A invasão do plenário da Câmara dos Deputados em protesto contra a votação da PEC 215/00, colocou a questão da demarcação de terras indígenas de volta ao centro do debate público.
Minha querida amiga (e ex-sócia) Priscila Barros dissertou sobre esse tema em seu mestrado em sociologia pela Universidade de Western Ontário e foi gentil o suficiente para nos brindar com um informativo paper sobre o tema, que está em língua inglesa. Para os que não lêem em língua inglesa a Priscila disponibilizou um resumo em português.
O tema sobre o reconhecimento do direito dos povos indígenas de autodeterminação tem ganhado cada vez mais espaço no âmbito nacional e internacional. O debate sobre esse tópico muitas vezes é baseado em posicionamentos polarizados e/ou em argumentos pouco qualificados. O ensaio que escrevi foi motivado por uma das questões mais polarizadas e debatidas no âmbito da Comissão de Diretos Humanos da Organização das Nações Unidas - ONU, ela diz que: o reconhecimento dos direitos de autoderminação dos povos índigenas é uma ameaça à soberania do Estado. Eu discordo desta premissa e por esse motivo busquei na literatura existente e nos documentos oficiais disponíveis na esfera internacional e nacional informações para fundamentar meu argumento sobre o tema.
A análise está dividido em quatro partes. A primeira parte é dedicada à discussão sobre a abordagem teórica baseada nos ensaios de Weber (1946) “Politics as a Vocation”, “Structures of Power” and “Bureaucracy”. Em seguida, discuto a questão da identidade dos povos indígenas baseado no texto de Niezen (2000) sobre indigenismo, do Borrow (2000) sobre cidadania territorizalizada e da Gallois (2002) sobre território, territorialidade e terra. A terceira parte explora o tema sobre autodeterminação baseada no artigo da Muehlebach “What self in self-determination? Notes from the Frontiers of Transnational Indigenous Activism” (2003) e em documentos e relatórios oficiais da ONU e dos governos brasileiro e canadense. A comparação entre as estratégias de reconhecimento dos direitos de autodeterminação em ambos os países foi realizada para enriquecer o debate sobre o tema e trazer alguns esclarecimentos sobre como diferentes países lidam com esta questão. Por último foi apresentada uma discussão sobre interesse nacional, movimentos ativistas e grupos de interesse.
Este ensaio buscou trazer para discussão sobre a questão do reconhecimento dos direitos dos povos indígenas informações qualificadas sobre os diferentes aspectos que estão envolvidos neste processo. Além de tentar desmistificar alguns argumentos equivocados tanto sobre o posicionamento dos povos indígenas, quanto dos governos e grupos de interesse.
Abaixo vai o paper (A conversão de formato .doc para o usado nesse site deformou algumas partes da formatação do texto da Priscila).
TERRITORY OR LAND: ARE INDIGENOUS PEOPLES A THREAT TO THE SOVEREIGNTY OF THE STATE?
Por Priscila Barros
Los indígenas estaban cobijados por
el derecho natural y eran titulares
de los derechos a la libertad y
a nombrar sus autoridades.
(De las Casas 1992: 537)
Muchos indígenas de la Dominicana se
anticipaban al destino impuesto por sus
nuevos opresores blancos: mataban a
sus hijos y se suicidaban en masa.
(Galeano 1980: 15)
Eduardo Galeano in an interview about his book Mirrors argued that words have been inflated by contemporary society to create discourses and narratives that conceal the actual problems we should be discussing (Democracy Now 2009). The author advocated for a more straightforward and simplistic way of telling more with less. This is one of the main motivations for the examination I pursue in this essay about the relationship between indigenous peoples and the state.
There has been an ongoing debate about the implications that the recognition indigenous peoples’ self-determination rights might engender. I divide the literature on this topic into two general views: one that perceives indigenous peoples self-determination rights as secessionist (Government of Canada 2009b, Levy 2000, White 2002) and the other that argues that indigenous peoples do not seek secession, but acknowledgement of equality, rights to land, resources, and, by implication, culture (Muehlebach 2003; Cote 2001; Niezen 2000; Borrows 2000) . This brings me to the central question that will be addressed on this essay, that is, are indigenous peoples’ self-determination claims a threat to the sovereignty of the state?
Contrary to the recent literature which argues that indigenous peoples’ self-determination rights is a threat to the sovereignty of the state, I contend that indigenous peoples’ self-determination rights cannot pose a threat to the sovereignty of the state because these rights are recognized and legitimized within the core of the state. For this reason, I argue that in the case of relationship between indigenous peoples and the state, the Weberian statement - which argues that “the state is not only institutionalized in terms of the monopoly of coercive power to secure the continuation of its domination, but also to exploit the resources material or political of this structure” (1946: 88) - is still applicable.
In order to support my argument I present the following analysis. First, I present the overarching theoretical approach of this essay based on Max Weber’s (1946) essays “Politics as a Vocation”, “Structures of Power” and “Bureaucracy”. Second, I discuss the issue of indigenous peoples’ identity based mainly on Niezen’s (2000) discussion about recognizing indigenism, Borrows’ (2000) article about landed citizenship and Gallois’ (2002) discussion about territory, territoriality and land. Third, I explore the issue of self-determination drawing from Muehlebach’s article “What self in self-determination? Notes from the Frontiers of Transnational Indigenous Activism” (2003) and official legal documents and reports from the Canadian and Brazilian federal governments on the subject. The last part of this essay will present a discussion about national interest, indigenous peoples’ activists’ movements and interest groups.
1 - WEBER: TERRITORY AND THE STATE
Recent studies have argued that the role of the state is declining due to the intensification of the globalization process which is “defying the existing political hierarchies of legitimate power and allegiance” (Sassen 2006: 291). The fragmentation of the holistic notion of a homogenous society into complex diverse groups with conflicting interest has raised many questions about the state ability to accommodate all the demands of society into a multilevel organizational structure. For this reason, some studies have argued that the Weberian statement about the state is no longer applicable for understanding the contemporary social context (Gupta and Ferguson 1992; Mavroudi 2010; Sharma 2006). Even those authors who recognize that the state remains a critical actor in today’s society have argued that Weber’s notion of the state cannot provide an accurate understanding of the contemporary social dynamics (Sassen 2008; Ray 2007; Tambini 2001). Although I recognize that the role of the state might be declining (or changing) in some realms, I agree with Ray (2007) when he argues that it would be an exaggeration to expand this declination to all realms of the state’s actuation.
