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The politics of special rights

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Are American Indians and Indigenous peoples generally, asking for special rights or exception from the rules of everyone else? Do the powers of self-government, control over territory, Indian employment preferences, and protection of sacred sites constitute special rights, or privileges, that are not available to everyone else within the nation?

The core understanding in the U.S. Constitution is that all men (and women) are created equal, and should enjoy equal protection, rights and privileges before the law and within the political community. Exceptional rights smack of privilege, unfair advantage, or aristocratic powers all of which most contemporary nation states are designed to avoid. There are people, groups and institutions that strongly defend political and legal equality as the foundation principles of American democracy. The indigenous arguments of self-government, tribal employment preferences, trust responsibility and the sovereignty argument runs contrary to much of American political thinking and culture. The American public generally does not have education about indigenous rights and are usually opposed to the exercise of indigenous rights if they believe they violate American political beliefs about equality.

For example, in November of 1998, the California tribes were submitting Proposition 5 for a referendum vote. The California tribes could not gain an acceptable agreement with the governor and so turned to a state-wide referendum of California voters to secure the legal right and compacts for gaming. The tribes hired a firm to present their TV campaign, and conducted studies about the possible themes that might encourage a positive vote for tribal gaming. Commercials that outlined rights of tribal political sovereignty, even though presented by famous actors, were viewed unfavorably by selected samples of voters. The voters felt that discussions of sovereignty smacked of the powers of the Queen of England, evoked the American Revolutionary break with England, and were seen as special rights. People would not vote in favor of the proposition based on preserving the sovereign rights of California Indian tribes. The campaign eventually fell upon the themes of paying taxes, moving Indian people out of poverty, and reducing government burdens, all of which resonated better with voters.

The indigenous arguments of self-government, tribal employment preferences, trust responsibility and the sovereignty argument runs contrary to much of American political thinking and culture.

The language of exceptionalism, or special rights, is dangerous for tribal communities and their rights. Sometimes even sophisticated academic theories employ these terms, as well as conservative political groups. The compromises of the Declaration on the Rights of Indigenous Peoples upholds the view that indigenous peoples are citizens of nation states, and therefore cannot be accorded any special privileges or rights that are not accorded to other citizens. The Declaration is an instrument of universal human rights and does not premise an indigenous interpretation of the world. Civil rights movements underscore the inclusion and equality of all groups, and therefore are welcomed by progressive individuals as strengthening the foundations of democratic nation states.

American rights of political equality are premised on agreement and acceptance of American political culture and law. Indigenous rights are premised on cultural autonomy, self-government, territory and economy that preceded nation states and existed from time immemorial. Indigenous peoples are not parties to the nation-state by consent. Relations between states and indigenous peoples are negotiated through treaties or agreements, but nonconsensual extension of full citizenship, like the termination policy in the United States, does not win consent, commitment, or full participation of Indigenous peoples in the United States or elsewhere. Indigenous communities exist in a state of constant negotiation about rights, citizenship and equality. The language of special rights or exceptionalism, however, does not fully characterize the indigenous position and does not provide a ground for positive negotiation of differences.

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