This three-part series, Indigenizing International Law, explores the encounter between Western and Indigenous jurisdictions, paying particular attention to the way in which post-colonial rule always entails resistance, hybridity, and accommodation. By studying the emancipatory potential of indigenous thought as a basis for the transformation of international law, the series examines both the strategies used by international law to colonize indigenous jurisdictions, and the practices of resistance used by indigenous peoples to keep their own laws alive. In so doing, it explores the double bind that exists between silencing and listening to indigenous jurisprudences, drawing attention to the interaction between indigenous and non-indigenous worlds.
Towards this goal, the series proposes the idea of indigenizing international law by considering indigenous law as law. It is by directing indigenous jurisprudences to the framework of international law and by recognizing the constitutive relationship between Western and indigenous accounts that the possibility of transforming international law becomes possible. This process through which ‘we’ can learn from indigenous jurisprudences in order to change ‘our’ laws is what I call in this series inverse legal anthropology. In indigenizing international law using an inverse legal anthropology, the series remarks the power of indigenous thinking to counteract international law’s colonial legacies and indigenous peoples’ ongoing genocide.
by Paulo Ilich Bacca
The Double Bind of Coloniality
My first case study, inspired by a conversation with Silvia Rivera Cusicanqui, leading scholar of Andean and subaltern studies and an exemplary thinker of the double bind, explores a twin-track approach characterized by the possibility of interaction between worlds that are both contradictory and complementary. The exploration of the epistemological and heuristic potential of the double bind takes place when there are two demands in conflict—neither of which can be ignored. Thus, this encounter supposes an insoluble dilemma: whenever the subject position chooses one of the imperatives of the conflicting demands, it cancels, in fact, the possibility of fulfilling the other one. And that is why the subject position is always interacting between the two juxtaposed poles.
The ‘functioning’ of the double bind appears in this case study through three events. To begin with, Rivera has invited her students to participate in the exploration of double-bound readings and experiences of life. In this sense, she has considered the epistemological use of rituals and indigenous cosmologies as a way to envision different narrative possibilities beyond mainstream sources of knowledge. In this double bind between canonical histories and alternative histories, indigenous epistemologies are able to critically assess official historical accounts. It is precisely by engaging Rivera’s methodology that I ritualize our conversation by interacting with Andean sources of knowledge such as musical harmonization, poetry-based family genealogies, and pilgrimage.
Second, I show how Rivera is experimenting with the double bind by ‘transferring’ the personal into collective knowledge. In so doing, I have a conversation with Rivera about her work, intellectual trajectory, and political activism during the last four decades as a way to unveil the double bind of her indigeneity. In this context, the double bind operates within the indigenous world depicted by Rivera in our conversations as plural, diverse, and contradictory; indeed, a world where indigenous identity is torn between the simultaneity of being indigenous and non-indigenous at once.
Finally, I show one example in which Rivera has contributed to the development of a double bind epistemological framework in order to engage with the colonial encounter between Western and Indigenous jurisdictions in the Americas from an Andean perspective or in ‘indigenous terms’. As a backdrop for discussion, I use the dissident component of the curatorial project The Potosí Principle. How Can We Sing the Song of the Lord in a Foreign Land? carried out by Rivera as a response to the approach of the ‘official’ German curatorship. Taking into consideration the emancipatory potential of indigenous thought as the basis for transforming the first narratives of the encounter between European and indigenous jurisdictions in the Americas, my reading examines the strategies used by the colonizers to subdue first-nation jurisdictions as well as the practices of resistance of indigenous peoples to keep their own laws alive. In so doing, it explores the double bind that exists between colonial domination and indigenous resistance.
Inverse Legal Anthropology in Action
My second case study is an archival exploration of what it means to perform an inverse legal anthropology based on the life and work of Manuel Quintín Lame (1880-1967)—a radical indigenous leader and an active user and creator of laws who lived during the first half of the twentieth-century. Born in Cauca, a department in the southwest Andean region, and a member of the Nasa people, one of the eight indigenous nations in this territory, Lame has become a cornerstone of the Colombian indigenous ethos. His legal work and interpretations follow the path of his ancestor, Don Juan Tama, a legendary chief (cacique), who juxtaposed Nasa cosmology and oral tradition with the Spanish written world back in the seventeenth century. By using colonial titles to claim Nasa sovereignty over territories in Cauca, the contents of these titles came into force once they were transmitted orally while walking the indigenous territories. It was an idiosyncratic ceremony that included both the indigenous ritual of walking ancestral lands and the Spanish legal tradition that recognised the existence of these lands through colonial titles.
In this way, the legal knowledge embodied in the titles was rearranged, according to Joanne Rappaport, reflecting on Nasa’s temporality and history. The titles stand out for their ambiguity, precisely because they move between Spanish historical tradition and indigenous legal experimentation. In this way, I understand the cosmological framework of the Nasa people as the politics of their memory: On the one hand, Nasa cosmology as memory embodies the jurisdiction in which indigenous communities enact their living laws and, on the other, it contains the historical accounts with which Nasa people give meaning to their own existence and everyday life.
Both Nasa jurisprudence and history rest on the memory of an ancient tradition, and the legal landscape derived therefrom is linked to a pre-Columbian indigenous jurisdiction with a complex historical trajectory. It ranges from large self-ruled territories (cacicazgos) governed by caciques in the pre-Conquest era to their virtual disappearance during the nineteenth century. The cacicazgos were transformed into colonial reservations (resguardos), which are indigenous territories managed by their caciques and recognized by the colonial power in the sixteenth century. The system of caciques without cacicazgos that profoundly altered the nature of the relationship between community and state was born in the nineteenth-century, when indigenous peoples experienced a significant restriction to their political self-determination.
