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1 Should We Have a Universal Concept of 'Indigenous Peoples' Rights'?: Ethnicity and Essentialism in the Twenty-First Century Author(s): John R. Bowen Source: Anthropology Today, Vol. 16, No. 4 (Aug., 2000), pp Published by: Royal Anthropological Institute of Great Britain and Ireland Stable URL: Accessed: 01/05/ :53 Your use of the JSTOR archive indicates your acceptance of JSTOR's Terms and Conditions of Use, available at JSTOR's Terms and Conditions of Use provides, in part, that unless you have obtained prior permission, you may not download an entire issue of a journal or multiple copies of articles, and you may use content in the JSTOR archive only for your personal, non-commercial use. Please contact the publisher regarding any further use of this work. Publisher contact information may be obtained at Each copy of any part of a JSTOR transmission must contain the same copyright notice that appears on the screen or printed page of such transmission. JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship. For more information about JSTOR, please contact Royal Anthropological Institute of Great Britain and Ireland is collaborating with JSTOR to digitize, preserve and extend access to Anthropology Today.

2 Should we have a universal concept of 'indigenous peoples' rights'? Ethnicity and essentialism in the twenty-first century JOHN R. BOWEN John R. Bowen is the Dunbar-Van Cleve Professor of Arts and Sciences and Chair of the Program in Social Thought and Analysis at Washington University in St. Louis. His most recent book (with Roger Petersen) is Critical comparisons in politics and culture (Cambridge UP). He is presently completing 'Entangled commands: Islam, adat, and equality in the Indonesian legal field'. His is: artsci. wustl. edu. Many, if not most anthropologists, myself included, have spent our professional lives working with people whose traditions, language, or way of life differ from people in power. We sometimes use the phrase 'indigenous' to refer collectively to such people and to contrast them to the groups who dominate in terms of politics or economics. The term 'indigenous' has also become part of legal discourse, as coalitions working at the United Nations and elsewhere have made 'indigenous peoples' rights' a part of international customary law. I wish to examine here the argument that the most appropriate legal and (more broadly) normative concept to characterize struggles for greater autonomy within nation-states is that certain rights accrue to all, and other rights accrue only to those peoples who are 'indigenous.' I underscore that those who make this argument intend for the idea of 'indigenous peoples' rights' to have universal applicability and legal force. I focus on the relationship between the idea of 'indigenous' as it appears in current legal and political discourse about the rights of 1. More recently France has been the target of criticism for not complying with the European peoples, and the many local ideas of 'indigenousness' Convention Human Rights when condemned for that one finds used in different parts of the world. Does holding a man without a fair trial (Lib?ration 8 making universal claims about rights that accrue only to November 1999). 2. A 1968 case 'the indigenous' have different consequences in different brought to the European Court of Human Rights places? Is this universal valorization of territorial preceby French-speaking residents of the dence required to achieve certain ends, or can ideas of Dutch-speaking part of Belgium underscores both points. The plain- self-governance and equality achieve them as well? In tiffs cited the European Convention the end, I argue for a two-stage framework combining a on Human Rights in arguing thathe state failed to provide French-lan- broader universal notion of group-differentiated rights guage schools, but lost on grounds with multiple, culturally-specific local concepts of thathe Convention does not guarantee linguistic continuity an does people, place, and state. not require the state to take positive steps to preserve languages (see dis- I. 'Indigenous peoples' and collective cussion in Brownlie rights 1988). 3. Childs and Delgado-P. (1999), Current discussions of 'indigenous peoples' take place in a strongly-worded response to against the background of three conceptual frameworks sceptical remarks by Andr? B?teille (1998), that emerged after World War II: correctly human rights, collective emphasize that indigenous peoples themselves are rights, and the rights of aboriginal peoples. creating conceptions of the indigenous. As is evident from what fol- Most discussions of rights in the first three decades lows below, I agree with B?teille in after World War II were focused on individuals - in part his distinctions between the history because talk of minorities and ethnic groups had been tarof the Americas and Australia, on the one hand, and Asia, on the other; nished by Nazi ideology. The 1948 Universal Declaration however, I would push Childs and of Human Rights and the two International Covenants of Delgado-P. even further in their emphasis on the right of indigenous 1966 (one on Economic, Social, and Cultural Rights, the groups to define themselves, and ask other on Civil and Political Rights) list the rights of indiwhether different regional networks of native peoples cannot formulate viduals vis-?