Published online by Cambridge University Press: 27 February 2017
Over a very short period, the few decades since the early 1970s, “indigenous peoples” has been transformed from a prosaic description without much significance in international law and politics, into a concept with considerable power as a basis for group mobilization, international standard setting, transnational networks and programmatic activity of intergovernmental and nongovernmental organizations.
1 For overviews, see, e.g., Douglas, Sanders, The Re-Emergence of Indigenous Questions in International Law , 1 Can. Hum. Rts. Y.B. 3 (1983)Google Scholar; Chris, Tennant, Indigenous Peoples, International Institutions, and the International Legal Literature from 1945–1993 , 16 Hum. Rts. Q. 1 (1994)Google Scholar; and James Anaya, S., Indigenous Peoples in International Law (1996)Google Scholar. The history of international activity involving or relating to indigenous peoples is much longer, encompassing, inter alia, bilateral diplomacy by indigenous peoples, as well as attempts to petition and appear at the League of Nations, transnational operations of church groups and NGOs such as the Aborigines Protection Society and the Anti-Slavery Society in the 19th century, and the activities of the International Labour Organization from the 1920s onward.
2 For differing views on the adequacy of state-created aboriginal institutions to represent indigenous people in Australia, see Mick, Dodson, Towards the Exercise of Indigenous Rights: Policy, Power, and Self-Determination , Race & Class, Apr.-June 1994, at 65 Google Scholar; and Paul, Coe, ATSIC: Self-Determination or Otherwise , id. at 35 Google Scholar.
3 Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978).
4 Cayuga Indians (Gr. Brit. v. U.S.), 6 R.I.A.A. 173 (1926).
5 U.S. Bureau of Indian Affairs, Branch of Acknowledgment and Research, Proposed Finding for Federal Acknowledgment of the Mash-she-pe-nash-she-wish Indian Tribe (visited Feb. 23, 1998) (http://www.doi.gov/bia/matchsum.html).
6 UN Hum. Rts. Comm., Communication No. 205/1986, Mikmaq Tribal Society v. Canada, UN Doc. CCPR/C/43/D/205/1986 (1991).
7 Sarah, Laird, Cunningham, A. B. & Estherine, Lisinge, Forests, Drugs, and Benefit Sharing: Putting the Formula to the Test—The Cameroon Case qfAncistrocladus korupensis, in People, Plants, and Justice (Charles, Zerner ed., forthcoming)Google Scholar.
8 Jesse, Ribot, Rebellion, Representation and Enfranchisement in the Forest Villages of Makacoulibantang, Eastern Senegal Google Scholar, in id.
9 See infra p. 420 and pp. 441–45.
10 Report of the Second Workshop on a Permanent Forum for Indigenous People within the United Nations System, UN Doc. E/CN.4/Sub.2/1998/ll (1997).
11 See the thoughtful discussion in Yash, Ghai, Human Rights and Governance: The Asia Debate , 14 Austl. Y.B. Int’l L. 1 (1994)Google Scholar.
12 A Member of the Tanzanian Parliament, Moringe Parkipuny, made two statements entitled “The Indigenous Peoples Rights Question in Africa” at the UN Sub-Commission Working Group on indigenous populations in 1989 and 1991 (see International Work Group for Indigenous Affairs [IWGIA], Newsletter, No. 59, 1989, at 92–94, and id., Sept./Oct. 1991, at 48), and an increasing number of groups from Africa have attended subsequent meetings of the working group. Organizations such as IWGIA have assisted such involvement. See generally “ . . . Never Drink from the Same Cup”: Proceedings of the Conference on Indigenous Peoples in Africa (Copenhagen, Hanne Veber, Jens Dahl, Fiona Wilson & Espen Waehle eds., 1993). Ken Saro Wiwa was one of the most prominent African participants in the international indigenous peoples’ movement; his writings include Genocide in Nigeria: The Ogoni Tragedy (Port Harcourt, 1992), and collections of short essays such as Nigeria: The Brink of Disaster (Port Harcourt, 1991). He was a vice president of the Netherlands-based Unrepresented Nations and Peoples Organization. He was executed, with other Ogoni, by the Nigerian government in 1995. In a solemn session that year at the UN Commission on Human Rights Inter-Sessional Working Group on the draft declaration on the rights of indigenous peoples, “the Chairperson-Rapporteur, at the request of many governmental and indigenous delegations, paid tribute to the Nigerian writer and human rights activist, Mr Ken Saro Wiwa, who had given his life for the cause of human rights.” Report of the Working Group Established in accordance with Commission on Human Rights resolution 1995/32 of 3 March 1995, 1st Session, UN Doc. E/CN.4/1996/84, para. 17.
13 It may be indicative of the Nigerian government’s sensitivity to the issue that Nigeria was the only sub-Saharan state not then a member of the Commission on Human Rights to have chosen to participate in both the first and second sessions of the intersessional working group. For an example of express governmental concern, see the comment of Niger on a UN report: “the absence of a definition of ‘indigenous people’ invited subjective interpretations, which poses dangers for those emerging nation-States in Africa that face recurrent tribal conflicts.” Erica-Irene Daes, Protection of the Heritage of indigenous people: Final report, UN Doc. E/CN.4/Sub.2/1995/26, para. 6.
14 For example, the Pacific-Asia Council of Indigenous Peoples, which has connections with the pioneering World Council of Indigenous Peoples, and the Asia Indigenous Peoples Pact (AIPP), established in the early 1990s and active as an international network. In 1996 the primary membership of the AIPP numbered 18 organizations, including the Naga Peoples Movement for Human Rights, BIRSA (Ranchi, India), Nepal Federation of Nationalities Federal Council, Chittagong Hill Tracts Peoples Council, Inter Mountain Peoples Education and Culture in Thailand Association, Partners of Community Organization (PACOS, Sabah), Arakhan Human Rights Centre, Kachin Land Foundation, Cordillera Peoples’ Alliance, National Federation of Indigenous Peoples of the Philippines (KAMP), Lumad Mindanaw (Mindanao), Homeland Mission 1950 Maluku (Amsterdam), Alliance of Taiwan Aborigines, Adivasi Solidarity (Bombay) and Centre for Orang Asli Concerns (Petalingjaya).
