Indigenous Communities,Nation-States,Extranational Sovereignties and the Challenge of Environmental Justice in the Age of Globalization

By remarkable coincidence, these papers came to my attention at virtually the same moment a lame duck session of the 111th Congress, laboring to clear away pending legislation before giving way to its presumably less sympathetic (to these issues) successor, finally authorized a $3.4 billion financial settlement for Indian leaseholders.1 President Obama signed the final agreement on 13 December 2010. Cobell v. Salazar turned on a pattern of negligence and malfeasance committed by the Interior Department over management of Individual Indian Money (IIM) accounts for its many wards. The facts in Cobell were scarcely in dispute. Uncounted millions in dividends generated through mineral and grazing leases on Indian allotments disappeared into general government revenues, or (as likely) never were collected in the first place.

On 16 December 2010, President Obama acted to resolve a second issue of longstanding interest to Indigenous communities by affixing his signature to the United Nations Declaration on the Rights of Indigenous Peoples. Though adopted by the UN General Assembly in 2007, the United States ultimately found itself as the very last nation to withhold its endorsement. President Obama's signature came after New Zealand, Australia, and Canada overcame their resistance, one by one. With this, so-termed “settler colonial” nations, defined as those most directly shaped by the systematic expropriation of lands, resources, and sovereignties of aboriginal inhabitants of their national territories, formally committed themselves to a recognition of indigenous rights, including self-determination, cultural sovereignty, and control over natural resources.2

Cobell and the UN Declaration obviously speak to history, and suggest pathways toward reconciliation and restitution. As historian Sherry Smith observed in recent essay, governments of the major British origin settler colonies, from South Africa, Australia and New Zealand, to Canada and the United States periodically explore means of coming to terms with the uncomfortable legacies of colonialism. Reconciliation often translates to a public acknowledgment of responsibility for patterns of dispossession, systematic oppression, and in some cases ethnocide. Restitution, a far more difficult step, entails arriving at some manner of compensation. Both are features of a new reality of pluralistic societies, re-emergent indigenous communities, and globalized framework for human, environmental, and economic justice.3

But focusing on historic relationships between nation states and indigenous communities represents one dimension of a large set of concerns. If colonialism operated through the nation state, and impelled the nation-state system as it emerged from the Age of Discovery and through the 19^th century, the emergence of multinational corporations, acting transnationally, characterizes the post-colonial world. Indeed as neo-colonialism displaced the post-colonial international order of the second half of the 20^th century, private corporations found the freedom to act not only transnationally, but also perhaps extranationally. The globalization of finance, combined with the operations of “free trade” regimes such as GATT (General Agreement on Tariffs and Trade), WTO (World Trade Organization), and NAFTA (North American Free Trade Agreement), insulate corporations from regulatory regimes constructed by nation-states. In some cases, globalization trumps democratic governance, while in others, weak and impoverished national institutions find themselves overwhelmed by the financial and political power at the disposal of transnational corporations and financial institutions.4

The globalization of business and capital directly threatens indigenous communities. Whether they sit on deposits of valuable minerals, or occupy carbon-rich forests; compete for space with exotic flora and fauna protected through national parks, or model an “environmental ethos” so appealing to western elites, indigenous peoples stand at the center of debates over globalization's consequences. Yet paradoxically, if transnational capital threatens indigenous communities, the globalization of indigenous rights and environmental justice movements threaten the authority of national sovereignties. So too does the extension of indigenous sovereignties, and their potential for extranational action.

Each of the articles in this special issue offer insights into these many and intersecting lines of inquiry. Readers may be alert to several interpretive threads, such as: indigenous communities as sites of contest among national, indigenous and extranational sovereignties; assertions of Indigenous sovereignty as a global phenomenon in contradistinction to national sovereignties; the influence of globalized capital and corporate power on national sovereignties, and on globalized environmental justice movements; the enduring influence of ethnic and racial stereotypes on development regimes, national policies, and public reception to indigenous rights. Readers also might consider how all of these forces, global and local, public and private, unilateral and multilateral, influence contemporary assertions of Indigenous rights to resources, environmental health, cultural autonomy and simple justice.

