C H A P T E R 1

J URIDIFIC AT IO N O F IN DIGEN OUS

P OLI T IC S

Stuart Kirsch

The emergence of the ‘indigenous’ as an international legal category

has opened up new avenues for claims to recognition and redistribu-
tion (Barsh 1994; Anaya 1996; Rosen 1997; Niezen 2003, 2010; Gilbert
2006). However, the juridiication of indigenous politics requires trans-
lation across cultural and political boundaries (Clifford 1988; Bunte and
Franklin 1992; Kirsch 2001; Miller 2001; Graham 2002; Povinelli 2002;
Richland 2008). This process produces gaps between the experience-near
formulation of indigenous knowledge and practices and the experience-
distant language of jurisprudence. Clifford Geertz (1983: 57–8) invokes
these terms with reference to ethnographic representation, distinguish-
ing between the language through which people naturally and effort-
lessly refer to what they think, feel and believe in contrast to how these
thoughts, emotions and beliefs are described by anthropologists and
other social scientists. This distinction may also be applied to the pro-
cess of juridiication through which indigenous peoples and their inter-
locutors, including lawyers, judges and anthropologists, represent their
claims in legal terminology that has the capacity to alienate the partici-
pants from their own speech (Das 1989: 316).
Post-colonial scholars express strong reservations about the juridi-
ication of indigenous politics. Veena Das (1989: 316) refers to the

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

imposition of ‘legal domination … in all spheres of life’ as part of the

contract ‘such groups have been compelled to establish with the forms
of domination belonging to the structures of modernity’. Arif Dirlik
(2001: 181) argues that the reduction of political opposition to the
‘language of jurisprudence … signals a consolidation of hegemony’.
Elizabeth Povinelli (2002: 159) questions whether legal systems can
adequately address past injustices ‘without performing an ideological
critique of the institutions themselves’. Dipesh Chakrabarty (2000:
85) describes how cross-cultural translation involves the mediation of
homogenising middle terms that cloak implicit claims to universality.
However, he also recognises that social and political movements require
access to information encoded by these universalising terms, which
are the categories employed by ‘bureaucracies and other instruments
of governmentality’, and consequently serve as reservoirs of power
(Chakrabarty 2000: 86).1 He deines the task of analysis as attending
to the gaps or traces of difference produced by these acts of translation
(Chakrabarty 2000: 93–94).
In this chapter, I compare three international legal cases concerned
with indigenous rights, paying particular attention to the gaps between
indigenous discourse and the language of jurisprudence. In contrast to
post-colonial arguments about hegemony, these cases suggest a range of
potential outcomes. The claims articulated in these legal proceedings may
have a kind of ‘looping effect’ (Hacking 1994) in which indigenous ideas
and practices are refashioned through their engagement with the courts.
Here, the gaps produced by juridiication undergo partial closure as indi-
genous peoples appropriate and deploy the language of the courts. What
may initially have been experience-distant terminology can become
internalised as indigenised concepts (Sahlins 1999) offering new political
resources. Another possibility for closing the gap is the transformation of
legal discourse as a result of interaction with unfamiliar concepts and prac-
tices, resulting in the formation of hybrid legal precedents. Alternatively,
the courts may fail to recognise or incorporate indigenous concerns into
their decisions, reifying difference. A inal possibility is that the discourse
used in legal proceedings may elide certain forms of difference. The

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

examples considered here illustrate some of the potential consequences of

juridiication, including the internalisation of new concepts, the creation
of new hybrids and the reiication or elision of difference.
This chapter examines these transformations by drawing on examples
from my experience as an engaged anthropologist working with and on
behalf of indigenous communities in three legal venues. The irst case
considers subsistence rights in a lawsuit against the Australian-owned Ok
Tedi mine in Papua New Guinea. The second example addresses claims
for compensation regarding the loss of culture (or a ‘way of life’) and the
right to a healthy environment in the wake of US nuclear weapons test-
ing in the Marshall Islands. The third case involves ongoing legal claims
regarding the recognition of indigenous land rights in Suriname. By
examining the gaps that emerge through the juridiication of indigenous
politics, this essay addresses the following questions: what are the differ-
ent pathways through which indigenous rights claims are formulated?
How do they draw on local understandings, national histories and inter-
national discourses? What role do lawyers, anthropologists and NGOs
play in this process? How do the constraints of the legal regimes in which
these claims are articulated affect their content or presentation? Finally,
how does the juridiication of indigenous politics create new resources,
reify or elide difference, or lead to new hybrids?

