Documente Academic
Documente Profesional
Documente Cultură
The legal grounds for the self-determination processes of two different indigenous peoples
in Peruvian Amazonia reveal how the social relationships they establish with nonhumans
enable them to exercise their current rights as “indigenous peoples” in international law.
After examining the scope of the recent 2007 United Nations Declaration on the Rights
of Indigenous Peoples both in this regard and from a historical perspective, I analyze in
particular the notion of “spirituality” used in international law to qualify the relationship
between humans and nonhumans among indigenous peoples. Finally, I argue that this
recent change in the rights of indigenous peoples, considered as human rights, is the sign of
a more widespread change in the nature of a subject of law.
Keywords: Amazonia, indigenous rights, nonhumans, human rights, animism, territory
1. In Latin America, for example, only in the last two decades have states begun to write
their constitutional texts to include the existence of indigenous peoples and the gen-
eral multiculturalism of the societies they represent (see Assies, van der Haar, and
Hoekema 1998; Sieder 2002; Postero and Zamosc 2004). I would like to point out that
the concepts of “indigenous” and “indigenous people,” which are very controversial in
many parts of the world, refer here to the notions stipulated in current international
law (e.g., in the International Labour Organization[ILO] Convention 169 of 1989 and
of “indigenous peoples.” The first is that indigenous peoples possess or have pos-
sessed a political system that organizes social life as a whole in a space deemed to
constitute a sovereign territory. In other words, they possess or have possessed a
form of state that, without necessarily being a modern nation-state with exclusive
jurisdiction over a circumscribed area, nonetheless constitutes the expression of
an equally legitimate sovereignty (Varese 2006; Asch 2014). The second reason is
that indigenous peoples were already socially constituted before the birth of the
states in which they are now located, and have reliable evidence to prove it; some
of them even have legal recognition of their entity granted by the colonial admin-
istration, an absolutely fundamental element that differentiates them from other
minority communities.2 This is the case of many of the Amerindian societies, for
example, that instigated litigation, laws, and decrees from the early years of Euro-
pean expansion throughout the American continent. In brief, if colonial military
conquest does not confer rights to the colonial power, the indigenous peoples re-
main sovereign in their territories, an impeccable argument from the legal point
of view (Anaya 2004: 289; Clavero 2008: 21–52). The third reason concerns the
challenge posed by indigenous notions on the nature of things in general and on
the definition of the limits and contents of what is human in particular, which can
be very far removed from the ontological principles implicit in the history of the
constitutional foundations of the modern state (Viveiros de Castro 2005; Hermitte
2011; Descola 2013).
I have had the opportunity to see for myself the force of these reasons thanks
to long and intense ethnographic fieldwork carried out over a five-year period
(2007–12) as part of a vast regional program of territorial claims filed by several
indigenous peoples in northern Peruvian Amazonia. When the UN Assembly
approved the United Nations Declaration on the Rights of Indigenous Peoples
(UNDRIP) in 2007, the principal Amazonian indigenous organization in Peru asked
me to take part in work on the territorial claims that this declaration now made pos-
sible. But how did I participate in this program as an anthropologist? To explain, I
should first point out that the most significant advance made by UNDRIP regarding
the 2007 United Nations Declaration on the Rights of Indigenous Peoples, UNDRIP).
Based on the idea of the classic nation-state, African states have, perhaps, been the
most reticent in accepting the concept of indigenous peoples, despite the fact that the
African continent was the primary beneficiary of peoples’ right to self-determination
(Anaya 2004: 97–128) during the decolonization process, a legal setting which is the
basis for the current UNDRIP.
2. These two reasons reflect the two principal criteria of indigenous peoples in the defini-
tion most often cited, provided by UN special rapporteur José Martínez Cobo (1986:
379–82): Indigenous communities, peoples, and nations are those which, having a his-
torical continuity with preinvasion and precolonial societies that developed on their
territories, consider themselves distinct from other sectors of the societies now prevail-
ing on those territories, or parts of them. They form at present nondominant sectors
of society and are determined to preserve, develop, and transmit to future generations
their ancestral territories, and their ethnic identity, as the basis of their continued exis-
tence as peoples, in accordance with their own cultural patterns, social institutions, and
legal system.
the previous legal framework is doubtless the proclamation, in its opening articles,
of the right of indigenous peoples to self-determination, which entitles them to re-
claim their territories. UNDRIP also places the rights of indigenous peoples within
the system of fundamental human rights of the United Nations (Anaya 2009). Self-
determination is stated through a legal procedure in which an indigenous people
identifies itself as such and thereby seeks to exercise the rights granted by UNDRIP.