15 See Indigenous Peoples of Asia, esp. chs. 1–4 (Barnes, R. H., Andrew, Gray & Benedict, Kingsbury eds., 1995)Google Scholar [hereinafter Peoples of Asia].
16 Reprinted as Declaration of the Asian Delegation, in IWGIA, Newsletter, Sept./Oct. 1991, at 40.
17 Consideration of a Draft United Nations Declaration on the Rights of Indigenous Peoples, UN Doc. E/CN.4/WG.15/2 (1995) [hereinafter PRC Consideration]. In this and other statements, the PRC government chastises the UN Secretariat for inaccuracy:
In the materials it prepared for the World Conference on Human Rights, the [UN] Centre for Human Rights presumptuously categorized ordinary minority nationalities in many Asian countries as “indigenous peoples” and refused, despite collective and individual clarifications from the Asian countries, to rectify its mistake. This example amply demonstrates the necessity of an established definition of an indigenous people.
18 José Martínez Cobo, Study of the Problem of Discrimination against indigenous populations, UN Doc. E/CN.4/Sub.2/1986/7/Add.4, paras. 379–80.
19 Article 1(1) of the Convention concerning Indigenous and Tribal Peoples in Independent Countries stipulates that the Convention applies to:
(a) tribal peoples in independent countries whose social, cultural and economic conditions distinguish them from other sections of the national community, and whose status is regulated wholly or partially by their own customs or traditions or by special laws or regulations;
(b) peoples in independent countries who are regarded as indigenous on account of their descent from the populations which inhabited the country, or a geographical region to which the country belongs, at the time of conquest or colonisation or the establishment of present state boundaries and who, irrespective of their legal status, retain some or all of their own social, economic, cultural and political institutions.
ILO Convention No. 169, June 27, 1989, 28 ILM 1382, 1384–85 (1989).
20 The World Bank Operational Directive 4.20 states:
The terms “indigenous peoples,” “indigenous ethnic minorities,” “tribal groups,” and “scheduled tribes” describe social groups with a social and cultural identity distinct from the dominant society that makes them vulnerable to being disadvantaged in the development process. For the purposes of this directive, “indigenous peoples” is the term that will be used to refer to these groups.
In providing more details to operations staff about groups to which the policy applies, the operational directive states:
Because of the varied and changing contexts in which indigenous peoples are found, no single definition can capture their diversity. Indigenous people are commonly among the poorest segments of a population. They engage in economic activities that range from shifting agriculture in or near forests to wage labor or even small-scale market-oriented activities. Indigenous peoples can be identified in particular geographical areas by the presence in varying degrees of the following characteristics:
(a) a close attachment to ancestral territories and to the natural resources in these areas;
(b) self-identification and identification by others as members of a distinct cultural group;
(c) an indigenous language, often different from the national language;
(d) presence of customary social and political institutions; and
(e) primarily subsistence-oriented production.
Task managers (TMs) must exercise judgment in determining the populations to which this directive applies and should make use of specialized anthropological and sociological experts throughout the project cycle.
Operational Directive 4.20, reprinted in IWGIA, Newsletter, Nov./Dec. 1991, at 19. This operational directive is at present being considered for revision under a reorganization of governance instruments within the Bank.
21 See generally Douglas, Sanders, The Formation of the World Council of Indigenous Peoples (Copenhagen, 1977)Google Scholar.
22 IWGIA, Newsletter, June 1981, at 5.
23 These commonalities result from, e.g., the ubiquity of state interests in economic modernization and exploitation of resources, often in response to global demands for such commodities as timber, electricity, copper and gold; the transnational operation and global technologies of industries such as mining, nuclear power, large dams, tropical forestry and oil recovery; similarities among modern monetarized economies, and their connections through markets, brand names and tastes fostered by advertising; shared social technologies for the organization of important sectors from educational institutions and censuses to banking and insurance; and the global communications that simultaneously facilitate transnational connections of markets and networks of indigenous peoples.
24 The Concise Oxford Dictionary 692 (9th ed. 1995), defines “indigenous” as “1. a (esp. of flora or fauna) originating naturally in a region b (of people) born in a region 2. (foil, by to) belonging naturally to a place.”
25 See Sanders, supra note 21, at 12.
26 World Council of Indigenous Peoples, Draft Covenant (mimeo 1984).
We the Indigenous Peoples of the world, united in this corner of our Mother Earth in a great assembly of men of wisdom, declare to all nations: We glory in our proud past: when the earth was our nurturing mother, when the night sky formed our common roof, when Sun and Moon were our parents, when all were brothers and sisters, when our great civilizations grew under the sun, when our chiefs and elders were great leaders, when justice ruled the law and its execution. Then other peoples arrived: thirsting for blood, for gold, for land and all its wealth, carrying the cross and the sword, one in each hand, without knowing or waiting to learn the ways of our worlds, they considered us to be lower than animals, they stole our lands from us and took us from our lands, they made slaves of the Sons of the sun. However, they have never been able to eliminate us, nor to erase our memories of what we were, because we are the culture of the earth and the sky, we are of ancient descent and we are millions, and although our whole universe may be ravaged, our people will live on for longer even than the kingdom of death . . . . We vow to control again our own destiny and recover our complete humanity and pride in being Indigenous People.
Sanders, supra note 21, at 17.
30 See Memorandum from the Minister of Foreign Affairs, P. H. Kooijmans, and the Minister of Development Cooperation, J. P. Pronk, to the Netherlands Parliament, Indigenous Peoples in the Netherlands Foreign Policy and Development Cooperation (Mar. 29, 1993) (Eng. trans., mimeo).
31 Report of the Second Session of the Working Group Established in accordance with Commission on Human Rights resolution 1995/32 of 3 March 1995, UN Doc. E/CN.4/1997/102, paras. 107–13 (1996) thereinafter WG Second Report]. For comments by the U.S. government, see UN Doc. E/CN.4/1995/WG.15/ 2/Add.1 (1995).
32 See, e.g., the decision of the French Conseil constitutionnel holding that a statute referring to the Corsican people is unconstitutional under Article 2 of the 1958 Constitution. Law no. 91–428 of May 13, 1991, J.O., May 14, 1991, p. 6318 (portant statut de la collectivité territoriale de Corse); Cons, const. 1991, Dec. No. 91–290.
