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Indigenous Rights in the Age of the UN Declaration

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  • Page extent: 370 pages
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 (ISBN-13: 9781107417014)

Indigenous Rights in The Age of The UN Declaration
Cambridge University Press
9781107022447 - Indigenous Rights in The Age of The UN Declaration - Edited by Elvira Pulitano
Frontmatter/Prelims

Indigenous Rights in The Age of The UN Declaration

This examination of the role played by the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) in advancing indigenous peoples’ self-determination comes at a time when the quintessentially Eurocentric nature of international law has been significantly challenged by the increasing participation of indigenous peoples on the international legal scene. Even though the language of human rights discourse has historically contributed to delegitimizing the rights of indigenous peoples to their lands and cultures, this same language is now upheld by indigenous peoples in their ongoing struggles against the assimilation and eradication of their cultures. By demanding that the human rights and freedoms contained in various UN human rights instruments be now extended to indigenous peoples and communities, indigenous peoples are playing a key role in making international law more “humanizing” and less subject to state priorities.

Elvira Pulitano is an associate professor in the Ethnic Studies Department at California Polytechnic State University (Cal Poly, San Luis Obispo). Her research and teaching interests include indigenous studies, African diaspora literatures, Caribbean studies, theories of race and ethnicity, migration, diaspora and human rights discourse.


Indigenous Rights in The Age of The UN Declaration

Edited by

Elvira Pulitano

With an Afterword by Mililani B. Trask

CAMBRIDGE UNIVERSITY PRESS
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Cambridge University Press
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Published in the United States of America by Cambridge University Press, New York

www.cambridge.org
Information on this title: www.cambridge.org/9781107022447

© Cambridge University Press 2012

This publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press.

First published 2012
Printed in the United Kingdom at the University Press, Cambridge

A catalogue record for this publication is available from the British Library

Library of Congress Cataloguing in Publication data

Pulitano, Elvira, 1970–
Indigenous Rights in The Age of The UN Declaration / Elvira Pulitano, Mililani B. Trask.
p. cm.
Includes bibliographical references and index.
ISBN 978-1-107-02244-7 (hardback)
1. Indigenous peoples–Civil rights. 2. Indigenous peoples–Legal status,
laws, etc. 3. Indigenous peoples (International law) 4. United Nations. General
Assembly. Declaration on the Rights of Indigenous Peoples. I. Trask, Mililani. II. Title.
K3247.P85 2012
342.08′72–dc23
2012007318

ISBN 978-1-107-02244-7 Hardback

Cambridge University Press has no responsibility for the persistence or accuracy of URLs for external or third-party Internet websites referred to in this publication, and does not guarantee that any content on such websites is, or will remain, accurate or appropriate.


This book is dedicated to the resurgence and flourishing of indigenous peoples around the world, whose vision and strength continue to enrich us all.


Contents

Notes on contributors
ix
Acknowledgments
xiv
Indigenous rights and international law: an introduction
Elvira Pulitano
1
1     Indigenous self-determination, culture, and land: a reassessment in light of the 2007 UN Declaration on the Rights of Indigenous Peoples
Siegfried Wiessner
31
2     Treaties, peoplehood, and self-determination: understanding the language of indigenous rights
Isabelle Schulte-Tenckhoff
64
3     Talking up Indigenous Peoples’ original intent in a space dominated by state interventions
Irene Watson And Sharon Venne
87
4     Australia’s Northern Territory Intervention and indigenous rights on language, education and culture: an ethnocidal solution to Aboriginal ‘dysfunction’?
Sheila Collingwood-Whittick
110
5     Articulating indigenous statehood: Cherokee state formation and implications for the UN Declaration on the Rights of Indigenous Peoples
Clint Carroll
143
6     The freedom to pass and repass: can the UN Declaration on the Rights of Indigenous Peoples keep the US–Canadian border ten feet above our heads?
Carrie E. Garrow
172
7     Traditional responsibility and spiritual relatives: protection of indigenous rights to land and sacred places
Kathleen J. Martin
198
8     Seeking the corn mother: transnational indigenous organizing and food sovereignty in Native North American literature
Joni Adamson
228
9     “Use and control”: issues of repatriation and redress in American Indian literature
Lee Schweninger
250
10    Contested ground: ‘āina, identity, and nationhood in Hawaii
Ku‘Ualoha Ho‘Omanawanui
276
11    Kānāwai, international law, and the discourse of indigenous justice: some reflections on the Peoples’ International Tribunal in Hawaii
Elvira Pulitano
299
Afterword:Implementing the Declaration
Mililani B. Trask
327
Index
337

Notes on contributors

Joni Adamson is an associate professor of English and Environmental Humanities at Arizona State University and 2012 president of the Association for the Study of Literature and the Environment (ASLE). She is the author of American Indian Literature, Environmental Justice, and Ecocriticism: The Middle Place (2001). With Scott Slovic she coedited a special issue of MELUS on “Ecocriticism and Ethnic Literatures” (summer 2009). Her essays and reviews have appeared in Globalization on the Line, The Blackwell Companion to American Literature and Culture, The American Quarterly, Teaching North American Environmental Literature, Reading the Earth, and Studies in American Indian Literatures.