In the case of issues such as immigration policy and indigenous peoples’ rights, for instance, I would argue that the role of the state is actually strengthening.
Contrary to the recent literature, I contend that in the case of the relationship between indigenous peoples and the state the Weberian statement about the state is still applicable. Two specific elements of the Weberian approach are crucial to my argument. First, it is the notion of organized domination, “the state is not only institutionalized in terms of the monopoly of coercive power to secure the continuation of its domination, but also to exploit the resources material or political of this structure” (Weber 1946: 88). The second element is the hierarchy of the bureaucratic machinery. Bureaucracy, according to Weber, “rests upon expert training, a functional specialization of work, and an attitude set for habitual and virtuoso-like mastery of single yet methodically integrated functions” (Weber 1958: 229). As a result, it limits the accessibility and capability of interest groups that are “not part of the plutocratic [ruling] strata” or do not have the specialized training to influence the “distribution of power” (Weber 1946: 116).
In Weber’s epoch, development depended to a large extent on the exploitation of a territory in terms of material (natural resources) or monetary (taxation) means (Sassen 2006). Both means of exploitation were strongly related to a system of private property protections and the emergence of liberal democratic notions which enabled “the development of a legitimate system of laws and regulations that privileged the bourgeoisie and property as a criterion for granting rights” (Sassen 2006: 100). For this reason, the particular relation between the establishment of the modern state and capitalism is a crucial issue in the Weberian notion of the state as well as the complex network of interest groups who try to influence of the distribution of power in their own (economic) interest. Weber recognizes the complexity of the formation of the ‘organized domination’ where different groups of individuals come together to form the institutions through which the distribution of power is divided. And his notion of territory is embedded with the idea of control and relations of power, where the state configures “a relation of men dominating men” (1946: 78). Hence, politics in this kind of organization “means striving to share power or striving to influence the distribution of power either among states or among groups within a state” (1946: 78).
However, since the early nineteenth century, much has changed in terms of organized domination in the world. The Weberian notion of the state has been criticized by recent authors because they observe that the state has no longer control over its territory and the distribution of power. The rise of transnational and multinational corporations and international organizations that work outside the jurisdiction of the state and have the power to influence the national structure has been perceive by some authors as an unsettling process to the state’s sovereignty (Sassen 2006, Sharma 2006, Tambini 2001). For these authors, the state has no longer the monopoly of its affairs and it has become subject to external influences of international power holders. Although I do recognize that some corporations and international networks present a new form of interest groups who try to influence the distribution of power, I agree with Sassen (2006), Bauman (2004) and Ray (2007) when they refer to this unsettling process as incipient, tenuous or embryonic. If there is such a change taking place due to the intensification of the process of globalization, it is still in its infancy and has been commonly constructed as national (Sassen 2006). The state is still a critical political and military actor in today’s society, especially in terms of territorial authority.
One of the factors that contribute to the persistence of the state territorial authority is the hierarchy of the bureaucratic machinery. As Weber has rightly observed, bureaucracy
“is among those social structures which are the hardest to destroy. (...) Therefore, as an instrument for socializing relations of power, bureaucracy has been and is a power instrument of the first order – for the one who controls the bureaucratic apparatus.” (Weber 1946: 228)
The modern state has developed a high standard of “officialdom into a highly qualified, professional labour force specialized in expertness through long years of preparatory training, to secure its domination and continuation” (Weber 1958: 88). Therefore, the parcels of society that have political interest and want to have representativity within the state apparatuses have to conform or learn to navigate the highly institutionalized organized domination of the state. Notwithstanding, even when these groups have enough power to influence the distribution of power, Weber observes that they are still subject to one single structure that monopolizes the power. “The ruled, for their part, cannot dispense with or replace the bureaucratic apparatus of authority once it exists” (Weber 1946: 296).
Sharma (2006) has noted that even those structures that are outside the state adopt bureaucratic routines to legitimize their authority. From standardize stationary to hierarchical division of occupations within an institution; the juristic rationalism of the bureaucratic machinery seems pervasive in the organization of social structures, especially in terms of political representation. Weber argues that this is due to the notion of integrity created by bureaucracy that can only be achieved through the replication or improvement of the same structure.
This is one of the major reasons why Bauman (2004) and Sassen (2006) argue that the state is still a critical actor in the globalized world. Even the biggest multinational corporations in the world adopt bureaucratic routines and are ultimately subject to the state’s authority. Although they have the power to influence the national and international agenda, they can only do so by articulating a network within the state apparatus. Their headquarters and branches are dully registered within a public notary, they have to abide to the national jurisdictional framework of the countries they hold offices, they are subject to local and national legislation, etc. There is no institution in the world today that rules over the national state. The virtual space of the internet depends on the real space of the state territory to function (cables, electricity, etc.), international agreements need to abide to either international law
or national jurisdictions
, the rise of non-governmental and civil society organizations is based on bureaucratic organizing logic and most of them depend to a large extent on governmental funds to survive (Murray 2002). In all these instances, the state has a role.
For this reason, I sustain that the recognition indigenous peoples self-determination rights don’t pose a threat to the sovereignty of the state, as it some authors have argued (Levy 2000). The state still has control of the national territory and bureaucratic machinery. And indigenous peoples “can only strive for influencing the distribution or sharing the power, but not to control it” (Weber 1946: 94). The power imbalance between indigenous peoples, the state and other interest groups is sharp. Although indigenous peoples’ participation in international and national political processes has increased in the last few decades, their influence in the distribution of power is still incipient in terms of practical changes. The bureaucratic machinery has such an important role in society today, that even the inclusion of indigenous peoples inherent rights, traditional customs and identity in the international scenario is designed to conform to the rationalist tradition of the state apparatus. Indigenous peoples have been traditionally assimilated by the state apparatus in the national and international scenario starting with the term that define these peoples to the inherent rights they have historically demanded.
2 - INDIGENOUS, INDIGENOUS POPULATIONS, INDIGENOUS PEOPLES.
