/​1/​37364529 Nyeu, M. (2020b). Lost in translation! Exploring oral and written narratives of cultural and linguistic minority Indigenous students of the Chittagong Hill Tracts, Bangladesh (Qualifying Paper). Harvard Graduate School of Education. Retrieved on 29 October 2023 from https://​dash​.harvard​.edu/​handle/​1/​37366132 Official Languages Act (1984, as amended). Government of Northwest Territories. Retrieved on 29 October 2023 from https://​www​.justice​.gov​.nt​.ca/​en/​files/​legislation/​official​ -languages/​official​-languages​.a​.pdf Official Languages Act (R.S.C., 1985, c. 31) (1969, as amended). Government of Canada. Retrieved on 29 October 2023 from https://​laws​-lois​.justice​.gc​.ca/​eng/​acts/​O​-3​.01/​ Official Languages Act (C.S.Nu., c. O-20) (2013, as amended). Government of Nunavut. Retrieved on 29 October 2023 from https://​ www​ .nunavutlegislation​ .ca/​ en/​ consolidated​ -law/​official​-languages​-act​-official​-consolidation Parliament of Canada. (2019). Bill C-91, 21 June. Retrieved on 29 October 2023 from https://​ www​.parl​.ca/​DocumentViewer/​en/​42–1/​bill/​C​-91/​royal​-assent Phillipson, R. (1992). Linguistic imperialism. Oxford: Oxford University Press. Phillipson, R. & Skutnabb-Kangas, T. (1995). Linguistic rights and wrongs. Applied Linguistics, 16(4), 483–504. https://​doi​.org/​10​.1093/​applin/​16​.4​.483 Phyak, P. (2021). Subverting the erasure: Decolonial efforts, Indigenous language education and language policy in Nepal. Journal of Language, Identity & Education, 20(5), 325–339. DOI: 10.1080/15348458.2021.1957682 Pinnock, H. (2009). Language and education: The missing link. How the language used in schools threatens the achievement of Education for All. Berkshire, UK; London, UK: CfBT Education Trust; Save the Children. Retrieved on 29 October 2023 from https://​ resourcecentre​.savethechildren​.net/​document/​language​-and​-education​-missing​-link​-how​ -language​-used​-schools​-threatens​-achievement/​ Ruiz, R. (1984). Orientations in language planning. NABE: Journal of the National Association for Bilingual Education, 8(2), 15–34. https://​doi​.org/​10​.1080/​08855072​.1984​.10668464 Skutnabb-Kangas, T. (2012). Linguistic genocide in education – or worldwide diversity and human rights? New York: Routledge. Skutnabb-Kangas, T. & Phillipson, R. (1994). Linguistic human rights: Past and present. In T. Skutnabb-Kangas, R. Phillipson & M. Rannut (Eds.), Linguistic human rights: Overcoming linguistic discrimination (pp. 71–110). Berlin, Germany: Mouton de Gruyter. Skutnabb-Kangas, T. & Phillipson, R. (1995a). Linguicide and linguicism. In R. Phillipson & T. Skutnabb-Kangas (Eds.), Papers in European Language Policy, ROLIG papir-53 (pp. 83–91). Roskilde, Denmark: Roskilde University Center. Skutnabb-Kangas, T. & Phillipson, R. (1995b). Linguistic human rights: Past and present. In T. Skutnabb-Kangas, R. Phillipson & M. Rannut (Eds.), Linguistic human rights: Overcoming linguistic discrimination (pp. 71–110). Berlin: Mouton deGruyter. Skutnabb-Kangas, T. & Phillipson, R. (2022). The handbook of linguistic human rights (Blackwell Handbooks in Linguistics). Newark, NE: John Wiley & Sons, Incorporated. Smith, A. (2009). Indigenous peoples and boarding schools: A comparative study (UN Document E/C.19/2009/CRP. 1). Permanent Forum on Indigenous Issues, 8th sess.

