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15 - Stuart Kirsch - Juridification of Indigenous Politics
15 - Stuart Kirsch - Juridification of Indigenous Politics
Stuart Kirsch
Earlier versions of this chapter beneitted from discussion at York University, the University of
Iowa, the University of Manchester, and the workshop on ‘Law against the State’ at the Max
Planck Institute for Social Anthropology, although I bear sole responsibility for the result. I am
especially grateful to Julia Eckert for suggesting the rubric that helped frame the text.
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STUART KIRSCH
1
These disjunctions might be compared to what Kim Fortun (2001: 8) refers to as the double-
binds faced by political activists, which may ‘foreclose certain lines of inquiry, disable certain
forms of knowledge, and legitimate discriminatory social categories’. She describes how polit-
ical and legal struggles create new subject positions and require new vocabularies: ‘Subjects are
drawn into new realities and ields of reference [in which] traditional constructs of society and
culture no longer seem adequate’ (Fortun 2001: 13).
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JURIDIFICATION OF INDIGENOUS POLITICS
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STUART KIRSCH
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JURIDIFICATION OF INDIGENOUS POLITICS
The judge in the case endorsed this line of reasoning, determining that:
to restrict the duty of care to cases of pure economic loss would be to
deny a remedy to those whose life is substantially, if not entirely, out-
side an economic system which uses money as a medium of exchange.
It was put that, in the case of subsistence dwellers, loss of the things
necessary for subsistence may be seen as akin to economic loss. If the
plaintiffs are unable or less able to have or enjoy those things which
are necessary for their subsistence as a result of the defendant’s neg-
ligent conduct of the mine, they must look elsewhere for them, per-
haps to obtain them by purchase or barter or perhaps to obtain some
substitute.
(Byrne 1995: 15)
With this judgement, the court conirmed the commensurability of sub-
sistence rights and the economic rights associated with property own-
ership, establishing important legal precedents for both the subsistence
rights of indigenous peoples and corporate liability for abrogating those
rights. While not legally binding beyond its original jurisdiction, such
legal determinations circulate widely and may inluence lawyers and
judges in related cases (Gordon 1997: 154).
Despite its deployment in the courts, there is no Yonggom equivalent to
the concept of subsistence rights. The relationship between the yariman
and his land may be translated as ownership but has other meanings as
well. The central actor in divinations held to seek the cause of a persist-
ent illness, or anigat, is the anigat yariman. This role is illed by the senior
kinsman or guardian responsible for the patient’s well-being. Similarly, the
sponsor of an arat feast, who coordinates the labour and exchange relations
of the participants, is known as the arat yariman. The yariman relationship
is based on the responsibilities of kinship, guardianship and sponsorship.
Given that ambip kin refers to both a speciic parcel of land and the lineage
that holds the rights to that land, ambip kin yariman refers to the person
or persons responsible for the land belonging to the lineage. With these
responsibilities comes the political authority to limit the access of others as
well (Schoorl 1970). Although the Yonggom are able to acquire use rights
to land from others through assertion or appeal (Schieffelin 1976), they do
not recognise subsistence rights in the abstract.
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STUART KIRSCH
Despite the gap between Yonggom concepts and the legal argument
made on their behalf, the notion of subsistence rights adequately repre-
sented the interests of the plaintiffs. It is well established that indigenous
commitment to hunting, ishing and other subsistence practices often
persists even in the context of a predominantly cash economy (Sahlins
1999). At its most fundamental level, the Ok Tedi case addressed the
capacity of the affected communities to preserve their relationships to
the land, both in terms of the ability to carry out traditional subsistence
practices and the larger signiicance of these practices (Kirsch 2006).
The concept of subsistence rights provided a valuable shorthand for the
stakes in the Ok Tedi case: the ability to sustain meaningful and pro-
ductive relationships to the land in the face of devastating environmen-
tal change.
