Copyright (c) 2006 American Indian Law Review
American Indian Law Review
SYMPOSIUM: LANDS, LIBERTIES, AND LEGACIES: INDIGENOUS PEOPLES AND INTERNATIONAL LAW: THEORETRICAL APPROACHES TO INTERNATIONAL INDIGENOUS RIGHTS: COLLECTIVE DISCURSIVE DEMOCRACY AS THE INDIGENOUS RIGHT TO SELF-DETERMINATION
2006 / 2007
31 Am. Indian L. Rev. 341
Russell A. Miller*
I. Introduction: Conflicting Claims Regarding Self-Determination
There are radically conflicting perspectives on indigenous peoples' right to self-determination in international law. On one hand, indigenous advocates regard self-determination as a (if not the) fundamental and non-negotiable element of the international law regime concerned with indigenous rights. 1 On the other hand, many states, including some of the states most significantly confronted with indigenous issues, are categorically opposed to granting indigenous peoples a right to self-determination. 2
In support of their position, indigenous peoples have asserted two convincing arguments. First, they argue that denying indigenous peoples the same international law right to self-determination enjoyed by other peoples constitutes another manifestation of the racism and cultural chauvinism that has characterized international law's historical disregard for indigenous peoples. 3 Second, they argue that limiting the application of self- determination to the decolonization movement of the post-World War II years, and excluding its application to the present indigenous rights movement, requires the illogical and ahistorical claim that indigenous peoples in settler states were not the victims of European colonization. 4
For their part, States rightfully counter that self-determination can lead, and in its practice often has led, to secession. 5 They argue that this conflicts with the post-war international legal order's emphasis on the sovereignty and territorial integrity of states. 6 States contend that, above all else, the United Nations Charter stands for these principles. 7 States urge that this foundation was reiterated, in response to ever more frequent assertions of a ...
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