Indigenous rights and the persistence of industrial capitalism: Capturing the law–ideology

Abstract

This article examines the power relations that unfold when Indigenous-led struggles invoke settler-colonial law toward protection from industry’s impacts. Building on Critical Race Theory, I posit a ‘triple-helical’ relationship between law, power, and ideology, which coproduce one another, mediated by nudges from individual agents. I argue that the triple-helix of Indigenous rights to protection from industry’s impacts has stagnated, due to industrial capitalism’s pushback through social regularization processes as well as its capture of formal and informal regulators and of discourses and ideologies. I conclude with a research agenda for applying the triple-helix framework to Indigenous-led engagements with industry.

Keywords

critical legal geography Critical Race Theory discourses ideologies indigeneity Indigenous rights power relations

I Introduction

Does law only serve the interests of the powerful, or can it counter oppression and empower the marginalized? Specifically, what power relations unfold when Indigenous Peoples invoke formal (international or domestic) legal processes in efforts to protect lands, water, cultural sites, and nonhuman species from industry’s impacts?

Insights from legal geography are crucial in investigating these engagements. Since its emergence in the 1980s (Blomley and Bakan, 1992), legal geography has made important contributions to our understandings of relationships between law and space. This relatively new line of scholarship began by uncovering ways that geographically specific circumstances shape law as it emerges from particular places (Blomley, 1994). Later, legal geographers inverted their lens. In keeping with geographical insights from the 1970s into ways that space is socially ‘produced’ (Harvey, 1973; Lefebvre, 1991 [1974]; Perin, 1977; Thompson, 1975), they examined how legal and regulatory processes enable governments and capitalist forces to organize (or ‘striate’ (Deleuze and Guattari, 1987)) space, ordering and controlling it for purposes of economic production and social reproduction (e.g. Delaney, 2001; Forest, 2004; Forman and Kedar, 2004; Mustafa, 2001). Indeed, contemporary legal geography rejects a firm division between ‘law’ and ‘space’: No space is devoid of laws to govern it, and law is always grounded in physical (macro- or micro-) spaces (Blomley and Labove, 2015).

Critical legal geography addresses how power differentials and dynamics, grounded in race, gender, and class, shape spatio-legal processes and practices (Delaney, 2016). Despite significant and rapid progress, gaps in critical legal geography remain, such as attention to rural, marginalized spaces; finer-grained analyses of the various modalities of power within a spatio-legal context (Braverman et al., 2014); and ‘the environment as both an object of governance and a terrain of struggle with respect to the law’ (Andrews and McCarthy, 2014: 7). While attempting to help address these gaps, this article also argues that critical legal geography could better account for tensions between the use of legal processes to transform and exploit space as a form of capital, a component of the means of production (an ‘object of labor’ (Marx, 1936 [1867])) – that is, a means to an economic end – and the use of legal processes in attempts to protect spaces and places seen as ecologically vulnerable and/or imbued with cultural or spiritual meaning – that is, conceived, often by Indigenous communities, as ends in themselves. This angle of inquiry is particularly relevant in the current political moment, which is witnessing the stripping away of both formal and Indigenous protections of spaces (McCarthy, 2019), as conceptualizations of space-as-end-in-itself yield to capitalist conceptualizations of space-as-means-to-an-end.

Before launching into a discussion of Indigenous resistance to industry, it is essential to note that ‘Indigenous Peoples’ is not a homogeneous category (Radcliffe, 2018). Definitions of indigeneity are highly contextual and always problematic, and membership of Indigenous groups is often hotly contested. Indigenous Peoples display a remarkable degree of diversity between groups; within each group, difference emerges at the intersection with other categories such as gender and social status. This diversity of interests often leads to a ‘diversity of mobilizations’ in response to industry, including demands for ‘rights’, such as environmental health, natural resources, and participatory processes, on one hand; and demands for ‘services’, such as distribution of benefits from the project, on the other (Arce, 2014: 49–50; see also Perreault’s [2006] discussion of ‘procedural’ vs. ‘distributive’ justice). In other words, not all community members will oppose an industrial project, at least not openly, for a variety of reasons ranging from expectations of personal or community-wide benefits, to hopeless ‘acquiescence’ to environmental and health impacts in exchange for a living wage (Auyero and Swistun, 2009; Conde and Le Billon, 2017; Horowitz, 2011; Radcliffe, 2018, 2020). While recognizing the complexity and diversity of Indigenous groups’ engagements with industry, this article will restrict its scope to an examination of Indigenous-led resistance to large-scale industrial activities in settler-colonial contexts, specifically investigating how, when, and with what results Indigenous groups call upon various legal processes in efforts to protect spaces with natural and/or cultural significance. As a non-Indigenous, white woman at a US-based institution, I am conscious of my inevitably ‘partial perspective’ (Haraway, 1988) and the privilege that makes Northern researchers ‘complicit’ with politico-economic relations based in colonial histories (Sundberg, 2015). Nonetheless, in exposing the persistent colonial violence of industrial capitalism, this article aims to support a goal often articulated by Indigenous groups: recognition of the rights of both humans and nonhumans (e.g. World People’s Conference on Climate Change and the Rights of Mother Earth, April 22, 2010).

This study complements others recently published in Progress in Human Geography on resource geographies (Huber, 2018, 2019; Kama, 2020; Koch and Perreault 2019), indigeneity (Barker and Pickerill, 2020; Radcliffe, 2017, 2018, 2020), and the law (Brickell and Cuomo, 2019; Carmalt, 2018; Delaney, 2016, 2017; Orzeck and Hae, 2020) by bringing into focus the power-laden nexuses among these topics. Reviewing empirical studies from geographers and anthropologists, along with theoretical literature from geography, law, political science, and sociology, this article examines dynamic interconnections between legal processes, ideologies, and power relations to shed light on the co-constitution of law and space within Indigenous-led struggles to protect significant places from industry’s impacts. While a substantial and growing body of literature attests to the many under-acknowledged Indigenous legal frameworks that have persisted through colonial and postcolonial repression (e.g. Napoleon and Friedland, 2014; Robinson and Raven, 2020; Todd, 2018), this article will restrict its scope to exploring ways that Indigenous groups have engaged settler-colonial law in struggles against industry.

Below, I first discuss critical approaches to law that show how legal texts and processes serve to reinforce elite positionalities, including racially based hierarchies and privilege. Next, using the example of the Indigenous rights movement, I posit a ‘triple-helical’ relationship between law, ideologies, and power, which constantly coproduce one another, mediated by nudges from individual agents who emerge from particular ideological contexts and societal power relations, and are positioned to employ various modalities of power. I then describe how, in contrast to the gradual evolution of Indigenous rights generally, the triple-helix of Indigenous rights to protection from industry’s impacts has not exhibited substantial progress. I explain this stagnation as resulting from capitalism’s power to push back against progress through processes of social regularization and the capture of both regulators and ideologies. I conclude by proposing a research agenda that applies the triple-helix framework to deepen our understandings of what happens, and why, when Indigenous-led efforts invoke the power of formal legal systems toward the protection of significant places.

II Law, Power, and Race

Scholars have long sought to explain how legal systems serve to reinforce structural power imbalances based in class, gender, and race. This section explores the emergence of TribalCrit, a body of theory that uncovers how settler-colonial law has been used to oppress Indigenous Peoples, from its roots in critical examinations of the power–law nexus: Critical Legal Studies and Critical Race Theory.

1 Critical Legal Studies

An intellectual movement that emerged in the 1970s, Critical Legal Studies (CLS) unsettled long-standing assumptions about law’s objectivity and neutrality. Building on and deepening a debate that had originated with Legal Realism in the 1920s (see Altman, 1986), critical legal scholars argued that the law was radically indeterminate: There was not necessarily one legally ‘correct’ response to any given case, but a multitude of arguably legitimate options, with extreme leeway for individual decision makers in adjudicating legal matters (e.g. Kennedy, 1976). CLS scholars argued that legal decisions are in fact merely reflections of judges’ ‘personal philosophies and politics’ (Lucarello, 2010: 626), most often self-serving. This scholarship demonstrated that, in practice (e.g. Horwitz, 1977; MacKinnon, 1978), the law arises from and serves to maintain hierarchy and privilege by reinforcing economic and political power of dominant social groups who create, interpret, and implement the law. Yet, unable to embrace its Marxist roots (Neacsu, 2000) or provide a viable alternative to the rule of law (Fischl, 1992), CLS ultimately faded into oblivion.

Moreover, as feminists and scholars of color noted, CLS intellectuals were themselves almost exclusively senior, wealthy white men. Writing about power imbalances from their privileged position (Menkel-Meadow, 1988), they failed to provide a proactive plan to address these inequities (Dalton, 1987). Indeed, in the eyes of scholar-activists from historically oppressed groups, CLS scholars too easily dismissed the value of legal rights, such as those won through the civil rights movement (Brown and Jackson, 2013). Scholars of color noted the necessity of using every tool in the limited political toolbox at their disposal when fighting for greater equality (Williams, 1987).

2 Critical Race Theory

Critical Race Theory (CRT) emerged from CLS as intellectuals of color articulated their perspectives. Building on the insight that law reinforces preexisting power relations, CRT scholars pointed out that since prevailing power structures are largely based in racial oppression, law has ultimately been geared toward the maintenance of white supremacy and privilege (e.g. Bell, 1980, 1992; Delgado, 1992; Freeman, 1978). Albeit belatedly and insufficiently, critical geographers embraced CRT to explore the racial dimensions of the production of space, such as economically driven and judicially enforced spatial segregation (Ford, 1992), spatial privileging of one racial group over another in redevelopment processes (Lai, 2012), and the ‘algorithmic violence’ of data-driven urban planning as a modern form of redlining (Safransky, 2020).

As white elites have gradually become sensitized to racial injustices, laws have been drafted to address racial discrimination. However, because of the legal system’s inherent racial bias, such efforts have been formulated, even if unconsciously, from a ‘perpetrator perspective’ rather than a ‘victim perspective’ (Freeman, 1978). This entails punishing specific instances of misconduct, assigning blame to isolated individuals with an ‘intent’ to discriminate on the basis of race, while ignoring the widespread structural political, economic, and cultural conditions that oppress people of color without a conscious motivation on the part of a particular offender. For instance, not wanting to accept responsibility for racial inequities or lay the burden of remedying the situation on ‘innocents’, white judges regularly questioned the necessity and morality of affirmative action measures intended to rectify historically grounded inequalities in access to education and employment (Lawrence, 1987). From a CRT perspective, using jurisprudence alone will inevitably fail to create the kind of broad social reform that is necessary. Instead, legal decisions both reflect the racist environment from which they emerge and also, in turn, play a role in ‘forming or crystallizing’ society-wide attitudes and inequities (Freeman, 1978: 1051).

Recognizing that social conditions were improving for people of color, CRT scholars argued that those improvements would always be partial, limited by the interests of dominant groups. Using noteworthy examples such as the Emancipation Proclamation and Brown v. Board of Education, both of which achieved strategic political aims for the US government, Derrick Bell described the ‘interest convergence principle’ (1980): Racial oppression could be reduced only when white elites’ interests aligned with those of African Americans. This was an example of what, echoing Legal Realism, Bell termed ‘Racial Realism’, a ‘hard-to-accept’ realization of the ‘permanence’ of racial subordination in US society, making racial equality, even through legal means, a quixotic goal (Bell, 1992: 373).