As these are human rights, they need no recognition from any national or inter-
national body, not even the states in which these peoples are located, because, in
principle, they already have it. On the basis of this idea, several indigenous peoples,
particularly in America, have initiated processes which, in brief, consist in: demar-
cation or “auto-demarcation” of the territory (once the boundaries with neighbor-
ing indigenous peoples and other populations have been established); conducting
an anthropological study to demonstrate the presence of this people on this land;
and commissioning a legal study based on the anthropological study in which the
legitimacy of self-determination is argued. Naturally, my work consisted in perform-
ing these anthropological studies, aimed at supporting the legal case with empirical
evidence. I accepted the job in view of my knowledge of the region and the oppor-
tunity it gave me to work with colleagues conducting fieldwork with groups where
my experience was more limited. Thus, I participated in six initiatives of this type for
six neighboring indigenous peoples (the Awajun, Candoshi, Shapra, Shawi, Shiwilu,
and Wampis) occupying a territory larger than the surface area of Portugal. One of
these peoples, the Wampis, has already “self-determined” by approving a constitu-
tional charter named Statute of the Wampis’ Nation and electing governmental bod-
ies whose jurisdiction covers a territory of 1.3 million hectares in the Peruvian state,
between the border with Ecuador and the northern rim of the Alto Marañón River
in the Amazonas Department.3
The collaboration with jurists on this job produced very interesting results from
the anthropological perspective. In this article, I would like to discuss one of these
results, which I found particularly surprising: for present-day law, an indigenous
people is above all one which claims to have social relationships with nonhumans,
who are nevertheless regarded as persons. While anthropology considers this char-
acteristic to belong to an ideology known as “animism,” jurists include it under the
heading of “spirituality.” As we shall see, for the latter it represents the maximum
guarantee that allows an indigenous people to be acknowledged as such, with all
the rights this entails. In most of the six peoples with whom I have worked, “spiri-
tuality” in this sense was simply used as an additional argument, as their historical
and cultural situation left no doubts as to their indigenous status. This was not the
case with the Shiwilu, whose case is an experimentum crucis on the intricate topic
of the recognition of an indigenous people. What follows is a comparative study
of two cases that will allow me to prove this: the Candoshi case, involving the first
3. “Pueblo Wampis conforma primer gobierno autónomo indígena del Perú,” Servindi,
Servicios de comunicación intercultural, November 30, 2015 (https://www.servindi.
org/actualidad/144577, accessed November 10, 2017). “First autonomous indigenous
government in Peru created,” Indian Country Today Media Network, January 24, 2016
(http://indiancountrytodaymedianetwork.com/2016/01/24/first-autonomous-indige-
nous-government-peru-created-163165, accessed November 10, 2017).
indigenous people with whom we worked; and the Shiwilu case. They concern two
indigenous peoples with very different histories of contact with the dominant so-
ciety. This difference in the histories of these peoples has led to a difference in the
current configuration of their territories. The Candoshi represent a paradigmatic
model of an indigenous people as defined by UNDRIP and seek, almost without
needing justification, to claim the rights affirmed by the declaration. The Shiwilu,
in contrast, are a completely different case since they exhibit few apparent indica-
tions of autochthony. What I set out to demonstrate in the following two sections
is that, despite the enormous differences between these two indigenous peoples,
the similar social relationships they each maintain with nonhumans (spiritual re-
lationships in terms of UNDRIP) are the most significant legal argument common
to both for their recognition as subjects of law under the United Nations declara-
tion. After presenting these two cases, I will analyze certain consequences of this
similarity, both from a historical and from a present-day perspective, leading to the
conclusion that the inclusion of indigenous rights in the United Nations system of
human rights augurs an extension of human rights to nonhumans.
Figure 1: Location of the Candoshi and Shiwilu territories in the Upper Amazon.
Figure 2: Location of the Candoshi and the Shiwilu on the map published by Günter
Tessman (1930, Die Indianer Nordost-Perus. Hamburg: Friederischsen, de Gruyter & Co.)
as a result of fieldwork carried out in the early twentieth century (on the map they appear
with the names Kandoschi and Chebero, respectively). Naturally, this map provides
good evidence supporting the territorial demands of these two peoples, and the territory
currently demarcated by them is similar to that indicated by Tessmann.
another chief, heads the group. The relationship between these local groups is one
of relative hostility, which can turn into open aggressiveness. A tacit hostility is
also directed at the non-Candoshi, in other words the Shapra, Achuar, and Urarina
indigenous groups who border Candoshi territory, but above all it is addressed to
the colonial frontier, located on the southern border.
