The ‘Right to Equality’ and the ‘Right to be Different’ with

Respect to the Indigenous Peoples Rights Movement

Amjad Nazeer

University of Tromso, Norway

November 2011

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The ‘Right to Equality’ and the ‘Right to be Different’ with Respect to the

Indigenous Peoples Rights Movement

I. Introduction:

Overtly and covertly UDHR1 does acknowledge the difference and equality while

saying, “all human beings are born free and ‘equal’ in dignity and rights....they...should

act towards one another in a spirit of brotherhood...and...no distinction shall be made

on the basis of the political, jurisdictional or international status of the country or

territory to which a person belongs. However, it relies heavily on the liberal

foundations of individual sovereignty and claims an outright universality. Both the

propositions were vehemently challenged by the American Anthropological

Associations’2 statement on human rights in 1948. Contemporary debate around

equality and the right to be different echoes back several issues with reference to the

indigenous peoples (IPs).

Without acknowledging difference - be it religious, racial, gender, age, social standing

or of sexual orientation - extending human rights, even within the liberal philosophical

foundations, is impossible. Beyond the individualistic premises, the idea of collective

equality and difference is immensely complicated as misperceiving or mistreating it

might lead to perilous political implications. Nowhere else this complication is amply

demonstrated as in the case of asserting collective rights for the indigenous peoples.

The very argument is pitting indigenous peoples against national governments,

individuals against the indigenous authorities, customary laws against national

legislation and international human rights law against the nation-states. It also

challenges the tendency of enforcing colonial legacies in the name of citizen’s equality

and human rights, as certain states appear to do. Be it individual or collective rights

therefore, it is the role of nation-states that also needs a closer scrutiny.

1 Universal Declaration of Human Right (1948) 2 The Anthropology of Human Rights: Sally Engle Merry, Department of Anthropology, Spring 2006

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Indigenous peoples’ right to equality and difference, like the very notion of indigeneity,

opens up a philosophical quagmire as the term invariably refers to a group or a

collectivity. While the anthropological controversy of adequacy and adoption or

rejection of the term indigenous is still hot, the issue of indigenous peoples’ right to be

collectively different and struggle for equality moves one step forward in a

constructivist direction. Indigenous people’s qualification for distinction and equality –

at times referred to as special rights - can also be reflected in the views of Kenrick-

Lewis-Theun-Suagestad and others’ verses Kuper-Bernard-Suzan and others’ camp,

keeping their internal stresses and subtleties apart. The entire discussion cannot be

confined around their views only but they constitute a best metaphor to demonstrate

the crux of the whole debate.

No straightjacket rule is there to resolve the issue. However there are certain arguments

and principles that I am going to present here in support of the indigenous peoples’

right to equality and maintaining a collective distinction simultaneously.

II. How and Why Indigenous Peoples are Different Peoples:

Indigenous peoples’ distinctiveness, particularly in comparison with the highly

individualistic, capitalistic and commdificatory societies and states is beyond doubt.

Their worldview of day and night, life and death, social consciousness and

cosmological existence is entirely different from the dominant settler-states and

political societies they live in. Contrary to the calculus minded western society,

indigenous people live in rhythm with nature and all its’ species. In Jack Beetson’s3

(2006) distinguished views, aborigines are one with their dusts and sands, lands and

waters and, winds and wilderness like their agnates, cognates and ancestral folks. In

totems, they see their sights and spirits; in atmosphere they hear their forefathers talk

and move. Their relationship with their community and its’ surroundings is based on

love and mutual respect, where generosity, trust, sharing traditional knowledge and

collective good remains at the heart of their lives. No objectification, it is all the

attitude and relationship with the place they live in. Precisely, they live in spiritual and

symbiotic unity with their environment.

3 Jack Beetson was declared as an Aboriginal Teacher and the Unsung Hero of Dialogue in 2001. The reference is quoted form the transcription of his oral talk in Cape Town, South Africa on (1-2, June 2006)

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A universally accepted definition of indigenous people as: defining themselves and

acknowledged by others as indigenous; continuity of descent from pre-colonial and

pre-settler invasion; a profound connection with their land and natural resources with a

separate socio-economic and political system of governance; a different language,

culture and belief system and lastly, historical oppression, discrimination, and

marginalization, also embrace their multidimensional distinction (UNPFIS: 2008). The

very characteristics impart them, neither superior nor inferior, rather a uniquely

distinctive status amongst other peoples.