Clint Carroll is an enrolled citizen of the Cherokee Nation and is currently a post-doctoral associate in the Department of American Indian Studies, University of Minnesota. He completed his doctoral dissertation in the Department of Environmental Science, Policy, and Management, University of California, Berkeley.

Sheila Collingwood-Whittick is a senior lecturer in the Department of Anglophone Studies at Stendhal University – Grenoble 3. Over the previous thirty years her field of research has been, broadly, that of postcolonial literatures, and she has published widely on fictional and autobiographical writings from several former British settler colonies. For the past twelve years, however, her scholarship has focused increasingly on indigenous and non-indigenous Australian fiction. During that time she has edited a collection of essays entitled The Pain of Unbelonging: Alienation and Identity in Australasian Literature (2007), as well as publishing several essays on the tortuous relationship between history and fiction in recent Australian literature. The scope of her research has also widened to encompass non-literary issues, and her most recent work has been devoted to the ongoing impact of the trauma of colonization on the lives, culture, and environment of Australia’s indigenous peoples. Forthcoming publications include two book chapters (one on scientific racism and the museumization of indigenous remains, the other on the historical (in)visibility of Australia’s Aboriginal peoples) and a jointly edited book on indigenous peoples and genetic research.

Carrie Garrow (Akwesane Mohawk) is the Executive Director of the Center for Indigenous Law, Governance and Citizenship at Syracuse University College of Law, as well as an adjunct professor. She received her BA from Dartmouth College, JD from Stanford Law School, and has an MPP from the Kennedy School of Government. Ms. Garrow’s writings include “Treaties, Tribal Courts, and Jurisdiction: The Treaty of Canandaigua and the Six Nations’ Sovereign Right to Exercise Criminal Jurisdiction,” 2 Journal of Court Innovation (2009); “Following Deskaheh’s Legacy: Reclaiming the Cayuga Indian Nation’s Land Rights in the Inter-American Commission on Human Rights,” 35 Syracuse Journal of International Law and Commerce (2008); (with Joseph Thomas Flies-Away and Miriam Jorgensen) “Native Nation Courts: Key Players in Nation Rebuilding,” in Miriam Jorgensen, ed., Rebuilding Native Nations, Strategies for Governance and Development (2007); (with Joseph Thomas Flies-Away and Miriam Jorgensen) “Divorce and Real Property on American Indian Reservations: Lessons for First Nations and Canada,” 29:2 Atlantis: A Women’s Studies Journal (2005); (with Sarah Deer) Tribal Criminal Law and Procedure (2004); (with Paul Robertson and Miriam Jorgensen) “Indigenizing Evaluation Research: Raising the Tipi in the Oglala Sioux Nation,” 28 American Indian Quarterly (2004).

Ku‘Ualoha Ho‘Omanawanui is a Kanaka Maoli scholar, poet, artist, and mālama ‘āina advocate. She is an assistant professor of Hawaiian Literature at the University of Hawaii at Mānoa and is also a founding and current Chief Editor of ‘Ōiwi: A Native Hawaiian Journal. She has widely published both critical essays and creative writing in Hawaii and abroad. She was born in Kailua, O‘ahu, and raised in Wailua Homesteads, Kaua‘i, and has been a “Ko‘olau” east-side girl her whole life, currently dividing her time between Anahola, Kaua‘i, and Ha‘iku, O‘ahu.

Kathleen Martin is an assistant professor at Cal Poly State University in the Ethnic Studies Department, where she teaches courses in Indigenous Studies. She is a mother of three and grandmother of five, and her German, Irish, and Dakota family is from Minnesota and South Dakota. She holds an MA in Native traditions and a PhD in educational leadership, with an emphasis on culture, language, and literacy, from the University of California, Santa Barbara. Her research investigates the social, cultural, political, and historical relationships of Native peoples with the United States, including issues of land, culture, language, and education in Native communities. Her work has appeared in journals such as Teaching and Teacher Education, Journal of School Effectiveness, Santa Barbara Papers in Linguistics, and the Encyclopedia of Religion. Her most recent edited volume, Indigenous Symbols and Practices in the Catholic Church: Visual Studies, Missionization and Appropriation (2010), presents a multidisciplinary discussion of appropriation and missionization, spiritual and religious traditions, and educational issues in the teaching of art and art history, as well as the effects of government sanctions on traditional practice and the artistic interpretation of symbols from Native and Indigenous perspectives. She is co-founder with the California Indian Education Association and the University of California, Santa Barbara of the Community of Scholars: Gatherings of American Indian and Indigenous Students and Mentors.