Sidney Harring draws our attention to Namibia and Botswana, for millennia the homelands of various San peoples, but more recently the nexus of extractive mining and indigenous peoples, multinational corporations and weak national governments, and legacies of colonialism alongside competing definitions of “conservation.” Standing at the center is DeBeers, the shadowy diamond cartel that controls the supply of gems and thus their price. Harring demonstrates that operating just underneath “diamonds are forever” is a sophisticated operation, so intimately linked with mining concerns and national governments that it exercises an extra-national sovereignty that stands in ironic comparison to the reality of life for the Jul'haornsi and Khwe, or the San of the Kalahari. That juxtaposition—of extranational corporate sovereignty alongside the savagely reduced self-determination of indigenous communities, is particularly striking, and unsettling. After all, global networks of finance, trade, marketing and mining permit DeBeers to operate outside international agreements on indigenous rights, environmental concerns, and even rules and regulations adopted by the governments that claim sovereignty over those diamond mines.

Because the Namibian government relies upon mining for its revenues, it endorses Exclusive Prospecting Licenses (EPL) and Mineral Deposit Retention Licenses (MDRL) that are effectively perpetual leases severed from actual mining activity. These leases resemble arrangements in Ecuador, as Kimerling observes, and Allison's description of pre-CERT (Council of Energy Resource Tribes) leases managed through the U.S. Indian Office. In each situation, private capital twists national trusteeship into an instrument of corporate influence, and at the cost of protecting territorial integrity, political sovereignty and cultural survival. As Harring argues (and Kimerling and Allison observe), a phenomenon we might term “the privatization of trusteeship” can invite neglect and abuse, and potentially ethnocide. While Allison argues effectively against assumptions that have multinational corporations inevitably gaining control over public-private partnerships, the dangers implicit in privatization, particularly as governments embrace austerity, remain instructive. Indeed the UN Declaration responds to the potential for abuse by identifying trusteeship as a national, read public, responsibility, subject to international scrutiny.5

EPL's and MDRL's in Namibia separate Jul'haornsi and Khwe peoples from their territories by effectively privatizing the state's trust responsibilities. But the damage to sovereignty extends beyond indigenous rights. Through Namdeb and Debswana, DeBeers accounts for a significant percentage of revenues for governments in both countries. Pseudo-government corporations of the first degree, Namdeb and Debswana exemplify the extranational sovereignty that exploits weak national governments and renders regulation, or trusteeship, impotent, and indeed farcical.

Harring also introduces conservation regimes into the picture. Intersections of the Nyae Nyae Conservancy in Namibia, and Botswana's Central Kalahari Game Preserve with international mining concerns offers insights into the ways that state sponsored conservation efforts can undermine indigenous sovereignty. Scholars working on issues in other parts of the globe have expanded on the paradox, of preserving natural environments and protecting indigenous communities. Competing conservationist goals often are in conflict—as in North America where the National Parks became “pristine” by expelling Indigenous peoples from their homelands,6 or in East and Central Africa, where balancing cultural and political sovereignty with wildlife preservation and economic development exposes similar tensions.7

In Southern Africa, corporations and mining concerns actively manipulate conservation efforts by perverting preserves into instruments of dispossession. Then, when San peoples fall deeper into poverty following their expulsion from the Central Kalahari Game Preserve, their condition is described as a consequence of primitive life ways. Not the result of policy decisions arrived at by the state and in combination with its corporate partners. Finally, the cruelest blow of all comes when assertions of indigenous rights are redefined as “tribalism,” or a newer form of Apartheid. Cynically deploying anti-Apartheid rhetoric to combat the aspirations of indigenous communities hits Namibia and Botswana where it most hurts, and this Orwellian redefinition of Apartheid seals the deal by undermining an already compromised state.

This recalls similar patterns in the United States and Canada, as in the concerted effort to tarnish treaty protected resource gathering as nothing more than the application of extra-legal “special rights.” Equally damaging are stinging critiques of resource gathering practices that place a presumed cultural “authenticity” at odds with treaty guaranteed rights. In cases as diverse as Makah resumption of whaling in Puget Sound, to spear fishing in Wisconsin, we see tribal sovereignty under attack from multiple directions.8 Added to this are the persistent denunciations of tribal gaming that seek to undermining public support by questioning the legitimacy of tribal groups, and the process of recognition. Sometimes expressed through a thinly veiled racism that equates Indian blood “quanta” with cultural legitimacy, gaming is simultaneously denounced as a scam perpetrated by “wannabe” Indians, or deeply and irrevocably damaging to “traditional” people and cultures. As several scholars have observed, if poverty is understood as a defining condition of indigeneity, then success is culturally suspect. But if indigeneity is equated with powerlessness, then indigenous rights are nothing more than charity.9

Judith Kimerling develops our story from this point. Her focus is on convergences between petroleum explorations, the operations of colonialism and policies of cultural assimilation, and the mobilization of international indigenous rights regimes. Her argument pivots on perceptions of cultural authenticity, wrapped inside violated trusteeship, liberally seasoned by a dose of extra-national corporate sovereignty. That mix yields a diminished state damaged indigenous communities, and further evidence of the reach of multinational corporations.