For instance, Maoris’ symbiotic linkage with land, lineage and legend constitutes the

core of their identity. Maoriness, Awatere insists (as cited in Dominy, M.D.1990:250),

intertwines peoples’ affinity to their land and common ancestry with in-depth social

and emotional significance contradicting capitalist-imperialism that underpins

objectification, racism and sexism. It is a colonial and capitalist illusion, plagued with

individualism and private property that separates ‘man’ from ‘nature’ while indigenous

people are just part of it.

III. Debating Difference vs. Equality: Nature and Scope of the Present

Debate:

Two of the major covenants on economic-social and civil-political rights (1966) are

embedded into the liberal-political tradition of individual rights and freedoms against

the state4. Cultural rights in the former category refer to one’s right to education, arts

and scientific thought rather than a right to collectivity, clearly reflecting western

ethnocentricism, individuality and liberalism. It seems intentionally avoiding the

cultural aspects of rights (Gledhill 1997: 72) denying the very truth of cultural relativity.

The current landscape of human rights is immersed in the tripartite framework of

human rights, collective rights and the rights of indigenous peoples. Certain rights, such

as the right to protect and promote one’s language, religion, culture and the

relationship with land essentially make sense in a framework of collective rights

(Bowen 2000: 12). Collective rights do not necessarily imply the rights of indigenous

4 International Covenant on Civil and Political Rights and Interantional Covenanta on Economic Social Rights, , Office of the United Nations High Commissioner on Human Rights, See: http://www2.ohchr.org/english/law/ccpr.htm

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peoples only, but it is the right of indigenous peoples which is idiosyncratic in its

entirety.

The right came on the agenda of international human rights after a prolonged struggle

of indigenous peoples and their advocates. Contrary to the common perceptions,

collective rights are equally potential to protect individual rights, as they might

sometimes harm them. State reservations, that we usually observe around, are less on

the grounds of protecting individual rights, more to subjugate, forcibly acculturate and

assimilate their differences (Thompson: 1997:788). In Kymlicka’s (2001) words: “ to

assume that any culture is inherently illiberal and incapable of reforms, is ethnocentric

and aristocratical. Moreover the liberty of a culture is a matter of degree. All cultures

have illiberal strands, just as few cultures are entirely suppressive of individual liberty.

Indeed it is quite misleading to talk of, “ liberal” and “ illiberal” cultures, as if the world

was divided into the completely liberal societies on one hand, and completely illiberal

ones on the other. The task of liberal reforms remains incomplete in every society, and

it would be ludicrous to say that only purely liberal nations should be respected, while

others should be assimilated” . Save the nation-states, which identified its

incompatibility to their context and others who abstained, it is only America, Australia,

Canada and New Zealand that categorically rejected the Draft Declaration on the

Rights of Indigenous Peoples (DDRIP 2007) – an outcome of more than 30 years’ effort

within the UN system. Indigenous peoples’ distinctiveness, their constant resistance to

forced assimilation and reclaiming their lands, rivers, forests and hunting abodes – as

persistently demanded by the indigenous people - obviously are the reasons what

several states are threatened off (Merlan 2009: 316). But for the IPs thinking of identity

and distinctiveness is impossible without their thousands years old relationship with

their land environment. It is a matter of their identity, equally important to their

survival.

An elaborate ideological superstructure was invented by the settler colonies to justify

occupancy and exploitation of indigenous territories and their wealth. Puritanism,

God’s commandment and social-Darwinism were brought to service sanctifying their

atrocities and occupation of land. Even the most famous liberalists such as John Locke,

Rousseau, John Winthrop and Blackstone failed to see injustices in the invasion and

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occupation of indigenous lands. In his Social Contract, for instance, Rousseau argued

that possession is not a ceremonial affair but establishing proprietorship by labour and

cultivation and standardising soil, like gold, as a property of exchange is essential

feature of ownership. John Locke strengthened the rule of terra nullis in his Treaties on

Government and the process of setting-up New England colonies in North America. To

him, American-Indians only had a right to the animals they hunted, nothing more. Self-

proclaimed ‘civilization’ and ‘social evolutionism’ made the seizure, adulterations and

confiscation of indigenous lands a universal law and common justification, but in

reality, all through brutal and undignified governmental and corporate tactics.

Analogous to ‘orientalism’, as identified by Edward Said, another discourse of

‘primitivism’ was invented by the west profoundly affecting the indigenous

consciousness of the ‘self’ as the subject and as people. The notion of ‘primitivism’ was

additionally, laden with ‘evolutionary’ narratives to legitimize the ‘control’ of settler-

nations upon the ‘under-evolved uncivilized’ people on earth. It provided their

subjects5 with an ‘authoritative discourse’ of their personhood, nature and essential

mentalities of subordinations, causing serious difficulty to think otherwise (Sissons

2005: 146-147).

