Non-extractive mainstreaming

The intersection of Indigenous knowledge and international law in an increasingly global society

Once ignored, the role of Indigenous people in shaping our global futures has become integral in designing pathways to solutions. At a presentation at the ASU Rob and Melani Walton Center for Planetary Health during Earth Week of 2022, Conservation International founder Peter Seligmann said, “40% of this planet Earth is under the active guardianship of Indigenous peoples. These are the peoples who have not only the territory but have the wisdom. These territories are still healthy because they have the innate, committed, culturally shaped belief systems.” Yet, forces imposed upon Indigenous people force displacement, and other systems focus on extracting knowledge for benefit without reciprocation for the property that was cultivated by Indigenous peoples and cultures. In this conversation, three Global Futures Scholars discuss what it means to be Indigenous in this new and rapidly developing world and how this cultural knowledge is being welcomed to the negotiating table.

Melissa K. Nelson is a professor of Indigenous sustainability in the School of Sustainability. Her background as an Indigenous ecologist, writer, editor, media-maker and scholar-activist enables her to be a transdisciplinary and community-based scholar dedicated to Indigenous rights and sustainability, biocultural heritage and environmental justice, intercultural solidarity, and the renewal and celebration of community health and cultural arts. She actively advocates for Indigenous peoples’ rights and sustainable lifeways in higher education, nonprofits and philanthropy, and is particularly passionate about Indigenous food sovereignty at local, regional and global levels.

Timiebi Aganaba is an assistant professor of space and society in the School for the Future of Innovation in Society and an affiliate faculty with the Interplanetary Initiative. She also holds a courtesy appointment at the Sandra Day O’Connor College of Law. Aganaba currently serves on the advisory board for the Space Generation Advisory Council supporting the U.N. Programme on Space Applications, the Science Advisory Board of World View Enterprises and the SETI Institute. Prior to ASU, she was a teaching associate (France, 2008) and associate chair (Ireland, 2017) of the space policy, law and economics department at the International Space University, and has represented Nigeria at the U.N. as a Next Generation Aviation Professional at the International Civil Aviation Organization Model Council in Montreal (2014) and at the legal subcommittee of the Committee on the Peaceful Uses of Outer Space in Vienna (2011).

Faheem Hussain is assistant professor in the School for the Future of Innovation in Society, where he is the chair of the Master of Science in Global Technology and Development program, and has more than 15 years of experience conducting research on socioeconomic development and technological interventions in Asia, Sub-Saharan Africa and North America. With research interests based in digital solutions for refugees, information and communication technology for sustainable development, digital rights, gender empowerment using STEM, and the U.N. Sustainable Development Goals. Beyond academia, Hussain works as a technology policy specialist in various research projects with UN-ESCAP/ APCICT, USAID, international development agencies, including IDRC, DFID, Ford and Rockefeller Foundation, and international think tanks in the fields of technology, public policy and development.

Faheem Hussain: How do you envision Indigenous knowledge or the process of Indigenous decision-making to be a part of the present and into the future — perhaps virtually, and more importantly, integrated from local to global?

Timi Aganaba: It’s fascinating in the context of the fact that we’re talking about people taking spaces in the metaverse, when Indigenous people are still trying to say, “The very spot I’m standing on right now is not mine.” What are we talking about when we’re talking about Indigenous?

Melissa Nelson: Why are we talking about it?

Timi Aganaba: Yes. I have to put my hand up straightaway and say, from my experience of the workplace and other high level environments, people do not have access to African women. So, they think I must know something about what “African” people as a whole think, feel and believe. But of course I have no experience of that. I can’t speak for African peoples, despite my Nigerian origins. I am British by birth and Canadian by choice. But, when talking about the “African” position as a marginalized one, I am an international lawyer, and what I can do is look at how states make decisions and collaborate with each other. How do we figure out who is the decision-maker, who is part of the conversation? And whose version of right or wrong is being considered? It’s only when I went to Nigeria to study law that I learned international law was established by a small group of people, a couple of countries, who went around deciding whatever they wanted to. And that is now international law. The Indigenous perspective to international law is likely about how do you get your system and knowledge into the mainstream, selfdetermination and recognition? If you weren’t there in the past, how are you able to count in the future? Because law is first all about what was already decided. We have to give people an opportunity to say something like the law can and does evolve. And evolution means bringing in new voices and new perspectives because it’s not static. In fact my favorite quote from Duncan Kennedy is, “Once I believed the materials and procedure produced the outcome, now I experience the procedure as something I do to the materials to produce the outcome I want.”

