Brazil's Contribution to Universal Concepts of Indigeneity

The Power of Definition: Brazil's Contribution to Universal Concepts of Indigeneity by Jan Hoffman French

This article builds on discussions about the potential benefits and
difficulties with developing a universal definition of indigenous peoples.
It explores the spaces made available for theorizing indigeneity by the
lack of a definition in the United Nations Declaration on the Rights of
Indigenous Peoples, adopted in 2007. Specifically, this article addresses
the challenge presented by the diversity of groups claiming indigenous
status in Brazil. To what extent do distinct cosmologies and languages
that mark Amazonian Indians as unquestionably indigenous affect
newly recognized tribes in the rest of Brazil who share none of the indicia
of authenticity? This article theorizes how to situate these newly
recognized tribes within the context of the Declaration and addresses
what the Brazilian experience has to offer in providing openings for
claims that might have been made through alternative means, such as
land reform and international cultural heritage rights.

INTRODUCTION
In my recent book, Legalizing Identities: Becoming Black or Indian
in Brazil's Northeast,1 I analyzed the process by which groups of black
rural workers were reconstituting themselves in relation to their strand
of indigenous ancestry and were being recognized as Indians by the
Brazilian government.2 Brazil is known as a place where indigenous
peoples are exemplified by non-European languages, cosmologies,
rituals, dress, and preconquest histories. However, over the past few
decades, Brazil has been pioneering a broadening of the concept of
indigenous peoples to include people previously assumed to be fully
assimilated into the nation’s general population. In fact, over the past
thirty years, the Brazilian government has recognized more than forty
new “tribes” in the Northeast region alone.3 During that same period,
many other presumably assimilated people demanded and received both
recognition and access to land as Indians in other parts of eastern
Brazil, including the state of Rio de Janeiro.

These new Indians exist within a larger, flexible, international
context of indigenous peoples made available for theorizing indigeneity
by the lack of definition in the United Nations Declaration on the Rights
of Indigenous Peoples (the Declaration). To what extent do distinct
cosmologies and languages that unquestionably mark Amazonian
groups, such as the Warí, Xavante, or Kayapo, as indigenous affect
newly recognized tribes in the rest of Brazil who share none of these
indicia of authenticity? Is it conceptually defensible from both an ethical
and legal perspective of justice to include in a single category both
people who have a clear claim to “difference” and have struggled for
generations to gain even limited political autonomy, and those who have
just recently discovered their claim to indigeneity under an expansive
view of indigenous peoples?
This article is divided into three sections. The first explains the
construction of global indigenous identity through the extensive process

 1. JAN HOFFMAN FRENCH, LEGALIZING IDENTITIES: BECOMING BLACK OR INDIAN IN
BRAZIL'S NORTHEAST (2009).
 2. “[I]n Brazil [the term] Indian has gone through phases of denigration and of
regeneration. The indigenous movement of the 1970s and 1980s reappropriated the term
and infused it with a substantial dose of political agency.” ALCIDA RITA RAMOS,
INDIGENISM: ETHNIC POLITICS IN BRAZIL 6 (1998). In fact, the use of the term has come to
be considered a “dynamic element[] of struggle.” MARÍA ELENA GARCÍA, MAKING
INDIGENOUS CITIZENS: IDENTITY, DEVELOPMENT, AND MULTICULTURAL ACTIVISM IN PERU
27 (2005).
 3. JOÃO PACHECO DE OLIVEIRA FILHO, ATLAS DAS TERRAS INDÍGENAS DO NORDESTE
(1993); Stephen G. Perz, et al., Contributions of Racial-Ethnic Reclassification and
Demographic Processes to Indigenous Population Resurgence: The Case of Brazil, 43 LATIN
AM. RES. REV. 7, 27 (2008).
4. See generally JONATHAN W. WARREN, RACIAL REVOLUTIONS: ANTIRACISM AND
INDIAN RESURGENCE IN BRAZIL (2001) (analyzing the processes of racial formation among
“posttraditional Indians” at various sites in eastern Brazil).
 5. Declaration on the Rights of Indigenous Peoples, G.A. Res. 61/295, U.N. Doc.
A/RES/61/295 (Sept. 13, 2007) [hereinafter Declaration].
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 THE POWER OF DEFINITION 243
of negotiating and adopting the Declaration. Due to insurmountable
difficulties in reaching agreement, a definition of indigenous peoples
was simply excluded from the Declaration. What remains is an openended
concept to be interpreted contextually. This article takes the view
that a definition of indigenous peoples in the Declaration would be
counterproductive, thus supporting the decision made by the
deliberating body. In the second section, I address the challenge that the
failure to agree on a legal definition of indigenous peoples poses to
anthropology, a field superbly positioned to analyze and assist in
conceptualizing meanings of indigeneity. Therefore, it is argued that
discussions of international legal definitions of indigeneity should be
made integral to anthropological perspectives. The third section uses
the Brazilian example to suggest both a temporal and a spatial
construction of diaspora as a justification for a broadened perspective on
indigeneity worldwide. In the Brazilian case, the definition of Indian
enacted in 1973 performed the same function as the exclusion of a
definition of indigenous peoples in the Declaration on an international
level, an opening up of the criteria for claiming indigenous rights.
I. GLOBAL INDIGENOUS IDENTITY CONSTRUCTION
After over two decades of meetings and negotiations, the
Declaration was adopted by the 61st General Assembly of the United
Nations on September 13, 2007, establishing
a universal framework of minimum standards for the
survival, dignity, well-being and rights of the world's
indigenous peoples. The Declaration addresses both
individual and collective rights; cultural rights and identity;
rights to education, health, employment, language, and
others. It outlaws discrimination against indigenous
peoples and promotes their full and effective participation
in all matters that concern them. It also ensures their right
to remain distinct and to pursue their own priorities in
economic, social and cultural development. The Declaration
explicitly encourages harmonious and cooperative relations
between States and indigenous peoples.6

 6. U.N. High Comm’r for Human Rights, Declaration on the Rights of Indigenous
Peoples, http://www2.ohchr.org/english/issues/indigenous/declaration.htm (last visited
Oct. 17, 2010).
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244 INDIANA JOURNAL OF GLOBAL LEGAL STUDIES 18:1
Although the Declaration is not a legally binding instrument, it is
declaratory of customary international law.7 Even while the Declaration
was in draft form, national courts began citing it in support of indigenous
rights.8 After twenty-three years of negotiation, the Declaration was
adopted by a vote of 143–4 with eleven abstentions.9 According to a U.N.
press release, “countries voting against the Declaration (Australia, Canada,
New Zealand, and the United States) said they could not support it because
of concerns over provisions on self-determination, land and resources rights,
and, among others, language giving indigenous peoples a right of veto over
national legislation and State management of resources.”10 The twentythree
year delay in adoption is attributable to two sticking points: the draft
Declaration asserts the importance of self-determination of indigenous
peoples,11 and the term “indigenous peoples” is not defined. The adoption of
the Declaration was delayed for an additional year as a result of objections
and proposed amendments by a group of African states.12 Their
fundamental objections were the absence of a definition of indigenous
peoples and the possible encouragement of internal ethnic groups to assert a
right to self-determination and to secede from the state.13

