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October 14, 2004 / Robert N. Clinton

Equality & Indians

While visiting on sabbatical at Wellington University Victoria and discussing with others the debates over Maori rights, the question of the liberal paradigm of equal treatment of citizens within a state frequently arose. This problem involves precisely the same discussion of equality frequently heard regarding Indian law in the United States.

One answer that has occurred to me here is both obvious and rarely heard. The western liberal paradigm has actually created two notions of equality that must be considered: (1) equality of citizens within a state and (2) equality between states with concomitant respect for the normative legal tradition of each state reflected in doctrines of comity and respect for sovereignty. The importance of the historic treaty relationship with many indigenous peoples is that it situates the problem in the second, rather than the first, paradigm.

By more recently situating the debate about indigenous rights in the first paradigm much of the recent discussion of indigenous rights by legal critics simply assumes away the basic problem — the need for equal respect for the normative legal traditions of indigenous peoples. In fact, by situating the problem automatically in the first western paradigm, rather than the second western paradigm, an automatic discrimination and inequality is created — the discrimination against the normative legal tradition of the indigenous people which invariably is ignored in the discussion in preference for the normative legal tradition of the dominant colonial state under the guise of an an argument based on equality of treatment. This is not equality; it is rank colonial discrimination against the normative legal tradition of the colonized indigenous people. So much for western liberal arguments based on equality of treatment!

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