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Wilson Center event: The rights of indigenous peoples
April 16, 2008
By Beth Hearn
The rights of the individual are seen by many to be the cornerstone of liberalism. But what happens when these rights come into conflict with the right of minorities to ensure their cultural survival? This was the question at the heart of a discussion at the Woodrow Wilson International Center for Scholars on April 16, entitled “The Human Rights Hierarchy and the Rights of Indigenous Peoples.”
Angela Riley, who as an Associate Professor of Law at Southwestern Law School as well as a Native American raised in a sovereign Indian nation, is more qualified than most to bring light to this issue. She gave examples of the key conflicts associated with navigating “the sometimes treacherous course between individual rights and pluralism’s accommodation.”
As Indian tribes are not included in the Bill of Rights or the Constitution, the sovereign governments of tribal groups are not obliged to follow or protect these laws. However, in 1968 it was decided that the same protections should be extended to Native Americans, resulting in the Indian Civil Rights Act. Similar rights were laid out in the United Nations Declaration on the Rights of Indigenous Peoples in 2007. But these documents, Riley argued, do not solve any of the conflicts inherent to the issue.
Both documents defend the rights of individuals to freedom, equality, and so on, yet at the same time include protection of the group right to culture and self-determination. There is clearly potential for the two to clash. The most notable conflicts, said Riley, are in the rights to gender equality – due to most tribes having rules that lay down certain roles for men and women – and to freedom of religion, as many tribes are essentially theocracies.
According to Riley, this conflict is best seen in the case of Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978), in which the right of a tribe to govern its membership – in this case, through a rule that the children of women who marry outside the tribe are not members of the tribe while the children of men who marry outside the tribe are members – was challenged on the basis that it discriminates due to gender. The Supreme Court denied Martinez’s claim, contending that federal law was not required to extend constitutional norms to tribal governments. The case has been used both to defend and critique tribal sovereignty ever since.
Riley defended this judgment. Her argument, essentially, is that when a sovereign nation loses the ability to decide who is and is not a member of its group it becomes a colony – it loses its sovereignty. Cultural survival depends on the ability of tribal groups to maintain their own laws, and this justifies, she said, the protection of tribal culture and tradition, even when it is contrary to Western liberal ideals.
Of course, the world in which we live is one where “the whole concept of sovereignty is softening,” she said, arguing that globalization, in addition to bringing the free flow of markets, has led to the rise of human rights culture and the idea that nations can no longer hide behind sovereignty to defend human rights abuses. Riley pointed out that it is indigenous peoples around the world who have pressed hardest for the recognition of their human rights – understandably so, due to the discrimination and hardship they often face from the governments they have found themselves to be ruled by.
Yet, there is a paradox inherent in the use of human rights: that is, individual rights – to defend self determination and the maintenance of cultural practices that are at times contrary to those rights. Though she did not say so directly, Riley’s cultural relativism would not extend to the right of Indian tribes, or indigenous people anywhere, to cause direct harm to their members, and in this respect it is clear that she sees some Western ideas of human rights as universal. In her article Sovereignty and Illiberalism she expresses this idea as the right of “opt-out” and “dissent.” In other words, so long as the individual has the right to leave, or protest against, the violations of individual rights within the self-determined group, this is sufficient to justify liberal society in tolerating the continued existence of the group.
Riley recognized the limitations of progress towards a solution to these conflicts. She proposes a “nuanced” treatment of the issue – “hybrid frameworks” – and a reworking of the theory of “good governance” that is tailored to unique cultures and histories yet recognizes that it is impossible to set up a literal hierarchy of human rights.
The question of whether liberal society should – or, indeed, can – tolerate the existence of illiberal groups takes us back to the very fundamentals of Western ideals – the question of whether there can be universal human rights, applicable everywhere and to everyone. The issues discussed by Riley were specific to the situation of Native Americans, but their implications stretch to all indigenous peoples, and indeed to the wider community. It seems that for Riley, defending the human right to liberty and freedom of choice extends to freedom from the obligation to follow liberalism’s other values.
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