Gender Equality and Indigenous Peoples' Right to Self-Determination and Culture

I. INTRODUCTIONLet us begin by imagining a community that identifies itself as indigenous and calls itself Sukiris. The Sukiris have lived in the Sukiry jungle long before it came to be part of the territory of the State of Palamor, a constitutional democracy in Latin America that ratified all the main human rights treaties in the universal and regional system. In general, the Sukiris are able to enjoy and transmit their culture, as well as to decide over their affairs in an autonomous manner. In this sense, Palamor recognizes the Sukiris as Indigenous Peoples, and its constitution incorporates the fundamental principles established in the Declaration on the Rights of Indigenous Peoples (the Declaration),1 particularly the right to self-determination. Consequently, the Sukiris have a constitutionally recognized property right over their territories and natural resources and a right to benefit from them economically. Moreover, the Palamorese government is very respectful of its obligation to consult the Sukiris' authority before initiating development projects that may affect their territories and is conscious of sharing the benefits. Lastly, the Sukiris have permanent representatives in the national government and congress, and a special procedure allows the Sukiris to object to any law, policy, or regulation that could interfere with their cultural practices.As a consequence of this political arrangement, the Sukiris' culture has thrived, allowing the Sukiris to develop a sustainable economy that allows their small community to enjoy their traditions and basic human rights as a collective, while concurrently enjoying individual rights as full citizens of Palamor.This story, however, seems unlikely. Indigenous communities around the world are threatened by extinction, and their members are among the poorest and most marginalized integrants of our societies. Governments have long believed that by implementing inclusive policies, indigenous communities would gradually assimilate to the larger societies and cultures surrounding them, highlighting that such inclusive policies are good for Indigenous Peoples.2 The consequence has been decades of neglect and discriminatory practices toward indigenous traditions, cultures, and demands, particularly toward the most important demand of all: Indigenous Peoples have the right of non-accommodation. Yet, the Sukiris' story may not be that hard to imagine because it likely represents the answering of many Indigenous Peoples' demands. It represents the goal of the very important set of international norms that the international community has adopted and that are enforced by international mechanisms. Thus, if the Sukiris' situation were extended to the different indigenous communities around the world, the international community would likely say that the situation is close to ideal. This essay poses the argument, however, that the international community's situation for indigenous communities still lacks fundamental protections for individuals within the indigenous communities. It argues that while the international legal framework is appropriately designed to address the rights of indigenous communities and their individual members vis-a-vis the State and the larger society, it fails to address situations of gender inequality within the community. The right to selfdetermination, as it is currently applied to indigenous communities, can serve as a perpetuation of certain cultural practices that inhibit indigenous women from enjoying equal rights to their male counterparts.3 To demonstrate, let us revisit the Sukiris' almost ideal situation, but this time let us look inside the community. First, by ancestral law, the Sukiri Council, the body in charge of making the most important political decisions for the indigenous community, can only be comprised of male members, which is also true for the representatives of the community that can be elected to the national government. …