-vis states. They say little about states' posiculturally distinctive ideas of tive obligations. Current debates within this conceptual 'indigenousness' - or other similar framework concern the legitimacy of religious or other concepts should other concepts prove more fitting to them. cultural norms as sources of individual rights or limits on 4. The title of the 1957 ILO rights claims, questions of economic as well as report, the Convention concerning political the protection and integration of rights, and claims that the politics of human rights pits the indigenous and other tribal and West against Asia and Africa. semi-tribal ' populations in independent countries, presents the Arguments for collective rights (the second framemajor assumptions of the period: work) usually begin by pointing out two major limitathat indigenous peoples were primarily 'tribal'; thathey were not yet tions of a solely individual-rights approach, namely, that well integrated into the larger certain rights, such as the right to perpetuate a language society but should be; and thathese were matters for the respective inde- or occupy a territory, only make sense when thought out pendent countries to take up. By the in terms of a group, and, secondly, that human rights approaches restrain states but do not compel them to take positive action to guarantee real social or cultural equality.2 In contrast to the human rights focus on Asian, African, and Middle Eastern societies, collective rights theoretical literature has dealt primarily with North America and Europe. Theorists in Canada and the U.S. (e.g. Will Kymlicka (1995), Charles Taylor (1994), Michael Walzer (1997)) focus on problems of the political representation of ethnic groups and the degree of toleration that states ought to afford long-standing societies existing within the boundaries of the state, with Native Americans and small religious groups such as the Amish as prime examples. Many European writers, by contrast (e.g. Bikhu Parekh (1995), Norbert Rouland (1996), Michel Wieviorka (1997)), focus on the rights of 'immigrants', and in particular on the status to be accorded Islamic social norms and rules. Current debates within this framework concern the sort of 'external protections' (self-governance, specific economic rights, language protection) necessary to ensure real equality, and the extent to which one ought to permit social norms that would not be permitted in the wider society - for example, those which discriminate against women - to be enforced within a minority group. Proponents of the rights of indigenous peoples (the third conceptual framework) take great pains to differentiate their claims from those that can be made for all minorities, arguing that native peoples have a special cultural and historical tie to their territory and therefore special claims to self-determination within that territory (Cortez 1993).3 Discussions of indigenous peoples' rights arose in the Americas in the context of European invasions and colonization (when the Spanish and French cognates of 'indigenous' were coined), and have occupied an important place in international forums since the 1940s, when the International Labour Organization studied problems faced by 'indigenous and other tribal' societies in South America (Anaya 1996: 9-58). An early emphasis on problems of integrating indigenous American peoples into dominant societies was, by the 1970s, replaced by a call to take action that would allow them, and other, similar societies elsewhere, to maintain cultural and economic difference.4 A 1994 U.N. Draft Declaration on the Rights of Indigenous Peoples is one of the many conventions and declarations that have attempted to proclaim a universal set of norms and rights regarding 'indigenous peoples', and that have led the legal scholar James Anaya (1996:57) to proclaim the emergence of a new 'international law of indigenous peoples'.5 The emergence of these international norms, claimed to have universal applicability, introduces a specific temporal element into rights discourse. Whereas claims about collective rights can be, and often are, based on arguments that real equality requires treating some groups differently to others (and can apply to a variety of types of groups), this new set of claims rests on a 12 ANTHROPOLOGY TODAY Vol 16 No 4, August 2000

3 1970s, assimilation and develop- different argument, namely, that certain rights adhere to ment were no longer goals of reform, but rather the source of the groups that were the first to settle a particular territory. It problem. Their closerelationship to is this priority of residence that justifies creating a set of their environment - their 'sylvan culture' claims about indigenous peoples that are distinct from (quoted in Tennant 1994:17) - both put indigenous peo- claims made about minorities or about peoples subject to ples in danger and gave them the discrimination or potential of redeeming humanity oppression. from its high modernist sins. The critique of developmental modernity II. Stretching the category wa soon coupled to a critique of American 'tribes' and Aboriginal Australians have political modernity through the activities of indigenous people's served as prototypes for thinking about 'indigenous peoorganizations. In 1971 the U.N. ples'. In the Americas, the long temporal gap between Economic and Social Council authorized a Study on the problem of early migrations of today's First Peoples and the condiscrimination against indigenous quest of the region by Europeans made the use of 'indigepeoples, published in separate volumes in the mid-1980s. The same nous', although not precise (because everyone travelled Council created a Working Group to the Americas from somewhere else), at least capable of on Indigenous Populations in 1982, whichas continued to meet annu- picking out a category of people who were the first to ally, and whose 1994 Draft occupy the region. (I leave aside the more specific issues Declaration the Rights of of tribal claims to grave sites on the basis of Indigenous Peoples has become the very longstandard text of reference in discus- term occupation.) The clear difference in modes of life sions on the topic. In 1989 the ILO and physical appearance between also revised its earlier convention, prototypical indigenow recognizing the aspirations of nous peoples and dominant populations, along with plauindigenous peoples 'to exercise con- sible assumptions that the former generally wished to trol over their own institutions, ways of life and economic development preserve their distinctiveness, have made this conceptual and to maintain and develop their framework broadly accepted, if not always easily appliidentities, languages and religions, within the framework of the States cable.6 This distinctiveness has also led to particular in which they live' (Anaya 1996: associations of indigenousness with cultural authenticity, 47-49). 