33 WG Second Report, supra note 31, paras. 132 (Brazil), 134 (Malaysia), 137 (Ecuador). See also id., paras. 133 (Australia), 142 (Japan).
34 Id., paras. 233 (Brazil), 230 (Malaysia); see also id., para. 239 (Japan).
35 On parallel legislation concerning individualization of indigenous peoples’ land holdings in the United States and several South American states from the 1860s to the 1880s, see Sanders, supra note 1. For a comparison between post-1945 evolution of U.S. government policy concerning federal relations with Indian groups in Alaska and Swedish state policy in relation to Sami, showing convergence in the early 1970s and divergence in the 1980s, see Fae L. Kormso, Empowerment or Termination: Native Resource Rights in Alaska and Swedish Lapland (1992) (unpublished Ph.D. dissertation, University of New Mexico).
36 On the human rights debate, see the literature and perspectives considered in Ghai, supra note 11; and Daniel, Bell, The East Asian Challenge to Human Rights: Reflections on an East-West Dialogue , 18 Hum. Rts. Q. 641 (1996)Google Scholar.
37 WG Second Report, supra note 31, para. 187.
39 E.g., John, Rawls, The Law of Peoples , in On Human Rights 41 (Stephen, Shute & Susan, Hurley eds., 1993)Google Scholar. For the concept of “the people” in a theoretical explanation of written constitutions as commitments operating over many generations, see Jed, Rubenfeld, Reading the Constitution as Spoken , 104 Yale L.J. 1119, 1143–69 (1995)Google Scholar. On the history of “the people” as a concept of U.S. constitutionalism, see Edmund Morgan, Inventing the People: The Rise of Popular Sovereignty in England and America (1988).
40 For a variety of approaches, see, e.g., James, Tully, Strange Multiplicity: Constitutionalism in an Age of Diversity (1995)Google Scholar; Will, Kymlicka, Multicultural Citizenship: A Liberal Theory of Minority Rights (1995)Google Scholar; and Andrew, Sharpe, Justice and the Maori: The Philosophy and Practice of Maori Claims in New Zealand Since the 1980s (2d ed. 1997)Google Scholar.
41 Benedict, Kingsbury, Whose International Law? Sovereignty and Non-State Groups , 88 ASIL Proc 1 (1994)Google Scholar.
42 The general association between the Afro-Asian decolonization movement and contemporary UN activity concerning indigenous peoples has become more attenuated, but the anticolonial and antidiscrimination elements of the indigenous peoples’ program have continued to find some resonance with governments of states active in the decolonization movement. For example, the Zambian government stated in 1994 that it
Welcomes the establishment of a permanent forum in the United Nations for indigenous peoples. At the international level Zambia has traditionally been a strong supporter of the rights of indigenous peoples. This is evidenced by action taken in respect of the liberation of southern Africa and the eradication of apartheid in South Africa.
UN Doc. E/CN.4/Sub.2/AC.4/1995/7/Add.1. Whether this support will endure if it appears that the concept of “indigenous peoples” is being used to confer international legitimacy on groups and activities within such states is another matter.
43 E.g., British designation of scheduled tribes and scheduled areas in India, see, e.g., Christoph, Von Fürer-Haimendorf, Tribes of India: The Struggle for Survival (1982)Google Scholar, scheduled areas in Burma, and the frontier districts subject to the Frontier Crimes Regulations in what is now Pakistan.
44 See, e.g., Verrier, Elwin, India’s North-East Frontier in the Nineteenth Century (1959)Google Scholar; Verrier, Elwin, A Philosophy for Nefa (Shillong, 2d ed. 1959)Google Scholar; and Peter, Robb, The Colonial State and Constructions of Indian Identity: An Example on the Northeast Frontier in the 1880’s , 31 Mod. Asian Stud. 245 (1997)Google Scholar.
45 Formosa, Bureau of Aboriginal Affairs, Report on the Control of the Aborigines in Formosa (1911).
47 Benedict, Anderson, Introduction to Southeast Asian Tribal Groups and Ethnic Minorities 1 (Cambridge, Mass., 1987)Google Scholar. This paragraph and the next focus on Anderson’s account, but there is a considerable corpus of literature on histories of colonialism developing similar themes.
48 Id. at 10–11.
49 Id. at 1–11.
50 See, e.g., Richard, Dorall, The Dialectic of Development: Tribal Responses to Development Capital in the Cordillera Central, Northern Luzon, Philippines , in Tribal Peoples and Development in Southeast Asia 37 (Kuala, Lumpur, Lim, Teck Ghee & Alberto, G. Gomes eds., 1990)Google Scholar [hereinafter Tribal Peoples].
51 For a historical survey, see Maria, Elena R. Regpala, Resistance in the Cordillera: A Philippine Tribal People’s Historical Response to Invasion and Change Imposed from Outside , in id. at 112 Google Scholar.
52 The Philippine Mining Act of 1995, the 1996 Implementing Rules and Regulations of the Philippine Mining Act, the Financial or Technical Assistance Agreement made with Western Mining, and other instruments were challenged on constitutional and other grounds in judicial proceedings launched in the Philippines Supreme Court in 1996–1997.
53 See Owen, Lynch & Kirk, Talbott, Balancing Acts: Community Based Forest Management and National Law in Asia and the Pacific (Washington, 1995)Google Scholar; David, Daoas, The Rights of Cultural Communities in the Philippines, in”. . . Vines That Won’t Bind . . .”: Indigenous Peoples in Asia 97 (Copenhagen, Christian, Erni ed., 1997)Google Scholar; WG Second Report, supra note 31, para. 314.
54 Article 27 of the Covenant, Dec. 16, 1966, 999 UNTS 171, refers to ethnic, religious and linguistic minorities. The Japanese government stated in 1980 that “minorities of the kind mentioned in the covenant do not exist in Japan.” UN Doc. ICCPR/C/10/Add.1 (1980). In 1988 the government adopted a delicate formulation stating with respect to “the people of the Ainu” that “it is recognized that these people preserve their own religion and maintain their own culture.” UN Doc. ICCPR/C/42/Add.4 (1988). See infra p. 438.