Melissa Nelson: Right. I think you know law and science came out of a handful of people, usually European and usually male. And we think of it as universal knowledge. That is kind of like the trick of intellectual colonialism. We think it’s universal, because we’ve all been brainwashed and taught that it’s universal, through schools and institutions and the power elite, domination through the history of imperialism and colonialism. Indigenous peoples by many definitions are those who have been colonized. Those who have been colonized by a power, foreign or another. Indigenous peoples believe that they are from the land, even though some have migrated. And there are many different theories of migration, and people will always move around. But what’s Indigenous in Africa is going to be completely different from what’s Indigenous in North America, Mesoamerica, Pacific Islands, the Arctic, etc. We are place-based peoples, and so our very concepts of indigeneity are going to completely differ, and no one person can speak for any others.

I am speaking for myself as a mixed-raced Anishinaabe woman. I think that local knowledge is so essential, and yet there’s such a global interest now in Indigenous knowledge. Yet, there are no Indigenous knowledges without Indigenous peoples at the table. How do we elevate Indigenous leaders who hold Indigenous knowledge systems from their local communities, who then can interface with global systems and global dynamics, all within a basis of human rights? We now have the U.N. Declaration on the Rights of Indigenous Peoples (UN-DRIP). I think these are universal mechanisms that many Indigenous peoples now use, because they are about human rights

But we have to be very wary of the European habit of extraction, and recognize that knowledge is often extracted from others.

and Indigenous rights for the first time being explicit and recognized, not being invisible or marginalized. These mechanisms are trying to uplift Indigenous well-being and knowledge systems so that they are on equal footing with European western knowledge systems, not always subsumed under and considered primitive.

There’s finally now an interest by Western science and others about Indigenous knowledge systems, because there are memories and histories in the sciences and stories that go back thousands of years about climate change, about cataclysmic events, about how to live sustainably and self-sufficiently within your home ecosystem. But we have to be very wary of the European habit of extraction, and recognize that knowledge is often extracted from others. Indigenous peoples have had their land taken, their religions taken, their spirits taken and beaten in boarding schools, and now their knowledge is being elevated, but it’s being done often in an extractive way, not in a respectful way.

Faheem Hussain: I am working with some of the most vulnerable communities in the world who have been persecuted based on their ethnicities, persecuted based on the questions of Indigenousness. According to their oppressors, they are “the others,” hence nonhumans, and can be persecuted.

Such problems are amplifying in the digital space as well. In such an oppressive environment, how do you the people who lost lands, rights, languages create their own identity? The Rohingyas do not have alphabets, so for them the digital space is a refuge for their future, or at least for their future generations to keep something to build on not in the digital space, and maybe at some point in the physical space as well. It can be a hybrid way of keeping someone’s culture alive. But then the question remains, are you really doing it in a non-extractive way? Aren’t we using some of the commercially made platforms to store our knowledges, which we hold so dear? But then who decides on the norms of those platforms that are going to be the repository of our Indigenous knowledge? Aren’t we then confining ourselves to some of the parameters decided by somebody living somewhere else with very limited or no knowledge about my culture, lifestyle, values?

Now in this new world, where our physical boundaries are kind of getting redefined by our virtual boundaries — the Republic of Facebook, Republic of Google, and so many other things — who is Indigenous in such spaces? When we talk about citizenship, decision-making is kind of related to my rights. So, when we talk about Indigenousness, as if the hundreds and thousands of years of oppression were not bad enough, now we have to deal with the possible oppressions of the new data/ information regimes and these related questions.

Timi Aganaba: The interesting thing that I heard you not say, that you kind of said, is about identity, right? Everything is about identity. And the interesting thing is all the stuff that I was reading about blockchain and the marginalized was this technology is going to help people that don’t have identity, right? Because they don’t have documents, they don’t have passports, and they are displaced. Without an ID, it’s almost impossible to access financial institutions, attend school and go to the doctor. What are normally day-to-day tasks, like buying groceries, are even more complicated for people that don’t exist in the public record. However, I am pretty sure these people have no idea of the problems that occur due to flaws in blockchain protocols, smart contracts and decentralized autonomous organizations (DAOs).