Since the nineteenth century until today, Nasa indigenous peoples have continued in their struggle to keep their resguardos alive and to recover their ancestral territory. In this fight, Nasa communities have used both social mobilization and legal advocacy. The legal arguments used by Lame drew on the premise that indigenous peoples are the original owners of the Colombian territory, and in so doing, Lame linked the cosmologies of his people with an indigenous interpretation of Colombian mainstream laws. Lame proclaimed equity and reciprocity among states and indigenous nations and, consequently, the legally binding nature of agreements made between them, which is tantamount to a key principle in the framework of indigenous peoples in international law nowadays. According to this premise and his understanding of state-centric law, Lame argued that, as constituent subjects, indigenous peoples must abide by a ‘special law’ whose main objective should be to prevent the dissolution of their territory, specifically, their resguardos.
By exploring the primary sources of the General Archive of the Colombian Nation (Bogotá) and the José María Arboleda Historical Archive (Popayán), I drive the archival reconstruction of Lame’s letters to the Colombian government, legal briefs, and newspaper interviews. In this context, I argue that Lame’s legal theory was underpinned by an Andean historiographical perspective—one in which Nasa historical truth was transformed into a legal document. Indeed, Lame is presented as a Nasa legal cosmographer, one who was able to interpret Colombian state-centric law through indigenous cosmologies. In particular, I show Lame’s claim of indigenous self-determination, from a Nasa point of view, as a key legal principle in the struggle for indigenous survival, then and now.
Towards Indigenizing International Law
My third case study, analyses the way in which the National Indigenous Organization of Colombia (ONIC)—the main Colombian indigenous organization founded in 1982 to represent indigenous peoples and their legal and political claims—has been indigenizing international law. To this end, I undertake a reading of the ethnic militancy of ONIC in relation to its narration of the configuration of Colombian contemporary nationhood and its fight against indigenous peoples’ ongoing genocide.
I demonstrate that the importance of approaching indigenous thinking lies in the possibility of changing mainstream historical narratives and legal doctrines through idiosyncratic interpretations driven by indigenous peoples and organizations. In order to do so, first, I analyse the historical way in which ONIC has positioned its political reading of Colombian nationhood. Then, I present ONIC’s legal agenda regarding indigenous peoples’ genocide in terms of international law. This analysis demonstrates how the Colombian indigenous movement has been indigenizing international law through an advocacy approach that acts concurrently from the outside and inside of the framework of international law. From the outside in the sense that the Colombian indigenous movement indigenizes the imaginaries of nationhood using its own concepts of international law, showing the creativity with which indigenous cosmologies have changed mainstream state-centric narratives. Meanwhile, my reading of indigenous peoples genocide, which is based on ONIC’s interpretations of international human rights standards, shows how even in the face of a developmental model that is producing an ongoing genocide, indigenous peoples are still fighting to change international law standards from within in the midst of this humanitarian crisis.
The inverse legal anthropological approach that appears in my research does not seek to turn the discourse of indigenous rights, as it appears in international law, into the framework of indigenous cosmologies, but mainly to bridge the space that divides their perspectives. Indeed, international law as a project and field of study has been denying the double bind between its rules and those arising from indigenous jurisprudence. Thus, it is the distance between international law and indigenous jurisprudence what ‘produces’ a particular point of view. Since colonial times, the Western Rule of Law has been the unit of measurement of indigenous jurisprudences and, consequently, the silencing of indigenous peoples’ jurisdictional speech has been the rule. Indigenizing international law entails, in this way, shortening the distance between Western and indigenous jurisprudential accounts, allowing for indigenous jurisprudences to be listened to more closely.
To advance in this direction, I present the ONIC history through the memories of Taita Víctor Jacanamijoy and Luis Evelis Andrade, former ONIC vice-president and president, respectively. My narrative intertwines, on the one hand, Jacanamijoy’s and Andrade’s life stories in order to show a concrete example of indigenous survival by means of resistance and, on the other, their explanation (in ‘our’ words) of what we should know about the ONIC political program and how the ONIC perceives the official narratives of Colombian nationhood. Then, I introduce the ONIC political program in international criminal law, especially concerning the relationship between physical and cultural extinction and indigenous genocide through ecological means.
Paulo Ilich Bacca is a legal ethnographer and postdoctoral researcher of the RIVERS project, based at the University Carlos III de Madrid (2019-2024). The main challenge of the project is to produce knowledge about the contentions and challenges intrinsic to reconceptualising human rights with different ways of understanding and relating to water. Paulo’s book Los Derechos Indígenas en la Era del Reconocimiento: Poscolonialismo, Derecho Internacional y Cultura Constitucional (Indigenous Peoples Rights in the Age of Recognition: Postcolonialism, International Law and Constitutional Culture), prefaced by Bartolomé Clavero, will appear this year in the National University of Colombia publishing house. Meanwhile, Paulo is working in his forthcoming book entitled Indigenizing International Law: Inverse Legal Anthropology in the Age of Jurisdictional Double Binds.
Picture Credit: Jeisson Castillo, Tradicional Roberto Matapí from La Noche / Oil and Tobacco on canvas 90 x 60 cm. 2016
La Noche explores the long exposure photography that approaches the maloca as the central point, and the oil painting on canvas, which incorporates sacred plants and spiritual work to connect with the traditional healers who lie and move between the worlds, between nights (Castillo).