3 TribalCrit

CRT made important contributions to understanding relationships between legal systems and racial oppression in the US, but its scope was mainly limited to African American histories and experiences. Other bodies of theory soon emerged to address the unique forms of oppression faced by different racial groups. Asian Critical Race Theory, or AsianCrit, exposes judges’ lenience toward ‘nativistic violence’ – murders of Asian Americans blamed for whites’ economic hardships – as well as the denial of funding for poor Asians due to the ‘model minority myth’, a stereotype of ‘successful Asians’ that both ignores diversity within the Asian American community and legitimizes discrimination against other minorities (Chang, 1993). Latino Critical Race Theory (LatCrit) examines forms of oppression such as restrictive immigration laws that enable the exploitation of undocumented Mexican workers, and ways that the official classification of ‘Hispanic’ as an ethnic, not racial, category disguises discrimination (Espinoza and Harris, 1997). Tribal Critical Race Theory, or TribalCrit, analyzes Indigenous Peoples’ experiences of oppression. Rather than examining racial oppression per se, TribalCrit specifically explores the ongoing impacts of colonization. Formulated by Bryan Brayboy in 2005, TribalCrit arose from and has mainly been applied to education studies (a direction in which CRT has also moved – see Ledesma and Calderón, 2015). TribalCrit examines many aspects of Indigenous lived experiences, including the diversity of Indigenous cultures and the importance of storytelling for generating theory, along with descriptions of historical trauma, cultural loss, and severe poverty (Brayboy, 2005; 2013), with important insights into the unique relationships between colonized Indigenous Peoples and the laws of colonial powers.

One unique aspect of colonial power relations, as Native legal scholars have argued, is the use of ‘law and legal argument as tools of genocide’ (Williams, 1989: 247). In the 19th-century Removal era, ‘cultural as well as physical’ devastation occurred as the murder of Native people was legalized while the Dawes Act expropriated homelands, destroying Native livelihoods and sacred places (Strickland, 1986: 719). This legislated genocide was enabled by hegemonic mindsets of white supremacy whereby European ways – from agricultural practices to religion – were viewed as more sensible and morally superior (Brayboy, 2005). By the 20th century, however, American Indians’ relationship to the law was more ambivalent. Legislation had become an important ‘weapon in preservation and extension of Native culture and economy’ (Strickland, 1986: 715), through various legal protections and powers unique to federally recognized tribes and their enrolled members. Federal recognition of tribes, though, has always been deeply politicized; instead of deriving legitimacy from objective, historical accuracy, official recognition processes have often become power struggles (Lowery, 2009), in which the government has the upper hand. Indeed, from 1953 to 1969, federal policy aimed at ‘termination’, the abrogation of reservations’ official status and tribes’ formal power. While this failed experiment was short-lived, decades later many tribes had still not regained their original status, and deep economic and psychological damage persisted (Brayboy, 2013; Walch, 1983). Individual membership of tribes, too, is legislated in ways that serve the colonizer’s interests, with a reliance on ‘blood quantum’ incompatible with Native understandings of identity as cultural, not genetic (Ellinghaus, 2014). Even federally recognized tribes and their official members occupy a ‘liminal’ social space, between the discrimination attached to a ‘racialized’ identity and a unique legal/political relationship to the federal government that differentiates them from all other ethnic minorities (Brayboy, 2005).

In summary, CLS, CRT, and TribalCrit do important work in analyzing ways in which legal systems serve to reinforce the economic, political, social, and even spatial positions of dominant elites, thus exacerbating the multifaceted oppression of underprivileged groups such as people of color, including Indigenous Peoples. As such, they align with – and have deeply influenced – critical legal geography’s understanding of the law as implicated in uneven power formations (Braverman et al., 2014). While TribalCrit arose from the US context, its core insights into colonizers’ use of laws to reinforce their power – yet the potential for the same legal systems to protect Indigenous rights – resonate in other locations (e.g. Chen, 2016; Pinto and Blue, 2017).

The next section builds on these understandings of relationships between law and power, foregrounding ideologies as an equally important element in what I view as a tripartite relationship, a triple-helix. Below, I use the example of worldwide struggles for Indigenous rights to explore ways that law, ideologies, and power relations coevolve to effect social change.

III Law, Ideology, and Power: Triple-Helical Relations

Legal processes never operate in isolation from ideologies and power relations; instead, all three coproduce each other (Albiston and Leachman, 2015; Rosenberg, 2008), in a dynamic relationship. I conceptualize each bundle of rights (e.g. women’s rights, civil rights, Indigenous Peoples’ rights) as a ‘triple-helix’, borrowing this model from eponymous molecular structures (see Brodsky and Persikov, 2005). The three interdependent strands (law, ideologies, power relations) that comprise each bundle of rights coevolve, interacting in complex and sometimes contradictory ways, ‘nudged’ by actions that successfully challenge ideologies, legal arrangements, and/or power dynamics.

With reference to the global Indigenous rights movement and its local manifestations, this section explores relationships among ideologies, law, and power. I examine the importance of changes to, yet also the limits of, each of these three interdependent strands, absent substantive evolution of the other strands. Finally, I explore how, and under what conditions, individual agents can nudge a triple-helix.

1 The Limits of Laws

Even well-intentioned legislative revisions that leave unchallenged power relations (e.g. white supremacy) and prevailing ideologies (e.g. colonizer mentalities) fail to advance their targeted triple-helix of rights. For instance, laws putatively established as anti-discriminatory may actually undermine Indigenous sovereignty, as in Australia where the settler state – still presuming its own moral superiority, and unwilling to share power – is not required to consult Aboriginal communities before imposing ‘special measures’ (e.g. criminalizing alcohol possession) to ensure their ‘adequate advancement’ (Gover, 2018: 28).

Legislative reforms may be further hampered by a lack of appropriate implementation and enforcement by those in power – or with power – who do not support the laws’ ideological underpinnings (Delgado, 2008). Indeed, American Indian rights activists point out that treaties between tribes and the federal government are inadequately respected (Shreve, 2011). International law, generally favorable to Indigenous people’s interests and concerns, is notoriously weak as it is largely unenforced, relying (other than rare instances of armed intervention or economic sanctions) on states’ voluntary compliance, often based not in ideological commitment but in their desire to maintain positive diplomatic relations (Pavel and Lefkowitz, 2018). Meanwhile, if a law contradicts social norms (Yandle, 2011), assumed entitlements, or neoliberal expectations, citizens and/or companies will overtly or covertly resist it, reinforcing the conditions it sought to eliminate. In Paraguay, for example, an Indigenous community’s hard-won land rights exacerbated conflicts with non-Indigenous neighbors’ and industries’ (extra-)legal claims to those lands and resources (Correia, 2018, 2019).

Nonetheless, legal processes and advocacy can change ideologies (Thornton et al., 2009). Ultimately, legal frameworks and decisions shape social norms, moralities, customs, and social structures (Albiston and Leachman, 2015; Berkowitz and Walker, 1967; Darmer, 2012; Marshall, 2003). Indigenous leaders’ international legal advocacy shifted discourses about, understandings of, and ideologies surrounding Indigenous people’s rights (Engle, 2010). As social expectations shift, so do power dynamics; ideologies can ‘embolden’ groups and individuals ‘to view themselves as rights holders’ and challenge threats (Simmons, 2013: 58). International law, for instance, imbues localized Indigenous rights struggles with a sense of legitimacy and a ‘base’ from which activists present specific demands in national and international forums (Jung, 2003: 447), as the triple-helix’s three strands coevolve.

2 The Importance of Ideologies

Discourses reflect particular ideologies, of which they are written or spoken ‘manifestations’ (van Dijk, 1998: 6). Ideologies – shared belief systems, imbued with values, moral commitments, and emotions (Horowitz, 2013) – can also manifest in nondiscursive ‘semiotic messages’ (Zanotto, 2020: 109) such as images, flags, or body language. While ideologies are inherently conceptual and cannot be directly observed, as can discourses and semiotic messages, they can produce effects – including legal processes and power relations – in ways not explicitly articulated through discourse.

The deepest effects stem from ‘hegemonic’ ideologies, universally accepted as ‘common-sense’, which unconsciously shape behavior, often against actors’ own self-interest (Gramsci, 1971 [1926–1937]). Hegemonic ideologies, and their associated discourses, can reinforce power relations by justifying dominant groups’, or their government’s, legalized oppression of others. In the US, for instance, the ‘moral acceptability of military aggression and occupation’ has been supported by rhetoric promoting ‘democracy and the rule of law’ (Mattei and Nader, 2008: 3). Meanwhile, capitalism’s exploitation of laborers – serfs, slaves, the proletariat – has long been justified through ‘ideologies that proclaim their immutable inferiority, confirmed and reaffirmed by law and in public rituals’ (Lukes, 2005: 113). Similarly, colonialism benefitted from widespread ‘ideology of racial superiority epitomized by the “civilizing mission”’ (Waylen, 1996: 49; see also Said, 1978), and the taking of Indigenous territories was rationalized and legalized through ‘terra nullius’ and the ‘doctrine of discovery’, which dictated that land was ‘legally empty’ until claimed by Europeans (Borrows, 2015: 702). These ‘rights of conquest’ were endorsed by the Church, itself a bastion of ideology and power (Churchill, 1993). Centuries later, colonizers’ laws were still based in hegemonic white supremacist ideology, including 1950s US Indian law’s attempts at systematic assimilation through, for example, criminalizing spiritual practices and isolating children in boarding schools where Native languages were banned. Today, conservationist ideology is increasingly understood as perpetuating white supremacy (van Holstein and Head, 2018), serving to disempower and dispossess Indigenous communities (Li, 2010), while simultaneously extending powers of states (Duffy, 2006) and even corporations (Horowitz, 2016). Possibly, the most insidious form of ideological power is the internalization of ‘an inferior or demeaning image’ of one’s own social group (Taylor, 1992: 25) – often defined by gender, race/ethnicity, or class – leading to the reproduction of this representation by the subordinate themselves, including colonized and/or Indigenous Peoples (Fanon, 2001; Memmi, 1985 [1957]). Such ideological hegemony can produce acquiescence to inequitable power relations and legal regimes, as that oppressed group’s triple-helix of rights stagnates.

Conversely, ‘counterhegemonic discourses’ and ideologies can challenge existing power relations and demand legal reforms (Peet, 2002: 61). For instance, the Workshops on American Indian Affairs (1956–1972) instilled pride in Native college students and inspired them to help their communities, teaching them that their poverty was not – as they had been taught – their fault, but resulted from oppression and could be relieved ‘only by changing policies, changing systems, and changing institutions’ (Warrior, 2007: 296; see also McKenzie-Jones, 2014). Beyond providing a collective consciousness of injustice and enabling mutual support (Freire, 1970 [1968]), controlling the narrative of their oppression allows oppressed groups to garner external sympathy. For instance, due to long-standing Euro-American rhetoric around ‘rights’, US-based social movements have often found rights-based discourses strategically powerful in securing ‘significant ideological high ground’ (Williams, 1987: 121) in the public’s hearts and minds, in turn influencing the course of politics. Similarly, over the last few decades, a new ‘discursive opportunity structure’ (Ferree, 2003: 309) has emerged as a radical shift – from descriptions of Indigenous Peoples as ‘primitive’ or ‘savage’ to discourses valuing indigeneity, and particularly Indigenous Peoples’ relationships to place – has occurred both internationally and in particular localities. Even these discourses are problematic in many ways for Indigenous Peoples (Chiaravalloti, 2019; Horowitz, 2017a; Nadasdy, 2005; Radcliffe, 2015; Weatherdon, 2017) and heavily critiqued by scholars (see Hope, 2017). Nonetheless, framing concerns in terms of Indigenous rights now provides globally recognized political and moral legitimacy, as well as resources through international networks of nongovernmental and intergovernmental organizations (Hodgson, 2002; Karlsson, 2003; Li, 2000; Radcliffe, 2017; Taylor, 2008).

