The Good, the Bad, and the Intolerable: Minority Group Rights
Kymlicka, Will
Ethnocultural minorities around the world are demanding various forms of recognition and protection, often in the language of "group rights." Many commentators see this as a new and dangerous...
...Of course there are limits to the appropriate forms of pressure...
...For example, the desire of former communist countries to enter the European Community (EC) has provided leverage for Western democracies to push for liberal reforms in Eastern Europe...
...The line between incentive and coercion is not a sharp one, and where to draw it is a much-debated point in the international context...
...Because they are not subject to the Bill of Rights, tribal governments are not required to obey its strict separation of church and state...
...We need to think about effective mechanisms, acceptable to indigenous peoples, for holding their governSUMMER • 1996 • 29 Minority Group Rights ments accountable for the way individual members are treated...
...Unfortunately, both the Canadian and U.S...
...Refusing to extend trade privileges is one thing, imposing a total embargo or blockade is quite another...
...And that, I believe, is fully justified...
...Indigenous peoples have good reasons, and sound legal arguments, to reject federal review of their self-government...
...It doesn't follow that liberals should stand by and do nothing...
...Attempts to impose liberal principles by force are often perceived, in both cases, as a form of aggression or paternalistic colonialism...
...They do not want their members to be able to challenge band decisions in the courts of the mainstream society...
...Why then are most indigenous peoples in the United States opposed to the idea that their internal decisions should be subject to judicial review under the U.S...
...The Group Rights of Indigenous Peoples Which sorts of claims are indigenous peoples making...
...There are cases, to be sure, where illiberal groups seek the right to restrict the basic liberties of their members...
...Many nineteenthcentury liberals thought that liberal states were justified in colonizing and instructing foreign countries...
...As Denise Reaume has noted, part of the "demonization" of other cultures is the assumption that they are naturally inclined to use coercion against their members...
...The fact is that many indigenous groups feel compelled to impose internal restrictions because the larger society has denied them legitimate external protection...
...But if the two groups do not share basic principles, and cannot be persuaded to adopt the other's principles, they will have to rely on some more minimalist modus vivendi...
...What they object to is being subject to the constitution of their conquerors, which they had no role in drafting, and being answerable to federal courts composed entirely of non-Indian justices...
...They can be seen as putting indigenous SUMMER • 1996 • 23 Minority Group Rights peoples and the larger society on a more equal footing, by reducing the extent to which the former is vulnerable to the latter...
...The Pueblo have, in effect, established a theocratic government that discriminates against those members who do not share the tribal religion...
...Some readers might think that I am underestimating the illiberal tendencies of indigenous groups...
...What they experience is not the principle of human dignity and equality, but rather a social institution that has historically justified their conquest and dispossession...
...So when a question is raised about self-governing indigenous peoples, many liberals automatically support centralized review, even though these peoples were historically exempt from any such external intervention...
...Similarly, many people thought that negotiations over the North American Free Trade Agreement provided an opportunity for Canada and the United States to pressure the Mexican government into improving its human rights record...
...They accept the idea that their governments, like all sovereign governments, should be accountable to international norms...
...This isn't to say that federal intervention to protect liberal rights is never justified...
...Similarly, the German government unjustly denies political rights to the children and grandchildren of Turkish "guest-workers," born and raised on German soil...
...By "imposing" liberalism, I am referring to forcible intervention by a third party...
...In some cases, reformers seeking federal judicial review may form a sizable minority, if not a majority, within their community...
...As Joseph Carens puts it, "People are supposed to experience the realization of principles of justice through various concrete institutions, but they may actually experience a lot of the institution and very little of the principle...
...Finally, and perhaps most important, liberals can push for the development and strengthening of international mechanisms for protecting human rights...
...In both the United States and Canada, these peoples have various group rights...
...and (2) Should liberals impose their views on minorities that do not accept some or all of these principles...
...Yet, in both cases, there is relatively little scope for legitimate coercive interference...