The concept of subsistence rights also proved useful to the Yonggom
in their negotiations over the case. They afirmed the distinction made
by the courts between a subsistence economy and ‘an economic sys-
tem which uses money as a medium of exchange’, as indicated by the
following complaint about the inadequacy of compensation payments
in 1998, two years after the lawsuit was settled out of court: ‘The com-
pany doesn’t face this problem [of inadequate resources]. They eat in
the mess, while we live on hunting and gardening. We cannot afford to
buy fresh meat in the stores. Once our [compensation] is spent, it is dif-
icult to make ends meet. The environment has already been destroyed;
the only option is to provide us with additional funds’ (Kirsch 2006:
212). During a village meeting the same year, one of the leaders of the
campaign against the mine raised the following question: ‘What are
we going to do without money? When we say fortnightly [compensa-
tion] payments, it means survival’ (Kirsch 2006: 208). In arguing that
compensation must be paid every two weeks, he compares the wages
people earn in a monetary economy to subsistence practices. Although
he does not use the term subsistence, he argues that environmen-
tal degradation threatens their survival. The concept of subsistence
rights, whether directly or indirectly invoked, becomes a key trope for
indigenous politics when their ability to obtain one’s livelihood from
the land is threatened or abrogated rather than taken for granted (see
Ivy 1995). In other contexts, subsistence practices have become meto-
nymic of indigenous ways of life and consequently key symbols of indi-
genous identity (Sahlins 1999; Nadasdy 2003), and therefore central
to the questions about culture and loss that are the subject of the next
section of this chapter.
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JURIDIFICATION OF INDIGENOUS POLITICS
In the Ok Tedi case, lawyers for the plaintiffs introduced the novel
concept of subsistence rights, which established an important legal pre-
cedent and provided the people living downstream from the mine with
the means to express their concerns about the economic consequences
of pollution. The juridiication of indigenous politics resulted in changes
to both legal concepts and local political claims.
2
It is the Rongelap case to which Dirlik (2001) refers in the comment cited above.
3
The ‘right to a healthy environment’ was initially recognised in Principle 1 of the 1972
Stockholm Declaration on the Human Environment, and subsequently elaborated by the
1992 UN Conference on Environment and Development in Rio de Janeiro, which argued that
‘human beings … are entitled to a healthy and productive life in harmony with nature’. While
not legally binding, these declarations form the basis for discussion about the right to a healthy
environment.
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STUART KIRSCH
4
The proliferation of claims about cultural property (Brown 2003; Hirsch and Strathern 2004)
index these concerns.
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JURIDIFICATION OF INDIGENOUS POLITICS
F R EED OM I N SU R I NA ME
The inal example addresses indigenous land rights in Suriname. In 2009,
the Lokono (Arawak) and Kaliña (Carib) peoples iled a complaint with
the Inter-American Commission on Human Rights against the Republic
of Suriname. Their complaint challenges the state’s refusal to recognise
indigenous land rights despite their obligation to do so under the UN
Declaration of the Rights of Indigenous Peoples, to which Suriname is
a signatory. It builds on the landmark 2007 judgement in the case of
Saramaka People v. Suriname (2007, 2008), in which the Inter-American
Court on Human Rights ‘expanded the scope of protection for groups
seeking to protect ancestral lands and resources, moving for the irst time
beyond indigenous peoples to extend protection to other tribal groups’,
namely the Maroon peoples who escaped from slavery during the seven-
teenth and eighteenth centuries to establish largely autonomous commu-
nities in the rainforest (Shelton 2008: 168; Price 2011). The Lokono and
Kaliña territories in the lower Marowijne region of east Suriname have
been progressively reduced and degraded by mining, logging and the
expansion of the town of Albina onto indigenous lands. Three nature
reserves have been established on indigenous land without permission,
one of which has become a major industrial zone. BHP Billiton, the min-
ing company responsible for the Ok Tedi mine in Papua New Guinea,
mines bauxite in the Wane Creek Nature Reserve.5 The Wane Hills
mine has ravaged the landscape, transforming rainforest into barren red
earth. A decade of restoration efforts amount to scattered plots of stunted
trees. Mining company roads through the nature reserve have attracted
legal and illegal logging, and the removal of the bauxite layer has spurred
extraction of the underlying kaolin deposits. Until recently, Wane Creek
was the most important hunting and ishing ground of the indigenous
communities living in the lower Marowijne region. In January 2009, I
was invited by the Association of Village Leaders in Suriname (VIDS)
and the Forest People’s Programme in the UK to conduct research on
these issues and the question of indigenous land rights for submission to
the Inter-American Court on Human Rights (Kirsch 2010).