At the global scale, ideological shifts and Indigenous self-empowerment have been reflected in international law. Starting in the 1970s, international agreements emerged to address Indigenous rights, including ILO Convention No. 169 (adopted in 1989) and UNDRIP (adopted in 2007) which recognize, inter alia, Indigenous Peoples’ rights to specific territories, environmental protection, and pursuit of development on their own terms (Hasteh, 2012). These agreements were largely driven by decolonization discourses as Indigenous rights activists (notably, the American Indian Movement) and the international community pressured states toward reparations for Indigenous Peoples’ mistreatment during the colonial era and thereafter (Ciupa, 2017). At the domestic scale, local histories and cultures determine the mobilization of relevant international discourses, from ‘decolonization’ and ‘self-determination’ in Canada and the US to ‘autonomy’ and ‘cultural […] distinction’ in Latin America (Engle, 2010: 47; Jung, 2003; Schumann, 2018). Concerns about their country’s ‘international image’ also influence leaders (Risse and Sikkink, 1999: 37), while local court decisions are sometimes (although by no means always) informed by ‘international consensus’ as manifested in judicial precedent and international declarations (Kirsch, 1997: 135). In summary, ideologies (and their discourses) depend on power relations and legal processes, which they can in turn either reinforce or challenge, as all three coevolve.

3 Individual Agency and Power Modalities

To commence such coevolution, each triple-helix requires nudges from individual agents – activists, judges, lawmakers, corporate managers – who, in turn, inevitably emerge from ideological contexts and societal power relations that shape their agency. CLS’s insight that jurisprudence reflects individual judges’ politics is useful, but what informs judges’ (and other decision makers’) personal politics? Certainly, prevailing social mores – largely grounded, as CRT and TribalCrit remind us, in specific histories of racial inequality – play a large role, in part because, as discussed above, hegemonic ideologies constrain what people are able to think. But ideologies can shift; decision makers’ agency exists in a dialectical relationship with society-wide ideologies, each shaping the other. As internationally promoted ‘human rights norms’ become globally accepted, they may be ‘internalized’ as part of local politicians’ ‘belief and identity’ (Risse and Sikkink, 1999: 10). Identity-based social movements can also change widespread social norms and convictions, exerting pressure on judges, who tend to respond – albeit reactively rather than proactively (Schachter, 2011) – with decisions that support those social groups, in turn furthering shifts in power relations (Eskridge, 2002, 2004). However, society is composed of a multitude of subgroups, which embrace distinct ideologies. Decision makers’ social circles influence them disproportionately; as those elites’ ideologies shift, so do legal decisions. For instance, in 1950s US society, support for racial equality was growing among educated elites, which paved the way for the Supreme Court’s 1954 unanimous decision against segregated schools in Brown v. the Board of Education (although actual desegregation proceeded extremely slowly, as the South had not widely embraced that ideology) (Mann, 2013).

Hence, ideologies influence actors, who in turn drive change by accessing multiple forms and sources of power in which, in turn, ideologies play a part. Building upon the understanding that power is not a possession but a relationship, John Allen (2003) outlines several ‘modalities’ of power. Some punish noncompliance, through force (domination) or threats (coercion). Others are ‘quieter’ (Allen, 2011: 291): Authority requires individual or institutional legitimacy; seduction uses charm, attraction, and suggestion, whereas manipulation involves deception through hidden agendas, and inducement implies negotiation and persuasion. In driving the triple-helix toward greater legal and discursive recognition of Indigenous sovereignty, different individuals and groups are positioned – by legal and/or ideological frameworks – to exercise different power modalities in different ways, places, and moments. In Canada, a few passionate politicians used their legal authority to push for Aboriginal leaders’ inclusion in policy-making (Alcantara and Spicer, 2016). Indigenous grassroots groups, in contrast, may not occupy dominant social positions, yet exercise certain power modalities (e.g. threats of force and authority based in moral/ideological legitimacy) that states or intergovernmental or nongovernmental organizations lack. In New Caledonia, for example, an Indigenous group protested a mining project by blocking roads, which official nongovernmental organizations dared not do, and appealed to the United Nations (UN) in ways European-Caledonians could not (Horowitz, 2012, 2016).

Historically, actors have exercised power in, and through, particular spaces, such as prisons, workspaces, schools, asylums (Foucault, 1975), cities (Lefebvre, 1991 [1974]), and state territories (Connolly, 1995). However, the boundaries and meanings of those spaces are continuously challenged and resisted, by both humans and nonhumans (Kogl, 2008; Kuehls, 1996). Moreover, particularly in the ‘internet age’ (Castells, 2012), power is increasingly decoupled from spatial extension (Allen, 2016). Nonetheless, Indigenous activists’ power is inherently grounded in mobilization of their relationships to particular places. In the 1980s and 1990s, when tribes asserted their off-reservation treaty fishing rights throughout the US West and Midwest, individuals’ courage to break state laws in specific spaces – referencing the double authority of federal law and Indigenous sovereignty over treaty lands – catalyzed successful legal actions (Silvern, 1999). In Mexico, Zapatistas challenged state authority by creating autonomous, self-governing territories (Halvorsen, 2019). Indigenous activists have also (re-)occupied salient spaces in applications of force aimed at changing laws (Coulthard, 2014). For instance, occupations of land and buildings, street protests, and highway blockades throughout Latin America forced governments to reconsider discriminatory policies that privatized water services and facilitated transnational firms’ export of natural gas profits (Perreault, 2006; Selverston-Scher, 2001). Activists’ ‘nudges’ foreground ideologies and power relations, prompting coproduction of legal frameworks.

IV Indigenous Rights to Protection from Industry’s Impacts: An Obstructed Triple-Helix

As indicated above, although much remains to be achieved, Indigenous rights are gradually gaining greater ideological and legal traction at the global scale and within many localities (see e.g. Andolina et al., 2009; Brysk, 2000; Engle, 2010). However, at least one glaring exception persists: Indigenous rights to protection from industry’s impacts. Indigenous-led engagements with industry have resulted in greater formal rights and power to negotiate with companies and to be consulted by government agencies, but – despite notable examples (see Brysk, 2000; Kirsch, 1997; Wood et al., 2018) – have rarely stopped industrial activity outright. International law contains such provisions but lacks any means of direct enforcement and often has minimal influence at the national scale. Instead, domestic law is characterized by inadequate protective regulations, legal interpretations that favor industry, and even creation of legislation specifically to prevent civic engagement. This section explores how the triple-helix of Indigenous rights to protection from industry’s impacts (hereafter THIRPII) has failed to progress substantially, and in some cases is exhibiting retrogradation, due to interactions among law, ideologies, and power relations; Section V examines what is obstructing its progress.

1 International Law

While focused largely on land rights per se (Gilbert, 2006), international law instruments have also addressed Indigenous people’s rights to determine the placement of industrial projects, particularly through the concept of Free, Prior and Informed Consent (FPIC). Originating in the global Indigenous sovereignty movement, FPIC stipulates that Indigenous Peoples should have the right to decide, upon provision of adequate information and without coercion, whether to accept industrial projects on their ancestral homelands (Owen and Kemp, 2014). FPIC first appeared in international human rights discourse in the 1980s, articulated through a variety of texts such as the World Council of Indigenous Peoples’ 1984 Panama Declaration, and was repeated in the 2007 United Nations Declaration of the Rights of Indigenous Peoples (UNDRIP), Article 32(2):

States shall consult and cooperate in good faith with the Indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources.

From its very inception, though, the meanings of each of FPIC’s terms have been highly controversial, particularly ‘consent’. Many organizations and agreements, such as the International Labour Organization (ILO) Indigenous and Tribal Peoples Convention, 1989 (No. 169), have skirted the issue by substituting ‘consultation’. The World Bank also long insisted on the language of free, prior, and informed ‘consultation’ but finally embraced ‘consent’ in 2015 (World Bank, 2017). Companies argue that FPIC is irrelevant to their activities, or that addressing it would threaten profitability (Lawrence and Mortiz, 2019), and governments are reluctant to provide ‘veto’ power to Indigenous communities (Tomlinson, 2019). In response to international pressure, companies’ attempts to implement FPIC – without the necessary will and capacity – could actually increase risks for Indigenous Peoples (Kemp and Owen, 2017).

Moreover, even well-meaning international agreements and institutions co-opt Indigenous Peoples into ‘neoliberal conceptions of the individual’ through discourses of property ownership and individual well-being that elide communal experiences and livelihoods while commodifying natural and cultural resources as opportunities for self-interested profit (Ciupa, 2017: 157). International agreements thus become tools to ‘advance Indigenous peoples’ freedom to pursue economic, social and cultural development’ rather than freedom from development’s impacts (Howard-Wagner et al., 2018: 9). This is no surprise, as the ILO’s purpose was always to remove impediments to global capitalism (Richards, 2004), and the UN is comprised of state parties and dependent upon their agendas (Horowitz, 2016). While grounded in ideologies of Indigenous rights (although rejecting challenges to capitalism), international legal instruments have had limited impact in empowering Indigenous Peoples, thus ultimately failing to advance THIRPII.

2 Domestic Law

Failure to Implement International Law

Power relations between states, Indigenous Peoples, and international bodies also inhibit THIRPII’s progress at the domestic scale. States usually view Indigenous rights and environmental protection as politically nonessential and are reluctant to impose punishments for noncompliance with international agreements addressing those issues (Horowitz, 2016). For instance, in 2007, the Inter-American Court found that Suriname had violated the American Convention by failing to protect the Saramaka people from encroachment by logging and mining companies, a legal victory made bittersweet when, a decade later, Suriname had still not implemented the Court’s decision (Kirsch, 2018). States may instead punish intergovernmental organizations for exposing their mistreatment of Indigenous Peoples, as when Brazil suspended payments to the Organisation of American States after its Inter-American Commission on Human Rights pointed to Indigenous rights violations in the construction of Belo Monte Dam (Bratman, 2014).

Meanwhile, domestic adoption and implementation of international standards such as FPIC is contingent upon the nation-scale ‘institutional context’ (Papillon and Rodon, 2017: 218), including legal frameworks, sociopolitical factors, and economic in/equality (Mahanty and McDermott, 2013). The US, Canada, Australia, and New Zealand – all settler-colonial states with marginalized Indigenous populations and a powerful industrial sector – initially maintained ‘objector’ statuses (later removed) to UNDRIP, as they feared it suggested Indigenous veto powers over industrial projects (Doyle, 2015). Even where FPIC is embraced, rhetoric and reality often greatly differ; in the Philippines, one of the rare nations to enshrine FPIC in national law, implementation and enforcement remain major challenges (MacInnes et al., 2017). Similarly, despite UNDRIP Article 32(2)’s clear language, many signatories view this section simply as ‘an aspirational text’ (Papillon and Rodon, 2017: 217) rather than an enforceable commitment to FPIC. Even Bolivia, despite discursive commitments to Indigenous rights, has provided only consultation opportunities, for example allowing, over Indigenous communities’ objections, a highway through Indigenous territory (Fontana and Grugel, 2016; Tockman, 2018). Ultimately, adoption of international discourses has rarely translated into relevant domestic law, much less into power for Indigenous groups resisting industry.

