Indigenous People and Land
In response to David Westbrook's question about "the actual
sovereignty, if any, of indigenous peoples as such in Latin America", a
very partial answer to his question can be found on http://www.docip.org/download/english/upd51e.rtf
Carmen Negrín
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David Westbrook comments on the reference to the sovereignty of native peoples
provided by Carmen Negrín: "Thank you very much, Carmen. From a
cold reading of this document, it appears that there is little sovereignty in
the sense of independent lawmaking power. Ecuador and some other states acknowledged
respect of autonomy; Peru's constitution acknowledged the existence of collective
rights. Such language could encompass a community with limited sovereignty,
or it might not. My suspicion is it does not (or else, in this forum, the countries
would have bragged that a given indigenous people living within its territory
governed itself independently). Critical to an American lawyer's understanding
of sovereignty: are there instances of a conflict of laws in which the law of
the indigenous people controls? If not, then I would not call the people sovereign
as such, even in the limited sense. And, it bears repeating, in the United States
the Indian Nations are sovereign as such, as are the states, even if the sovereignty
of both is subordinate to the Constitution.
Two points, neither of which is intended normatively. First, sovereignty is hardly the only important or even necessarily a good thing. The term "balkanization" refers to sovereignty, or the lust for it, metastasized. Moreover, in the Latin American context, title to traditional lands, and ownership of natural resources and intellectual property derived from those lands, may well be more important to the people involved than whether they can enforce a law at odds with the national codes. I'm taking no position on whether, if it is the case that indigenous people enjoy more sovereignty in the United States than in various Latin American countries, that is a good thing. I don't know.
Second, there is something ironic, or even bizarre, about the discussion of indigenous peoples within a core discourse of modernity, the highly bureaucratic law, or as here, normative policy diplomacy of the United Nations (or, for that matter, contemporary U.S. jurisprudence). Participation within such discourses requires that one become very modern indeed, and hence no longer represent, at least not purely, that which "indigenous" seeks to honor and preserve. An uncomfortable awareness of cognate contradictions has bedeviled recent anthropology. Which is not to maintain that the topic should be taken off the table, only that it is inevitably a bit surreal".