Indigenous Peoples: Attempts to Define1

Article excerpt

I. The Problem

THE LITERATURE FOCUSING ON 'INDIGENOUS PEOPLES' IS VAST and continues to grow.2 The term commonly refers to specific cultural groups that exist in a variety of geo-political and social settings, usually as a minority.3 Most of these groups are subjects of domestic jurisdiction;4 they are also protected under international law. Conceptions of 'Indigenous peoples' developed by social and legal scholars are very diverse.5 For example, in international legal contexts this expression is rooted in the way in which colonies and dependencies of particular states were thought of and referred to, particularly beginning in the last quarter of the nineteenth century, which marks the beginning of the development of a legal idea of 'Indigenous peoples' in international law.6 The colonial notion of indigeneity led to the way in which the concept would be defined in the first international document in which the rights of Indigenous groups and the duties of states regarding them were created - the International Labour Organization Convention 107 (1957).7 Relatively recent literature in which legal notions of indigeneity are employed describes 'Indigenous peoples' broadly as nations /peoples that strive in different ways for political autonomy, such as the Chamorro peoples struggling for political self-determination in US -controlled Guam, or Mexican Zapatistas (Indigenous rebels in the Mexican state of Chiapas). These notions often rest on particular legal standards of treating groups recognized as indigenous peoples by the international community and by the states in which these groups are located. The way in which states' jurisdictions define indigenous groups (essentially communities that deserve special treatment as a way to recognize and protect the rights of these groups) tend to differ from one state to the other. At times, a specific state's way of dealing with Indigenous questions may contradict international principles aimed at protecting Indigenous rights (such is the situation of the Russian Federation, for example). This diversity of legal notions of indigeneity makes it very difficult (indeed, impossible) to construct a legal notion of indigenety that could serve as a sound analytical instrument to be employed across the boundaries of states' legal and political systems. Social-science authors, whose work reinforces legal scholarship, repeatedly employ concepts of indigeneity that signify a socalled 'traditional' life-style distinguished from modernity and pursued in continuity with the traditions of concrete peoples that go back centuries (for example, nomadic peoples indigenous to the Kalahari Desert in Africa or the Penan hunter-gatherers of Malaysia in Sarawak, Borneo). This expression also targets individuals whose indigenous identity emerges from participating in human and Indigenous rights forums and political events, especially in the studies of social movements.8

Groups understood as 'Indigenous peoples' are estimated to comprise 300-370 million people or 5-7% of the world's population. They speak over 5,000 of the world's languages, live in areas rich in biodiversity, and are often considered among the poorest segments of the population, whose survival as distinct peoples and cultures has been endangered by the effects of what has been called modernity and globalization.9 One of the recent factors, mentioned by a number of scholars as in various ways affecting the existence of indigenous groups, is genetic research. Resulting from the current lack of comprehensive normative instruments (especially of international scope) that would ensure benefit-sharing with Indigenous groups on a fair and continuous basis, the current wave of bioprospecting and human genetic studies is seen as potentially harmful to Indigenous groups.10 Investigations conducted with little or no ethical concern for the needs of Indigenous communities can lead to a scientific and industrial monopoly over information derived from these communities. …


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