Limiting or Undermining Indigenous Rights to Protection from Industry’s Impacts

Discourses of Indigenous rights have sometimes supported successful legal claims to traditional territories but have generally translated into financial offsets, rather than prevention, of environmental or cultural impacts, as when recognition of PNG villagers’ ‘subsistence rights’ helped them win compensation for mining pollution (Kirsch, 2012). More often, although domestic legal frameworks increasingly oblige companies and governments to consult and negotiate with Indigenous communities (Horowitz et al., 2018), these processes are circumscribed by unfavorable power relations and neoliberal ideologies that inhibit the implementation of rights altogether. For instance, regulators and judges who value economic development over Indigenous rights may provide ‘policy ‘wiggle room’’ – technically legal ways to exclude Indigenous input, for example, impossible deadlines for participation, or judicial rulings citing the ‘urgency’ of a project, as with Brazil’s Belo Monte Dam (Bratman, 2014: 280).

Even law putatively based in ideologies of Indigenous rights may covertly serve in support of industrial expansion. Bolivia’s government nationalized hydrocarbon resources, putatively to transfer economic benefits to Indigenous Peoples, yet framed Indigenous groups demanding consultation about resource extraction on their territory as ‘a threat to national development’ (Anthias, 2018: 12). Later, those groups developed ‘hydrocarbon citizenship’, using law to engage directly with companies, although winning financial benefits rather than stopping hydrocarbon production (Anthias, 2018). Other governments are more blatantly engaged in ‘assimilative, dispossessory processes’ (Theriault, 2019: 109) as they limit Indigenous rights to ‘recognition without redistribution’ (Goodale, 2016: 453), requiring that Indigenous Peoples ‘make themselves legible’ to national governments (Ybarra, 2013: 586) by accepting ‘neoliberal multiculturalism’ (Hale, 2004). This ideology supports cultural rights that are ‘compatible with neoliberalism’ (Ciupa, 2017: 143) while ignoring demands that challenge corporate power. In Guatemala, for example, the president promoted Maya culture and language while allowing business interests to violently evict Indigenous campesinos occupying farmland (Hale, 2004). Neoliberal multiculturalism empowers those who are able, and choose, to conjoin cultural distinction with economic dispossession or assimilation – in the process ultimately transforming ‘conceptions of self, community and culture’ (Ciupa, 2017: 159) – but marginalizes those who refuse.

Rather than empowering Indigenous Peoples to protect their environments and cultural heritage, legal processes and official discourses often blame Indigenous groups for environmental degradation, for example, blaming Xavante burning practices – which increase species diversity – for Amazonian deforestation, while ignoring the real devastation caused by agribusiness (Welch et al., 2013). Even when legislation has potential to support efforts to protect places from industry’s environmental or cultural impacts, it lacks power where it remains unenforced. For instance, Russia’s implementation of laws requiring industry to replace or compensate for use of Indigenous lands remains ‘patchy’ (Wilson, 2016: 75), while Indonesia’s district and central governments ignore oil palm plantations’ illegal activities and misrepresent companies’ promises to Indigenous communities (Khatarina, 2018; Sanders et al., 2019). In PNG, Indigenous communities often lack access to the substantial financial resources – that is, power – necessary to bring a company to court (Kirsch, 1997). Clearly, THIRPII is failing to progress.

V The Persistence of Capitalism

As described in the two preceding sections, while the triple-helix of Indigenous rights is generally turning slowly forward, a related triple-helix – greater rights for Indigenous Peoples to protect humans and nonhumans from industry – is stagnating. To understand this stagnation, I consider how a triple-helix’s strands can twist each other backward, impeding progress.

Below, I explain THIRPII’s stagnation as the result of capitalist institutions’ power, within THIRPII’s power-relations strand, to push back against progress by capturing regulatory and ideological ‘obstacles’. I bring Allen’s categorization of power modalities (see above) into conversation with social regularization theory to argue that project proponents employ various power modalities to create favorable conditions for their operations, in part by capturing regulators, both formal and informal, but also by capturing discourses and, in turn, ideologies that help shape legal and extralegal decision-making.

1 Social Regularization and Regulatory Capture

Since the 1970s, the regulationist framework (better translated from the original French as ‘regularization’ than ‘regulation’; see Jessop, 1995) has sought to explain capitalism’s paradoxes by analyzing the sociopolitical institutions and conditions that ‘reproduce […] the mode of production’, making continual accumulation possible (Aglietta, 1979: 16). In other words, capitalism as an independent economic system would soon fail; its survival relies on a complex fabric of economic and noneconomic structures, practices and norms, both formal and informal, that regularize capitalist development as an ‘overdetermined’ process (Althusser, 2005 (1969)), shaped more by social context than by inherent properties (Bridge and McManus, 2000). This social context enables accumulation processes to function, at least temporarily, through a series of ‘institutional ‘fixes’’ (Tickell and Peck, 1996: 360) – a continual process of ‘rescheduling the crisis’ (Harvey, 1989: 196). Thus, social regularization processes are not fixed and predetermined but ‘emerge out of contingent processes of struggle’ (Himley, 2013: 397); capitalism must continually work to create favorable conditions.

To do so, capitalist institutions mobilize monetary incentives, which afford them the power modality of ‘seduction’ (Allen, 2003). Industrial projects often represent huge financial boons for local governments and regulators – legally through taxes (temporary or permanent), job creation, and campaign contributions, or illegally through bribes or ‘facilitation payments’ (Nichols, 2013). Such incentives may lead to ‘regulatory capture’, the hijacking of the regulatory process so that ‘what regulators decide and/or perform is what industry prefers’ (Mitnick, 2011: 35). Firms shape or draft new regulations, lobby legislators to weaken or repeal existing ones, or redefine themselves so as to be governed by more lenient regulatory bodies (Etizioni, 2009). However, formal regulation is supplemented – sometimes even encouraged by ‘enabler’ states (Ayres and Braithwaite, 1992) – with the ‘informal regulation’ of activism (Pargal and Wheeler, 1996), which can involve costly delays, litigation, or material or reputational damages to companies (Garsten and Hernes, 2009). To counter such opposition, companies employ various power modalities, both directly and indirectly.

While private corporations typically lack the direct ability, in Allen’s (2003) terms, to ‘dominate’ or ‘coerce’ through state-monopolized force (Weber, 1946), industrial projects’ monetary clout allows them to capture this force indirectly. Examples of companies enabling or even inducing governments’ violent repression of project opponents, including Indigenous communities, include oil exploitation in Nigeria (Watts, 2004) and Colombia (Coleman, 2013), mining in Indonesia (Rifai-Hasan, 2009), and logging in Canada (Crosby and Monaghan, 2018). Increasingly, the line between public and private force has become ‘diffuse’ as private security operations collaborate with local police or national armies (Frederiksen and Himley, 2020: 55). Even when force remains ‘implicit’, fear of it is ‘extremely effective’ in stifling resistance, although, conversely, states and companies worry about protestors’ potential for violence (Hall et al., 2011). Nonetheless, securitization is expensive, and violent repression – especially of Indigenous protestors – attracts negative publicity, with repercussions for consumer and investor confidence (Frederiksen and Himley, 2020). More often, companies use ‘quieter registers’ of power (Allen, 2011: 291), such as seduction, inducement, manipulation, and authority. As the next sections explain, by mobilizing these various power modalities, project proponents not only restrict community leaders’ desire, ability, and political will to oppose projects but also co-opt relevant discourses to enhance their own power, driving THIRPII’s stagnation or even retrogradation.

2 Capturing Informal Regulators

Alongside informal regulatory pressures to seek community approval of a project, grassroots opposition can cause extensive delays and require expensive litigation and community relations efforts. Moreover, the International Finance Corporation now requires consultation with local, particularly Indigenous, communities as a precondition for funding (IFC, 2012). So do private initiatives like the Equator Principles (EPs), voluntary environmental, and social standards for lenders that can improve risk management and enhance financial institutions’ reputations (Equator Principles, 2020; Wörsdörfer, 2015); beyond the ‘business case,’ peer pressure and activist campaigns encourage EP adoption (Contreras et al., 2019; O’Sullivan and O’Dwyer, 2015). Therefore, in addition to a de jure license, project proponents may seek a de facto ‘social license to operate’ (SLO) by securing ‘community consent’ – building trust by establishing moral legitimacy and credibility (Cesar, 2019; Laplante and Spears, 2008; Melé and Armengou, 2016) – or the appearance thereof Owen and Kemp, 2013), sometimes achieved through association with Indigenous authorities (Horowitz, 2017a).

Achieving SLO not only supplements but may conflict with, weaken, or even supplant formal legal processes (Tarras-Wahlberg et al., 2017). Enabled by laissez-faire states, companies restrict and channel community aspirations and grievances into ‘private legal spaces’ under their control (Szablowski, 2019: 722). Frequently, the result is an Impact-Benefit Agreement (IBA) through which the company agrees to some revenue-sharing, and/or more extensive monitoring of socio-environmental impacts, in exchange for community acceptance of the project. Uneven power dynamics can render such processes unfavorable to disempowered Indigenous communities (e.g. O’Faircheallaigh, 2008; Horowitz, 2015; Peterson St-Laurent and Billon, 2015). Ultimately, just like formal law, IBAs as private law often reinforce preexisting power structures (e.g. Horowitz, forthcoming).

Meanwhile, community consultation processes may be lengthy and costly, with uncertain outcomes. Companies may find it more expedient to secure SLO by making donations to economically disadvantaged communities under the guise of Corporate Social Responsibility, boosting – or greenwashing – their international image, while creating dependencies that inhibit protest (Calvano, 2008; Conde and Le Billon, 2017) and ‘masking’ projects’ environmental and social harms (Campbell, 2012). Alternatively, companies may seek to capture Indigenous community leaders with bribery, which violates the US Foreign Corrupt Practices Act and similar laws in other countries but often remains unpunished (Foster, 2015). Additionally, company representatives may decide to consult exclusively with community members favorable to their operations while marginalizing others (Dietrich, 2011; Horowitz, 2017b; Sawyer, 2004).

Allen’s (2003) ‘seduction’ and ‘inducement’ play key roles in these interactions, as projects may appear to represent long-term economic development for the community (e.g. Horowitz, 2010), or companies may offer specific, immediate benefits in exchange for formal rights to land and resources. Meanwhile, ‘manipulation’ occurs as power imbalances result in unequal deals (Frederiksen and Himley, 2020), project proponents underestimate or hide socio-environmental costs, and nondisclosure clauses keep Indigenous communities from demanding terms negotiated with others (MacLean, forthcoming). Even ‘domination’ and ‘coercion’ result from the capture of informal regulators, as industrial operations and sympathetic governments convince project supporters to defend corporate interests, sometimes violently, against their fellow villagers’ resistance, as mining companies have done in Indonesia (Welker, 2009), Australia, and Canada (O’Faircheallaigh, 2016). Companies’ ability to mobilize all these power modalities stems from the financial interests their project represents. As power relations shift in industry’s favor, intertwined ideologies follow suit. The next section explores how companies capture relevant discourses and ideologies, further reinforcing their capture of formal and informal regulation and stagnating THIRPII.

3 Capturing Discourses and Ideologies

Companies may seek to counter reputational concerns – and reduce the likelihood of resistance (Booth and Seligson, 2005) – through the power modality of ‘authority’, that is, by building legitimacy. Largely, this involves ‘capturing’ relevant social discourses, created in other contexts, to frame business activities so as to make them ‘acceptable’ to regulators and civil society, facilitating formal and informal regulatory capture (Lippmann, 2005: 119). Examples include corporate capture of discourses of ‘individual freedom’ (justifying rejection of constraints on capitalist behavior) (Harvey, 2005) and ‘sustainability’ (‘relegitimizing’ environmentally damaging industrial activities) (Bridge and McManus, 2000: 37), thus capturing the ideologies in which these discourses are based and winning government and public sympathies.

