Multiple Legal Ontologies? Indigenous Rights and the Noble Savage

Multiple Legal Ontologies? Indigenous Rights and the Noble Savage1 Jonas Bens2 This paper was presented on the conference titled Trans-Environmental Dynamics: Understanding and Debating Ontologies, Politics, and History in Latin America at the Ludwig-Maximilians-Universität München on 30 October 2015. The paper I am about to present to you today is focused on indigeneity and the law and tries to discuss some important issues of legal doctrine in the context of the ontological turn and the critique mounted against its protagonists. It is based on my PhD research project which consists of an analysis of a corpus of indigenous rights court decisions from the north as well as the south of the Americas. In my project I see the indigenous as much as a legal as a cultural phenomenon, a cultural term and a formation which emerges inside a deep entanglement with the national law of the postcolonial state and international legal regimes (Clifford 2013, Niezen 2003). The project lies at the intersection of legal and political anthropology and legal history. Today I will focus on one of these cases and the concepts of legal doctrine on indigenous rights it has brought about: the well-known case of Awas Tingni v. Nicaragua, the InterAmerican Court has decided in 2001. After presenting some legal text and context I will confront the resulting findings with two conflicting interpretations – both still very relevant in our discipline: a deconstructivist critique and a view more informed of the ontological turn. Both interpretations lay emphasis on very different aspects – not to say they are contradictory. The “third way”– so to speak – I am proposing is to draw on another tradition in anthropological thinking: that which deals more openly with the everyday paradoxes which are produced when human thinking tries to come to terms with everyday reality. My suggestion is in line with one of the main hypotheses of my PhD project: that the indigenous claimant in indigenous rights cases must manage to occupy a paradoxical position in which it is at the same time part of the postcolonial state and separated from it. To take into consideration this formation I call the indigenous paradox, may help to better grapple with the paradoxes the anthropological thinking produces in our own discipline. I 1 As it often is when one writes a short abstract for a presentation which will take place many months later, one is not content any more with the working title one has chosen. Today I would name this presentation differently. A more suiting title would be: Indigenous Rights Between the Noble Savage and Multiple Ontologies: A Plea for a Paradoxical Model. 2 The author is Postdoctoral Researcher at the Freie Universität Berlin: [email protected]. 1 The case I will talk about today was brought first to the Inter-American Commission for Human Rights by the Awas Tingni Mayagna community from the North Atlantic Autonomous region in Nicaragua in 1995. In the beginning of 1990s the state of Nicaragua had begun to grant research extraction concession – mostly logging concessions – on land the Awas Tingni community considered their territory. Following several attempts to bring its case before Nicaraguan courts the community decided to bring a complaint before the Inter-American Commission on Human Rights. The Commission hears complaints against member states of the American Convention on Human Rights, for alleged violation of one or several of the human rights enshrined in the American Convention: in case of the Awas Tingni community the rights to property in article 21.3 Eventually the case came before the Inter-American Court of Human Rights and was decided in 2001. Not least before the backdrop of until then unknown media attention facilitated by the legal defence team provided by the Washington based Indian Law Resource Center and headed by the famous Arizona law professor James Anaya it became the landmark decision on indigenous rights for the Inter-American Human Rights system. The Court decided that the Awas Tingni community held their territory as property in the sense of article 21 of the American Convention. Nicaragua was therefore obligated to title the Awas Tingni lands according to Nicaraguan national law and thus legally protect their land rights. The case is full of legal intricacies I am not able to go into in detail right now. I just want to highlight one specific feature of the indigenous land rights the Inter-American Court affirmed. Usually property is guaranteed by the national state, while the national legal system defines scope and content of property in general. Apart from important debates in legal philosophy on the origins of property, from a practical standpoint property rights originate in the national legal system and are consequently also protected by it. The conception of indigenous rights to property is somewhat different. The idea is, that indigenous land rights do not originate in the legal system of the postcolonial state, but in the indigenous legal system itself. We therefore speak of the recognition of indigenous land rights by the law of the postcolonial state. I therefore argue in my PhD research that an indigenous rights claim is a paradoxical endeavour. The indigenous community evokes the law of the postcolonial legal system to ask for its suspension. The