Indigenous Land Claims Research Articles

Indigenous land claims in Europe: The European Court of Human Rights and the decolonization of property

This study examines the potential impact of recent developments in international human rights law relating to indigenous land claims on the protection of property under the European Convention on Human Rights. In a departure from colonial law the authors show how the doctrine of ancestral indigenous land title has recently been incorporated into international human rights law. This development, however, has yet to occur within the regime of the European Convention. The authors argue that the new decolonized approach to property can and should be adopted by the European Court of Human Rights in its interpretation of Article 1 of Protocol No. 1 of the European Convention.Keywords: Indigenous Peoples, European Court of Human Rights, Land Rights, Property, Legal Pluralism, Ancestral Land Title, International Human Rights Law, Protocol No. 1 of the European Convention on Human Rights.Citation: Arctic Review on Law and Politics, vol. 4, 2/2013 pp. 156–180. ISSN 1891-6252

The contestedrewe: sacred sites, misunderstandings, and ontological pluralism inMapuche land negotiations

Sacred sites lie at the core of indigenous peoples' land claims and negotiations with the state. These sites are often subject to accusations of inauthenticity by state actors, which potentially lead to the delegitimization of claims over ancestral land. This article argues that misunderstandings inMapuche land negotiations inChile do not originate as strategic refusals to understand, but rather in a form of understanding which aims to make radical differences commensurable within the logics of statecraft and national society. In the process of cultural translation, the ontological principles that make certain places sacred in theMapuche lived world are not recognized, resulting in the transformation of these sites into symbols of identity strategically employed for political ends.

Political theorists as dangerous social actors

What is the appropriate degree of abstraction from existing social facts when engaging in normative political theory? Through a focus on American Indian and other indigenous claims over historically expropriated lands, this essay argues that highly abstracted forms of normative analysis can often misunderstand the core moral problems at stake in real cases, and that they can pose moral dangers when they do so. As argued, the hard moral issues involved in indigenous land claims within countries such as Canada and the United States often have far more to do with questions about competing uses for public lands than with abstract property theory as such. The essay argues that normative theorists will often do more social good, and pose fewer dangers, when they pay close attention to the real moral challenges that social actors face on the ground than when they become captured by abstract questions with ambiguous practical importance.

Ideologies of descent in linguistics and law

Contemporary jurisprudence of self-determination draws on a trope of European conjectural anthropology, the Stammbaum, as it surfaces in documentary linguistics. This essay traces the work of linguist Ken Hale in Australia, first in linguistic phylogeny, later in endangered language documentation. It argues that linguists’ linguistic ideology supports multiple metaphysics of collective legal persona: one in which shared speakership is diacritic of group cohesion, two in which possession of language as a kind of property is central to collective flourishing. It juxtaposes linguists’ interventions in Australian indigenous land claims with recent debates among cultural property theorists as to the limits of property, and it proposes that linguists take a more active role in these debates. [Stammbaum; Australia; native title; cultural environmentalism; Locke, Kenneth Hale (1934–2001)]

Alaska Native Politics since the Alaska Native Claims Settlement Act

In 1971, Congress passed the Alaska Native Claims Settlement Act (ANCSA), the largest indigenous land claims settlement in U.S history. Intended to resolve disputes over land and to spur economic development, ANCSA remained silent on issues of indigenous governance, or tribal sovereignty, as well as on subsistence rights, a particularly urgent issue because many Alaska Natives remain dependent on subsistence practices for survival. Consequently, Alaska Native politics since ANCSA has centered on campaigns for sovereignty and subsistence rights. Despite these shortcomings, ANCSA accorded Alaska Natives unprecedented possibilities for economic development that enable other forms of community self-determination. This essay explores the limits and possibilities of ANCSA by examining the ways it has transformed Alaska Native communities and politics. It also traces the legal conflicts that have ensued from the settlement, including those culminating in the landmark Venetie (1998) and Katie John (2001) decisions on sovereignty and subsistence that pit Alaska Natives against state and federal authorities.