SUB SIST E NCE R IGHTS I N PA PUA NEW GUI NE A

The pivotal issue in the Ok Tedi case was subsistence rights. The Ok Tedi
copper and gold mine in Papua New Guinea has discharged 80,000 met-
ric tons of tailings and waste rock into the Ok Tedi and Fly rivers daily
since production began in 1984, and more than 1 billion metric tons
of sediment in total, polluting these waterways beyond recognition and
causing widespread deforestation (Kirsch 2006; Bolton 2009). Since the
mid 1980s, the people living downstream from the mine have objected to
its environmental impacts and demanded compensation commensurate
with its consequences for their subsistence practices (Kirsch 2007). They
circulated petitions, staged protests and lobbied the company for change
and the state for enforcement of existing laws. They travelled from Papua
New Guinea to Australia, to Rio de Janeiro for the 1992 Earth Summit,
and to North America and Europe to enlist support from environmen-
tal NGOs, church groups and governments. Their participation in the
1993 International Water Tribunal in Amsterdam (International Water
Tribunal 1994) inspired their lawsuit against Broken Hill Proprietary

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 STUART KIRSCH

Ltd. (BHP), the majority shareholder and managing partner of the Ok

Tedi mine, in the Supreme Court of Victoria in Melbourne, where BHP
is incorporated (Banks and Ballard 1997).
The legal case against BHP and the Ok Tedi mine initially addressed
the environmental impact of the project on the property of the down-
stream landowners. However, BHP challenged the lawsuit on the basis
of legal doctrines which prevent the Australian courts from determin-
ing claims related to ‘land or immoveable property situated in another
jurisdiction’ (Gordon 1997: 153). The lawyers needed to restate their
claims without making reference to property rights.
Ethnographic information proved to be the key. The rights of the
Yonggom people who own land along the west bank of the Ok Tedi
River, where most of their contemporary villages were established in the
1970s, differ from the rights of the people who relocated to these villages
from smaller Yonggom settlements scattered throughout the rainfor-
est. The Yonggom refer to landowners as ambip kin yariman, the persons
responsible for lineage land. The other people living in these villages are
known as animan od yi karup, persons who derive their livelihood (food
and wealth, animan and od) from the land. Yonggom settlers in the new
villages were granted use rights to the land and the river for subsistence
purposes: extracting the starch that is the mainstay of their diet from the
sago palms that grow along the river and in the swamps that crisscross
the region; growing bananas and other crops in their gardens; and hunt-
ing, ishing and harvesting timber and other forest products. Both groups
of people experienced losses as a result of the mine’s impact on the river-
ine environment and the surrounding forests. Consequently, access to
resources for subsistence use became the central issue in the case rather
than property rights (see Ribot and Peluso 2003).
The lawyers subsequently reformulated the case to focus on the impact
of the Ok Tedi mine on the subsistence economies of the people living
downstream, arguing that:
what distinguishes these claims from the usual claims that come before
courts is that these plaintiffs are people who live a subsistence lifestyle.
They live substantially, if not entirely, outside the economic system
which uses money as the medium of exchange. But to say that does not
alter the fact that if they are deprived of the very things which support
their existence, they suffer loss. Of course it is a loss which appears in an
uncommon guise because typically the courts have dealt with claims that
are rooted in society’s adherence to the monetary medium of exchange
… What Mr Myers [the lawyer for BHP] says really proceeds from the

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 JURIDIFICATION OF INDIGENOUS POLITICS

unstated assumption that a thing is only economic if it is passed through

the system of monetary exchange, and there is simply no reason in theory
or in law for that to be so.
(Julian Burnside, cited in Gordon 1997: 154–55)

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.

LOSS OF A WAY OF LIF E A ND T H E R IGHT

TO A H E A LT H Y E N V I RONME NT I N
T H E M A RSH A LL ISLA ND S
The second case addresses damages resulting from US nuclear weap-
ons testing in the Marshall Islands during the 1940s and 1950s.2 In
1999, I was one of three anthropologists invited to conduct prelimin-
ary research in support of a claim by the people of Rongelap Atoll to
the US Nuclear Claims Tribunal, which was established to adjudicate
claims for property damage, loss and suffering (Kirsch 2001; Johnston
and Barker 2008). The people we interviewed expressed concerns about
their ‘loss of a way of life’ and the violation of their ‘right to a healthy
environment’.3 During an advisory committee meeting, we were told
that: ‘Land gives you the meaning of life and the role of each individual
in society’ (Johnston and Barker 2008: 63). Another participant at the
meeting told us: ‘You cannot put enough value on land … How do you
put a value on something that people consider as a living thing that is
part of your soul?’ (Johnston and Barker 2008: 63). A third person at the
meeting framed his concerns in terms of culture and society: ‘When the
bomb exploded, the culture was also gone, too. It is impossible for people
to act in their proper roles’ (Johnston and Barker 2008: 186). During
one of our interviews, we were told that: ‘We have lost our knowledge,
our ability, our moral standing and self-esteem in the community. What
we were taught is no longer practical. To be a good isherman, you have
to know where to ish on an island. A lot has been lost, not just our land’
(Johnston and Barker 2008: 189).

