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 The Role of Collective Rights in the Theory of
Indigenous Peoples' Rights

Allen Buchanan"

I. The Advent of the Indigenous Peoples' Rights

Movement and its Challenge to the Theory and
Practice of International Law ....................................... 90
II. The Prominence of Collective Rights in the
Indigenous Peoples' Rights Movement ........................... 91
III. The Distinction Between Individual and Collective
Rights: Types of Collective Rights ..................................... 93
A. Collective Rights in the Strong Sense ................... 93
B. Dual-Standing Collective Rights .......................... 94
IV. Collective Land Rights ................................................ 95
A. Liberalism and Individual Rights ....................... 95
B. Limiting Property Rights .................................... 95
C. Two Types of Collective Land Rights:
Collective Property Rights and
Collective Land Regulatory Rights ...................... 96
D. The Political Significance of the Two Types
of Collective Land Rights ................................... 99
E. Self-Determination and the Justification
of Demands For Collective Land Rights .................. 100
F. Individual Rights as Safeguards for
Collective Rights .................................................. 104
V. The Relationship Between Collective Land Rights
and the Right to Self-Determination ................................. 106
VI. The Compatibility of Collective and Individual Rights ........ 107

Grainger Professor of Business Ethics, Professor of Philosophy, and Professor of

Medical Ethics, University of Wisconsin-Madison. I am grateful to S. James Anaya
for his astute comments on an earlier draft of this paper.
90 TRANSNATIONAL LAW & CONTEMPORARY PROBLEMS [Vol. 3:89

I. THE ADVENT OF THE INDIGENOUS PEOPLES' RIGHTS

MOVEMENT AND ITS CHALLENGE TO THE THEORY AND
PRACTICE OF INTERNATIONAL LAW

The indigenous peoples' rights movement is perhaps the most

striking development in the theory and practice of international law
since the United Nations issued the Universal Declaration of Human
Rights in 1948.1 Two important thrusts of the movement may be
distinguished. The first is that indigenous peoples are steadily
gaining recognition as a distinct class of human beings with special
legitimate interests-interests requiring special domestic and
international legal regimes and political institutions.
It has widely been observed that colonizing groups around the
world augmented their material power over indigenous peoples by
imposing ideologies. A common element in colonial ideologies is the
attitude that all indigenous peoples, regardless of their cultural and
political differences, are "mere natives"-all equal in their
inferiority to their colonial masters. The indigenous peoples' rights
movement, building upon insights of the anti-colonialist movements
of the 1950s and 1960s (especially in Africa), has reversed this
rhetorical sleight of hand, emphasizing the solidarity of diverse
indigenous peoples-solidarity based upon their common
aspirations and common grievances-while recognizing the
multiplicity of indigenous cultures. Groups as culturally diverse and
geographically separated as the Samis of Scandinavia and the
Miskito of Central America now combine forces in the pursuit of
fundamentally similar goals, under the banner of the indigenous
peoples' movement. In the past, indigenous peoples fought isolated
battles against the settler states that dominated them. Today,
international networks of indigenous peoples' advocates are
becoming a force to be reckoned with, in the domestic law and
politics of many countries, from Canada and the United States to
Nicaragua and New Zealand, as well as in the United Nations.
Indigenous peoples have secured standing to speak with their own
voices in the major fora in which international law is made. No
longer are they held captive by the traditional conception that only
states have standing under international law.
The second major thrust of the indigenous peoples' movement
goes beyond a recognition of the status of indigenous peoples as

1. Universal Declarationof Human Rights, G.A. Res 217 A, at 71, U.N. Doc. A1810
(1948). [hereinafter UniversalDeclaration].For a valuable introduction to the history
of the indigenous peoples' rights movement, see HURST HANNUM, AUTONOMY,
SOVEREIGNTY, AND SELF-DETERMINATION: THE ACCOMMODATION OF CONFLICTING
RIGHTS 74-103 (1989).
Spring 1993] ROLE OF COLLECTIVE RIGHTS

distinct subjects of international law. It is the growing recognition of

various rights of indigenous peoples under domestic and
international law as the most effective means of protecting and
advancing the distinctive, legitimate interests that are the basis of
the solidarity of diverse indigenous peoples.

II. THE PROMINENCE OF COLLECTIVE RIGHTS IN THE

INDIGENOUS PEOPLES' RIGHTS MOVEMENT

The most revolutionary element in the discourse of the

indigenous peoples' movement is the emphasis on collective rights.
With the exception of an ill-defined, selectively applied, and highly
controversial "right of self-determination of all peoples," 2 the rights
that have hitherto been recognized in international law, other than
the traditional rights of states, almost exclusively have been
individual rights. (A significant, but short-lived exception was the
"minority cultural rights" recognized by the Minorities Treaties
System that emerged after the First World War, which fell into
disrepute and disuse by the outbreak of World War II). 3 The
Declaration of Universal Human Rights itself recognizes no
collective rights. Thus, the focus on collective rights of indigenous
peoples constitutes a fundamental challenge to the core normative
assumption of post-Second World War international law: that a
regime of individual human rights is sufficient for achieving an
acceptable international legal order.
Perhaps most prominent among the collective rights claimed by
indigenous peoples are collective land rights. Collective land rights,
in particular, are sometimes regarded as a disturbing challenge, if
not a profound threat, to settler regimes founded on individual
property rights.
Yet the concept of collective rights and its role in the indigenous
peoples' movement is itself unclear, as is the relationship between
collective and individual rights. Until greater clarity is achieved, the
suspicion will persist that the basic goals of the indigenous peoples'
rights movement are at odds with the basic normative framework
supporting the theory and practice of international human rights.
The most fundamental and uncontroversial rights listed in the
4
Universal Declaration of Human Rights-such as the right to life,