Economic Development at the Cost of Indigenous Land

The notion of economic development has affected the general welfare of indigenous groups worldwide. The major conflict has been on land ownership claims on which they have occupied for many years and government quest to bring about economic development. The indigenous groups have struggled to retain their lands despite appealing to both customary and international laws. The paper argues as to whether customary law and international law are vital sources for indigenous land claims. It also presents empirical cases to land claims while making these arguments within the context of economic development.

New Normative Grounds for Territorial Claims

Land, Conflict and Justice: A Political Theory of Territory. By Kolers Avery. New York: Cambridge University Press, 2009. 252 pp. $95.00 hardcover (ISBN-13: 978-0-521-51677-8). This book begins with the observation that, along with climate change, the relationship between states and territories is one of the blind spots of modern political philosophy. Avery Kolers proposes to address both of these blind spots by outlining a “general and systematic theory of territorial rights” that makes environmental sustainability central to the legitimacy of states’ territorial claims. After introductory chapters setting out the issues and canvassing the inadequate treatments of land and territory in recent political theory, he devotes two central chapters to the core elements of his theory before turning to its application to territorial disputes. He provides an extensive typology of the different kinds of territorial claims and the impact of the various grounds on potential solutions. In the last chapter, he applies the theory to one of the most intractable territorial disputes, Israel—Palestine, outlining a novel solution that calls for a federal or other form of state capable of accommodating different relations to land. He also suggests that his theory offers a more promising approach to the territorial claims of colonized indigenous peoples than the available alternatives. While the book will be of interest to all those interested in territorial claims and in responses to impending environmental crises, my comments will focus on its application to indigenous land claims. As we would expect with any novel systematic theory, this one relies on the introduction of several new concepts and the redefinition of several old ones. It is concerned specifically with juridical territories, which are bounded geographic places in which the flows of people and materials are controlled through rules of law (p. …

Indigenous Peoples, Land Claims, and Control of Mineral Development: Australian and U.S. Legal Systems Compared

This paper compares the legal rights of American Indians and Australian Aborigines with respect to control of mineral development on lands set aside for their use.

Defenders of Nature and the Comarca: Collective Identity and Frames in Panama

This article examines collective identities as both a resource and constraint in framing processes of social mobilization through a case study of Panama's Kuna Indians, one of Latin America's most effectively organized indigenous peoples. It highlights tensions between movement nurturance of distinct indigenous identity as intrinsically valuable and to a degree counterhegemonic and instrumental use of an environmental frame to advance indigenous land claims. This article also explores shifts in dominant discourse and institutional practices that provide both opportunities for identity-based movements as well as risks. One way identity groups address tensions between appropriation of externally generated frames for instrumental goals and the nurturing of distinct collective identities is to manage multiple frames aimed at distinct audiences with distinct content. errors are the sole responsibility of the author.

The Contribution of the Inter-American Human Rights Bodies to Evolving International Law on Indigenous Rights over Lands and Natural Resources

AbstractBecause of the special relationship with land that characterises indigenous groups, rights over land and natural resources are at the heart of indigenous claims under international law. The Inter-American Commission on Human Rights and the Inter-American Court have developed a copious jurisprudence on the subject matter and contributed to the establishment of certain minimum indigenous peoples' land rights under customary international law. This article analyses the Inter-American judicial discourse on land issues in the light of the current status of relevant international law and reflects upon the potential contribution of the former to the further development of the latter. It focuses on the relationship between historical dispossessions and indigenous contemporary land claims, on the state duty to land delimitation, demarcation and titling, and on indigenous peoples' ownership over natural resources located within their traditional lands and their participatory rights in relation to resource exploitation.

Encounters of Moravian Missionaries with Miskitu Autonomy and Land Claims in Nicaragua, 1894 to 1936