Raymond Williams in his book “Keywords: a vocabulary of culture and society” (1976) does not provide a definition for the term identity. One of the reasons for the absence of this word may be attributed to the social context in which Williams was writing. According to Bauman, the explosion of the identity discourse is a characteristic of post-modern society, where the “established issues of social analysis are being rehashed and refurbished to fit the discourse now rotating around the identity axis” (2001: 121). Another reason for the increasing interest on identity studies derives from the phenomenon referred to as “identity crisis” which stems from the abandonment sentiment triggered by the unsettlement of the state’s institutions through the process of globalization (Bauman 2004).
The order that was built under the notion of national identity has been substituted by the idea of individualization where ‘identity’ is no longer a ‘given’, but a ‘task’ (Bauman 2001). Instead of conforming to ‘invented traditions’ (Hobsbawn and Ranger 1983) and models of conduct of social institutions (Mulhern 2000), individuals are faced with the task of constructing their own identities and ‘self-ness’. In this context,
“culture is debated in terms of individual, group and categorical differences, creolization and hybridity, and the political process is ever more often theorized around the issues of human rights (that is, the right to separate identity) and of “life politics” (that is, identity, construction, negotiation and assertion).” (Bauman 2001: 121)
Relevant to this essay is the emphasis on the individual rather than collectivity, a legacy of the Enlightenment notions of democracy and fundamental freedom which prevails to this day through practices and discourses in the international and national sphere, especially in terms of human rights and specifically in official legal documents.
The right, then, is universal in its scope and particularly in its articulation.
This is one of the most salient issues discussed by indigenous peoples in terms of identity and rights (Muhelebach 2003). Not only because this notion is based on the classical liberal concept of autonomous individual (which has always been complicitous with the system of national sovereignty), but also because it is discriminatory on the basis of group membership and, as a result, it stops short of recognizing the collective nature of indigenous peoples’ rights and, in particular, their relationship to the land (Muelebach 2003). This emphasis on this Eurocentric notion of identity can be explained by the hierarchy of the bureaucratic machinery (Weber 1946).
According to Niezen, “the political reality of "being indigenous" is a product of the past several decades, originating in the terminology of international law and broadening to become a new form of group identity” (2000: 121). This is because indigenous peoples had no input on the elaboration of most documents regarding indigenous issues (Niezen 2000; Muehlebach 2003, Baines 2001, Gallois 2002), which illustrates the limitation the bureaucratic machinery enforces in terms of accessibility. Niezen explains that the use of the term 'indigenous' in reference to original inhabitants of a given territory was popularized in “international conferences and conventions, and hastened by the necessity for groups to identify themselves as indigenous, in order to benefit from the protections and rights of "indigenous peoples” (2000: 120-1).
One of the major ironies of the process of recognition of indigenous peoples’ rights is that it gained more emphasis internationally than nationally, where indigenous peoples have historically engaged in intense disputes with the state and the larger society. In the national context, the terms that are used in reference to original inhabitants of a territory vary in a great extent due to the language. During the sixteenth and seventeenth centuries, indigenous peoples in the American Continent were often referred to as Indians; given that Columbus believed he had reached India when he landed in the Caribbean for the first time.
In Brazil, this term was officially defined in Article 3 of the Indian Statute as “every individual of pre-Colombian ascendance and origin who self identifies or is identified as pertaining to an ethnic group whose cultural characteristics are distinct from the national society” (Governo Federal do Brasil 1973, author’s translation). Although referring to a multiplicity of different groups who had already specific identifies and cultures, this term is still used by the larger society and is the legal definition used in the Constitution of Brazil (Governo Federal do Brasil 1988).
”in this Act, aboriginal peoples of Canada” includes the Indian, Inuit and Métis peoples of Canada” (Government of Canada 1982). Another term that became common in the 1970s in Canada is “First Nations”; however there is no legal definition for this term. The Canadian Indian Act defines Indian as “a person who pursuant to this Act is registered as an Indian or is entitled to be registered as an Indian” (Government of Canada, 1985: Definitions, 2(1)). This act did not include Inuit and Métis as Indian peoples in Canada. These ethnical groups where only included in the Charter of Rights and Freedoms, in paragraph 35(2) which states that
What it is important about the definition of indigenous peoples is, on the one hand, the attempt to create a universal term that incorporates the diversity of these peoples under one single concept, prioritizing the classical liberal concept of individual over group membership. On the other hand, it is the attempt to assign these peoples a territorial identity which is not characteristic of their tradition. The reference of indigenous peoples in Brazil and Canada creates an essential link with the national territory, which is not present in the narratives of indigenous peoples’ identity.
Oliveira argues that “it is not in the nature of indigenous communities to establish a limited territory for the exercise of their sociability” (1996: 9, author’s translation). Indigenous peoples’ “loyalties, allegiance, and affection is related to the land” (Borrows 2000: 326) in order to survive. For some indigenous peoples the land is sacred, it provides the necessary resources for the survivor of their community (Gallois 2002), but it does not provide identity in the terms of national identity as state in the constitutions of Canada and Brazil.
Nonetheless, Gallois (2002) has argued that the systematic removal of indigenous peoples from their land has motivated indigenous peoples to adopt a quasi-territorial approach to defend their relationship to the land, through land claims and disputes with the state and the larger society (2002). This is true in Canada as well as in Brazil, where indigenous peoples have been presenting land claims as a way to protect their rights, and as a consequence, their identity (Baines 2001). In this context, the notion of territory becomes conflated with the notion of land, as indigenous peoples seek to guarantee their self-determination rights within their lands (Muehlebach 2003) and the state seeks to guarantee its sovereignty within the national territory.
1. SELF-DETERMINATION AND TERRITORY
Self-determination became a central issue in the international scenario after World War I, when Woodrow Wilson proposed to grant the right of self-determination to the Austro-Hungarian and Ottoman Empires (Muehlebach 2003). This term was also adopted by United Nations General Assembly in the Declaration on the Granting of Independence to Colonial Peoples (1960). At that point, self-determination became conflated with the notion of statehood and secession, the right of nation to freely choose their sovereignty and political status without external interference. A turning point in the understanding of this term occurred in 1970 when the international community “declared the apartheid state illegitimate on the grounds that self-determination was being withheld from the people of South Africa” (Muehlebach 2003). From this perspective, self-determination became understood as the right to freely determine the relationship between the nations and the state they presently inhabit. This is the cornerstone of the defense of indigenous peoples’ self-determination rights within the scope of the United Nations.
