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Should

we

have

a

universal

concept

of

'indigenous Ethnicity and essentialism

peoples' in the twenty-first

rights'? century

Many, if not most anthropologists, myself included, have spent our professional lives working with people whose BOWEN traditions, language, or way of life differ from people in John R. Bowen is the power. We sometimes use the phrase 'indigenous' to Dunbar-VanCleve refer collectively to such people and to contrast them to Professor of Arts and the groups who dominate in terms of politics or ecoSciences and Chairof the nomics. The term 'indigenous' has also become part of Program in Social Thought and Analysis at Washington legal discourse, as coalitions working at the United Nations and elsewhere have made 'indigenous peoples' Universityin St. Louis. His most recent book (with rights' a part of international customary law. I wish to examine here the argument that the most Roger Petersen) is Critical comparisonsin politics and appropriate legal and (more broadly) normative concept culture(CambridgeUP). to characterize struggles for greater autonomy within He is presently completing nation-states is that certain rights accrue to all, and other 'Entangledcommands: rights accrue only to those peoples who are 'indigenous.' Islam, adat,and equality in I underscore that those who make this argument intend the Indonesianlegal field'. His email is: for the idea of 'indigenous peoples' rights' to have unijbowen@artsci.wustl.edu. versal applicability and legal force. I focus on the relationship between the idea of 'indigenous' as it appears in 1.More France recently has current legal and political discourse about the rights of been target criticism not the of for with European complying the peoples, and the many local ideas of 'indigenousness' onHuman when Convention Rights that one finds used in different parts of the world. Does condemnedholdingman for a 8 without trial afair (Lib?ration making universal claims about rights that accrue only to November 1999). 'the indigenous' have different consequences in different 2.A 1968 broughtthe case to Court European ofHuman Rights places? Is this universal valorization of territorial preceresidents byFrench-speaking ofthe dence required to achieve certain ends, or can ideas of of part Dutch-speaking Belgium underscores points. plain- self-governance and equality achieve them as well? In both The tiffs the cited European Convention the end, I argue for a two-stage framework combining a onHuman inarguing the that Rights broader universal notion of group-differentiated rights state failed provide to French-lanbut on schools, lost grounds with multiple, culturally-specific guage local concepts of that Convention not the does guarantee and does people, place, and state. linguistic continuity not the to positive require state take to (see steps preserve languages dis- I. 'Indigenous peoples' and collective rights cussion Brownlie in 1988). 3.Childs Delgado-P. and (1999), Current discussions of 'indigenous peoples' take place ina strongly-worded to response against the background of three conceptual frameworks remarksAndr? B?teille by sceptical that emerged after World War II: human rights, collective that (1998), correctly emphasize are indigenous themselves peoples rights, and the rights of aboriginal peoples. ofthe conceptions indigecreating Most discussions of rights in the first three decades nous. isevident what As from folI lows in after World War II were focused on individuals - in part with below,agree B?teille hisdistinctions the between history because talk of minorities and ethnic groups had been tarofthe and on Americas Australia, the hand, Asia, the and on other; nished by Nazi ideology. The 1948 Universal Declaration one I would Childs and however, push of Human Rights and the two International Covenants of in even Delgado-P. furthertheir on right emphasisthe ofindigenous 1966 (one on Economic, Social, and Cultural Rights, the and to themselves, ask other on Civil and Political Rights) list the rights of indigroups define different networks whether regional ofnative cannot formulate viduals vis-?-vis states. They say little about states' posipeoples distinctive of ideas tive obligations. Current debates within this conceptual culturally - orother 'indigenousness' similar framework concern the legitimacy of religious or other should concepts concepts other to more cultural norms as sources of individual rights or limits on prove fitting them. 4.The ofthe1957 title ILO of economic as well as political the concerning rights claims, questions report, Convention the and protection integration of rights, and claims that the politics of human rights pits the and tribal indigenous other and West against Asia and Africa. ' semi-tribal inindepopulations the countries, Arguments for collective rights (the second framepresents pendent ofthe major assumptions period: work) usually begin by pointing out two major limitathat indigenous were peoples primations of a solely individual-rights approach, namely, that that were yet rily'tribal'; they not into larger wellintegrated the certain rights, such as the right to perpetuate a language but be; that society should and these or occupy a territory, only make sense when thought out for respective were matters the indeto up. countriestake Bythe in terms of a group, and, secondly, that human rights pendent JOHN R. 12