Elvira Pulitano is an associate professor in the ethnic studies department at California Polytechnic State University, San Luis Obispo. Her research and teaching interests include indigenous studies, African diaspora literatures, Caribbean studies, theories of race and ethnicity, migration, diaspora, and human rights discourse. A Fulbright scholar from Italy, Dr. Pulitano holds a PhD in English from the University of New Mexico, where she specialized in Native American literatures and postcolonial studies. She is the author of Toward a Native American Critical Theory (2003) and has published essays on the work of Gerald Vizenor, Louis Owens, V. S. Naipaul, Caryl Phillips, Jamaica Kincaid, and Edwidge Danticat. She is also the editor of Transatlantic Voices: Interpretations of Native North American Literatures (2007). She is currently completing a monograph exploring literary representations of diaspora in Caribbean-born writers living in the United States. Before her current appointment at Cal Poly, she taught postcolonial literatures and theory at the universities of Geneva and Lausanne.

Isabelle Schulte-Tenckhoff is a professor at the Graduate Institute for International and Development Studies, Geneva. Her research focuses on the rights of non-state groups, and favors a non-Eurocentric approach to the role of indigenous peoples in the history of international relations. She is the author of, inter alia, La question des peuples autochtones (1997) and its sequel, Introduction au droits des peuples autochtones(forthcoming 2012 in the same series). Her publications also include the edited volume Altérité et droit (2002), as well as numerous articles published in Switzerland, France, and Canada.

Lee Schweninger is Professor of English at the University of North Carolina Wilmington, where he teaches American Indian literature and serves as coordinator for the Native American Studies minor. In addition to several essays in book collections, he has published essays in such journals as Studies in American Indian Literatures, American Indian Quarterly, and American Indian Culture and Research Journal. He has published a book-length study of N. Scott Momaday (2001), and most recently a study of several Native American writers and the environment, Listening to the Land: American Indian Literary Responses to the Landscape (2008).

Mililani B. Trask is a Native Hawaiian attorney with an extensive background in Native Hawaiian land trusts, resources, and legal entitlements. In 1993, Ms. Trask became a member of the prestigious Indigenous Initiative for Peace (IIP), a global body of indigenous leaders convened by Nobel laureate Rigoberta Menchu-Tum. In 1995, she was elected the second vice chair of the General Assembly of Nations of the Unrepresented Nations and Peoples Organizations (UNPO), an international body founded by his holiness the Dalai Lama as an alternative forum to the United Nations. Ms. Trask is an acknowledged peace advocate, and studied and worked for seven years with Mother Theresa of Calcutta. In 2001, Ms. Trask was appointed as the Pacific representative to the United Nations Permanent Forum on Indigenous Issues and is currently considered an indigenous expert to the United Nations in international and human rights law. She is recognized as one of the primary authors of the United Nations Declaration on the Rights of Indigenous Peoples.

Sharon H. Venne is an Indigenous Treaty person (Cree) and by marriage a member of the Blood Tribe within Treaty 7 with one son. She worked at the United Nations prior to the establishment of the Working Group on Indigenous Peoples in 1982. The background research to the many clauses on the Declaration on the Rights of Indigenous Peoples is included in her book: Our Elders Understand Our Rights: Evolving International Law Regarding Indigenous Peoples (1998). In addition, Venne has written numerous articles and edited materials related to the rights of indigenous peoples. She has lectured on the rights of indigenous peoples in Australia, Canada, France, Hawaii, Italy, New Zealand, Norway, Sweden, and the United States. In addition to her work on the Declaration, she worked to secure a UN Study on Treaties. From the first introduction of the resolution in 1983 until the report was finalized in 1999, Venne worked to ensure that the report reflected indigenous laws and norms. All her work internationally and domestically relates to the promotion of the rights of indigenous peoples, especially rights related to lands, resources, and treaties. Some of her works on laws of the Cree Peoples related to treaty making were published in Aboriginal and Treaty Rights in Canada (Michael Asch, ed.) and Natives and Settlers – Now and Then (Paul DePasquale, ed.).

Irene Watson belongs to the Tanganekald and Meintangk peoples, traditional owners of the Coorong in South Australia. She is currently employed as an Associate Professor at the University of South Australia and is the author of a number of articles and books on Aboriginal peoples and the law. She is currently completing a manuscript, “Raw Law,” for publication.

Siegfried Wiessner is a Professor of Law at St. Thomas University School of Law, Florida, and the founder and director of its LL.M. and J.S.D. programs in intercultural human rights. He holds a law degree (1977) as well as a Dr. iur. (1989) from the University of Tübingen and an LL.M. from Yale (1982). He is the editor-in-chief of Martinus Nijhoff’s Studies in Intercultural Human Rights. Since 2008, he has served as the chair of the International Law Association’s Committee on the Rights of Indigenous Peoples. From 2007 to 2010, he was a member of the American Society of International Law’s Executive Council. He teaches US constitutional law and international law, and has written extensively in the fields of indigenous rights, international law, and jurisprudence, including “Rights and Status of Indigenous Peoples,” 12 Harvard Human Rights Journal (1999); Indigenous Sovereignty, 41 Vanderbilt Journal of Transnational Law (2008); and (with W. Michael Reisman et al.) International Law in Contemporary Perspective (2004).




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