The Working Group on Indigenous Populations (WGIP) has challenged the “notion that self-determination applies only to a limited group of “peoples,” only to a certain type of “self” and only to a limited sphere of human activity” (Muehlebach 2003: 243). Muehlebach argues that the activism of indigenous peoples is not about creating new rights that are ‘exclusive to indigenous peoples.’ It is neither a secessionist attempt. Rather, it is about “filling in the normative framework of international human rights to protect the survival of indigenous peoples who do not enjoy any collective protection which guarantees their continuity at present” (Muehlebach 2003: 243).
From 1985 to 1993, the Working Group of the Sub-Commission on the Prevention of Discrimination and Protection of Minorities developed a draft Declaration on the Rights of Indigenous Peoples (Niezen 2000), which was adopted by the United Nations in 2007. The most controversial provisions of the declaration affirm the right of indigenous peoples to self-determination, as in Article 3, which states: "indigenous peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development" (United Nations, 2007). Self-determination is also invoked as a "right to autonomy or self-government in matters relating to their international and local affairs" (United Nations 2007: Article 4). One can infer from this document that self-determination is central to the declaration, reflecting the concerns of indigenous peoples expressed at every meeting of the WGIP (Niezen 2000). However the right to self-determination within their lands is not noted in the Declaration.
The Declaration states in Article 26, paragraph 2 that:
Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired. (United Nations, 2007)
The right to term self-determination is substituted by the terms such as ‘own’, ‘use’, ‘develop’ and ‘control.’ According to Niezen, term itself is not included in the paragraph, precisely because self-determination within a territory is the “request that some state representatives have the most difficulty accepting” (2000: 130); regarding that they “consider that recognition of the right to self-determination opens up possibilities of secession" (Muehlebach 2003: 253). For this reason, the subsequent paragraph of this same article grants the state the responsibility and the right to “give legal recognition and protection to these lands, territories and resources” (United Nations 2007: Article 26: paragraph 3). In other words, the state have the authority to negotiate with and delegate to indigenous peoples the rights to the territory they ‘traditionally own’.
The language used in this declaration demonstrates the tensions surrounding the issue of self-determination and land ownership in the relations between the state and indigenous peoples. The representatives of the state still see the potential for secession attempts in relation to self-determination and land rights. While the declaration seem to present both issues together, the fact that the two terms are separated in the structure of this international instrument points to the resistance of state representatives to adopt the draft of the declaration as proposed by the Working Group of the Sub-Commission on the Prevention of Discrimination and Protection of Minorities, which originally state that:
Indigenous peoples, as a specific form of exercising their right to self-determination, have the right to autonomy or self-government in matters relating to their internal and local affairs, including culture, religion, education, information, media, health, housing, employment, social welfare, economic activities, land and resources management, environment and entry by non-members, as well as ways and means for financing these autonomous functions. (United Nations, 1994: Part VII, Article 31)
The representation of indigenous activists in the international scenario has led many authors to conclude that there has been a great improvement in the recognition of indigenous rights overall. However, one can only achieve such a conclusion by examining the incorporation of indigenous rights case by case. The relationship between indigenous peoples and the state take different forms depending on the state and, more importantly, depending on the indigenous peoples. For this reason, in the next two subsections I will present a discussion about the incorporation of indigenous peoples self-determination rights in Canada and in Brazil based on national jurisdictional instruments such as the constitutions, bills and other legal documents relevant for the discussion of self-determination and territory.
3.1 The case of Canada
According to Moss and Gardner-O'Toole, “before contact with Europeans and to a large extent afterwards, aboriginal people did not rely on the written word, but rather on a variety of distinctive ways to organize, operate and record political ideals and institutions” (1991: 1). Examples of these were oral traditions, wampum belts and potlatch ceremonies. The significance of these has not been appreciated by the state; instead the federal government has tried to impose a uniform set of Euro-Canadian political ideals on vastly differing indigenous peoples. One example of this uniformization (assimilation) process is presented in a document called “The Government of Canada's Approach to Implementation of the Inherent Right and the Negotiation of Aboriginal Self-Government”, available at the Indian and Northern Affairs Canada website which explains that:
Aboriginal governments and institutions exercising the inherent right of self-government will operate within the framework of the Canadian Constitution. Aboriginal jurisdictions and authorities should, therefore, work in harmony with jurisdictions that are exercised by other governments. It is in the interest of both Aboriginal and non-Aboriginal governments to develop co-operative arrangements that will ensure the harmonious relationship of laws which is indispensable to the proper functioning of the federation. (Government of Canada, 2009a)
There are two major discussions that can be drawn from this statement. One is related to the issue of self-government instead of self-determination. The other is why self-determination is not used in the Canadian political discourses and legal documents when referring to indigenous peoples.
Starting with the former, it is important to mention that Canada voted against the adoption of the Draft Declaration on the Rights of Indigenous Peoples at the inaugural session of the United Nations Human Rights Council (Government of Canada 2009b). Canada has outlined many issues relating to the Draft, including an alternative language for the text of article 31, which strategically excluded the term self-determination:
“With the goal of enhancing harmonious and cooperative relations, States, in conjunction with indigenous peoples, shall establish processes to assure the timely and effective exercise of the right to autonomy or self-government of indigenous peoples” (United Nations 2006: 64).
This way, the representatives of the Canadian government tried to “provide effective guidance about how indigenous governments might work with other levels of government, including laws of overriding national importance and matters of financing” (Government of Canada 2009b). It was also an attempt to harmonize the text of the declaration to the existing Canadian legal instruments, such as the Indian Act (Government of Canada 1876) and the Charter of Rights and Freedoms (Government of Canada 1982). Since the declaration was not modified according to Canada’s proposals, at the time of the vote, Canada’s representative took the position that the Declaration would have no legal effect in Canada and would not represent customary international law. This position was later altered due to the pressure of the media and international agents (Niezen 2000). Regardless, this actuation of the Canadian government illustrates the tenuous recognition of self-determination rights and the power imbalance of the relationship between indigenous peoples and the state in this country.
