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Abstract:

Rules and principles governing indigenous membership have a dual aspect. First, a group’s capacity to decide its own membership is an essential element of indigenous self-governance. Second, a person’s claim to membership is sometimes supported by human rights, especially the right to enjoy one’s culture in community with other members of a minority. Because of this duality, in some instances, the interests of a self-constituting group and the interests of a self-identifying individual are directly opposed. In this chapter I argue that international human rights norms, jurisprudence and methodologies have not generated principles that could assist states and tribes in the governance of indigenous membership disputes. While the structure and ideology of international human rights law is such that the interests of tribes (and tribal members) are almost always subordinated to the interests of aspirant members and the public, CANZUS states (the affluent western settler states of Canada, Australia, New Zealand and the United States) have been able to augment domestic human rights law in order to provide normative space for tribal self-constitution. This, I argue, contributes to the development of a distinctive settler-state political theory which is premised on the cardinal importance of indigeneity and tribalism in settler-state constitutionalism, and on the enduring relevance of descent as a source of political and legal status in settler societies. I draw primarily on examples from the public and tribal law of membership in the CANZUS states and on the jurisprudence of the Human Rights Committee that oversees the implementation of the International Covenant on Civil and Political Rights (the ICCPR). I take a closer look at the interplay of HRC jurisprudence and the domestic law of Canada, by examining the origins and aftermath of Lovelace v. Canada (HRC, 1981).