4. The term kadoshi will be translated as “‘we,” even though the personal pronoun of the
first-person plural takes the form kadoshi iya.
of the indigenous Shiwilu people is that while the Candoshi and other neighbor-
ing groups inhabit well-separated dwellings, the Shiwilu live together, concentrat-
ed in a little urban nucleus called Jeberos, which is the administrative centre of a
Peruvian district of the same name.
What led to the Shiwilu being gathered together in a single location with straight
streets and an extremely colonial air? Successfully contacted by Jesuit missionaries
upon their arrival in the region in 1637, the Shiwilu formed part of the first reduc-
tion, or mission-village, established by the Society of Jesus under the name Limpia
Concepción de Xeberos in the former Province of Maynas. This village, strategi-
cally situated at the crossroads of key routes for the means of transport employed
in colonial times, served as a starting point, as well as model and example, for the
evangelization of the entire region. From the Shiwilu point of view, the village rep-
resented protection from the incursions of neighboring indigenous groups, and
above all from the violence of Spanish colonizers, with whom they established an
alliance, which even granted them exemption from paying taxes and tribute to the
Spanish crown (Figueroa [1661] 1904: 67).
The expulsion of the Jesuits in the late eighteenth century, the progressive de-
cline in missionary work during the subsequent decades, and the arrival of mecha-
nized river transport a century later completely changed the geopolitical context
of the region and condemned Jeberos to the extreme isolation it suffers to this day.
However, the form of spatial occupation designed by the mission-village remains
almost unaltered. Today, the Shiwilu continue to be structured on the ground by a
Jesuit reduction that disappeared centuries ago. Any other urban nucleus in west-
ern Amazonia with similar historical circumstances and the consequent isolation
would simply have disappeared, as has been the case with countless settlements.
The permanence of the village of Jeberos against all the odds can be explained by
the desire of the Shiwilu to remain united. The exploitation of the land, necessary
for a subsistence economy like that of the Shiwilu, is carried out on the basis of
what they call “districts” into which the village is divided. From a kinship point
of view, the composition of these districts is similar to the Candoshi local groups
described previously, but all concentrated in one place. Using a radial system of
paths starting out from each of the districts and extending throughout a good deal
of Shiwilu territory, the urbanized population gains access to the vegetable gardens,
rivers, lakes, and woods to extract the resources necessary for their subsistence.
There is insufficient space here to go into the distinctive and, for an indigenous
people of this area, somewhat unconventional characteristics of Shiwilu territo-
riality.5 One thing can be said, however: although an ethnological analysis may
demonstrate the contrary, given the characteristics of their current territoriality
and the history that has shaped it, it seems far from easy at first sight for this com-
munity to fall within the scope of what UNDRIP sets out to protect, and the diffe-
rences from the Candoshi as regards settlement patterns would seem to confirm
this. However, Pedro García Hierro (2011), the jurist who drafted the legal argu-
ment of the Shiwilu declaration of self-determination, has found sufficient grounds
in the “spiritual” relations that this people maintain with nonhumans to conclude
5. For further information, see the excellent works of Ronan Julou (2000, 2009) and, in
particular, his 2006 doctoral thesis.
that they are subjects of law as defined by UNDRIP. Considering the data provided
by the anthropological report, the jurist highlights three items, all of them related
to an alleged spiritual relation with nonhumans (e.g., mythical beings, animal-per-
sons, or “spirits” as auxiliary entities of the Shamans) (ibid.: 128–45).
The first one is the relationship between mythology and a specific territorial
reality. Shiwilu mythology recounts how their mythical nonhuman, nonanimal an-
cestors descended from the mountains to occupy the place where they are currently
settled, their wdeka, the Shiwilu term that expresses the concept of territory. More
specifically, the myth says that a man came down from the mountains after having
killed his wife for failing to look after their daughter, who was abducted by a “spirit”
of the mountain while the woman was in bed with another man. After recovering
his daughter, the man killed his wife and decided that he and the girl had to go far
away to escape from his wife’s family, who would doubtless seek to avenge her death
the moment they found out. In their escape, so the myth goes, they descended the
Marañón River until they reached Tejayacu. They crossed the Aypena River, and,
after an incessant search for an appropriate spot, finally settled. When his daughter
became a woman, the man took her for his wife. They had several children who
grew up quickly and whose sons and daughters also produced offspring, and the
family continued to grow until it formed a people: the Shiwilu.6
The second concerns the role of mythical ancestors in the identification of path-
ways with specific family groups. Mythology also hands down the names of places
where ancestors of the Shiwilu attempted to establish their homes and horticulture
before finally settling in the location where the village of Jeberos is to be found to-
day. The current geographical reality makes it possible to trace the journey related
in the myth and which begins in the Condorcanqui mountain range. From here,
the Shiwilu ancestors take to the waters of the Marañón and navigate downstream
until reaching the Aypena River, which they enter from a watercourse which, ac-
cording to the Shiwilu, connects the Marañón and the Aypena in periods when the
rivers are high. The toponymy, which gives names even to the remotest stream in
both Shiwilu and Spanish, is evidence of the intense relationship this people has
had with the territory since time immemorial, a fact the jurist also highlights in his
argument.