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Retrieved on 29 October 2023 from https://​www​.un​.org/​esa/​socdev/​unpfii/​documents/​E​_C​ _19​_2009​_crp1​.pdf Spack, R. (2002). America’s second tongue: American Indian education and the ownership of English, 1860–1900. Lincoln, NE: University of Nebraska Press. Tauli-Corpuz V. (2014). Rights of indigenous peoples, including their economic, social and cultural rights in the post-2015 development framework (UN Document A/69/267). United Nations. Retrieved on 29 October 2023 from https://​ undocs​ .org/​ Home/​ Mobile​ ?FinalSymbol​=​A​%2F69​%2F267​&​Language​=​E Trudell, B. (2016). The impact of language policy and practice on children’s learning: Evidence from Eastern and Southern Africa. Nairobi, Kenya: UNICEF ESARO. Retrieved on 29 October 2023 from https://​www​.unicef​.org/​esa/​sites/​unicef​.org​.esa/​files/​2018–09/​ UNICEF​-2016​-Language​-and​-Learning​-FullReport​.pdf Truth and Reconciliation Commission of Canada. (2015). Truth and Reconciliation Commission of Canada: Calls to action. Winnipeg, MB: Author. Retrieved on 29 October 2023 from https://​ehprnh2mwo3​.exactdn​.com/​wp​-content/​uploads/​2021/​01/​Calls​ _to​_Action​_English2​.pdf United Nations Declaration on the Rights of Indigenous Peoples. Adopted 13 September 2007. United Nations General Assembly Resolution 61/295 (UN Document A/RES/61/295). Retrieved on 29 October 2023 from https://​social​.desa​.un​.org/​issues/​indigenous​-peoples/​ united​-nations​-declaration​-on​-the​-rights​-of​-indigenous​-peoples United Nations Declaration on the Rights of Indigenous Peoples Act (S.C. 2021, c. 14). Canada. Retrieved on 29 October 2023 from https://​laws​-lois​.justice​.gc​.ca/​eng/​acts/​U​-2​.2/​ page​-1​.html United Nations Educational, Scientific and Cultural Organization [UNESCO]. (2018). About IYIL 2019. Retrieved on 29 October 2023 from https://​en​.iyil2019​.org/​about/​#about​-1 United Nations Educational, Scientific and Cultural Organization [UNESCO]. (2019). Indigenous peoples’ right to education: Overview of the measures supporting the right to education for indigenous peoples reported by Member States in the context of the Ninth Consultation on the 1960 Convention (UN Document ED.2019/WS/40). Paris, France: Author. Retrieved on 29 October 2023 from https://​unesdoc​.unesco​.org/​ark:/​48223/​ pf0000369698 United Nations Educational, Scientific and Cultural Organization [UNESCO]. (2020a). Los Pinos Declaration [Chapoltepek] lays foundations for global planning for the International Decade of Indigenous Languages. Retrieved on 29 October 2023 from https://​www​.unesco​ .org/​e n/​a rticles/​l os​- pinos​- declaration​- chapoltepek​- lays​- foundations​- global​- planning​ -international​-decade​-indigenous United Nations Educational, Scientific and Cultural Organization [UNESCO]. (2020b, 28 February). Upcoming Decade of Indigenous Languages (2022–2032) to focus on Indigenous language users’ human rights. Retrieved on 29 October 2023 from https://​ www​.unesco​.org/​en/​articles/​upcoming​-decade​-indigenous​-languages​-2022​-2032​-focus​ -indigenous​-language​-users​-human​-rights United Nations Educational, Scientific and Cultural Organization [UNESCO]. (2021). UNESCO launches the Global Task Force for Making a Decade of Action for Indigenous Languages. Retrieved on 29 October 2023 from https://​www​.unesco​.org/​en/​articles/​unesco​ -launches​-global​-task​-force​-making​-decade​-action​-indigenous​-languages Vizenor, G. R. (1999). Manifest manners: Narratives on postindian survivance. Lincoln, NE: University of Nebraska Press. Yellowhead Institute. (2020). The UN Declaration on the Rights of Indigenous Peoples in Canada: Lessons from B.C. Toronto, ON: Yellowhead Institute, Toronto Metropolitan University (formerly Ryerson University). Retrieved on 29 October 2023 from https://​ yellowheadinstitute​.org/​wp​-content/​uploads/​2020/​12/​yellowhead​-institute​-bc​-undrip​ -report​-12​.20​-compressed​.pdf

16. Indigenous Peoples in the justice system Valmaine Toki

INTRODUCTION Prior to colonisation, Indigenous Peoples, including Māori, had their own ‘justice’ systems. With colonisation came the imposition of a non-Indigenous legal system and legislation that defined what was criminal.1 The colonial classification of a crime was determined without considering what a crime was for Māori, thereby marginalising their view. For Māori and Indigenous Peoples, a crime, or hara, did not depend on legislation for legitimation, but on whether or not the action or inaction breached a concept or concepts of tikanga Māori, premised on, and similar to, an Indigenous worldview. The behaviour or criminality of the offender was considered secondary to this (Toki, 2018). Seen in this light, the Western criminal justice system can be understood as a tool of colonisation. The recent concern of the New Zealand Police taking unauthorised photographs of Māori youth further illustrates the overbearing nature of the system (Independent Police Conduct Authority, 2022). This is reflected by incidences of Māori youth waiting at a bus stop after school and police officers responding to a burglary in the area taking their photos, despite the youth not matching the description of the reported offenders. There have also been instances of Māori youth walking home and being stopped and photographed by police. For many Indigenous Peoples, the introduction of a Western criminal justice system was no more than a tool of colonisation. Therefore, they seek a more meaningful recognition of their rights within the criminal justice system. Given that the disproportionately negative statistics have remained unchanged for the past 40 years, it is no surprise that calls for a separate criminal justice system are growing louder. With iwi (tribes) groups now asserting their economic place, perhaps it is timely that iwi step up and implement a criminal justice system within their own takiwa (tribal boundary). This could manifest in a separate system underpinned by tino rangatiratanga or self-determination. Alternatively, it could be that present criminal justice reform initiatives provide Indigenous Peoples with a system that better recognises their culture and language and is, consequently, one they have confidence in. 1 In Aotearoa New Zealand today, all crime is codified in statutes. Therefore, it is not possible to be charged with a criminal offence under common law. A breach of the legislation results in various forms of sentence, ranging from community service to imprisonment. See the Crimes Act 1961 (NZ), section 9, ‘Offences not to be punishable except under New Zealand Acts’. See also the Crimes Act 1961 (NZ), section 2, ‘For procedural purposes, there are four categories of offence’; and Criminal Procedure Act 2011 (NZ), section 6.

