Source: https://indiancountrytodaymedianetwork.com/2014/04/12/incommensurate-indigenous-rights-154256

1. Che-Wei Lee 1
Copyright © 2014 by Che-Wei Lee. All rights reserved. Except as permitted under the United States Copyright Act
of 1976, no part of this manuscript may be reproduced or distributed in any form or by any means, or stored in a
database or retrieval system, without the prior written permission of the author.
Champagne, Duane. 2014. “Incommensurate Indigenous Rights?” Indian Country Today Media
Network, April 12.
https://indiancountrytodaymedianetwork.com/2014/04/12/incommensurate-indigenous-rights-
154256.
Review by: Che-Wei Lee, Department of Administrative and Policy Studies, University of
Pittsburgh
Accessed: Monday, 14 April 2014, 12:06 p.m.
Note: This material may be protected by copyright law (Title 17 U.S. Code).
Comment
In this article, Duane Champagne validly re-justifies the nature of indigenous rights—
incommensurability. Once again, Champagne has highlighted the difference between civil rights
and indigenous rights. Readers who never read, follow, and truly comprehend Champagne’s
writings about indigenous rights may misconceive Champagne’s intention of writing this article,
or carelessly criticize his overconfident argument. But, in fact, holding this kind of attitude may
oversimplify Champagne’s legitimate stance and indirectly ignore his sound premise that he
wrote in his following argument.
Are indigenous peoples asking for exceptional benefits or special rights from their surrounding
nation state when asserting their rights to self-government, land, and cultural autonomy? Before
answering this question, we need to recognize that the answer to this question would be basically
problematic if misusing and misinterpreting the concept of exceptional benefit and special right.
Technically, audience will, or should will, obtain the positive answer based on a legitimate
argument after reading throughout his justification in this article.
To respond to Champagne’s question in the first paragraph, the answer should be like this: No,
indigenous peoples are not asking for exceptional benefits or special rights from their host nation
states. Rather, indigenous peoples have to ask for exceptional and special rights to protect their
due survival space based on their earlier existence on their lands before other national invasions,
including the rights to territory, land, natural resources, and so forth. But this request is not, and
should not be interpreted as, a patronizing move. As well, this is an affirmative action, rather a
preferential treatment or benefits. In fact, few indigenous peoples really benefit from the
dominant governments.
To make audience validly question the application and generalization of exceptionalism rights
defined by most nation states and the Declaration all over the world to indigenous rights,
Champagne firstly points out the role that exceptionalism or special rights often play within
nation states. However, indigenous peoples do not accept, or even resist, the assimilationist
ideology behind the national citizenship rights. I further argue that they have the valid right to
de-stigmatize the brand that other non-indigenous people criticize indigenous people by saying
indigenous enjoy the special preferential treatment freely. In fact, governments have to be
responsible for the occurrence of this kind of stigma and give justifiable rationales to let public
citizens understand the real spirit and meaning of indigenous rights.

2. 2 Incommensurate Indigenous Rights?
Copyright © 2014 by Che-Wei Lee. All rights reserved. Except as permitted under the United States Copyright Act
of 1976, no part of this manuscript may be reproduced or distributed in any form or by any means, or stored in a
database or retrieval system, without the prior written permission of the author.
In addition, the public or nation-state citizens should be responsible for their any feedback on the
development of indigenous rights. I agree with Champagne’s point that most indigenous peoples
are willing and able to conform to national loyalty or citizenship rights. To strengthen this point,
here I especially note that most indigenous nations have a peace-loving character. In other words,
they often do not take the initiative to provoke a conflict with other nations unless necessary.
There is a lot of available literature and historical evidence to support this point. But, fairly
speaking, few nation states would, seriously and respectfully, pay due attention to comprehend
the nature of indigenous rights and their legitimacy.
Then, what is the legitimate basis of justifying indigenous rights? The answer is in Champagne’s
fourth paragraph, noting that “From the indigenous point of view, indigenous cultures,
governmental institutions, and territories existed long before the formation of nation states. Most
indigenous nations have not voluntarily surrendered their inherent claims to land and self-
governments. Indigenous Peoples are usually not parties to the construction of constitutions of
nation states, and usually are not citizens by consent. Most Indigenous Peoples are nation state
citizens only by the declarations or legislative mandates of a nation state, which individualizes
them as citizens and negates their commitments to indigenous nations.”
Champagne acknowledges that there must be some backlashes coming out when recognizing his
argument, noting a fact that most nation states and international entities do not establish agencies
to defend and support indigenous rights. Simply criticizing that it is unfair to offer special
indigenous rights that share different treatments from non-indigenous nation state citizens is not
enough to legitimatize a true social justice. The main reason is that most nation states do not
provide relatively due respect and room for indigenous peoples to live within their tribes in their
self-sustaining ways that fit their special needs, even these indigenous peoples never think about,
or actually, bothering other nation state citizens.
Dominant governments only want indigenous peoples to conform to the dominant legal rules,
laws, and life ways; however, they ignore that they should reversely recognize and respect the
essential cultural differences between indigenous nations and nation states. Fairly speaking, non-
indigenous nation state citizens should also learn indigenous cultures, languages, and other vital
core values. Nevertheless, unfortunately, most dominant groups would be more likely to engage
mainstream cultures to pursue what they define the status of upward mobility, rather than to
engage indigenous cultures to authentically facilitate mutual understanding and learning.
I agree that there is an institutionally incommensurable system existing between indigenous and
non-indigenous governments. But beware of interpreting Champagne’s argument. What he
means is the nature of the incommensurability. He does not imply that there is no bridge or
mechanism that can link two different governments together, successfully and appropriately.
Although Champagne does not dwell on the details of how to establish the transformative
mechanisms between two different legal systems, he at least pointed out a due attitude that we
should hold on to always toward that incompatible dilemma in his last paragraph—that is,
“Nation states need to recognize, welcome, and support indigenous goals and rights, which
should create greater economic, political and cultural understanding and mutual benefits.”