courts of the national state shall not enforce rights inside the national law framework, but rights, which originate outside of the national law, in the law of the indigenous communities. This is what I call in my research the indigenous paradox: the indigenous claimant must appear at the same time as a subject of the national law of the postcolonial state and it must stand outside of national law creating its own rights which the national law of the postcolonial state must protect. To that end a legal model must be mobilized which conceptualizes a legal pluralism of national law on the one hand and indigenous legal system on the other. Only from this base of legal pluralism rights originating in one system (the indigenous) are to be recognized by the other (the postcolonial states’). The – let us say – “classical” way of achieving this paradoxical goal is to conceive of a legal pluralism as the result of on-going sovereignty: the model indigenous rights are conceptu3 The community also claimed that Nicaragua had violated article 25 of the American Convention, the right to judicial protection, by not providing a legal framework to protect their community property and address violations of their property rights in the courts. A most thorough discussion of the case and the judgment of the InterAmerican Court of Human Rights can be found in Anaya & Grossmann (2002). 2 alized in North America, the US and Canada – but also other common law jurisdictions. The idea is that indigenous communities as nations retain international sovereignty from the time before colonization and that this sovereignty is the source of a legal system of which indigenous rights originate. The national law in the US or Canada then recognizes these rights – or not. The Inter-American Court of Human Rights does not chose the sovereignty model to conceive of indigenous rights. In its view indigenous rights come from an indigenous legal system, but this legal system stems from an on-going “special relationship” of indigenous communities to their land. This special relationship bounds people to the land and creates a de facto legal system, which is the origin of their land rights. Let us have a closer look now into how this “special relationship of indigenous peoples to the land” is conceptualized by the Court and by the actors in the proceeding. In the public hearing the Court held in 2000 one of the expert witnesses, the Mexican sociologist and anthropologist Rodolfo Stavenhagen – from 2001 special rapporteur for the United Nations on the rights of indigenous peoples (a position by the way in which he succeeded the Awas Tingni’s lawyer James Anaya) – talks about indigenous peoples and the land: “A fundamental theme in the definition of indigenous peoples is how they relate to the land. All anthropological, ethnographic studies, all documentation which the indigenous peoples themselves have presented in recent years, demonstrate that the relationship between indigenous peoples and the land is an essential tie which provides and maintains the cultural identity of those peoples. One must understand that the land is not a mere instrument of agricultural production, but part of a geographic and social, symbolic and religious space, with which the history and current dynamics of those peoples are linked. Most indigenous peoples in Latin America are peoples whose essence derives from their relationship to the land, whether as farmers, hunters, gatherers, fishermen, etc. Their tie to the land is essential for their self-identification. Physical health, mental health, and social health of indigenous peoples is linked to the concept of the land.” (IACtHR 2001: para. 83d) This part of his testimony from the public hearing is reprinted in the judgment. If we look into the transcript of the hearing we find a remark by Stavenhagen, which summarizes his testimony on the special relationship of indigenous peoples to the land as follows: “There is an old saying that says that the Indian without land is a dead Indian. And I think that is valid for many of the indigenous populations of our countries” (IACtHR 2000: 166). I have chosen these quotes by Stavenhagen, because they are very characteristic. In fact the whole array of witnesses for the Awas Tingni community argues in the same direction. The Court follows the idea of a special relationship of indigenous peoples to the land as the origin of their land rights. If we look into the judgment the Court explains as follows: “Given the characteristics of the instant case, some specifications are required on the concept of property in indigenous communities. Among indigenous peoples there is a 3 communitarian tradition regarding a communal form of collective property of the land, in the sense that ownership of the land is not centered on an individual but rather on the group and its community. Indigenous groups, by the fact of their very existence, have the right to live freely in their own territory; the close ties of indigenous people with the land must be recognized and understood as the fundamental basis of their cultures, their spiritual life, their integrity, and their economic survival. For indigenous communities, relations to the land are not merely a matter of possession and production but a material and spiritual element, which they must fully enjoy, even to preserve their cultural legacy and transmit