Changing Territoriality, Fading Sovereignty, and the Development of Indigenous Rights

Abstract

For much of the 19th and 20th Centuries, the international community resisted the notion of indigenous peoples' rights. In recent years, however, this has changed. The emergence of indigenous rights in international law may finally be upon us. At the very least, the language of international instruments and certain court decisions indicate a new era is emerging in which international law is beginning to recognize the rights of indigenous peoples. And the public seems increasingly aware of the challenges facing indigenous groups. Despite a past where victories for indigenous peoples' rights have been few, scholars are cautiously optimistic for the future.

The current momentum behind the development of indigenous rights leads to the question: why now? Many of those who are optimistic attribute the development to the slow crystallization of international norms friendly to indigenous groups that are a natural extension of human rights or environmental justice. Other scholars suggest that the dedication of indigenous populations in national, regional, and international forums to advance and make others aware of indigenous issues has finally come to fruition. In this Article, Professor Parrish suggests that another phenomenon may be partly responsible for indigenous rights reaching an age of maturity in international law. The role of territoriality and territorial sovereignty as an organizing principle around which law coalesces is changing, and the dominance of the sovereign nation-state is fading. As the territorial state disassembles, the international system is no longer blind to non-state actors, like indigenous groups. Professor Parrish suggests that this "fading sovereignty" has left fertile ground for the rights of indigenous peoples to take root.

Keywords: indigenous, group rights, tribal, territoriality, indian, nonstate, sovereignty, international law, american indian law review, idaho symposium, human rights, cultural rights, social rights, international law, transnational processes

JEL Classification: K10, K30, K33, K40