The third and the most important item is the role played by animal-person spir-
itual beings in the demarcation of protected areas and in the handling of the sym-
bolic and practical precautions necessary for the conservation of natural resources.
Among the most significant places in this respect is Lake Pampayacu, which covers
an enormous area in times of high rainfall and acquires fundamental importance
in the “spirituality” of the Shiwilu, for whom it is more than a just a significant
source of fish. It is also the site that was occupied by the first Shiwilu and the home
of spiritual beings who should be respected by the community if they want to avoid
falling from grace. The Shiwilu seek “power” in this place through contact with
beings from nature, and with animals in particular, which facilitates a relationship
with their forebears in a manner similar to the Candoshi rituals described above.
6. As the reader will appreciate, the myth we explain here is merely described in summary
fashion, highlighting only those details that most interest us for their link to the issue of
territory; a far broader vision is given by Ronan Julou (2006: 97–100).
The meetings in Pampayacu act as a source of power and moral teachings for the
Shiwilu through the conversations held with their ancestors via animal-persons.
In fact, the lake hosts aquatic beings which are, as in many Amazonian cultures,
auxiliary entities in shamanism insofar as they are depositories of power, which
they can pass on through ritual gatherings to those who seek and deserve it. These
beings are described by the Shiwilu Meneleo Cariajano in the following account of
Shiwilu cosmology:
In the world of water rules a being who is Dekmuda, whose wife is
Dekmudalun. Their feet face backward, their faces face backward, but
at night return to normal in the light of the moon. They had attendants,
which were the boas. And other beings, such as Sapanak, the dolphin.
But the supreme leader of the work is Cupiwan, the big boa, who takes
the fish to where they make the farms and leaves them there “sowed” in a
lake which never dries up. (Cariajano and Lomas 2000: 225)
Like Lake Pampayacu, other places, such as Viracocha Pasto, Boa Pasto, and
Ballena Pasto, have a similar meaning and function for Shiwilu “spirituality”7 to
that described for the Candoshi in the previous section. For this reason, I will not
provide any further details in this article. What needs to be pointed out here is that,
according to García Hierro, this “spirituality” is a fundamental argument for the
“legitimacy of the Shiwilu people to maintain legal claims in the national and in-
ternational arenas” (2011: 128). To prove the appropriateness and legal grounds for
this argument, the jurist cites abundant jurisprudence, especially that produced by
the Inter-American Court of Human Rights (ICHR). More specifically, García Hi-
erro considers that, as far as the ICHR is concerned, the “places of religious signifi-
cance and importance and ceremonial and ritual sites linked to the occupation and
use of territories constitute an intrinsic element of the right to cultural identity.”8
It may thus be deduced that “the failure to guarantee an indigenous people’s right
to property prejudices the preservation of ways of life, customs, and language of
indigenous and tribal peoples, for whom possession of their traditional territory is
indelibly recorded in their historical memory, and their relationship with the land
is such that severing that tie entails the certain risk of an irreparable ethnic and
cultural loss, with the ensuing loss of diversity.”9 Therefore, by virtue of Article 21
of the American Convention, “the protection of the right to territorial property is
a means to preserve culture and spiritual life, and limitations on that right would
violate Article 12 of the American Convention and Article of the American Dec-
laration.” Last but not least, UNDRIP is highly explicit in this regard in the articles
devoted to territory (25, 26, and 27, as we will see shortly), in which the spirituality
of indigenous peoples is an essential part of their integrity as peoples, affecting the
fundamental rights of the persons who comprise them. To summarize: unlike their
7. See Julou (2006:201) for more complete and precise information in regard to these
places.
8. ICHR, Report No. 40/04, Case 12,053, Comunidades indígenas Mayas del distrito de
Toledo (Belice), October 12, 2004, para. 155
9. ICHR, Caso comunidad indígena Yakye Axa vs. Paraguay, Merits, Reparations, and
Costs, Sentence of June 17, 2005, Series C, No. 125, para. 216.