it to future generations.” (IACtHR 2001: para. 149) The idea of a somehow special relationship of indigenous peoples to their land was elevated to a more general principle by Erica-Irene Daes’ study for the United Nations SubCommission on Prevention of Discrimination and Protection of Minorities titled Indigenous Peoples and Their Relationship to Land (2001). In a related article she explains the concept: “Indigenous peoples have repeatedly emphasised the urgent need for understanding by non-indigenous societies of the spiritual, cultural, social, political and economic significance to indigenous societies of their lands, territories and resources for their continued survival and vitality. In order to understand the profound relationship that indigenous peoples have with their lands, territories and resources, there is a need for recognition of the cultural differences that exist between them and non-indigenous people, particularly in the countries in which they live. Indigenous peoples have urged the world community to attach positive value to this distinct relationship. It is difficult to separate the concept of indigenous peoples’ relationship with their lands, territories and resources from their of their cultural values and differences.” (Daes 2005) The whole explanation of the idea of the special relationship to the land appears, at best dialectical, maybe even circular: indigenous people maintain a special relationship to the land, because they are culturally different and what makes them culturally different is the special relationship they have to the land. The special relationship to land is at the same time reason for and manifestation of cultural difference. In that sense rhetorically this trope of the special relationship to the land resembles a legal fiction – a doctrinal basic assumption from which legal consequences can be developed, but which in itself is not derivable from the law. One can say cultural difference – manifested in a special relationship indigenous communities maintain with the law – is inscribed into the law. In my PhD research I delve more deeply into this conceptual basis of indigenous rights – also in relation to the sovereignty model “North American style”. But I would like to exclude these very important legal aspects for the sake of this presentation and talk about more about how to interpret and evaluate the fact that the conceptual basis of indigenous rights in the Inter-American human rights system is seen in an assumed human-environment relation which is different from that of majority society. I believe there are two way of seeing this. On the one hand one is baffled by the cultural essentialisms at work, and interpret the phenomenon of indigenous rights based on cultural difference as a backlash in cultural theory which has tried for many years now to come to terms with a idea of culture beyond “blood and soil” conceptions. On the other hand one 4 could mark this critique as a Western academic debate, and open up the possibility that indigenous peoples in fact have a different spiritual and cultural relationship to what we would call ‘their land’ and that opening up legal spaces where these different human-environment configurations can enfold, is – in general – worthy of support. Let us come to both these interpretations. II Approaching such indigenous rights conceptions based on cultural difference and – in our case – a special relationship of indigenous peoples to the land – with suspicion is most famously represented in Adam Kuper’s Current Anthropology article The Return of the Native (2003). In there he explains: „The conventional lines of argument currently used to justify „indigenous“ land claims rely on obsolete anthropological notions and on a romantic and false ethnographic vision. Fostering essentialist ideologies of culture and identity, they may have dangerous political consequences.“ (2003: 395) According to Kuper indigenous rights, in our case based on what I call the culture approach to indigenous rights, carry several problems: They are based on potentially racist, at least strongly exclusivist criteria. They are based on the general European belief that citizenship is based on “blood and soil”. They fabricate identities and spokespeople who demand – in Kuper’s words – “recognition of alternative ways of understanding the world, but ironically enough they do so in the idiom of Western culture theory” (Kuper 2003: 395). The image of “the primitive” so Kuper further “is often constructed today to suit the Greens and the antiglobalization movement. Authentic natives represent a world to which we should, apparently, wish to be returned, a world in which culture does not challenge nature” (2003: 395). Others have ethnographically underlined the contention that the cultural essentialism of indigenous activists is often deeply embedded in Western discourses on environmentalism and cultural identity. Especially regarding Brazil see Alice Conklin (1997) or Jan French (2002, 2004). These critics argue that this special relationship of indigenous peoples to the land is in fact not special at all. They refer to the similarity between European ethno-nationalism and indigenous land claims conceptions and argue that not alternative indigenous worlds but merely all too conventional culturally essentialist ideologies not only popular in the West are inscribed into