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

My colleagues Barbara Rose Johnston and Holly Barker (2008) docu-

ment these claims in greater detail in their submission to the Nuclear
Claims Tribunal. They point out that earlier awards for compensa-
tion by the tribunal were based on land values derived from a record
of lease payments in the Marshall Islands. They argue that real estate
values fail to take the social and cultural values of land into account.
Conventional real estate values also ignore the marine resources that
sustained the Marshallese way of life. Johnston and Barker’s (2008: 57)
focus on ‘the loss of access to use a healthy ecosystem … [and the]
problems resulting from the inability to interact in a healthy landscape
and seascape in ways that allow the transmission of knowledge and the
ability to sustain a healthy way of life’ suggests a more holistic way to
assess the consequences of nuclear weapons testing for the people of
Rongelap.
During previous testimony before the Nuclear Claims Tribunal, the
anthropologist Laurence Carucci discussed the hardships experienced
by the people from Enewetak after they were relocated to Ujelong, a
remote, uninhabited and largely desolate atoll. Carucci described how
the women from Enewetak were unable to weave mats because there were
no pandanus trees on Ujelong. The lack of mature breadfruit trees also
meant that a generation of young men grew up without the opportunity
to make and sail canoes, skills and experiences that were both essential
and highly valued by their predecessors (Carucci, cited in Kirsch 2001:
173). Such material losses can have signiicant cultural consequences.
However, contemporary anthropologists have generally avoided the issue
of culture loss, which is associated with a disciplinary past in which it was
commonly assumed that people would assimilate and cultures would dis-
appear (Kirsch 2001). Yet these examples from the Marshall Islands, and
similar claims by other indigenous peoples (Kambel 2002; Wood 2004;
Demian 2006), indicate the need for additional attention to the question
of culture loss.4
On 17 April 2007, the Nuclear Claims Tribunal issued its decision in
the Rongelap case, ‘calling for payment of just over $1 billion in com-
pensation to the claimants, a igure relecting the costs for remediation
and restoration of Rongelap (and associated islands/atolls), future lost
property value and compensation for damages from nuclear testing’

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

(Nuti 2007: 42). The amount of compensation awarded was substan-

tially greater than in prior judgements by the Nuclear Claims Tribunal
for Enewetak ($323 million in 2000), Bikini ($563 million in 2001), and
Utrik ($307 million in 2005). Each successive award incorporated and
expanded upon prior judgements in terms of the calculation of their
losses (Johnston, cited in Nuti 2007: 43).
However, speciic claims by people from Rongelap about the loss of a
way of life and the right to live in a healthy environment were explicitly
downplayed by the three judges of the Nuclear Claims Tribunal. The
tribunal weighed two methodologies for assessing the value of land. The
‘residential/agricultural use approach’ calculated the ‘damages to nat-
ural resources, real or personal property, subsistence use, revenues, and
proits and earning capacities’ (Plasman and Danz 2007: 14, n.32). The
second methodology relied on real estate values in which property had
been rented or sold, and yielded the higher value. However, the tribu-
nal previously established that compensation rates should be set with
reference to the ‘highest and best use’ of the land, which they identiied
as agricultural and residential use rather than government purchase or
rental. Consequently, the award to the people on Rongelap was based
on lost use values rather than real estate values (Plasman and Danz
2007: 11–12).
In making its determination, the tribunal disputes Johnston and
Barker’s assertion that ‘lost use values assessed by the appraisers are
incomplete in that they fail to address … natural resource damage and
loss of lagoon, reef heads, clam beds, reef isheries, turtle and bird nest-
ing grounds’. Instead, the tribunal argues that the assessment of agri-
cultural and residential use ‘explicitly includes these uses’ because in
many cases the rights to marine resources were directly linked to the
ownership of land (Plasman and Danz 2007: 14, n.32). Similar reason-
ing applied to the symbolic or cultural value of resources, including
‘cultural resource damage and loss of access to family cemeteries, bur-
ial sites of iroij [chiefs], sacred sites and sanctuaries, and morjinkot land
[given by the chiefs to commoners for bravery in battle]’ (Plasman and
Danz 2007: 14, n.32). The tribunal even argued that land which was
culturally signiicant but had no discernable economic value – pro-
viding the example of an uninhabited and unused outer island in an
atoll – was implicitly included in their analysis (Plasman and Danz
2007: 19, n.41). According to the tribunal, all of these speciic cultural
values were taken into account by the generic procedures of economic