At the global scale, industry groups have adopted the rhetoric of Indigenous rights but avoided true power-sharing, such as the International Council on Mining and Metals (ICMM) injunction to pursue ‘constructive relationships between mining and metals companies and Indigenous Peoples’ (ICMM, 2013: 1), which fails to embrace FPIC or require any performance standards. This commitment remains merely discursive rather than driving true ideologically grounded behavioral changes; examples abound of ICMM member companies’ activities persisting despite Indigenous resistance (MacInnes et al., 2017). Bridging scales, companies may adopt international Indigenous rights discourses to enable dispossession of local communities by channeling opposition into forums that companies can control, as when a multinational mining company in New Caledonia pressured Indigenous leaders into signing a ‘Pact’, praised by the UN for its focus on ‘development’ and ‘consultation’, that limited the community’s opportunities to protest or even express concerns to regulators (Horowitz, forthcoming). Similarly, industry representatives may capture ‘Indigenous legitimacy’ in the eyes of international observers through strategic adoption of rhetoric and careful alliances with select community leaders (Horowitz, 2015). Thus, acknowledgment of Indigenous rights may constitute a merely ‘symbolic balance of power’ (Scott, 1985: 22) – the appearance of respect through recognition – without real power shifts (Goodale, 2016).

At the local scale, companies may employ discourses of national or community economic development, portraying themselves as ‘a mechanism for social uplift’ (Frederiksen and Himley, 2020: 57). Likewise, discourses promoting communities’ ‘‘self-sufficiency’ through resource development’ justify exploitation of Indigenous lands, such as when a diamond mine in Canada discredited a chief’s demands for treaty rights by promising jobs that would bring relief from dependency on the state (Pasternak, 2016: 14). Conversely, this discursive capture allows firms to portray Indigenous-led opposition as ‘irrationality and retrograde primitivism’ (Bebbington, 2012: 115). As perceptions of an institution’s legitimacy are shaped by culturally informed expectations, corporations must ‘articulate’ authority-building efforts to local cultural contexts, capturing specific discourses that support the retrograde power relations they seek to promote (Horowitz, 2015, 2017b), and twisting THIRPII backward.

VI Conclusions

Through a comparative, international analysis, this article has addressed Sarah Radcliffe’s call for more ‘critical geographies of indigeneity’ (2017: 220) by considering the global significance of ideologies of indigeneity and how these shape spatio-legal struggles within different geographies. Specifically, it has posed the question of whether and when Indigenous Peoples can use formal legal processes to protect humans and nonhumans from industry’s impacts. Geographical and anthropological studies reviewed here show that, although – as CLS, CRT, and TribalCrit maintain – law often reinforces elite (here, corporate) power and racial inequities, ideologies play a key role in what I argue needs to be conceived as a tripartite relationship. This article presents a triple-helix model in which law, power relations, and ideologies all coproduce each other, nudged – either forward (toward greater rights) or backward – by individual agents. Applying this triple-helix model to an analysis of Indigenous rights reveals gradual progress, although in the light of extensive retrogradation, especially under current political regimes in places like the US and Brazil (McCarthy, 2019; Schumann, 2018), it remains to be seen whether and where the triple-helix of Indigenous rights will continue to turn in a progressive direction. In any case, this review reveals stagnation within the specific triple-helix of Indigenous rights to protect humans, nonhumans, and places from industrial impacts. This article argues that this stagnation results from industrial capitalism’s persistence, through its ability – buttressed by its financial resources – to capture both regulators and ideologies.

This conceptual framework expands critical geography not only by addressing previously identified needs for analyses of legal struggles over rural, marginalized spaces and environmental concerns, as well as relationships between power and law (Andrews and McCarthy, 2014; Braverman et al., 2014), but also by unpacking tensions between different conceptualizations of law’s role in relation to place. Neoliberal perspectives understand law’s purpose as supporting the transformation of space (as an economic input) through capitalist processes; conversely, many Indigenous Peoples seek to use law to preserve places as (ecologically, culturally, spiritually) valuable in themselves. Which paradigm prevails, this article argues, depends upon power relations, including the power of ideologies. To empower Indigenous Peoples to protect their natural and cultural places, then, legislation needs to be culturally appropriate, embracing alternative conceptions of ownership and community. It also must be supported ideologically and in practice by adequate numbers of people in positions to take action in line with its intent: governments (through legislation, interpretation, enforcement), activists (pressure on corporations), and even corporations (norm internalization, self-monitoring, peer pressure). Therefore, this review aims to open up new lines of geographical inquiry into relationships, both adversarial and amicable, among formal legal processes, ideologies, and Indigenous-led resistance to industry.

First, building on understandings of the various modalities of power outlined above, which challenge CLS’s and CRT’s depictions of power as unidirectional and monolithic, how do law and ideologies contingently confer different forms of power onto different groups and individuals, and under what circumstances? Specifically, what modes of power can and do Indigenous activists, company representatives, lawmakers, judges, and so on, exercise over one another, and what happens when different power modalities and hegemonic ideologies meet (see Horowitz, 2017c)? Further, how do legal frameworks, politico-economic factors, and sociocultural milieux dynamically shape such power relations?

Second, how are these power relations informed by intragroup diversity? Bell’s (1980) ‘interest convergence principle’ assumes that dominant social sectors are homogenous with unitary sets of interests. Yet, within both oppressed and elite groups, gender, ethnicity, age, socioeconomic status, and culturally determined social hierarchies all ‘intersect’ (Crenshaw, 1989), with distinct interests and concerns at each intersection. Such multiplicity inspires (often ephemeral) alliances between differently positioned subgroups – for example, Indigenous and non-Indigenous activists – with overlapping agendas (Horowitz, 2012), and animosities within larger groups, including Indigenous communities, when interests clash (Horowitz, 2002). How do legal processes change the stakes, and motivate – or destroy – alliances, in power struggles between industry and Indigenous-led resistance? And do actions putatively based in ideological commitments – such as environmentalists’ support for Indigenous rights, judges’ decisions against industry, or lawmakers’ embrace of FPIC – always actually result from self-interest, or can they truly stem from empathy, even allowing the unsettling of one’s own privilege? Of course, the ideological and sociopolitical environments from which Indigenous activists and their non-Indigenous allies emerge are also crucial to their engagements. In each case, more research is needed into ways that socio-legal contexts shape individual agents’ ideologies and power and enable or constrain their ability to effect social change, particularly in the case of Indigenous-led resistance to industry’s impacts.

Finally, given the inevitability of capitalist processes’ destruction of their own resource base (O’Connor, 1991), research is needed on the most effective strategies that Indigenous Peoples and their allies can use to protect places from industry. To what extent, and under what conditions (e.g. governments with weak, easily bribed officials) does corporate greed overcome protective legislation, and what are the best ways to prevent that? Specifically, can legal rights ever truly prevent industrial damage, or is law inescapably subject to capitalist manipulations? If the latter, when, where, and how can Indigenous-led activism successfully implement extralegal forms of power, from threatening global reputations (in the light of expanding global ideologies of Indigenous rights) to non-violent or even violent direct action, to prevent industry from harming places of cultural and natural importance and the humans and nonhumans who reside there? Geographers and other scholars may find the triple-helix model a useful analytical lens to enrich debates on such questions.

Footnotes

Acknowledgements

I am grateful to Matt Turner and three anonymous reviewers for their insightful comments, which greatly improved this paper, and to the editor, Noel Castree, for his guidance. Any errors are solely my responsibility.

Declaration of conflicting interests

The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding

The author(s) received no financial support for the research, authorship, and/or publication of this article.

ORCID iD

Leah S Horowitz

Author Biography

Leah S Horowitz is an assistant professor of environmental studies at the University of Wisconsin-Madison. She uses ethnographic methods to examine grassroots environmental governance, especially Indigenous-led resistance to environmentally-risky industrial expansion, in New Caledonia and the U.S.

References

Aglietta

(1979) A Theory of Capitalist Regulation: The US Experience. London: Verso.

Albiston

Leachman

(2015) Law as an instrument of social change. In: Wright

(ed) International Encyclopedia of the Social & Behavioral Sciences, 2nd edition, Vol. 13. Oxford: Elsevier, pp. 542–549.

Alcantara

Spicer

(2016) A new model for making Aboriginal policy? Evaluating the Kelowna Accord and the promise of multilevel governance in Canada. Canadian Public Administration 59(2): 183–203.

Allen

(2003) Lost Geographies of Power. Malden, Mass: Blackwell.

Allen

(2011) Topological twists: power’s shifting geographies. Dialogues in Human Geography 1(3): 283–298.

Allen

(2016) Topologies of Power: Beyond Territory and Networks. London: Routledge.

Althusser

(2005 (1969)) For Marx. London: Verso.

Altman

(1986) Legal realism, critical legal studies, and Dworkin. Philosophy & Public Affairs 15(3): 205–235.

Andolina

Laurie

Radcliffe

(2009) Indigenous Development in the Andes: Culture, Power, and Transnationalism. Durham: Duke University Press.

10.

Andrews

McCarthy

(2014) Scale, shale, and the state: political ecologies and legal geographies of shale gas development in Pennsylvania. Journal of Environmental Studies and Sciences 4: 7–16.

11.

Anthias

(2018) Limits to Decolonization: Indigeneity, Territory, and Hydrocarbon Politics in the Bolivian Chaco. Ithaca: Cornell University Press.

12.

Arce

(2014) Resource Extraction and Protest in Peru. Pittsburgh, PA: University of Pittsburgh Press.

13.

Auyero

Swistun

(2009) Flammable: Environmental Suffering in an Argentine Shantytown. Oxford: Oxford University Press.

14.

Ayres

Braithwaite

(1992) Responsive Regulation: Transcending the Deregulation Debate. Oxford: Oxford University Press.

15.

Barker

Pickerill

(2020) Doings with the land and sea: decolonising geographies, Indigeneity, and enacting place-agency. Progress in Human Geography 44(4): 640–662.

16.

Bebbington

(2012) Underground political ecologies: the second annual lecture of the cultural and political ecology specialty group of the association of American geographers. Geoforum 43(6): 1152–1162.

17.

Bell

(1980) Brown v. Board of education and the interest convergence dilemma. Harvard Law Review 98(3): 518–533.

18.

Bell

(1992) Racial realism. Connecticut Law Review 24(2): 363–379.

19.

Berkowitz

Walker

(1967) Laws and moral judgments. Sociometry 30(4): 410–422.

20.

Blomley

(1994) Law, Space and the Geographies of Power. New York, NY: Guilford Press.

21.

Blomley

Bakan

(1992) Spacing out: towards a critical geography of law. Osgoode Hall Law Journal 30(3): 661–690.

22.

Blomley

Labove

(2015) Law and geography. In: Wright

(ed) International Encyclopedia of the Social and Behavioral Sciences. Second Edition. Amsterdam: Elsevier, pp.474–478.

23.

Booth

Seligson

(2005) Political legitimacy and participation in Costa Rica: evidence of arena shopping. Political Research Quarterly 58(4): 537–550.

24.

Borrows

(2015) The durability of terra nullius: Tsilhqot’in nation v. British Columbia. U.B.C. Law Review 48(3): 701–742.

25.