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With a focus on Māori and Aotearoa New Zealand, this chapter will examine the nexus between Māori and the justice system. It provides, first, an analysis of an initiative within the criminal justice system that has shown signs of success and, second, a review of a legislative provision that allows for the consideration of how social disadvantage for Māori has given rise to criminal liability. This background can then be taken into account (see Keil v R, 2017, paras 56–57). Some concluding observations are then offered on whether the calls for a separate criminal justice system are required or whether the current system provides Māori with a sense of tino rangatiratanga.

PART ONE: JUSTICE INITIATIVE—TE KOOTI RANGATAHI Criminal Justice In 2020, 52.8% of the Aotearoa New Zealand prison population identified as Māori despite comprising only 15% of the Aotearoa New Zealand population (Ara Poutama Aotearoa, 2020). In 2019/2020, 44% of convicted adults were Māori, and 37% were European. A smaller proportion were Pacific Peoples (10%), Asian (3%) or other ethnicities (2%), and 9% were unknown (Ministry of Justice, New Zealand Government, 2020). The re-imprisonment rate over 48 months for Māori offenders (55%) is considerably higher than the rate for both New Zealand Europeans (45%) and Pacific offenders (36%) (Ara Poutama Aotearoa, 2007). This trend of over-representation within the criminal justice system pervades all steps of the process, from apprehension to sentencing. Despite various initiatives introduced by the justice system, these disproportionate offending rates, together with systemic racism for Māori, continue (Stanley & Bradley, 2021). However, the establishment of Te Kooti Rangatahi, an ‘Indigenous’ Youth Court held on a marae (traditional meeting house), has given pause for optimism. Recently there has been a move to incorporate tikanga (Māori customs and values) and te ao Māori (Māori world) within the District Court system, with the ‘Transformative Te Ao Mārama model’ announced in November 2020 (District Court of New Zealand, 2020). This proposed use of customary Indigenous norms across the judicial processes within the District Court is novel and represents a perspicacious shift in orthodox legal practice. However, the use of customary Indigenous norms in a judicial setting is not novel. For instance, rule 1.12 of the High Court Rules provides for the translation of documents into te reo Māori. Many jurisdictions incorporate customary Indigenous norms (e.g., Australia with the Murri and Koori Courts and the Navajo Peoples with the Navajo Tribal Courts). The advent of Indigenous courts is particularly exciting in the context of criminal law because of its potential to meaningfully address the over-representation of Indigenous offending in statistics. While it is still early days to provide any robust

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analysis of Te Ao Mārama, Te Kooti Rangatahi will be examined against the recognition of fundamental rights for Māori. What is Te Kooti Rangatahi? Rangatahi Courts are not a separate system of youth justice (Walker, 2018). Youth appear in the mainstream Youth Court and are required to plead guilty to be considered for a Te Kooti Rangatahi process. This aligns with tikanga Māori and the ‘taking of responsibility’. If the victim agrees, then the youth is referred through a Te Kooti Rangatahi process. Te Kooti Rangatahi functions and applies the law in a mainstream manner but incorporates te reo Māori (Māori language) and tikanga Māori (Taumaunu, 2014). For instance, the court is held on a marae (which symbolises a world in balance), using marae kawa (ceremonial rituals) as part of the court processes (Taumaunu, 2014). Te Kooti Rangatahi places emphasis on the rangatahi (re)discovering their identity. This is achieved through learning their tribal history and developing an understanding of who they are and where they are from. Every youth is expected to learn their pepeha (a traditional tribal saying) and a mihi (a greeting in the Māori language). This is expected even though many youths may never have spoken te reo. The process for young Māori who appear in the Youth Court assists the reconnection with their te reo and their identity. Te Kooti Rangatahi was established in light of the concern that successive generations of Māori defendants are processed through the Youth Court and then onto prison. It was recognised that a new approach was required to meet the needs of youth experiencing the criminal justice system. For instance, in 2016, 24% of the 10–16-year-old population in Aotearoa New Zealand identified as Māori (Children’s Commissioner, 2016), yet the overwhelming majority of Youth Court appearances were Māori, with an appearance rate 8.3 times higher than non-Māori (Ministry of Justice, 2020). Judge Taumaunu, the current Chief District Court Judge, piloted and presided over the first marae-based Youth Court, Te Kooti Rangatahi, in Gisborne. There are now 15 Rangatahi Courts established throughout Aotearoa New Zealand. The objective of these courts is to reduce reoffending by Māori youth and to provide the best possible rehabilitative response by encouraging strong cultural links and meaningful involvement of whānau (family), hapū (sub tribe) and iwi (tribe) in the youth justice process (Taumaunu, 2014). Intrinsic to Te Kooti Rangatahi is the ability to include kuia (female elder), kaumātua (male or female elder) and local marae communities to allow Māori youth who appear before them an opportunity to learn who they are and where they are from and to participate in Māori protocols and customs, which, in turn, assists in reconnecting them with their identity.2

2 Section 4(4) of the District Courts Act 1947 allows a sitting of the Youth Court to be held within a marae environment. See also Taumaunu (2014).

