Define Cultural genocide in relation to Indigenous peoples history and what they have endured.

Afterwards, use the following article to answer the following two questions:

• What are the three main problems with the use of rights-based approaches in tackling Indigenous Justice?
• What do Indigenous alternatives do/consider to make them better than the rights-based approach in regard to handling conflict?
• What are you main key findings?

Introduction

Felix Cohen's comparison of the treatment of Indians to the miner's ca- nary"the Indian marks the shifts from fresh air to poison gas in our political atmosphere; and our treatment of Indians, even more than our treatment of other minorities, reflects the rise and fall in our democratic faith"1is perhaps one of the most frequently used quotations in Indian law, in large part because it captures the relationships both between Indian tribes and the dominant U.S. culture and between tribes and other minority groups. The treatment of Indi- ans, however, signals far more than solely whether democracy is being applied fairly and even-handedly. It also serves as a profound warning about the prob- lems inherent in Western rights-based legal regimes and the dangers inherent in the export of those regimes to non-Western cultures.

Western legal systems have spent most of the last two centuries disseminat- ing their particular liberal brand of individual rights and freedoms around the world, using it to shape and to justify legal processes at both the national and international levels. This endeavor is based not only upon the claims that these rights and freedoms are universal to all individuals and that such truths are self- evident but also upon the idea that rights are a vehicle for justice, perhaps eventhevehicle for justice.2These claims to universality are, however, open to query, in no context more than that of Indigenous justice. Indeed, even when the In- digenous case appears to be a strong one, the attempts of Indigenous people to rely upon these purportedly universal rights and freedoms have more often than not ended in failure.

An illustrative example is the case ofLyng v. Northwest Indian Cemetery Protective Association.3Lynginvolved practitioners of a traditional tribal religion who sought to enjoin the U.S. Forest Service from allowing commercial timber harvesting in a section of Northern California's Six Rivers National Forest, on the grounds that it violated their First Amendment right to free exercise of reli- gion. According to the test in force at the time, when a plaintiff demonstrated that a government action placed a substantial burden on the practice of reli- gion, the burden shifted to the government to prove the existence of a compel- ling governmental interest.4Since the plaintiffs' evidence inLyngconsisted of the government's own report recommending against the project on the grounds that it would destroy the Indians' ability to practice their religion, the plaintiffs had every expectation that they would be able to successfully demonstrate that the government action substantially burdened their First Amendment free exer- cise rights. The economics of timber harvesting in the area made it unlikely that the government could prove the existence of a compelling governmental inter- est, which meant that the plaintiffs were likely to prevail. Instead, however, the U.S. Supreme Court changed the test, holding for the first time that "substantial burden" was a term of art, limited to being jailed or fined for religious practices or being deprived of a governmental benefit to which the plaintiffs were other- wise entitled.5TheLyngplaintiffs could not satisfy this revised standard, and they therefore lost the case.

Lyngwas neither the first nor the last case where Indians and Indian tribes lost when they should have won. This phenomenon is not new and, indeed, has been explored on multiple previous occasions.6Our approach, however, de- parts from the norm in ways that may appear counter-intuitive. Almost without exception, scholars exploring the failure of Indigenous claims for justice begin by assuming that these quests are and must be built on the foundation of rights, whether this concerns rights enshrined at the nation-state level or those secured by the international human rights regime.7We challenge the foundation of this assumption and argue that a rights-based approach not only is not always the answer but is, in fact, also part of the problem. We posit that Western legal cul- ture, and the rights-based approach that forms its liberal political philosophical foundation, is often ill suited to accommodating claims made by subaltern legal cultures. Recognizing the deep problem as the rights-based approach itselfan approach that is integral to the dominant Western legal culture underpinning the postcolonial legal landscape of, notably, the CANZUS8settler statesit follows that a solution cannot be achieved simply by strengthening these rights or by adding yet further rights rooted in the same tradition. Instead, it is necessary to analyze the reasonsbehindthe failure of the rights-based approach to han- dling conflicts between the dominant legal culture and Indigenous individuals and communities and to use that understanding to develop alternative strate- gies.