The Huaorani of Amazonian Ecuador, lionized for their presumed environmental sensibilities, live in an Edenic sort of biodiversity that—at some remove—might have inspired James Cameron's much discussed and critiqued Avatar. As with the over-referenced Na'vi, geographic isolation protected Huaorani cultural integrity, political autonomy, and that rich biodiversity. Yet underneath the surface, and in the carbon-rich forests, loomed their version of Unobtanioum, which represents their material and existential threat. If the Na'vi story were not so real, destructive, and troubling, we might find only intriguing cultural references in the history and plight of the Huaorani.

How the Huaorani evaluate their situation seems incompletely understood, but viewed from the outside, the Huaorani typify the primitive, the exotic, the authentic indigene of the western imagination (and remind me of Elizabeth Marshall Thomas' The Harmless People, a highly influential ethnography of San communities during the 1950s and ‘60s). This familiar trope, really an updated version of the remarkably persistent “Noble Savage” stereotype, is a double-edged sword. By presenting Huaorani as besieged primitives, they are rendered powerless, inevitably fated to pass before the inexorable advance of modernity.10 Thus, they join a long list of “lost tribes,” real as well as fictional, to assume the familiar role of a “society in crisis,” corrupted by intrusions they can neither understand nor resist. Academics rush to study a primitive culture before it disappears, sometimes pausing to reflect upon their role in accelerating destructive change, but often not. International communities wring their hands as they realize the impotence of conventions and declarations. Material assistance provided by religious organization carries a steep a cultural price. And efforts to protect natural environments come into conflict with the lives, and futures, of real communities.11

They also threaten national sovereignty. Like Harring, Kimerling describes a set of conditions where weak national governments, dependent upon outside capital and expertise, negotiate away sovereignty. Texaco (now Chevron) looks something like DeBeers, and Ecuador a little bit like Namibia and Botswana. Huaorani, like San, are caught in the middle. As Ecuador sought to modernize its economy and rationalize its own sovereignty, it subjected indigenous people to state sponsored assimilation efforts, and forced land cessions, in the interest of broadening opportunity, for some, by opening rich, “untouched” lands to hard working settlers. National sovereignty and multinational corporations acted hand in hand, as Ecuador partnered with Texaco to negate indigenous land tenure. Ecuadorian officials may cast these actions as simply the defense of national sovereignty from rapacious multinationals (a discourse certain to play well in the public square). But the reality is a compromised national sovereignty, the states's interests intertwined with the multinationals, coming at the expense of indigenous peoples and the environment. Assimilation completes the equation. Working in close collaboration with religious groups, Ecuador advances national sovereignty by actively undermining the cultural integrity of indigenous groups. Even more, efforts to promote a unitary national identity serve the cause of dispossession, in much the same fashion as state-sponsored assimilation efforts in settler colonial states in North American and Australasia.

We can interpret much of what we see in Ecuador, as in southern Africa, as defensive acts, confirmation in of fundamentally asymmetrical relationships between corporations and comparatively weak national governments. Kimerling demonstrates this when Ecuador's effort to deny the existence of aboriginal title provides scant insulation against Texaco's abuses of national sovereignty (not to mention the environment). Like DeBeers, Texaco easily eludes legal accountability by using competing national sovereignties to move legal action from American to Ecuadorian courts. By this act, Texaco provides telling commentary on the ability of extra-national corporations to hide behind the very national sovereignty they simultaneously undermine.

The last segment of Kimerling's paper brings us full circle, and invites further comparisons with Harring. Here, environmental and indigenous rights NGO's are positioned on the one hand as protecting Huaorani interests morph instead into another instrument of colonialism. Like the San of Namibia and Botswana, the absence of political hierarchy combines with apparent poverty to mark Huaorani as in need of guidance and protection. Well-meaning NGO's come to speak for indigenous peoples, denying them a place at the table, ignoring their perspectives, and undermining tribal sovereignty in the name of environmental protection and indigenous rights.

Indeed the effort to create a supra-tribal organization illustrates this conundrum. A well-meaning attempt at fashioning an effective Huaorani interface with hierarchical states and pseudo states remains an artificial construction that privileges the few (and the more assimilated), at the expense of the culturally conservative majority. In this sense, it too represents an instrument of colonialism rather than a spur toward tribal autonomy.

