Michael Luoma

This article examines the Wet'suwet’en people's struggle for territorial control over their traditional homeland from the normative perspective of collective self-determination. I focus on two interlocking philosophical questions that arise in examination of the case: the justification for a group's right to control territory and the justification for the right of political institutions and officials within those institutions to make and enforce law for the occupants of the territory. I argue that, pursuant to the collective self-determination theory of territorial rights, the legitimate representatives of the Wet'suwet’en people must reflect the people's shared will. After describing the traditional governance system of the Wet'suwet’en people, I argue that there is nothing in principle preventing the hereditary chiefs from reflecting the shared will of the Wet'suwet’en people (as I argue electoral democracy is not always necessary for collective self-determination). I illustrate several reasons why hereditary leaders could reflect the shared will of Wet'suwet’en people better than alternative political authorities, while demonstrating that the political authority of any Wet'suwet’en governance system depends upon the actual endorsement of Wet'suwet’en people themselves.

Theories of territorial rights centering the self-determination of peoples argue that negotiated agreements are necessary to construct legitimate political institutions in cases marred by settler-colonial wrongdoing. Considering the Canadian treaty process, this paper argues that relations of power in political negotiations between Indigenous and settler peoples are often objectionably asymmetrical, providing for outsized settler political power over the terms of inter-group agreements. By avoiding consideration of the political and legal institutions giving rise to inter-group domination, contemporary theories of territorial rights have not yet provided an adequate account of the conditions necessary for the construction of a legitimate political order. Theorists must do more work to illuminate the root causes of asymmetrical power, and to specify the relevant standards for ‘sufficient symmetry’ of power and resources for treaty negotiations to result in legitimate institutions. Without doing so, our theories of territory are neither complete nor action-guiding, and risk being incoherent, implausible, or self-defeating.

Using the theft of Indigenous land and territory and the destruction of Indigenous political authorities as an example, this paper examines two theories of territorial rights in relation to their treatment of historical territorial injustices. We apply Simmons’s historical theory of rights over territory, and the occupancy/self-determination theory of territorial rights associated with Moore and Stilz, to three problems: the Continuity Problem, the Particularity Problem, and the Distributive Justice Problem. We argue that the occupancy/self-determination theory is more promising for resolving all three, but that the historical title theory can also be modified to accommodate this insight.

This paper examines the normative justification for special rights for Indigenous peoples whose traditional territories straddle contemporary international borders. Examining the Mohawks of Akwesasne (Quebec, Ontario, and New York state) and the Tohono O’odham (Arizona and Sonora, Mexico) as cases, I demonstrate how state claims to territorial jurisdiction and border regulation often interfere with the lives of Indigenous people whose social, cultural, economic, spiritual and political practices and relationships cluster across contemporary international boundaries. Through the concept of group occupancy interests, I argue that members of Indigenous nations whose territories straddle borders possess special rights to access and use lands presently claimed by states of which they are not recognized citizens. Moreover, I demonstrate how border-straddling Indigenous nations challenge the unlimited sovereignty of contemporary states with respect to border policy: the occupancy and self-determination interests of Indigenous peoples may ground the moral rights of their communities to co-manage international border crossings with states. Finally, I argue that collective interests in cross-border political identities and self-determination can ground the rights of Indigenous peoples to form unified cross-border jurisdictional units that demand recognition by states, alongside the rights of Indigenous peoples to regulate group membership.