An investigation into how indigenous rights are conceived in legal
language and doctrine In the twenty-first century, it is
politically and legally commonplace that indigenous communities go
to court to assert their rights against the postcolonial
nation-state in which they reside. But upon closer examination,
this constellation is far from straightforward. Indigenous
communities make their claims as independent entities, governed by
their own laws. And yet, they bring a case before the court of
another sovereign, subjecting themselves to its foreign rule of
law. According to Jonas Bens, when native communities enter into
legal relationships with postcolonial nation-states, they "become
indigenous." Indigenous communities define themselves as separated
from the settler nation-state and insist that their rights
originate from within their own system of laws. At the same time,
indigenous communities must argue that they are incorporated in the
settler nation-state to be able to use its judiciary to enforce
these rights. As such, they are simultaneously included into and
excluded from the state. Tracing how the indigenous paradox is
inscribed into the law by investigating several indigenous rights
cases in the Americas, from the early nineteenth century to the
early twenty-first, Bens illustrates how indigenous communities
have managed-and continue to manage-to navigate this paradox by
developing lines of legal reasoning that mobilize the concepts of
sovereignty and culture. Bens argues that understanding indigeneity
as a paradoxical formation sheds light on pressing questions
concerning the role of legal pluralism and shared sovereignty in
contemporary multicultural societies.
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