As a result of deeply entrenched processes, a sense of loss, deprivation, erosion of

identity, illness, alcoholism and dependency are becoming common symptoms of their

lives. Tanzanian Hadz, Innu of Canada and the Ainu of Hokkaidu, Sakhalin, and Kurile

Islands – earlier colonized by Japan and Russia are just a few examples of terrible

sufferings of the natives, along with the Maoris of New Zealand, Bushmen of southern

Africa, and aborigines of Australia, Canada and America. Pitifully enough, they have to

petition for the right to their own land and their own way of life to the governing

authorities. Directly or indirectly, they are being drifted towards a western

monoculture. Overly globalized, commercialized and despotic appropriation of their

resources is minimizing their chances of claims to their land and distinctive identities.

Unfortunately, their number too is dwindling in most of the countries save in Zapatista-

Mexico and Bolivia (Samson 2008) where they are in a rare majority. The historical

5 For instance, the disdainful behaviour of the Vice President of Botswana in 1996 about the San aptly reflects the evolutionary discourse and colonial master’s subjectivity built through: ‘How can you have a stone age creature continue to exist in the age of computers? They must change or otherwise like the dodo, they will perish (Qouted by Festus, G. Moga as cited by Jennifer Hays 2000:27, Anguished laments...UFAHAMU, Number II-III)

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oppression, dispossession and discrimination still continue in several states denying

them the rights enjoyed by other national populations. Loaded with majoritarian

ascriptions of ‘primordiality’ and ‘inferiority,’ the very difference of culture has turned

into an excuse for abuse (Kenrick & Lewis 2004: 4).

One of the most painful examples of ‘otherization’ are the San people of southern

Africa. Despite intensive multidisciplinary research and wider recognition, they have

been deprived of their centuries-old habitat where they lived in harmony with wildlife.

Rather than respecting difference, they are identified as pre-existing, survivors and

backwards all reflecting a sense of inferiority. In fact, they are the victim of contact –

than by isolation - and characterization with the modern capitalist economy turning

them into a prototype of human rights abuses. They are also the victim of multiple

identities, categorizations and discourses by outsiders – academicians inclusive.

Imposing them to be a spatialized cultural category rather than accommodating a

difference relegated them as an inferior desert people (Gupta & Ferguson cited in Preis

1996: 341-342) whose claim equality is an unsubstantiated demand.

IV. Gender Inequalities and Indigenous Peoples’ Rights:

Beyond international legal provisions, argues Kuokkanen (2008:127-135), the current

demands for autonomy obscure women’s voices and internal inequalities of indigenous

communities. While the fact is, without taking women’s concerns into account and

their demands for equality, claims to indigenous people’s right will not move beyond

rhetoric. Aggravating the problem, neo-liberal economy and market-globalization

proves adversarial to women’s status within and collective indigenous rights to equality

amongst peoples. Hands in glove with states, global capitalist forces devour and

devastate indigenous people’s resources. Maintaining women’s subordination, she

asserts, any form of indigenous right to equality is bound to reproduce traditional

hierarchical and colonial structures. But that too can be dealt in negotiation with the

indigenous people themselves. Dismissing their claims to autonomy, under the excuse

of women rights, is no more an instrument to oppress indigenous peoples, including

women.

V. Nations States, National and International Law and Prospects for

Indigenous Equality:

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Despite being tilted towards assimilation and state’s efforts to integrate, ILO

Convention 169 (1957) widely acknowledges the distinctive characteristics of

indigenous people. Consciously avoiding its political implications, the said convention

uses the phrase of indigenous populations rather than ‘peoples’ (ILO 1989). In Anglo-

Saxon states such as America, Canada, Australia and New Zealand where oppressed

groups’ language, land, natural resources and their identity is seriously threatened,

claims to indigenousness distinctiveness and collective-rights-legislation is essential for

their survival and subsequent development within the states (Kymlicka 2001).

Equal rights for all without acknowledging the difference is instrumentalized to cover

up land grabbing and resource extraction without sharing benefits with their real

custodians. A policy of a just society launched by the former Canadian Prime Minister,

Elliot Trudeau, in 1969 is the prime example. Deceptively campaigning for equal rights

for all, his government kept following a racist policy of land-grabbing and resource-

exploitation from native inhabitants of north Canada. In-fact advocating for collective

rights of indigenous peoples is a significant defence for similar discriminations

continued. Similarly, while establishing a wildlife park the Ugandan Government

evicted hunting-gathering Batwa people accusing them to be landless squatters in

contrast to the neighbouring farming community whom it compensated for land

acquisition. Entitlement to land was recognized for its tillers but regretted to its’

sustainable users (Plaice 2003, as cited in Kenrick & Lewis 2004:4).