10. A considerable amount of literature has been devovted to this fundamental right, but I
shall only cite Anaya (2009) as a text subsequent to UNDRIP.
owner. However, it is interesting that this article is preceded by Article 25, which es-
tablishes the right of indigenous peoples to “maintain and strengthen their distinc-
tive spiritual relationship with their traditionally owned or otherwise occupied and
used lands, territories, waters and coastal seas and other resources and to uphold
their responsibilities to future generations in this regard.” Given the order in which
it is placed, this article seems to refer less to a vested right to a territory (as defined
in Article 26) than to the subject of this right. In other words, it refers to the iden-
tity and recognition of the “indigenous people” entitled to claim such a right, who
have a “spiritual relationship” that is “distinctive” in relation to other indigenous
peoples or groups, which have either another type of spiritual relationship or no
spiritual relationship at all. It is also important for my argument that Article 26.3
establishes the following: “States shall give legal recognition and protection to these
lands, territories and resources. Such recognition shall be conducted with due re-
spect to the customs, traditions and land tenure systems of the indigenous peoples
concerned.” Similarly, Article 27 urges states to “establish and implement, in con-
junction with indigenous peoples concerned, a fair, independent, impartial, open
and transparent process, giving due recognition to indigenous peoples’ laws, tradi-
tions, customs and land tenure systems, to recognize and adjudicate the rights of
indigenous peoples pertaining to their lands, territories and resources, including
those which were traditionally owned or otherwise occupied or used.” These two
legal stipulations—(1) the right of indigenous peoples to maintain and strengthen
their “distinctive spiritual relationship” with their lands, territories, waters, coastal
seas and other resources; and (2) the urging of states to recognize “the laws, tradi-
tions, customs and land tenure systems” of indigenous peoples—in the light of the
two ethnographic cases analyzed above (in which these laws and customs also con-
cern nonhumans) seem to suggest that the UN system of human rights is gradually
being extended to nonhumans, a key theme in this text which must be explained
in detail.
To do so, I will begin by answering the following question: What does the no-
tion of “distinctive spiritual relationship” refer to? In the paradigmatic case of the
Candoshi, in the crucial case of the Shiwilu, and in many other indigenous peoples,
this notion refers to the specific discourses and practices that several current stud-
ies define with a new version of the old concept of animism (e.g., Bird-David 1999;
Harvey 2005; Viveiros de Castro 2005; Descola 2013: 129–43). Despite their different
perspectives, these studies would concur on at least two points perfectly illustrated
by the two ethnographic cases analyzed above. The first is that indigenous peoples
do not have or do not wish to have a notion of universal humanity. Indeed, recent
anthropological studies interested in the systems of naming social collectives reveal
that not only do many languages lack such a word, they also seem to have no need
for it as a concept, as we have seen for the Candoshi.11 The second is that animistic
11. Claude Lévi-Strauss was one of the first to introduce this problem when, in the mid-
twentieth century, he suggested that many societies named themselves using the term
which in their language meant “the human,” deducing that an aspect of this society
was lost when group borders were crossed (Lévi-Strauss 1969: 45–47; 1976: 361–63).
However, when explaining the phenomenon in this way, he failed to ask whether the
concept of human being existed for these societies. It was a more gradualist definition
in the sense that only members of the group were true humans, though they were,
at least, prepared to admit a certain amount of humanity in other men. Subsequent
works have confirmed that in many cases it was not a question of possessing a nuanced
definition, as Lévi-Strauss thought, but rather one of not having any definition at all
(see Viveiros de Castro 2005: 39–41).
12. It might be interesting to relate the supplementary right conferred to nonhumans by
indigenous law with the privileged right enjoyed by uncontacted peoples. In both cases,
there is the same paradox: a legal subject is defined but outside the scope of the law
(Bessire 2012; High 2013).
13. On the sixteenth-century origin of international law and human and indigenous rights,
including the disappearance of the issue of indigenous peoples from international law
during its classical period, see Anaya (2004: 23–30) and Rodríguez-Piñero (2005:
115–214).