international human rights law: old wine in new wineskins. I am sure any anthropologist grown adult with the books of Michel Foucault, Jacques Derrida, Edward Said, Gayatri Spivak and Judith Butler does have to agree that this critique has something to it. III 5 Nevertheless there is another perspective one can take as an anthropologist – more oriented toward the ontological turn.4 In short the ontologists (let us call them that for the sake of brevity but of course with lack of differentiation) make a case for taking serious other worlds. James Laidlaw, himself not an ontologist, explains the turn as follows: The theory goes (or has gone) that the ‘radical alterity’ of certain societies […] consists not in them having different ‘socially constructed’ viewpoints on the same (natural) world, but in them living in actually different worlds. The differences between them and Euro-America are not therefore epistemological (different ways of knowing the same reality) but ontological (fundamentally different realities). (Laidlaw 2012)5 The field anthropologists are researching is therefore not “multiculturalism” but “multinaturalism” to refer to Viveiros de Castro’s famous distinction (eg. 1998). This can be understood as a critique of the deconstructivist critique by Adam Kuper and others, which I have outlined above. It would be a mistake to project Western discourses of “blood and soil” prematurely on indigenous cultures. They must be given the benefit of the doubt that they actually live in another world, so to speak, and that their special relationship to the land is not a “blood and soil” nationalism but something completely different. Such an approach has important political differences if one wishes to assess the potential of indigenous movements for change. Central here seems to me the distinction between politics and cosmopolitics Marisol de la Cadena (2015) has made in her keynote lecture for the biannual conference of the Deutsche Gesellschaft für Völkerkunde at the beginning of this month in Marburg. Whereas she seems to understand “politics” as the discursive struggle inside the framework of Western ontology – along the lines of environmentalism, conservationism and such – “cosmopolitics” seems to mean the moment in which the political frame of Western ontology is penetrated and alternative human-environment constellations – alternative ontological cosmovisions – emerge. In her words, cosmopolitics means the moment where the mountain itself becomes a person, an actor to refer to the Latourean terminology, rather than being a part of nature worth protecting. I find this idea fascinating, but I am not sure it is too helpful for me and us to better interpret the legal texts I began this talk with. How do I – empirically, methodologically - recognize the difference between “blood and soil” ethno-nationalism and an alternative cosmovision including different human-land configurations, if both look the same at the outside?6 4 Many have talked about how difficult it would be to identify clearly what the ontological turn means concretely. Kohn for instance argues in a recent new contribution to the Annual Review of Anthropology that practically everything in and around anthropology from Lévi-Strauss onwards belongs to the ontological turn in a broader sense: including those stands taking materialities more seriously (Appardurai, Miller), thinking about the body in medical anthropology, breaking down distinctions between humans and non-humans (Ingold), talking about spirits in anthropology of religion (Chakrabarty), actor-network-theory (Latour4). But he also agrees that at least two protagonists can be identified which form the ontological turn in a more narrow sense: Eduardo Viveiros de Castro and Philippe Descola. 5 Laidlaw adds ironically: „Luckily, by an amazing historical coincidence, many of the necessary conceptual resources were prefabricated for us by Gilles Deleuze, even though the problem in this form had not yet been discovered when he wrote, and even though he lived in a Euro-American multi-cultural ontology. But that’s a whole other story“ (2012). 6 Apart from this there is another empirical question attached to it. How do I recognize that I people do not just have a different conception of nature but live in a different nature. If I cannot make this distiction empirically, I 6 In a paper presented at the very same conference of the Deutsche Gesellschaft für Völkerkunde in Marburg, Duile and Haug have plugged into the critique of authors of the ontological turn: the idea “one community/one ontology” leads to all too crude generalizations. Based on this Duile and Haug made their case to apply the term “multiple ontologies” to situations inside communities. Even individuals, so the presenters, switch between several ontologies. The question in the discussion circled around the issue how to empirically recognize the difference between “knowing of” an alternative ontology and adopting such an ontology as ones own – or if such an issue does not severely depend on questions of context and situation. When incommensurable difference is chosen as the point of analytical departure – a criticism Vigh and Sausdal (2014) are mounting against the advocates of the anthropological turn – one ends up with sometimes crude essential and fundamental ontological difference. Some critics of the ontological turn therefore go as