5. On the spiritual ties to the land, powerful medicinal question of precisely knowledge, what is meant by 'customary inter- and in Brazil, in the form of 'indigenism', a powerful set national law', relied on heavily by of public images about national Anaya, see Bodansky (1995). identity (Ramos 1998). 6. On cultural ideas and legal In Asia and Africa, by contrast, no such long time gap claims about people and land in exists between an initial peopling and a subsequent con- Australia, see Layton (1997) and Povinelli (1993); on differences in quest. Populations moved around and some absorbed indigenous legal policies in others; these differences in demographic history have led Australia and North America, Barsh (1988). a number of Asian and African scholars and delegates to 7. In a similar vein, a report of international forums to argue that the the category 'indige- Independent Commission on International Humanitarian Issues nous peoples' should be limited to the Americas and (Rizvi 1987:6) states that in India Australia (Rouland et al. 1996: ; Waehle 1991). population movements have made 'the International agencies have responded by identifying as question of antecedence too complex to resolve' and thathere- 'indigenous peoples' those groups seen as distinct and fore for Asia in general 'indigenous' will be taken to mean 'tribal and vulnerable (usually nomadic or pastoral in mode of life), semi-tribal communities, presently groups labeled locally as 'tribes' (especially in India), or threatened with what is sometimes groups in rebellion against the state. (Thus, the East called "internal colonisation'" - a redefinition which, at least for Timorese appeared frequently on lists of 'indigenous anthropologists used to the difficulty peoples', but not the West Timorese, who had not coaof 'tribe', helps not very much. 8. Barnes also usefully reminds lesced into a group opposing the Indonesian state.) In us thathe categories 'foreign' and some cases the idea of 'non-dominance' becomes the pri- 'indigenous' have great significance in much of Indonesia, but one given mary criterion (Kingsbury 1998:453), leading one to by a local political culture. As wonder whether a reversal in political fortunes could readers of this journal are well create aware, dual structures of newly 'indigenous' peoples out of formerly domauthority are found in much of the Pacific, inant ones. including many societies of Consider the strenuous conceptual stretching under- Indonesia, in which an autochthonous people hold spiritual authority taken by the editors of a recent book on Asia to apply the and a people from across the seas concept of 'indigenous peoples' to that continent, a task hold political authority. The value of 'overseas' can take added meanings, which one of the book's editors declared to be 'extremely as in Islamic societies of western difficult but by no means Indonesia where the rulers impossible' (Gray 1995:37). brought the spiritual power of Middle One author (Kingsbury 1995:29-33) notes that China and Eastern Islam. Indonesia have plausibly claimed that all their people 9. From the United Nations have Department of Public Information, lived on their lands for a long time, and hence are equally 'indigenous'. In the way of a solution to the 10. Amselle (1996) finds older ideas of a 'war of the races' resur- problem he proposes that we should no longer require facing in current French claims that that 'indigenous people' have had a historical continuity these same natives, now immigrants, with the land - thus are inassimilable to French abandoning precisely the society; original thathey are merely, as one hears in argument that indigenous peoples were different from bourgeois chatter, fran?ais de other oppressed minorities.7 In the same volume, writing papiers ('French with [immigration] papers'), as opposed to the indige- about eastern Indonesia, a region of precisely those nous fran?ais de souche ('French of small-scale, economically and politically vulnerable [older] stock') do not consider here the societies generally intended to benefit from being important question of whether indi- labelled 'indigenous', the anthropologist Robert Barnes vidual rights of group members are restricted or violated when (1993:322), who prefers to retain some idea group of prior norms are given precedence over occupation for the concept of 'indigenous', states that ^?[?igenous (indrds/nas), a. [f. late L. inai- %tn-us boni in a country, native J. indigen-a a dative : see Indigene) + -ous.] 1, Born or produced naturally in a land or region ; native or belonging naturally to (the soil, region, etc). (Used primarily of aboriginal inhabitants or natural products.). 1646Sir T. Browne Pseud. Ep. vi. x. 325 Although.. there bee.? s warme 5 of Negroes serving under the Spaniard, yet Ver? they ail transported from Africa,.and are not indice- "nous or proper natives of America Phil. Trans. XIX.?07This Creature was formerly Common with usiti Ireland ; Did au Indigenous Animal.. universally met with in all Wts of the Kingdom Newtk Tour En*. <y Scoi. 1S8 J? different Highland glens..where the indigenous sheep are supposed to remain unmixed S. Williams Ver? M&U 70 A plant indigenous unly to China and Tartary.?A? Whew ell Hist. Induct, Sc. (i8s7! They liad.. Ibetn passionately fond of their indigenous poetry y?. Hall in Examiner 11 Apr. 228/3 Compositions which ^ll?diously reject all words that are not either Sanskritic or indigenous Westcott & Hort Grk..V. T. Introd.? ff 18 Hardly any indigenous Syriac theology older than the?fourth century has been preserved Kidkk Haggard KtSohmon 's Mines Introd. 