That analysis reveals three major problems with the use of the rights-based approach to tackle issues of Indigenous justice:

1. It privileges (the worldview of) the dominant legal culture;
2. It artificially restricts the conversation about causes of and solu-
3. tions to problems of Indigenous justice; and
4. It masks the inherent tension between human rights and legal plu- ralism.

We explore the first of these problems in Part I by examining what is meant by a "rights-based approach," how those ideas came into being, and how they differ from Indigenous conceptions. We address the second problem in Part II, which examines six representative U.S. cases and the patterns that can be de- rived from those cases. In Part III we turn to the third issue, which we opera- tionalize in order to begin building possible solutions to the problem and pos- sible alternate approaches to achieving justice for Indigenous people.

I. The Rights-Based Approach and Indigenous Alternatives

For those raised in the Anglo-American legal tradition, discussions about fairness and justice are, apparently inevitably, couched in the practice and lan- guage of rights, be they constitutional or (international) human rights. Individ- uals have, for example, rights to free speech and equal protection,9which are in turn protected through a right to due process.10The concept of rights has be- come so embedded in legal discourse, so normalized in contemporary legal practice, and so synonymous with justice, that it is all too easy to forget that a rights-based approach is not the only option available for addressing conflicts between the state and its citizens and, moreover, to accept it as such without any real critical engagement. In this Part, we first explore the nature and origins of the rights-based approach and then contrast it with Indigenous approaches.

A. The Functioning, Origins, and Critique of the Rights-Based Approach

To provide an accurate critique of the rights-based approach, it is necessary to understand both what that approach is and how it transpired. Placing the rights-based approach in context allows us to recognize that the rights para- digm is not an innately neutral one but, rather, a creature of the legal culture of which it is part. Acknowledging that critical fact is the first important step to- wards understanding not only why the rights-based approach became the dom- inant paradigm but also why it is so effective in masking and even ignoring In- digenous alternatives to regulating the interaction between the individual and the state.

Although their contemporary form may differ from their original one, rights are rooted in Western liberal thought, particularly in social contract theo- ry, and in the political philosophy of liberalism. As such, their origins can be traced back to the Enlightenment and thus to the start of modernity: the lineage of these ideas started with Hobbes'Leviathan11and continued forward through Locke'sSecond Treatise,12Rousseau'sSocial Contract,13Rawls'A Theory of Jus- tice,14and Nozick'sAnarchy, State, and Utopia.15

The heyday of the nation-state saw the absolute power of the Hobbesian sovereign subjected to a single effective restriction, namely that the exercise of that power ought not to interfere unnecessarily with the autonomy of the indi- vidual subject. Although this was a high threshold, with necessary interference being construed as anything required to preserve order and to prevent a rever- sion to the state of nature, even Hobbes recognized the importance of the sphere of individual autonomy free from state interference,16which he located in the idea of individual natural rights. This thinking is even more apparent in the Lockean construction of the social contract, whereby an individual ought not to be interfered with in terms of his "life, liberty and possessions," on the basis that he is the bearer of "certain inalienable rights."17

From theseventeenthcentury onwards, therefore, the ideas that the rela- tionship between the state and the individual is governed with reference to in- dividual natural rights and that these rights operate as a bulwark against the ex- cesses of state power were robustly established. This view reached its zenith with the Declaration of Independence, the American and French Revolutions, and the drafting and ratification of the U.S. Constitution. This conceptualization of the relationship between the individual and the state is found not only in the language of the U.S. Constitution18but also in its structure: the Bill of Rights was circulated and ratified shortly after the Constitution in order to allay con- cerns about the authority given by the latter to the stronger federal govern- ment.19Individual natural rights became synonymous with modernity, which was, in turn, irrevocably and undeniably Western.20