Despite a unique nature of their relation with land and nature, court debates ignorantly

keep stressing them to prove their ownership to the land under the settler colonial legal

procedures. Circumventing disempowerment and dispossession of land, a prime issue

of the time; indigenous people are pushed into the irrelevant and coercive legal

procedures and discourses. Ironically enough, their similarities to the dominant society

are oppressively emphasised than their peculiar differences to frustrate their claims for

compensation and ownership to land (Bell 2001 & Povinelli 1998 as cited in Ibid).

As warned by the former UNHCHR Mary Robinson, sanctioning norms sounding

repugnant to the so called ‘civilized’ values and human rights principles is actually a

hoax for colonial tendencies. At times it fails to capture in-depth subjective

understanding of indigenous customary law, arbitration and reconciliations in disputes.

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For example, 7 men from Zinacantan (Maya) community in Mexico were accused of

collecting human bodies to bury as sacrifice in the foundations of newly constructed

highways and bridges to give them strength. Formal court failed to secure evidence but

the community largely believed it and mobs were out there to kill them. Indigenous

authorities detained them above 36 hours, violating individual right of not to be

arbitrarily detained beyond 36 hours, to seek reconciliation with the suspecting

families, reconcile and save lives of those mere accused. Unwritten oral procedures of

indigenous justice, at times violates written procedures to deal with the real people in

concrete circumstances. Had they been released the mob would have killed them.

Abstract individual rights were clearly violated in to protect the concrete individuals

and averse larger conflict. What remains traditionally common with the indigenous

people is the social and restorative justice than a retributive one (Speed and Collier

2000:878-901).

With the support of an INGO, San’s reclaim of their indigenous land through court

(2004-2006) in Botswana is one example of implementing indigenous people’s right to

autonomy and maintaining their identity as hunting and gathering community. ‘The

applicants, the court recognised in a final verdict, were lawfully in possession of the

land they occupied and.... were deprived of it forcibly without their consent’. Despite

much of the international media attention and its’ possible contribution towards

international customary law, the San are facing horrible consequences after the verdict.

Botswana denies their indigenous status - as do most states to their indigenous people –

under threats of other political connotations and emerging demands. Less than 200

‘individuals’ – with their kids and spouses – were only allowed to return to the Central

Kalahari Game Reserve6 (CKGR), an indigenous abode of the Sans for thousands of

years. The returnees’ access to water and other vital services is severely constrained.

Dishonouring their indigenous identity further, stigma, discrimination and

marginalization continue unabated (Saugestad 2010).

VI. Considering Criticism and Clarifying Misperceptions:

6 Central Kalahari Game Reserve is a plain area comprising around 5200 SqKm inhabited by the San People for thousands of years, declared as a game reserve in 1961, See: http://en.wikipedia.org/wiki/Central_Kalahari_Game_Reserve).

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Critiques say that certain narratives of indigeneity might lead to appalling

consequences. For instance, the brutal Nazi state legitimized its’ genocidal attacks

against Jews on the purity of descent, claims John Bowen. Likewise, some of the Hutus

committing horrible acts of murdering innocent Tutsis in Rwanda against justified the

barbarity for being indigenous and historically oppressed by the Tutsis. In India,

suppressing narratives of kinship and genealogical connection and conversion from

Hinduism to Islam, extremist Hindus term their geneocidal assaults against Muslims to

avenge their historical conquest over indigenous Hindus. Indigenousness claims when

leading to military or political dominion, at times, provide reasons for unrestrained

human rights abuses (Bowen 2000).

Weary of the notion, Kuper (2003: 390-395), lashes-out on the notion of ‘idigenism’

and ‘sovereignty, what he believes are based on essentialism of ‘descent’, ‘identity’ and

‘locale,’ which are not only complicated and unempirical to trace rather encourage

forged claims to seek land, lakes, hearths and forests. The idea resonates with the

rightwing extremism and he even terms it a kind of neo-racism, yielding dangerous

political consequences. It is either romanticism or opportunism that motivates the

indigenous rights campaigners, hunting for the projects and resources held by UNOs,

INGOs and the states. Number of scholars and experts retaliated on his false and

phony perceptions about indigeneity and their claims for distinction. He is reminded of

turning a blind eye to the historical and contemporary oppression, dispossession and

marginalization that indigenous peoples suffered from. Movement for their right to self-

governance is actually a struggle for equal rights, justice, reparation and restitution

against the past and present unfairness inflicted upon them. It is a struggle to divert

unequal relations of power and negotiate difference (Kenrick & Lewis 2004: 5-9,

Saugestad. 2008:170).