Bratman

(2014) Contradictions of green development: human rights and environmental norms in light of Belo Monte Dam activism. Journal of Latin American Studies 46(2): 261–289.

26.

Braverman

Blomley

Delaney

, et al. (2014) Introduction: expanding the spaces of law. In: Braverman

Blomley

Delaney

, et al. (eds) The Expanding Spaces of Law: A Timely Legal Geography. Stanford: Stanford Law Books, pp. 1–29.

27.

Brayboy

BMJ

(2005) Toward a tribal critical race theory in education. The Urban Review 37(5): 425–446.

28.

Brayboy

BMJ

(2013) Tribal critical race theory: an origin story and future directions. In: Lynn

Dixson

(eds) Handbook of Critical Race Theory in education. New York, NY: Routledge, pp. 88–100.

29.

Brickell

Cuomo

(2019) Feminist geolegality. Progress in Human Geography 43(1): 104–122.

30.

Bridge

McManus

(2000) Sticks and stones: environmental narratives and discursive regulation in the forestry and mining sectors. Antipode 32(1): 10–47.

31.

Brodsky

Persikov

(2005) Molecular structure of the collagen triple helix. In: Parry

DAD

Squire

(eds) Advances in Protein Chemistry Volume 7: Fibrous Proteins: Coiled-Coils, Collagen and Elastomers. Cambridge, MA: Academic Press, pp. 301–339.

32.

Brown

Jackson

(2013) The history and conceptual elements of Critical Race Theory. In: Lynn

Dixson

(eds) Handbook of Critical Race Theory in Education. New York, NY: Routledge, pp. 9–22.

33.

Brysk

(2000) From Tribal Village to Global Village. Stanford: Stanford University Press.

34.

Calvano

(2008) Multinational corporations and local communities: a critical analysis of conflict. Journal of Business Ethics 82: 793–805.

35.

Campbell

(2012) Corporate Social Responsibility and development in Africa: redefining the roles and responsibilities of public and private actors in the mining sector. Resources Policy 37: 138–143.

36.

Carmalt

(2018) For critical geographies of human rights. Progress in Human Geography 42(6): 847–861.

37.

Castells

(2012) Networks of Outrage and Hope: Social Movements in the Internet Age. Cambridge: Polity Press.

38.

Cesar

(2019) Earning a social license to operate in mining: a case study from Peru. Resources Policy 64: 101482.

39.

Chang

(1993) Toward an Asian American legal scholarship: critical race theory, post-structuralism, and narrative space. California Law Review 81(5): 1243.

40.

Chen

(2016) Dawning of hope: practice of and reflections on indigenous teacher education in Taiwan. Policy Futures in Education 14(7): 943–955.

41.

Chiaravalloti

(2019) The displacement of insufficiently ‘traditional’ communities: local fisheries in the Pantanal. Conservation and Society 17(2): 173–183.

42.

Churchill

(1993) Struggle for the Land: Indigenous resistance to Genocide, Ecocide and Expropriation in Contemporary North America. Monroe, ME: Common Courage Press.

43.

Ciupa

(2017) The promise of rights: International indigenous rights in the neoliberal era. In: Brabazon

(ed) Neoliberal Legality: Understanding the Role of Law in the Neoliberal Project. Oxon: Routledge, pp. 140–166.

44.

Coleman

(2013) The making of docile dissent: neoliberalization and resistance in Colombia and beyond. International Political Sociology 7: 170–187.

45.

Conde

Le Billon

(2017) Why do some communities resist mining projects while others do not? The Extractive Industries and Society 4(3): 681–697.

46.

Connolly

(1995) Ethos of Pluralization. Minneapolis, MN: University of Minnesota Press.

47.

Contreras

Bos

JWB

Kleimeier

(2019) Self-regulation in sustainable finance: the adoption of the Equator Principles. World Development 122: 306–324.

48.

Correia

(2018) Indigenous rights at a crossroads: territorial struggles, the Inter-American Court of Human Rights, and legal geographies of liminality. Geoforum 97: 73–83.

49.

Correia

(2019) Unsettling territory: indigenous mobilizations, the territorial turn, and the limits of land rights in the Paraguay-Brazil borderlands. Journal of Latin American Geography 18(1): 11–37.

50.

Coulthard

(2014) Red Skin White Masks: Rejecting the Colonial Politics of Recognition. Minneapolis, MN: University of Minnesota Press.

51.

Crenshaw

(1989) Demarginalizing the intersection of race and sex: a Black feminist critique of antidiscrimination doctrine, feminist theory and antiracist politics. University of Chicago Legal Forum 1989: 139–167.

52.

Crosby

Monaghan

(2018) Policing Indigenous Movements: Dissent and the Security State. Halifax: Fernwood Publishing.

53.

Dalton

(1987) The clouded prism. Harvard Civil Rights-Civil Liberties Law Review 22(2): 435–448.

54.

Darmer

MKB

(2012) The enduring force of Scalia’s Lawrence and Romer dissents: the case for Proposition 8. Berkeley La Raza Law Journal 22(1): 155–174.

55.

Delaney

(2001) Making nature/marking humans: law as a site of (cultural) production. Annals of the Association of American Geographers 91(3): 487–503.

56.

Delaney

(2016) Legal geography II: discerning injustice. Progress in Human Geography 40(2): 267–274.

57.

Delaney

(2017) Legal geography III: new worlds, new convergences. Progress in Human Geography 41(5): 667–675.

58.

Deleuze

Guattari

(1987) A Thousand Plateaus: Capitalism and Schizophrenia. Minneapolis, MN: University of Minnesota Press.

59.

Delgado

(1992) Derrick Bell’s racial realism: a comment on white optimism and black despair. Connecticut Law Review 24: 527–532.

60.

Delgado

(2008) A comment on Rosenberg’s new edition of The Hollow Hope. Northwestern University Law Review 103: 147–152.

61.

Dietrich

(2011) Coercive harmony, deep capture and environmental justice in Puerto Rico. Development and Change 42(6): 1441–1463.

62.

Doyle

(2015) Indigenous Peoples, Title to Territory, Rights and Resources: The Transformative Role of Free Prior and informed Consent. London: Routledge.

63.

Duffy

(2006) Non-governmental organisations and governance states: the impact of transnational environmental management networks in Madagascar. Environmental Politics 15(5): 731–749.

64.

Ellinghaus

(2014) Mixed-descent Indian identity and assimilation policy. In: Smithers

Newman

(eds) Native Diasporas: Indigenous Identities and Settler Colonialism in the Americas. Lincoln, Nebraska: University of Nebraska Press, pp.297–316.

65.

Engle

(2010) The Elusive Promise of Indigenous Development: Rights, Culture, Strategy. Durham, NCA: Duke University Press.

66.

Equator Principles (2020) The Equator Principles. Available at: https://equator-principles.com/wp-content/uploads/2020/01/The-Equator-Principles-July-2020.pdf (accessed March 4, 2020).

67.

Eskridge

Jr (2002) Some effects of identity-based social movements on constitutional law in the twentieth century. Michigan Law Review 100(8): 2062–2407.

68.

Eskridge

Jr (2004) Lawrence’s jurisprudence of tolerance: judicial review to lower the stakes of identity politics. Minnesota Law Review 88(5): 1021–1102.

69.

Espinoza

Harris

(1997) Afterword: embracing the Tar-Baby–Latcrit theory and the sticky mess of race. California Law Review 85(5): 499.

70.

Etizioni

(2009) The capture theory of regulations – revisited. Society 46: 319–323.

71.

Fanon

(2001) The Wretched of the Earth. New York: Penguin.

72.

Ferree

(2003) Resonance and radicalism: feminist framing in the abortion debates of the United States and Germany. American Journal of Sociology 109(2): 304–344.

73.

Fischl

(1992) The question that killed Critical Legal Studies. Law and Social Inquiry 76: 779–820.

74.

Fontana

Grugel

(2016) The politics of indigenous participation through “free prior informed consent”: reflections from the Bolivian case. World Development 77: 249–261.

75.

Ford

(1992) Urban Space and the color line: the consequences of demarcation and disorientation in the postmodern metropolis. Harvard Blackletter Journal 9: 117–148.

76.

Forest

(2004) The legal (de)construction of geography: race and political community in supreme court redistricting decisions. Social & Cultural Geography 5(1): 55–73.

77.

Forman

Kedar

(2004) From Arab land to ‘Israel lands’: the legal dispossession of the Palestinians displaced by Israel in the wake of 1948. Environment and Planning D: Society and Space 22(6): 809–830.

78.

Foster

(2015) Combating bribery of indigenous leaders in international business. Columbia Journal of Transnational Law 54(1): 59–115.

79.

Foucault

(1975) Surveiller et Punir. Naissance de la Prison. Paris: Gallimard.

80.

Frederiksen

Himley

(2020) Tactics of dispossession: access, power, and subjectivity at the extractive frontier. Transactions of the Institute of British Geographers 45(1): 50–64.

81.

Freeman

(1978) Legitimizing racial discrimination through antidiscrimination law: a critical review of Supreme Court doctrine. Minnesota Law Review 62(6): 1049–1119.

82.

Freire

(1970 [1968]) Pedagogy of the Oppressed. New York, NY: The Seabury Press.

83.

Garsten

Hernes

(2009) Beyond CSR: Dilemmas and paradoxes of ethical conduct in transnational organizations. In: Browne

Milgram

(eds) Economics and Morality: Anthropological Approaches. Lanham: AltaMira Press, pp. 189–210.

84.

Gilbert

(2006) Indigenous Peoples’ Land Rights Under International Law: From Victims to Actors. Ardsley, NY: Transnational Publishers.

85.

Goodale

(2016) Dark matter: toward a political economy of indigenous rights and aspirational politics. Critique of Anthropology 36(4): 439–457.

86.

Gover

(2018) Indigenous-state relationships and the paradoxical effects of antidiscrimination law: lessons from the Australian high court in Maloney v the queen. In: Hendry

Tatum

Jorgensen

, et al. (eds) Indigenous Justice: New Tools, Approaches, and Spaces. London: Palgrave Macmillan, pp. 27–52.

87.

Gramsci

(1971 [1926-37]) In: Hoare

Nowell-Smith

(eds) Selections from the Prison Notebooks. New York, NY: International Publishers.

88.

Hale

(2004) Rethinking indigenous politics in the era of the “Indio Permitido”. NACLA Report on the Americas 38(2): 16–21.

89.

Hall

Hirsch

(2011) Powers of Exclusion: Land Dilemmas in Southeast Asia. Honolulu, HI: University of Hawai’i Press.

90.

Halvorsen

(2019) Decolonising territory: dialogues with Latin American knowledges and grassroots strategies. Progress in Human Geography 43(5): 790–814.

91.

Haraway

(1988) Situated knowledges: the science question in feminism and the privilege of partial perspective. Feminist Studies 14(3): 575–599.

92.

Harvey

(1973) Social Justice and the City. Athens, GA: University of Georgia Press.

93.

Harvey

(1989) The Condition of Postmodernity: An Enquiry into the Origins of Cultural Change. Oxford and New York: Blackwell.

94.

Harvey

(2005) A Brief History of Neoliberalism. Oxford: Oxford University Press.

95.

Hasteh

(2012) An analysis on the duty of the state to protect indigenous peoples affected by transnational corporations and other business enterprises. United Nations Economic and Social Council: E/C.19/2012/3.

96.

Himley

(2013) Regularizing extraction in Andean Peru: mining and social mobilization in an age of Corporate Social Responsibility. Antipode 45(2): 394–416.

97.

