The institution of law and the organizations of indigenous peoples

Coordinated by : Irene Bellier (CNRS-Paris), with Ghislain Otis (University of Ottawa, Canada)

The aim of the research axis is to investigate emerging institutional frameworks for the interaction between dominant Western systems of law and justice and indigenous systems of law and justice, in particular regarding self-government and “law-making” in areas such as the conception of representation, socio-economic and political structures, police, family life, water uses, land issues, participation, etc. The challenge will be to reconsider the historical and ethnographic production of data (regarding particular groups of people, i.e. situated Indigenous Peoples) in light of the current indigenous demand for full recognition based on decolonised legal pluralism, participation in sectorial decision-making and in the greater polity.

New processes of institutionalization have taken or are taking place as a result of State initiatives or in response to indigenous demands on the international or national level. These processes are not well known and there is a great deal of confusion when it comes to characterising the institutions being established or simply resurfacing in novel forms after decades or even centuries of marginalisation. What are the sources and manifestations of such institutions? Are they non-state self-constituted bodies? Are they simply state agencies or some hybridised institutional species? What is the impact of their source and make-up on their claim to internal and external legitimacy? How do they include gender and youth in their functioning? From these different perspectives we will also analyse the mechanisms for the indigenous participation to deliberation and decision-making processes, and the demands for their forms of consultation and decision-making to be respected.

We need a better understanding of current trends in indigenous institutional engineering and of the role of legal pluralism in such trends. As new regimes of indigenous governance are being designed, and are particularly challenging for what regards the management of land (territory and development) issues, their features need to be ascertained and assessed. In particular, we need to grasp the unprecedented challenges of making legal pluralism work within (or with) the state as an effective and legitimate arrangement. The evolutions also involve domains, which do not strictly belong to the institution of justice such as, for instance, the issues of linguistic communication and of writing oral customs that we want to analyse as well.

The RTI ultimately aims to observe when and how change takes place in the political and legal treatment of indigenous peoples and what exactly changes in the way institutions function: to explain for instance, how and why a vulnerable group like the San people in Namibia is “absorbed” by the logics of nature conservancy; why in New Caledonia the Kanak decided to affirm their law in a solemn charter that defines common values; why community justice is a response to neoliberal violence in Mexico or how different Indigenous Peoples in Brazil are dealing with the non-indigenous system of justice and the imprisonment of their members.