The international rights declarations of the post-World War II period con- tinued in a similar vein, although the crimes against humanity perpetrated un- der Nazism gave rise to a newuniversaldimension in the rhetoric of rights. No longer simply presented as natural rights, the rights recognized and enshrined in postwar international documents21took the monikerhumanrightsrights held freely and equally by all people by virtue of their shared humanityand as such were explicitly designated as being of universal ambit and application. Leaving aside for a moment issues related to the effective implementation of these rights protections, the effect of thisuniversalizationprocess22was project- ing a recognizably (by both pedigree and context) Western approach not only as thede factonorm but as theonlyform of interaction between the individual and the state deemed acceptable by the international community. But, the claim to human rights' universality, an innately inclusive and egalitarian provision when viewed from a Western perspective and from a position of familiarity with a rights-based approach, becomes a somewhat presumptuous exercise in hegemony if the worldview assumed is an Indigenous one unfamiliar with the individualistic nature of rights discourse and the very particular way in which it conditions and shapes interactions between citizen and state.23

It was the Critical Legal Studies movements of the1970s and1980s24that first put forward the idea that law is not a value-neutral system but rather a creature of the power structures that built it. Critical legal theory, as Alan Hunt has outlined, "grounds itself on the critique of the historical project of the En- lightenment [that] is perceived as offering a rationalist and consensual solution to the problem of social order,"25with a core insight that, in spite of its postur- ing as a body of objective rules and procedures, law is neither impartial in its operation nor a vehicle for social justice. Law instead embodies and reflects the inherent biases of society's dominant ideology and power structures and delib- erately facilitates the perpetuation of these power asymmetries; it denies "the oppressive nature of the existing hierarchies."26

Nowhere is this more apparent than in rights discourse, which, by means of some audacious sleight of hand, presents itself as a means of achieving social justice while at the same time legitimating and perpetuating the status quo. It does not stop there, however: its second masterstroke is to weave hierarchy and hegemony through the legal system, privileging a particular white male bour- geois individualism and designating it somehow as thenorm.Duncan Kennedy makes this point particularly well:

Rights talk was the language of the groupthe white male bourgeoi- siethat cracked open and reconstituted the feudal and then mercan- tilist orders of Western Europe, and did it in the name of Reason. The mediating power of the language, based on the presupposition of fact/ value and law/politics distinctions and on the universal and factoid character of rights, was a part of the armory of this group.27

It is this dual stepthe misrepresentation of rights as factoid and rights' subsequent gilding in a "veneer of impartiality"28that gives the rights para- digm its power. By presenting itself as the only option, it effectively shuts down any alternatives to which minority groups might make recourse while, at the same time, restricting such action based on individual rights to an arena wholly in the control of society's hegemonic group.

B. Indigenous Alternatives

Far from being the only way of understanding the relationship between government and citizen, the Western rights-based conception is foreign to most traditional Indigenous communities and cultures, many (if not most) of whom have a notably less individualistic conceptualization of societal interactions. In- deed, the rights-based conception may go so far as to be anathema to some In- digenous groups, which take a much more collaborative approach to resolving conflict. This contrasts with the familiar Western rights/remedies paradigm, usually initiated by conflict, viewed retrospectively, and settled by restitutive remedy or compensatory payment. Indigenous alternatives use more collective notions of community and society, including the role and duty of the govern- ment, and are oriented towards future (cooperative) action. The aim of many tribal justice processes is to restore the harmony between the individuals in- volved and the group, be that a family unit, a section of the community, or the Nation as a whole.39

Given its status as one of the largest tribes in the United States, and the fact that its reservation is larger than nine states, it is perhaps not surprising that the most writing has come from and about the Navajo legal system.40As has been detailed by Dr. Raymond Austin, a former Chief Justice of the Navajo Nation, the Navajo Nation provides two routes for tribal members to resolve controver- sies: a traditional Peacemaking path and a more Western-style adversarial court system.41Parties can thus opt into the Peacemaking path, in which a trained fa- cilitator assists the interested persons in working through the problem and find- ing an acceptable solution.42The process of Peacemaking is explained in multi- ple sources,43and we will not repeat it here, except to note the significant differences that exist between Peacemaking and mediation. As the Navajo Na- tion Peacemaking Program describes:

Unlike a mediator,hzhj naat'anii

is an engaged part of the dispute resolution course, signifying the weight of tradition and timelessness in the healing process.

