Constructive Sovereignty for Indigenous Peoples

I. A NEW APPROACH TO THE RIGHTS OF INDIGENOUS PEOPLES Elaborating on current understandings of sovereignty seems, on its face, to be an exercise in futility. Although several international documents address the question of who is entitled to status as a sovereign entity, a realistic approach suggests that the only rights guaranteed to a would-be sovereign entity are those that it can back by force (deriving either from military might or the force-byproxy that accompanies political or economic influence). The prospect of an international legal standard for sovereignty is appealing, however, because it holds out the promise of adjudicating competing claims for territory, as well as political legitimacy, without resorting to violence or prolonged political upheaval. Current standards of sovereignty suffer from several flaws that impair their ability to adjudicate conflict definitively and equitably. They focus too narrowly on traditionally recognizable groups such as "indigenous peoples," and place a strong emphasis on historical conditions such as colonization. They urge international organizations and nation-states to adopt their standards and policies on normative grounds. In doing so, current standards fail on both a pragmatic and equitable level. Guilt-saturated normative rhetoric offers little more than a weak incentive for nation-states to adopt doctrines such as those promulgated by the International Labour Organisation ("ILO"). Moreover, fashioning a doctrine for sovereignty out of a disjointed mixture of morally charged qualities and conditions leads to judicial outcomes (such as Hingitaq 53, discussed below) that seem at odds with the desire to bestow greater sovereignty on communities where appropriate. Finally, the lack of a pragmatic foundation makes such doctrines inequitable: rather than applying readily ascertainable standards to communities with strong claims to sovereignty, judicial entities, such as the Denmark Supreme Court, allow sovereignty claims to stand or fall on seemingly arbitrary criteria. This pragmatic approach would borrow from two primary sources: the property law doctrine of adverse possession and Paolo G. Carozza's recent application of the principle of subsidiarity to international law. Instead of focusing on a disjointed array of normative and historical features, as most current conventions do, this approach would apply a different standard: when a community has manifested (or retained) a significant amount of de facto political sovereignty (by having its own political institutions, social norms, language, cultural traditions, economic practices, or dispute-resolution structures), despite the fact that it inhabits territory under the nominal control of another government, then it should be granted constructive political sovereignty. As with the doctrine of adverse possession, this approach would apply a standard tied to functionality', rather than purported moral claims. A community claiming sovereignty would have to demonstrate that it has already exercised a significant amount of its own de facto political sovereignty; courts would take into consideration factors such as whether those inhabiting the community's territory align themselves with community leadership and the degree to which cultural, social, religious, or economic practices set members of the community apart from nonmembers. Once the right to constructive sovereignty has been determined, Carozza's principle of subsidiarity would serve as the model for what kinds of rights would attach to the community. According to Carozza, the principle of subsidiarity holds that "each social and political group should help smaller or more local ones accomplish their respective ends without . . . arrogating those tasks to itself."1 Thus, these newly minted sovereigns would not transform into autarkic, isolated entities; rather, they would retain most of the broad structural elements of their "host" state, but would reserve the right to govern themselves and preserve their cultures and political identities. …