55 Const. Art. 160(2).
56 For a brief overview, see Sothi, Rachagan, Constitutional and Statutory Provisions Governing the Orang Asli , in Tribal Peoples, supra note 50, at 101 Google Scholar. See also Iskandar, Carey, Orang Asli: The Aboriginal Tribes of Peninsular Malaysia (1976)Google Scholar. The Malaysian Constitution, ninth schedule, allocates “welfare of the aborigines” to the federal power, whereas “native law and custom” is a matter of state power for Sabah and Sarawak.
57 Several works of Colin Nicholas address this issue, e.g., In the Name of the Semai? The State and Semai Society in Peninsular Malaysia, in Tribal Peoples, supra note 50, at 68.
58 Const. Art. 161A.
59 See, e.g., remarks by a leader of this organization, Anderson, Muutang Urud, Statement to the United Nations General Assembly, 10 December 1992 , in Voice of Indigenous Peoples: Native People Address the United Nations 103 (Santa Fe, N.M., 1994)Google Scholar. For a summary by a community organizer from PACOS in Sabah, see Jannie, Lasimbang, Juridical Rights of Indigenous Peoples and Their Relations to the State and Non-Indigenous Peoples: The Case of Sabah , in Vines That Wont Bind, supra note 53, at 109 Google Scholar.
60 Victor, King, Indigenous Peoples and Land Rights in Sarawak, Malaysia: To Be or not To Be a Bumiputra , in Peoples of Asia, supra note 15, at 289 Google Scholar.
61 Some implications of population movements are discussed in Cornelia Ann, Kammerer, Territorial Imperatives: Akha Ethnic Identity and Thailand’s National Integration , in Ethnicities and Nations 274 (Remo, Guidieri, Francesco, Pellizzi & Stanley, Tambiah eds., 1988)Google Scholar.
62 See the powerful 1973 statement against this government practice by King Bhumibol, quoted in Lynch & Talbott, supra note 53, at iii.
63 Chayan, Vaddhanuphuti, The Present Situation of Indigenous Peoples in Thailand , in Vines That Won’t Bind, supra note 53, at 79, 83 Google Scholar.
64 Thailand government statement, Hill-Tribe Welfare and Development, UN Doc. E/CN.4/AC.2/1992/4.
65 Taipower’s 1997 proposal to export the waste to North Korea, a country in desperate need of revenue but unlikely adequately to manage such waste, led to strong protests in South Korea and from international NGOs, and caused disquiet among Yami and other campaigning groups in Taiwan. A further contentious issue for Yami arises from plans to turn a cleaned-up Lanyu into a national park, threatening to limit Yami economic opportunities and to promote a commodity-oriented tourist culture.
66 See, e.g., Alliance of Taiwan Aborigines, Chiang, I & Lava, Kau, Report on the Human Rights Situation of Taiwan’s Aborigines , in Peoples of Asia, supra note 15, at 357 Google Scholar.
67 Also increasingly active are the Union of Native Taiwanese Villages, founded in 1994, and other social movements.
68 Statement by the Delegation of Taiwan Aborigines, United Nations Working Group on indigenous populations, 11th Sess. (July 1993) (mimeo, UN files). Although the Romanization differs, the Chinese characters in yuan-chu min and yuanzu min are identical.
69 Peace Agreement between the Government of Bangladesh National Committee on Chittagong Hill Tracts Affairs and the Parhatya Chattagram Jana Sanghati [Samhati] Samiti, Dec. 2, 1997, Daily Star (Dhaka), Dec. 3,1997 (Eng. trans.). On the conflict, see Chittagong Hill Tracts Commission [a nongovernmental outside group], Life Is Not Ours: Land and Human Rights in The Chittagong Hill Tracts, Bangladesh (London, 1991). The Peace Agreement is opposed by the main opposition Bangladesh Nationalist Party.
70 Willem, Van Schendel, The Invention of the “Jummas”: State Formation and Ethnicity in Southeastern Bangladesh , in Peoples of Asia, supra note 15, at 121, 139 Google Scholar. Van Schendel notes, at 139: “It is remarkable that this term was adopted at a time when many hill people had been forced to give up swidden cultivation.”
71 Sanchay, Chakma, The Legal Rights Situation of the Indigenous Peoples in Bangladesh , in Vines That Wont Bind, supra note 53, at 151 Google Scholar. Chakma, a student in Dhaka, is General Secretary of the Greater Chittagong Hill Tracts Hill Students’ Council.
72 U Win Mra, Statement on Behalf of the Delegation of Myanmar to the United Nations Working Group on Indigenous Populations (July 31, 1991) (UN files, mimeo). Members of Karen and other groups in Burma have participated in UN for a and other international activities relating to indigenous peoples. See, e.g., the statement by a Chin student, Zo, Turn Hmung, The Juridical Rights of the Indigenous Peoples in Burma , in Vines That Won’t Bind, supra note 53, at 89 Google Scholar. However, this participation has been modest in relation to the numerical size of such groups and the scale of the issues involved. The impact in Burma of the international concept of “indigenous peoples” does not appear to have been great. On the conflicts in Burma, see Burma: The Challenge of Change In A Divided Society (Peter, Carey ed., 1997)Google Scholar.
73 See, e.g., Lakshmi, Puri, Statement on Behalf of the Delegation of India to the United Nations Working Group on indigenous populations (Aug. 12, 1983)Google Scholar (UN files, mimeo).
74 Alternatively, the Bangladesh government has argued that all Bangladeshis are indigenous people who existed in the territory prior to British colonization and are now, fortunately, liberated.
75 PRC Consideration, supra note 17.
76 Id.; see also WG Second Report, supra note 31, para. 106; Report of the Third Session of the Working Group Established in accordance with Commission on Human Rights resolution 1995/32 of 3 March 1995, UN Doc. E/CN.4/1998/106, para. 37 (1997).
77 Government of India, Observations, UN Doc. E/CN.4/Sub.2/1984/2/Add.2; Government of Myanmar, Observations, UN Doc. E/CN.4/Sub.2/1989/33/Add.1. For Bangladesh, see Report of the Working Group on indigenous populations on its fourteenth session, UN Doc. E/CN.4/Sub.2/1996/21, para. 34.