the right to enjoy the use of their property (especially land) freely and legitimately,
including their established forms of political organization.14
Dominium, however, is a right, and since nonrational beings cannot be the sub-
ject of offense (in Latin iniuira), it follows that they are not entitled to enjoy the use
of that right. As an argument from authority, Vitoria cites Thomas Aquinas, who
stated that only the rational creature is responsible for his actions by virtue of his
power to choose. Therefore, if animals are not masters of their actions, they can-
not be masters of anything else (Vitoria [1539] 1933: 206).15 Vitoria’s citation was
intended to show that, despite everything, Aquinas thought that the rational soul
made man so special as to be considered the only being that had a right to law. In
this way, Vitoria contributes to closing a centuries-old gradualist definition of the
difference between forms of life and establishes a differentiated category of beings,
namely humans, the sole possessors of dominium. To do so, however, Vitoria needs
the modern animal—that is, a mechanical entity with no rights— which Descartes
would later conceptualize.16
In any case, the legal arguments put forward by Vitoria and his followers for the
purpose of establishing limits on the right to go to war, the right to conquer, and
even regulating the rights of the conquered, have been justly considered to be the
origin of international law. Some authors claim that the legal doctrine of the School
of Salamanca foreshadows our human rights, creating the concept of subjects of
universal law based on belonging to humankind, which is implicit in the notion of
dominium. In any event, looking back, the points of law put forward by Vitoria and
his colleagues as a result of the Native American question constitute a major change
whose influence has been exerted almost unmodified until, perhaps, the UNDRIP
proclamation, which, thanks to the direct participation of the indigenous organiza-
tions in its wording, completely reverses the ontological basis of indigenous law.17
14. This interpretation of Vitoria’s work is supported by Padgen (1982: 57–108), and
Pagden and Lawrance (1991: 13–17). For further information on the notion of domi-
nium, see Brett (1997: 10–48).
15. The reference to Aquinas is not ingenuous, because everyone knew that the high-
est scholastic authority for Spanish Thomism endorsed Aristotle’s theory of the soul
(according to which, only humans have a rational soul, but share the vegetative soul
with all living things, and the sensitive soul with all animals), which also implied an
ontological continuity between entities in the world.
16. It should be pointed out that Vitoria did not himself develop an explicit theory on
animal automatism, but other authors from the same period and at the same university
(Salamanca) did, such as Gómez Pereira ( [1554] 2000), who posited the first theory
on the subject in his search for the creation of a human nature. For an invention of a
notion of human nature by European scholars of the sixteenth century following the
discovery of American Indians, see, for example, Padgen (1982) and Surrallés (2008).
17. For a discussion of the place of indigenous peoples in international law during the early
colonial period and the importance of Victoria’s lectures in the history of international
law, and particularly on the origin of human rights, see Thornberry (2002: 61–88),
Anaya (2004: 16–18), and Eide (2006). For the importance of Vitoria in the history of
ideas in general, see Padgen (1982: 57–67) and Pagden and Lawrance (1991: 13–17).
18. See Padgen (1987: 81–91) for more complete and precise information concerning the
notions of dominium and communicatio.
19. They also existed and in fact continue to exist today on dry land in the shape of rights of
passage or way, among the easements that cross private property and grant third parties
certain rights of use, especially transit, which must be respected.
20. On the importance of this point, which was already present in Article 13 of ILO Con-
vention 169 when it affirms the special relationship between indigenous peoples and
their traditional territories and emphasizes that respecting this relationship consti-
tutes a prerequisite for the preservation and development of their distinct cultures, see
Ahrén (2009: 203, 212, and n. 4). For a history of the interconnection of the UN and the
ILO standards in this regard, see Rodríguez-Piñero (2005: 257–331).
Concluding remarks
The processes of self-determination of the two indigenous peoples, the Candoshi
and the Shiwilu, and the ethnographic contents retained by jurists show how ani-
mism transcends the particular ontological background of certain indigenous so-
cieties and spreads into other areas of a more general nature, such as international
law. In this sense, influenced by the representatives of the indigenous peoples at
key moments in the drafting process, the assumption of “animism” under the term
“spiritualism” made by current indigenous law in general, and by UNDRIP in par-
ticular, may represent a change of proportions similar to that represented by in-
digenous law in the sixteenth century. At that time, the preeminence of dominium
brought an end to the right of conquest, leaving communicatio as the sole higher
right. Today, indigenous law seems to be bringing the preeminence of communica-
tio to an end. If in the sixteenth century it was a question of defining the contours of
one single subject of law, today the issue is rather one of a proliferation of profiles,
with which we enter into a world of multipurpose definitions of the very idea of
the subject and of the principles of identity and otherness in which it has hitherto
been confined.