VII. Conclusions:

Despite spectacularly standing apart, there is no essentialist or quintessential

uniqueness of the indigenous people that we need to contend for. Their distinctiveness

should rather be understood in a relational sense. What is essential is to end the

historical discrimination, disempowerment and dispossession of the indigenous people

through compensation, reparation, restitution and institutionalization of their equal

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rights and dignity like every other population within the boundaries of a nation-state.

This is what most of the indigenous peoples, activists and advocates of their rights are

mainly struggling for (Saugestad 2001a; Kenrick & Lewis 2004). It is less a question of

material compensations, but a demand for retaining people’s right to a way of life, their

autonomy and relationship to land, their identity and culture. Political exclusion and

marginalization makes indigenous people highly dependent on the state authorities. To

individualize and collapse their collectiveness to compensate, the usual state

behaviour turns them into the needy, sick and destitute individuals looking for state

welfare and assistance. Essentialness of difference, socio-cultural and spiritual, imparts

them a quality and certain entitlements that states are really afraid off and attempt to

quell it. But the very quality makes their claims distinguished from normal class

oppression, minority rights, ethnic claims or just putting an end to economic

discrimination (Gledhill 1997: 96-101).

There is no standard method of implementing the right to equality. All depends on the

mutual consent and priorities of the indigenous peoples and their respective states

(Stevenhagen, 2008: 42-45). However autonomy and remedial self-determination is the

best possible way to remove discriminations, injustices and violations historically

inflicted upon indigenous people (Anaya 2008: 50-57).

Indigenous peoples are in-fact people with different social organization, different

histories, values and customary systems of law and resource-management. A whole

body of literature is there about indigenous authorities involved in violating individual

rights for following a different customs, mainly in case of rights de passage, but little

has been written on state-authorities violating the rightful aspirations of indigenous

peoples. The cliché of all citizens’ are equal before law, covertly intends to treat people

as individuals and the same. What indigenous people are aspiring for, is their rightful

claim to distinction of their cultures, languages, laws and value systems that must be

recognized nationally and internationally. The most effective way to construct a plural

socio-legal system is to engage indigenous people in the process rather than

exclusively imposing a western notion of human rights. Their internal inequalities can

also be addressed by bringing their context and human rights ideals closer to each

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other. The paradoxical hurdle is that states, themselves the worst violators of rights, are

normatively obliged to protect their rights (Speed & Collier 2000: 901-905).

Beyond an attempt for anthropological correctness – as attempted by Kuper, Bernard

and others, it sounds politically astute to support the rights of indigenous people, as

advocated by Saugestad, Theun, Kymlicka and Kenrick & Lewis, given the historical

discrimination and injustices inflicted upon them. Their conspicuous distinctiveness

makes them neither better nor worse to the dominant society, but axiomatically equal

like all other human groups. Fighting for the rights of indigenous peoples on the

grounds of human rights is more adequate than contesting for an authentic or orthodox

definition of distinctiveness. Under the circumstances, what matters is the removal of

suppression and forced assimilation that indigenous people are facing in most of the

nation-states7. Being different is neither derogatory nor externally imposed. Indigenous

peoples themselves warmly own and vehemently propounded the very property of

being different (Discussion Paper: 2006).

For indigenous leaders, it is a global struggle between the oppressed natives and the

illegitimate alien rule which can never be fully realized until their autonomy as ‘a

nation’ is acknowledged in root and branch. This is true that every UN entity now

acknowledges indigenous people as distinct, but states mechanisms of realizing it do

not commensurate with. The indigenous nation not the nation-state embodies all that is

most consistent with human survival..contrasting cold empiricism of science and

rapacious industrialism...and their harmony with nature is endangered by human

destructivism (Niezen 2001, 195-200).

It must be noted that, root cause of the problem is ‘political’ hence is the possible

solution. Sometimes it is said that the indigenous people of North America are going

through a cultural revival, which is off course an exaggeration, as most the people have

already lost their land, language and indigenous knowledge. But one cannot deny their

rightful demand and persistent struggle to regain their collective-self. Also, the

symbolic efforts in this regard, paving a path for indigenous peoples own way of life

cannot be undermined. Without overlooking the significance and potentials of DDRIP

7 Paert of the insights of such conclusions has been gained from the discussion paper, Discussion: The Concept of Indigeneity, presented in Social Anthropology (2006)

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and International Law, ultimately a lot depends on indigenous people’s own will and

assertiveness on their identity and distinctive way of life along with their supporters

who deem it important for human progress. International Human Rights Law is

important if implemented in true spirit, which is unfortunately a rare case at present.

(Samson 2008).

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