Reflections on Rights Discourse Among American Native Tribes and Indian Tribes: A Comparative Legal Study with Special Reference to Odisha.

Abstract

Indigenous tribes have faced systematic alienation from their ancestral domain and common property resources in land, water and forest resources due to the application of Eurocentric Anglo-Saxon epistemology of positivism in counter opposition to the narratives of local traditions of the tribes based on customary law. This is true of the treaty concluding Native American tribes as well as the numerous scheduled tribes of India, who were ruled mostly by Ex-feudatory Chiefs under British paramountcy. The symptomatic similarities of resource appropriation lay in the structured political and economic designs of the colonial state system in the early part of American and Indian history. In the Post 1950’s phase it was the extension of earlier legal stereotypes that perpetuated this system to cause great impoverishment and marginalization of the tribal people. Contemporary history of tribal resistance movement therefore rejects the legal legacy of colonial state and demands the progressive inclusion of the right to self determination. It demands better compensation packages on an inter-generational basis, market rates and share-debenture stakes in assets lost, codification of customary rights and their eventual restitution, better resettlement and rehabilitation policy and legislative guarantees through Acts for tribal people experiencing involuntary displacement for public purpose takings under eminent domain laws etc. In fact the academic and activist militancy has forced the United Nations to pass important resolutions on Indigenous concerns and nation states are following suit. This trend has forced international donor and financial organizations to make the ‘equator principle’ mandatory for all project funding. Therefore any realistic attempt to integrate tribal ethos into development praxis must sincerely begin the exercise by making the tribes real stakeholders at the core of the processes of development rather than mute spectators standing on the powerless periphery.