 7. Paul Oldham & Miriam Anne Frank, ‘We the Peoples…’: The United Nations
Declaration on the Rights of Indigenous Peoples, 24 ANTHROPOLOGY TODAY 5, 5 (Apr.
2008).
 8. See Erica-Irene A. Daes, An Overview of the History of Indigenous Peoples: SelfDetermination
and the United Nations, 21 CAMBRIDGE REV. OF INT’L AFF. 7, 23 (2008)
(citing (Consol.) re Maya Land Rights, Claim Nos. 171-72, ¶ 131 (Sup. Ct. 2007) (Belize),
available at http://www.belizelaw.org/supreme_court/judge_list/civil_judge_2007.html)
(follow “Supreme Court Claims Nos. 171 and 172 of 2007 (Consolidated) re Maya land
rights” hyperlink).
 9. Australia, Canada, New Zealand, and the United States voted against the
Declaration. Azerbaijan, Bangladesh, Bhutan, Burundi, Colombia, Georgia, Kenya,
Nigeria, Russian Federation, Samoa, and Ukraine abstained. Press Release, General
Assembly, General Assembly Adopts Declaration on Rights of Indigenous Peoples; ‘Major
Step Forward’ Towards Human Rights for All, Says President, U.N. Press Release
GA/10612 (Sept. 13, 2007) [hereinafter G.A. Press Release].
 10. Id.
 11. See generally Daes, supra note 8, at 8 (describing the author’s (who was the
principal drafter of the Declaration) belief that there is an intrinsic link between selfidentification
and self-determination); Andrea Muehlebach, What Self in SelfDetermination?
Notes from the Frontiers of Transnational Indigenous Activism, 10
IDENTITIES: GLOBAL STUD. CULTURE & POWER 241 (2003) (describing how transnational
indigenous activists are shaping the development of the concept of self-determination)
[hereinafter Muehlebach, Self-Determination].
 12. The three African states that delayed the final vote were Botswana, Namibia, and
Nigeria.
 13. See Draft Aide Memoire, African Group, United Nations Declaration on the Rights
of Indigenous People paras. 2.0-5.0 (Nov. 9, 2006), available at http://www.ipacc.org.
za/uploads/docs/Africanaidememoire.pdf. After further negotiations, all of the African
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 THE POWER OF DEFINITION 245
The International Work Group for Indigenous Affairs (IWGIA), a
nongovernmental organization, estimates that “[t]here are over 370
million indigenous people in Africa, the Americas, Asia, Europe and the
Pacific.”14 However, the concept of indigenous peoples encoded in the
Declaration is left undefined.15 In the absence of an agreement on a
definition, the United Nations Working Group on Indigenous Peoples
(WGIP)16 and the inter-sessional Working Group on the draft
Declaration17 asserted that an explicit definition of indigenous peoples
would reduce the effectiveness of the Declaration, which should, it was
argued, hinge primarily on self-identification. For example, most
definitions that were considered and rejected required that people show
direct descent from an identifiable group of people inhabiting the same
place as the group claiming indigenous rights before it was colonized. It
was feared that this requirement of “firstness,” would exclude groups in
Africa and Asia. Another problematic requirement was one in which
cultural practices or a distinct language must be retained from the
distant past. This would have excluded groups that were forced to

countries voted in favor of the Declaration; Burundi, Kenya, and Nigeria abstained. G.A.
Press Release, supra note 9.
 14. Int’l Work Grp. for Indigenous Aff. [IWGIA], Declaration on the Rights of
Indigenous Peoples, http://www.iwgia.org/sw248.asp (last visited Oct.17, 2010). Their
inclusion criteria can also be found on their website. IWGIA, Identification of Indigenous
Peoples: Indigenous Peoples-Who are They?, http://www.iwgia.org/sw641.asp (last visited
Oct. 17, 2010). The International Labour Organization confirms that “[i]ndigenous and
tribal peoples constitute at least 5,000 distinct peoples with a population of more than 370
million, living in 70 different countries.” ILO, Nicaragua Ratifies ILO Indigenous and
Tribal Peoples Convention, 1989 (No. 169) (Aug. 30, 2010), http://www.ilocarib.org.
tt/portal/index.php?option=com_content&task=view&id=1411&Itemid=368.
 15. See Dep’t of Econ. & Soc. Aff., Secretariat of the Permanent Forum on Indigenous
Issues, State of the World’s Indigenous Peoples, at 4-7, U.N. Doc. ST/ESA/328, U.N. Sales
No. 09.VI.13 (2009) (explaining the decision to exclude a definition).
 16. The United Nations Economic and Social Council established the WGIP as a
“transnational locality” (in the sense that a new political space was created) in 1982. See
Andrea Muehlebach, ‘Making Place’ at the United Nations: Indigenous Cultural Politics at
the U.N. Working Group on Indigenous Populations, 16 CULTURAL ANTHROPOLOGY 415,
415-16 (2001) (“It is the only global institution at which indigenous identity has for years
been discussed.”) [hereinafter Muehlebach, Cultural Politics].
 17. In 1995, the United Nations Commission on Human Rights established the intersessional
Working Group with “the sole purpose of elaborating a draft declaration on the
rights of indigenous peoples.” Office of the U.N. High Comm’r for Human Rights, Working
Group on the Draft Declaration on the Rights of Indigenous Peoples,
http://www2.ohchr.org/english/issues/indigenous/groups/groups-02.htm (last visited Oct.
22, 2010). That same year, the General Assembly decided that the “United Nations
Voluntary Fund for Indigenous Populations should also be used to assist representatives
of indigenous communities and organizations authorized to participate in the
deliberations of the Working Group on the draft declaration.” Id.
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246 INDIANA JOURNAL OF GLOBAL LEGAL STUDIES 18:1
assimilate but are now dedicated to reconstituting group identity as
indigenous.18
Most discussions of the Declaration begin with the working
definition of indigenous proposed by U.N. Special Rapporteur José
Martínez-Cobo in his Study of the Problem of Discrimination against
Indigenous Populations, which states:
Indigenous communities, peoples and nations are those
which, having a historical continuity with pre-invasion
and pre-colonial societies that developed on their
territories, consider themselves distinct from other
sectors of the societies now prevailing in those
territories, or parts of them. They form at present nondominant
sectors of society and are determined to
preserve, develop and transmit to future generations
their ancestral territories, and their ethnic identity, as
the basis of their continued existence as peoples, in
accordance with their own cultural patterns, social
institutions and legal systems.19
The WGIP bore this definition in mind as negotiations proceeded
but did not adopt it.20 Moreover, although there is a definitional
provision in the International Labour Organization (ILO) International
Indigenous and Tribal Peoples Convention 169 of 1989, which has been
ratified by twenty-one countries,21 the indigenous negotiators insisted