78 Belgian Government Information Center, The Sacred Mission of Civilization: To Which Peoples Should the Benefits Be Extended? The Belgian Thesis (1953).
80 Prabhu, Dayal, Statement on Behalf of the Delegation of India to the United Nations Working Group on indigenous populations (July 31, 1991)Google Scholar (UN files, mimeo).
81 Const. Arts. 244, 342; and numerous presidential designating orders, e.g., Constitution (Scheduled Tribes) Order 1950. On some of the complexities of these categories in practice, see Marc, Galanter, Group Membership and Group Preferences in India , in Law and Society in Modern India 108 (1989)Google Scholar.
The constitutional classifications of “scheduled tribes” and “tribal areas” are utilized explicitly by the World Bank Group in the International Development Association-Government of India Development Credit Agreement, Dec. 22, 1994, for the India: Andhra Pradesh First Referral Health System Project (C2663), Art. I & schedule 2, pt. C. They are utilized implicitly by the same parties in requirements that the borrower ensure implementation of a “Tribal Development Plan” (this being a mutually acceptable means to satisfy the World Bank’s internal policy requirement for an Indigenous Peoples Development Plan) in the Agreement, Mar. 9, 1994, for the India: Andhra Pradesh Forestry Project (C2573), schedule 2, pt. B; and the Agreement, Aug. 12, 1993, for the India: Rubber Project (C2409), Art. III §3.08.
82 For consideration of some of the consequences of this process, see Cultural Encounters on China’s Ethnic Frontiers (Stevan Harrell ed., 1994).
84 See Horowitz, supra note 46, at 201–16.
85 E.g, Muriwhenua Fisheries, Wai-22 (Waitangi Tribunal, NZ, 1988).
86 E.g., the “Lapp Codicil” to the Norway-Sweden Treaty of 1751, discussed by the Samerettsutvalget [Norwegian Sami Rights Committee], Om Samenes Rettsstilling (NOU No. 18, 1984).
87 E.g., Cayuga Indians (Gr. Brit. v. U.S.), 6 R.I.A.A. 173 (1926).
88 Some of the issues are discussed in José, Woehrling, Les Revendications du Canada sur les eaux de archipel de l’Arctique et l’utihsation immémoriale des glaces par les Inuit , 30 Ger. Y.B. Int’l L. 120 (1987)Google Scholar; and Michael Reisman, W., Protecting Indigenous Rights in International Adjudication , 89 AJIL 350 (1995)CrossRefGoogle Scholar.
89 A prominent example of transnational environmental litigation in Australia relates to harm to the Ok Tedi and Maun Rivers and to the well-being of local people arising from the operation, by a company partly owned and controlled by the Australian mining company BHP, of the Ok Tedi mine in Papua New Guinea. Preliminary rulings in the Supreme Court of Victoria in 1995 struck out some of the plaintiffs’ causes of action but left open a possibility that the case would reach a trial on the merits. Dagi v. BHP (No. 2),  1 V.R. 428; Dagi v. BHP (Nov. 10, 1995) (Byrne, J.), 1995 vic lexis 1182. Following public pressure on BHP and the company’s alleged involvement in a proposal to amend Papua New Guinea’s criminal law to prevent civil suits in Australia, see  2 V.R. 117, a settlement was reached in 1996 under which BHP paid compensation and took ameliorative measures in the affected areas. An example of increasingly frequent cases in which environmental and human rights arguments are combined is opposition to the Freeport-McMoRan mining and metal milling operation at Grasberg, West Irian. The western portion of Papua, a generally Melanesian area colonized by the Netherlands but not greatly developed under Dutch rule, was incorporated into Indonesia only during the 1960s, by which time a distinctive self-identity had begun to evolve. Armed conflict continues on a limited scale between the Indonesian army and the Free Papua Movement (Organisasi Papua Merdeka). Civil conflicts connected in some way to the Grasberg project have been frequent, and concerns about human rights abuses and environmental problems have been expressed within Indonesia by groups such as the Indonesian Human Rights Commission and church organizations; but the main pressure has come from outside. The U.S. government investment promotion agency, the Overseas Private Investment Corp., terminated its political risk guarantee to Freeport in 1995, reinstating it temporarily in 1996 with some encouragement from environmental NGOs keen to see Freeport held to stronger environmental conditions. Lawsuits against Freeport-McMoRan alleging human rights violations and breaches of international environmental obligations were filed in state and federal courts in Louisiana (where Freeport’s corporate head office is located) in 1996 and 1997. Yosofa Alomang v. Freeport-McMoRan, 1996 U.S. Dist. lexis 15,908 (E.D. La. Oct. 17, 1996) (declining Freeport’s motion to remove the case from state court to federal court); Tom Beanal v. Freeport-McMoRan, 1997 WL 178,637 (E.D. La. Apr. 10, 1997) (dismissing plaintiffs claim). An amended complaint was thereafter filed in the latter case in which an Amungme tribal organization, Lembaga Musyawarah Adat Suku Amungme, was also a plaintiff, but problems in the pleading of the plaintiffs’ claims in this case continued. 1997 U.S. Dist. lexis 12,001 (E.D. La. Aug. 8, 1997).
90 Some such procedural issues were considered in Cayuga Indians, 6 R.I.A.A. 173 (1926).
91 Benedict, Kingsbury, Claims by Non-State Groups in International Law , 25 Cornell Int’l L.J. 481 (1992)Google Scholar.
92 An example is litigation concerning the projected Yadana natural gas pipeline, which runs from the Yadana offshore field under the Andaman Sea and through the Tenasserim region of Burma to the Thai border, where it will meet projects on the Thai side. The onshore portion passes through areas populated by non-Burman ethnic groups that have often been in conflict with the military regime, and opposition to the pipeline is bound up with opposition to the regime. A civil suit brought in the United States against the oil company Unocal and other defendants focused not on issues particular to indigenous peoples but on general human rights violations related to the project, particularly forced relocation and the use of forced labor. Doe v. Unocal, 963 F.Supp. 880 (CD. Cal. 1997). See also the similar but separate proceedings, with different plaintiffs’ lawyers, in National Coalition of Union of Burma v. Unocal, 176 F.R.D. 329 (CD. Cal. 1997).
