24 Pages Posted: 4 Aug 2011
Date Written: August 3, 2011
This paper considers the relationship of indigenous rights to four foundational principles of modern political theory: sovereignty, the nation, property, and constitutionalism. All took their familiar intellectual forms as the European state was crystallizing – and as European states were embarking on their imperial projects around the world. All were reshaped by both the development of the state and the European encounter with indigenous peoples. The absolutist idea of state sovereignty, developed as the modern Weberian state was crystallizing in Europe, was deeply connected with the justifications of imperial power that could lawfully conquer, expropriate, and kill indigenous peoples. The subsequent joining of the idea of the nation to state sovereignty heightened the latter's absolutism. Settler states conceived as sovereign unitary nation-states left no normative legal space for indigenous rights, and indeed were profoundly hostile to them. By contrast, property and constitutionalism drew on natural law ideas and pluralist political traditions and were sometimes developed in ways that made room for indigenous rights, even as rival interpretations were developed in ways that subordinated both property and constitutionalism to state sovereignty. The paper argues that both nationhood and sovereignty are problematic ways to conceive of indigenous rights today, and that property and constitutionalism offer the more promising foundation.
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