 18. For example, the Mashpee Indians in Massachusetts were only recently granted
federal recognition after decades of appealing a 1980s court decision that found they had
not proven historical continuity or distinct cultural practices traceable to specific
ancestors from the same place. See JAMES CLIFFORD, Identity in Mashpee, in THE
PREDICAMENT OF CULTURE: TWENTIETH-CENTURY ETHNOGRAPHY, LITERATURE, AND ART
277 (1988). See also Andrew Ryan, Mashpee Tribe Wins Federal Recognition, BOS. GLOBE,
Feb. 16, 2007 at B8 (for information on the 2007 federal recognition).
 19. Special Rapporteur on the Study of the Problem of Discrimination Against
Indigenous Populations, Final Rep. on the Study of the Problem of Discrimination Against
Indigenous Populations, para. 379, Comm. on Human Rights, U.N. Doc.
E/CN.4/Sub.2/1983/21/Add.8 (Sept. 30, 1983) (by José R. Martínez Cobo). According to
Erica-Irene Daes, this definition has been unofficially used in certain cases. Special
Rapporteur on the Discrimination Against Indigenous Peoples, Final Rep. on the
Protection of the Heritage of Indigenous Peoples, para. 18, Comm. on Human Rights, U.N.
Doc. E/CN.4/Sub.2/1995/26 (June 21, 1995) (by Erica-Irene Daes).
 20. PATRICK THORNBERRY, INDIGENOUS PEOPLES AND HUMAN RIGHTS 33 (2002).
 21. In 1989, ILO Convention No. 169 was adopted with the following provision in
Article 1:
1. This Convention applies to:
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 THE POWER OF DEFINITION 247
that anything short of self-identification would not provide the
flexibility needed for an inclusive and self-determining process of
recognition.
Components of both the Martínez-Cobo and ILO definitions were
problematic from the perspective of self-identification. For example, in
the Martínez-Cobo definition, the phrase “historical continuity with preinvasion
and pre-colonial societies that developed on their territories”
presented the problem of excluding peoples living in nonsettler societies,
along with displaced and diasporic indigenous peoples.22 Another
example is the 2006 U.S. proposal to the Working Group on the Draft
Declaration, which illustrates just how limiting the effort to pin down a
definition can be. The U.S. proposal was rejected by the drafters, but it
would have required state recognition prior to U.N. recognition:
 (a) tribal peoples in independent countries whose social, cultural and
economic conditions distinguish them from other sections of the
national community, and whose status is regulated wholly or partially
by their own customs or traditions or by special laws or regulations;
(b) peoples in independent countries who are regarded as indigenous
on account of their descent from the populations which inhabited the
country, or a geographical region to which the country belongs, at the
time of conquest or colonization or the establishment of present state
boundaries and who, irrespective of their legal status, retain some or
all of their own social, economic, cultural and political institutions.
2. Self-identification as indigenous or tribal shall be regarded as a
fundamental criterion for determining the groups to which the
provisions of this Convention apply.
ILO: Convention Concerning Indigenous and Tribal Peoples in Independent Countries art.
1, paras. 1-2, June 27, 1989, 28 I.L.M. 1382 (entered into force Sept. 5, 1991). Nicaragua is
the most recent country to ratify the Convention, bringing the number to 21. ILO,
Nicaragua Ratifies ILO Indigenous and Tribal Peoples Convention, 1989 (No. 169) (Aug.
30, 2010), WWW.ILO.ORG, http://www.ilocarib.org.tt/portal/index.php?option=com_content&
task=view&id=1411&Itemid=368.
 22. Martínez-Cobo, supra note 19, at para. 379; see also James Clifford, Varieties of
Indigenous Experience: Diasporas, Homelands, Sovereignties, in INDIGENOUS EXPERIENCE
TODAY 197 (Marisol de la Cadena & Orin Starn eds., 2007) (exploring the diversity of
claims to indigeneity and arguing for their legitimacy). In this article, I am not directly
addressing the issue of connection to land as a defining factor for indigeneity in the
Declaration. The tension between a definition that focuses on social and cultural identity
and one that is primarily about territory is reflected in the Declaration. Right to land
“which [indigenous peoples] have traditionally owned, occupied or otherwise used” is
enshrined in Article 26, along with a directive to States to “give legal recognition and
protection to these lands.” Declaration, supra note 5, art. 26, paras. 1, 3. However, claim to
land or connection to territory is not a prerequisite for coverage by the Declaration. For
example, “historic injustices” are seen as resulting from “inter alia, their colonization and
dispossession of their lands, territories and resources.” Id. annex (emphasis added).
Cultural protection and self-determination are accorded more space in the Declaration
than land issues.
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248 INDIANA JOURNAL OF GLOBAL LEGAL STUDIES 18:1
Indigenous peoples have the right to be recognized as
such by the State through a transparent and reasonable
process. When recognizing indigenous peoples States
should include a variety of factors, including, but not
limited to . . . whether the group . . . self-identifies as
indigenous; . . . is comprised of descendants of persons
who inhabited a geographic area prior to the sovereignty
of the State; . . . historically had been sovereign; . . .
maintains a distinct community and aspects of
governmental structure; . . . has a cultural affinity with
a particular area of land or territories; . . . has distinct
objective characteristics such as language, religion,
culture; and, . . . has been historically regarded and
treated as indigenous by the State.23
Evident from this proposal is the influence of the U.S. Bureau of
Indian Affairs requirements that have restricted federal recognition for
many groups over the years.24 Such a definition, it was felt by the
drafters, would have been impractical in a transnational context. The
indigenous participants viewed the lack of a definition of indigenous
peoples as impractical and equivalent to a refusal to use the “language
understood by those wielding power.”25 Indigenous representatives in
WGIP meetings in the 1990s expressed the view that unless a “law
reaches out to the varieties of human existence,” it should be considered
deficient.26 They also asserted that for a law to be morally valid, “it
must have the consent of . . . those affected”27 by its provisions.
Self-identification, although fundamental to the recognition of
indigenous peoples on the international level, is not the only criterion
important to indigenous representatives, as “[i]ndigenous peoples are