Kimerling's paper causes us to think critically about complex relationships between international environmental and human rights concerns and indigenous sovereignty. However, such an analysis demands additional attention to the nuances of Huaorani politics. The same can be said for Harring's treatment of San political actions and discourses. Divergent opinions between and inside communities no doubt exist, and certainly speak to the multiple pressures placed upon Indigenous societies, by this ongoing dance between national and extranational sovereignties. Indigenous peoples are burdened not only with preservation of land but also of the preservation of cultural values. The threat of ethnocide, as both articles demonstrate (and as Allison discusses too) follows the activities of mining companies, but also of nation states determined to profit from resource extraction and extend their own national sovereignty. Here, and finally, the Ecuadorian government's position on a national identity, as defined by a non-specific, non-ethnic, non-tribal indigeneity, illustrates these very tensions. It is likely that Huaorani understand these threats, and engage in lively discussions about strategies.

James Allison shows us that Crows and Northern Cheyennes certainly debated mining, sovereignty, and cultural survival, openly and vigorously, and his essay shifts our focus more directly toward tribal politics and Indigenous perspectives. The scene here is the Northern Plains of the United States, where two Indian nations, exercised sovereign authority over resource extraction, and launched a revolution that effectively extended the reach of tribal sovereignty. The backdrop of this story is multi-fold. One part links the Nixon Administration's endorsement of self-determination to reducing Indian Office expenditures by promoting the development of reservation resources. Another focuses on the energy crisis of the 1970s, and the drive toward promoting energy independence by exploiting domestic reserves of oil and gas. Nationally, this translated into the construction of the Alaska pipeline and opening oil fields on the Northern Slope. It also drew attention toward resource rich reservations, recalling the history of the exploitation of energy reserves on Indian lands, from Osage oil to Black Mesa and uranium mines in Navajo and Hopi land.12

Frauds and murder in Osage country during the 1920s, open pit uranium mines poisoning the lives and futures of Navajos and Lagunas in remote western locales, and equally troubling drives to store spent nuclear fuel on Native lands, or flood Cree lands via Quebec's massive James Bay hydroelectric project, might lead us to presume uniform opposition of Indian communities to the development of energy resources. Thankfully, Allison complicates, and humanizes this story. He argues, quite tellingly, that American Indian tribes are not necessarily or even ordinarily opposed to the development of reservation resources. Rather, the issue is tribal control over the means of exploitation, the terms of development, and the distribution of resulting and revenues. In short, Crows, Northern Cheyennes, and other nations increasingly see resource development in the context of tribal sovereignty.

This happened in dramatic fashion on the Northern Plains. Following Conoco Oil's decision to bypass New Deal era mineral leasing agreements, Northern Cheyenne and Crow governments responded by taking the Nixon Administration at its word. They too sought to bypass BIA and negotiate more favorable leasing agreements. This effort dovetailed with the emergence of the Council of Energy Resource Tribes, a quasi-tribal organization with intimate ties to what became the Department of Energy, which, paradoxically, sought to free energy rich tribes from government oversight through the actions of a government sponsored entity.

This presents an interesting contrast with the two other papers. In CERT, and particularly through the deliberate comparison with OPEC, tribes sought to create their own energy cartel—an American energy cartel. This turn of phrase appealed to the US government on nationalistic grounds, and provided a vehicle to extend tribal sovereignty, at least in theory. Whether Indians, and government bureaucrats, defined “American OPEC” is open to some question. New Federalism had its limits. Even more interesting is the question posed by the extension of tribal sovereignty through the development of reservation resources. Phrased differently, if tribal sovereignty is “the answer,” what is the question?

For the past several decades, students of American Indian history have considered complex interrelationships between reservation economic development and tribal sovereignty. Though the literature is diverse, and growing rapidly, studies generally focus on challenges associated with balancing economic security—jobs, infrastructure, opportunity, and the like—with the corrosive effects of capitalism generally. To what extent, it is wondered, can tribal government, much less tribal members, participate in broader economies and still retain cultural integrity? If there is no dignity in poverty, then equating Indian authenticity with economic failure is destructive, and insulting. But simply acknowledging that Indigenous people embrace change without losing themselves to modernity ignores a second truth: economic change, whether it takes the form of energy exploitation or gaming, exacts some price, and requires compromise and sacrifice.13

Allison successfully exploits (in the best sense of the word) this conundrum. On the one hand is the Northern Cheyennes' decision to void mineral leases, even as they promised record dividends. They did so, he explains, out of a clear-eyed appraisal of the social and cultural consequences of accepting the multiple effects of increased mining. The introduction of non-Indian residents onto the reservation, even temporarily, led many to conclude that the price of mineral exploitation was loss of the reservation, and cultural integrity. Even more, loss of the reservation meant ‘ethnocide,’ which should recall themes developed in our other essays. In this context, the Crows' decision asserts tribal control over leasing represents the deliberate linkage of political and cultural sovereignty that scholars of reservation economic development understand at a crucial issue.

