The Indigenous Paradox : Rights, Sovereignty, and Culture in the Americas

An investigation into how indigenous rights are conceived in legal language and doctrine In the twenty-first century, it is politically and legally commonplace that indigenous communities go to court to assert their rights against the postcolonial nation-state in which they reside. But upon closer examination, this constellation is far from straightforward. Indigenous communities make their claims as independent entities, governed by their own laws. And yet, they bring a case before the court of another sovereign, subjecting themselves to its foreign rule of law. According to Jonas Bens, when native communities enter into legal relationships with postcolonial nation-states, they "become indigenous." Indigenous communities define themselves as separated from the settler nation-state and insist that their rights originate from within their own system of laws. At the same time, indigenous communities must argue that they are incorporated in the settler nation-state to be able to use its judiciary to enforce these rights. As such, they are simultaneously included into and excluded from the state. Tracing how the indigenous paradox is inscribed into the law by investigating several indigenous rights cases in the Americas, from the early nineteenth century to the early twenty-first, Bens illustrates how indigenous communities have managed--and continue to manage--to navigate this paradox by developing lines of legal reasoning that mobilize the concepts of sovereignty and culture. Bens argues that understanding indigeneity as a paradoxical formation sheds light on pressing questions concerning the role of legal pluralism and shared sovereignty in contemporary multicultural societies.

An investigation into how indigenous rights areconceived in legal language and doctrine

In the twenty-first century, it is politically and legallycommonplace that indigenous communities go to court to assert theirrights against the postcolonial nation-state in which they reside.But upon closer examination, this constellation is far fromstraightforward. Indigenous communities make their claims asindependent entities, governed by their own laws. And yet, theybring a case before the court of another sovereign, subjectingthemselves to its foreign rule of law.

According to Jonas Bens, when native communities enter intolegal relationships with postcolonial nation-states, they "becomeindigenous." Indigenous communities define themselves as separatedfrom the settler nation-state and insist that their rightsoriginate from within their own system of laws. At the same time,indigenous communities must argue that they are incorporated in thesettler nation-state to be able to use its judiciary to enforcethese rights. As such, they are simultaneously included into andexcluded from the state.

Tracing how the indigenous paradox is inscribed into the law byinvestigating several indigenous rights cases in the Americas, fromthe early nineteenth century to the early twenty-first, Bensillustrates how indigenous communities have managed-and continue tomanage-to navigate this paradox by developing lines of legalreasoning that mobilize the concepts of sovereignty and culture.Bens argues that understanding indigeneity as a paradoxicalformation sheds light on pressing questions concerning the role oflegal pluralism and shared sovereignty in contemporarymulticultural societies.

Présentation de l'éditeur : "In the twenty-first century, it is politically and legally commonplace that indigenous communities go to court to assert their rights against the postcolonial nation-state in which they reside. But upon closer examination, this constellation is far from straightforward. Indigenous communities make their claims as independent entities, governed by their own laws. And yet, they bring a case before the court of another sovereign, subjecting themselves to its foreign rule of law. According to Jonas Bens, when native communities enter into legal relationships with postcolonial nation-states, they "become indigenous." Indigenous communities define themselves as separated from the settler nation-state and insist that their rights originate from within their own system of laws. At the same time, indigenous communities must argue that they are incorporated in the settler nation-state to be able to use its judiciary to enforce these rights. As such, they are simultaneously included into and excluded from the state. Tracing how the indigenous paradox is inscribed into the law by investigating several indigenous rights cases in the Americas, from the early nineteenth century to the early twenty-first, Bens illustrates how indigenous communities have managed--and continue to manage--to navigate this paradox by developing lines of legal reasoning that mobilize the concepts of sovereignty and culture. Bens argues that understanding indigeneity as a paradoxical formation sheds light on pressing questions concerning the role of legal pluralism and shared sovereignty in contemporary multicultural societies." "This book contends that indigeneity is a paradoxical formation. The paradoxical nature of indigeneity becomes apparent in the relationship between an indigenous community and the (post)colonial state, or, rather, in the relationship between an indigenous claimant and the national law. On the one hand, the indigenous community rejects the state and views the regulation of its affairs by the law of the state as violation of its integrity. On the other hand, the indigenous community depends on the state, its courts, and its law to protect certain rights that are seen as emanating from the indigenous community itself and not from the national legal system. Jonas Bens calls this formation, in which the indigenous must appear as both part of the state and as dissociated from it-politically as well as legally-the "indigenous paradox." It is his argument that the phenomenon of indigeneity comes into being when native communities engage with the law of the (post)colonial state in which they find themselves. In other words, native communities become indigenous when they begin to occupy the paradoxical legal position Bens aims to describe in this book. Therefore, to understand the discourses of indigeneity, it is paramount to follow the language, the textual genres, and the doctrine of the law. In this book, Bens employs approaches from legal studies and anthropology (more specifically, semiotic anthropology and intertextual analysis) to investigate the very texts that speak most explicitly to and about indigeneity: landmark indigenous rights cases in the Americas"-- Provided by the publisher Cover The Indigenous Paradox Title Copyright CONTENTS List of Abbreviations A Note on Terminology Chapter 1. Indigeneity and the Law Chapter 2. The Invention of the Sovereignty Approach to Indigenous Rights Chapter 3. “Domestic Dependent Nations” and Indigenous Identity Chapter 4. How to Win with the Sovereignty Approach Chapter 5. “Rooted Legal Pluralism” and Its Culturalized Boundaries Chapter 6. “De Facto Legal Pluralism” and the Problem of Not Being “Different Enough” Chapter 7. The Invention of the Culture Approach to Indigenous Rights Chapter 8. Expansions and Limits of the Culture Approach Chapter 9. Sovereignty, Culture, and the Indigenous Paradox Chapter 10. Indigeneity and the Politics of Recognition Notes References Index Acknowledgments Indigeneity Contains A Paradox: Indigenous Communities Are Incorporated Into And Separated From The Legal System Of The Postcolonial Nation State. The Indigenous Paradox Explores Indigenous Rights Cases From North And South America In Order To Shed Light On Issues Of Shared Sovereignty, Multiculturalism, And Legal Pluralism.