The Legal Construction of Indigenous Identity: Legal Paradox and Legal Parody 


Review of The Indigenous Paradox: Rights, Sovereignty, and Culture in the Americas, by Jonas Bens

Philadelphia: University of Pennsylvania Press, 2020


Jonas Bens’ ambitious book, The Indigenous Paradox: Rights, Sovereignty, and Culture in the Americas, explores the political impact of state recognition for indigenous and tribal peoples enacting indigenous rights claims. Working through a line of landmark cases from the United States, Canada, Suriname, and Nicaragua, Bens assesses states’ capacities to recognize or ignore human rights, underscoring the “relational nature of indigeneity” (6) that arises at the conflicted intersection of indigenous peoples asserting their rights to sovereignty, culture, and identity, and of formerly colonial nation-states resisting acknowledgement of these rights due to the challenges they pose to states’ cultural, historical, and political diversity. As a contribution to scholarship examining local and international human rights systems, the book makes a strong argument for a comparative ethnographic approach to legal texts in showing how indigeneity is both emergent within and constructed against national and international legal systems.

“Indigeneity is a paradoxical formation” Bens observes (2), due in part to the international human rights regime premising political protection of indigenous rights on the discretionary power of nation-states. The enigmas of identity associated with this structure result from indigenous peoples’ pre-colonial and ongoing colonial status. On the one hand, indigenous and tribal peoples are “dependent on the state”; on the other, they are separate and autonomous from it, required by the threat of inclusion and assimilation to “assert…and maintain…boundaries between themselves and the state” in order to sustain their existence (21). 

For Bens, the inherently relational characteristic of indigeneity and its conflicted relationship to state power produces a paradox: domestic and international court systems “judicialize” indigenous identity by remaking indigenous communities and tribal groups through legal processes (9). At the same time, however, they incorporate and alter indigenous rights recognition to offset the threat to state authority that indigenous claims pose in the context of “two legal systems competing for jurisdiction” (18). The sphere of legal pluralism that indigenous and tribal rights give rise to thus demonstrates how indigenous rights are both affirmed and suspended. In their presence and absence, they provide a source of ethnographic authority through legal texts that Bens analyzes to distinguish how courts decide about the status of “the other,” while also entering into a global discursive network of international political actors that determine the reach and limitations of indigenous rights movements in the Americas (21). 

In assessing how a court authorizes its capacity to affirm or suspend indigenous rights, The Indigenous Paradox demonstrates the complexity of analyzing court cases legally and ethnographically. To do so, Bens deploys a multi-dimensional reading strategy that investigates the meaning and scope of indigenous rights in their performative and political dimensions. The groundwork for this analysis and its conceptual implications are established in chapter one, which explores the theoretical reach of legal pluralism and sovereignty debates by situating the transhistorical and transnational approach to indigenous and tribal rights that the book explores.

Chapter two focuses on Johnson v. McIntosh (1823), examining the first of three Marshall decisions, including Cherokee Nation v. Georgia (1831) and Worcester v. Georgia (1832), to demonstrate their historical and political specificity as tribal rights cases concerning title by discovery and exclusive federal authority over Indian affairs. Bens discusses these cases in chapters three and four, laying the groundwork for later chapters that assess how indigenous communities are required to represent indigeneity as autonomous communities and as culturally distinct peoples before different court systems that depend on these early decisions. 

Building from the Marshall Court’s preoccupation with land speculation and its authoritative political framework concerning American Indians within federal Indian law, Bens’ legal-historical analysis distinguishes Marshall’s decisions from their embeddedness in race politics to account for the ways in which Marshall’s manner of weighing identity against prior territorial occupation permitted him to formulate legal strategies that came to be associated with important “sovereignty argument[s]” (48). 

Indicating how Marshall’s decisions drew a strong line between domestic and international laws in assessing their application to Indian tribes, Bens’ argument, at times, reads as a recuperation of the jurist from charges of “white supremacist” legal logic advancing “the legal dispossession of American Indians” (49). At one point, Bens goes so far as to describe the situation of the Cherokee Nation confronting land trespass and the execution of its members by the state of Georgia in the context of the threat of removal under Andrew Jackson’s policies as a case of “the Indians’ ‘tough luck’” (49). 

Despite this distraction, at their core, these chapters set out a model of legal pluralism that demonstrates how contemporary Indigenous rights cases gravitate toward or distance themselves from Marshall’s construction of American Indians as “domestic dependent nations” (69). In showing how the Marshall Trilogy has contemporary reach, they establish the book’s methodological centrepiece by shifting between sovereignty discourses and cultural difference to demonstrate the continuing relevance of early case law and its contribution to an indigenous rights framework that other states confronting indigenous rights claims both observe and contribute to. 

Insofar as courts grant indigenous and tribal communities political agency by acknowledging their culture, traditions, and prior occupancy rights, they also constitute the thresholds of legal power and self-articulation that indigenous and tribal communities must meet to establish and protect their rights and autonomy. Chapter five analyzes the complex legal negotiations that the Gitskan and Wet’suwet’en peoples entered into before the Canadian courts by characterizing Indigenous nations’ sui generis status as an example of “rooted legal sovereignty,” a form of legal pluralism that requires Indigenous claimants to appear within a nation’s legal system in order to bring their case, but also to exist “outside” or beyond a nation’s legal reach in order to “claim special group rights” (105). 