...24 • DISSENT Minority Group Rights Indian groups remain strongly opposed to the 1968 Act, and would almost certainly resist any attempt to extend the jurisdiction of federal courts over Indian governments...
...Cases involving immigrant groups are quite different...
...Rather, they rely on time-honored procedures for ensuring consensual decision making...
...An indigenous government that rules in an illiberal way acts unjustly...
...We should, however, think creatively about new mechanisms for enforcing human rights that will avoid the legitimate objections indigenous peoples have to federal courts...
...That liberals cannot automatically impose their principles on groups that do not share them is obvious enough, I think, if the illiberal group is another country...
...Unable to get protection for its lands and institutions, the minority turns to the only people it does have some control over, namely, its own members...
...These groups differ from indigenous peoples in many ways, but in all these cases, the role of the federal courts in reviewing the decisions of selfgoverning minorities should be settled by negotiation, not imposition...
...On my view, such legally imposed internal restrictions are almost always unjust...
...The attitude of liberals toward imposing liberalism has changed over the years...
...Rather, indigenous peoples simply seek to ensure that the majority cannot use its superior numbers or wealth to deprive them of the resources and institutions vital to the reproduction of their communities...
...This is not always an easy question to answer...
...For example, reserving land for the exclusive use of indigenous peoples ensures that they are not outbid for this resource by the greater wealth of outsiders...
...Demanding exemption from judicial review in the name of self government, for many people, is a smokescreen behind which illiberal groups hide their oppressive practices...
...Many Indians argue that their self-government needs to be exempt from the Bill of Rights, not in order to restrict the liberty of women or religious dissidents, but to defend the external protections of Indians vis-a-vis the larger society...
...This means searching for some basis of agreement...
...Noncoercive intervention is a different matter, which I discuss below...
...The long history of European-indigenous relations suggests that even if indigenous peoples have citizenship rights in the mainstream society, they tend to be politically impotent and culturally marginalized...
...The emphasis on group rights, by contrast, seems to treat individuals as the mere carriers of group identities and objectives, rather than as autonomous personalities capable of defining their own identity and goals in life...
...This is an important question, which goes to the heart of the relationship between group and individual rights, and which is worth exploring in some depth...
...As part of their self-government, tribal councils in the United States have historically been exempted from the constitutional requirement to respect the Bill of Rights...
...It is one thing to require people to do jury duty or to vote, and quite another to compel people to attend a particular church or to follow traditional gender roles...
...One example of internal restrictions concerns freedom of religion on the Pueblo reservation...
...External protections, by contrast, involve inter-group relations...
...However, the sorts of external protections sought by indigenous peoples hardly put them in a position to dominate others...
...It is more legitimate to compel respect for liberal principles...
...Indeed, they have shown greater willingness to accept this kind of review than many nation-states, which jealously guard their sovereignty in domestic affairs...
...But we need simultaneously to think about effective mechanisms for holding the larger society accountable for respecting the group rights of indigenous peoples...
...Moreover, there is an important difference between coercively imposing liberalism and offering incentives for liberal reforms...
...Reflecting on this long history should warn us against the facile assumption that the demand for group rights is somehow a byproduct of current intellectual fashions, such as postmodernism, or of ethnic entrepreneurs pushing affirmative action programs beyond their original intention...
...Many commentators see this as a new and dangerous trend that threatens the fragile international consensus on the importance of individual rights...
...Under the apartheid system in SouthAfrica, for example, whites, who constituted less than 20 percent of the population, demanded 87 percent of the land mass of the country, monopolized all the political power, and imposed Afrikaans and English throughout the entire school system...
...Should we insist that indigenous governments be subject to the Bill of Rights, and that their decisions be reviewable by federal courts...
...And in some cases, they have rights relating to the use of their own language...
...For example, a tribal government might discriminate against those members who do not share the traditional religion...
...Liberals have a right, and a responsibility, to speak out against such injustice...