far as characterizing it as “apolitical, reactionary, too focused on exotic alters” (Bessire and Bond 2014). On the other hand (and this could be a critique directed to those who do not a rather unsophisticated Marxist analysis) those who do not expect the radical other, will not find it. Consequently the unstable element which is brought into reality by radical alterity and which brings about change and transformation may be covered up. IV Both, the deconstructivist critics of indigenous rights based on cultural difference and the ontological critics of the critics have valid points. How do we decide, if at all? If one looks into the literature there seems to be a convenient way out of the dilemma. Against both the criticism mounted against the anti-essentialist move as well as the ontological turn is the idea to be more ethnographic and back up the theoretical assumptions with empirical data “from the ground”. This idea did already come up in the comments of Adam Kuper’s Current Anthropology article (eg. Omura) and seems to be the solution preferred by Alcida Rita Ramos (2012) in her critical appraisal of Perspectivism in the Annual Review of Anthropology. I understand the special issue of Indiana edited by Ernst Halbmayer (2012) to go in that very direction. This is of course a very valid reply to the debate: who could disagree that theory must always be derived from and measured against what is actually happening in the world? Nevertheless, I believe the problem lies deeper and concerns a philosophical question with clear practical consequences for anthropology as a discipline. Is there at all something like radical alterity – or are we just dealing with different conceptions of the same reality? If we do not believe in the radical other this has something reassuring to it. We do not have to give up hope for universal values and the possibility of equality between humans. But at the same time, how can there be change in the political space without the radical other? Without the comsopolitical moment de la Cadena describes, how can power relations change, how can the subaltern begin to speak after all? end up with a result LAidlaw describes: „It delivers not new post-plural multi-naturalism, but merely the familiar old idea that different peoples have different theories about the world. So we have, by these means, not escaped the spectres of multi-culturalism after all (2012). 7 Would it not be wonderful, if we could have it both: there is a radical other, or at least the possibility of it, and at the same time there is no radical alterity? I would make the case that this is exactly how it is. V There are those anthropological traditions trying to explore the paradoxes of human existence. Not least because the ontological turn has so much to do with trying to make sense of American mythology, I believe it apt to seek counsel with another expert on American myths. Claude Lévi-Strauss has elaborated in his analysis of myth how natural thinking produces unthinkable paradoxes. The myth – as Lévi-Strauss puts it most strikingly in his essay La geste d’Asdiwal (1957) – is the way to concede the unthinkability of the emerging paradoxes which are produced when humans try to make sense of what makes no sense. Myths, like real life, make no sense, but they are a way to come to terms with that uncomfortable fact. My main argument on indigenous rights I put forward in my PhD research is that an indigenous community, an indigenous claimant must occupy a paradoxical position to be heard. It must be part of the postcolonial state and its law, but at the same time it must also be the other of the state, being separated from it. Applied anthropology must deal with these kinds of paradoxes all the time. Charles Hale (2006), who himself was engaged as an expert witness in the Awas Tingni trial before the Inter-American Court of Human Rights, explains in his article in the Political and Legal Anthropology Review, this very conflict between deconstructivist critique of the cultural essentializations by the Awas Tingni community and the desire to contribute to opening up spaces, in this case legal spaces inside the legal system of the postcolonial state, to allow for alternative cosmologies to enfold – with the aim to better the lives of those targeted by racial, social and not least economic discrimination. His solution is remarkable and it is the very solution of an engaged applied anthropologist: we must do it both. He calls it – of course – strategic essentialism, a very often-cited term, which bears many conceptual problems. I would call it navigating through the paradoxes of similarity and alterity. I believe the “special relationship of indigenous people to the land” is not something completely different than “blood and soil” ethno-nationalism, although it is not the same either. I believe such arguments do work, not because of their incompatibility to Western thinking, but because they are compatible to Western thinking: to nationalism, to images of the noble savage, to environmentalist discourses. This describes the limits of indigenous movements and discourses. Nevertheless there is a potential for transformation. Legal spaces are opened which had been closed before, and there are however limited chances to change the situation of marginalisation of indigenous communities. 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