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 STUART KIRSCH

accounting and therefore did not require independent assessment. The

tribunal also determined that ‘the loss of access to a healthy ecosystem’
was adequately addressed by the award for the loss of use (Plasman and
Danz 2007: 19, n.41). Additional compensation was provided for the
pain and suffering caused by inadequate and unhealthy living condi-
tions, and by subjecting people from Rongelap to unnecessary medical
procedures.
Speciic claims made by the people of Rongelap about the loss of a
way of life and the right to a healthy environment were not explicitly
recognised by the Nuclear Claims Tribunal. But based on the larger
value of the award for Rongelap in comparison to previous judgements
by the tribunal, these claims were implicitly folded into their assess-
ment of land values. The judgement signiicantly expanded prior valu-
ations of land in the Marshall Islands even though it did not assign
speciic economic values for the loss of culture or the right to a healthy
environment.
The hearings of the tribunal also failed to contest the fundamental
power of the state to reduce its subjects to the conditions of bare life
(Agamben 1998). Even though the tribunal cannot question the sov-
ereign power of the state, it can unmask that power by showing how
it operates, thereby revealing false claims made by the state concern-
ing its responsibilities towards its subjects. Thus the hearings provided
the people from Rongelap with the opportunity to challenge the state’s
claim to moral authority through testimony about their experiences.
Johnston and Barker (2008: 225) conclude that the ‘expert witness
report and the tribunal hearings served as a truth and reconciliation
committee, with Marshallese experts providing the testimony and the
declassiied narratives of scientists and scientiic indings providing the
damning substantiation’. Chakrabarty’s (2000: 93) observation that
‘the point is to ask how this seemingly imperious, all-pervasive code
[of history or the law] might be deployed or thought about so that we
have at least a glimpse of its own initude, a glimpse of what might con-
stitute an outside to it’ is applicable to the proceedings of the Nuclear
Claims Tribunal. The testimony of the people from Rongelap, and in
particular their claims about the loss of a way of life and the right to live
in a healthy environment, remains independent from the language of
the court; there is no fusion or merger of the two. Yet this alternative
accounting of events acts as a mirror in which the state is forced to view
its own image.

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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

their own source of income. They see potential development opportun-

ities associated with the mine as a means to earn the money required
to overcome their current dependence on their husbands. In contrast
to Simmel (1978), Lokono women seek inancial independence in order
to reclaim their autonomy and ensure they can provide for their fam-
ilies. Access to money becomes the means to achieve traditional values,
to reassert the interdependence of women and men and to fulill their
responsibilities to their children.7
In focus groups and interviews with the Lokono and Kaliña people in
east Suriname, the most striking element of discussions about land rights
was also their invocation of freedom. People told me that they only feel
free on their own land, where they are able to do as they please. Without
land rights, they emphasised, one is not truly free, because ‘anyone can
show up with a piece of paper and say they own our land’. Many people
described freedom in terms of their ability to hunt and ish in the rain-
forest. When I asked the young men about their future, they told me they
wanted to stay on their land because: ‘We love this place. We want our
own place where we can live. We like to be free.’ Today, however, they
are ‘not free enough [because] other people are coming into our terri-
tory’. When describing the nature reserve established on their land, they
expressed their criticism in terms of the resulting constraints on their
freedom: ‘Before we were free to go there, but now someone is imposing
rules on us’. Many people also brought up stories about ‘no trespassing’
signs on indigenous lands that have been alienated from their rightful
owners.
When the Lokono and Kaliña spoke to me about freedom, they also
mentioned the freedom to be indigenous, to possess their own culture
and follow their own way of life. Kambel (2002) notes that the Lokono
and Kaliña are familiar with the provisions of the UN Declaration on
the Rights of Indigenous Peoples, including the ‘collective right to live
in freedom, peace and security as distinct peoples’ and the ability to
express ‘indigenous cultural diversity’ without prejudice. In this sense,
the freedom to be indigenous implies the right to determine and repro-
duce important cultural values, which resonates with claims made in the
Rongelap case about the ‘loss of a way of life’.