...Historically, this sort of judicial review, backed up by federal troops, was required to overturn the racist legislation of Southern states, which state courts had upheld...
...Focusing on the former while neglecting the latter is counterproductive and hypocritical...
...For example, whether intervention is justified in the case of an Indian tribe that restricts freedom of conscience surely depends on whether it is governed by a tyrant who lacks popular support and prevents people leaving the community or whether the tribal government has a broad base of support and religious dissidents are free to leave...
...Internal restrictions involve intra-group relations...
...I do not think it is wrong for liberal states to insist that immigration entails accepting the state's enforcement of liberalism, so long as immigrants know this in advance, and nonetheless choose to come...
...What has changed in recent years is not that indigenous peoples have altered their demands, but rather that these demands have become more visible, and that the larger society has started to listen to them...
...Both are "group rights," but they raise very different issues...
...Far from limiting the basic civil and political rights of individual Indians, they help to protect the context within which those rights have their meaning and efficacy...
...It is a basic tenet of liberal democracy that whoever exercises political power within a community must respect the civil and political rights of its members, and any attempt to impose internal restrictions that violate this condition is unjust...
...These limits on the application of constitutional bills of rights suggest that individuals or subgroups within Indian communities could be oppressed in the name of group solidarity or cultural purity...
...I have argued that many Indian communities are committed to respecting the rights of their individual members...
...Many indigenous peoples have looked to the United Nations, and its draft declaration on indigenous rights, as a possible forum for pursuing these twin forms of accountability...
...I believe that this view is overstated...
...Such protections do not, in my view, violate equality...
...Traditional human rights doctrines are based on the idea of the inherent dignity and equality of all individuals...
...In all countries, no matter how liberal and democratic, people are required to pay taxes to support public goods...
...The same was true in Canada until 1982...
...Even when the two do conflict, we cannot assume automatically that the courts and constitutions of the larger society should prevail over the self-governing decisions of the indigenous group...
...I will call the first "internal restrictions" and the second "external protections...
...It is often difficult for outsiders to assess the likelihood that self-government for an indigenous minority will lead to the suppression of basic individual rights...
...So, whereas internal restrictions are almost inherently in conflict with liberal democratic norms, external protections are not— so long as they promote equality between groups rather than allowing one group to oppress another...
...Viewed in this light, the real obstacle to a more satisfactory balance of individual and group rights is not the refusal of indigenous peoples to accept external review, but rather the refusal of the larger society to accept restrictions on its sovereignty...
...But in other cases, liberal states must tolerate unjust practices within a minority group...
...Indeed, many indigenous groups have adopted their own internal constitutional bills of rights, guaranteeing freedom of religion, speech, press, conscience, association, and a speedy and public trial...
...For one thing, they have been at the forefront of the movement toward recognizing group rights at the international level—reflected in the Draft Universal Declaration on Indigenous Rights at the United Nations...
...The problem arises when a group seeks to use governmental power, or the distribution of public benefits, to restrict the liberty of members...
...In the case of self-governing indigenous minorities, however, liberals have been much more willing to endorse coercive intervention...
...In other cases, tribal governments have become profoundly undemocratic, governed by strongmen who ignore traditional ideals of consensus and govern by a combination of intimidation and corruption...
...The resulting agreement may well exempt the indigenous minority from the Bill of Rights and judicial review...
...For example, traditional Indian forms of consensual political decision making could be seen as denying democratic rights...
...It is these latter cases that I have in mind when talking about internal restrictions...
...Groups that have these external protections may fully respect the civil and political rights of their own members...
...These are the "good" group rights...
...If a particular government fails to respect those claims, who can legitimately step in and force compliance...
...In this case, self-government powers are being used to limit the freedom of members to question and revise traditional practices...
...The identification of oppression requires sensitivity to the specific context, particularly when dealing with other cultures, and so it is not surprising that Indians would want these questions settled in a forum where judges are familiar with the situation...