Secondly, in the context of the U.N. Declaration on the Rights of Indigenous People, a lot of people will talk about the human rights aspect of it. But the interesting thing is because of the diversity of Indigenous people that actually had to come together, everyone had different perspectives on that, and some are more preoccupied with the “international law and constitutional law” issue of self-determination. Western scholars increasingly focus on the human rights aspect as the win. Now, as an international lawyer, the challenge that I have is that national self-determination appears to challenge the principle of territorial integrity (or sovereignty) of states, as it is the will of the people that makes a state legitimate. So what you have with the U.N. declaration, which is not a binding legal treaty, is a political statement that has to be interpreted into the domestic law of the state before it can be implemented.

So yeah, we can be excited that there’s this U.N. declaration, but it’s unenforceable unless it’s in the national law. How is it going to be in the national law if you want to directly challenge the sovereignty of that state? So it’s really, really challenging. And so, talking about non-extractive practices, yes, we say people should come to the table. But most times people don’t know what the issues are that they’re discussing. So yes, you can bring all these people to the table. But if we’re all here talking about this U.N. agreement, and you think it’s a treaty, you think it’s a political statement, you think it’s about human rights, you think it’s about self-determination, how do we even start the conversation? Of course, with education.

Melissa Nelson: Indigenous people interpreted UN-DRIP as responsibilities to their homelands to self-identity and their selfdetermination. So that Indigenous communities in the Arctic and the Amazon, right here in Phoenix and the Salt River Valley, how are these people being impacted and affected by outsiders’ decisions, whether it’s agriculture or mining or a freeway development project? Do they have “free prior and informed consent” to self-determine if and how they want to interface with that project? Because for 500 years in this country, native peoples have not had their self-determination and decisions respected about how they’re impacted by extractivism or so-called development. That is something that I hear from Indigenous peoples all across the world, that they want to say, “These are our lands and we have a right and responsibility to decide what happens to them.”

It can be hard to know what to talk about at the table if you don’t have the vocabulary and the education to understand who the players are, what the legislation means, what the legal contexts are. It really comes back to education, and it is about developing and training leadership within Indigenous communities so that they are rooted within their own Indigenous systems and can play the game of the Western legal system. We often talk about sovereignty from below and sovereignty from above. I know in the U.S. context, we have the nation within a nation, the Native American tribes are quasi-sovereign nations going back to the treaties. And so we take sovereignty and self-determination very seriously, and I know others do as well. But depending on their nation-states, the sovereign laws of the land, many Indigenous peoples are just completely invisible and erased without any sense of rights or self-determination. So again, it’s so hard to speak universally about something that is so locally adapted and unique and contextual.

Faheem Hussain: You talked about the importance of education, and education in a way that helps the people in focus to salvage their mind. To have the agency to do this, not to be overwhelmed and shunned by others. Or not to have so much of a Western education that we start hating ourselves and berating our own culture that has been going on for so many years. If that’s the case, how would you imagine that type of education that can eventually help us to empower that new breed or new generation of decision-makers?

Timi Aganaba: It is kind of figuring out they clearly have tools of decision-making. A lot of education about how many of the practices of decision-making and governance that these communities have are the tools that we use in society. It’s not that it’s a “white” thing to have laws and make rules and decisions. It’s clearly an Indigenous thing. What is the mix-up there? And where I saw this, when I went to law school in Nigeria, was the distinction between customary law and the “received” law. You have your case, you can go to the customary courts, and you can go to the high court. And they’re still valid decisions, and there’s no need to say, well, courts or formal institutions are for white people. The impressive Doctor of Juridical Science (SJD) degree at the Indigenous Peoples Law and Policy (IPLP) Program at the University of Arizona offers candidates an intellectually challenging opportunity for academic specialization. This certainly needs to become more mainstream.

Faheem Hussain: I feel like it has some sort of parallel to traditional medicines and Western medicines, and where in many cases Western medicine became the norm. And if you do not practice that, then you are actually not a doctor. But the traditional medicine had been there for thousands of years.