93 This is the view taken by Erica-Irene, Daes, Dilemmas Posed by the UN Draft Declaration on the Rights of Indigenous Peoples , 63 Nordic J. Int’l L. 205 (1994)Google Scholar; Erica-Irene, Daes, Equality of Peoples under the Auspices of the United Nations Draft Declaration on the Rights of Indigenous Peoples , 7 St. Thomas L. Rev. 493 (1995)Google Scholar.
94 E.g., Committee on the Elimination of All Forms of Racial Discrimination, Concluding Observations: Mexico, UN Doc. A/50/18, paras. 353–98 (1996).
95 See, e.g., Inter-American Commission on Human Rights, Report on the Situation of Human Rights in Brazil 93–113, OEA/Ser.L/V/II.97 (1997).
96 Communication No. 167/1984, Ominayak v. Canada, UN Doc. A/45/40, Annex IX.A, at 27 (1990). See also Communication No. 197/1985, Kitok v. Sweden, UN Doc. A/43/40, at 221 (1988). In its General Comment on Article 27, the Committee observed that “culture manifests itself in many forms, including a particular way of life associated with the use of land resources, especially in the case of indigenous peoples. That right may include such traditional activities as fishing or hunting and the right to live in reserves protected by law.” General Comment No. 23(50), UN Doc. A/49/40, Annex V, at 109 (1994).
97 E.g., Kasivarsi Reindeer Herders’ Cooperative v. Ministry of Trade & Industry (Sup. Admin. Ct., Fin., May 15, 1996) (slip op. trans. Heljä Tilli & Martin Scheinin). The court held that the Ministry’s decisions to issue a mining company certain deeds enabling mining in Sami reindeer-herding areas should be quashed for failure to consider the legal obligations of Finland arising from Article 27 of the ICCPR, and that reindeer herding was part of Sami culture under Article 27.
98 Nibutani Damjiken Hanketsu [Kayano & Kaizawa v. Government of Japan], Hanrei Jiho, No. 1598, 1997, at 33 (Sapporo Dist. Ct. Mar. 27, 1997). This translation is an amalgam of work by Professors Sonohara Toshiaki, Hosokawa Komei, and Oota Hiroyuki. For commentary, see Sonohara, Toshiaki, Toward a Genuine Redress for an Unjust Past: The Nibutani Dam Case , Murdoch Electronic LJ., June 1997 Google Scholar.
99 See James Anaya, S., A Contemporary Definition of the International Norm of Self-Determination , 3 Transnat’l L. & Contemp. Prob. 131 (1993)Google Scholar; Russel, Lawrence Barsh, Indigenous Peoples and the UN Commission on Human Rights: A Case of the Immovable Object and the Irresistible Force , 18 Hum. Rts. Q. 782, 796–800 (1996)Google Scholar; Erica-Irene, Daes, Some Considerations on the Right of Indigenous Peoples to Self-Determination , 3 Transnat’l L. & Contemp. Prob. 1 (1993)Google Scholar; Hurst, Hannum, Rethinking Self-Determination , 34 Va. J. Int’l L. 1 (1993)Google Scholar; Catherine, Iorns, Indigenous Peoples and Self-Determination: Challenging State Sovereignty , 24 Case W. Res. J. Int’l L. 199 (1992)Google Scholar; Benedict, Kingsbury, Self-Determination and “Indigenous Peoples,” 86 ASIL Proc. 383 (1992)Google Scholar; Modern Law of Self-Determination (Christian, Tomuschat ed., 1993)Google Scholar; Mary-Ellen, Turpel, Indigenous Peoples’ Rights of Political Participation and Self-Determination: Recent International Legal Developments and the Continuing Struggle for Recognition , 25 Cornell Int’l L.J. 579 (1992)Google Scholar.
100 Human Rights and Equal Opportunity Commission, Bringing Them Home (1997).
101 For a forceful statement of this view, see Howard, Berman, Indigenous Peoples and the Right to Self-Determination , 87 ASIL Proc. 190 (1993)Google Scholar.
102 ILO Convention No. 169, supra note 19, Art. 7.
103 Petition of Jaime Córdoba Triviño, Defensor del Pueblo, en representación de varias personas integrantes del Grupo Etnico Indígena U’Wa, Sentencia No. SU–039/97 (Corte constitucional, Feb. 3, 1997).
104 UN Doc. E/CN.4/Sub.2/1993/29, Annex 1.
106 For a mixture of assessment and advocacy, see Peter Brosius, After Duwagan: Deforestation, Succession and Adaptation in Upland Luzon, Philippines (Ann Arbor, 1990); The Struggle for Land and the Fate of the Forests (Penang, Marcus Colchester & Larry Lohmann eds., 1994); and Indigenous Peoples and Protected Areas (London, Elizabeth Kemf ed., 1993). The image of indigenous peoples as active consumers is evident in advertising in many of the places where the cash economy and mass commercial communication reach. See, e.g., Nation Making: Emergent Identities in Postcolonial Melanesia (Robert J. Foster ed., 1995), and Foster’s forthcoming work on advertising in Papua New Guinea and other parts of Melanesia.
107 OAS Doc. OEA/Ser.L/V/II.95, doc. 6, Art. 1(2) (1997).
108 See UN Doc. E/CN.4/1998/106, para. 37 (1997).
109 The consensus among the five members of the UN Working Group on indigenous populations appears to be that it is not realistic or useful to try to adopt a definition at present. See Report of the Working Group on indigenous populations on its fifteenth session, UN Doc. E/CN.4/Sub.2/1997/14. Earlier, Chair-Rapporteur Daes had suggested that the solidarity and experience built up in gatherings of indigenous peoples, states and working group members since 1982 might provide a platform on which that body might construct an agreed definition in the future. Erica-Irene Daes, Note on Criteria Which Might be Applied when considering the concept of indigenous peoples, UN Doc. E/CN.4/Sub.2/AC4/1995/3 [hereinafter Daes, Criteria]. It is most improbable that the working group would confine the concept of “indigenous peoples” to areas of European settlement. Daes, Working Paper on the Concept of “Indigenous People,” UN Doc. E/CN.4/ Sub.2/AC4/1996/2 [hereinafter Daes, Working Paper]. However, one long-serving member, Miguel Alfonso Martinez, has advocated distinguishing European colonialism from invasions by a group’s neighbors, and has expressed skepticism about the broad applicability of the concept of “indigenous peoples” in much of Africa and Asia, while conceding that it may be pertinent in special circumstances. Miguel Alfonso Martínez, Study on Treaties, Agreements and Other Constructive Arrangements between States and indigenous populations: Second progress report, UN Doc. E/CN.4/Sub.2/1995/27, paras. 94–129.