Like the Yonggom people living downstream from the Ok Tedi mine,
the Lokono and Kaliña attest to the impacts of development and envir-
onmental degradation on their subsistence practices, which require
them to become more deeply involved in the monetary economy. As
5
BHP merged with Billiton to form BHP Billiton in 2001.
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STUART KIRSCH
one person told me: ‘Before it was okay if you didn’t have money, but
now we need money [to survive].’ They are no longer able to feed their
families by hunting, ishing and agriculture. Members of these com-
munities told me that participation in the monetary economy is ine
for those persons who possess the skills required to earn a living wage,
but that others are unsuccessful. Even though they share food among
themselves when they hunt and ish, they do not redistribute the wages
earned through employment. This leads to new structural forms of
inequality.
Like the people from Rongelap affected by nuclear weapons testing, the
Lokono and Kaliña also describe how these economic and environmental
changes have affected their ability to reproduce their own culture. Many
of the practical skills associated with subsistence production are no longer
regularly taught by fathers to their sons and mothers to their daughters:
‘In some families, there are no elders to teach them these things. And
even to get the materials needed … you can no longer ind them locally
because of logging, but have to travel long distances.’ However, new mar-
kets for Amerindian products including cassava bread and beer (kasiri),
agricultural produce and wild fruits have recently emerged in the town
of St Laurent du Maroni, across the river from Albina in French Guiana.
Participation in these markets provides them with the opportunity to
improve their standard of living by using local knowledge and skills. But
the viability of these practices remains at risk owing to environmental
degradation from mining and logging.
The Surinamese legal scholar Ellen-Rose Kambel (2002: 148–53)
identiies three discourses used by the Kaliña and Lokono to challenge
the state’s refusal to recognise indigenous land rights: (1) the argument
that the land cannot be owned, which appears to be an older discourse
now on the wane given its incompatibility with contemporary political
objectives, (2) the reference to historical precedent, that they were the
original inhabitants of the land and therefore have the right to exclude
others, and (3) the importance of land rights for preserving their free-
dom. Kambel (2002: 154) notes that only the irst two rationales for indi-
genous land rights have been taken up in national debates. However, it
is the link between land rights and freedom that emerged most emphat-
ically in my discussions with the Lokono and Kaliña in east Suriname.
This corresponds with anthropologist Joanna Overing’s (1986: 151)
observation that ‘Amerindians of the South American rain forest, and
particularly of the Guianas, place a strong value upon the freedom of the
person, have an aversion to political tyranny, and demonstrate concern
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JURIDIFICATION OF INDIGENOUS POLITICS
over the ambiguous relations between personal freedom and both socio-
political right and constraint’ (1986: 151, references omitted).
I irst became acquainted with Amerindian concerns about freedom in
Suriname while examining BHP Billiton’s plans for a new bauxite mine
in the Bakhuis Mountains in west Suriname (Goodland 2009). Initially,
the Lokono communities living closest to the proposed mine site were
enchanted by the prospect of economic development. Although the
Lokono I spoke with recognised that modern mines provide relatively
few jobs, they hoped the project would have a multiplier effect on the
local economy. Their desire for greater economic opportunity evokes
economist Amartya Sen’s (1999) deinition of the goal of development
as enhancing human freedom, including a people’s ability to shape
their own destiny.6 However, their views differed from Georg Simmel’s
(1978) observations about the relationship between money and modern-
ity. Simmel describes how the universal form of value created by money
is a vehicle for realising new forms of the self that are freed from prior
attachment to particular people, places and things. Thus the attraction
of money has generally been taken to signify the negation of tradition,
which is replaced by the modern project of self-realisation (Maclean
1994). But when I interviewed young men about their desires for the
future, their answers always included living in their villages: they did not
dream of the bright lights of the city, but wanted economic opportunities
that would allow them to stay home. They did not think of money as
the path to individualisation and modernity, but as the means to remain
traditional (see Sahlins 1999).