Since Vitoria, the only subject of law is the human because humans alone are
considered rational beings. For Vitoria, offense can only be felt by rational subjects:
that is, those aware of the offense being committed against them. And this is so
because evaluating the significance of an act entails a rational analysis of the pros
and cons that the act represents in the light of natural law. For its part, natural law
is the reflection of divine will, accessible only through the prism of the intellec-
tive and rational faculty of the soul that humans possess to the exclusion of other
beings in creation. Today all of this is no longer necessary. The “feeling dimen-
sion” of subjectivity is enough to create the subject of law. There is no “rational”
justification that could sever the affective link toward other people or objects as a
basic principle of law. Obviously I am not saying that indigenous peoples are not
rational or that they are not aware of their rights. On the contrary, I think that this
paradigmatic change is due precisely to the direct authorship of an organized in-
digenous movement aware that there exists an ontological debate in the foundation
of the law over what is human and what is nonhuman, and in which the concept of
rationality has played a fundamental role, always in opposition. What I am saying
is that being aware of the corresponding rights is not an essential condition, be-
cause the affective link to the multiple entities living in the same territory implicit
in the definition of spirituality in UNDRIP is not a rational act of conscience. It
is precisely in this point where, by being declared an element of the human rights
system, the advance introduced by UNDRIP represents a profound transforma-
tion of subjectivity expressed by a change in the ontology of the subject of funda-
mental law, which moves from the “thinking subject” to the “feeling subject.” If we
are leaving behind the thinking subject of law and witnessing the emergence of a
sentient subject of law in the very core of human rights, we must expect an exten-
sion of human rights to nonhumans. In addition, this nascent extension of human
rights, via indigenous rights, to nonhumans corresponds to the proposals made by
animal rights supporters. Indeed, despite different approaches, the histories and
cultural assumptions about the nature of animals, humans, and nonhumans—en-
tailing very distinct political stances on a range of different issues, and sometimes
confrontations (see Wenzel 1991)—are both concerned with the ability to feel that
is shared by animals and humans alike.21 An extension of human rights to nonhu-
mans, an idea that would have been considered foolish not so long ago, still seems
distant today. But a common subjectivity based on feelings—that is, based on the
sharing of the “sensitive faculty of the soul” (to borrow the scholastic terms used by
the School of Salamanca)—may be close.
Acknowledgments
For her support and insightful comments, I am grateful to Hélène Artaud. For
their extremely helpful and valuable comments, I also extend my thanks to Fed-
erica Barclay, Philippe Descola, and Pedro García Hierro. Finally, I would like to
express my thanks to Giovanni da Col and Michael Lambek for their very kind help
as editors.
21. Proof of this may be found in Article 13 of Title II of the recently approved Treaty on
the Functioning of the European Union (TFEU), which considers animals “sentient
beings,” with all that this entails for their wellbeing.
References
Ahrén, Mattias. 2009. “The provisions on lands, territories and natural resources in the UN
Declaration on the Rights of Indigenous Peoples: An introduction.” In Making the dec-
laration work: The United Nations Declaration on the Rights of Indigenous Peoples, edited
by Claire Charters and Rodolfo Stavenhagen, 200–15. Copenhagen: International Work
Group for Indigenous Affairs.
Anaya, James. 2004. Indigenous peoples in international law. Oxford: Oxford University
Press.
———. 2009. “The right of indigenous peoples to self-determination in the post-declaration
era.” In Making the declaration work: The United Nations Declaration on the Rights of
Indigenous Peoples, edited by Claire Charters and Rodolfo Stavenhagen, 184–99. Co-
penhagen: International Work Group for Indigenous Affairs.
Asch, Michael. 2014. On being here to stay: Treaties and aboriginal rights in Canada. To-
ronto: University of Toronto Press.
Assies, Willem, Gemma van der Haar, and André J. Hoekema, eds. 1998. Challenge of di-
versity: Indigenous peoples and reform of the state in Latin America. Amsterdam: Thela
Thesis.
Bellier, Irène. 2011 “Misunderstanding of autochthony vis-à-vis the question of indigenous
peoples.” Social Anthropology 19 (2): 204–6; and Response to Peter Geshiere, 209–11.
———. 2012 “Les peuples autochtones aux Nations Unies: La construction d’un sujet de
droits/acteur collectif et la fabrique de normes internationales.” Critique internationale
54: 61–80.
Bessire, Lucas. 2012. “The politics of isolation: Refused relation as an emerging regime of
biolegitimacy.” Comparative Studies in Society and History 54 (3): 467–98.
Bird-David, Nurit. 1999 “‘Animism’ revisited: Personhood, environment, and relational
epistemology.” Current Anthropology 40: S67–91.
Brett, Annabel S. 1997. Liberty, right, and nature: Individual rights in later scholastic thought.
Cambridge: Cambridge University Press.
Brown, Michael F. 1985. Tsewa’s gift: Magic and meaning in an Amazonian society. Washing-
ton, DC: Smithsonian Institution Press.
Cariajano, Meneleo, and Francisco Lomas. 2000. “Como el picaflor: Cosmovisión shiwilu.”
In El ojo verde: Cosmovisiones Amazónicas, edited by Gredna Landolt, 225–32. Lima:
Fundación Telefónica.
