According to the book, Social Justice--Theories, Issues and Movements by L. Capeheart and D. Milovanovic(2007,indigenous and post-colonial forms of justice are concerned with the issues of land, recognition, sovereignty, resources, intellectual property rights and self-determination. Indigenous peoples have their own way of knowing and justice rendering. Decisions are based on specific situations and no formalized or systemic structure exists. Communication is often done orally without written records and can include practices of shaming, healing, embracing, or relying on elders for wisdom and knowledge. Defining indigenous peoples proves controversial; however Niezen (2003) conceptualizes the term in these three basic ways:
• By use of legal or analytical terms that identify factors and develop categories;
• By use of practical terms and opening the door for any groups participating as indigenous;
• By use of collective terms in terms of a regional or state affiliation.
Terra Nullius and sovereignty is based on the claims of discovery, so that land is either not occupied or is occupied but by uncivilized people. Therefore, sovereignty is obtained by the state legitimizing the boundaries. Justice John Marshall's opinion in Johnson v. McIntosh 1923 provided future substantiation for the legal subordination of indigenous peoples. However, self-determination for all peoples was positively impacted by the 1954 Supreme Court decision Brown v. Board of Education, in that it opened the door for equal access to education.
The issue of intellectual property rights is also complex and debate centers on the question of authorship and potential issues of copyright protections. Western ideas see humanness as individual and separate from social groups whereas native populations view authorship as a group idea. The United States Visual Artist's Right Act of 1990 creates a moral right in intellectual property including paintings, drawings, prints, and sculptures that protects the work of indigenous people and use of their cultural artifacts. The United Nations has also drafted a document specifying moral rights for indigenous people's intellectual property.
Colonialists practiced formal rationality and sought to substantiate their own ways of being by imposing their values, ideologies, and notions of justice over those of indigenous people. Post-colonialists seek justice from the ground up and look at the struggles as ongoing and into future generations. Fanon (1925-1961) set the stage by arguing that white colonizers imposed a negative image on black persons that were degrading, subordinating, and alienating. Post-colonialists seek restoration through resistance to overcome the influence of colonization. Post-colonial theorists believe that principles of social justice emerge from such struggles and will eventually be attained by the people yet to come.
References
Capeheart, L; Milovanovic, D.,(2007). Social justice--theories, issues and movements
Piscataway, NJ: Rutgers University Press.
Relevant Research Regarding Indigenous/Post-Colonial Theories