The resistance of the government of Canada to recognized indigenous peoples’ self-determination rights suggests that the representatives of this state perceive indigenous peoples as secessionists and/or they want to preserve a domination of the state. For this reason, the official documents relating to indigenous peoples rights in Canada stress self-government and autonomy in the place of self-determination. According to official documents self-government
“does not include a right of sovereignty in the international law sense, and will not result in sovereign independent Aboriginal nation states. On the contrary, implementation of self-government should enhance the participation of Aboriginal peoples in the Canadian federation.” (Government of Canada 2009b)
This statement confirms Muehlebach observation that “in contrast to the right of self-determination, both autonomy and self-governance do not guarantee the collective right of localcommunities to land and natural resources” (2003: 253). The acceptance of indigenous peoples’ desire to retain and to protect their special legal status in Canada suggests an assimilationist approach to indigenous peoples’ affairs (Moss and Gardner-O'Toole 1991). This brings me to the second questions of why self-determination is not used in the Canadian political discourses and legal documents when referring to indigenous peoples.
The examination of the documents relating to the negotiation of indigenous claims suggests a strong bureaucratic hierarchy of the Canadian political and legal body (Government of Canada 2003). Despite the premises of Section 35 of the Charter of Rights and Freedoms (Government of Canada 1982) and orientations made by the Final Report of the Royal Commission on Aboriginal Peoples (Government of Canada 1996), which recommended passage of the Aboriginal Nations Recognition and Government Act, “the extension of section 35 protection to self-government powers through the treaty process and the nature of those powers remain controversial” (Hurley 2009). There is a great stress on the adoption of the Canadian procedural structure for the negotiations which impairs the ability of indigenous peoples to govern their own affairs (Moss and Gardner-O'Toole 1991). Indigenous jurisdictions and authorities are expected to adopt the procedure for harmonization of their jurisdictions, to create mechanisms to ensure administrative and financial accountability, implementation plans, programs, election procedures and the like.
In this context, indigenous peoples are actually becoming a type of political association. They have the right to self-govern within their lands, however they are not sovereign and their jurisdictions cannot contradict that of other governments, namely the federal government. This assertion does not hold true for the federal government who recognizes the self-government rights of indigenous peoples within their lands, but also safeguards the possibility of expropriation based on national interests (Expropriation Act, Government of Canada, 1985b). Although this act has a cautionary provision stating that in the case of recognized indigenous lands, the indigenous peoples who own the land should be notified about the intention to expropriate the land and materially compensated. In case of dispute or disagreement, the adjudication made by the Court shall be deemed to be a final judgment of the Court (Government of Canada 1985b: Article 18, paragraph 4); which reinforces the power imbalance between indigenous peoples and the state, and the lack of influence of the former in the distribution of power.
The process suggests that indigenous peoples in Canada are increasingly subjected to bureaucratic regulation (Cote 2001: 17). Indigenous peoples have the usufruct of the land, but the state holds the underlying title of the land and the right to expropriate it (in the best interest of the nation). In short, they are domestic dependent nations. Rather than self-determination rights, indigenous peoples in Canada have self-governance and autonomy. A right delegated by the state through its bureaucratic apparatus within its sovereign territory. Therefore, to answer the question of whether indigenous peoples pose a threat to the state sovereignty, I turn to Cote who states that “any form of Indian government exists by virtue of delegated authority of the Canadian Parliament and is not derived from an inherent right of the Indian tribe (2001: 17). The hierarchy of Canada’s bureaucratic machinery secures the domination and continuation of the State in such a way, that “any rights to self-government are seen as a delegated and limited privilege” (Cote 2001: 17) and can only insofar as it is in harmony with the ‘other jurisdictions.” In this sense, they do not pose a threat to the sovereignty of the state, rather they reinforce it.
3.2 The Case of Brazil
In Brazil, the recognition of indigenous peoples’ self-determination rights is slightly different. The constitutional rights of indigenous peoples in Brazil are expressed in the Indian Statute (Lei Nº 6.001, Governo Federal do Brasil 1973), in a specific chapter of the Constitution, Title VIII, "Social Order", Chapter VIII, "Indigenous Peoples" (Governo Federal do Brasil 1988), aside from other regulations regarding specific issues. The Brazilian State have been traditionally against the recognition of indigenous peoples’ sovereignty and particularly concerned with the threats they may pose to the national sovereignty (Baines 2001). The incorporation of indigenous self-determination rights has been dealt in terms of inherent rights and land claims. Similar to Canada, Brazil has developed specific languages in reference to indigenous rights which illustrate the efforts made by the State to maintain its domination within the Brazilian territory.
The Brazilian negotiation process has been more rigid and embedded in the state apparatus than in Canada. While the Indian Statute (Governo Federal do Brasil 1973) recognized the indigenous rights to their land, it gave the state the authority to legitimize and demarcate the lands, as well as, to intervene and expropriate based on national interest and other provisions.
According to the Indian Statute, land claims were to be recognized within a territory, but not negotiated (Baines 2001). This approach was viewed as assimilationist and authoritarian, since indigenous peoples had no input in the process of recognition of their own lands (Ramos 1998). The Constitution of 1988 initiated a new process in Brazil through the abandonment of the assimilationist point of view, and recognized the rights of the indigenous peoples over their lands as “inherent rights” (i.e., prior to the creation of the State itself), however it still predicated the authority of the Federal Government to recognize and legitimize these rights through decree.
Despite the innovations promoted by the new constitution, Ramos (1998) argues that not much has been changed in terms of the recognition of indigenous people’s self-determination rights in Brazil. The creation of indigenous people’s forums and organizations, and a governmental body responsible for guaranteeing their rights (National Indian Foundation - FUNAI) has created greater opportunities for indigenous people’s participation in the process of elaboration and approval of the documents that celebrate their relationship with the state. However, Baines argues that this participation is detrimental, at best (1997). In terms of land rights, not only the state has different models for granting indigenous peoples the right of usufruct but not ownership of a land, it also applies different strategies and narratives for maintaining governmental control over the territory (Gallois 2001).
Indigenous self-determination rights are recognized in terms of private property, ownership, based on the precepts of Roman Law in a privatist and exclusivist way (Gallois 2001). Even though, the new constitutional concepts assure indigenous peoples respect for their social organization, customs, languages, beliefs and traditions and most and foremost their right to be different, this recognition can only take place in accordance to the precepts of the national jurisdictional body. The Decree N 1.775 of January 8,1996 gave indigenous peoples the right to participate in the procedure of demarcation of their lands in all its phases, but reserved to the Minister of Justice the authority to approved or disapprove the demarcation of these lands and the state the authority to intervene in the lands for matters of national security.