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A young person can be referred to Te Kooti Rangatahi, which monitors the performance of Family Group Conference (FGC) Plans by young Māori and non-Māori who have committed offences, if the FGC gathering agrees and if the young person and their family wishes to do so (Toki, 2018). The FGC Plan holds the youth accountable and responsible for their offending while also providing for the interests of the victims (Taumaunu, 2014). Although there are no statistics indicating attendance, there is anecdotal feedback that this optional pathway is often chosen by the young person (Ministry of Justice, 2012). Victims can attend Te Kooti Rangatahi in the same manner as they are able to attend the Youth Court (Taumaunu, 2014). The victim can participate in the decision as to whether or not the young person should be monitored in Te Kooti Rangatahi. If the victim does not agree to the referral to Te Kooti Rangatahi for monitoring, the Youth Court will not refer the young person—the victim effectively holds the power of veto. Once the young person has completed their FGC Plan, Te Kooti Rangatahi, functioning with the same powers and responsibilities as a mainstream Youth Court, will discharge the youth (Taumaunu, 2014). Alternatively, if the youth has not completed their FGC Plan, a more formal order is made. The underlying emphasis is to hold the young person accountable for their offending behaviour and concurrently address their risks and needs (Taumaunu, 2014). In 2012, the Ministry of Justice prepared an evaluation of five of the then ten Te Kooti Rangatahi Courts. The evaluation report provided observations of ‘good practice’ across all five marae and found that rangatahi have experienced many positive early outcomes, both expected and unexpected, including, for example, high levels of attendance by both rangatahi and whānau (an occurrence seldom seen in the youth courts). Rangatahi feel welcome and respected, with an understanding of the court process they perceive to be legitimate (Taumaunu, 2014). The report also found that rangatahi experienced positive relationships with youth justice professionals and the marae community in general. Importantly, rangatahi showed improved positive attitudes and behaviour and demonstrated responsibility for their offending and its effects. Further, nearing the end of the monitoring process, rangatahi had established connections with the marae and taken on leadership and mentoring roles (Taumaunu, 2014). Positive outcomes were not just isolated to rangatahi. Whānau also felt respected, supported and welcomed at the court. Having had the opportunity to develop networks with the wider Māori community, agencies reported the ability to build greater relationships with whānau while increasing their own cultural competency. The marae venue, marae community, kaumātua, kuia, lay advocate involvement, and incorporation of tikanga Māori and te reo Māori validate the mana of the young people and their whānau while still holding them accountable and responsible. Judge Taumaunu holds firmly that Te Kooti Rangatahi is not seen as an easy option (Taumaunu, 2014). The Ministry of Justice’s 2014 quantitative evaluation estimated that young people who appeared in the Rangatahi Court were 11% less likely to reoffend, represent-

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ing a practical and tangible reflection of the early success of Te Kooti Rangatahi (Ministry of Justice, Wellington, 2012). Consistent with these initial reports, recent research supports the view that the court is working. For instance, a recent project identified that practical factors, such as the rangatahi simply appearing and engaging with the processes of Te Kooti Rangatahi and the use of tikanga, contributed not only to the court working but, to some extent, to the court’s success (Toki, 2018). Although this research is preliminary, and there is a need for more research in this area, it is promising. It is for this reason that Te Kooti Rangatahi is seen to have proven that criminal courts in Aotearoa New Zealand can successfully apply a bicultural process to the criminal justice system, one that enhances engagement with young people and their families, with an increased level of respect for the legitimacy of the justice system (Dickson, 2011). How Do We Measure the Success of Te Kooti Rangatahi? International Indigenous rights To provide context on how Indigenous rights such as rangatiratanga, or self-determination, are supported to achieve a system that recognises Indigenous culture and language and is, consequently, one Indigenous People have confidence in, it is timely to provide some international context. Although the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) is not incorporated into Aotearoa New Zealand’s domestic legislative framework, from an international Indigenous perspective, the alignment between tikanga concepts, such as rangatiratanga, and these fundamental rights is reassuring. In addition, the judiciary in Aotearoa New Zealand is referring to the UNDRIP,3 and recent policy and reports indicate a greater political willingness to embrace these fundamental rights. As mentioned, Te Kooti Rangatahi utilises a marae, involves the marae community, kaumātua, kuia, and lay advocate, incorporates tikanga Māori and te reo Māori, and validates the mana of the young people and their whānau while still holding them accountable and responsible. This aligns with Article 5 of the UNDRIP: Indigenous Peoples have the right to maintain and strengthen their distinct political, legal, economic, social and cultural institutions, while retaining their rights to participate fully, if they so choose, in the political, economic, social and cultural life of the State.

