Legal Pluralism and Indigenous Peoples Rights: Challenges in Litigation and Recognition of Indigenous Peoples Rights

Abstract

This article discusses the contribution of legal pluralism to the recognition of the rights of indigenous peoples. It presents the options (and their shortcomings) of recognizing land rights of indigenous peoples, with special emphasis on litigation using postcolonial states’ law. It shows that litigation of indigenous rights through national states’ law suffers from fundamental problems, mainly an inherent conflict between interests and goals, and thus it ‘suffers’ from a limitation on the results it produces; namely, it does not result in the recognition of indigenous rights. On the legal principle level, the legal system does not include indigenous peoples’ rights, does not “see” their rights, and even does not “understand” these rights; and is therefore incapable of recognizing them. This article shows that only through “systemic” structural change of the states’ legal system, and specifically, the adoption of indigenous legal systems as another source for rights, postcolonial states’ legal systems would be able to "see" and “recognize” indigenous rights. To demonstrate this, the article, through presenting and analyzing the legal struggle of the Bedouin in the State of Israel, shows the limitation of the modern states’ legal system and the failure of litigation through this system to recognize indigenous Bedouin rights.