2. For an excellent account of the conceptual vagaries and inconsistent

applications of the principle of self-determination, see W. OFUATEY-KODJOE, THE
PRINCIPLE OF SELF-DETERMINATION IN INTERNATIONAL LAW (1977).
3. It can be argued that the notion of minority rights has recently begun to
resurface in international law. See HANNUM, supra note 1, at 50-73.
4. Universal Declaration,supra note 1, art. 3.
92 TRANSNATIONAL LAW & CONTEMPORARY PROBLEMS [Vol. 3:89
the right to freedom of expression, 5 and rights of legal due
process 6 -are rights of individuals to protections against
collectivities (especially governments). Hence, the very concept of
human rights appears to be fundamentally individualistic.
Moreover, the basic values usually invoked to ground these
individual human rights are also individualistic: human rights
protect the individual's freedom, opportunity, and welfare. (Even the
rights to freedom of association and religion, whose exercise
facilitates participation in groups, are ascribed to individuals and
are usually justified by noting the importance for individuals of
participation in religious and cultural groups). 7 But if this is so,
what is to be made of the claim, so vigorously voiced by advocates for
indigenous peoples, that the collective rights they endorse are
human rights? Can the collective rights claimed by indigenous
peoples be integrated into the general moral framework that
supports individual human rights?
Another tension becomes apparent when one juxtaposes the
universality of the human rights proclaimed in the Universal
Declaration with the particularity of proposed indigenous rights.
Human rights, by definition, are those which accrue to all human
beings simply as human beings, regardless of their particular
history or culture. But, the whole point of recognizing a separate
category of indigenous rights is to stress the special needs and
interests of indigenous peoples as a distinctive sub-class of
humanity. On the one hand, practicality requires that indigenous
peoples express their aspirations and voice their grievances in the
most powerful moral and legal rhetoric available-the discourse of
human rights. On the other hand, the central contention of
indigenous peoples is that existing human rights discourse, in part
because of its abstract, individualistic character, cannot adequately
serve their cause.
The aim of this essay is to further the process of developing a
conceptually coherent and practically potent theory of indigenous
peoples' rights. To do so, I will attempt (1) to clarify the distinction
between individual and collective rights, sorting out ambiguities in
the notion of collective rights; (2) to articulate and evaluate several
different justifications for recognizing collective land rights for
indigenous peoples; and (3) to clarify the relationship between
collective land rights and the right of self-determination. Finally,
when these tasks are completed it will be possible (4) to examine the
relationship between indigenous peoples' collective rights and
individual human rights.

5. Id. art. 19.

6. Id. arts. 10, 11.
7. WILL KYMLICKA, LIBERALISM, CULTURE, AND COMMUNITY (1989).
Spring 1993] ROLE OF COLLECTIVE RIGHTS

III. THE DISCTINCTION BETWEEN INDIVIDUAL AND

COLLECTIVE RIGHTS: TYPES OF COLLECTIVE RIGHTS

Collective rights may be contrasted with individual rights as

follows: individual rights are ascribed to an individual, who can
wield the right independently, in his or her own name, on his or her
own authority.8 That is, the individual, as an individual, has
standing to exercise the right (as one exercises the right to free
speech by speaking in public or writing for publication) or to invoke
the right to make a claim or express a grievance (as when one's
right is infringed) or to waive the right (as with the right to legal
counsel). An individual right can only be wielded (exercised, invoked,
or waived) by the individual possessor of the right, and he or she can
wield it only on his or her own behalf.9

A. Collective Rights in the Strong Sense

In contrast, a right is a collective right if it can be wielded

(exercised, invoked, or waived) in either of two different ways, both of
which may be called nonindividualistic. First, some rights that are
called collective can only be wielded (exercised, invoked, or waived)
nonindividually: individuals, as such, have no standing with regard
to the right. No individual acting as an individual, that is, on his or
her own authority and in his or her own name without authorization
from others, can exercise, invoke, or waive the right. Instead, the
right, if it is a collective right in this first sense, can only be wielded
(a) by a group through some collective decision process (majority
rule or a consensus process) or (b) by some agent (or agents) that
wield(s) the right for the group (that is, by representatives or leaders
of the group). Collective rights of this first type may be called
collective rights in the strong sense, to emphasize that individuals, as
such, cannot wield them.
Examples of collective rights in the strong sense are the various
rights of self-government already exercised by nearly all American
Indian tribes and Canadian Indian bands. Such rights can only be
wielded nonindividually, either collectively, through majoritarian
tribal voting processes, or by agents of the group, through hereditary
or elected tribal leaders. No individual, as an individual, acting

8. The following discussion of the distinction between individual and collective

rights and of the different types of collective rights is drawn in part from Allen
Buchanan, Liberalism and Group Rights, in IN HARM'S WAY: ESSAYS IN HONOR OF
JOEL FEINBERG (Jules L. Coleman & Allen Buchanan eds., forthcoming 1993)
[hereinafter Group Rights].
9. This is the case unless the individual is a minor or is mentally incapacitated in
such a way as to make her incapable of wielding the right.
94 TRANSNATIONAL LAW & CONTEMPORARY PROBLEMS [Vol. 3:89
solely in his or her own name and on his or her own authority, can
wield such a right.

