Table Of ContentIndigenous Peoples as Subjects of
International Law
For more than 500 years, Indigenous laws have been disregarded. Many
appeals for their recognition under international law have been made, but
have thus far failed – mainly because international law was itself shaped by
colonialism. How, this volume asks, might international law be reconstructed,
so that it is liberated from its colonial origins?
With contributions from critical legal theory, international law, politics,
philosophy and Indigenous history, this volume pursues a cross-disciplinary
analysis of the international legal exclusion of Indigenous Peoples, and of its
relationship to global injustice. Beyond the issue of Indigenous Peoples’
rights, however, this analysis is set within the broader context of sustain-
ability; arguing that Indigenous laws, philosophy and knowledgearenotonly
legally valid, but offer an essential approach to questions of ecological justice
and the co-existence of all life on earth.
Irene Watson belongs to the Tanganekald, Meintangk and Boandik First
Nations Peoples. She is a Professor of Law at the University of South Australia.
Indigenous Peoples and the Law
Series editors
Dr Mark A. Harris, La Trobe University, Australia; Prof Denise Ferreira da Silva,
Queen Mary,University of London,UK; DrClaireCharters,University of Auckland,
New Zealand; Dr Glen Coulthard, University of British Columbia, Canada
The colonial modalities that resulted in the pillaging of the ‘New World’
involved wholesale dispossession, genocidal violence and exploitation of their
original inhabitants. It was not, however, until the latter part of the twentieth
century that Indigenous peoples attained some degree of legal recognition.
This book series focuses upon the manner in which Indigenous peoples’
experiences of law have been transformed from an oppressive system of deny-
ing rights to a site of contestation, and the articulation of various forms of
self-governance. Encouraging a range of theoretical, political and ethical per-
spectives on Indigenous peoples and the law, this book series aims to provide
a comprehensive survey of the experience of Indigenous peoples and their
changing relationship with national and international juridical frameworks.
Titles in this series:
Aboriginal Peoples, Colonialism and International Law: Raw Law
Irene Watson
Indigeneity – Before and Beyond the Law
Kathleen Birrell
The Literary and Legal Genealogy of Native American
Dispossession: The Marshall Cases Trilogy
George Pappas
Indigenous Peoples as Subjects of International Law
Edited by Irene Watson
Forthcoming titles in this series:
Human Rights, the Rule of Law and Exploitation: Blood Minerals
Mark Harris
Scales of Governance and Indigenous Peoples: New Rights or
Same Old Wrongs?
Edited by Irène Bellier and Jennifer Hays
Indigenous Peoples as Subjects
of International Law
Edited by
Irene Watson
K ~~o~;J~n~~~up
ORKYOR LLONODONNLODNDOONN
Y
LONDONANDNEW
Firstpublished2018
byRoutledge
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©2018selectionandeditorialmatter,IreneWatson;individual
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BritishLibraryCataloguing inPublicationData
AcataloguerecordforthisbookisavailablefromtheBritishLibrary
LibraryofCongressCataloginginPublicationData
Names:Watson,Irene(IreneMargaret),editor.
Title:Indigenouspeoplesassubjectsofinternationallaw/editedby
IreneWatson.
Description:Abingdon,Oxon[UK];NewYork:Routledge,2017.|
Includesbibliographicalreferencesandindex.
Identifiers:LCCN2016055878|ISBN9781138645158(hardback)|
ISBN9781315628318(ebook)
Subjects:LCSH:Indigenouspeoples(Internationallaw)|Indigenous
peoples–Legalstatus,laws,etc.|Indigenouspeoples–Civilrights.|
Self-determination,National.
Classification:LCCK3247.I52452017|DDC342.08/72–dc23
LCrecordavailableathttps://lccn.loc.gov/2016055878
ISBN:978-1-138-64515-8(hbk)
ISBN:978-1-315-62831-8(ebk)
TypesetinGaramond
byTaylor&FrancisBooks
Contents
Acknowledgements vii
Contributors ix
Introduction 1
IRENEWATSON
1 Aboriginal Nations, the Australian nation-state and Indigenous
international legal traditions 5
AMBELLINKWAYMULLINA
2 Domination in relation to Indigenous (‘dominated’) Peoples in
international law 18
STEVENNEWCOMB
3 The ‘natural’ law of nations: society and the exclusion of First
Nations as subjects of international law 38
MARCELLEBURNS
4 Long before Munich: the American template for
Hitlerian diplomacy 54
WARDCHURCHILL
5 First Nations, Indigenous Peoples: our laws have always been here 96
IRENEWATSON
6 Law and politics of Indigenous self-determination: the meaning of
the right to prior consultation 120
ROGERMERINO
7 How governments manufacture consent and use it against
Indigenous Peoples 141
SHARONVENNE
vi Contents
8 ‘Kill the Indian in the child’: genocide in international law 171
TAMARASTARBLANKET
Bibliography 201
Index 221
Acknowledgements
I would like to thank all contributors for their collaboration and work on this
project.
I am grateful to Greta Bird, Kathy Bowrey, Morgan Briggs, Margaret
Davies, Michael Detmold, Peter Fitzpatrick, Natsu Taylor Saito, Isabelle
Schulte-Tenckoff and Michael Watson for their generosity in reading and
commenting on early draft chapters.
Research and editorial assistance provided by Jo Bird and Kate Leeson was
also much appreciated.
In 2012, I was awarded an Australian Research Council Discovery Indi-
genous Award which enabled me to contribute to and edit this book.
I owe my thanks to Colin Perrin and the editors of this series for the
opportunity to publish this body of work.
I acknowledge the work of Richard Bell and his permission to use the
image from one of his wonderful paintings ‘We Were Here First’ as the book
cover.
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Contributors
MarcelleBurnsisaKamilaroiwomanandapre-doctoralfellowattheSchoolof
Law, University of New England, New South Wales, Australia. She has
worked in First Peoples law and policy as an academic and solicitor for over
twenty years. Her contribution to this book has been supported by an Aus-
tralianGovernmentResearchTrainingProgramScholarship.
Ward Churchill is an independent activist/scholar of Cherokee descent. He is
a former professor of American Indian studies at the University of Colorado/
Boulder, and has published more than twenty books.
Ambellin Kwaymullina (LLB Hons) is an Aboriginal academic, writer and
artist who comes from the Palyku people of the Pilbara region of Western
Australia. She has worked in government and politics, and is presently a
lecturer at the University of Western Australia Law School.
Roger Merino PhD is Professor of Public Policy and Legal Theory at the
Universidad del Pacífico (Lima, Peru) and Visiting Scholar at the Harvard
Law School’s Institute for Global Law and Policy.
Steven Newcomb (Shawnee, Lenape) is co-founder/co-director of the Indi-
genous Law Institute and has advocated for Indigenous Nations/Peoples for
over twenty years, including at the United Nations.
Tamara Starblanket is a Nehiyaw Iskwew (Cree Woman) from Ahtahkakoop
Cree Nation in Treaty Six Territory on Great Turtle Island. Her research
interests are studying the impacts that genocide has had on the land and
Original Nations and Peoples. Understanding genocide and the collective
historical and present-day trauma is necessary for a true movement towards
self-determination.
Sharon Venne is an Indigenous Treaty person (Cree). She worked at the
United Nations prior to the establishment of the Working Group on
Indigenous Peoples in 1982. She has lectured internationally on the rights
