Indigenous Self-Determination and Freedom from Rule

In considering the rights of indigenous peoples within the United States, Canada, Australia, and New Zealand, the question is not whether members of these peoples have legitimate claims against these states stemming from the historical injustices perpetrated against them, but rather what types of responses to these claims are appropriate.¹ Political theorists widely agree that measures must be taken to address the grievances of indigenous populations, but they disagree about the normative criteria that dictate which particular measures are required.

Theoretical responses to indigenous claims are structured by views on the importance of three factors: history, culture, and preference. The relevance of past injustices against indigenous peoples in determining the present rights of these peoples is a matter of heated debate. Some theorists argue that indigenous peoples retain today the rights to property and self-determination that they held before the illegitimate expropriation of indigenous lands and the forced incorporation of indigenous peoples within settler states.² Appeal to the past is thus, on these accounts, necessary to understand what rights indigenous peoples hold today. Other theorists defend presentist accounts, arguing that indigenous peoples' historically held rights to self-determination and property have been superseded. On these accounts, only the injustices that indigenous peoples currently suffer at the hands of non-indigenous majorities are morally significant.³

Other theories emphasize the current importance of indigenous culture for members of indigenous groups. According to these theories, culture is an important source of meaning and a necessary context for autonomous choice, and various group-based rights are necessary to guarantee indigenous peoples this important good.⁴ Critics worry that such accounts depend on reified and monolithic conceptions of culture that fail to recognize differences within indigenous communities, arguing that cultural rights threaten to reinscribe inherited inequalities and to disadvantage internal minorities.⁵

Finally, theorists disagree about whether the preference for self-determination among indigenous peoples has any moral weight.⁶ Respect for indigenous peoples' counsels recognize the significance of this preference, yet critics suggest that the mere preference for self-determination cannot suffice to generate rights to self-determination, because such a policy would destabilize political authority and incentivize bad behavior.⁷

The challenge with arguments about the significance of each factor is that intuitions on these matters diverge significantly, both within and across indigenous and non-indigenous communities. Remaining too close to intuitions results in ad hoc arguments that merely rationalize these intuitions. In theorizing about indigenous claims, it is vital to remain tied to the particulars of cases, but there is value in abstracting from these particulars to ask whether the conceptions of authority and justice implicit in particular arguments about the importance of history, culture, and preference are plausible or not. Evaluating the general conceptions of authority and justice presupposed by these particular views can help to sort out which of these competing intuitions are the right ones.

In the context of this article, it is impossible to explicate the various conceptions of authority and justice implicit in these different views about the relevance of history, culture, and preference for indigenous claims. I can, however, sketch an account of authority that I believe offers compelling reasons to embrace particular views about the significance of these factors and, in turn, sheds light on indigenous peoples' moral claims to self-determination. I limit my focus to rights to collective self-determination because it is these rights that are most directly implicated by a theory of authority.

Authority and Freedom from Rule

I will argue that political authority is justified to the extent that it respects each individual's right to equal freedom from rule. I will ultimately argue that indigenous peoples have substantial moral rights to self-determination because they can credibly claim that their moral right to equal freedom from rule is not adequately protected within settler states.⁸

It may seem odd to justify political authority on the basis of the individual's right to freedom from rule, because authority is nothing more than the "right to rule"—that is, the right of some people to give commands to others that these others have an obligation to obey...