 23. Chairperson-Rapporteur on the ESCOR, Comm’n H.R., Report of the Working
Group on the Draft United Nations Declaration on the Rights of Indigenous Peoples, 27-29,
U.N. Doc. E/CN.4/2006/79 (Mar. 22, 2006) (by Luis-Enrique Chávez). In June, the Obama
administration announced that the United States would review its position on the
Declaration. Press Release, Office of the Spokesman, U.S. Review of the U.N. Declaration
on the Rights of Indigenous Peoples (June 4, 2010), http://www.state.gov/r/pa/prs/ps/
2010/06/142662.htm.
 24. E.g., CLIFFORD, supra note 18 (describing the history of Massachusetts’ Mashpee
Indians and their 1976 lawsuit claim for land, which was ultimately unsuccessful because
they did not meet the “tribal” criteria).
 25. Justin Kenrick & Jerome Lewis, Indigenous Peoples’ Rights and the Politics of the
Term ‘Indigenous’, 20 ANTHROPOLOGY TODAY 4, 9 (Apr. 2004).
 26. THORNBERRY, supra note 20, at 10 (2002) (quoting ANDREW LINKLATER, THE
TRANSFORMATION OF POLITICAL COMMUNITY: ETHICAL FOUNDATIONS OF THE POSTWESTPHALIAN
ERA 96 (1998)).
 27. Id.
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 THE POWER OF DEFINITION 249
not only those who say they are indigenous but also those who are
accepted by a global network of nations and communities with similar
claims and sources of recognition.”28 Therefore, both self-identification
and other-identification are critical to public recognition. There is little
doubt that the decision to leave the concept open and flexible has
contributed to the expansion of the number of groups who self-identify
and who are recognized as indigenous by the United Nations and other
international bodies. It has also encouraged the growing identification
of indigenous activists, representatives, and intellectuals with a global
indigenous identity that has influenced the actions of international and
state entities.29 Such a global indigenous identity allows groups to “gain
voice through cross-national connections that empower their approach
to national dilemmas.”30 Moreover, this global indigenous identity does
not adhere to international actors alone, but is crucial to selfidentification
by local peoples in settings ranging from the Sami people
in northern Europe to the San people in southern Africa.31

 28. RONALD NIEZEN, THE ORIGINS OF INDIGENISM: HUMAN RIGHTS AND THE POLITICS
OF IDENTITY 22, 227 n.21 (2003) (reporting a definition proposed by indigenous delegates).
In the United States, the assumption of solidarity among indigenous peoples is not a
given. For example, the leadership of the Eastern Band of Cherokee opposes federal
recognition of the Lumbee Indian Tribe in North Carolina. See, e.g., Lumbees Clash with
Cherokee at Senate Hearing, INDIANZ.COM, (July 13, 2006), http://64.38.12.138/News/
2006/014928.asp.; Senators Seek Lumbee Recognition, NEWSOBSERVER.COM, (Oct. 10, 2009,
2:08 PM), http://www.newsobserver.com/2009/10/01/121289/senators-seek-lumbee
recognition.html#storylink=misearch.
 29. See, e.g., NIEZEN, supra note 28 (discussing the indigenism movement as a new
global political entity and providing a history of the movement’s relationships with states
and international bodies); Marcus Colchester, Indigenous Rights and the Collective
Conscious, 18 ANTHROPOLOGY TODAY, Feb. 2002, at 1, 2-3; Daes, supra note 8, at 8-11;
Kenrick & Lewis, supra note 25, 4-9; Benedict Kingsbury, “Indigenous Peoples” in
International Law: A Constructivist Approach to the Asian Controversy, 92 AM. J. INT’L L.
414, 414-15, 417-26 (1998); Muehlebach, Self-Determination, supra note 11, at 244-46,
254-56, 261-63; Muehlebach, Cultural Politics, supra note 16 (describing the WGIP’s role
in the transnational indigenous movement); Oldham & Frank, supra note 7 (giving a
detailed account of the Declaration’s adoption and the history of its drafting and status as
a resolution); Viniyanka Prasad, The UN Declaration on the Rights of Indigenous Peoples:
A Flexible Approach to Addressing the Unique Needs of Varying Populations, 9 CHI. J.
INT’L L. 297, 311-15 (2009). But see Michaela Pelican, Complexities of Indigeneity and
Autochthony: An African Example, 36 AM. ETHNOLOGIST 52 (2009) (describing several
examples of how countries have ignored global indigenism or used it to harm those the
movement intended to protect).
 30. Anna Tsing, Indigenous Voice, in INDIGENOUS EXPERIENCE TODAY 33, 57 (Marisol
de la Cadena & Orin Starn eds., 2007).
 31. See Dorothy L. Hodgson, Introduction: Comparative Perspectives on the Indigenous
Rights Movement in Africa and the Americas, 104 AM. ANTHROPOLOGIST 1037, 1039-40
(2002).
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250 INDIANA JOURNAL OF GLOBAL LEGAL STUDIES 18:1
The trend toward an expansive definition of indigenous peoples
began well before the Declaration was adopted and is directly linked to
the increased participation of representatives from Africa and Asia
(places that, until recently, were excluded from consideration as not
having indigenous groups).32 As standard assumptions moved away
from the notion that the existence of indigenous peoples were confined
to settler societies, such as those in the Western Hemisphere, Australia,
and New Zealand, an expanded perspective on the definition of
indigeneity began to take hold in U.N. deliberations. The involvement of
indigenous participants in deliberations and negotiations leading up to
the Declaration’s adoption was unprecedented.33 In 1982, when the
WGIP was established, only thirty representatives were present. In
1999, nearly one thousand participants attended the WGIP meeting,
creating a site of “discursive density.”34
The Global Indigenous Peoples’ Caucus, consisting of the group of
indigenous delegates present at the WGIP meetings, would meet to
discuss their positions on the issues at stake through intense debate
and consensus decision making.35 Erica-Irene Daes, Chairperson and
Special Rapporteur of the WGIP from its founding until 2001 and
principal drafter of the Declaration, explains that indigenous peoples
were not part of original state building.36 This reminder makes the
indigenous representation at every stage during the twenty-three year
period of drafting, debating, and redrafting the Declaration even more
impressive. Such participation contributed to the constitution of a
supranational indigenous identification. Patrick Thornberry,
international law scholar and an observer at WGIP meetings, described