Demonstrating how courts define sovereignty through culture in the use of Indigenous oral histories, Bens argues that culture exists as “proof” and “constraint,” since it permits courts to impose an “inherent limitation on the use of lands held in aboriginal title” (107). As a landmark indigenous rights’ decision, Delgamuukw established “factual cultural difference before the background of the legal fiction of sovereignty” (109), while, at the same time, “sovereignty emerges only in its materialized form as cultural practice,” an assimilation of indigeneity that authorizes the court to protect “cultural difference” at the expense of “sovereign equality” (110), thereby refashioning Gitskan and Wet’suwet’en sovereign independence as a form of cultural difference. 

In chapters six through eight, Bens shifts the book’s focus from domestic courts to the international court system to assess how the Inter-American Court of Human Rights weighs proof of cultural difference. Chapter six analyzes Aloeboetoe v. Suriname for the Court’s use of cultural autonomy in assessing reparations awarded to the family relations of Saramaka tribal members who were killed by Surinamese government troops. Bens underscores the Court’s treatment of Saramaka customary law, finding that although the court recognized “female ascendants” and the autonomous family law practices that organize lines of recognition and inheritance for the tribe, it also restricted distinctions on the basis of sex by preventing the incorporation of Saramaka law that differentiated between female and male heirs of a deceased person in distributing reparations (127). 

The indigenous paradox in this case is thus associated with a court’s recognition of customary law difference: at the same time that the court recognized it also assimilated this difference to legal standards upheld by member states. As Bens observes, “As much as the member states may not discriminate on the basis of sex in determining who is the heir of a deceased person, the same goes for the Saramakas” (127).

Chapter seven explores Awas Tingni v. Nicaragua, an indigenous land rights case comparable to Delgamuukw in its political importance concerning the status of indigenous collective rights in the protection of traditional lands and resources. Bens assesses the significant legal impact of the Awas Tingni claim to maintaining a “special spiritual and cultural relationship to their homeland” as an indication of “a successful culture approach to indigenous rights claims” (166). But in arguing that the Awas Tingni “essentialize their culture identity before the Court” by engaging in Eurocentric discourses that resonate with stereotypes of the “noble savage” (166), one begins to question if a discursive ethnographic focus on the performative analysis of indigenous identity may be too narrow in its analytical approach to capture the full complexity of strategies of representation required by settler-state courts, nationally and internationally, in proxying and portraying indigenous and tribal peoples’ identities. 

Bens is not unaware of the problem of making the court’s point of view predominate. As he explains in describing the anthropological research that his study undertakes in using legal cases to establish the legal contours of indigenous identity, an indigenous or tribal presence is not fully accessible because “indigenous peoples’ bills, writs, and other documents are not produced verbatim but are summarized, represented, and discussed in the judgment” (20). Bens understands his project as one focused on discursive ethnographic analysis, an approach specific to linguistic anthropology that examines “the living construction of groups by means of text, discourse, and language” (205). An important objective of this research is to make explicit the hierarchical legal frameworks through which “native communities become indigenous when they begin to occupy the paradoxical legal position” (3). 

In chapter eight, the juxtaposition of Awas Tingni v. Nicaragua with Saramaka v. Suriname shows how competing characterizations of indigeneity and land tenure are deployed by the Inter-American Court of Human Rights to decide “[i]f the Saramakas could qualify as a tribal community,” despite their origins as descendants of “former African slaves brought to Suriname to work in the colonial sugar plantations” (169). Confronted by these tensions, arising from the Court’s use of different indigenous and tribal statuses for “precolonial populations” (170), the court substitutes “cultural difference” for “sovereignty,” as a way out of this impasse by recognizing the Saramaka community as members of Maroon society under legal protections “developed for indigenous peoples” (171). 

The final two chapters reflect on what it means for indigenous and tribal peoples to be bound by state imposed parameters of recognition nationally and internationally. These chapters revisit the paradox of identity, reframing it to accord it status as a paradox that arises because “[a] community, being independent from the state in which it resides, is dependent on this very state to bring to life its independence” (190). 

The book concludes on a somewhat ambivalent note in asserting “how limited the transformative potential of indigenous rights movements is” (200), and in finding that “indigenous movements emerge, with all of the inherent paradox they entail, ultimately embracing both hopelessness and hope” (201). One is prompted by this conclusion to ask if further study of legal elements constituting an indigenous or tribal presence may be found in these decisions, and if assessed, whether they could point to ways in which courts go beyond proxying and parodying indigenous and tribal relations. How, for example, might the court’s point of view be expanded to engage more directly with an indigenous voice, while also respecting the study’s commitment to producing an ethnographic analysis of indigenous and tribal identity in legal texts? 

Reparations claims in the case of Aloeboetoe et al. v. Suriname, discussed in chapter six, are suggestive in this regard. In the non-pecuniary reparations asserted by the Saramaka tribe, victims’ families demanded that Suriname apologize for the killings, invite the chiefs of the Saramaka tribe to appear before Suriname’s Congress to receive an apology, and rename public lands in Paramaribo after the Saramaka tribe. The tribe’s insistence on these reparations appears to “indigenize” reparative measures in ways that connect their treatment as indigenous peoples to demands for social justice by other indigenous communities. In this regard, indigenous reparations may do the work of going beyond a court’s appropriation and modification of indigenous identity, human rights, and land and life dispossession that Bens’ analysis calls for, expanding the field of comparative indigenous ethnographic research that his book compellingly contributes to. 



Posted on 26 May 2022

CHERYL SUZACK (Batchewana First Nations) is an Associate Professor in the Department of English at the University of Toronto, where she also holds a cross-appointment in the Faculty of Law. She is the author of Indigenous Women's Writing and the Cultural Study of Law (2017).