3 See Takamore v Clarke (2012) NZSC 116, para. 12, reference to article 12(1) per Chief Justice Elias, 35 (Takamore); Proprietors of Wakatū v New Zealand (Attorney-General) (2015) NZSC 13, (2017) NZSC 17, para. 598, reference to article 40 at 657, 668 and 679 (Wakatū).

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The use of tikanga Māori within the procedures in Te Kooti Rangatahi, and the states’ obligation to take effective measures to ensure this right is protected and understood in legal and administrative proceedings, is also consistent with Article 13: 1. Indigenous Peoples have the right to revitalise, use, develop and transmit to future generations their histories, languages, oral traditions, philosophies, writing systems and literatures, and to designate and retain their own names for communities, places and persons. 2. States shall take effective measures to ensure this right is protected and also to ensure that Indigenous Peoples can understand and be understood in political, legal and administrative proceedings, where necessary through the provision of interpretation or by other appropriate means. The success of criminal justice initiatives tends to be measured by recidivism statistics; however, recidivism is a very blunt instrument for measuring success. Policymakers employ these indicators to enable evidence-based reasoning within the jurisdictional establishment of Indigenous courts. Yet evaluations of Indigenous-focused criminal justice programs have found that such programs have little or no effect on outcomes such as recidivism (Beranger, Weatherburn & Moffat, 2010), raising questions about whether these recidivism findings are an accurate reflection of program ineffectiveness or the consequence of how the research was carried out (Lavallee, 2009; Marchetti, 2017). Instead, using measures such as desistance, which focuses on understanding the process underpinning why people change from criminal behaviour to non-criminal behaviour, is considered more suitable to assess recidivism for Indigenous sentencing courts (Marchetti, 2019, p. 152). Although alternative measures, such as desistance, may be helpful, they may not be appropriate in a Kaupapa Māori, or Indigenist, methodology context. In particular, orthodox assessment methodologies typically fail to consider non-tangible benefits such as the return to a tikanga-based process, realisation of a form of self-determination and supporting the offender to learn their language, reconnecting with their identity and becoming a contributing member of the community. A recent project collected data that elicited a wealth of information on how tikanga functions as law and a tool for healing relationships. Te Kooti Rangatahi judges instinctively wove tikanga into the process. By adopting a tikanga Māori perspective, this stepped meaningfully towards remedying the problem of incompatibility with the mainstream courts and the over-representation of Māori in prison. The observations suggested that Te Kooti Rangatahi are now an essential component of the Aotearoa New Zealand juristic landscape. Criticisms of Te Kooti Rangatahi The existing mainstream court system provides challenges for Māori in various ways. First, mainstream litigation cannot resolve certain problems germane to Māori communities; arguably due to the different ‘worldviews’ (Toki, 2018). Second, mainstream litigation can be costly and time-consuming, and Māori feature predominantly

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in the poverty indicators, placing this out of reach for many (Toki, 2018). Third, mainstream courts can be confusing, frustrating and demeaning to Māori litigants as they offer an environment that many Māori consider alien. Finally, the adversarial style of the mainstream courts is inconsistent with tikanga Māori procedures such as kanohi ki te kanohi (face-to-face) korerotia (talking things out), whiriwhiri-a-ropu (group discussion), whaikorero (formal speech making) and whakatatū (agreement). Therefore, any inclusion of tikanga within this system is risky (Toki, 2018). Although well regarded among the legal academic and practitioner communities, the courts are not impervious from criticism. The main issue is that, from a Māori perspective, Te Kooti Rangatahi Court still operates within a Western legal framework (Dickson, 2011). From a critical Indigenous perspective, it could be claimed that these courts preserve the Western legal status quo; they do not deliver true self-determination where Indigenous governance and concepts prevail (Toki, 2018). Instead, Māori worldviews are required to squeeze within the Western legal system where Western legal tenets, such as Crown sovereignty, prevail (Toki, 2018). From this viewpoint, the courts could be seen to be continuing the colonial legacies of the legal system. From this meta-criticism, other criticisms fall, such as the concern that these courts may cherry-pick tikanga Māori concepts or not apply tikanga Māori as it should be applied (Toki, 2018). However, the problem with this concern is that it is a one-dimensional perspective. The Māori legal community recognise that tikanga and a return to tikanga is important. There is widespread consensus among the Māori legal community that, instead of looking to the current system for potential solutions to these problems, Māori need to embrace tikanga as a community problem-solving tool. Therefore, potential solutions to Māori disproportionate offending rates lie not in non-Māori models of criminal justice, nor Westminster-style law reforms and punitive punishment regimes, but in their own culture, language, philosophies and spiritual practices. Therefore, Te Kooti Rangatahi judges considered that an alternative to the Westminster style of adjudication, due to the incompatibility with the Māori world, was required with the steadily increasing incarceration rates for Māori fuelling this consensus. This is why the judges employ tikanga Māori in their judicial processes. The judges recognise that meaningful incorporation of tikanga Māori, as a form of self-determination, would allow Māori to confront injustice, and its consequences, take responsibility and heal the community. Te Kooti Matariki Before providing some conclusions, a brief review of Te Kooti Matariki will offer additional context for using tikanga within our criminal justice system. Te Kooti Matariki is a sentencing-based court for adult offenders that incorporates the local iwi as a support service and provides wrap-around programs for offenders. Completion of these programs is taken into consideration at sentencing. The range of procedures varies according to the level of community intervention and can include declining a process where cultural factors are taken into account at sentencing, and proceeding from sentencing to an adjournment to seek full use of the community agencies as part