 32. U.N. PERMANENT FORUM ON INDIGENOUS ISSUES, Trust Fund on Indigenous Issues
Relating to the Second International Decade of the World's Indigenous People
http://www.un.org/esa/socdev/unpfii/en/second_trustfund.html#2009 (last visited Oct. 9,
2010). In May 2009, the United Nations Permanent Forum on Indigenous Issues, as
advisor for projects for the Second International Decade of the World’s Indigenous People,
proposed to award grants to nineteen projects in Africa, Asia, Latin America and the
Caribbean, Eurasia (a region covering Eastern Europe, the Russian Federation, Central
Asia, and Transcaucasia), North America, and the Pacific.
 33. See Daes, supra note 8, at 12-18; see also Muehlebach, Self-Determination, supra
note 11 (discussing the increasingly visible presence of indigenous delegates in the
international arena in a number of contexts); Oldham & Frank, supra note 7, at 6-8.
 34. Muehlebach Cultural Politics, supra note 16, at 415, 420.
 35. E.g., Oldham & Frank, supra note 7 (describing in detail the response of the
Caucus to the African Group’s Draft Aide-Memoire).
 36. See Daes, supra note 8, at 13. State-building is a reference to the process by which
a nation is transformed into a nation-state with an independent government and laws. In
Hispanic America, for example, creoles (descendants of colonizing Spaniards) were the
primary group involved in state-building in the nineteenth century. Indigenous
populations were excluded from the state-building project.
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 THE POWER OF DEFINITION 251
the meetings as “[a]rguments between government delegations and the
indigenous [that] seemed interminable, their position statements
incommensurable. But there was also a sense of something shifting, of
ideas grinding their way through the morass of argument and rebuttal,
storytelling and complaint.”37
While increased indigenous participation in the draft Declaration
negotiations was crucial to its eventual adoption, there was also some
concern that such participation was restricted to an upper echelon of
indigenous delegates. Anthropologist Jonathan Friedman has argued
the risk that class inequalities might be reinforced between delegates
and the people at home whom they represent.38 He refers to the
internationally active indigenous delegates as part of a “global cocktail
circuit.”39 Over a decade ago, when Friedman made this comment, it
may have been appropriate to be suspicious of claims to a global
indigenous identity, both as a top-down imposition and as a distraction
from studying local cultural specificities. Today, it is necessary to
rethink such cautionary reactions because indigeneity and indigenous
rights are commonly accepted notions that affect localities around the
world. Generally, an anthropological approach to indigeneity would
emphasize the specificities of particular groups, paying less attention to
the impact of events at an international level (see section III below).
However, some anthropologists, such as Mary Louise Pratt, are
beginning to take a different approach and are criticizing the
established anthropological wisdom by asserting that it should no longer
be a given that “perform[ing] the always legitimating scholarly gesture
of presenting complicated truth against . . . reductive ideology”40 is the
only or best way to approach global indigenous identity. This still leaves
the question of which foundational justifications for claims to
indigenous rights are valid, particularly if self-identification has become
the primary requirement on the international level. Once historical
continuity, language and cultural practices, and blood quantum are no

 37. THORNBERRY, supra note 20, at 10. See generally Noel Castree, Differential
Geographies: Place, Indigenous Rights and 'Local' Resources, 23 POL. GEOGRAPHY 133, 161
(2004) (exploring reasons why indigenous peoples should have the right “to make their
own places rather than have them made for them.”).
 38. Jonathan Friedman, Indigenous Struggles and the Discreet Charm of the
Bourgeoisie, in PLACES AND POLITICS IN AN AGE OF GLOBALIZATION 53, 64 (Roxann
Prazniak & Arif Dirlik eds., 2001).
 39. Id.
 40. Mary Louise Pratt, Afterword: Indigeneity Today, in INDIGENOUS EXPERIENCE
TODAY 397, 400 (Marisol de la Cadena & Orin Starn eds., 2007).
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252 INDIANA JOURNAL OF GLOBAL LEGAL STUDIES 18:1
longer required foundational justifications for the recognition of an
indigenous people, it will be crucial to develop other justifications.41
More capacious definitional possibilities allow peoples claiming
indigeneity, such as international agencies and national governments,
to consider other morally powerful justifications for such claims. In The
Moral Force of Indigenous Politics: Critical Liberalism and the
Zapatistas, political scientist Courtney Jung provides an alternative
analysis.42 She sees indigenous identity as a “political achievement,” not
as “an accident of birth” or a “spontaneous global reaction in defense of
cultural preservation.”43 Jung proposes a theory of political identity
formation according to which “indigenous people are partly constituted
as a potential group because they occupy a common location of
structural exclusion from the modern state, not because they possess a
common language or culture.”44 Recognition as indigenous should flow
not from a notion of existential identity, but rather from what the larger
society and state has done to the group over time—how the group has
been treated by state institutions and majority populations.45 However,
such a structural location does not by itself produce an indigenous
rights movement. The concept of indigenous rights must first “develop[]
sufficient traction to orient, and to open the political space for,
indigenous politics.”46 Echoing such a perspective, anthropologist Mary
Louise Pratt has observed that indigeneity should be viewed “not as a
condition but [as] a force,” a “bundle of generative possibilities.”47 In my
opinion, the political space referred to by Jung, together with Pratt’s
notion of a “force,” are served by loosening definitional fetters and
considering alternative justifications for indigenous self-identification
and other-identification.48

 41. There has been a certain fetishization of firstness or priority of settlement with
regard to identification of indigeneity around the world. However, a claim to being first in
a particular place can be a double-edged sword. Indigenous rights, based on a claim to
priority, may be used by those who are structurally in a relatively powerful, and even
exploitative, position. See Adam Kuper, The Return of the Native, 44 CURRENT
ANTHROPOLOGY 389, 389 (2003).
 42. COURTNEY JUNG, THE MORAL FORCE OF INDIGENOUS POLITICS: CRITICAL
LIBERALISM AND THE ZAPATISTAS (2008) (analyzing the shift from peasant to indigenous
politics by the Zapatistas in Mexico).
 43. Id. at 11, 20.
 44. Id. at 69.
 45. See id. at 33.
 46. Id. at 69.
 47. Pratt, supra note 40, at 400, 402.
 48. As one Zapatista activist who was at first reluctant to embrace indigenous identity
indicated to Jung, “his concern was never an existential one . . . . Instead, what he hoped
was that indigenous identity would reconstitute the terms of struggle.” JUNG, supra note
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 THE POWER OF DEFINITION 253
II. ANTHROPOLOGY AND INTERNATIONAL LAW
Anthropologist Sally Engle Merry has written on the contributions
anthropology has made, and can make, to understanding international
law.49 Merry's review of the literature has unearthed a number of
contributions, particularly the component that shows how
anthropological theory helps us understand “how international law is
produced and how it works.”50 The inverse is also true. International
legal definitional discussions, decisions, and contestations can greatly
enhance anthropological thinking about indigeneity.
A number of anthropologists evaluating definitional issues
surrounding the terms indigenous peoples and indigeneity have
concluded that such terms are not useful anthropological concepts from
an analytical perspective because they are too essentializing, too tied to
the land, or too broadly conceived.51 However, those same scholars
condescendingly agree that, although such terms are not adequate for
anthropological analysis, they are useful as legal concepts, as tools for
political persuasion, or as meaningful terms “for those who identify
themselves as indigenous.”52 Some take a slippery slope approach,
arguing that the use of the concepts will inevitably lead to ethnic
strife,53 while others distinguish between indigenism (an
internationalist endeavor) and ethnonationalism, which rests on myths