Hodgson

(2002) Precarious alliances: the cultural politics and structural predicaments of the indigenous rights movement in Tanzania. American Anthropologist 104(4): 1086–1097.

98.

Hope

(2017) The constraints of an ‘ironic scholar’: negotiating critical engagement with indigeneity and nature conservation. Geoforum 78: 74–81.

99.

Horowitz

(2002) Daily, immediate conflicts: an analysis of villagers’ arguments about a multinational nickel mining project in New Caledonia. Oceania 73(1): 35–55.

100.

Horowitz

(2010) “Twenty years is yesterday”: science, multinational mining, and the political ecology of trust in New Caledonia. Geoforum 41(4): 617–626.

101.

Horowitz

(2011) Interpreting industry’s impacts: micropolitical ecologies of divergent community responses. Development and Change 42(6): 1379–1391.

102.

Horowitz

(2012) Translation alignment: actor-network theory, resistance, and the power dynamics of alliance in New Caledonia. Antipode 44(3): 806–827.

103.

Horowitz

(2013) Toward empathic agonism: conflicting vulnerabilities in urban wetland governance. Environment and Planning A 45(10): 2344–2361.

104.

Horowitz

(2015) Culturally articulated neoliberalization: corporate social responsibility and the capture of indigenous legitimacy in New Caledonia. Transactions of the Institute of British Geographers 40(1): 88–101.

105.

Horowitz

(2016) Rhizomic resistance meets arborescent assemblage: UNESCO world heritage and the disempowerment of indigenous activism in New Caledonia. Annals of the American Association of Geographers 106(1): 167–185.

106.

Horowitz

(2017a) Indigenous by association: legitimation and grassroots engagements with multinational mining in New Caledonia. In: Horowitz

Watts

(eds) Grassroots Environmental Governance: Community Engagements with Industry. London: Routledge, pp. 80–100.

107.

Horowitz

(2017b) ‘It shocks me, the place of women’: intersectionality and mining companies’ retrogradation of Indigenous women in New Caledonia. Gender, Place & Culture 24(10): 1419–1440.

108.

Horowitz

(2017c) Power, cooptation, and the multiplicity of response assemblages: an example from New Caledonia. Dialogues in Human Geography 7(2): 192–196.

109.

Horowitz

(forthcoming) Contractual violence: Impact-Benefit Agreements and the violent exclusions hidden by “consent”. In: Behzadi

Doering

Postar

(eds.) Extraction/Exclusion: Beyond Binaries in Resource Knowledge and Practice. Lanham, MD: Rowman & Littlefield.

110.

Horowitz

Keeling

Lévesque

, et al. (2018) Indigenous peoples’ relationships to large-scale mining in post/colonial contexts: toward multidisciplinary comparative perspectives. The Extractive Industries and Society 5(3): 404–414.

111.

Horwitz

(1977) The Transformation of American Law, 1780-1860. Cambridge, MA: Harvard University Press.

112.

Howard-Wagner

Bargh

Altamirano-Jiménez

(2018) From new paternalism to new imaginings of possibilities in Australia, Canada and Aotearoa/New Zealand: indigenous rights and recognition and the state in the neoliberal age. In: Howard-Wagner

Bargh

Altamirano-Jiménez

(eds) The Neoliberal State, Recognition and Indigenous Rights: New Paternalism to New Imaginings. Canberra: ANU Press, pp. 1–39.

113.

Huber

(2018) Resource geographies I. Progress in Human Geography 42(1): 148–159.

114.

Huber

(2019) Resource geography II: What makes resources political? Progress in Human Geography 43(3): 553–564.

115.

ICMM (International Council on Mining and Metals) (2013) Indigenous Peoples and Mining: Position Statement. London: ICMM.

116.

IFC (International Finance Corporation) (2012) Performance standard 7: indigenous peoples. In Performance Standards on Environmental and Social Sustainability Available at: https://www.ifc.org/wps/wcm/connect/24e6bfc3-5de3-444d-be9b-226188c95454/PS_English_2012_Full-Document.pdf?MOD=AJPERES&CVID=jkV-X6h (accessed March 4, 2020).

117.

Jessop

(1995) The regulation approach, governance and post-Fordism: Alternative perspectives on economic and political change? Economy and Society 24(3): 307–333.

118.

Jung

(2003) The politics of indigenous identity: neoliberalism, cultural rights, and the Mexican Zapatistas. Social Research 70(2): 433–462.

119.

Kama

(2020) Resource-making controversies: knowledge, anticipatory politics and economization of unconventional fossil fuels. Progress in Human Geography 44(2): 333–356.

120.

Karlsson

(2003) Anthropology and the ‘indigenous slot’: claims to and debates about indigenous peoples’ status in India. Critique of Anthropology 23(4): 403–423.

121.

Kemp

Owen

(2017) Corporate Readiness and the human rights risks of applying FPIC in the global mining industry. Business and Human Rights Journal 2(1): 163–169.

122.

Kennedy

(1976) Form and substance in private law adjudication. Harvard Law Review 89: 1685–1778.

123.

Khatarina

(2018) Palm oil in Indonesia and natural resources management: Why the lack of a legal framework? Australian Journal of Asian Law 19(1): 1–17.

124.

Kirsch

(1997) Is Ok Tedi a precedent? Implications of the lawsuit. In: Banks

Ballard

(eds) The Ok Tedi Settlement: Issues, Outcomes and Implications. Canberra: National Centre for Development Studies, pp.118–140.

125.

Kirsch

(2012) Juridification of Indigenous politics. In: Eckert

Donahoe

Strümpell

, et al. (eds) Law against the State: Ethnographic Forays into Law’s Transformations. Cambridge: Cambridge University Press, pp. 23–43.

126.

Kirsch

(2018) Engaged Anthropology: Politics Beyond the Text. Oakland: University of California Press.

127.

Koch

Perreault

(2019) Resource nationalism. Progress in Human Geography 43(4): 611–631.

128.

Kogl

(2008) Strange Places: The Political Potentials and Perils of Everyday Spaces. Lanham, MD: Lexington Books.

129.

Kuehls

(1996) Beyond Sovereign Territory: The Space of Ecopolitics. Minneapolis: University of Minnesota Press.

130.

Lai

(2012) The racial triangulation of space: the case of urban renewal in san Francisco’s Fillmore district. Annals of the Association of American Geographers 102(1): 151–170.

131.

Laplante

Spears

(2008) Out of the conflict zone: the case for community consent processes in the extractive sector. Yale Human Rights & Development Law Journal 11: 69–116.

132.

Lawrence

III (1987) The id, the ego, and equal protection: Reckoning with unconscious racism. Stanford Law Review 39(2): 317–388.

133.

Lawrence

Moritz

(2019) Mining industry perspectives on indigenous rights: corporate complacency and political uncertainty. The Extractive Industries and Society 6: 41–49.

134.

Ledesma

Calderón

(2015) Critical race theory in education: a review of past literature and a look to the future. Qualitative Inquiry 21(3): 206–222.

135.

Lefebvre

(1991 [1974]) The Production of Space. Oxford: Blackwell.

136.

(2000) Articulating indigenous identity in Indonesia: resource politics and the tribal slot. Comparative Studies in Society and History 42(1): 149–179.

137.

(2010) To make live or let die? Rural dispossession and the protection of surplus populations. Antipode 41(1): 66–93.

138.

Lippmann

(2005) Public airwaves, private interests: competing visions and ideological capture in the regulation of U.S. broadcasting, 1920-1934. In: Prechel

(ed) Politics and the Corporation. Bingley: Emerald Group Publishing, pp. 109–148.

139.

Lowery

(2009) Telling our own stories: Lumbee history and the federal acknowledgment process. American Indian Quarterly 33(4): 499–522.

140.

Lucarello

(2010) The praise of silly: Critical Legal Studies and the Roberts Court. Touro Law Review 26: 619–647.

141.

Lukes

(2005) Power: A Radical View Houndmills: Palgrave Macmillan.

142.

MacInnes

Colchester

Whitmore

(2017) Free, prior and informed consent: how to rectify the devastating consequences of harmful mining for indigenous peoples. Perspectives in Ecology and Conservation 15(3): 152–160.

143.

MacKinnon

(1978) Sexual Harassment of Working Women: A Case of Sex Discrimination. New Haven, CT: Yale University Press.

144.

MacLean

(forthcoming) Industry-Indigenous IBAs, confidentiality, and sustainability. In: Newman

Odumosu-Ayanu

(eds) Law and Politics of Indigenous-Industry Agreements. London: Routledge.

145.

Mahanty

McDermott

(2013) How does ‘Free, Prior and Informed Consent (FPIC) impact social equity? Lessons from mining and forestry and their implications for REDD+. Land Use Policy 35: 406–416.

146.

Mann

(2013) The Sources of Social Power. Volume 4: Globalizations, 1945-2011. Cambridge: Cambridge University Press.

147.

Marshall

A-M

(2003) Injustice frames, legality, and the everyday construction of sexual harassment. Law & Social Inquiry 28(3): 659–689.

148.

Marx

(1936 [1867]) Capital: A Critique of Political Economy. New York, NY: The Modern Library.

149.

Mattei

Nader

(2008) Plunder: When the Rule of Law Is Illegal. Malden, MA: Blackwell.

150.

McCarthy

(2019) Authoritarianism, populism, and the environment: comparative experiences, insights, and perspectives. Annals of the American Association of Geographers 109(2): 301–313.

151.

McKenzie-Jones

(2014) Evolving voices of dissent: the workshops on American Indian affairs, 1956-1972. American Indian Quarterly 38(2): 207–236.

152.

Melé

Armengou

(2016) Moral legitimacy in controversial projects and its relationship with social license to operate: a case study. Journal of Business Ethics 136: 729–742.

153.

Memmi

(1985 (1957)) Portrait du Colonisé. Paris: Gallimard.

154.

Menkel-Meadow

(1988) Feminist legal theory, critical legal studies, and legal education or “the fem-crits go to law school”. Journal of Legal Education 38(1/2): 61–85.

155.

Mitnick

(2011) Capturing “capture”: definition and mechanisms. In: Levi-Faur

(ed) Handbook on the Politics of Regulation. Cheltenham: Edward Elgar, pp. 34–49.

156.

Mustafa

(2001) Colonial law, contemporary water issues in Pakistan. Political Geography 20(7): 817–837.

157.

Nadasdy

(2005) Transcending the debate over the ecologically noble Indian: Indigenous peoples and environmentalism. Ethnohistory 52(2): 291–331.

158.

Napoleon

Friedland

(2014) Indigenous legal traditions: roots to renaissance. In: Dubber

Hörnle

(eds) The Oxford Handbook of Criminal Law. Oxford: Oxford University Press.

159.

Neacsu

(2000) CLS stands for critical legal studies, if anyone remembers. Journal of Law and Policy 8(2): 415–453.

160.

Nichols

(2013) Are facilitating payments legal? Virginia Journal of International Law 54(1): 127–155.

161.

O’Connor

(1991) On the two contradictions of capitalism. Capitalism Nature Socialism 2(3): 107–109.

162.

O’Faircheallaigh

(2008) Negotiating cultural heritage? Aboriginal–mining company agreements in Australia. Development and Change 39(1): 25–51.

163.

O’Faircheallaigh

(2016) Negotiations in the Indigenous World: Aboriginal Peoples and the Extractive Industry in Australia and Canada. New York, NY: Routledge.

164.

O’Sullivan

O’Dwyer

(2015) The structuration of issue-based fields: social accountability, social movements and the Equator Principles issue-based field. Accounting, Organizations and Society 43: 33–55.