B. Dual-StandingCollective Rights

There is a second type of right which is sometimes, rather

confusingly, referred to as a collective right. Any individual who is a
member of the group can wield this right, either on his or her own
behalf or on behalf of any other member or members of the group,
and the right may also be wielded by a collective mechanism or by an
agent or agents of the group. Such rights may be called dual-
standing collective rights, to signal that they may be wielded either
by any individual in the group, or nonindividually by a collective
decision process or by an agent or agents of the group. An example of
a dual-standing collective right is the right to engage in cultural or
religious ceremonies and to wear cultural dress. If a group enjoys
this collective right, then any individual in the group has standing to
invoke the right if his or her own freedom to participate in these
ceremonies is infringed or if the freedom of any other member of the
group to participate is infringed. Invocation of the right by private
individuals in the group (in response to an infringement of her own
or others' freedom as protected by the right) does not preclude an
invocation of the right by some authorized agent or agents speaking
*for the group (for example, the priesthood).
Even though dual-standing collective rights share one feature
with individual rights-the fact that individuals as individuals can
wield them-there is a crucial difference: if a right is an individual
right, only the one whose right is infringed can invoke the right. 10
Any member of a cultural or religious group that has a dual-
standing right to cultural ceremonies can invoke the right, even if
that particular individual has not suffered any interference.
From these definitions, it should be clear why collective rights, of
both sorts, are extremely beneficial for indigenous peoples. All rights
of self-government are collective rights in the strong sense, not
individual rights, and rights of self-government are usually
necessary if indigenous peoples are to be able to protect and control
the development of their distinctive 'cultures and to guard against
being victims of more flagrant injustices at the hands of the
dominant culture. Dual-standing rights are also important, because
there is clearly an advantage, from the standpoint of protecting a
minority culture, if each member of the group has standing to invoke
the right when any member's right is infringed. Allowing the right
to be wielded either by individuals as such or by official agents of the
group adds flexibility and power to the right. In sum, both collective

10. If he or she is a legally competent individual, as opposed, say, to a minor.

Spring 1993] ROLE OF COLLECTIVE RIGHTS

rights in the strong sense (such as rights of self-government) and

dual-standing collective rights (such as the right to freedom in
cultural activities) add important protections for the interests of
indigenous peoples that exceed those available through exclusively
individual rights.

IV. COLLECTIVE LAND RIGHTS

A. Liberalism and Individual Rights

Collective land rights are among the most insistent demands of
indigenous peoples-and perhaps are perceived to be the most
threatening to existing states. Moreover, some have assumed that
the recognition of collective rights to land is especially problematic
within what may loosely be called the liberal view of legal and
political institutions. It is definitive of Liberalism to place a primary,
if not an exclusive value, upon individual rights, while generally
viewing collectivist values with suspicion. In addition, Liberalism
has, since its inception, emphasized the fundamental importance of
individual rights to property, including land.

B. Limiting PropertyRights
It is, of course, true that Modern Welfare State Liberalism, unlike
its predecessor, Laissez-Faire Liberalism, acknowledges the need for
significant limitations on individual property rights. Nonetheless,
Liberalism in all its varieties emphasizes the importance of the
individual having independent access as an individual to property,
both as an important sphere of liberty in itself, and as a safeguard
against the unbridled political authority that endangers all
dimensions of individual liberty.
Accordingly, collective rights to land-at least so far as these are
basic and not created through the exercise of individual rights-may
be seen by some as incompatible with the liberal-individualist
political philosophy that most settler states at least officially embrace
and which is thought to underlie the Universal Declaration of
Human Rights, as far as this philosophy is limited to individual
rights. To determine whether these suspicions are grounded, one
must become clearer about what is meant by 'collective land rights'
and what the justification for such rights is supposed to be.