42, at 78. In other words, his reluctance was not based on his own conception of his
personal identity, but stemmed from considerations of his political identity.
 49. See Sally Engle Merry, Anthropology and International Law, 35 ANN. REV.
ANTHROPOLOGY 99, 100 (2006).
 50. Id. at 9. “[A]nthropological research plays a critical role in examining how
international law works in practice, mapping the circulation of ideas and procedures as
well as examining the array of small sites in which international law operates . . . .” Id. at
111.
 51. See Kuper, supra note 41; Pelican, supra note 29, at 53.
 52. Pelican, supra note 29, at 54; accord Alan Barnard, Kalahari Revisionism, Vienna
and the 'Indigenous Peoples' Debate, 14 SOC. ANTHROPOLOGY 1, 7, 13 (2006). Pelican
believes that “stripping the concept of ‘indigenous peoples’ of its original connotations of
priority in time and historical continuity is debatable.” Pelican, supra note 29, at 56.
Pelican also discusses the relationship between Cameroon’s Grassfielders and Mbororo
people as an example; the latter, despite being relative newcomers “locally perceived as
strangers or allogènes, qualify on the international level as indigenous peoples.” Id. at 58.
This leads me to raise the question of how much deference international agencies should
give to local views (the United States’ desire to impose its definitional requirements is
instructive). But see John Bowen, Should We Have a Universal Concept of 'Indigenous
Peoples' Rights? Ethnicity and Essentialism in the Twenty-First Century, 16
ANTHROPOLOGY TODAY 12 (2000) (proposing an intermediate and alternative two-level
analysis for determining indigeneity from an anthropological perspective).
 53. See Friedman, supra note 38, at 397-99; Kuper, supra note 41, at 395; Pelican,
supra note 29, at 61.
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254 INDIANA JOURNAL OF GLOBAL LEGAL STUDIES 18:1
of cultural purity and frequently involves movements that seek
secession from the host nation-state.54
There is also a fear that encouraging collective indigenous rights
might lead to abuses of individual human rights by a group uncontrolled
by the state. This concern is often based on an assumed lack of
democratic process in indigenous settings. However, indigenous groups
are aware of concerns about potential abuses of individual rights and
have begun to address this issue at an international level. The Manila
Declaration of the International Conference on Conflict Resolution,
Peace Building, Sustainable Development, and Indigenous Peoples, held
in December 2000 with extensive indigenous participation, recognized
justice as universal and acknowledged that a revitalization of traditions
should not lead to oppression of women and children.55 Again, there is a
risk of condescension in assuming that people who self-identify as
indigenous are uninterested in or incapable of participating in a
democratic process.56 There is no reason why international legal
processes that call human rights violations into question cannot be
applied to recognized indigenous groups.
In fact, anthropologists are increasingly arguing against the notion
that collective rights are intrinsically dangerous.57 Moreover, the notion
of “culture,” as conceptualized by anthropologists, has shifted to an
active process of self-making and production of identity. In the
international indigenous rights context, a consensus is growing that
such identity construction is central to “building global alliances to
resist global processes of dispossession.”58 A number of legal scholars
have begun to take the position that issues of representativeness and
possible abuses of individual rights should neither be ignored nor

 54. Noel Castree, Differential Geographies: Place, Indigenous Rights and 'Local'
Resources, 23 POL. GEOGRAPHY 133, 152 (2004) (citing Ronald Niezen, Recognizing
Indigenism: Canadian Unity and the International Movement of Indigenous Peoples, 42
COMP. STUD SOC’Y & HIST. 119, 120 (2000)).
 55. International Conference on Conflict Resolution, Peace Building, Sustainable
Development and Indigenous Peoples, December 6-8, 2000, Manila Declaration, pmbl., § 5,
available at http://www.tebtebba.org/index.php?option=com_docman&task=doc_download
&gid=40&Itemid=27 (describing the proceedings of a conference with ninety participants
from indigenous communities on five continents, all of whom signed the declaration).
 56. For many years, scholars of the Iroquois Confederacy ironically touted the myth
that the U.S. Constitution and American democracy itself were based partially on the
Iroquois example. This trend has shifted but not without Congress weighing in. In 1988,
Congress passed a resolution acknowledging the contribution of the Iroquois Confederacy
of Nations to the development of the U.S. Constitution. See H.R. Con. Res. 331, 100th
Cong. (1988), http://www.senate.gov/reference/resources/pdf/hconres331.pdf (last visited
Oct. 29, 2010).
 57. See, e.g., Colchester, supra note 29, at 3; Kenrick & Lewis, supra note 25, at 5.
 58. Kenrick & Lewis, supra note 25, at 9.
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 THE POWER OF DEFINITION 255
privileged when considering who should have collective indigenous
rights, thus helping to allay fears of the violation of human rights of
individuals who constitute part of the group.59
At the same time, most anthropologists dealing with these matters
mention international law definitional discussions but do not
incorporate such definitions into an anthropological consideration.60 For
example, Alan Barnard equates indigenous peoples with other legal
categories and insists that this phrase should not be “in our glossary of
technical terms.”61 Barnard’s view is a shortsighted approach to a term
that, since the 1970s, has become embedded in theoretical discussions at
all levels. In other words, the term “indigenous peoples” is not simply an
“ideological construct” or “a useful tool for political persuasion,” as
suggested by Barnard.62 Accordingly, anthropologist Sidsel Saugestad
has observed, “anthropologists writing about indigenous issues need to
take heed of the codification of the concept taking place within the UN
system . . . . If anthropologists want to reconceptualize ‘indigenous
peoples,’ the point of departure must be this present use.”63
This approach also considers how the success of the global
indigenous movement might affect the epistemological assumptions
underlying anthropological definitions of indigeneity and indigenous
peoples. Anthropologists are dedicated to specificities as the crux of
much of their work, but a focus on specificity should not lead
anthropologists to ignore the global framework of indigenous rights,
including international legal considerations now accepted and utilized
in local discourse and praxis.64 As groups around the world adopt the

 59. See, e.g., Klint A. Cowan, International Responsibility for Human Rights Violations
by American Indian Tribes, 9 YALE HUM. RTS. & DEV. L.J. 1, 3-4 (2006) (arguing that
because the U.S. is subject to international human rights norms and American Indian
tribes are a political subunit of the United States, the United States is responsible for
violations of individual rights that take place on tribal lands and has an obligation to
rectify such situations); Kingsbury, supra note 29, at 425-26; Luis Roniger, Citizenship in
Latin America: New Works and Debates, 10 CITIZENSHIP STUD. 489, 500-02 (2006).
 60. See, e.g., Bowen, supra note 52 (arguing that the emphasis on prior occupation and
universality in international law’s definitions is inadequate to fully satisfy considerations
of equality and self-governance and proposing a more locally sensitive analytical
framework instead).
 61. Barnard, supra note 52, at 12.
 62. Id. at 7.
 63. Sidsel Saugestad, Discussion, On the Return of the Native, 45 CURRENT
ANTHROPOLOGY 263, 264 (2004).
 64. Anthropologists who have confronted this crucial issue include JOANNE RAPPAPORT,
INTERCULTURAL UTOPIAS: PUBLIC INTELLECTUALS, CULTURAL EXPERIMENTATION, AND
ETHNIC PLURALISM IN COLUMBIA 64-65 (2005); ANNA LOWENHAUPT TSING, FRICTION: AN
ETHNOGRAPHY OF GLOBAL CONNECTION 205-06 (2005); Tania Murray Li, Articulating
Indigenous Identity in Indonesia: Resource Politics and the Trial Slot, 42 COMP. STUD.
SOC’Y AND HIST. 149, 155-57, 169-70 (2000).
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256 INDIANA JOURNAL OF GLOBAL LEGAL STUDIES 18:1
category of indigenous peoples as a claim to recognition, selfconceptualization
of indigenousness has become crucial to identity
formation and visions of the future. Since the 1960s, when an
epistemological shift took hold, sociocultural anthropologists have
distinguished between how people being studied explain their practices
and beliefs (called “emic” or folk explanations) and how anthropologists
explain those same practices and beliefs (called “etic” or analytical
explanations).65 This division, though important at the time it was
theorized, should be reconsidered. Peoples’ use of the international
discourse of indigenous rights places in question the accepted emic/etic
and folk/analytical dichotomy.
Emic and etic are merely two poles of a continuum in which varying
degrees of self-definition are intertwined with what were previously
purely analytical concepts, such as indigeneity. Just as the imbrications
of global and local reveal transnational and translocal connections
between international and local identities, it is critical that
anthropologists not be dismissive of indigenous as an identity simply
imposed from above, but rather as a process of self-identification. This
provides an opening to consider in a different way the original question
posed in this article: how to honor the long-term struggles for political
autonomy and self-determination of unquestionably indigenous peoples
in the eyes of the world, while at the same time expanding the
definitional heft of indigeneity to encompass those who have come to
self-identify as indigenous more recently.
III. PRODUCTIVE CONTRADICTIONS
When considering a contradiction based on a presumed opposition,
it is often productive to question that opposition, as proposed above
regarding the emic/etic divide. James Clifford suggests reconsideration
of the dichotomous “poles of autochthony (we are here and have been
here forever) and diaspora (we yearn for a homeland).”66 Emphasizing
the varieties of indigenous experience, he sees the displacement and
migration of indigenous peoples as an “uneven, continuum of

