COMMENTARY

Commentary: Indigenous Law and Politics

Of the many dilemmas facing indigenous peoples and nations in their quest for international respect and recognition, perhaps none is greater or more difficult than the expectation that they must conform to the rules established by the statist system, while the legitimacy of their own law is denied. Whatever the final form of the Draft Declaration on Rights of Indigenous Peoples, and no matter how exacting its language of recognition and protection, the ultimate document will remain an agreement among states and will primarily serve the interests of states. From the moment the Declaration travels from the Working Group through the UN systemto the Subcommission on Prevention of Discrimination and Protection of Minorities, on to Commission on Human Rights, and eventually to the General Assemblythe document will neither represent an agreement among indigenous peoples based on an indigenous understanding of justice nor will it reflect the underlying tenets of indigenous law. Rather, it will be an instrument into which indigenous peoples have been forcibly contorted to reflect statist designs.

How has this perversion of the spirit of the Working Group on Indigenous Peoples been obtained? Why, if indigenous peoples are theoretically so central to the stated purpose of the Draft Declaration, are indigenous legal concepts and normative rule-making essentially ignored? One explanation, of course, can be provided through an analysis of statist hegemony in the world arena, that is, in the assimilation of all other perspectives into the totalizing vision of a statist-oriented future. In that future, indigenous law is not only ignored, it is actively relegated as an anachronism to the dustbin of history.

During the Peoples' International Tribunal on Hawai'i of 1993 (reported in this issue by Dr. Kekuni Blaisdell), the tribunal judges declared that numerous codes of conduct had been, and continue to be, violated by the United States in the century-long subjugation and colonization of the Kanaka Maoli (indigenous Hawaiians) and their nation. One unique characteristic of the Tribunal was that in each of its judgements listing the laws that had been violated (including international law and United States law), it recognized first and foremost that the laws of the Kanaka Maoli nation had been violated by the US invasion of Hawai'i. The Tribunal recognized the right, which the Kanaka Maoli have asserted, to use indigenous law to pass judgement on the deeds of invading alien states.

State governments around the globe respond cynically with the "neo-realism" that pervades international relations and international law in the post-Cold War era. States suggest that indigenous law is too primitive to address the complexities of the technocratic age. Indigenous peoples so unfortunate to be colonized and ruled by states need only blame themselves for their inherent weakness and impotence to prevent domination by bigger and mightier entities. States argue that it is unfortunate that indigenous peoples cling zealously to their ancient traditions, because if those traditions impede states' integration and economic development, states will sweep them aside, using either law or force or both.

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Fourth World Bulletin • December 1993