5 The indigenous Hora and fauna -of Kukuanaiand. b. trans/, ana?g. Inborn, innate, native. ','01864 I. Taylor (Webster), Joy and hope are emotions j?digenoui to the human mind J. Maktinkau Types Sth. Th. II. 68 The more we appreciate what obligation means, the more shall we rest in the psychologically indigenous character of its conditions..v 2. Of, pertaining to, or intended for the natives ; 1 nati ve', vernacular. " ^844 H. H. Wilson Brit. India II. 579 Most of the Misibnary establishments attempted the formation of an Engjbh school in connexion with their indigenous schools.?* Hence Indi/grenously adv., in an indigenous manner, as a native growth. Indigfenousness, the quality of being indigenous or native. *?-?r^ ^R0TE Greece 11. iv. II. 403 The Achaeans..belonging femgenously to the peninsula G. Blvth Remiti. Miss. Lije iv. 183 The cotton plant grows indigenously. t894 Forum (TJ. S.) Mar. 19 Progress is slow, population in- i/s**51^?ut *su?h^y* an<i tnat indigenously. Mod. The *S us^ recor(led fro? various localities in Scotland, but its ' todigenousness in the north is doubted. A new English dictionary on historical principles. Vol 5, Part 2. Clarendon Press, 1901, p one simply cannot distinguish between indigenous and other peoples in eastern Indonesia.8 As if in revenge for his agnosticism, it is the society where Barnes did much of his fieldwork, the K?dang, which, alone of all eastern Indonesian societies, appears on a U.N. website map of 'indigenous peoples'!9 As an illustration of this haphazard process of labelling societies, let me mention the province where I do most of my own fieldwork, Aceh, on the northwestern tip of Sumatra. The Acehnese Liberation Front claims that Aceh was colonized by the Javanese after having been colonized by the Dutch, never joined Indonesia, and should now revert to control by the Acehnese bangsa (people, nation), an idea that deeply troubles the ethnic minorities within Aceh, whose situation is ignored in the press. News stories about the Acehnese routinely speak of them as an indigenous people. And yet the Acehnese have never thought of themselves as 'indigenous'; the folk etymology of Aceh is 'Arab, Cina, Eropa, Hindi', to indicate that the area has been a land of immigration of people from many corners of the world, whose common element is Islam. Most Acehnese were also enthusiastic participants in the Indonesian Revolution; their major complaints concern Jakarta's appropriation of their oil and gas resources and brutal military occupation of the province. The idea that prior occupation of territory gives to 'indigenous peoples' certain rights and claims not accruing to other minorities works well enough for the Americas and Australia, where particular histories of conquest, and ethnic distinctiveness, have made it rela- tively easy to conceive of, although not necessarily put into practice, a set of 'indigenous peoples' rights' - ANTHROPOLOGY TODAY Vol 16 No 4, August

4 legal protections offered to other citi- although often in those regions local ideas of people-land zens in the encompassing state, e.g. when Native Americans cannot relationships are misrecognized by law. The problem has appeal from a tribal council decision been in the attempt to create a universal set of categories to the U.S. Supreme Court. This issue is discussed in and norms out of those many places, but specific experiences. see Kymlicka (1995), and, for an illuminating case study, Sierra III. Perils of universality (1995) on Nahua, Mexico. 12. None of this might matter; we might just conclude Kymlicka also deals with a that, different type of category, that of once again, bureaucratic categories are often inapproimmigrants without these territorial and priate (although then we should probably, at least as political characteristics; this part of the argument is not relevant here. anthropologists, stop trying to make them fit where they 13. On the specific issue of poli- do not), were it not for the fact that the general claim, one tical representation, see Phillips (1995). that many would like to see part of international law, that 14. Anaya (1996) argues that, being 'indigenous' gives you some extra rights over from the standpoint of international law, claims for sovereignty are being merely a minority, does have local meanings in stronger if they are based on inequal- various parts of the world, only they are sometimes ities, or basic human rights, than if they are based on historical agree- meanings other than those intended by the U.N. ments, because of the international In Indonesia and Malaysia, for example, two local law doctrine that current law applies to cases, not laws existing at the time expressions could be translated as 'indigenous peoples'. of the relevant events. However, The first, orang asli, does indeed refer to small-scale Tully (1994) argues thathe common-law societies in Malaysia and Sumatra that history of treaties and are 'non-dominegotiations in North America does nant' and perhaps could even be called 'tribal.' They are provide what we might call, modilinguistically and culturally quite distinct from the domifying Rawls, an Overlapping procedural consensus' between Native nant Malay culture, and are often vulnerable. So far so American and Anglo-American legal good. The second expression, however, pribumi or burniconceptions of property, and thathis history of agreeing, perhaps to be putera, means, roughly, 'sons of the soil', and refers to distinguished