C. Two Types of Collective Land Rights: Collective Property Rights

and Collective Land Regulatory Rights

Generally, property rights are best conceptualized as bundles of

96 TRANSNATIONAL LAW & CONTEMPORARY PROBLEMS [Vol. 3:89
legal powers, liberties, and immunities.1 1 Similarly, there is no one
bundle of legal powers, liberties, and immunities that corresponds to
the label "collective land rights."
It is crucial to distinguish two extreme ends of a broad spectrum
of forms and degrees of collective control over land which are
sometimes referred to as collective property rights. At the one
extreme, there is the collective analog of individual private property
rights to land. These may be called collective property rights. At the
other extreme, there are various forms of collective rights to regulate
the use and development of land and the resources it contains. These
may be called collective land regulatory rights. The latter sort of
collective land rights are, of course, not peculiar to the indigenous
peoples' movement: they are the rights claimed by all territorially-
based political units, from municipalities to states (or provinces) to
federations. The range of regulatory rights concerning land is
indefinitely large, including rights to undertake public works on the
land, to tax certain assets or transactions involved in the sale or
development of land, to regulate the use of natural resources, to
control patterns of settlement in land development, and, in the most
extreme case, even to establish forms of land ownership. Land
regulatory rights presuppose a definite territory within which they
are to be exercised-a jurisdiction within which they are valid.
It should be noted that land regulatory rights can be shared
among groups. For example, in the James Bay and Northern Quebec
Treaty of 197512 the indigenous peoples of the northern portion of the
Canadian Province of Quebec were accorded rights to participate
(along with the Provincial Government) in the development of
policies and regulations concerning the development of the region.
Property rights to land, whether individual or collective, exist
within and are created or recognized by political units. Jurisdictions
are the areas over which political units have authority. Within its
jurisdiction, a political unit may recognize individual or collective
property rights to land, or, as is usually the case, both.
The political implications of assertions of collective property
rights and of collective land regulatory rights are obviously quite
different. The latter can challenge the sovereignty of states within
which they are asserted in ways in which the former need not.
Whenever a group presses for recognition of its land regulatory
rights, it necessarily claims some limitation on the authority of the
political unit within whose jurisdiction the land in question lies. In

11. JEFFRIE G. MURPHY & JULES L. COLEMAN, PHILOSOPHY OF LAW: AN

INTRODUCTION TO JURISPRUDENCE 196-98 (rev. ed. 1990).
12. James Bay and Northern Quebec Agreement and Complementary
Agreements, Quebec: Les Publications du Quebec, 1991.
Spring 1993] ROLE OF COLLECTIVE RIGHTS

contrast, when a group claims a collective property right, it need not

thereby claim any limitation on the regulatory rights of the political
unit within which the land in question exists, at least so long as this
form of property right is recognized in that unit's jurisdiction.
In spite of these differences, there is something that both
regulatory land rights and collective property rights have in
common: they are collective rights in the strong sense. Collective
land rights, then, are not rights which individuals, as individuals,
can wield. They must be exercised, invoked, or waived
nonindividually, either by the group as a whole by some sort of
collective decision process or by authorized agents of the collective.
As rights to land, they are legal mechanisms of control over land
and its uses. An indefinite range of forms and degrees of control is,
in principle, possible.
It is important to understand that collective land rights of both
sorts not only can empower the indigenous group and limit the
control which individuals and governments in the nonindigenous
society have over the land and its uses; they also create authority
which limits the liberty and opportunity of individuals and
minorities within the indigenous group. Collective land rights
confer control upon the group or its supposed representatives; in
doing so, they limit the control which individuals in the group have
over land.
Collective land rights, then, like all collective rights in the strong
sense, carry certain risks as well as benefits. If the collective right is
wielded by the majority through some sort of democratic process,
there is the possibility that the control it creates may be used to the
detriment of certain individuals or minorities within the group.
To take the simplest case, consider a collective property right in
land. If this collective right is wielded by an agent or elite
(supposedly on behalf of the group as a whole), there is the danger
that those who control the use of the right will use it on their own
behalf or according to their estimate of the common good, rather
than in ways that actually are to the benefit of all group members.
Partly because direct participatory democracy is cumbersome and
suffers from exorbitant time and information costs, representative
democracy or some more hierarchical authoritative structure for
wielding the collective land right is likely to be utilized. But any such
arrangement involves disparities of power between those who wield
the authority and those that do not, and hierarchy always runs the
risk that those at the top will develop their own distinct interests, to
the detriment of those below.
Even when the exercise of a collective land right is genuinely
democractic in the strongest, most direct participatory sense, it is
still true that those who vote in the minority do not in fact exercise
control over what is done with the land. The same is true for
98 TRANSNATIONAL LAW & CONTEMPORARY PROBLEMS [Vol. 3:89
consensual decision-making, as long as consent is not virtually
unanimous.
Collective rights in the strong sense, including collective land
rights, necessarily subordinate individuals and minorities to the
decisions of others, since such rights empower the group (or, more
accurately, a majority of the group or the group's supposed
representatives or agents), but at the cost of limiting the liberty and
opportunities of individuals in the group. And wherever a right is
wielded by some allegedly on behalf of others, there are dangers.
If an indigenous group enjoys a collective property right over
some of the land on which its members reside, then individual
members of the group are not free to buy or sell that land and to use
the proceeds of such sales to pursue goals they find valuable. Any
collective right to the land necessarily limits individual group
members' liberty regarding control of the land. But how extensive
the restrictions on individual members' ability to determine what
happens to the land will depend upon the nature of the collective
property right.
The most extreme type of collective property right is a right of the
group to complete control over all the land in question. This would be
the collective analog of the strong, virtually unlimited individual
private property right championed by Laissez-Faire Liberalism.
Such a right is not compatible with any individual private property
rights in land whatsoever for members of the group, unless
individuals are allowed to hold land as private property outside the
area the group occupies. To distinguish it from less extreme forms of
collective property rights, we may call this a pure collective property
right.
If all land occupied by group members is subject to a pure
collective property right, then no individual or minority within the
group has independent access to any of that land. Under such an
arrangement-the most extreme case of collective property rights-
individuals and minorities within the group would be as vulnerable
as individuals and minorities were in the State Socialist systems
which have so recently disintegrated in the Soviet Union and Eastern
Europe, unless they had access to property rights elsewhere. If land
is a crucial productive resource, then any individual who has access
to it only if others choose to allow her to have access is at the mercy of
those who are in control. The dangers of collective rights in the
strong sense, described above, are obviously greatest with respect to
this extreme type of collective land right. A less extreme form of
collective land right would exist where the group held some land in
common (for example, some communal agricultural plots or forest
areas), but recognized rights to individual property as well.
Similarly, collective land regulatory rights may be more or less
extensive. The recognition of this second type of a collective land
Spring 1993] ROLE OF COLLECTIVE RIGHTS