The Report on the Situation of Human Rights of Indigenous Peoples in Brazil shows the ambivalence of the relationship between indigenous peoples and the state in Brazil. On the one hand, the government recognizes that (1) indigenous peoples self-determination rights “is a foundational right, without which indigenous peoples’ other human rights, both collective and individual, cannot be fully enjoyed” (United Nations 2009: 8) also that (2) these rights “is consistent with the respect for the political unity and territorial integrity of the sovereign and independent States which they inhabit” (United Nations, 2009: 8). On the other hand, it recognizes that (1) indigenous peoples still “lack adequate participation in all decisions that affect their lives and communities, and that they do not adequately control their territories, in many cases, even when lands are demarcated and registered” (United Nations 2009: 9) and that (2) the Government of Brazil still lack “effective mechanisms for consultations with indigenous peoples on development projects which have direct impacts on these peoples” (United Nations 2009: 9). In short the state admits the deficiencies of its apparatus for the inclusion of indigenous peoples in the process of recognition of their self-determination (or inherent) rights, but at the same time, it relies on the integrity of its bureaucratic machinery to improve it. To put somewhat different, the Brazilian State recognizes that indigenous peoples have limited influence in the process of distribution of power and defense of their rights, however it still perceives the sovereign state as the competent party to improve this process.
The text in force gives a constitutional category or status to the concept of indigenous lands, which is defined as follows:
Lands traditionally occupied by the Indians are those that they have inhabited permanently, used for their productive activity, their welfare and necessary for their cultural and physical reproduction, according to their uses, customs and traditions. (Governo Federal do Brasil 1988: Article 231, paragraph 2, author’s translation)
However indigenous peoples persistently suffer invasions and resource extraction on their lands by outsiders. Furthermore, the judicial federal body resists recognizing indigenous peoples’ self-determination rights, prioritizing national interest over inherent rights. The legal body is aligned with the property rights paradigm of civil rights (which are inscribed in the registry office), while indigenous peoples are aligned with their fundamental rights to their original lands (which is not registered). Even if Article 231 gives indigenous peoples the right to the lands, the bureaucratic and judicial procedure undermines this rights and requests proof of their inherent rights through a complex network of officialdom that involved scientist, representatives of the state and indigenous peoples involved. Their history, traditions, customs and memories are not enough to prove their rights to the land. The State still have the higher authority to recognize, expropriate and improve the lands if it is in the best interest of the nation.
In the case of Brazil, the rhetoric of the defense of indigenous peoples’ inherent rights has taken different forms through constitutional and jurisdictional instruments to policies that articulate their involvement in the elaboration and management of public policies. Nonetheless, these instruments of ‘empowerment’ seem to be perpetuating an assimilationist process through which indigenous peoples have only a limited role in governing their own affairs. As for the question of whether indigenous peoples pose a threat to the state sovereignty, it should be obvious that in Brazil this is not the case. The high standard of officialdom of Brazil’s social structure secures the domination and continuation of the state in such a way, that even, indigenous activists have been co-opted to be part of the state (Baines 2001).
4 - NATIONAL INTEREST AND INDIGENOUS ACTIVIST MOVEMENTS
In this section, I want to present a brief discussion about national interest and interest groups. As argued before, Non-Governmental Organizations and Civil Society Organizations normally depend to a large extent of governmental institutions either because they need financial support (Murray 2002) or because they are committed with changing specific policies (Baines 2001; Sharma 2006). A comparative study between Brazil, Canada and Australia argues that these institutions have been co-opted by states and transformed institutions committed to governmental policies (Baines 2001).
As NGOs depend on external resources, they usually have to commit to the goals or objectives of their sponsors, most commonly the government (Murray 2002). Instead of bringing change to the relationship between the state and indigenous peoples, these organizations have been strengthening the influence of the state into indigenous affairs through their partnerships (Baines 2001). Baines (2001) argues that the more the NGO gets involved in the political process, the more it gains status within the state apparatus. As a consequence, these organizations become involved in policy decision-making (Baines 2001) and the state apparatus.
This tendency reflects the pervasive influence of the neo-liberal process in which society is embedded; the privatization and decentralization process which exempts the state of the responsibility to ensure indigenous peoples rights and well-being (Baines 2001). The recent emphasis given to environmental and human rights issues by government and organizations has been influencing the performance these organizations. As consequence, the performance of NGOs in the defense of indigenous rights has become scanty and localized (Baines 2001) and the discussions about the “inequalities perpetuated by the social system and the unfair conditions in which indigenous peoples live are becoming scarce” (Baines 2001: 16, author’s translation).
An important measure taken by the Canadian government to mitigate this situation is to include third parties in the negotiation process. To this end, the Canadian Government work with provinces, territories and indigenous peoples to develop appropriate consultation mechanisms for municipalities and third parties that may be directly affected by self-government negotiations and agreements (Government of Canada 2003). In principle, the attempts the Canadian government has made to incorporate indigenous peoples within the national framework seem to be granting indigenous peoples real opportunities to govern their own affairs within their lands, notwithstanding, “the nature and scope of self-government powers and on the range of section 35 protection remains elusive” (Hurley 2009: 2). In other words, there is more discussion about the inclusion of indigenous peoples’ self-government rights than actual self-government arrangements.
In Brazil, Ricardo argues that “the agenda pursued by national and international society for Brazil’s ‘Indians’ in the early 1990s encouraged the emergence of a form of indigenous peoples representative as a whole” (1996: 90, authors translation). These new forms of political representation symbolize the incorporation by some indigenous peoples of mechanisms that allow them to deal with the institutional world of national and international society. However, this does not mean that their power to influence the decisions of the state is greater (or even equal) to other interest groups. Brazil has traditionally presented a very paternalistic and assimilationist agenda for the incorporation of indigenous peoples rights which has been historically subjected to the state’s authority and will (Baines 2001).
In the international scenario, the emergence of transnational organizations and networks has provided indigenous peoples with a mechanism that goes beyond the state’s control to present their demands and claims. However, it should be borne in mind that there is some distance between the adoption of an international document approved by these international organizations and a complete reordering of the state (Niezen 2000). The Declaration on the Rights of Indigenous Peoples, for instance, is not a binding upon states. Therefore, the real potential of this document can only be achieved when incorporated within the national state apparatus through legal or constitutional instruments. Hence, this process reinforces the importance of the state, since it is through the state apparatus that international instruments gain legitimacy.