from specific historical Malays or 'indigenous' Indonesians versus Chinese and agreements, provides a sound basis for returning lands to native groups. other later immigrants. The phrase is the key term in 15.1 take Kingsbury's 'construcpolitical programmes aimed at depriving Chinese of what tivist' approach to the issue as motivated by concerns similar to those some Malays/Indonesians consider to be their dominance expressed here. However, as a jurist, of the economic sector. Kingsbury argues for the continued necessity of the term's use as a In other parts of the world, the trope of indigenous/forheuristic, whereas, an anthropolo- eigners has been invoked to justify violence. Christopher gist, I would argue for replacement frameworks for analysis, combined Taylor (1999) points out that some Rwandan Hutus, in with strategic uses of the term in justifying their violence against Tutsi people, drew on advocacy roles. 16. The narratives that depicted the Hutus as Rwanda's English version of the 'indigeevent, as reported by Agence France- nous people' who had been conquered by Tutsis. In sim- Presse ( ) translated ilar fashion, narratives that portray Muslims as masyarakat adat as 'indigenous peoples', replacing the specific sense of 'conquerors' of the 'indigenous' Hindus are available to adat, with its notions of spatial distinctiveness and villagers in northern India, alongside alternative narralegally-binding norms, with the international NGO tives, genealogical in form, that, in depicting shared kinterm 'indigenous', with its particular ship between present-day Muslims and Hindus, describe connotations of temporal priority and small-scale societies. However, the processes of conversion to Islam (Gottschalk 2000). The translation of the ILO phrase 'indige- former narratives are, of course, those picked up and disnous peoples' in Suar, a newsletter of the National Commission on seminated by Hindu nationalist activists, and they fit into Human Rights, is penduduk as li dan an available international discourse of 'indigenous peomasyarakat pribumi. 17. The former group is the ples'. As one legal scholar has commented (Kingsbury Bad?n Kesejahteraan Masyarakat 1998:435): 'Once indigenousness or "sons of the soil" Adat Deli (Deli Adat Community Welfare Body); the latter, the Majelis becomes the basis of legitimation for a politically or mil- Adat Budaya Melayu Indonesia itarily dominant group, restraints on abuses of power can (Indonesian Council of Malay Adat [and] Culture). be difficult to maintain.' 18. The institutional underpin- The trope of indigenous versus foreign has resonances ning of this communication is even more in Europe as well, ones that we might wish to avoid. complicated: PACT asks regional offices of major Indonesian Bettina Arnold (1990) has traced the role of archaeology NGOs (most often offices of the environmental in supporting Nazi claims to be the autochthonous NGO, WALHI) to people sponsor coffee shop discussions of of Europe. Nazi ideological requirements of racial purity major issues, which are then trandid not allow a finding that Germans had scribed and migrated from sento the website editor. somewhere else. Germans had to be indigenous people, 19. Of course, as mentioned or as nearly so as archaeology could make them by idenabove, anthropologists might also study the uses made by local actors, tifying a continuity of material assemblages over the terlegal institutions, and transnational ritory then inhabited by Germans. (Nazis also claimed to organizations of the putative universal category of 'indigenous', be 'non-dominant' in the economic world.) taking account both of its acceler- Nazi claims may seem to have little to do with the curating velocity in the international political-legal sphere, and the rent politics of identifying the indigenous peoples in processes of translation, adaptation, former colonies, but the linking of legal and racial disand positioning that precede its use in particular locales; Li (forthtinctions generally underlay European policy in those coming) is a particularly successful colonies. The French differentiated among indigenous instance of thi sort of analysis. and immigrant peoples within their colonies: in North Africa, for example, between authentic Arabs and their Mamluk or Ottoman oppressors (Amselle 1996). The legal regime for natives was called the indigenati so pejorative was the sense of this term and the cognate indig?ne that in current French discourse it has been replaced with the more neutral autochtone (Rouland et al. 1996: ).10 IV. Alternatives? 14 ANTHROPOLOGY TODAY Vol 16 No 4, August 2000 Distinguishing between the 'indigenous' and the others within a society or state may, it seems, have wide-ranging political consequences, depending on the colonial and post-colonial experience of the country in question. Some of these consequences would doubtless strike most anthropologists as salutary, but others, I suspect, would not. Many states have what I submit are quite legitimate grounds for emphasizing the characteristics, interests, and rights shared by all citizens, rather than dividing them into indigenous and non-indigenous peoples. Furthermore, groups striving for autonomy may wish to emphasize regional unity rather than internal distinctions into peoples. Promoting a universal, legal distinction based on the relative priority of some genealogicallybased groups over others will run counter to these political projects. The hard issue is precisely how to articulate local ideas of peoplehood, on the one hand, with regional or nationwide ideas about citizenship, on the other - and without playing into local rivalries and enmities. For some Africans, distinguishing between natives and others may be redolent of that logic of internal minorities that was foundational to the apartheid policies of South Africa. Some