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of an agreed program before reappearing for sentencing. It is within this forum that great strides have been taken to meaningfully include a tikanga approach to sentencing (NZ Police v Marino Huatahi Renata Wikaira, 2019). Part One: Conclusion It would be too simplistic to view Te Kooti Rangatahi in isolation and as a standalone solution to the problem of the over-representation of Māori in the criminal justice system. Rather, it is appropriate to consider this justice initiative and this court as part of a multitude of steps required to resolve the issue. In tandem with Te Kooti Rangatahi is Te Kooti Matariki, as initiatives that seek to incorporate tikanga Māori processes within the sentencing stage for offenders. In this way, these courts build upon the efforts of the 1980s and provide a platform for additional steps to be taken. Subsequently, although Te Kooti Rangatahi and Te Kooti Matariki work within the existing legal system as part of the wider movement for self-determination for Māori, they do not hold themselves out as the sole solution to this problem. Efforts to achieve this wider movement of self-determination can occur independently of the courts. The establishment of Te Kooti Rangatahi and Te Kooti Matariki—which work within the Western legal system—is but one step in the right direction.

PART TWO: LEGISLATIVE RECOGNITION—SECTION 27 OF THE SENTENCING ACT 2002 (NZ) Section 27 of the Sentencing Act 2002 (NZ) provides: Offender may request the court to hear person on personal, family, whānau, community, and cultural background of the offender (1) If an offender appears before a court for sentencing, the offender may request the court to hear any person or persons called by the offender to speak on— (a) the personal, family, whānau, community, and cultural background of the offender; (b) the way in which that background may have related to the commission of the offence; (c) any processes that have been tried to resolve, or that are available to resolve, issues relating to the offence, involving the offender and his or her family, whānau, or community and the victim or victims of the offence; (d) how support from the family, whānau, or community may be available to help prevent further offending by the offender; (e) how the offender’s background, or family, whānau, or community support may be relevant in respect of possible sentences.

Justice Joe Williams (2013) noted: Section 27 of the New Zealand Sentencing Act … is rarely used outside the Rangatahi and Matariki Courts … s 27 is clearly aimed at addressing the incarceration asymmetry in the Māori community through culturally specific sentencing to fit the circumstances of the offender … Such reports have the potential to trigger customary processes [and] change

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sentencing practices in respect of Māori. The statistics suggest trying something different on a wider scale cannot possibly do any harm. (p. 29)

Despite this powerful and stirring statement, Māori continue to be over-represented through all stages of the criminal justice system. Within Aotearoa New Zealand’s domestic legislative regime, Section 16 of the Criminal Justice Act 1985 was introduced ‘largely because of the disproportionately high rate of imprisonment of Māori and it was envisaged that the section would address this problem by encouraging the use or the availability of alternatives to imprisonment for Māori offenders’ (O’Driscoll, 2012, p.  325).4 Section 27 was introduced as a replacement to ensure that courts receive information on alternative programs for the rehabilitation of Māori offenders (O’Driscoll, 2012). Despite this, Sections 27, 25 and 8 are still underutilised within the mainstream court system. Research from the Ministry of Justice notes only an inconsequential awareness of Section 27 and reserves only two pages of commentary for that section (O’Driscoll, 2012). Nonetheless, O’Driscoll (2012) acknowledges that if used, Section 27 could enhance both the content and the process of sentencing. In light of the policy reasons underpinning the introduction of Section 27 and the paucity of application, it is timely to consider two approaches to Section 27, one within a mainstream court setting and one within the Matariki Court setting. Sections 7 and 8 of the Sentencing Act 2002 specify the purposes and guiding principles to take into account when determining the appropriate sentence. These include accountability, deterrence, rehabilitation, and the gravity of the offence. Section 8(i) of the Act is informative as it directs a sentencing judge to take into account an offender’s background: [The Court] must take into account the offender’s personal, family, whānau, community, and cultural background in imposing a sentence or other means of dealing with the offender with a partly or wholly rehabilitative purpose.

Section 27 of the Sentencing Act allows the judge to hear from whānau regarding the cultural background of the offender. Although not explicit, this could be by way of a written Cultural Report. What is a Cultural Report? After the passing of the Sentencing Act, Cultural Reports were often presented to the court. This practice declined between 2011 and 2016 but has recently enjoyed

4 Judge O’Driscoll, at p. 325, refers to Justice Smellie in Wells v Police (1987) 2 NZLR 560, who considered the legislative history of section 16 of the Criminal Justice Act 1985. O’Driscoll refers to the Parliamentary Hansard (12 June 1985) 463 NZPD 4759, where Dr Cullen commented on the report of the Statutes Revision Committee: ‘the Committee had made a conscious attempt to recognise in particular the importance of trying to meet the needs of Maori offenders, and more particularly young Maori offenders.’