...Given the central role federal courts have played in the struggle against racism, American liberals have developed a deep commitment to centralized judicial review...
...All governments expect and sometimes require a minimal level of civic responsibility and participation from their citizens...
...They defended this in the name of reducing their vulnerability to the decisions of other larger groups, although the real aim was to dominate and exploit these groups...
...But there are other, more specific concerns...
...Thinking Creatively about Rights I've argued that the group rights sought by indigenous peoples need not conflict with human rights, and that the relationship between the two must be assessed carefully on a case-by-case basis...
...Their special rights to land, or to hunting, or to group representation, which reduce their vulnerability to external economic and political decisions, could be struck down as discriminatory under the Bill of Rights...
...The same question arises when the illiberal group is a selfgoverning indigenous community within a single country...
...According to this act, which was passed by Congress despite vociferous opposition from most Indian groups, tribal governments are now required to respect most (but not all) constitutional rights...
...My aim is not to undermine human rights but rather to find fairer and more effective ways to promote them...
...I want to look at the relationship between group and individual rights in the context of the claims of indigenous peoples in North America...
...The problem, rather, is that Indians themselves are deeply divided, not only about their traditional norms, but also about the ability of their traditional decision-making procedures to deal with these divisions...
...On the contrary, the consistent historical demands of indigenous peoples suggests that the issue of group rights is an enduring and endemic one for liberal democracies...
...After all, the federal courts have historically accepted and legitimated the colonization and dispossession of Indian peoples and lands...
...But it doesn't follow that liberals outside Saudi Arabia should forcibly intervene to compel the Saudis to give everyone the vote...
...In the international context, they have become increasingly skeptical about using force to compel foreign states to obey liberal principles...
...These cases put liberals on the horns of a serious dilemma...
...Before jumping to this conclusion, however, we should consider the reasons why groups that believe in individual rights would nonetheless be distrustful of judicial review...
...Drawing the line between the bad and the intolerable is one of the thorniest issues liberal democracies face...
...Indian leaders worry that white judges will impose their own culturally specific form of democracy, without considering whether traditional Indian practices are an equally valid interpretation of democratic principles...
...But it doesn't follow that liberals outside Germany should use force to compel Germany to change its citizenship laws...
...Since the most enduring forms of liberalization are those that result from internal reform, the primary focus for liberals outside the group should be to support liberals inside...
...Similarly, Indian bands in Canada have argued that their self-governing councils should not be subject to judicial review under the Canadian Charter of Rights and Freedoms...
...In these cases, the indigenous group seeks to protect its distinct existence and identity by limiting its vulnerability to the decisions of the larger society...
...Group rights, as I will use the term, refer to claims to something more than, or other than, 22 • DISSENT Minority Group Rights the common rights of citizenship...
...However, there are still limits on judicial review of the actions of tribal councils...
...For example, the Native Women's Association of Canada, worried about the danger of sexual discrimination on their reserves, has demanded that the decisions of Aboriginal governments be subject to the Canadian Charter...
...The Saudi Arabian government unjustly denies political rights to women or non-Muslims...
...The Pueblo also use sexually discriminatory membership rules...
...But the answer to the second question is less clear...
...Various efforts have been made by federal legislators to change this, most recently the 1968 Indian Civil Rights Act...
...Again, this is clear in the international arena...
...Indeed, such exemptions are often implicit in the historical treaties by which the minority entered the larger state...
...Bill of Rights...
...Indian leaders also fear that white judges might interpret certain rights in culturally biased ways...
...These traditional procedures do not violate the underlying democratic principle of the Constitution— namely, that legitimate authority requires the consent of the governed, subject to periodic review...
...The plight of many former colonies in Africa shows that liberal institutions are likely to be unstable when they are the products of external imposition rather than internal reform...
...It's important here to distinguish two questions: (1) Are internal restrictions consistent with liberal principles...
...Contemporary liberals, however, have abandoned this doctrine as both imprudent and illegitimate, and sought instead to promote liberal values through persuasion and financial incentives...