Abstract This article analyzes the responses of Moravian missionaries in Nicaragua when they encountered colonial and national competition over sovereignty and internal strife and challenging conditions in indigenous communities, from the 1890s to the 1930s. The focus is on Moravian missionaries who settled in the northern portion of Miskitu territory, which is located in the Mosquitia on Nicaragua's Caribbean coast. Diaries and notes, as well as official reports and accounts to the Moravian Church, provide a unique historical lens through which to examine how the missionaries navigated indigenous resistance, land claims, foreign competition, and economic booms and busts. Although not acting according to an explicit political agenda, missionaries systematically constructed religious, educational, and medical institutions that overcame Miskitu resistance to Christian conversion and became integral to Miskitu lives and welfare. Despite this, the Miskitu people preserved a tradition of self-government during the period under consideration. A change of religious beliefs did not constitute a fundamental transformation of Miskitu ideas and aspirations about political and cultural autonomy. The consolidation of Moravian influence contributed to the intensity of Miskitu nationalist sentiments and land claims when demands for indigenous autonomy resurged later in the twentieth century. This article examines Moravian perspectives on disunity and anxiety in coastal and savannah communities on the Tawira side of Miskitu geographic and ethnic divisions. Moravian accounts of the foundation of the Tawira community of Tuara elucidate ancestral roots and communal struggles during the ebb and flow of Miskitu autonomy and vulnerability.

Using restorative justice to resolve historical injustices of Indigenous peoples

This article explores the application of restorative justice to situations of historical injustice. It argues that applying restorative justice practices and principles could maximize justice for Indigenous peoples by, first, refocusing Indigenous land claims on the restoration of tribal respect and dignity rather than on the restoration of property rights, and second, acknowledging the wider social relationships in which such conflicts arise. This article also contends that using restorative justice in situations of historical injustice may impact on the practice of restorative justice itself. First, the roles and relationships of key players will change which may lead ultimately to a reconsideration of the role of the State in restorative justice. Second, applying restorative justice in situations of Indigenous historical grievances underscores the collective nature of such conflicts and the collective, contextual nature of evolving notions of the justice in restorative justice.

Collective rights in a modernizing North - on institutionalizing Sámi and local rights to land and water in northern Norway

The struggle by indigenous groups to have their rights acknowledged does not only take place through the action arenas of national political and constitutional processes, but also through active work through international bodies. Thus indigenous rights will often become arguments for institutional and constitutional changes in the modern world. The way such changes take place is nowadays more often through the incorporation of various forms of treaties and international charters into national legislation rather than direct negotiations between sovereign states and indigenous ‘tribes’, ‘clans’ or ethnic minority groups. However, when it comes to acknowledging the rights of ownership and possession of the peoples concerned over the lands which they traditionally occupy, these seem to be among the most difficult constitutional processes modern states can undertake. Thus they not only take much longer time than the granting of civil and political rights, but they also involve complex analytical exercises in order to understand the processes connected to the settling of indigenous land claims. This article analyses one such process in a nested and multi-tier system with parallel initiatives for institutional change.

Indigenous Linguistics and Land Claims: The Semiotic Projection of Athabaskan Directionals in Elijah Smith's Radio Work

In recent decades, land claims and language revitalization have emerged as prominent forms of indigenous activism in many parts of the world. Activists' indigenous language performances merit special attention since they commonly foreground the semiotic resources of their languages and reference the social structures in which they are embedded. This article examines a co‐performance by Yukon native leader Elijah Smith and Southern Tutchone elder Solomon Charlie that epitomizes the use of indigenous linguistic resources to assert native rights and identity in innovative contexts. In particular, Charlie's account exemplifies the essential roles of deictic terms as bridges between micro‐level narrative processes and the macro‐level social fields of contemporary society in which indigenous identity is projected.

Making Indian law: the Hualapai land case and the birth of ethnohistory

In 1941, after decades of struggling to hold on to the remainder of their aboriginal home, the Hualapai Indians finally took their case to the Supreme Court--and won. The Hualapai case was the culminating event in a legal and intellectual revolution that transformed Indian law and ushered in a new way of writing Indian history that provided legal grounds for native land claims. But Making Indian Law is about more than a legal decision. It's the story of Hualapai activists, and eventually sympathetic lawyers, who challenged both the Santa Fe Railroad and the U.S. government to a courtroom showdown over the meaning of Indian property rights--and the Indian past. At the heart of the Hualapai campaign to save the reservation was documenting the history of Hualapai land use. Making Indian Law showcases the central role that the Hualapai and their lawyers played in formulating new understandings of native people, their property, and their past. To this day, the impact of the Hualapai decision is felt wherever and whenever indigenous land claims are litigated throughout the world.