Hzhj naat'anii

scolds, persuades, pleads, ca- joles and educates everyone, using stories, to fully talk out their prob- lems, in order to reach their mutual decision for the good of the whole. They are guides and educators.

Hzhj naat'anii

are the keepers of the peacemaking method,

hzhji naat'aah,

serving as guides from

hchxo'/anht'i'

through self-realization to

hzh

.44

Peacemaking, with its very different approach to conflict resolution, arises from Navajo concepts of justice. Robert Yazzie, another former Chief Justice of the Supreme Court of the Navajo Nation, explains:

Navajo justice is unique, because it is the product of the experience of the Navajo People. . . . To fully understand these concepts, the essential character of Anglo-European law must be compared to that of Navajo law. . . .

. . . [T]he Anglo-European legal system [can be described] as "ver- tical" and the Navajo legal system as "horizontal." . . . The goal of the vertical system or adversarial law is to punish wrongdoers and teach them a lesson. . . Adjudication makes one party the "bad guy" and the other "the good guy;" one of them is "wrong" and the other is "right." The vertical justice system is so concerned with winning and losing that when parties come to the end of a case, little or nothing is done to solve the underlying problems which caused the dispute in the first place. The "horizontal" model of justice is in clear contrast to the "verti- cal" system of justice. [It] uses a horizontal line to portray equality: no person is above another. A better description of the horizontal model, and one often used by Indians to portray their thought, is a circle. In a circle, there is no right or left, nor is there a beginning or an end; every point (or person) on the line of a circle looks to the same center as the focus. The circle is the symbol of Navajo justice because it is perfect, unbroken, and a simile of unity and oneness. . . .

Navajo justice is a sophisticated system of egalitarian relationships where group solidarity takes the place of force and coercion. . . . The processwhich we call "peacemaking" in Englishis a system of rela- tionships where there is no need for force, coercion or control. There are no plaintiffs or defendants; no "good guy" or "bad guy." These la- bels are irrelevant.45

This approach to justice is supported by descriptions of the Seneca Nation's traditional approach to dispute resolution. Professor Robert B. Porter, who has also served as Attorney General and as President of the Seneca Nation, writes:

The Seneca People have a peacemaking tradition that is hundreds of years old and coincides with the establishment of the Six Nations Iro- quois Confederacy, or Haudenosaunee, under the Great Law of Peace. For the Haudenosaunee, peace was not simply the absence of war, it"wasthe law" and an affirmative government objective. So dominant was this philosophy that its pursuit affected the entire range of interna- tional, domestic, clan, and interpersonal relationships of the Haudeno- saunee.

....

Most disputes in Seneca society were resolved by mutual con- sent.... Major disputes... were resolved with the assistance of a peacemaker. The peacemakers, who might be the chiefs, elders, or oth- er respected persons, relied upon their position, as well as precedent (for example, legends and stories from the community) to move the parties toward reconciliation. For example, if a husband and wife were unable to resolve matters between them, the mothers of the married pair would intercede to facilitate a reconciliation. Throughout the dispute resolution process, the restoration of peaceamongst the disputing individuals and within the community as a wholewas paramount.