right is simply the acknowledgement that the group, as a political

unit possessing some powers of self-government, has some
significant authority to regulate the use and development of the land
in question. In that sense, land regulatory rights presuppose-or
rather help constitute-rights of self-government.

D. The PoliticalSignificance of the Two Types of Collective Land

Rights

The crucial difference between the two types of collective land

rights is that such land regulatory rights are compatible with the
existence of extensive individual property rights within the
jurisdiction. For example, the United States has land regulatory
rights over all the territory within the United States (though this
form of control is limited by the various states' regulatory rights, by
the much more limited regulatory rights of Indian tribes, and by
individual property rights). It does not have a collective property
right to all land within its borders.
Discussions of indigenous land rights rarely even allude to this
important distinction between the two types of collective land rights.
Yet, clearly there is a great difference. The demand for collective
regulatory rights is one of the most important dimensions of self-
government. As such, it is no more problematic in principle than the
rights which all recognized political units currently enjoy. In that
sense, the demand for collective land regulatory rights in no way
challenges the basic conceptual framework of domestic or
international law. Nevertheless, the demand for collective land
regulatory rights does challenge the current distribution of political
power insofar as it entails a limitation on the authority of settler
states and on the freedom of private interests seeking to develop land
occupied by indigenous peoples. For this reason, international law
has been reluctant to recognize land regulatory rights for indigenous
peoples.
Demands for land regulatory rights, like demands for powers of
self-government generally, must be distinguished from demands for
full sovereignty, that is, independent statehood. In many cases full
sovereignty-even if this could be attained-would not be desirable
for indigenous groups. Due in part to past injustices perpetrated by
colonizers and their heirs, many indigenous groups would lack the
resources to sustain complete political independence, given the
realities of today's world economy.
A demand for pure collectivist property rights is, in one sense,
more radical than a demand for regulatory land rights. It insists on
recognition of a particular and controversial kind of economic
regime, in which all land is held collectively, with no opportunities
for individual ownership of land.
100 TRANSNATIONAL LAW & CONTEMPORARY PROBLEMS [Vol.3:89
It is worth repeating that this extreme form of collective property
right is not the only alternative. Collective property rights for an
indigenous people can be much less restrictive than a pure collective
property right. For example, an indigenous group, through its
elected or hereditary leaders, might institute a land-use regime
which allowed individuals or sub-groups rights of ownership over
some or all of the land, but which placed some significant
restrictions on the uses to which individually-owned land could be
used or upon the.rights of individuals to sell land. More specifically,
the indigenous group's government might allow sales of land among
13
members of the group but prohibit sales to non-members.
Thus, the statement that a group possesses land regulatory
rights tells us only that it is a distinct political unit with some
powers of self-government within a territory. It tells us nothing
about what sort of property rights regime, purely individual, purely
collective, or mixed, exists within that territory. Nor does it tell us
whether the group that enjoys these regulatory rights has the
authority to choose whichever property rights regime it prefers.
Advocacy of regulatory land rights for indigenous peoples, then, is in
itself silent on the issue of whether collectivist property regimes
should be recognized within the territories over which indigenous
groups exercise these rights.

E. Self-Determination and the Justification of Demands For

Collective Land Rights

When indigenous peoples press for collective land rights they

frequently do so under the banner of the "right of self-determination."
The difficulty, which we will explore in more detail in the next
section, is that the demand for "self-determination" for indigenous
peoples is seriously ambiguous. On the one hand, it may merely be a
demand for some, perhaps quite limited, powers including land
regulatory rights. On the other hand, it may be nothing less than an
indigenous peoples' demand for their own fully sovereign state and
hence, in effect, a declaration of secession. Yet a third possibility, is
that in asserting collective land rights a group is demanding what I
have called a collective property right to some or all of the land they
currently occupy or occupied in the past.
With an appreciation of the ambiguity of the term 'collective land
rights' and the broad range of forms and degrees of control over land
to which this term is promiscuously applied, we are in a better
position to address our central normative concern: what justification
is there for recognizing or establishing collective land rights for