3. Che-Wei Lee 3
Copyright © 2014 by Che-Wei Lee. All rights reserved. Except as permitted under the United States Copyright Act
of 1976, no part of this manuscript may be reproduced or distributed in any form or by any means, or stored in a
database or retrieval system, without the prior written permission of the author.
Original Text
Paragraph 1: When Indigenous Peoples claim rights to self-government, land, and cultural
autonomy—the primary items in a collection of indigenous rights—are they asking for
exceptional benefits or special rights from their surrounding nation state? For most nation-states
and international agencies, including the Declaration on the Rights of Indigenous Peoples,
indigenous nations must live within the laws and institutions of their host nation states.
Paragraph 2: The arguments of exceptionalism and special rights are red flags for the view that
Indigenous Peoples have citizenship rights as all other citizens within the nation state, but
indigenous rights violate the political and legal equality laws and values. Exceptions and special
rights are singled out for reversal in court cases and legislation, since they are contrary to the
main premise of equal rights for all national citizens. In this view, Indigenous Peoples are
entitled to the rights of citizens that all other citizens have, and no more. This is the premise of
the Declaration and the practice of most nation states around the world.
Paragraph 3: Indigenous Peoples, however, do not agree that the label of special rights or
exceptional rights should be applied to indigenous rights. Indigenous Peoples in the U.S., Canada,
New Zealand, and elsewhere reject an assimilationist version of national citizenship, they do not
reject national loyalty or citizenship rights. Indigenous Peoples live outside mainstream society,
government, and culture, often by choice, and by cultural and political commitment. As
individuals, Indigenous Peoples often resist participation in mainstream culture and institutions,
and prefer to establish relations with nation states through collective national or community
organizations.
Paragraph 4: From the indigenous point of view, indigenous cultures, governmental institutions,
and territories existed long before the formation of nation states. Most indigenous nations have
not voluntarily surrendered their inherent claims to land and self-governments. Indigenous
Peoples are usually not parties to the construction of constitutions of nation states, and usually
are not citizens by consent. Most Indigenous Peoples are nation state citizens only by the
declarations or legislative mandates of a nation state, which individualizes them as citizens and
negates their commitments to indigenous nations. Because nation states offers or requirements of
national citizenship usually requires loss of collective indigenous identities, Indigenous Peoples
have moved to conserve and support collective identities and commitments.
Paragraph 5: Contemporary nation states and international agencies do not have mechanisms to
recognize the political and territorial claims of indigenous nations. Current arguments say
indigenous claims to self-government, land, and cultural autonomy, are forms of exceptionalism
or special rights, since such claims put indigenous claims outside the constitution or laws of the
nation state. Indigenous claims to self-government and territory are discriminatory since no other
nation state citizens have similar rights. Indigenous Peoples live in worlds that are inherently
engaged in processes of varying incompatible dual citizenships, dual nationalities, dual cultural
relations, and dual societal membership.
Paragraph 6: When two nations have starkly contrasting conceptual frameworks for
understanding law, government, land title, and whose institutional makeups lack sufficiently

4. 4 Incommensurate Indigenous Rights?
Copyright © 2014 by Che-Wei Lee. All rights reserved. Except as permitted under the United States Copyright Act
of 1976, no part of this manuscript may be reproduced or distributed in any form or by any means, or stored in a
database or retrieval system, without the prior written permission of the author.
overlapping meanings to permit reconciliation or integration of national memberships or
collectivities, then they are institutionally incommensurable. For example, in the U.S., states that
joined the union were institutionally commensurable. Indian nations that persist outside the
union are not commensurable with the United States social order on a variety of language,
territorial, governmental and cultural grounds.
Paragraph 7: Under current theory and practice within liberal democratic nation states,
Indigenous nations are not commensurable within nation states as politically autonomous
collectivities, although Indigenous Peoples are acceptable as individual citizens or as groups of
citizens. While Indigenous Peoples hold onto collective forms of community and nation, nation
states will not entirely integrate Indigenous Peoples or support their deepest values of self-
government, territory, and cultural autonomy. Nation states need to recognize, welcome, and
support indigenous goals and rights, which should create greater economic, political and cultural
understanding and mutual benefits.
Author Note
Duane Champagne is a member of the Turtle Mountain Band of Chippewa from North Dakota.
He is Professor of Sociology, American Indian Studies Center, and Law at UCLA. He is
currently a member of the Faculty Advisory Committee for the UCLA Native Nations Law and
Policy Center, and is Acting Director of the UCLA School of Law’s Tribal Learning Community
and Educational Exchange. His research interests focus on issues of social and cultural change in
historical and contemporary Native American communities. He has written and edited over 125
publications. Recent publications include Captured Justice: Native Nations and Public Law 280
(with Dr. Carole Goldberg, UCLA School of Law) (Carolina Academic Press, 2012) and Notes
from the Center of Turtle Island (AltaMira Press, 2010).