states (for example, Botswana) have used categories such as economic marginality in order to target certain groups for assistance without stigmatizing them as different in kind, in part in order to avoid the 'primitive museum' approach to ethnic difference. A similar insistence on equal citizenship status, but for all Africans, is part of the justification for humanitarian interventions across state borders, such as those undertaken by the Organization of African Unity.11 Let us situate ourselves for the moment in the world of political theory. Rather: we are always so situated; let us be explicit about our assumptions. What would be lost if we replaced the claim that being first always grants legal rights everywhere with a two-stage normative framework for collective rights, one that made no such blanket claim, but that could support culturally-specific claims about residential precedence made in certain parts of the world? Let me turn to the recent discussion of collective rights by Will Kymlicka (1995: ). Despite its weaknesses (principally, in the argument that group-differentiated rights can be justified on the grounds that they are required to produce sufficiently liberal individuals), I find it to be clear and particularly useful for anthropological discussion (ironically so, given its origins in Euro- American liberal political theory). Kymlicka proposes two major arguments in support of claims for special legal or political rights for groups of people living in a distinct territory and who have exercised long-term self-government.12 The first justification is on the basis of equality considerations: collective rights may be necessary to provide political or economic equality in cases where members of minorities are disadvantaged with respect to a particular resource, whether land, language, or political representation, and where such a group-differentiated right, such as protection for languages, reservation of hunting or fishing lands, or mechanisms to ensure electoral representation, would rectify the inequality.13 This type of argument is often cited by courts in Canada and the United States as the basis for their decisions (Kingsbury 1998:438).

5 Amselle, J.-L Vers un Kymlicka's second argument is on the basis of the his- demands made in the name of locally-appropriate ideas multiculturalisme fran?ais. torical agreements that may have been made either of people and place, and study local ways in which Paris: Aubier. Anaya, S.J Indigenous between pre-existing groups and encompassing states, or groups and individuals make use of concepts of locality, peoples in international law. between groups that agreed to federate, as in the case of community, and indigenousness. The availability and New York: Oxford University Qu?bec vis-?-vis the rest of Canada, or that of the appeal of transnational rhetorics of Press. 'indigenous peoples' Arnold,? The past as provinces of Indonesia. Kymlicka contends that such rights' has made this and other, related terms ideal culpropaganda. Antiquity 64, 464- agreements have normative force and can become the tural operators in local contexts of debates about land 78. justifications for contemporary political demands by rights, political representation, and cultural Barnes, R.H Being recognition indigenous eastern minorities.14 One can broaden Kymlicka's concept of (Li, forthcoming). Indonesia. Indigenous 'historical agreements' to include conquests and colonial Let me return to Indonesia for an example of debates peoples of Asia (Monograph and Occasional or neo-colonial processes of domination that may or may that both draw on the normative and rhetorical value of Paper Series 48) (eds) R.H. Barnes, A. Gray not have involved 'agreements', but clearly did involve locality and self-governance, and yet do so in a way that & B. Kingsbury. Ann Arbor: the imposition of authority by one group over another. points up the weaknesses of 'indigenous peoples' as a Association for Asian Studies, The key idea is that a group exercised self-governance universal prior to analytical framework. In different parts of Barsh, R.L Indigenous being incorporated into the current political Indonesia, groups have begun to assert claims to reprepolicy in Australia and North structure under which it is governed. sent a specific masyarakat adat, a phrase that means America. In International law and This modification of Kymlicka's formulation aboriginal human rights provides 'adat community' but more exactly 'people who live (ed.) Barbara Hocking. a political-theoretical foundation for groups within a state according to adat\ local social norms and legal Sydney: The Law Book to advance claims as to their rights to autonomy with processes. A recently created Aliansi Masyarakat Adat Company. B?teille, A The idea of respect to particular resources. It supports arguments that Nusantara (Alliance of Adat Communities in the indigenous people. Current considerations of political or economic equality may Archipelago) is lobbying the national parliament for Anthropology 39 (2), demand the granting of group-differentiated rights, and Bodansky, D Customary that a history of greater self-determination by such adat communities. (and not so customary) self-governance provides a normative One delegate put the alliance's claims in terms reseminternational environmental foundation for demands for self-determination. These arguments do not require a bling those used by Kymlicka: 'Long before the state law. Indiana Journal of Global finding that Legal Studies 3 (1), present-day pop- existed, adat communities in the archipelago already had Bowen, J.R The myth of ulations are genealogically descended from the earliest succeeded in creating a way of life; the state must respect global ethniconflict. Journal inhabitants of a territory, and thus would allow claims to the sovereignty of the adat