13. ALLEN BUCHANAN, SECESSION: THE MORALITY OF POLITICAL DIVORCE FROM

FORT SUMTER TO LITHUANIA AND QUEBEC 74-81 (1991).
Spring 1993] ROLE OF COLLECTIVE RIGHTS .101

indigenous peoples and are such justifications consistent with the

normative framework that supports individual human rights? We
can now see that different justifications are appropriate for different
types of 'collective land rights.' In fact, there are at least three
different justifications that can be given for 'collective land rights'
for indigenous peoples. Each must be articulated and evaluated,
with an eye to which type of collective land right they might be used
to justify.
The first and most obvious justification for recognizing an
indigenous peoples' collective land right occurs in the context of
historical land disputes. For example, when an Indian tribe or band
goes to court to recover land taken in violation of a treaty, recognition
of the group's collective property right to the land in question is
justified as the logical initial step in a process of rectifying a past
unjust taking. If the land was taken at a time at which the group
had no individual ownership of land, then it would make no sense
for current individual members of the group to press initially for
rights to land as individuals. But even if there were individual
ownership of land at the time of the unjust taking, it may be
impossible to link particular current group members (via rules of
inheritance) with particular individuals in the group who suffered
the unjust taking of their land at the earlier date. In either case, the
only plausible first step in the process of rectification may be to seek
recognition of the group's right to the land. But to acknowledge that
recognition of a collective land right is the appropriate first step in
rectification tells us nothing about what the ultimate disposition of
the recovered land should be. By exercising its powers of self-
government, the group might, after recovering the land, decide to
allocate it to individuals as their private property. 14 On the other
hand, the group might decide to establish a permanent collective
property right to the land. In this first context in which collective
land rights for indigenous peoples are demanded, the justification
for recognizing a collective property right is that this is the initial
step in the rectification of a past unjust taking of territory.
The second type of justification for recognizing an indigenous

14. It should be emphasized that rectification of the past unjust taking of a certain
territory may not always require that the particular piece of land be restored to the
indigenous people from whom it was taken. In some cases compensation for the
orignal loss might be achieved by substituting another piece of territory. However, it
would be a serious mistake-and would compound the original injustice-to assume
that any piece of land of equivalent market value must be accepted as compensation by
the indigenous group. This assumption fails utterly to take into account that indigneous
peoples typically have special attachments to particular territories. Any adequate
theory of rectificatory justice must accommodate the special spiritual relationship
which indigenous peoples typically have to the land they have occupied. I am indebted
to Chris Griffin for this point.
102 TRANSNATIONAL LAW & CONTEMPORARY PROBLEMS [Vol. 3:89

group's collective land rights also pertains to rectificatory justice,

but in a quite different way. In some cases, when indigenous peoples
insist on collective land rights, they are demanding the restorationof
a collective property rights system that was destroyed or significantly
damaged by colonial conquest. Implicit in their demand is the
contention that they were a sovereign people at the time of conquest
and that, as such, they had the right to determine the type of
property rights regime under which they were to live.
If, as seems to be the case, collective property in land was a
feature of most indigenous societies at the time of colonial intrusion,
then this second type of rectificatory justice argument is a powerful
justification for recognizing collective land rights for indigenous
peoples. It is another matter, of course, as to whether indigenous
peoples who have a right to the restoration of their collective property
rights system ought, in fact, to try to undertake such a restoration,
or whether their current and future interests would be better served
by adopting institutions of property, including individual ownership
of land, that are significantly different from those within which their
ancestors operated. 15 This second justification appeals to the moral
principle of rectificatory justice, along with the historical claim that
indigenous groups enjoyed sovereignty prior to colonial intrusion, to
support a collectivist land right system, not as an initial step in
rectification, but as the ultimate goal of the process of rectification.
The third justification for collective land rights is purely
instrumental in character. Here collective land rights are seen as a
necessary means for protecting imperilled indigenous cultures. The
instrumentalist justification has two important factual premises:
first, that preservation of the indigenous group's culture depends
upon maintaining a territory in which the indigenous group is the
dominant or sole population; and second, that creation of a collective
land right to that territory is necessary for ensuring that the
indigenous group will be the dominant or exclusive population of
that territory.
There are several considerations that might support the first
factual premise. The territory in question might contain important
religious sites that are vital to the preservation of the culture. In
addition, a spiritual relation to the land as a whole may be an
important element of a people's way of life. Finally, it may simply be
the case that the culture cannot survive unless the group's
membership is concentrated within a territory, because the viability
of certain cultural practices or economic activities central to the
culture requires a critical population mass.
The second factual premise holds that a concentration of the

15. Allen Buchanan, The Right To Self-Determination:Analytical and Moral

Foundations,8 ARIz. J. INT'L & COmP. L. 41, 50 (1991).
Spring 1993] ROLE OF COLLECTIVE RIGHTS