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a resurgence. Cultural Reports are often useful for the sentencing judge,5 and can result in a reduction in sentence.6 Equally, however, Cultural Reports can have no effect on the sentence either when the judge has considered the report presented to the court and found that it has no bearing on the sentence,7 or when the judge simply does not consider the presented report at all.8 Interestingly, a ground for the court’s failure to consider a Cultural Report has been the lack of nexus between the offender’s background and the nature of the offence (RS (CA21/2014) v R, 2014). This reasoning indicates that if no causal link can be established, the offender’s cultural background cannot be considered as grounds for a reduction in sentence (RS (CA21/2014) v R, 2014). A quick review of comparative jurisdictions on the content, relevance and applicability of a Cultural Report is informative. In light of the growing international jurisprudence on sentencing and Cultural Reports, together with Aotearoa New Zealand's own developing jurisprudence, it would seem appropriate that the establishment of a causal link between cultural background and offending should no longer be a requirement. Further, the intergenerational effects of colonisation need to be understood and tangible consideration given to the unique circumstances of Indigenous offenders.9 R v Ipeelee (2012, para. 60) provides clarity. In Aotearoa New Zealand, there are mixed approaches to the application and consideration of Cultural Reports. Recent cases indicate that a causal connection between the offender’s cultural background and the occurrence of the offence can be established.10 Further, extrapolating out this connection, Justice Whata, in contemplating the full matrix of Section 27, insightfully considers that the systemic deprivation experienced by Māori can be classified as an aggravating factor

5 See R v Alexander (2018) NZHC 1584, paras 7 and 66, per Justice Davidson. See also para. 77, where Davidson notes the significance of a cultural report. 6 See R v Parker (2018) NZHC 2035, para. 22, per Justice Whata. 7 See R v Hone (2018) NZHC 2605, para. 6, where Justice Venning states that section 27 did ‘not provide a mechanism for judges to direct the preparation of cultural reports’. 8 See also RS (CA21/2014) v R (2014) NZCA 484, para. 14, where the court noted, ‘there was no reference to any ethnic or cultural matters that would or should have triggered an exercise of the discretion in s 27(5) on the part of the Judge, of his own volition’. See also R v Taiapa (2018) NZHC 1815, para. 39, per Justice Lang, where although the judge found the report useful, he was not prepared to offer a reduction in sentence based on cultural factors. 9 See R v Ipeelee (2012) SCC 13, 1 S.C.R. 433, paras 30, 95 and 147 for a discussion on the court providing tangible consideration of the Aboriginal heritage when determining sentence. See also para. 82 for the effect and importance to consider intergenerational effects and further that there is no burden on the offender to establish the ‘causal effect between the systemic and background factors and the offence.’ 10 For instance, see R v Heta (2018) NZDC 11085, paras 9–10, where Justice Moala notes that the defendant’s ‘life reflects the significant post-colonial trauma and disruption of the cultural identity experienced by Māori … where alcohol and poverty has resulted in offending of this type.’ See also R v Alexander (2018) NZHC 1584, para. 73, per Justice Davidson, where he notes, ‘Without connection to your whanau, hapu or iwi, you are a “non-person” in Maori epistemology.’

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(Solicitor-General v Heta, 2018, para. 41).11 This creative approach circumnavigates the ‘individualised justice’ approach prevalent in Australia; an approach that requires the ‘court to impose a sentence that is just and appropriate in all the circumstances of the particular case’ (Australian Law Reform Commission, 2006). Adopting this approach, if an offender presents with intergenerational effects (e.g., the effects of colonisation) or systemic deprivation as implicit to their cultural background and the court does not consider a nexus can be established between the offender’s cultural background and offence, then intergenerational effects or systemic deprivation can be submitted as an aggravating factor. What is cultural background? The characteristics of cultural context and concerns are similar across Indigenous Peoples, irrespective of jurisdiction. The issue was described during the Aboriginal Justice Inquiry of Manitoba in Canada: Cultural oppression, social inequality, the loss of self-government and systemic discrimination, which are the legacy of the Canadian government’s treatment of Aboriginal people, are intertwined and interdependent factors, and in very few cases is it possible to draw a simple and direct correlation between any one of them and the events which lead an individual Aboriginal person to commit a crime or to become incarcerated. (The Aboriginal Justice Implementation Commission, 1999, p. 86)

It is clear that a link exists between the social disadvantage of Māori heritage and the conduct giving rise to criminal liability, and it is necessary to consider particular offenders’ personal, family, whānau, community and cultural background (Keil v R, 2017). Despite the provisions of the Sentencing Act that allow for the consideration of cultural background, thereby potentially recognising a pathway for self-determination, this right still lies within a legislative framework of a colonial power where the decision is still discretionary. Part Two: Conclusion Limited to an examination of a key piece of legislation, the Aotearoa New Zealand Sentencing Act, which affords a potential pathway to the amelioration of criminal justice statistics for Māori, this is nonetheless subject to legislative interpretation.

