Download this Paper Open PDF in Browser

Native American Values and Laws of Exclusion

Environmental Law and Contrasting Ideas of Nature: A Constructivist Approach, Keith H Hirokawa (ed), (CUP, 2014)

31 Pages Posted: 6 Jan 2018  

Catherine J. Iorns Magallanes

Victoria University of Wellington - Faculty of Law

Date Written: January 1, 2014

Abstract

Native American and other indigenous views of their relationship with nature differ from those of the settler states within which they live. Such different views stem from different cosmologies and religions that define the appropriate place of humankind within nature. They give rise to different understandings of human rights and responsibilities in relation to the natural world, and what people can and cannot do with it. This difference goes to the heart of disputes between indigenous peoples and settler states over the use and occupation of land and natural resources. The forcible dominance in America of a Western, liberal construction of nature has led to the near exclusion of indigenous constructions from mainstream law and policy, which has enabled the destruction of many aspects of indigenous societies and of the natural environment. This chapter addresses these different constructions, their treatment in law and policy, and some illustrations of an alternative treatment that holds promise for a more sustainable future.

This chapter first addresses Native American beliefs and constructions of nature, and how the Native American construction contrasts with the dominant and prevailing American construction. The dominant construction in America is anthropocentric, whereby humans are considered rightfully dominant over nature. Nature is only good insofar as it serves a useful purpose for humans and can be civilized to that end. In contrast, the Native American construction considers humans as being part of nature and that the world is an interdependent whole. Under this construction, there is no right of any one part of that whole to dominate another part. Instead, methods of equal co-existence are prized.

The second part of the chapter summarizes the Western construction of Native Americans, from contact to modern times. It notes how the prevailing view of them was as wild and savage, and in a state of nature. Thus Native Americans had to be controlled and civilized, just as did nature, in order to progress to modernity and full salvation. Yet, at the same time, an acknowledgement that Native Americans were still human posited them against the natural idea of wilderness, such that they had to be removed from national parks, for example, for the proper protection and preservation of nature.

The third part discusses some suggested alternative conceptions or constructions of nature. Alternatives to the dominant paradigm have been suggested from within Western societies for many years. Some examples from New Zealand provide interesting illustrations of the integration of indigenous conceptions with a dominant Western society, including implementation within law. These examples illustrate one way in which the law can be used to alter the mainstream construction of nature and of the indigenous peoples themselves.

Keywords: indigenous, environment, law, justice, Native American, First Nations, constructivism, cosmology, responsibility

JEL Classification: K10, K11, K19, K32, K30, K39, Q28, Q56, Z10, Z12

Suggested Citation

Iorns Magallanes, Catherine J., Native American Values and Laws of Exclusion (January 1, 2014). Environmental Law and Contrasting Ideas of Nature: A Constructivist Approach, Keith H Hirokawa (ed), (CUP, 2014). Available at SSRN: https://ssrn.com/abstract=3095826

Catherine Iorns (Contact Author)

Victoria University of Wellington - Faculty of Law ( email )

PO Box 600
Wellington, 6140
New Zealand

Paper statistics

Downloads
7
Abstract Views
35