12 Harv. Hum. Rts. J. 57 (1999)
Rights and Status of Indigenous Peoples: A Global Comparative and International Legal Analysis

handle is hein.journals/hhrj12 and id is 63 raw text is: Rights and Status of Indigenous Peoples:
A Global Comparative and International
Legal Analysis
Siegfried Wiessner*
Wounded Knee, the Trail of Tears, the Siege of Cusco'-these words, ves-
sels of meaning, capture only a tiny fragment of the history of suffering, ac-
tual and cultural genocide, conquest, penetration, and marginalization2 en-
dured by indigenous peoples3 around the world.4 The focus of the Interna-
* Professor of Law, St. Thomas University School of Law; J.D. (Equivalent), University of Tilbingen,
1977; LL.M., Yale University, 1983; Dr. iur., University of Tiibingen, 1989. This Article owes its exis-
tence to the friendship and inspiration of Kirke Kickingbird, James Anaya, Chief Lawrence Hart, and
Susan Ferrell. It benefited critically from the wisdom of the indigenous leaders, government officials and
scholars gathered, since 1994, at the Annual St. Thomas University Tribal Sovereignty Symposium. The
author gratefully acknowledges most helpful comments on earlier drafts by Gordon Butler, Andrew
Cappel, Cynthia Price Cohen, Osvaldo Kreimer, Lenora Ledwon, Daniel Morrissey, Bradford Morse, and
Michael Reisman, as well as dedicated research assistance by Kimberly Kostun.
1. Hernando Pizarro's 1536-1537 siege of Cusco culminated in the killing of all captured Indian
women; the right hands of several hundred captured male noncombatants were cut off, and the victims
were released to demoralize the rest; the beautiful Inca city was razed. See John F. Guilmarrin, Jr., The
Cutting Edge: An Analysis of the Spanish Invasion and Overthrow of the Inca Empire, in TRANSATLANTIC EN-
COUNTERS: EUROPEANS AND ANDEANS IN THE SIxTEENTH CENTURY 40, 44 (Kenneth J. Andrien &
Rolena Adomo eds., 1991). The bloody massacres of Native Americans in the mid-19th century are
chronicled in the stark prose of Dee Brown. See DEE BROWN, BURY MY HEART AT WOUNDED KNEE
(1970). The Trail of Tears of the Five Civilized Tribes with its countless deaths, trauma and misery
represented the nadir of the United States policy of removal. See GRANT FOREMAN, INDIAN REMOVAL:
THE EMIGRATION OF THE FIVE CIVILIZED TRIBES OF INDIANS (1953); ANGIE DEBO, AND STILL THE
WATERS RUN (1972).
2. See generally VINE DELoRiA, JR., CUSTER DIED FOR YOUR SINS: AN INDIAN MANIFESTO (1969);
ROBERT JAULIN, LA PAIX BLANCHE: INTRODUCTION X L'ETHNOCIDE (1972); FRANCIS JENNINGS, THE
INVASION OF AMERICA: INDIANS, COLONIALISM AND THE CANT OF CONQUEST (1975); THE STATE OF
NATIVE AMERICA: GENOCIDE, COLONIALIZATION AND RESISTANCE (M. Annette Jaimes ed., 1992);
THOMAS R. BERGER, A LONG AND TERRIBLE SHsAnOW. WHITE VALUES, NATIVE RIGHTS IN THE
AMERICAS. 1492-1992 (1991); Rennard Strickland, Genocide-at-Law: An Historic and Contemporary View of
the Native American Experience, 34 U. KAN. L. REv. 713 (1986).
3. Professor James Anaya has defined this term to mean living descendants of preinvasion inhabitants
of lands now dominated by others, ... culturally distinctive groups that find themselves engulfed by
settler societies born of the forces of empire and conquest. S. JAMES ANAYA, INDIGENOUS PEOPLES IN
INTERNATIONAL LAW 3 (1996). This conceptualization is controversial, and will be discussed in detail in
Part III.A. I suggest that indigenous peoples be defined as groups traditionally regarded, and self-defined,
as descendants of the original inhabitants of lands with which they share a strong, often spiritual bond.
These peoples are, and desire to be, culturally, socially and/or economically distinct from the dominant
groups in society, at the hands of which they have, in past or present, suffered a pervasive pattern of
subjugation, marginalization, dispossession, exclusion and/or discrimination.
4. At present, 300 million people around the world are estimated to be indigenous. Julian Burger, In-

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