 65. See, e.g., PAUL BOHANNAN, JUSTICE AND JUDGMENT AMONG THE TIV 4-6 (Oxford
Univ. Press reprt. 1968) (1957); CLIFFORD GEERTZ, THE INTERPRETATION OF CULTURES 3-
30 (1973); MARVIN HARRIS, THE RISE OF ANTHROPOLOGICAL THEORY:AHISTORY OF
THEORIES OF CULTURE 568-604 (Alta Mira Press updated ed. 2001) (1968); Stanley
Diamond, Anthropology in Question, in REINVENTING ANTHROPOLOGY 401, 423-25 (Dell
Hymes ed., 1972); William S. Willis, Jr., Skeletons in the Anthropological Closet, in
REINVENTING ANTHROPOLOGY, supra, at 121, 126-27.
 66. Clifford, supra note 22, at 205.
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 THE POWER OF DEFINITION 257
attachments.”67 Examples include those who have moved to urban
areas, as well as people who have been expelled or forced to move from
their rooted places, all of whom are “improvising new ways to be
native.”68
At this point, it is useful to return to the question first posed in this
article, how to justify including in the single category of indigenous
peoples both those who have a clear claim to difference and those who
have only recently discovered they have a claim to indigeneity under an
expansive view of indigenous peoples. In considering this question, it is
fruitful to imagine how such new ways of being native as the result of
displacement (to cities, for example) differ from the reconstitution of
indigenous identity by people like those living in the Brazilian
Northeast, who assert their identity without clear evidence of
indigeneity. The first form of displacement is a movement through
space. The second is a movement through time, where there has been a
break in identification with an indigenous past. Both involve a yearning
and desire for place, distant or immediate. Anthropologist Tom Biolsi
has reviewed the varieties of “indigenous political space” in the United
States and described it as one in which Indian people carry “portable
rights beyond reservations” (more Indians live off than on a reservation,
and primarily in urban areas). He analyzes this variety in relation to
the diaspora concept and considers it a form of “indigenous
cosmopolitanism” because its participants do not confine themselves to
indigenous territory but situate themselves both physically and
culturally throughout the national space.69
Under this analysis, time can stand in for space, thus allowing for a
form of temporal diasporic indigeneity. Just as one might consider the
notion of diasporic indigeneity as an alternative way to inhabit
“indigenous political space,” a temporal diaspora might be an
appropriate way to think about those who are reconstituting an
indigenous identity. They base their reconstitution of identity on the
presumed settlement in a particular place in centuries past. The “new”
tribes in Brazil’s Northeast imagine their indigenous roots in a time
before prior generations were decimated by disease, assimilationist
policies, and Catholic Church resettlement of surviving members of
distinct tribes to missions, where they were put to work on the Church’s
land. The term remanescentes (translated variously as remnants,
remainders, or descendants) was used to describe newly reconstituted

 67. Id. at 215.
 68. Id. at 198.
 69. Thomas Biolsi, Imagined Geographies: Sovereignty, Indigenous Space, and
American Indian Struggle, 32 AM. ETHNOLOGIST 239, 248-49 (2005).
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258 INDIANA JOURNAL OF GLOBAL LEGAL STUDIES 18:1
indigenous groups in Brazil from the beginning of the renewal process.70
By recognizing these groups and providing them with land and rights as
Indians, the Brazilian government is recognizing a previously
unacknowledged link to a historical crime committed by the colonial
authorities, the state, and the Catholic Church. This decision, made by
both the state and the church,71 represents the recognition that a “claim
to indigeneity is a claim to justice based not simply on historical priority
but a sense of historical injustice”; such indigenous identities are
“dynamic and processual and rooted in contemporary social relations,
even as [people] invoke an historical perspective to make sense of who
they are.”72 After all, it may be unjust, from a historical perspective, if
the descendants of those who had their identity stolen are denied rights
while those who happened to live beyond the reach of the colonial
powers are unquestionably recognized as indigenous.
Brazil’s solution to this potential injustice came about as an
unintended consequence of the Indian Statute of 1973.73 Brazil’s
military government, which ruled from 1964 to 1985, enacted this law to
regularize property rights in the Amazon region to protect the country’s
outer reaches from invasion by foreigners. The intention of the statute
was to remove Indians from areas that could be developed and to place
them in legally demarcated territories called reservas. Although this led
to the disruption of many of the indigenous peoples in the Amazon, it
also “broke political ground for Indians to stake their claims,” based on
government recognition of the demarcated territories as dedicated to the
Indians resettled there.74 As it turned out, that law not only helped
Amazonian Indians in their demands for demarcation of lands and
provision of resources, it also inadvertently provided an opening for

