Browsing by Author "Belmonte Sanchez, Maria Jose"

According to United Nations indigenous populations inhabit ninety different countries and although some of them have been colonized by the same empires, their colonial experiences were very varied. Even though some indigenous experiences under colonization shared certain commonalities, those of dispossession of land and resources, gradual loss of their legal capacity and sovereignty, assimilation, and evangelization; they also experienced differences, especially in the means or techniques by which these common colonial goals were achieved. Generally, scholars have narrated indigenous peoples stories in two ways, either as sovereigns recognized by colonial powers who should be considered as subjects of international law in equal footing to states; or as people deprived of their sovereignty through unlawful means and legal fictions that rendered them as objects of law, which should be invalidated and consequently corrected by recognizing them as subjects of international law. The fact that scholars have reached two different conclusions when examining the same historical accounts can be explained using specific narrative techniques and problems in their argumentation, methodological and theoretical analysis of legal concepts. This thesis contains an attempt to move past these problems by suggesting a different historical narrative build up on a Third World Approaches to International Law method, one that embraces particularities, highlights the importance of context, and follows legal institutions as they develop in time. This thesis tries to exemplify how a particular history enriches the debate and shows the impossibility of discussing legal concepts as universal truths, and hopes for a shift in scholarship from a universalistic approach of categories and homogeneity, to a more inclusive and particularly rich conception of indigenous legal history. This is achieved by the telling of an indigenous history, which has been selected in terms of its special characteristic in hopes of showing its full complexity. The study focuses on diplomacy and treaty making between the Abenaki and the Province of the Massachusetts Bay from 1693 to 1713. The relations between these two subjects of study has proven to be complex, fluid and adaptive to new circumstances. Is this specific nature, that proves the existence of a much more complex picture than the studied narrative portraits in the modern scholarship. The study of diplomacy and treaty making shows that it was a vehicle for advancing political, legal and economic objectives by both parties, and an important tool for colonization. As it will be explained, political and legal objectives were contrary to each other and hence were never respected nor taken seriously by neither of the parties. Contrary to this, an understanding was reached on economic objectives The thesis concludes with a summary of the complexity of the relations studied and restates the importance of the creation of indigenous histories that will enrich the current debate on legal capacity and sovereignty of indigenous status under international law. It is specially suggested that scholars shift their object of enquiry from treaty making as the pillar on which international legal personality is to be constructed, to the analysis of indigenous legal systems.