group's members adequate for preserving the group's culture will

not be maintained unless the group has a collective land right to the
territory. More specifically, unless the group (through its leaders or
representatives) can exercise control over the use of the land, and in
particular over transactions regarding its sale, economic incentives
may result in individual members of the group selling parts of the
land, leaving, and being replaced by individuals who are not
members of the group and whose presence will erode the culture.
Which of the two types of collective land rights the
instrumentalist justification supports will vary, depending upon the
context. In some cases, it may be possible for an indigenous group to
protect its culture by securing collective land regulatory rights; in
others, collective property rights might be required.
Some may question whether an argument that justifies collective
rights as being necessary instruments for the preservation of a
culture is really compatible with the liberal emphasis on the liberty,
well-being, and opportunity for individuals which provides the
normative foundation for individual rights. The appearance of
incompatibility disappears, however, once we examine why it is
important to preserve the culture. From the standpoint of a broadly
liberal normative framework, in which it is ultimately the well-
being, liberty, and opportunity of individuals that counts morally,
cultures are worth preserving because of the value of cultural
membership for individuals.
Cultural membership is important for individuals for two main
reasons. First, the culture provides individuals with a meaningful
context within which to choose which goals to pursue. The culture
does this by presenting a more or less definite range of options-
occupational choices, types of personal relationships, social roles,
etc.-and by instilling a sense of values that helps the individual
make sense of and find meaning in her own existence. Second, it is
simply a fact about human beings-and a very profound fact-that
the vast majority of them find participation in cultural communities
to be an important constituent of their well-being. So, both as a
context for choice and as an intrinsic good that is an important
ingredient in human flourishing as most people conceive it, cultural
membership is very valuable.' 6 Once the importance of cultures for
individuals is appreciated, there is no fundamental incompatibility
in recognizing both individual rights and collective rights when the
latter are necessary to preserve indigenous cultures.
This third justification for collective property rights for
indigenous peoples is distinct from the first and second. It rests
solely on the idea that such rights are instrumental and necessary
for preserving an indigenous culture and does not rely either on the

16. BUCHANAN, supra note 13, at 52-56.

104 TRANSNATIONAL LAW & CONTEMPORARY PROBLEMS [Vol. 3:89

assumption that the collective property right to land is the initial step
in rectifying a past, unjust taking of land or on the assumption that
recognizing a collective property right is simply a matter of restoring
a pre-colonial property rights system.
If the instrumentalist justification is marshalled to support a
collective property right (as opposed to a collective land regulatory
right), then an additional, more controversial normative premise is
required: namely, that the goal of preserving the group's culture is
of sufficient moral weight to justify a collective property right to the
land, even though such a right necessarily precludes individuals
from having independent control over land.

F. Individual Rights as Safeguards for Collective Rights

The presence of institutions to establish certain familiar

individual rights for group members can reduce the risks associated
with collective rights in the strong sense and make the limitations
they impose on individual liberty acceptable. 1 7 The problems
inherent in collective rights in the strong sense, including collective
property rights to land, can be ameliorated if these collective rights
are embedded in a framework of appropriate individual rights. The
most important of these individual rights are the rights to freedom of
expression, freedom of association and assembly, and the right to
participate in political processes (including the right to vote on
important issues concerning the exercise of collective rights). A few
examples will illustrate how individual rights of these sorts can
reduce the risks of collective rights in the strong sense.
If empowering an individual or sub-group (for example, tribal
leaders) to wield a right for the group is to be tolerable, there must be
some effective mechanisms for increasing the probability that those
who wield the right will be well-informed about the interests and
preferences of the rank-and-file. Mechanisms for holding them
accountable for their conduct are also needed. Individual rights to
freedom of expression, of assembly, and of association can serve this
function. These individual rights are important in any case, but they
are especially vital if individuals lack the right to participate as
equals in a process of selecting those who will wield the collective
right for the group. In such situations, they may provide the only
means for criticizing and controlling the elite who wield the
collective right.
Even in situations in which the elite who are to wield the group
right are chosen through a democratic process to which all
members have equal access, individual rights can contribute

17. Group Rights, supra note 8.

Spring 1993] ROLE OF COLLECTIVE RIGHTS

significantly to the quality of the selection process. By exercising

their rights to freedom of expression, assembly, and association,
individuals can inform each other about the candidates'
qualifications and motivations and help to build a majority
consensus as to which of them would be most trustworthy and
effective as agents who are to wield collective rights on behalf of the
group.
If the collective right is to be wielded not by an elite, but instead
through a majoritarian or consensual procedure, individual rights
can again play an extremely important role. Among the most
important individual rights in this regard are not only the right to
participate as an equal in the decision-making procedure (for
example, the right to an equal vote or to speak at assemblies at which
consensus is sought), but also other supporting rights, including the
rights to freedom of expression, assembly, and association. These
rights are needed to ensure that political equality is more than
merely formal and to improve the quality and extent of information
that is utilized in the political process.
In the case of collective property rights to land, other individual
rights are also necessary: in particular, the right to own land
outside the area over which the collective land right is exercised and
the right to exit from the group's territory without excessive costs. In
Canadian and U.S. Indian law individual tribal and band members
do, in fact, enjoy these rights. Whether or not they are able to exit the
tribal system, thus escaping limitations which they find
unacceptable, without incurring excessive costs, is doubtful at best.
More extensive subsidies for education, training, and investment to
start businesses or purchase property outside the tribal system could
do much to make the exit option more viable.
In sum, the ability to exit the group's territory and to participate
in a system that allows more extensive individual property rights in
land in the larger society, along with the right to return to the group
without losing all of one's rights as a member of the group, go a long
way toward offsetting the disabilities which collective land rights
impose on individual group members. Embedding collective land
rights in a framework of individual rights can reconcile the former
with the respect for individual liberty which supports the latter.

