ABSTRACT

Rules and principles governing indigenous membership have a dual aspect. First, a group’s capacity to decide its own membership is an essential element of indigenous self-governance. Self-constitution is both an expression of self-governance and its prerequisite. Second, a person’s claim to membership is sometimes supported by human rights law, especially the right to enjoy one’s culture in community with other members of a minority. Because of this duality, in some instances, the interests of a self-constituting indigenous group and the interests of a self-identifying indigenous individual are directly opposed. For this reason, membership disputes involving indigenous communities are amongst the most conceptually difficult claims to address using human rights methodologies. Exclusions are necessary if indigenous communities are to be communities, but not all can be justified in a liberal democracy. In whatever forum they are heard, be it tribal, national or international, indigenous membership disputes raise a fundamental question: What is the optimal inclusivity of an indigenous community and under what circumstances may a person reasonably be excluded from one?