110 The ILO has a specialized mandate but for historical reasons has become involved in a broad range of indigenous peoples’ issues that extend beyond the scope of other ILO activities.
111 The others are Angola, Argentina, Belgium, Brazil, Cuba, the Dominican Republic, Ecuador, Egypt, El Salvador, Ghana, Guinea-Bissau, Haiti, Iraq, Malawi, Panama, Portugal, Syria and Tunisia. See the ILO Web site (visited May 18, 1998) (http://ilolex.ilo.ch:1567/public/english/50normes/infleg/iloeng/index.html). For Convention No. 107, see 1 ILO, International Labour Conventions and Recommendations 1919- 1991, at 627 (1992).
112 For an overview by an ILO official closely associated with Convention Nos. 107 and 169, see Lee, Swepston, A New Step in the International Law on Indigenous and Tribal Peoples: ILO Convention No. 169 of 1989 , 15 Okla. City U. L. Rev. 677 (1990)Google Scholar.
113 In order of ratification: Norway, Mexico, Colombia, Bolivia, Costa Rica, Paraguay, Peru, Honduras, Denmark, Guatemala, the Netherlands and Fiji. As the ratification pattern suggests, Convention No. 169, supra note 19, has been particularly influential in Latin America. Its provisions on definition were a model for the Inter-American Commission on Human Rights. In 1995 the Commission was unable to agree on a definition in its Draft Declaration on the Rights of Indigenous Peoples, partly because of disagreements about particular free communities founded by people brought involuntarily from Africa to the Americas by the slave trade. In 1997 it reached a compromise that avoided any definition of “indigenous peoples,” while making clear that the prescribed norms applied not only to the undefined category of indigenous peoples, but also to a category of groups corresponding to those treated as “tribal” in Article 1 (1) (a) of the ILO Convention, which apparently includes the free communities in question. See OEA/Ser.L/V/II.95, doc. 6, supra note 107.
114 ILO, Report of the Committee of Experts on the Application of Conventions and Recommendations, Report III (Part 4A), IL Conf., 83d Sess. 265–67, 268–69 (1996).
115 Operational Directive 4.20, supra note 20. The Bank is considering converting this directive to conform it to the Bank’s new system of internal policy instruments, leading to complex discussions about the conversion process, the formulation of key principles, and the level and type of standards that are normatively proper and operationally and politically viable.
116 Asian Development Bank, Working Paper on Indigenous Peoples, paras. 6–8 (mimeo Oct. 25, 1994).
117 Such a recommendation was made to the executive directors in December 1996 in the case of the Argentina/Paraguay Yacretá Hydroelectric Project, which involved numerous issues, including disruptive treatment and inadequate resettlement of indigenous peoples. For a brief overview, see Richard, E. Bissell, Recent Practice of the Inspection Panel of the World Bank , 91 AJIL 741 (1997)Google Scholar.
118 The way was cleared for the projects after the 1979 decision of the Narmada Water Disputes Tribunal allocated water rights among the interested riparian and nonriparian states. The tribunal also set a basic requirement of land-for-land compensation, as well as modest compensation for “landless” oustees. On the Narmada projects, see Toward Sustainable Development? Struggling Over India’s Narmada River (William F. Fisher ed., 1995). For a critical view of the World Bank’s involvement, see, e.g., Sumi Kazuo, Seikai ginko kaibatzu kinyin to konkyo: jinken mondai [The World Bank: Development Finance and the Issue of Human Rights] 265–69 (Tokyo, 1994) (kindly translated from the Japanese by Funahashi Junko).
119 For example, the Bargi Bandh Visthapit Aur Prabhavit Sangh (an association of oustees displaced by the already-complete Bargi Dam) organized a satyagraha on the banks of the reservoir to try to prevent a further rise in its level in 1996; and litigation has been pursued by the Narmada Bachao Andolan. Groups organized around the issues of displacement and resetdement take a wide range of positions; many do not oppose, indeed support, the dam and canal projects, but are concerned about specific features of the projects or gross inadequacies in their implementation.
120 This action followed a request from the government of India to end further disbursements, made in the context of the Bank’s concerns about the project and the government’s concerns about external pressure.
121 Bradford, Morse & Thomas, Berger, Sardar Sarovar: Report of the Independent Review 77–78 (Ottawa, 1992)Google Scholar. The two authors of the review are, respectively, a U.S. citizen who served as a prominent international civil servant and formerly as head of the United Nations Development Programme, and a wellknown Canadian jurist who has been involved extensively in indigenous issues relating to development projects in North America.
122 Report of the Workshop on Traditional Knowledge and Biological Diversity, UNEP Doc. UNEP/CBD/ TKBD/1/3 (1997).
123 Report of the Second Workshop on a Permanent Forum for Indigenous People within the United Nations System, supra note 10.
124 For an account of travels by an Onondaga leader from the United States to Switzerland on a Haudenosaunee passport, see Oren Lyons, Remarks, 87 ASIL Proc. 195 (1993).
125 See generally George, Downs & David, Rocke, Optimal Imperfection? Domestic Uncertainty and Institutions in International Relations (1995)Google Scholar; Benedict, Kingsbury, The Concept of Compliance as a Function of Competing Conceptions of International Law , 19 Mich. J. Int’l L. 345 (1998)Google Scholar.
126 PRC Consideration, supra note 17.
127 See, e.g., Tania, Murray Li, Images of Community: Discourse and Strategy in Property Relations , 27 Dev. & Change 501 (1996)Google Scholar.
128 Zhang Xiaohui, Zhongguo falu zai shaoshuminzu diqu de shi shi [The Enforcement of Law in Minority Areas in China] 27–29 (Kunming, 1994); Walker Connor, The National Question in Marxistleninist Strategy 67–100 (1984). Thanks to Hu Jun for translating Chinese-language sources referred to here.