It also illustrates one of the most important points of Weber’s understanding of the state, that is, the prevalence of interest groups under one head. Even though there may be different interest groups with the capacity to influence the distribution of power, in nationally and internationally, “these groups are also subject to one single structure that monopolizes the power” (Weber 1946: 86). Without the states recognition an international instrument cannot obtain legal representativity in the international or national scenario.
The issue is not only the imbalance of this relationship but also the influence of certain interest groups and the status that the legal system have in relation to the political system. The ultimate decision of disputes between the state and indigenous peoples is commonly grounded on the decision of a higher legal institution which is ultimately not representative of indigenous interests, in Brazil and Canada (Duprat 2006; Government of Canada 2003). In the balance between indigenous and national interests, the latter have historically been prioritized showing the inconsistence of the ability of the state to incorporate and recognize indigenous peoples’ self-determination, self-government and inherent rights (Niezen 2000; Hurley 2009; Duprat 2006).
CONCLUSION
At the introduction of this essay I argued that the recognition of indigenous peoples’ self-determination rights cannot be perceived as a threat to the sovereignty of the state, because these rights are established within the core of the state. The examination of official international documents from the United Nations and national documents from the government of Brazil and Canada aimed at showing the power imbalance of the relationship between indigenous peoples and the state. Also, this examination aimed at showing how the state is still a crucial actor in the process of recognition of indigenous self-determination rights. Despite the achievements indigenous peoples’ transnational and national movements, the state is still sovereign within the national territory and the bureaucratic machinery is a powerful instrument that legitimizes the authority of the state.
The process of negotiation of indigenous peoples’ self-determination rights in Canada and Brazil demonstrate the prevalence of the bureaucratic hierarchy and the state’s interest to the detriment of indigenous peoples’ interest. The fact that both countries choose to use terms such as inherent rights, self-government and autonomy instead of self-determination illustrates the power imbalance of the relationship between indigenous peoples and the state. Although indigenous peoples have persistently defended self-determination rights as the concept that best represents a political compromise, the Brazilian and Canadian governments resist in adopting this term in their official documents and discourses.
I contend that this resistance is based on the state’s strategy to safeguard itself against the “loss of control by regulations” (Weber 1958: 206). Therefore, the state uses the bureaucratic machinery to recognize indigenous peoples’ inherent rights, self-government and autonomy only insofar as it can exert authority over them (Muehlebach 2003). The contractions of the process of legitimization of indigenous peoples’ rights illustrate the ambivalence of this relationship. At the same time that the state recognizes indigenous peoples rights (either inherent or self-government rights), it also preserves the state’s rights to override this recognition based on national interest.
I recognize that these processes of recognition and incorporation of indigenous rights within the state apparatus might be changing the organizational logic of the jurisdictional arrangements of the state from the dominant logic of centripetal unifying normative framing to a “centrifugal logic of an enormous variety of subnational micro-processes that begin to denationalize what had been constructed as national” (Sassen 2008: 74). However, I content that it would be an exaggeration to perceive these changes as a threat to the sovereignty of the state, especially in the case of indigenous peoples. I have not found evidence of such a threat; rather my analysis has illustrated the vulnerability of indigenous peoples to the state authority.
REFERENCES
Alcantara, C. and G. Whitfield. 2010. “Aboriginal Self-Government Through Constitutional Design: a Survey of Fourteen Aboriginal Constitutions in Canada.” Journal of Canadian Studies 44 (2): 122-45
Baines, S. G. 2001. “Organizacoes Indigenas e Legislacoes Indigenistas no Brasil, na Australia e no Canada”. Serie Antropologica 295.
Bauman, Z. and B. Vecchi. 2004. Identity: Conversations with Benedetto Vecchi. Cambridge, UK; Malden, MA: Polity Press.
------. 2001. “Identity in the globalizing world.” Social Anthropology 9 (2): 121-29.
Borrows, J. 2000. " Landed Citizenship.” Pp 326-42 in Kymlicka, W. and W. Norman. 2000. Citizenship in diverse societies. Oxford: Oxford University Press.
Cote, C. 2001. “Historical Foundations of Indian Sovereignty in Canada and the United States: a Brief Overview.” The American Review of Canadian Studies (Spring/Summer): 15-23.
De las Casas, B. 1992. "Apologética Historia Sumaria II", Obras Completas, Volumen 7 Madrid: Alianza Editorial.
Democracy Now. (2009, April 9). Interview with Eduardo Galeano. [Video file].Video posted tohttp://openveins.fromthesquare.org/.
Duprat, D. 2006. “Direitos fundamentais e direitos patrimoniais”. Povos Indigenas do Brasil. Retrieved April 9, 2011 (http://pib.socioambiental.org).
Galeano. E. 1980. Las Venas Abiertas de America Latina. Ed 28. España: Siglo XXI Editores.
Gallois, D. T. 2010. “Terras Ocupadas? Territorios? Territorialidades?”. Terras Indigenas e Unidade de Conservacao da Natureza. ISA.
Government of Canada. 1982. “Charter of Rights and Freedoms”. Constitution Act, Part II, Section 35. Retrieved April 9, 2011 (http://www.ainc-inac.gc.ca/ap/ia/pubs/ddr/ddr-eng.asp#ft1a).
------. 1985a. “Indian Act,” (R.S.C., c. I-5). Retrieved April 9, 2011 (http://laws-lois.justice.gc.ca/eng/acts/I-5/).
------. 1985b. “Expropriation Act,” (R.S.C., c. E-21). Retrieved April 9, 2011 (http://laws-lois.justice.gc.ca/eng/acts/I-5/).
Government of Canada. Indian and Northern Affairs Canada. 1996. “Final Report of the Royal Commission on Aboriginal Peoples”. Published by the Ministry of Indian Affairs and Northern Development. Retrieved April 8, 2011 (http://www.collectionscanada.gc.ca/webarchives/20071115053257/http://www.ainc-inac.gc.ca/ch/rcap/sg/sgmm_e.html).