11 See also para. 40, where Justice Whata notes, ‘Loss of land and other tribal resources together with the destruction of traditional social structures, tīkanga, culture and language preceded widescale migration from tribal rohe to urban areas. For every generation since, Māori have been disproportionately represented among the poorest, most illiterate and most criminalised in New Zealand. The entrenched asymmetry of Māori in prisons is only one of many indicators of the systemic nature of this social disadvantage. For ease of reference I will refer to this pervasive and persistent social disadvantage affecting Māori as systemic Māori deprivation.’

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The provisions of the Sentencing Act, as an example of how the mainstream criminal justice system is unable to ameliorate the disproportionate offending rates for Indigenous Peoples in respective jurisdictions, have arguably fuelled the implementation of alternative fora, such as ‘Indigenous’ courts. The use of Indigenous courts represents a new path in Western judicial processes generally. However, the potential they offer to address the over-representation of Māori in prisons, for example, is particularly exciting.

FINAL CONCLUSIONS This chapter asked the question of whether the introduction of a criminal justice system was no more than a tool of colonisation for Indigenous Peoples and whether Indigenous Peoples should seek more meaningful recognition of their rights within the criminal justice system. Alternatively, it considered whether Indigenous Peoples should establish a separate criminal justice system for Indigenous Peoples. To answer this question, the chapter focused on a specific jurisdiction; Aotearoa New Zealand. The call for a separate criminal justice system for Māori is often debated. However, reasons that turn on practicality (Aotearoa is a comparatively small jurisdiction) and resourcing have inevitably stifled the progression of a separate system. In addition, unlike the Navajo Tribal Court system, Aotearoa New Zealand does not have the same tribal sovereignty recognition provision. Subsequently, the nexus between Māori and the criminal justice system and the current initiatives that seek to incorporate tikanga Māori views to achieve a ‘better’ outcome for Māori was examined. Benchmarked against the fundamental rights in the UNDRIP, these courts provide the right for Māori ‘to maintain and strengthen their distinct political, legal, economic, social and cultural institutions, while retaining their rights to participate fully, if they so choose, in the political, economic, social and cultural life of the State’ (Article 5). In addition, the employment of tikanga Māori within the procedures in Te Kooti Rangatahi and the state’s obligation to take effective measures to ensure this right is protected and understood in legal and administrative proceedings is consistent with Article 13. There is no doubt that the establishment of Te Kooti Rangatahi and Te Kooti Matariki is an exciting and novel attempt to address the over-representation of Māori in criminal justice statistics. Te Kooti Rangatahi and Te Kooti Matariki offer the ability for Māori to reconnect with their identity and choose their own regime, thereby exercising an internal form of self-determination within their marae surrounded by their elders. Although these courts’ composition, operation and reach may differ slightly, the objective remains the same: to reduce reoffending rates, reconnect the offender with their community, achieve harmony and heal. It will be interesting to review the new initiative of Te Ao Mārama against these achievements.

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REFERENCES Ara Poutama Aotearoa (Department of Corrections). (2007). Re-imprisonment rates by ethnicity. Retrieved on 24 October 2023 from https://​www​.corrections​.govt​.nz/​resources/​ research/​reconviction​-patterns​-of​-released​-prisoners​-a​-48​-months​-follow​-up​-analysis/​re​ -imprisonment​-rates​-by​-ethnicity. Ara Poutama Aotearoa (Department of Corrections). (2020). Retrieved on 24 October 2023 from https://​www​.corrections​.govt​.nz/​resources/​statistics/​quarterly​_prison​_statistics/​ prison​_stats​_march​_2020. Australian Law Reform Commission. (2006). Same crime, same time: Sentencing of federal offenders (Report No. 103). Retrieved on 24 October 2023 from http://​www​.austlii​.edu​.au/​ au/​other/​lawreform/​ALRC/​2006/​103​.html. Beranger, B., Weatherburn, D. & Moffatt, S. (2010). Reducing Indigenous contact with the court system. NSW Bureau of Crime Statistics and Research: Crime and Justice Statistics Bureau Brief, 54, 1–4. Children’s Commissioner (2016). Population, ages and ethnicities of children. Wellington, New Zealand: Children’s Commissioner. Retrieved on 24 October 2023 from https://​www​ .stats​.govt​.nz/​topics/​children; Social Report 2016, https://​socialreport​.msd​.govt​.nz/​people​ .html. Dickson, M. (2011). The Rangatahi court. Waikato Law Review, 19, 86–107. District Court of New Zealand. (2020). Transformative Te Ao Mārama model announced for District Court [Press release], 11 November. Retrieved on 24 October 2023 from https://​www​.districtcourts​.govt​.nz/​media​-information/​media​-releases/​11​-november​-2020​ -transformative​-te​-ao​-marama​-model​-announced​-for​-district​-court/​. Independent Police Conduct Authority. (2022). Joint inquiry by the Independent Police Conduct Authority and the Privacy Commissioner into Police conduct when photographing members of the public. Retrieved on 24 October 2023 from https://​www​.privacy​.org​.nz/​ assets/​New​-order/​Resources​-/​Publications/​Commissioner​-inquiries/​8​-SEPTEMBER​-2022​ -IPCA​-AND​-OPC​-Joint​-Inquiry​-int