129 Zhang Xiaohui, supra note 128, at 92–93; Wang Lianfang, Minzu Wenti Lunwenji [Essays on the Problems among Races] 335–40 (Kunming, 1993).
130 Zhang Xiaohui, supra note 128, at 16–17.
131 Ma Qu, Yunnan minzu gongzuo sishi nian [Forty Years of Yunnan Minority Administration] 97 (Kunming, 1994).
132 Cf. the problems noted in 1988 by Wang Tianxi, Minzu fa gai lun [Introduction to Nationalities Law] 247 (Kunming, 1988).
133 Zhang Xiaohui, supra note 128, at 36–39.
134 Minzu quyu zizhi jianming duben [Pamphlet on Minority Autonomous Districts] 37 (Kunming, Zhou Ruihai & Ha Jian eds., 1993).
135 Wang Lianfang, supra note 129, at 90–128; Yunnan Longcun Funu Xianzhuang Yanjiu [Analysis of the Reality of Women in Yunnan] 199–261 (Kunming, He Zhonghua & Qiao Hengrui eds., 1995).
136 As to concerns about foreign religious penetration, see, e.g., Weihu juguo tongyi baochi shehui wending [Sustain the Unity of China, Maintain the Stability of Society] 62 (Kunming, Feng Dazhen & Yang Faren eds., 1993).
137 Zhou, Enlai, Some Questions , Beijing Rev. (1980)Google Scholar, quoted in Connor, supra note 128, at 90–91.
138 See Philip Allott, Eunomia: New Order for a New World, chs. 10, 16 (1990).
139 On Australia, Canada, and New Zealand, see Kingsbury, supra note 41.
140 Note, for example, Rangan’s observation of differences in the Garhwal Himalayas, home of the Chipko tree-protection movement made famous and celebrated by international environmentalists, between “images of self-contained village communities living in harmonious ecological Utopias” and the desire of many residents to resume their long-standing involvement in the commercial use of the forests and other activities necessary to make a living. Haripriya, Rangan, Romancing the Environment: Popular Environmental Action in the Garhwal Himalayas , in In Defense of Livelihood: Comparative Studies on Environmental Action 151, 162 (John, Friedmann & Haripriya, Rangan eds., 1993)Google Scholar.
141 Issues of this sort have arisen in the operations of Coal India Ltd. covered by the World Bank’s India Coal Sector Rehabilitation Project. For comments on this project, see Ratnakar, Bhengara, Coal Mining Displacement , Econ. & Pol. Wkly., Mar. 16, 1996, at 647 Google Scholar.
142 Li, supra note 127, at 508.
143 See, e.g., the debate between Owen Lynch and James Anderson, in Critical Decade: Prospects for Democracy in the Philippines in the 1990’s (Berkeley, Cal., Dolores Flamiano & Donald Goertzen eds., 1990). See also, e.g., Lynch & Talbott, supra note 53, at 23, whose “definition” of “community” seems underspecified for many practical purposes; it is so broad as to encompass virtually any enduring mutual benefit arrangement. The relevant features are: “1) extensive participation by its members in the decisions by which its life is governed; 2) the community as a whole takes responsibilities for its members; and 3) this responsibility includes respect for the diverse individuality of these members.” See further Herman Daly & John Cobb, For the Common Good: Redirecting the Economy Toward Community, the Environment, and a Sustainable Future 168–75 (1989).
144 Li, supra note 127, at 505 (quoting Melissa, Leach, Endangered Environments: Understanding Natural Resource Management in the West African Forest Zone , IDS [Inst. Dev. Stud.] Bull., Oct. 1991, at 17, 18)Google Scholar.
145 Ann, Armbrecht Forbes, Defining the “Local” in the Arun Controversy: Villagers, NGOs, and the World Bank in the Arun Valley, Nepal , Cultural Survival Q., Fall 1996, at 31 Google Scholar; Peter Brosius, J., Prior Transcripts, Divergent Paths: Resistance and Acquiescence to Logging in Sarawak, East Malaysia , 39 Comp. Stud. Socy & Hist. 468 (1997)CrossRefGoogle Scholar.
146 Forbes, supra note 145, at 31.
147 Marcus, Colchester, Indigenous Peoples’ Rights and Sustainable Resource Use in South and Southeast Asia , in Peoples of Asia, supra note 15, at 59, 73–76 Google Scholar.
148 Forbes, supra note 145, at 31.
149 The government of Fiji suggested in the Commission on Human Rights working group that a self-identifying group whose members are historically prior occupants with a unique cultural bond with the land may be an indigenous people even though they suffer no repression. The intended implication that the declaration will apply to groups controlling the government and the military in a state is highly problematic. If the nondominance criterion is relaxed as Fiji suggests, there are almost insuperable risks that dominant groups in deeply divided societies who regard themselves as threatened will use the declaration to bolster their chauvinist claims. Fiji itself opposed a proposal by the government of Bangladesh that all peoples threatened by globalization and Westernization, including those controlling postcolonial governments in Africa and Asia, should be covered by the declaration. See Barsh, supra note 99, at 792–93.
150 Paul Seaman, the Aboriginal Land Inquiry, para. 3.16 (Perth, 1984).
151 Note the comments of Daes, Working Paper, supra note 109; Erica-Irene Daes, Supplementary Working Paper on the Concept of “Indigenous People,” UN Doc. E/CN.4/Sub.2/AC.4/1997/2.
152 Daes, Working Paper, supra note 109, para. 64.
153 See id., para. 69; Daes, Criteria, supra note 109, para. 12; The Other Media, Summary of Resolutions of Workshops on Indigenous and Tribal Peoples’ Struggle for Right of Self-Determination and Self-Government in India, UN Doc. E/CN.4/Sub.2/AC.4/1994/4/Add.1.
154 See Daes, Working Paper, supra note 109.
155 See Kingsbury, supra note 91.
156 See Ralph Litzinger, The Work of Culture and Memory in Contemporary China 7–8 (Duke University Working Papers in Asian/Pacific Studies No. 95–03, 1995).
157 This argument about India may well apply also to the position of the Chinese government; and the views of the governments of Bangladesh and Myanmar may follow this track, but are difficult to analyze independently of issues of insurgency, state building and central political/military control.
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