The term indigenous has become a tool that entrenches oppression and coloniality—It is not the word itself but its application to universalize peoples that is problematic--

Peoples may be a debate-provoking term in international law, but more so is the term indigenous. Indigenous peoples, like peoples, has no definition in international law. The absence of a universal definition that expresses the heterogeneity of indigenous cultures, their histories, and realities due to the antagonisms and ties between indigenous peoples and the political majority differ from state to state.2 The International Labour Organization (“ILO”) Convention 169, 3 which trailblazed the usage of the term indigenous peoples consequently failed to include a definition for the term4 because of the nescience of general consensus as to its meaning.5 The gains of indigenous peoples in the international arena, the recognition of their self-determination rights by various United Nations (“UN”) bodies, and the overwhelming adoption of the UN Declaration on the Rights of Indigenous Peoples (“UNDRIP”) have sparked hopes for a comprehensive theory of equity creating a more inclusive and just international community. For one, by reproducing the language of the International Bill of Rights on self-determination, it affirmed the selfdetermination rights of indigenous peoples long denied them. But the conceptual conundrum attached to indigeneity encumbers the domestic elaboration and promotion of indigenous rights, which are left in a state of suspended animation in legal vacuums- real or artificial. Whether indigeneity should be defined or not is in itself a controversy as much as who should define it. Divergent conceptions of indigeneity protracted debates during the drafting of the UN Declaration on the Rights of Indigenous Peoples.6 While scholarly and political discourse grapples with definitional issues, states are left with a wide berth of discretion to affirm or reject indigenous claims under the banner of the politics of recognition. As a result, this has negated the utility of international norms developed as a prophylactic against human rights violations targeting indigenous people. Furthermore, this negates the remedies of international norms which has been regarded as a power to resist structural oppression committed by states through “an entrenched and continuing pattern. . . jeopardizing the group’s pursuit of their way of life, consigning them to a situation of internal colonialism.”7 Jose Martinez Cobo, the first United Nations Special Rapporteur on the issue of discrimination against indigenous peoples, has established most of what is known on the existing definitions of indigenous peoples: those which, having a historical continuity with preinvasion and pre-colonial societies that developed on their territories, consider themselves distinct from other sectors of the societies now prevailing in those territories, or parts of them. They form at present non-dominant sectors of society and are determined to preserve, develop and transmit to future generations their ancestral territories, and their ethnic identity, as the basis of their continued existence as peoples, in accordance with their own cultural patterns, social institutions and legal systems.8 In 1996, the indigenous representatives to the UN Working Group on Indigenous Populations endorsed the Martinez Cobo’s working definition9 even if Cobo himself expressed doubts as to its applicability to Asia and Africa.10 Cobo’s definition highlights “having a historical continuity with pre-invasion and pre-colonial societies that developed on their territories” as a key feature of indigenous peoples. Later, Erica-Irene Daes, as Chairperson of the UN Working Group on Indigenous Populations, recommended priority in time with the use and occupation of a specific territory as a material consideration to the understanding of indigenous. She articulated that aboriginality is indigenous peoples’ most dominant identifying feature.12 It is propounded that the term indigenous suggests historical originality13 even if there is no commonly accepted definition in contemporary international law discourse.14 Indigenous peoples are described as descendants of the first occupants of the land to which they are strongly attached.15 However, aboriginality is amorphous if applied in Asia and Africa, where majority and minority groups are all autochthonous.16 The requirement of “historical continuity with preinvasion and pre-colonial societies that developed on their territories” harkens back to the phenomena of European colonization and invasion. Aboriginality or prior occupancy remains a lingering assumption in scholarly literatures, political and legal discourse as the main criterion to establish indigeneity. It is alleged that ethnic minorities and indigenous peoples are distinct in that the former are settler populations while the latter are autochthonous.17 However, a number of scholars have also questioned this distinction. Waldron dismissed it as “universal valorization of territorial precedence.”18 It is argued that displacement from prior occupancy as historical injustice should not necessarily justify restitution demands of groups claiming indigeneity if it produces present injustice.19 Justice, after all, should serve the living, not the dead whose sufferings are beyond rectification.20 Some states conflate indigeneity with minority or even prefer the usage of the latter. For example, in the 1970s, indigenous peoples in the Philippines were legally called national minorities.21 The term has since been legally replaced by indigenous cultural communities22 and indigenous peoples. 23 However, some indigenous groups may prefer national minorities to indigenous peoples. 24 Indigenous peoples may qualify as minorities.25 In fact, it is asserted that they are the perfect prototype of ethnic, linguistic, and religious minorities.26 Many states with indigenous peoples prefer using minorities instead of indigenous peoples. UN practice have treated indigenous peoples as minorities and their issues had been taken cognizance of by the Human Rights Council Subcommission on Prevention of Discrimination Against Minorities.27 The jurisprudence of the Human Rights Committee on right of minorities to culture under Article 27 of the ICCPR is mostly on claims raised by indigenous peoples.28 Under international law, the guaranteed rights of minorities include cultural, language, and religious rights, and the right to equality and non- discrimination. However, indigenous peoples’ rights regime goes beyond cultural rights since they are peoples with self-determination rights. Conceptual challenges inspired proposals to surface a characteristic of indigeneity that transcends aboriginality and minority. This paper looks at the proposals and further proposes that to definitively segregate indigenous peoples from non-indigenous, it is necessary to look at the bases for the indigenous claims. Moreover, it argues that indigeneity is a construct of structural oppression arising from grossly unjust policies imposed on distinct peoples occupying or claiming resource-rich ancestral domains. These policies ultimately seek to wrest control of such resources under the rubric of economic globalization.