165.

Orzeck

Hae

(2020) Restructuring legal geography. Progress in Human Geography 44(5): 832–851.

166.

Owen

Kemp

(2013) Social licence and mining: a critical perspective. Resources Policy 38: 29–35.

167.

Owen

Kemp

(2014) ‘Free prior and informed consent’, social complexity and the mining industry: establishing a knowledge base. Resources Policy 41: 91–100.

168.

Papillon

Rodon

(2017) Proponent-Indigenous agreements and the implementation of the right to free, prior, and informed consent in Canada. Environmental Impact Assessment Review 62: 216–224.

169.

Pargal

Wheeler

(1996) Informal regulation of industrial pollution in developing countries: evidence from Indonesia. Journal of Political Economy 104(6): 1314–1327.

170.

Pasternak

(2016) The fiscal body of sovereignty: to ‘make live’ in Indian country. Settler Colonial Studies 6(4): 317–338.

171.

Pavel

Lefkowitz

(2018) Skeptical challenges to international law. Philosophy Compass 13(8): e12511.

172.

Peet

(2002) Ideology, discourse, and the geography of hegemony: from socialist to neoliberal development in postapartheid South Africa. Antipode 34(1): 54.

173.

Perin

(1977) Everything in its Place: Social Order and Land Use in America. Princeton, NJ: Princeton University Press.

174.

Perreault

(2006) From the Guerra del Agua to the Guerra del gas: resource governance, neoliberalism and popular protest in Bolivia. Antipode 38(1): 150–172.

175.

Peterson St-Laurent

Billon

(2015) Staking claims and shaking hands: impact and benefit agreements as a technology of government in the mining sector. The Extractive Industries and Society 2(3): 590–602.

176.

Pinto

Blue

(2017) Aboriginal entrepreneurship financing in Canada. Journal of Entrepreneurship in Emerging Economies 9(1): 2–20.

177.

Radcliffe

(2015) Dilemmas of Difference: Indigenous Women and the Limits of Postcolonial Development Policy. Durham: Duke University Press.

178.

Radcliffe

(2017) Geography and indigeneity I: indigeneity, coloniality and knowledge. Progress in Human Geography 41(2): 220–229.

179.

Radcliffe

(2018) Geography and indigeneity II: critical geographies of Indigenous bodily politics. Progress in Human Geography 42(3): 436–445.

180.

Radcliffe

(2020) Geography and indigeneity III: co-articulation of colonialism and capitalism in indigeneity’s economies. Progress in Human Geography 44: 374–388.

181.

Richards

(2004) Intellectual Property Rights and Global Capitalism: The Political Economy of the TRIPS Agreement. Armonk, NY: M.E. Sharpe.

182.

Rifai-Hasan

(2009) Development, power, and the mining industry in Papua: a study of freeport Indonesia. Journal of Business Ethics 89: 129–143.

183.

Risse

Sikkink

(1999) The socialization of international human rights norms into domestic practices: introduction. In: Risse

Ropp

Sikkink

(eds) The Power of Human Rights: International Norms and Domestic Change. Cambridge: Cambridge University Press, pp. 1–38.

184.

Robinson

Raven

(2020) Recognising Indigenous customary law of totemic plant species: challenges and pathways. The Geographical Journal 186(1): 31–44.

185.

Rosenberg

(2008) The hollow hope: Can courts bring about social change? 2nd edn. Chicago, IL: University of Chicago Press.

186.

Safransky

(2020) Geographies of algorithmic violence: redlining the smart city. International Journal of Urban and Regional Research 44(2): 200–218.

187.

Said

(1978) Orientalism. London and Henley: Routledge & Kegan Paul.

188.

Sanders

AJP

Ford

Mulyani

, et al. (2019) Unrelenting games: multiple negotiations and landscape transformations in the tropical peatlands of Central Kalimantan, Indonesia. World Development 117: 196–210.

189.

Sawyer

(2004) Crude Chronicles: Indigenous Politics, Multinational Oil, and Neoliberalism in Ecuador. Durham: Duke University Press.

190.

Schachter

(2011) Ely at the altar: political process theory through the lens of the marriage debate. Michigan Law Review 109(8): 1363–1411.

191.

Schumann

(2018) Competing meanings: negotiating prior consultation in Brazil. The Journal of Latin American and Caribbean Anthropology 23(3): 541–559.

192.

Scott

(1985) Weapons of the Weak: Everyday forms of Peasant Resistance. New Haven, CT: Yale University Press.

193.

Selverston-Scher

(2001) Ethnopolitics in Ecuador: Indigenous Rights and the Strengthening of Democracy. Coral Gables, FL: North-South Center Press at the University of Miami.

194.

Shreve

(2011) Red Power Rising: The National Indian Youth Council and the Origins of Native Activism. Norman: University of Oklahoma Press.

195.

Silvern

(1999) Scales of justice: law, American Indian treaty rights and the political construction of scale. Political Geography 18(6): 639–668.

196.

Simmons

(2013) From ratification to compliance: quantitative evidence on the spiral model. In: Risse

Ropp

Sikkink

(eds) The Persistent Power of Human Rights: From Commitment to Compliance. Cambridge: Cambridge University Press, pp. 43–59.

197.

Strickland

(1986) Genocide-at-law: an historic and contemporary view of the Native American experience. University of Kansas Law Review 34(4): 713–756.

198.

Sundberg

(2015) Ethics, entanglement, and political ecology. In: Perreault

Bridge

McCarthy

(eds) The Routledge Handbook of Political Ecology. London: Routledge, pp. 117–126.

199.

Szablowski

(2019) “Legal enclosure” and resource extraction: territorial transformation through the enclosure of local and Indigenous law. The Extractive Industries and Society 6(3): 722–732.

200.

Tarras-Wahlberg

Cronjé

Reyneke

, et al. (2017) Meeting local community needs: the cases of iron ore mining in Sweden and South Africa. The Extractive Industries and Society 4: 652–660.

201.

Taylor

(1992) Multiculturalism and “The Politics of Recognition”. Princeton, NJ: Princeton University Press.

202.

Taylor

(2008) Naming the land: san countermapping in Namibia’s West Caprivi. Geoforum 39(5): 1766–1775.

203.

Theriault

(2019) Unravelling the strings attached: Philippine indigeneity in law and practice. Journal of Southeast Asian Studies 50(1): 107–128.

204.

Thompson

(1975) Whigs and Hunters: The Origin of the Black Act. London: Allen Lane.

205.

Thornton

Kagan

Gunningham

(2009) When social norms and pressures are not enough: environmental performance in the trucking industry. Law & Society Review 43(2): 405–436.

206.

Tickell

Peck

(1996) Social regulation after Fordism: regulation theory, neo-liberalism and the global-local nexus. Economy and Society 24(3): 357–386.

207.

Tockman

(2018) Eliding consent in extractivist states: Bolivia, Canada, and the UN Declaration on the Rights of Indigenous Peoples. International Journal of Human Rights 22(3): 325–349.

208.

Todd

(2018) Refracting the State through human-fish relations: fishing, Indigenous legal orders and colonialism in North/Western Canada. Decolonization: Indigeneity, Education & Society 7(1): 60–75.

209.

Tomlinson

(2019) Indigenous rights and extractive resource projects: negotiations over the policy and implementation of FPIC. The International Journal of Human Rights 23(5): 880–897.

210.

van Dijk

(1998) Ideology: A Multidisciplinary Approach. London: SAGE.

211.

van Holstein

Head

(2018) Shifting settler-colonial discourses of environmentalism: representations of indigeneity and migration in Australian conservation. Geoforum 94: 41–52.

212.

Walch

(1983) Terminating the Indian termination policy. Stanford Law Review 35(6): 1181–1215.

213.

Warrior

(2007) Education, art, and activism. In: Cobb

Fowler

(eds) Beyond Red Power: American Indian Politics and Activism Since 1900. Santa Fe: School for Advanced Research Press, pp.291–302.

214.

Watts

(2004) Resource curse? governmentality, oil and power in the Niger Delta, Nigeria. Geopolitics 9(1): 50–80.

215.

Waylen

(1996) Gender in Third World Politics. Boulder: Lynne Rienner.

216.

Weatherdon

(2017) Indigenous knowledge and contested spirituality in Canadian nuclear waste management. Journal for the Study of Religion, Nature and Culture 11(1): 86–108.

217.

Weber

(1946) Politics as a vocation. In: Gerth

Mills

(eds) From Max Weber: Essays in Sociology. New York, NY: Oxford University Press, pp. 77–128.

218.

Welch

Brondízio

Hetrick

, et al. (2013) Indigenous burning as conservation practice: neotropical savanna recovery amid agribusiness deforestation in central brazil. PLoS ONE 8(12): 1–10.

219.

Welker

(2009) “Corporate security begins in the community”: mining, the Corporate Social Responsibility industry, and environmental advocacy in Indonesia. Cultural Anthropology 24(1): 142–179.

220.

Williams

(1987) Taking rights aggressively: the perils and promise of critical legal theory for peoples of color. Law & Inequality: A journal of theory and practice 5(1): 103–134.

221.

Williams

(1989) Documents of barbarism: the contemporary legacy of European racism and colonialism in the narrative traditions of federal Indian law. Arizona Law Review 31: 237–278.

222.

Wilson

(2016) What is the social licence to operate? Local perceptions of oil and gas projects in Russia’s Komi Republic and Sakhalin Island. The Extractive Industries and Society 3(1): 73–81.

223.

Wood

Brady

Keenan

Jr. (2018) Tribal tools & legal levers for halting fossil fuel transport & exports through the Pacific Northwest. American Indian Law Journal 7(1): 249–357.

224.

World Bank (2017) The World Bank Environmental and Social Framework. Washington, DC: The World Bank.

225.

World People’s Conference on Climate Change and the Rights of Mother Earth (April 22, 2010) Universal Declaration of Rights of Mother Earth. Cochabamba, Bolivia.

226.

Wörsdörfer

(2015) Equator principles: Bridging the gap between economics and ethics? Business and Society Review 120(2): 205–243.

227.

Yandle

(2011) Bootleggers and Baptists in the theory of regulation. In: Levi-Faur

(ed) Handbook on the Politics of Regulations. Cheltenham: Edward Elgar, pp. 25–33.

228.

Ybarra

(2013) ‘You Cannot measure a Tzuultaq’a’: cultural politics at the limits of liberal legibility. Antipode 45(3): 584–601.

229.

Zanotto

(2020) The role of discourses in enacting neoliberal urbanism: understanding the relationship between ideology and discourse in planning. Planning Theory 19(1): 104–126.

Indigenous rights and the persistence of industrial capitalism: Capturing the law–ideology–power triple-helix

Abstract

Keywords

I Introduction

II Law, Power, and Race

1 Critical Legal Studies

2 Critical Race Theory

3 TribalCrit

III Law, Ideology, and Power: Triple-Helical Relations

1 The Limits of Laws

2 The Importance of Ideologies

3 Individual Agency and Power Modalities

IV Indigenous Rights to Protection from Industry’s Impacts: An Obstructed Triple-Helix

1 International Law

2 Domestic Law

Failure to Implement International Law

Limiting or Undermining Indigenous Rights to Protection from Industry’s Impacts

V The Persistence of Capitalism

1 Social Regularization and Regulatory Capture

2 Capturing Informal Regulators

3 Capturing Discourses and Ideologies

VI Conclusions

Footnotes

Acknowledgements

Declaration of conflicting interests

Funding

ORCID iD

Author Biography

References