Historical Indigenous Peoples' Land Claims: A Comparative and International Approach to the Common Law Doctrine on Indigenous Title

AbstractWithin common law systems a body of jurisprudence has developed according to which indigenous peoples' land rights have been recognized based upon historical patterns of use and occupancy and corresponding traditional land tenure. Looking at the emerging common law doctrine on aboriginal or native title, this article examines how legal institutions are building a theory on historical land claims through the recognition of indigenous laws deriving from prior occupation. The article analyses how the common law doctrine builds a bridge between past events and contemporary land claims. The aim of this article is to examine to what extent the common law doctrine proposes a potential model for the development of a legal theory on the issue of indigenous peoples' historical land claims. In doing so the article analyses how the common law doctrine compares with international law when dealing with historical arguments by focusing on issues of intertemporal law and extinguishment.

Reparations, Social Reconciliation, and the Significance of Place: A Legal and Philosophical Examination of Indigenous Cases in the United States and Their Global Implications

During genocide, populations are frequently displaced from their homelands. In the process of reparations, displacement is often viewed as a problem of shelter, food, and safety. In this framework, land is treated as an economic commodity—any given piece of land is interchangeable with another or for money. This approach is a product of Enlightenment thinking, which emphasizes the rights of the individual over communal rights to land, and conceptualizes land and social identity as strongly separated. This Enlightenment framework of rights, and the accompanying de-emphasis of place, is particularly strong in the United States. Because American legal principles have played a substantial role in the development of human rights laws internationally, there are global implications for how American courts understand land and displacement. By examining Native American claims for land and sovereignty, this essay explores the philosophical and legal understandings of land and culture that are endorsed by American courts. The themes found in American litigation of indigenous land claims are likely to permeate American foreign policy and our involvement in reparations issues internationally. If the American de-emphasis of land continues internationally, effective reparations are unlikely. Homelands are not an interchangeable economic commodity precisely because social identity is not separate from land, but rather rooted firmly in a particular place. When victims of genocide are able to reclaim homelands, there is the possibility of truly effective reparations, particularly achieving the goal of stabilizing and repairing social identity.

Projecting Threat: Managing Subjective Investments in Whiteness

In this paper, we focus on the ways in which subjective investments in whiteness work to construct Indigenous people as threats to the white Australian nation. In order to better understand such subjective investments, we employ an approach to analysing talk that draws upon both psychoanalysis and discursive psychology. We suggest that this combination may allow for a thoroughly social understanding of the practices of exclusion within Australia. Through an analysis of white participants talk surrounding Indigenous land claims, we demonstrate the “anxieties of whiteness” that structure the hegemonic intelligible subject positions available to white Australians, particularly within the current political climate. Our aim in paying close attention to the ways in which projections of threat are achieved within everyday talk is to make visible the systems of representation that maintain the hegemony of whiteness in Australia.

Indigenous Land Claims and Economic Development: The Canadian Experience

Indigenous Land Claims and Economic Development: The Canadian Experience

Negotiating Nature: Collaboration and Conflict Between Aboriginal and Conservation Interests in New South Wales, Australia

AbstractFaced with the paradox of a large global increase in conservation reserves and a simultaneous global decrease in actual effective protection for biodiversity, conservation scientists and policymakers are questioning established conservation theory and practice. I argue that the fundamental premises, the foundational myths, for Western-style conservation also need to be questioned. The statistics on Indigenous land claims, and conservation reserves, in Australia and more specifically the state of New South Wales (NSW), reveal a landscape of policy failure in both arenas. Focusing on Australia, I use spatial analysis and policy histories to demonstrate converging trajectories of land use priorities for conservation needs and Indigenous peoples' needs. This intersection, while generating much potential for conflict, also creates new political landscapes. A combination of spatial and cultural analyses can create a clear picture of new “operational landscapes”, and an understanding of the (sometimes) complementary values of different cultural groups negotiating about these landscapes. From the basis that environmental problems are fundamentally social problems, this paper contributes to explorations of new paradigms supporting new social-ecological relationships, and new relationships between Indigenous and non-Indigenous peoples.