Indigenous Rights

Abstract

The attention given to indigenous rights has increased since the approval of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) in 2007. Although it is a soft law declaration and technically not binding, it serves as the cornerstone of much of the contemporary research on indigenous rights. Four states that initially voted in opposition to the UNDRIP—Australia, Canada, New Zealand, and the United States—have now endorsed it. Despite the attention it garners, the UNDRIP is not the only international instrument that has been utilized to establish and protect indigenous rights and interests. The regional inter-American human rights system has also been key in the development and protection of indigenous rights. Another important facet of the UNDRIP is that it took twenty-two years of drafting effort before it was approved by the United Nations General Assembly. During those twenty-two years, many discussions, debates, and analyses were undertaken over the meaning of rights and principles included in the drafts of the declaration. Research and scholarship from the era before passage of the declaration is helpful in understanding the content of the document. But the approval of the declaration did not end the controversies over indigenous rights. Debate and examination of the evolving body of indigenous rights continues during the period after passage of the declaration. As well, indigenous rights are not simply “human rights”; rather, they are a complex set of rights that can impact a broad swath of other legal doctrines. Intersections of indigenous rights with laws regarding economic development, the environment, and land claims can give rise to new interpretations and understandings of the impact of indigenous rights. While the four “no states” might be what most readily comes to mind when thinking about where many indigenous peoples live, indigenous peoples are, in fact, scattered throughout the world, including Europe. Research on indigenous rights is not carried out only from a legal perspective. Indigenous rights cover many different kinds of rights. Some have an emphasis in international law doctrines, such as the right to self-determination and issues about indigenous and tribal sovereignty. Other rights emphasize the importance of culture and heritage, and it can be useful to consider research in other disciplines, including history, political science, and anthropology. This article includes research and resources in related disciplines as well as legal research and law-based resources. (A note about language: American references to indigenous peoples are inclusive of the words “American Indian” or “Indian.” “Indian” is a legal term of art used in federal and state statutes. Indigenous peoples in the United States refer to themselves as “Indians” rather than Native Americans. For these reasons, where appropriate, the article makes use of the terms American Indian and Indian in preference to Native American. This usage may be confusing to non-American readers and so a clarification is offered).