Indigenous Identity and Gatekeepers to Rights

The issue of indigenous self-identification has been one that has caused much controversy in international law. The UN Declaration does not set out a definition or criteria for “who is indigenous.” Proponents of indigenous self-identification have pointed out the dangers in having the state determine this—where the state would then act as the gatekeeper to who had access to indigenous rights and who did not. (For an excellent discussion on this issue see an article by Jeff Corntassel and Tomas Hopkins Primeau, Indigenous “Sovereignty” and International Law: Revised Strategies for Pursuing “Self-determination” (1995) 17 Human Rights Quarterly 343).

The United States, one of the quartet of states that voted in opposition to the UN Declaration on the Rights of Indigenous Peoples, cited the lack of definition of “indigenous peoples” as one of its reasons for its “No” vote. An explanation of the vote states:
“Even more fundamental and debilitating to the effective application and implementation of the declaration is its failure to define the phrase "indigenous peoples." This obvious shortcoming will subject application of the declaration to endless debate, especially if entities not properly entitled to such status seek to enjoy the special benefits and rights contained in the declaration.”

The issue of identification of indigenous status plays out at a variety of levels in the United States, and this is highlighted in the issue of the Winnemem Wintu peoples endeavour to obtain closure of part of a river during religious coming-of-age ceremonies for young women, in stories reported in the Native News Network.

The Winnemen Wintu peoples had United States federal recognition as an “Indian tribe” until 1985. Federal recognition as an “Indian tribe” carries a status that gives the indigenous group access to federal laws , such as the Indian Child Welfare Act, that apply to federally recognized tribes. But there are many indigenous groups, such as the Winnemen Wintu that lack federal recognition as an “Indian tribe” and thus lose protections and processes that might otherwise have been available to them.

For instance, the Christian Science Monitor reports that the Chief of the Winnemem Wintu peoples cannot legally possess eagle feathers since the group does not have federal status as an “Indian tribe.”


Yet here is a group of peoples who practice traditional ceremonies on traditional lands. The entire process by which the United States federal government makes its decisions on who is or is not an “Indian tribe” interferes with exercising rights of autonomy, self-determination and preserving cultural heritage that are available under the UN Declaration on the Rights of Indigenous Peoples. Accessing those rights does not require—due to the self-identification of indigenous peoples and lack of defining criteria in the instrument itself—any recognition by the US government. Surely this sets up a paradox of a group that would meet anyone’s criteria for being indigenous –no argument there—being unable to avail itself of domestic protections and having access only to international rights, due to the failure of the state to recognise the group as being indigenous in a way that determines important access to provisions and protections of federal law.

As reported in the Guardian James Anaya, the UN Special Rapporteur on indigenous rights begins an investigation into indigenous peoples in the United States today. It is hoped that his investigation will include the effects of the secondary status that the US government imposes upon those indigenous groups that it has not recognised as “Indian tribes.”