communities' of Democracy 7 (4), (Kompas, 22 be made on the basis of other types of relationships to Brownlie, I The rights of March land. They allow the term 1999).16 peoples in modern 'indigenous' to retain its orig- The concept of 'adat community' has provided a international law. In The rights inal meaning without being stretched to cover all regions and all situations. Vulnerable groups of all sorts - source of legitimacy for groups seeking to act in the name of peoples (ed) James Crawford. Oxford: Clarendon not only 'peoples' but also of society against the state. Their claims may amount to Press, 1-16 groups characterized by religious or cultural distinctiveness - can be granted such rights in a recall petition, as when in West Kalimantan three such Brubaker, R Nationalism reframed. Cambridge UP. organizations, claiming to represent Malays, Dayaks, and Childs, J. Brown, and accord with these general criteria. The argument contains Delgado-P., Chinese, 'the majority of residents' in the province, G On the idea of the temporal elements in that it accords normative value to a sent a petition long experience of self-government, but it does not to the regional parliament asking for the disindigenous. Current Anthropology, 40(2), 211. missal of the Governor. The three groups require claims that one group has existed as a said they acted Cortez, B Les enjeux people prior in the name of 'the people of West Kalimantan' and politiques d'une d?finition to settlement by the currently dominant group. In other words, it requires a lower threshold of called their statement a 'no-confidence motion' (mosi tak juridique des peuples autochproof, and allows tones. Droit et Cultures 25, 69- for a broader array of types of groups and types of percaya), in other words, as if they were a shadow par- 90. polit- liament (Kompas, 14 June 2000). Gottschalk, P Beyond ical histories. Hindu and Muslim. Oxford The legitimacy claimed by these and other groups I called this approach 'two-stage' because it first sets is UP. out general reasons for granting self-government rights to based on the ongoing regulation of their social life by Gray, A The indigenous groups, and then argues that different types of group self- adat norms. The norms in question might concern marmovement in Asia. In Indigenous peoples of Asia riage and family life, resolving disputes, definition will appropriately arise in different or regulating the (eds) R.H. Barnes, A. Gray & regions. use of natural resources. Different ideas of community B. Kingsbury. Ann Arbor: Within the general framework, groups formulate, are demand, and have recognized their highlighted in particular contexts, and they often Association for Asian Studies, culturally specific involve and long-standing modes of relating to land and of quite complex mixes of ethnicity, land, and Kingsbury,? 'Indigenous governing themselves. These two elements - the special rela- social norms. For example, in northern and eastern peoples' as an international tions of people to land, and their long-term experience of Sumatra, rival groups claim to legal concept. In Indigenous represent ethnic Malays in peoples of Asia (eds) R.H. self-government - land are two central features of claims disputes. One group defines itself as the 'adat com- Barnes, A. Gray & B. made in the name of indigenous people's rights. These munity of Deli', referring to a place rather than to eth- Kingsbury. Ann Arbor: Association for Asian Studies, claims take different forms in different regions and call nicity: in this case, the region defined by the Malay for particular legal and political solutions. sultanate of Deli. The They are not group's spokesman recently pro-? 'Indigenous peoples' in claimed that necessarily based on an unbroken set of 'anyone, as long as he/she lives on Deli international law. American soil, genealogical Journal of International Law, claims but on other, locally and historically specific ideas is included in the Deli adat community', and indeed the 92, of resources, places, and claims, as in narratives about group has Javanese, Bataks, and Malays on its rosters Kymlicka, W Multicultural land use and movement presented by Australian (Forum Keadilan, 18 June 2000). Its major struggle is to citizenship. Oxford UP. Lay ton, R Representing Aboriginal peoples (Povinelli 1993). Indeed, it may be regain control of communal (hak ulayat) land currently and translating people's place that the very effort to construct a universal legal idea of controlled by a private company, and its broad self-defiin the landscape of Northern Australia. In 'being indigenous', with its Western sense of unbroken nition and focus on residence fits its After writing project. Another culture (ed) Allison James et genealogical descent, has made it more difficult to group seeks to position itself as the representative of a al New York: Routledge, 122- advance culturally distinct claims about people and broader collection of place Malay communities, with the 43. Li, T. Murray (forthcoming). than would have been the case under a more flexible impending devolution of power to the regions (and its Articulating indigenous notion of self-determination.15 own potential political role) in mind. This group's identity in Indonesia. spokesman defines its wider scope in terms of Comparative Studies in 'Malay Society and History. V. The anthropology of self-governance adat and culture' throughout eastern and northern Parekh, B The Rushdie For anthropologists, this framework would allow us both Sumatra, but also highlights the fashion in which Malays affair. In The Rights of to question the suitability of initial residence as a uni- have married with other groups and minority cultures (ed) Will yet preserved Malay Kymlicka. Oxford UP, versal normative horizon, and yet also to support the norms, allowing for a definition of adat community that ANTHROPOLOGY TODAY Vol 16 No 4, August