...But if men marry outside the tribe, the children are members...
...Some Indian tribes have expressed a willingness to abide by international declarations of rights, and to answer to international tribunals about complaints of rights violations within their communities...
...In these cases, group rights supplement, even strengthen, standard human rights...
...For example, they have rights of self-government, under which they exercise control over health, education, family law, policing, criminal justice, and resource development...
...They seek to create or maintain their own procedures for protecting rights, specified in tribal constitutions (some of which are based on the provisions of international protocols...
...What third party (if any) has the authority to intervene in order to force the government to respect those rights...
...A Catholic organization can insist that its members be Catholics in good standing, and the same applies to voluntary religious organizations within indigenous communities...
...They also have legally recognized land claims, which reserve certain lands for their exclusive use and provide guaranteed representation on certain regulatory bodies...
...But some groups seek to impose much greater restrictions on the liberty of their members...
...Indeed, that an oppressive practice is traditional may just show how deep the injustice goes...
...Two Kinds of Group Rights For my purposes, however, the most important distinction is between two kinds of group rights: one involves the claim of an indigenous group against its own members...
...For example, housing SUMMER • 1996 • 25 Minority Group Rights benefits have been denied to members of the community who have converted to Protestantism...
...The first question is easy: internal restrictions are illiberal and unjust...
...The land claims, representation rights, and self-government powers sought by indigenous peoples do not deprive other groups of their fair share of economic resources or political power, nor of their language rights...
...Here again, the rights of individuals are being restricted to preserve a communal practice (although there is some debate about whether this membership rule is in fact the "traditional" one, or whether it was adopted by the Pueblo at the behest of the American government, which hoped thereby to minimize its financial obligations...
...Of course, not all Indian groups accept the commitment to respect individual rights...
...The Pueblo tribal council violates the rights of its members by limiting freedom of conscience and by employing sexually discriminatory membership rules...
...Until the passage of the Fourteenth Amendment, state legislatures were answerable to state courts for the way they respected state constitutions, but were not answerable to the Supreme Court for respecting the Bill of Rights...
...And allowing indigenous peoples to control their own health care system ensures that critical decisions are not made by people who are ignorant of their distinctive health needs or their traditional medicines...
...They endorse the principles, but object to the particular institutions and procedures that the larger society has established to enforce these principles...
...Membership in the EC is a powerful, but noncoercive, incentive for liberal reform...
...Of course, one can imagine circumstances where the sorts of external protections demanded by a minority group are unfair...
...Our goal, therefore, should be to find new mechanisms that will protect both the individual and group rights of indigenous peoples...
...The most secure basis would be agreement on fundamental principles...
...Most groups are concerned with ensuring that the larger society does not deprive them of the resources and institutions necessary for their survival, not with controlling the extent to which their own members engage in untraditional or unorthodox practices...
...The Limits of Toleration How should liberal states respond in such cases...
...They commonly assume that to have a "right" means not only that legislators should respect one's claim, but also that there should be a system of judicial review to ensure that respect...
...Liberal principles tell us that individuals have certain claims that their government must respect, such as individual freedom of conscience...
...governments have been reluctant to give any international body jurisdiction over the treaty rights, land claims, or self-government rights of indigenous peoples...
...Perhaps North American governments and Indian tribes 28 • DISSENT Minority Group Rights could agree to establish a similar tribunal, on which both sides are fairly represented...
...Most Indian tribes do not oppose all forms of external review...
...Self-government rights can be used either to secure external protections or to impose internal restrictions, and some indigenous groups use these rights in both ways...
...There are many analogous opportunities for a majority to encourage indigenous peoples, in a noncoercive way, to liberalize their internal constitutions...
...Under these circumstances, there is no conflict between external protections and individual rights...
...On the contrary, a powerful case could be made that they promote equality, by protecting Indians from unjust majority decisions...
...An indigenous group may seek the use of state power to restrict the liberty of its own members in the name of group solidarity...