V. THE RELATIONSHIP BETWEEN COLLECTIVE LAND RIGHTS

AND THE RIGHT TO SELF-DETERMINATION

The relationship between the concept of self-determination and

that of collective land rights is complex. In part, this is because of
the notorious ambiguity of the notion of self-determination itself.
Previously, I have argued that it is more fruitful to speak of self-
106 TRANSNATIONAL LAW & CONTEMPORARY PROBLEMS [Vol. 3:89
determination as an ideal or to speak of groups as having a
legitimate interest in self-determination, than to use the phrase
'right to self-determination,' which suggests greater precision than
is available. 1 8 The main point is that self-determination-which
means roughly, independence from domination-admits of degrees
and a multiplicity of dimensions, and can take many institutional
forms. The range of options, however, is limited by a simple but
important fact: no group and no political unit can expect to be
entirely free of all external influences. Therefore self-determination,
as a realistic goal, cannot consist of complete autonomy.
Self-determination in its most extreme form is simply full
sovereignty, that is, independent statehood. (Even what we call 'full'
sovereignty is not complete autonomy, since even independent states
are limited both by international law, including human rights law
and international trade agreements, and by every state's liability to
be influenced by forces in the global economy). Short of the extreme
case of full sovereignty, there is an indefinite range of institutional
arrangements whereby a group can exercise greater or lesser
control over various aspects of its life. In general, a group can
achieve greater or lesser self-determination depending upon how
extensive the territory is within which it exercises control through
collective rights and depending upon which powers it wields within
that jurisdiction.
The preceding analysis of the different types of collective land
rights makes it clear that such rights can provide important
dimensions of self-determination. Even if an indigenous group does
not enjoy (and perhaps does not desire) self-determination in the
extreme sense of independent statehood, it may nonetheless achieve
other forms and degrees of self-determination through exercising
collective land rights of both the regulatory and collective property
types. Moreover, it is important to emphasize that there is in
principle a wide range of possible regulatory rights, consisting of
greater or lesser powers to control land use.
Collective land rights, then, are one important dimension of self-
determination for indigenous peoples. It is important to note,
however, that each of the three justifications for indigenous peoples'
collective land rights outlined above can be advanced without
appealing to the vagaries of the concept of self-determination and
without attempting to show that specific collective land rights can be
"derived" from a general "right of self-determination of all peoples."
Those three justifications appeal, instead, (1) to the idea of collective
land rights as an initial step in rectifying past unjust takings of
territory; (2) to the principle that justice requires the restoration of
pre-conquest indigenous collective property rights systems; and (3) to

18. Buchanan,supra note 15, at 46-50.

Spring 1993] ROLE OF COLLECTIVE RIGHTS
the instrumental role of collective land rights in protecting
imperilled indigenous cultures. In that sense, the case for
indigenous peoples' collective land rights (of both the regulatory and
property rights types) does not depend upon the establishment of a
general right of self-determination of all peoples.

VI. THE COMPATIBILITY OF COLLECTIVE AND INDIVIDUAL

RIGHTS

At the outset of this article it was noted that the indigenous

peoples' rights movement represents a challenge to the theory and
practice of international law. At the very least, the movement
expresses the conviction that the individual rights recognized as
human rights in international law are not by themselves sufficient
to protect the legitimate interests of indigenous peoples. A more
radical interpretation of the significance of the indigenous peoples'
movement is that the collective rights it demands are somehow
incompatible with the underlying normative framework of the
doctrine of individual human rights. My analysis suggests,
however, that the more radical interpretation is incorrect.
The analysis thus far shows that when self-determination takes
the form of collective land rights, even what I have referred to as
pure collective property rights in land, there need be no conflict with
individual human rights. If collective land rights are embedded
within a system of individual rights, the risks associated with
collective rights can be kept within tolerable limits.
There is, however, another area in which an indigenous group's
pursuit of self-determination can conflict with individual rights.
Indigenous political units might use their rights of self-government
to perpetuate social practices which violate individual human
rights. 19 Of special concern here are practices which appear to
discriminate according to gender. If we take human rights
seriously, we will be troubled by the appeal to rights of self-
government or the ideal of self-determination as a justification for
the perpetuation of injustices. Instances of such apparently
discriminatory practices include prohibitions on the owning of land
or other property by females (or, in some cases, by males) and
forfeiture of group memberships rights by females who marry
outside the group, where males are not subject to similar forfeiture.
These are undoubtedly important worries. But it is crucial to
point out that they are in no way unique to exercises of self-
determination by indigenous peoples. International law now
recognizes that the protection of human rights imposes restrictions

19. Douglas Sanders, Collective Rights, 13 HuM. RTS. Q. 368, 369-86 (1991).
108 TRANSNATIONAL LAW & CONTEMPORARY PROBLEMS [Vol. 3:89

on all forms of self-determination, including the most extreme, full

sovereignty. There are many complex and morally perplexing issues
concerning the proper application of human rights standards,
especially those dealing with gender equality, to diverse cultural
contexts. But the difficulties they involve are no more a reason to
reject the idea of self-determination or of collective rights for
indigenous peoples than they are for refusing to recognize
sovereignty for existing states.
One important conclusion of the analysis presented in this article
is that attempts to answer the questions "Are collective rights
compatible with individual rights?" or "Is self-determination for
indigenous peoples compatible with respect for human rights?" are
much too abstract. Only by sorting out the different forms of collective
rights and by focusing on the particular forms which self-
determination can take within a complex framework of collective
and individual rights, can any normative headway be made.
Nonetheless, we can say that the indigenous peoples' movement's
emphasis on collective rights, including collective land rights,
enriches, rather than undermines, international human rights law.