Professor Porter's article goes on to describe how this collective approach was (and is) shared by other Indigenous groups in the United States.47

When contrasted with this harmonic group approach, the dynamic of "muscular and self-asserted individualism"48within the distinctly Western rights-based approach becomes overt. The rights-based approach arose out of a particular liberal understanding of the interaction between individual and gov- ernment, an interaction paradigmatic to Western governmental systems. It con- sequently models a specific form of dispute resolution, a form that has a more narrow definition of rights and remedies. Indeed, Professor Porter goes so far as to declare that "the American dispute resolution mechanism is a process of structured aggression in which the parties, assisted by lawyers, engage in a self- interested pursuit of justice."49

Indigenous equivalents, by contrast, require that "full networks of social, political, economic and religious systems" be taken into account, alongside con- textualized meanings and associated relationships between people and objects and/or places.50This broader perspective is often difficult to convey in the con- text of adversarial litigation rooted in a discussion of rights. Moreover, rather than paying more attention to the importance of contextual understandings, the purportedly universal and neutral character of rights discourse leads to their being detached from precise situations and thus effectively decontextualized.

In this regard, it should also be acknowledged that the contours of rights discourse, like any other social practice, are constructed and determined by the socio-cultural context from which it emerges, which is, of course, thedominant legal culture. Intentional or not, therefore, the presentation of such an approach as the only, the universal, theneutral, takes on a sinister complexion, not least because the conceptual architecture of the rights paradigm is intrinsically linked to that of modernity, which is in turn entwined with colonial projects responsi- ble for either the exclusion of other legal forms and practices or their forced as- similation on its terms.51

To be clear at this stage: we do not raise these points in an attempt to un- dermine or otherwise impugn the important role of individual and human rights and the work done by practitioners and activists within that field. Such work is critical and has in many cases achieved important results. Rather, it is our contention that an approach such as the rights-based approach, fully un- derstood vis--vis its Western pedigree and implicit power structures, is unlikely always to be the optimal one for achieving justice for Indigenous peoples, as is illustrated by the examples presented in the next Part of this Article. It is therefore important to pause and reflect on the proper strategy, rather than to automatically pursue a rights-based approach.

II. Failures of the Rights-Based Approach

Over the last forty years, Indigenous people have pursued their claims for justice in a variety of national and international fora, including federal and na- tional supreme courts,52international courts and commissions,53and United Nations treaty bodies.54These claims have met with decidedly mixed and often negative results, even when the case appeared to be a strong one. Furthermore, on those rare occasions where the court ruled in favor of the Indigenous group, enforcing the decision has often proved troublesome.55In fact, Indians have fared so poorly in the U.S. Supreme Court that a national consortium has been organized to coordinate litigation strategy, and a generally accepted maxim is that the way to win an Indian law case is to keep it out of the Supreme Court.56

Cases brought by Indigenous people and Indigenous nations cover a wide spectrum of issues, but this spectrum can be divided into three general catego- ries: (1) conflicts between sovereign governments; (2) disputes over regulatory issues; and (3) individual claims. Obviously, these are not discrete, separate cat- egories but are rather overlapping points on a spectrum. They do, however, capture the three major types of disputes that recur in Indian law litigation, and this Part illustrates those three categories in more detail by providing an exam- ple of a "win" and a "loss" from each of them. From the "clash of sovereign governments" category we have chosenLonewolf v. Hitchcock57andUnited States v. Sioux Nation,58each of which raised challenges to the federal govern- ment's appropriation of land. From the regulatory section we have chosenBrendale v. Confederated Tribes59andMississippi Band of Choctaw v. Holyfield,60one a claim to regulation through legislation, the other through judicial pro- cesses. Finally, from the individual claims category, we have chosen the Crazy Horse Malt Liquor cases andSanta Clara Pueblo v. Martinez.61We selected these six cases because each (1) is widely cited as establishing key principles and is generally considered to be a foundational case, (2) represents either a "win" or a "loss" embodying the core nature of its category in easily explainable terms, and (3) illustrates the type of cultural clash where the system breaks down because rights-based approaches restrict the conversation artificially. This Part begins with an examination of each individual case and then proceeds to explore the cases as a collective, looking for patterns that can be extracted.