...the second is the question of imposing that theory...
...History has proven the value of holding all governments accountable for respecting human rights...
...the other involves the claim of an indigenous group against the larger society...
...Similarly, guaranteeing representation for indigenous peoples on various public regulatory bodies reduces the chance that they will be outvoted on decisions that affect their community...
...Most democracies also require people to undertake jury duty or to perform some amount of military or community service, and a few countries require people to vote...
...This, I think, is inconsistent...
...Why should Indians trust the federal courts to act impartially now...
...Indeed, this was true in the United States for a considerable period of time...
...However, they do not use the particular method for securing consent envisioned by the Constitution— namely, periodic election of representatives...
...But what third party (if any) has the authority to compel the Pueblo council to respect those rights...
...The situation of indigenous peoples is a useful example, I think, for several reasons...
...Federal courts, dominated by the majority, would have little or no authority over them...
...This means that the majority will sometimes be unable prevent the violation of individual rights within the minority community...
...But the appropriate forum for reviewing the actions of self-governing indigenous peoples may skip the federal level, as it were...
...But most indigenous peoples seek group rights primarily for the external protections they afford...
...These international mechanisms could arise at the regional as well as global level...
...In some cases, these illiberal practices are not only bad, but intolerable, and the larger society has a right to intervene to stop them...
...For example, concern has been expressed that Indian women in the United States and Canada might be discriminated against under certain systems of self-government, if these communities are exempt from the constitutional requirement of sexual equality...
...Many American liberals assume that the Supreme Court has the legitimate authority to overturn any decisions of the Pueblo tribal council that violate individual rights...
...That is, in addition to the various state and tribal courts that review the laws of state and tribal governments, there should also be a Supreme Court to which all governments within the country are answerable...
...They also apply to other national minorities—that is, other nonimmigrant groups whose homeland has been incorporated into a larger state through conquest, colonization, or the ceding of territory from one imperial power to another...
...The first is intended to protect a group from the destabilizing impact of internal dissent (that is, the decision of individual members not to follow traditional practices or customs), whereas the second is intended to protect the group from the impact of external decisions (that is, the economic or political policies of the larger society...
...If a member of an Indian tribe feels that her rights have been violated by her tribal council, she can seek redress in a tribal court, but she cannot (except under exceptional circumstances) seek redress from the Supreme Court...
...This shows, I think, that the assumption of American liberals that there must be one court within each country that is the ultimate defender of individual rights is doubly mistaken, at least in the case of indigenous peoples...
...Hence, liberal reformers inside the culture should seek to promote their principles through reason and example, and liberals outside should lend their support...
...This is a very particularist understanding of rights...
...Nonindigenous national minorities include the Quebecois in Canada and Puerto Ricans in the United States...
...q George Tooker Man in the Box, 1967, collection Dr and Mrs...
...But should we intervene and impose a liberal regime on the Pueblo, forcing them to respect the religious liberty of Protestants and the sexual equality of women...
...30 • DISSENT...
...Hence many Indian leaders seek exemption from the Bill of Rights, but at the same time affirm their commitment to basic human rights and freedoms...
...Of course, all forms of government involve restricting the liberty of those subject to their authority...
...The case of indigenous peoples also shows that group rights are not a new issue...
...What isn't clear is the proper remedy for rights violations...
...This tendency does not justify internal restrictions, but it suggests that before we criticize a minority for imposing restrictions on its members, we should first make sure we are respecting its legitimate group rights...
...In cases of gross and systematic violation of human rights, such as slavery, genocide, torture, or mass expulsions, there are grounds for intervening in the internal affairs of an indigenous group...
...And, as a result, these attempts often backfire...
...European countries have agreed to establish their own multilateral human rights tribunals...
...These are the "bad" group rights...
...Liberals have to learn to live with this, just as they must live with illiberal laws in other countries...
...Hence it tends to subordinate the individual's freedom to the group's claim to protect its historical traditions or cultural purity...