------. 2003. “Resolving Aboriginal Claims: A practical Guide to Canadian Experiences”. Published by the Ministry of Indian Affairs and Northern Development. Retrieved April 12, 2011 (http://www.ainc-inac.gc.ca/ap/ia/pubs/rul/rul-eng.asp).
------. 2009a. “The Government of Canada's Approach to Implementation of the Inherent Right and the Negotiation of Aboriginal Self-Government.” Retrived April 10, 2011 (http://www.ainc-inac.gc.ca/al/ldc/ccl/pubs/sg/sg-eng.asp).
------. 2009b.”Canada's Position: United Nations Draft Declaration on the Rights of Indigenous Peoples” Retrived April 10, 2011 (http://www.ainc-inac.gc.ca/al/ldc/ccl/pubs/sg/sg-eng.ashttp://www.ainc-inac.gc.ca/ap/ia/pubs/ddr/ddr-eng.asp#ft1a).
Governo Federal do Brasil.1973. Presidência da República. “Estatuto do ĺndio”. Lei Nº 6.001. Retrieved April 8, 2011 (http://www.planalto.gov.br/ccivil_03/Leis/L6001.htm).
------. 1988. “Constituição da República Federativa do Brasil”. Retrieved April 13, 2011 (http://www.planalto.gov.br/ccivil_03/constituicao/constituiçao.htm).
------. 1996. Presidência da República. “Decreto Nº 1.775”. Retrieved April 8, 2011 (http://www.planalto.gov.br/ccivil_03/Leis/L6001.htmhttp://www.funai.gov.br/quem/legislacao/pdf/Decreto_n1775.pdf).
Gupta, A. and J. Ferguson. 1992. "Beyond "Culture": Space, Identity, and the Politics of Difference." Cultural Anthropology 7(1):pp. 6-23.
Hall, S. 1992. A identidade cultural na pós-modernidade; tradução Tomaz Tadeu da Silva e Guacira Lopes Louro: Rio de Janeiro: DP&A.
Hibbert, W. N. 1927. International Private Law or The Conflict of Laws. London: University of London Press.
Hobsbawm E. and R. Terence. 1983. The invention of tradition. Cambridge University Press.
Hurley M. C. 2009. “Aboriginal Self-Government.” PRB 09-23E. Parliamentary Information and Research Service, Library of Parliament, Ottawa. Retrieved April 10, 2011 (http://www2.parl.gc.ca/Content/LOP/ResearchPublications/prb0923-e.pdf).
International Indian Treaty Council. 1977. "The Geneva Conference." Treaty Council News. 1(7):1-35.
International Labour Organization. 1989. "Convention 189: Convention Concerning Indigenous and Tribal Peoples in Independent Countries."
Levy, J. T. 2000. "Three Modes of Incorporating Indigenous Law.” Pp 297-325 in Kymlicka, W. and W. Norman. 2000. Citizenship in diverse societies. Oxford: Oxford University Press.
Mavroudi, E. 2010. "Nationalism, the Nation and Migration: Searching for Purity and Diversity."Space and Polity 14(3):219-233.
Moss, W. and E. Gardner-O'Toole, 1991. “Aboriginal Peoples: History of Discriminatory Laws.” BP-175E. Parliamentary Information and Research Service, Library of Parliament, Ottawa. Retrieved April 10, 2011 (http://www2.parl.gc.ca/Content/LOP/ResearchPublications/prb0923-e.pdf
Muehlebach, A. 2003. “What Self in Self-Determination? Notes from the Frontiers of Transnational Indigenous Activism”. Identities: Global Studies in Culture and Power 10: 241-68.
Mulhern, F. 2000. Culturemetaculture. London ;; New York: Routledge.
Murray, C.A. 2002. “The Third Sector: Cultural Diversity and Civil Society”. Canadian Journal of Communication 27: 331-50.
Niezen, R. 2000. "Recognizing Indigenism: Canadian Unity and the International MOvement of Indigenous Peoples." Comparative Studies in Society ad History. 42(1): 119-48.
Oliveira Filho, J. P. 1989. Os poderes e as Terras Indigenas. Rio de Janeiro: PPGAS, Museu Nacional.
Ramos. A. R. 1998. Indigenism: ethnic politics in Brazil. Madison: the University of Wisconsin Press.
Ray, L. J. 2007. Globalization and Everyday Life.London ;; New York: Routledge.
Ricardo, B. 1996. Povos Indígenas no Brasil 1991-1995. Sao Paulo: Institutio Socioambiental.
Sassen, S. 2008. “Neither global nor national: novel assemblages of territory, authority and rights.” Ethics & Global Politics 1 (1-2): 61-79.
------. 2006. Territory, Authority, Rights : From Medieval to Global Assemblages. Princeton, N.J.: Princeton University Press.
Tambini. D. 2001. “Post-national citizenship”. Ethnic and Racial Studies 24 (2): 195-217
United Nations. 1969. Vienna Convention on the Law of Treaties. Retrieved April 14, 2011 (http://untreaty.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf).
------.1994. "Draft Declaration on the Rights of Indigenous Peoples." U.N. doc. E/ CN.4/Sub.2/1994/56. Retrieved April 3, 2011 (http://www.unhchr.ch/huridocda/huridoca.nsf/(symbol)/e.cn.4.sub.2.res.1994.45.en?opendocument).
------. 2006. “Indigenous Issues.” U.N. doc E/CN.4/2006/79. Retrieved April 11, 2011 (http://www1.umn.edu/humanrts/instree/indigenous%20issues.pdf).
-------. 2007. Declaration on the Rights of Indigenous Peoples. United Nations Publications. Retrieved April 14, 2011 (http://www.un.org/esa/socdev/unpfii/en/declaration.html).
------. 2009. ”Report of the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous people in Brazil.” U.N. doc. a/hrc/12/34/add.2. Retrieved April 13, 2011 (http://www2.ohchr.org/english/bodies/hrcouncil/docs/12session/A.HRC.12.34.Add.2.pdf).
Weber, M. 1946. Max Weber: Essays in Sociology, ed. and trans. H. H. Gerth and C. Wright Mills (New York: Oxford University Press, 1946).
White, G. 2002. “Treaty Federalism in Northern Canada: Aboriginal-Government Land Claim Boards.” The Journal of Federalism 32 (3): 89-114.
Williams, Raymond. 1976. Keywords: A Vocabulary of Culture and Society. New York: Oxford University Press.
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