6 Phillips,? The politics of could also take in people of other ethnic origin (Kompas, presence. Oxford UP. 13June2000).17 Povinelli, E.A Labor's lot: The Questions of group self-definition are also raised with power, history, and culture of aboriginal action. University respect to debates about representation of groups in the of Chicago Press. broader political community. In 1999, for example, the Pritchard, S. (ed.) Majelis Adat Dayak Kalimantan Barat (Dayak Adat Indigenous peoples, the United Nations and human rights. Council of West Kalimantan) proposed that one of its London: Zed Books. leaders, Drs A.R. Mecer, be selected as a representative Ramos, A.R Indigenism. of the Dayaks to the national 'superparliament,' the Madison: University of MPR, in Wisconsin Press. the category of 'group delegate' from an ethnic Rizvi, Z Indigenous minority. But this very idea of an 'ethnic minority' grated peoples. London: Zed Books. on others' ears: two other Dayak leaders - one a Council Rouland, N., et al Droit des officer, the other described as an 'informal leader' (tokoh minorit?s et des peuples autochtones. Paris: PUF. masyarakat) argued that Dayaks should not be repre- Sierra, M.T Indian rights sented as 'ethnic minorities', both because they are the and customary law in Mexico. majority in Kalimantan, and because they should focus Law & Society Review 29 (2), on controlling local resources and not serving in national Taylor, C. et al In forums (Kompas, 9 August 1999). Multiculturalism (ed. A. Representation in another sense, that of who speaks for Gutmann). Princeton UP. whom, is also raised by these public discussions. Local Taylor, C.C Sacrifice as terror: The Rwandan discussions often originate in forums hosted genocide by of Oxford: Berg Indonesian NGOs, who subsequently make it possible for Publishers. the statements of a particular individual to circulate Tennant, C Indigenous worldwide as representative opinions of an ethnic group. peoples, international institutions, and the For example, the Drs A.R. Mecer mentioned above wrote international legal literature an on-line article in November 1999 to the effect that 'the from Human Rights Dayak adat community' demanded that a federal system Quarterly 16 (1), be put into place for Indonesia. His article was posted on Tully, J Aboriginal property and Western theory. Social a 'civil society discussion' website run by PACT (Private Philosophy and Policy 11 (2), Agencies Cooperating Together), which is headquartered in Washington, D.C., funded by USAID, and involved in Waehle, E Africa. IWGIA Yearbook civil society, HIV/AIDS, and Copenhagen: civil-military dialogue IWGIA. projects. The article was then ed by the site's editor Walzer, M On toleration. to the co-ordinator of a free Indonesianist mailing list New Haven: Yale UP. headquartered in Maryland, U.S.A., and in that Wieviorka, M Une soci?t? way fragment?e? Paris: La ended up on the computer screens of many Indonesians D?couverte. and Indonesianists throughout the world as well as in Indonesia.18 Thus, an international NGO set of networks creates Dayak 'public opinion' about itself: about what kind of a group, or community, has emerged or ought to emerge in West Kalimantan, and about what its relationship to the broader national community ought to be. These contemporary Indonesian political self-conceptions are phrased in terms of durable social norms, land rights recognized by Indonesian law (hak ulayat), and the importance of regions in the contemporary climate favouring more otonomi. Each is feeling its way toward a balance among ethnicity, language, customs, land-use, and regional identity as a basis for its self-definition that would also allow negotiated relationships across regions. Minority status vis-?-vis the nation as a whole is not highlighted - Javanese also have their adat - nor are claims to be 'indigenous people' : neither pribumi nor asli are key terms in this discourse (although they are sometimes used). Analysing these developments in terms of 'indigenous peoples' would both miss the key terms of local significance and, if it were part of policy interven- tions, skew the debates in a particularly ethnically-determined direction that, I would argue, would be highly unfavorable for a peaceful transition towards a decentralized Indonesia. Something like the analytical framework suggested here offers a universalistic normative framework in which considerations of equality and self-governance serve as key values. It would then include the myriad ideas of locality, groupness, and relations of regions to centres that radically differ across the world. It would refrain from granting a universal legal privilege to the concept of 'indigenous peoples', but recognize that in certain regions and cases that concept has been, and presumably will continue to be, the most appropriate one for purposes of analysis and political struggle.19 D NEW BOOK FROM IWGIA INTERNATIONAL WORK GROUP FOR INDIGENOUS AFFAIRS THE INDIGENOUS WORLD With contributions from indigenous and non-indigenous scholars and activists the new edition of IWGIA's yearbook:? provides an overview of the present situation and crucial developments in 1999 and early 2000 among indigenous peoples in Asia, Africa, the Arctic, the Pacific and the Americas, with a special focus on indigenous women;? presents reports on the work of the Open-Ended Working Group on the UN Draft Declaration on the Rights of Indigenous Peoples, on the process of the establishment of a Permanent Forum for indigenous peoples in the UN system, and on the Organisation of American States' Working Group on the Proposed Inter-American Declaration on the Rights of Indigenous Peoples. 432 pages Price: USS postage 16 ANTHROPOLOGY TODAY Vol 16 No 4, August 2000

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