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

The concept of freedom also has broad historical resonance in

Suriname, a Dutch colony from 1667 until 1975. Most of the inhabitants
of Suriname are descendants of slaves or indentured labourers. Creoles
make up 32 per cent of the population and are the strongest political
faction; the Maroons, descendants of escaped slaves who settled in the
rainforest, constitute another 10 per cent of the population. The largest
group of people in the country is composed of the descendants of Hindi-
speaking Indians who moved to Suriname as indentured labourers after
the abolition of slavery, and comprise 37 per cent of the population.
Another 10 per cent of the population is made up of the descendants
of indentured labourers from Java. Given the historical signiicance
of forced and coerced labour in Suriname, freedom is a powerful uni-
fying discourse among its citizens, including the Amerindian commu-
nities, which comprise between 1.5 and 2.0 per cent of the country’s
population.8
In these examples from Suriname, freedom is a multivalent concept
that simultaneously references traditional ideas about persons, gender
and social relations; the freedom to hunt and ish in the rainforest; the
UN Declaration on the Rights of Indigenous Peoples, which supports
the freedom to be indigenous; and freedom in a recently independent
country comprised largely of the descendants of slaves and indentured
labourers. Concerns about freedom are neither exclusively indigenous
nor modern, and are simultaneously a shared concern of members of
the state and the basis of a claim to difference. The importance of free-
dom resonates across social divides in Suriname even as it is invoked in
support of indigenous land rights. Its multivocality means that any gaps
or differences in how freedom is invoked may be partially concealed by
these shared meanings.

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

previously restricted claims for damage to property owners. Local sub-

sistence practices provided a new model for redressing industrial forms
of pollution and the consequences of environmental degradation for the
people living downstream from the Ok Tedi mine, establishing import-
ant legal precedents. The concept of subsistence rights was equally novel
for the indigenous plaintiffs, although it provided them with a powerful
means of expressing their grievances. In the Marshall Islands, the claim-
ants from Rongelap articulated their concerns in terms of previously cir-
culating discourses about the loss of a way of life, or culture, and the
right to a healthy environment. Although the Nuclear Claims Tribunal
avoided ruling directly on these claims, its inal assessment of the dam-
ages caused by nuclear testing was clearly inluenced by the presentation
of indigenous views at the hearings. The gap between local conceptions
and judicial verdict remains, but the people from Rongelap welcomed
the opportunity to present their testimony to the tribunal. Finally, the
Amerindian communities in Suriname invoke the multivocal discourse
of freedom in presenting their claims, which simultaneously incorporates
their relationship to the rainforest, social relations, new claims about
indigenous rights and national history. Their claim uniies what might
otherwise be disjunctive social positions.
There are other consequences of these claims as well. Some travel as
legal precedents for other indigenous communities to adopt, such as the
notion of subsistence rights in the Ok Tedi case. In the Marshall Islands,
however, claims about the right to a way of life and the right to a healthy
environment were not endorsed by the court but may still circulate as
contemporary political discourses rather than legal precedents. The
Nuclear Claims Tribunal was unable to challenge the sovereign power
of the state, but the people of Rongelap were able to call attention to
the moral failings of the state. We do not know how the Inter-American
Court on Human Rights will respond to claims about freedom and land
rights in the Suriname rainforest. There are concerns about privacy and
governmentality in all three cases, as participating in legal processes
always invites the scrutiny of the court, but this also relects the larger
paradox of indigenous politics, in which those who are different must
bear the responsibility for commensuration (see Povinelli 2002).
Another important question concerns eficacy. It may take so long for
a case to reach the courts that problems are compounded, as in the Ok
Tedi case, in which legal remediation has provided more than one bil-
lion dollars in compensation to the state and the affected communities,
but came too late to save the river (Kirsch 2007). In the Marshall Islands

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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

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 STUART KIRSCH

must align empirical indings with the aesthetic requirements of particu-

lar languages of expert knowledge and genres of writing.
There will inevitably be gaps between some indigenous claims and
their legal presentation. They may be reduced through looping effects
in which new claims are internalised. They may yield legal precedents
which generate change or contribute to related political projects. They
may also facilitate the critique of power by providing testimony about
the moral failings of the state. Alternatively, they may conceal their own
presence through the use of multivocal terms which elide difference and
consequently mobilise recognition and support. However, they may also
end up reifying difference. The juridiication of indigenous politics can-
not escape the universalising power of legal language, but can create new
political opportunities.

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