 70. JOSÉ MAURÍCIO ARRUTI, MOCAMBO: ANTROPOLOGIA E HISTÓRIA DO PROCESSO DE
FORMAÇÃO QUILOMBOLA 80 (2005).
 71. In 1971, Bishops’ Councils of the Catholic Church in the Amazon and the Northeast
issued statements condemning historical and continuing dispossession of indigenous
peoples in Brazil. FRENCH, supra note 1, at 36-37. The following year, the church created
the Indigenist Missionary Council (CIMI), which is still active today supporting groups
throughout the country. Id. at 37.
 72. Andrew Canessa, The Past Is Not Another Country: Exploring Indigenous Histories
in Bolivia, 19 HIST.&ANTHROPOLOGY 353, 355, 367 (2008).
 73. FRENCH, supra note 1, at 25-26.
 74. Seth Garfield, Where the Earth Touches the Sky: The Xavante Indians’ Struggle for
Land in Brazil, 1951-1979, 80 HISP. AM. HIST. REV. 537, 546 (2000). Article 23 of
the Indian Statute of 1973 establishes that “the lands occupied by them in accordance
with their tribal usage, customs and tradition, including territories where they carry on
activities essential for their subsistence or that are of economic usefulness” constitute
territory of the Indians. Estatuto do Índio, Lei No. 6001, de 19 de Dezembro de 1973,
DIÁRIO OFICIAL DA UNIÃO [D.O.U.] de 21.12.1973 (Braz.), available at
http://www.funai.gov.br/quem/legislacao/estatuto_indio.html.
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 THE POWER OF DEFINITION 259
previously unrecognized descendants of “reduced” Indian mission
communities to demand their newly conceived rights as Indians and not
simply remanescentes.
In 1973, for the first time, the term “Indian” was legally defined in
Article 3 of the Indian Statute as follows: “Indian or forest dweller is
every individual of Pre-columbian origin and ancestry who identifies
himself and is identified as belonging to an ethnic group whose cultural
characteristics distinguish him from the national society.”75
Previously, indigenous people in Brazil were referred to as forest
dwellers (silvícolas), with the assumption that there was no need to set
out a definition since the only indigenous groups were isolated
Amazonian tribes, each with its own language and cultural practices.
Although the new definition in Article 3 codified an assimilationist
perspective in following Article 4,76 it also allowed for those of “preColumbian
origin and ancestry” to identify themselves as Indian, so
long as they were “identified as belonging to an ethnic group whose
cultural characteristics distinguish [them] from the national society.”77
Within a decade of its enactment, Article 3 of the statute was being used
independently of Article 4, which defined stages of acculturation and
had taken on a life of its own. In practice, the origin and ancestry clause
of Article 4 has been effectively broadened, in part because of the
universal Brazilian belief that all rural people have some indigenous
ancestry, along with African and Portuguese (and Dutch in the
Northeast).78 Unlike the United States, African ancestry of an
individual does not trump other ancestries, thus allowing each person
certain flexibility in ethnoracial self-identification. In fact, the statute
does not mention racial characteristics as a condition of Indian
categorization. Paradoxically, in light of the spate of recognitions of
peoples who could be classified as “integrated” under Article 4, it is
precisely that article, with its potential and legally permissible
transformation of ethnic Indians into non-Indians, which requires the
origin and ancestry clause of Article 3 to be virtually ignored as a racial
requirement. If some people can cease being Indians, there is no
impediment for others to become Indians. In the twenty-five years since
redemocratization, the assimilationist perspective has been rejected,

 75. FRENCH, supra note 1, at 66-67.
 76. Article 4 contains three classifications of indigenous communities: isolated,
integrating, and integrated, reflecting the policy of the government at the time, which was
to encourage, and even force, assimilation into the general population. If found to be
integrated, the government could declare an entire community integrated into Brazilian
society at the request of its members—this has never been requested. Id. at 198 n.42.
 77. Id. at 66-67.
 78. Id. at 67, 69.
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260 INDIANA JOURNAL OF GLOBAL LEGAL STUDIES 18:1
and indigenous people who move to the city are no longer stripped of
their legal identities as Indians.79 With the newly recognized tribes, the
overall indigenous population has increased dramatically.
Illustrating the power of definition (or lack thereof), in the case of
Brazil, adding a definition performed the same function as excluding a
definition in the Declaration on an international level. Thus, with Brazil
as one example of a broadened definition of indigenous peoples, the
undefined term in the Declaration permits a range of groups existing
along a spatial-temporal continuum to claim indigenous rights.80 In
other words, the newly recognized, previously assimilated, northeastern
Brazilian tribes; peoples in Africa and Asia who would not otherwise
meet a definition that requires European colonization or “firstness” in
time; and those, such as the Roma or Gypsies, who do not have a
homeland (even an imagined one), can all claim indigeneity.
CONCLUSION
So long as there is no restrictive definition, a group could be
recognized as indigenous on an international level because indigeneity
should be “sufficiently flexible to accommodate a range of justifications”
and should not be about a list of characteristics or “firstness.”81 By
looking at indigenous in terms of justifications, rather than
characteristics, it might be possible to recognize as indigenous “groups
[that] draw upon the international concept of ‘indigenous peoples’ in
constructing their own identities.”82 In this way, groups “whose selfconcept
might not have centered on prior possession may come to
identify themselves as indigenous peoples with experiences and

 79. The 1988 Constitution, the first democratically promulgated constitution in
decades, expanded rights of, and protections for, indigenous peoples, but left the 1973
definition in effect.
 80. Of course, one should not take the continuum metaphor too literally. In each case, a
group’s history is marked by varying relationships to a particular space and/or
identifications. I would like to thank environmental and labor historian Tom Rogers for
making this observation.
 81. Kingsbury, supra note 29, at 418. For example, Kingsbury proposes an approach
that “treat[s] historical continuity as an indicator rather than a requirement,” thus
emphasizing a “commonality of experiences, concerns and contributions made by groups in
many different regions.” Id. at 457. This would “establish a unity that is not dependent on
the universal presence of historical continuity,” which traditional analyses have, to date,
almost always considered a justification intrinsic to indigeneity. Id. He argues that such a
justification “does not accurately capture identities and outlooks in some regions not
structured by waves of recent invasion and migration,” specifically India and China. Id. at
456.
 82. Id. at 450.
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 THE POWER OF DEFINITION 261
worldviews shared with other indigenous peoples.”83 Such an approach
is reinforced by the successful assertion by representatives from Africa
and Asia of their status as indigenous in the negotiations leading up to
the adoption of the Declaration and by the recognition of reconstituted
Indian tribes in Brazil.
Firstness in time and place is less important than the common
conditions of people who consider themselves to be indigenous and claim
rights as such. Although a common reaction when discussing this issue
is incredulity that a legal document could lack a definitional section,
upon further reflection, it becomes apparent that a lack of definition can
serve as a suture, an impetus for common struggle. Further, the success
of peoples currently self-identifying as indigenous, in being accepted by
the international community, should be more fully incorporated into
anthropological analyses of identity formation, especially as this success
is connected to supranational and state entities and practices. In fact,
the decision to exclude a definition from the Declaration brings that
document closer to an anthropological perspective on cultural practices
and identity formation.84 Working to understand how particular
indigenous peoples incorporate their new global indigenous identity will
enhance both international legal and anthropological scholarship and
allow those whose interests are most at stake to be given opportunities
to participate in definitional discussions tied to rights and resources.

 83. Id.
 84. See Jan Hoffman French, Making Identity: Law, Memory, and Race in Comparative
Perspective in RACE, ROOTS & RELATIONS: NATIVE AND AFRICAN AMERICANS 248 (Terry
Straus ed., 2005) (comparing the use of blood quantum for determining Indian identity in
the United States and the use of cultural indicia and self-identification in Brazil).
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