Melissa Nelson: It’s not to completely replace what’s here. It’s to just be on equal footing. Law, medicine, politics, religion. There’s a full other universe of Indigenous epistemologies and worldviews that have their own legal systems, scientific systems, medical systems, government systems. The United States was founded in some part on the Iroquois Confederacy, the great Six Nations, because these six different tribes were able to work together as a unified confederacy after conflict. This idea of a United States of different entities cooperatively working together in a shared governance structure with semi-autonomy, semisovereignty, but also a larger governing system.

There’s a great saying by a traditional elder from Canada who talks about “two-eyes seeing,” and we’re using that a lot in sciences where you see with both the Western scientific lens and the Indigenous knowledge lens, but it’s the same thing with law. I think it’s important that when we make any decisions we have to open up that there are these other communities that have other systems of knowledge, and usually it’s in their own languages.

I just want to bring in and advocate for the importance of protecting, preserving and revitalizing linguistic diversity and Indigenous languages, because contained within the different languages are these different ways of knowing and learning and being where the legal concepts are, where the scientific understandings are, where the governance systems are. There is a big move by Indigenous peoples globally, working with conservation organizations, to protect biocultural diversity using Indigenous knowledge systems as well as Western science.

Timi Aganaba: If we’re saying that these things need to live together, we’re talking about inclusion. And if we’re talking about inclusion, we can talk about what the challenges are. Why is it not happening? My experience comes from negotiations of the Local Communities and Indigenous Peoples Platform as part of the 2015 Paris Agreement on Climate Change. Indigenous peoples have been trying to formally get into the climate discussions for decades. And then finally, they got this. And it is revolutionary because they are not an official actor in international law. The first question I had was, “Who was “Indigenous” there? Who can speak for Indigenous?” However, what fascinated me was the next day, going into the negotiation room on the agenda item “research and systematic observation.” They were “inadvertently” watering down the impact of what was being negotiated in the other room, adding language like “Indigneous perspectives where relevant.” I was in both those rooms, and I think I’m one of the few people to notice.

Melissa Nelson: I think the question of local and global or universalizing or mainstreaming is a really fascinating question. The whole question of intellectual property rights probably needs to be addressed at some point in this conversation. Some people will only do their Indigenous customary law and do not believe in intellectual property rights and don’t want to use copyrights or trademarks or Western mechanisms. Others feel like they have to use those Western mechanisms because some of their medicinal knowledge, for example, has been exploited by pharmaceutical companies that have made millions of dollars with no benefits brought back to the local people whose traditional knowledge was the basis.

There’s a great Deninu K’ue scholar, Nicole Redvers, who wrote a paper on the Indigenous determinants of planetary health. This is an attempt to kind of universalize the concept of planetary health from Indigenous worldviews and values. It’s not really technical or scientific knowledge per se, but it’s very important knowledge that can be useful as ethical frameworks. I think mainstreaming some of the Indigenous values, some of the sustainable practices, some of the behaviors is a positive move, but it’s much more about ethical issues than technical ones, in how people try to get along and restrain power and negative impact on the planet.

Timi Aganaba: What is knowledge or what is the value that is knowledge? Particularly in the context of the distinction between a public good and an intellectual property. There are some kinds of knowledge that we say are open to the world, right? Because everyone needs that knowledge to be able to exist. But, if the issue is that there’s a spectrum of people who feel certain ways, then what issue are we trying to solve?

Melissa Nelson: Well, we want a viable regenerative future for all. As polarized as we are today, if you poll Americans, they will say, “Yeah, I want my grandchildren to have clean water and clean air and to be able to have food.” You know, all those basic values that we can all get behind. But how are we going to get there? And the equal distribution of those vital resources is a whole other issue.

Timi Aganaba: So my takeaway is essentially that everyone has something to contribute to the world being successful and operating. If there are things that we can learn from other communities or other societies, then we should figure out how we can leverage them and how to bring those perspectives to the table. And then, of course, when they are at the table and proffer solutions, not to water down their contributions in the other rooms!

Faheem Hussain: The other thing, which is very important, is the safe space to share. This idea of pluralism and safe space is so crucial. Here at ASU, we envision our College of Global Futures to be a start of a safe space, an intellectual safe space that can champion pluralism when it comes to intellectual ideas. I think, in this increasingly connected, hybrid digitized society of ours, we will have digital footprints in action trying to put the packages and the lived experiences we have in the physical world. Pluralism can help us to envision and design innovative things in a way that’s truly inclusive. That could be a destination that we all can pursue.