A Hierarchy of Human Rights

Indigenous Peoples Right to Identity



The land is sacred;

 it belongs to the countless numbers who are dead,

the few who are living,

and the multitudes of those yet to be born.

 Penan. Sarawak. Malaysia


In understanding identity rights, it is important to grasp the idea of “land ownership,” and how that translates to minority and indigenous communities. The concept of having a “right to land” or “ownership of the earth” was unheard of in most native and indigenous communities. To put the burden of fighting for something that is not inherently “ours” is inconceivable. The idea of  “ownership of land” is a colonial/Western idea. One must also understand that human rights did not exist when Western colonists were stealing land from indigenous peoples. We now live in a world where the descendants of colonizers are redistributing segments of land back to indigenous communities; while at the same time, other minority groups (many times displaced people) immigrate to these once indigenous inhabited continents. Most of the time these minority communities are forced to relocate because their own native country was inhabited by similar colonial powers. Ultimately, there should be a hierarchy in human rights. By understanding that colonialism caused injustice against indigenous communities, that indigenous groups were excluded from the human rights world, and that conflict took place between displaced minority groups and indigenous groups, one can grasp the complexity of identity rights. Although there should be a hierarchy of human rights, in certain cases indigenous rights have been taken too far, where historical injustices are no longer relevant and often result in a concern for the human rights of children.

In conceptualizing the importance of a hierarchy in human rights, one must first grasp the idea that colonialism caused injustice against indigenous communities around the world. In order to colonize countries, Western superpowers fractured communities using tactics of exploitation and limitless abuse. We have seen the result of this exploitation “in countries like the US, Australia, Canada and New Zealand, where indigenous people have become [numerical] minorities especially in the exercise of political power” (He, 172.) As many indigenous communities have become minorities, there has been an increase in solidifying what it means to have indigenous rights and gain control of “cultural, political, and land rights” (He, 173.) By universalizing indigenous rights, indigenous people hope “for such rights to provide powerful weapons against all forms of political domination exercised by former colonisers” (He, 173.) Although internationalizing indigenous people has been an important tactic in gaining indigenous rights as, “indigenous people are often seen as a minority who suffered injustice and oppression in the past and are still disadvantaged in the present,” there is currently no definition of a “minority or an indigenous people for the applicability of international human rights” (He, 174.) Colonizers utilized hegemony to divide and conquer, and in turn hegemony became a tool used by dominant groups when colonizers left. This is the situation in Malaysia as “colonial practice is invoked to defend this hegemony, that is, this hegemony is, in part, an inheritance from British colonial assumptions that they help Malaysia is administrative trusteeship for the Malays who were treated as indigenous and were to be given preferences over the Chinese and Indians” (He, 182.) Much of the hegemonies that manifested in the colonial era have created a legacy of public racism and discrimination against Indigenous groups. These social attitudes have swayed politicians away from finding justice for Indigenous communities. “Populations often benefit from the suppression of minorities and even support hash policies towards them. Under pressure to secure votes some political actors in liberal states do not date challenge such prejudice” (He, 185.) We have seen a cyclical trend where, “social attitudes held by a majority towards minorities are crucial in shaping a state’s policy toward minorities” (He, 185.) In essence, the colonial mindset of the majority has much to do with an idea that “Indigenous peoples [threaten] the majority identity though being seen as ‘backward’, ‘violent’, [and] ‘superstitious.’” All of these insecurities are linked back to the idea that colonization created patterns of discriminatory inter-group relations.

Another way of understanding the importance of a hierarchy in human rights is to grasp the history of ignorance towards indigenous rights, “and to explore how the exclusion and invisibility of indigenous peoples have been constant throughout [the formation of human rights]” (Isa, 191.) Indigenous rights were not mentioned in major international covenants. “Neither the International Covenant on Civil and Political Rights (ICCPR) nor the International Covenant on Economic Social and Cultural Rights (ICESCR) contain a singer mention of the rights of indigenous people, even though both refer expressly to the rights of peoples to self-determination” (Isa, 194.) The juxtaposition of self-determination and indigenous rights is one of the many ironies regarding the blatant ignoring of indigenous communities. As indigenous rights were ignored from the “major international instruments of human rights protection,” indigenous people were also placed under the category of minorities. Sometimes, however, as Baogang He stated in The Contested Politics of Asian Responses to Indigenous Rights, “indigenous people are not the minority […] such as the Malays in Malaysia.”  It is understood that indigenous rights were completely excluded from human rights until the 1980s. Rights for indigenous people did not come about until there was a universal understanding of what it meant to be indigenous:

“When the growing visibility of indigenous peoples meant that more account was taken to them, and this led to a gradual questioning of one of the main tenets of human rights- their universality” (Isa, 196.)

