Incommensurate Indigenous Rights?

When Indigenous Peoples claim rights to self-government, land, and cultural autonomy—the primary items in a collection of indigenous rights—are they asking for exceptional benefits or special rights from their surrounding nation state? For most nation-states and international agencies, including the Declaration on the Rights of Indigenous Peoples, indigenous nations must live within the laws and institutions of their host nation states.

The arguments of exceptionalism and special rights are red flags for the view that Indigenous Peoples have citizenship rights as all other citizens within the nation state, but indigenous rights violate the political and legal equality laws and values. Exceptions and special rights are singled out for reversal in court cases and legislation, since they are contrary to the main premise of equal rights for all national citizens. In this view, Indigenous Peoples are entitled to the rights of citizens that all other citizens have, and no more. This is the premise of the Declaration and the practice of most nation states around the world.

Indigenous Peoples, however, do not agree that the label of special rights or exceptional rights should be applied to indigenous rights. Indigenous Peoples in the U.S., Canada, New Zealand, and elsewhere reject an assimilationist version of national citizenship, they do not reject national loyalty or citizenship rights. Indigenous Peoples live outside mainstream society, government, and culture, often by choice, and by cultural and political commitment. As individuals, Indigenous Peoples often resist participation in mainstream culture and institutions, and prefer to establish relations with nation states through collective national or community organizations.

From the indigenous point of view, indigenous cultures, governmental institutions, and territories existed long before the formation of nation states. Most indigenous nations have not voluntarily surrendered their inherent claims to land and self-governments. Indigenous Peoples are usually not parties to the construction of constitutions of nation states, and usually are not citizens by consent. Most Indigenous Peoples are nation state citizens only by the declarations or legislative mandates of a nation state, which individualizes them as citizens and negates their commitments to indigenous nations. Because nation states offers or requirements of national citizenship usually requires loss of collective indigenous identities, Indigenous Peoples have moved to conserve and support collective identities and commitments.

Contemporary nation states and international agencies do not have mechanisms to recognize the political and territorial claims of indigenous nations. Current arguments say indigenous claims to self-government, land, and cultural autonomy, are forms of exceptionalism or special rights, since such claims put indigenous claims outside the constitution or laws of the nation state. Indigenous claims to self-government and territory are discriminatory since no other nation state citizens have similar rights. Indigenous Peoples live in worlds that are inherently engaged in processes of varying incompatible dual citizenships, dual nationalities, dual cultural relations, and dual societal membership.

When two nations have starkly contrasting conceptual frameworks for understanding law, government, land title, and whose institutional makeups lack sufficiently overlapping meanings to permit reconciliation or integration of national memberships or collectivities, then they are institutionally incommensurable. For example, in the U.S., states that joined the union were institutionally commensurable. Indian nations that persist outside the union are not commensurable with the United States social order on a variety of language, territorial, governmental and cultural grounds.

Under current theory and practice within liberal democratic nation states, Indigenous nations are not commensurable within nation states as politically autonomous collectivities, although Indigenous Peoples are acceptable as individual citizens or as groups of citizens. While Indigenous Peoples hold onto collective forms of community and nation, nation states will not entirely integrate Indigenous Peoples or support their deepest values of self-government, territory, and cultural autonomy. Nation states need to recognize, welcome, and support indigenous goals and rights, which should create greater economic, political and cultural understanding and mutual benefits.


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Incommensurate Indigenous Rights?

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