...These oppressive practices may be traditional (although many aren't), but tradition is not self-validating...
...Both of these can be seen as protecting the stability of indigenous communities, but they respond to different sources of instability...
...In the end, liberal institutions can work only if liberal beliefs have been internalized by the members of the self-governing society, be it an independent country or an indigenous minority...
...The first is the question of identifying a defensible liberal theory of group rights...
...It is right and proper, I think, for liberals to criticize oppressive practices within indigenous communities, just as we should criticize foreign countries that oppress their citizens...
...Fouad A. Rabiah, courtesy Chameleon Books...
...Woodrow Wilson defended the American colonization of the Philippines in 1902 on the grounds that "they are children and we are men in these matters of government and justice...
...The category is obviously very large and can be subdivided into any number of more refined categories, reflecting the different sorts of rights sought by different sorts of groups...
...It's easy to see why American liberals are committed to giving the Supreme Court such wide authority...
...In the case of indigenous peoples, these reasons are, I think, painfully obvious...
...This is no longer a case of whites imposing "our" norms on Indians, who would prefer to live by "their" norms...
...In these cases, not surprisingly, members of the Indian community often seek some form of outside judicial review...
...From the very beginning of European colonization, the "natives" fought for rights relating to their land, languages, and self-government...
...In short, contemporary liberals have become more reluctant to impose liberalism on foreign countries, but more willing to impose liberalism on indigenous minorities...
...This sort of internal restriction raises the danger of individual oppression...
...But 26 • DISSENT Minority Group Rights having identified those claims, we now face the very different question of imposing liberalism...
...This is exactly how many indigenous peoples perceive the supreme courts of Canada and the United States...
...If female members marry outside the tribe, their children are denied membership...
...But Indians rightly worry that the Supreme Court could take a different and more formalistic view of equality rights...
...The former are intended to uphold liberal rights and democratic institutions, the latter restrict these rights in the name of orthodoxy or cultural tradition...
...Group rights in this sense can be invoked by patriarchal and theocratic cultures to justify the oppression of women and the legal enforcement of religious orthodoxy...
...There are, of course, important differences SUMMER • 1996 • 27 Minority Group Rights between foreign states and indigenous minorities...
...Moreover, to focus exclusively on the danger of internal restrictions is often to miss the real source of injustice...
...In some liberal countries (for example, Britain), there is a strong tradition of respecting individual rights, but there is no constitutional bill of rights and no basis for courts to overturn parliamentary decisions that violate individual rights...
...A number of factors are relevant here, including the severity of rights violations within the community, the degree of consensus on restricting individual rights, and the ability of dissenting members to leave the community if they so desire...
...Many indigenous groups would endorse a system in which their decisions are reviewed in the first instance by their own courts and then by an international court...
...In other countries, there is judicial review, but it is decentralized—that is, political subunits have their own systems of review, but there is no single bill of rights and no single court to which all levels of government are answerable...
...In many cases, group rights supplement and strengthen human rights, by responding to potential injustices that traditional rights doctrine cannot address...
...On my view, these sorts of external protections are often consistent with liberal democracy, and may indeed be necessary for democratic justice...
...Relations between the majority society and indigenous peoples should be determined by peaceful negotiation, not force...
...Obviously, groups are free to require respect for traditional norms and authorities as terms of membership in private, voluntary associations...
...Moreover, this judicial review should occur at a country-wide level...
...Indeed, many American liberals often talk as if it is part of the very meaning of "rights" that there should be a single court in each country with the authority to review the decisions of all governments within that country...
...But insofar as some groups seem regrettably willing to use coercion to preserve traditional practices, this may be due, not to any innate illiberalism but to the fact that the larger society has failed to protect them...
...Both foreign states and indigenous minorities form distinct political communities, with their own claims to self-government...
...I should note that my arguments here do not just apply to indigenous peoples...
Vol. 43 • July 1996 • No. 3