But practical issues remain nevertheless. Allison's paper, read in the context of Harring's begs reconsideration of CERT. This odd creature at once sponsored by the US government but held out as an instrument for extending tribal sovereignty, should not be confused with Debswana or Namdeb. Still, CERT's implications for tribal sovereignty remain unclear, all these decades later. Was it intended to extend tribal autonomy, or simply bypass BIA to increase production? Was it an instrument for asserting tribal control over reservation resources or a means for extra-national corporations to elude government regulations? Was it a flawed attempt to bolster self-determination or a prelude to the Reagan administration's embrace of tribal entrepreneurialism as a means toward abolishing federal funding for tribes?

Allison's essay also encourages comparisons with Kimerling's consideration of environmental issues. If, for instance, Northern Cheyenne took advantage of a changed political landscape to free them from notoriously restrictive long-term leases, what about environmental issues? Are tribal governments equipped to manage such asymmetrical power structures and internal politics? If not, can the National government be entrusted to do its part when extra-national corporations hold all the cards? And finally, if governments do assert national sovereignty over Indigenous resources in the interests of environmental protection, what are the implications for tribal sovereignty? David Lewis' observations about nuclear waste disposal and the Skull Valley Goshutes remain instructive.14

Several years ago I had the opportunity to compose a response to a series of articles dealing with Indigenous environmental knowledge and practice. My task then involved drawing together four papers, each dealing with indigenous communities, land tenure, treaty rights, and resource use. This symposium, held on the campus of Bowdoin University in Brunswick, Maine, took place just a few years after the publication of Shepherd Krech's much-criticized The Ecological Indian, Myth and History.15

The Bowdoin articles ranged from a study of resumption of whaling to treaty protected fishing rights and included reflections on environmental diplomacy and land tenure in post-Apartheid South Africa. Read together, they inspired me to consider several linked categories of analysis, which I then listed as:

• The importance of historical continuities to contemporary struggles over land tenure, treaties and resource rights, to the methods indigenous communities use to articulate and enact those rights;

• ‘Translation,’ as in making Indigenous notions of resource and land rights intelligible to non-indigenous audiences;

• The complex interplay between Indigenous peoples and environments, as lived, observed, and interpreted in light of assumptions shaped by colonialism, noble savagism, and primitivism;

• The positioning of tradition, and ‘invented tradition,’ (its controversial twin), in discourses inside and outside Indigenous communities;

• The role of the Nation State, no less the operations of settler colonialism, in articulating and enforcing a ‘conservation ethos,’ development agendas, a ‘conservation ethos,’ environmental preservation, and how those exterior necessarily impinge upon Indigenous environments, sovereignties, and cultural survival and change.16

Those conversations, and the commentary I produced for that symposium, caused me to consider many of the issues raised by the three articles published here. Then, as now, we are interested in legal and ethical issues alongside the environmental and the political. We are considering the exploitation of resources located in, on, and around Indigenous homelands, and in the ramifications of loss of access to those resources to political viability and cultural survival, but equally the implications of the exploitation of those resources. How has colonialism changed Indigenous ways of understanding the relationship of human beings to their surroundings, and how might modern tribal governments reclaim cultural identity by restoring their rights to use resources, as they will? Can indigenous communities protect their sovereignty when the surrounding nation state surrenders it to extranational corporations?

In the end, environmental justice for indigenous communities can be a complex thing indeed. As Cobell and the UN Declaration suggest, the weight of history, the globalization of capital, and the internationalization of indigenous rights challenge the nation state, which in some cases has acted to preserve and protect environments and peoples. Not always, and rarely without cost, however. So as multinational corporations continue to extend their extra-national sovereignty, and as NGO's promote human rights and environmental protection (though not necessarily political sovereignty), it may be that the realization environmental justice, for Indigenous communities, must flow from, and support, local, tribal, and self-determination.17