Indigenous Peoples, Constitutional States and Treaties or Other Constructive Arrangements between Indigenous Peoples and States

By René Kuppe; Richard Potz | Go to book overview

THE MUNICIPALIZATION
OF THE LEGAL STATUS
OF INDIGENOUS NATIONS BY
MODERN (EUROPEAN) INTERNATIONAL LAW

Pablo Gutiérrez Vega


1.- The Controversial Legal Status of Indigenous Nations
throughout History: Preliminary Remarks1

Seldom does an essay start off with apologies. The reader must however excuse the profusion of legal aphorisms and Latin expressions that I use throughout the entire essay: few would hesitate to label this as pure pretentious erudition. Sound arguments of academic pertinence exist prior to what appears to be, at first glance, an attempt of academic ostentation. Is it, after all, absolutely necessary to resuscitate all these legal antiquities to be able to shed some light upon the so called domestication of indigenous nations? What is, by the way, the meaning of this expression? Only by mapping the reader upon the co-ordinates of this particular language, specifically the language of Modern International Law and its sequels, will I be in a position to verbalise the phenomenon of domestication in comprehensible vocabulary2. Paradoxically, in order to break the code, to decrypt the sometimes dense vocabulary of publicists, I will occasionally be forced to lead the reader through an apparently intricate labyrinth of technical idioms and votive borrowings from ancient Roman Law3. Surprisingly some of the most convincing pieces of publicists’ legal discourse

1 The use of the term ‘nations’ both for the title of this essay and subsequently, is not a coincidence. It is, in my opinion, preferable to other labels because it prevents flirting with anachronism (there is no such thing as an indigenous State, nor would it be acceptable to use the term ‘people’, for it has nowadays significant legal reverberations which might mischaracterize the subject of this contribution), and at the same time, it coincides with the name that (European) International Law and diplomatic practice granted extensively to those body polities up to the violent linguistic shift imposed by legal positivism. As it will be the case with similar language bottlenecks, my approach does not intend to attribute unilaterally a name to those human groups, but it exclusively avails itself of then-prevailing uses of the aforementioned term.

2 As a guise of introduction I would like to anticipate that I have sought to write this essay under the vocational vests of an historian of the legal discourse, searching to emulate Pocock or Skinner’s approach, yet in the more restrictive realm of the (Euro-American) Law of Nations.

3 ‘Habent rempublicam, curiam, aerarium, consensum civium et rationem aliquant pacis et federis’: a

-17-

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