approaches restrain states but do not compel them to take positive action to guarantee real social or cultural equality.2 In contrast to the human rights focus on Asian, African, and Middle Eastern societies, collective rights theoretical literature has dealt primarily with North America and Europe. Theorists in Canada and the U.S. (e.g. Will Kymlicka (1995), Charles Taylor (1994), Michael Walzer (1997)) focus on problems of the political representation of ethnic groups and the degree of toleration that states ought to afford long-standing societies existing within the boundaries of the state, with Native Americans and small religious groups such as the Amish as prime examples. Many European writers, by contrast (e.g. Bikhu Parekh (1995), Norbert Rouland (1996), Michel Wieviorka (1997)), focus on the rights of 'immigrants', and in particular on the status to be accorded Islamic social norms and rules. Current debates within this framework concern the sort of 'external protections' (self-governance, specific economic rights, language protection) necessary to ensure real equality, and the extent to which one ought to permit social norms that would not be permitted in the wider society - for example, those which discriminate against women - to be enforced within a minority group. Proponents of the rights of indigenous peoples (the third conceptual framework) take great pains to differentiate their claims from those that can be made for all minorities, arguing that native peoples have a special cultural and historical tie to their territory and therefore special claims to self-determination within that territory (Cortez 1993).3 Discussions of indigenous peoples' rights arose in the Americas in the context of European invasions and colonization (when the Spanish and French cognates of 'indigenous' were coined), and have occupied an important place in international forums since the 1940s, when the International Labour Organization studied problems faced by 'indigenous and other tribal' societies in South America (Anaya 1996: 958). An early emphasis on problems of integrating indigenous American peoples into dominant societies was, by the 1970s, replaced by a call to take action that would allow them, and other, similar societies elsewhere, to maintain cultural and economic difference.4 A 1994 U.N. Draft Declaration on the Rights of Indigenous Peoples is one of the many conventions and declarations that have attempted to proclaim a universal set of norms and rights regarding 'indigenous peoples', and that have led the legal scholar James Anaya (1996:57) to proclaim the emergence of a new 'international law of indigenous peoples'.5 The emergence of these international norms, claimed to have universal applicability, introduces a specific temporal element into rights discourse. Whereas claims about collective rights can be, and often are, based on arguments that real equality requires treating some groups differently to others (and can apply to a variety of types of groups), this new set of claims rests on a

ANTHROPOLOGY TODAY Vol 16 No 4, August 2000

assimilation developand 1970s, different argument, namely, that certain rights adhere to ment nolonger of were goals (indrds/nas), a. [f. late L. inai^?[?igenOUS groups that were the first to settle a particular territory. It but the of a reform, rather source the %tn-us boni in a country, native J. indigen-a Their relationship is this priority of residence that justifies creating a set of to problem. closer : see Indigene) + -ous.] - their dative their environment 'sylvan claims about indigenous peoples that are distinct from land or region ; culture' in 1, Born or produced naturally in a (quotedTennant to (the soil, region, - both indigenous claims made about minorities or about peoples subject to 1994:17) put peonative or belonging naturally in and them of aboriginal inhabitants or ples danger gave the discrimination or oppression. etc). (Used primarily of potentialredeeming humanity natural products.) from high its modernist The sins. . 1646SirT. Browne Pseud. Ep. vi. x. 325Although.. there of critiquedevelopmental modernity II. Stretching the category 5 serving under the Spaniard,yet s bee.? warme of NegroesfromAfrica, .and are not was coupled acritique soon to of indiceAmerican 'tribes' and Aboriginal Australians have they ail transported Ver? political modernity the through nativesof America. 1697Phil. Trans. XIX. or "nous proper served as prototypes for thinking about 'indigenous peoactivitiesindigenous of was people's Creature formerlyCommonwith usiti Ireland; ?07This all met In1971 U.N. organizations. the Did au IndigenousAnimal .. universallyEn*. with in 1S8 ples'. In the Americas, the long temporal gap between Economic Social and Council