As indigenous rights were recognized, social attitudes became obsessed with the clash between these indigenous communities and Western colonial practice.

            Another way of understanding the importance of a hierarchy in human rights is by comprehending the clash between indigenous and minority rights and how these rights have divided oppressed communities of color. In is important to know that minority rights are “non discrimination rights, that include people into mainstream culture” (Zook, 10/22/15,) whereas indigenous rights are “the idea of preservation, designed to separate and exclude people to ‘protect their culture’” (Zook, 10/22/15.) Indigenous rights and minority rights clash on one basic level: preservation vs. assimilation. Both of these notions are assumptive, as minorities have much culture to preserve and don’t always desire white (Western) normative, as well as indigenous communities who may not want to be isolated from other cultures. This “clash of cultures” was documented in Fiji between the indigenous Fijians and Indo-Fijians who were brought from India to Fiji by the British to work in indentured servitude. The current conflict between indigenous Fijians and Indo-Fijians was ultimately caused by colonialism. When the British left Fiji, they left social and political unrest. In 1990, Fiji’s new constitution states that indigenous rights trumped minority rights. These intentional racial hierarchies could not have been conceptualized without the divisive nature of colonialism. When in 1999, Mahendra Chaudhry, an Indo-Fijian man was elected as prime minister of Fiji, there was uproar within the indigenous Fijian community. As a result of the minority group elected into political power, a Fijian coop held parliament hostage. After released, Prime Minister Mahendra Chaudhry fled to India, where he was named a hero for his courage and only escaladed the confusion of Fijian identity.

Although there is an inherent need for a hierarchy of human rights when it comes to indigenous communities, there must be boundary conditions in place to prevent the dangers of misrepresentation. Indigenous and minority rights are complicated and are not always in favor of finding justice for the oppressed groups. In many cases indigenous rights clash with the Convention on the Rights of the Child (CRC,) specifically focusing on the rights of indigenous minors. CRC works calls for diversity in cultural identity of all children, in respect “for his or her own cultural identity, language and values” (Isa, 195.) However, in Article 30, it acknowledges that indigenous children have individual rights, “a child belonging to such a minority or who is indigenous shall not be denied the right […] to enjoy his or her own culture, to profess and practice his or her own religion, or to use his or her own language. (Isa, 196.) These rights of protection come into play when discussing how indigenous culture potentially values the abuse of children.

The rights of indigenous children are explored in Brazil, where many indigenous groups practiced infanticide. Some groups kill twins, labeling them “unnatural,” others determine which twin is “good” and which is “evil”; only the “good twin can live. Nearly all-indigenous communities in Brazil kill infants with any recognizable disability (Zook, 10/22/15.) The Brazilian government addressed this horrendous eugenicist practice by labeling infanticide as murder, but also categorizing indigenous groups are not criminally liable because they are “incapable of understand the illicit nature of their acts” unless they are “acculturate Indians” who are certainly criminally liable (Brazil’s Penal Code, Art 26.) This example proves that there must be parameters around the extent of hierarchy for indigenous rights; however, the Brazilians penal code for indigenous communities that deems them as inferior, subhuman, and savage, only promote exploitation towards these groups and foster the public’s social-dehumanization towards indigenous people. 

Historically, the world of human rights has excluded, misinterpreted, and suppressed the rights of indigenous people. Fundamentally, there should be a hierarchy of human rights where we open “the doors to an inclusive universality in which, thought sincere and open intercultural dialogue, it is possible to determine the minimum requirements for a transcultural conception of dignity” (Isa, 196.) Today we have the means and understanding to move towards a more diverse perception of human dignity.

Works Cited

1.     Baogang He, “The Contested Politics of Asian Responses to Indigenous Rights,” International Journal on Minority and Group Rights 18 (2011), 461-478 [reader]

2.     Felipe Gómez Isa, “Cultural Diversity, Legal Pluralism, and Human Rights from an Indigenous Perspective: The Approach by the Colombian Constitutional Court and the Inter-American Court of Human Rights,” Human Rights Quarterly 36/4 (2014), 722-755 [reader]

3.      Zook, Darren C. "The Rights of Identity: Brazil" PACS 126. University of California Berkeley, Berkeley, California. 22 Oct. 2015. Lecture.

4.     Zook, Darren C. "The Rights of Identity: Fiji" PACS 126. University of California Berkeley, Berkeley, California. 22 Oct. 2015. Lecture.