The women I spoke with in west Suriname also invoked the dis-
course of freedom in relation to money, albeit differently from the men.
Women had their own reasons for supporting the mining project. What
concerned them the most were recent economic changes that gave men
privileged access to money through wage labour. They told me that trad-
itional gender roles were complementary: in their gardens, men cleared
the forest and wove the matapi for squeezing cassava while the women
planted, weeded, harvested and prepared the root crop for consumption.
Each gender needed the other’s labour. In contrast, today women ind
themselves dependent on their husbands for money and object to their
loss of autonomy. For them, regaining their freedom requires access to
6
However, Chakrabarty (2000: 44–45) argues against the identiication of the modern state with
freedom, as the state achieves its goals through projects of reform, progress and development
that may be coercive or violent.
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STUART KIRSCH
7
When BHP Billiton withdrew from the project after the economic downturn in 2009, and the
results of an independent review of the mining project (Goodland 2009) were presented to the com-
munity and in the capital of Paramaribo, the Lokono began to express doubts about the Bakhuis
project. People also questioned their earlier enthusiasm that money would solve their problems,
recognising that it will create new problems as well.
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JURIDIFICATION OF INDIGENOUS POLITICS
C ONCLUSION
This chapter examines the gaps created through the juridiication of
indigenous politics. Are indigenous claimants alienated from their own
speech by being forced to formulate their claims in the language of legal
jurisprudence? In the Ok Tedi case, claims based on indigenous prac-
tices challenged a fundamental principle of the common law, which
8
As Nikolas Rose (1999) argues, freedom is also a pervasive discourse of modernity that goes
hand in hand with the modern state’s capacity to organise and regulate the behaviour of its
population.
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STUART KIRSCH
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JURIDIFICATION OF INDIGENOUS POLITICS
case, the Nuclear Claims Tribunal made a record award to the people
of Rongelap for the harms they experienced, although full monetary
payment is contingent on the US Congress substantially increasing its
funding to the programme. At present the tribunal is only able to make
payments for the medical consequences of nuclear testing. Finally, even
if the Amerindian land rights case is successful in the Inter-American
Court on Human Rights, this does not guarantee that the Republic of
Suriname will change its laws accordingly. Despite being a signatory to
the Inter-American Commission, and therefore bound by its decisions,
Suriname has thus far failed to implement its indings in the Saramaka
case (Price 2011), although pressure on the state through various multi-
lateral development agencies and banks may eventually compel it to do
so. Turning to the courts for justice does not guarantee a positive out-
come, and may only partially deliver on the claims being made.
Success in court and the objectives of social movements are not iden-
tical, however, although the cases analysed here indicate that questions
of meaning, claims for recognition and redistribution, the opportunity
to put state power on trial and the possibility of deining the terms of
contestation that drive social movements may be addressed in legal pro-
ceedings. These cases also provide opportunities for indigenous claim-
ants to inluence both legal jurisprudence and political contests, either
through the universal language of legal precedent, or through the hori-
zontal exchange of ideas among indigenous peoples (Appadurai 2002).
This development represents an important political accomplishment, as
the opportunities of indigenous peoples to inluence legal knowledge as
well as larger debates about state power, the environment and freedom
have historically been limited. However, their success is contingent on
their willingness to enter into intercultural conversations that have the
potential to transform all of the participants.
Finally, these cases require consideration of the role played by engaged
anthropologists in mediating between legal language and indigenous
knowledge and practices. Although the gap between legal concepts and
indigenous ideas may initially seem too great to bridge, interventions
by anthropologists can help frame problems in ways that prove valuable
to the indigenous participants. This may be true even for rapid ethno-
graphic assessment, despite its shortcomings in comparison to long-term
ethnographic research (Macdonald 2002). Although there is no tem-
plate or formula for making such interventions, these practices may not
be as remote from conventional ethnographic work as they appear, as all
ethnography is contingent on acts of translation and representation, and
39
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STUART KIRSCH
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