Clavero, Bartolomé. 2008. Geografía jurídica de América Latina: Pueblos indígenas entre
constituciones mestizas. Mexico: Siglo XXI.
de la Cadena, Marisol. 2010. “Indigenous cosmopolitics in the Andes: Conceptual reflec-
tions beyond ‘politics’.” Cultural Anthropology 25 (2): 334–70.
Descola, Philippe. 1994. In the society of nature: A native ecology in Amazonia. Translated by
Nora Scott. Cambridge: Cambridge University Press.
———. 2013. Beyond nature and culture. Translated by Janet Lloyd. Chicago: University of
Chicago Press.
Eide, Asbjørn. 2006. “Rights of indigenous peoples: Achievements in international law dur-
ing the last quarter of a century.” Netherlands Yearbook of International Law 38: 155–212.
Figueroa, Francisco de. (1661) 1904. Relación de las misiones de la compañía de Jesús en el
país de los Maynas. Madrid: Colección de Libros y Documentos referentes a la Historia
de América, Tomo I.
García Hierro, Pedro. 2011. Aportes a la sustentación al derecho al territorio integral del
pueblo shiwilu del Distrito de Jeberos. Report. Lima: Documentos AIDESEP.
García Hierro, Pedro, and Alexandre Surrallés. 2009. Antropología de un derecho: El derecho
a un territorio como derecho humano. Copenhagen: International Work Group for In-
digenous Affairs.
Garra, Simone. 2012. “El despertar de Kumpanam: Historia y mito en el marco de un con-
flicto socioambiental en la Amazonía.” Anthropologica, 30: 5–28.
Gausset, Quentin, Justin Kenrick, and Robert Gibb, eds. 2011. “The uses and misuses of
‘indigeneity’ and ‘autochthony’.” Special issue, Social Anthropology 19 (2).
Hallowell, A. Irving. 1960. “Ojibwa ontology, behaviour, and world view.” In Culture in
history: Essays in honour of Paul Radin, edited by Stanley Diamond, 19–52. New York:
Columbia University Press.
Harvey, Graham. 2005. Animism: Respecting the living world. Adelaide: Wakefield Press.
Hermitte, Marie-Angèle. 2011. “La nature, sujet de droit ?” Annales: Histoire, Sciences So-
ciales 66 (1): 173–212.
High, Casey. 2013. “Lost and found. Contesting isolation and cultivating contact in Amazo-
nian Ecuador.” Hau: Journal of Ethnographic Theory 3 (3): 195–221.
Ingold, Tim. 2000. The perception of the environment: Essays in livelihood, dwelling and skill.
London: Routledge.
Julou, Ronan. 2000. “Les prédateurs d’Histoire ou la reconstruction du passé par les Indiens
jebero.” Bulletin de l’Institut français d’études andines 29 (2): 189–214.
———. 2006. “L’autre en soi: Interiorisation de l’altérité et métamorphose identitaire chez
les Jebero d’Amazonie péruvienne.” Unpublished doctoral dissertation. Paris: École des
hautes études en sciences sociales.
———. 2009. “Mon parent, ce nouvel ennemi: Relations matrimoniales et intériorisation de
l’Autre chez les Jebero d’Amazonie péruvienne.” Journal de la société des Américanistes
95(1): 7–39.
Kenrick, Justin, and Jerome Lewis. 2004. “Indigenous peoples’ rights and the politics of the
term ‘indigenous’.” Anthropology Today 20 (2): 4–9.
Kuper, Adam. 2003. “The return of the native.” Current Anthropology 44 (3): 389–402.
Lévi-Strauss, Claude. 1969. The elementary structures of kinship. Boston: Beacon Press.
———. 1976. Structural Anthropology. Volume II. Translated by Monique Layton. Chicago:
University of Chicago Press.
Mader, Elke.1999. Metamorfosis del poder: Persona, mito y visión en la sociedad Shuar y
Achuar. Quito: Ediciones Abya-Yala.
Martínez Cobo, Javier. 1986. “Study of the problem of discrimination against indigenous
peoples.” UN Doc. E/CN.4/Sub.2/1986/7 and Add. 1-4.
Niezen, Ronald. 2003. The origins of indigenism: Human rights and the politics of identity.
Berkeley: University of California Press.
Pagden, Anthony. 1982. The fall of natural man: The American Indian and the origins of
comparative anthropology. Cambridge: Cambridge University Press.
———. 1987. “Dispossessing the barbarian: The language of Spanish Thomism and the de-
bate over the property rights of the American Indians.” In The languages of political
theory in early-modern Europe, edited by Anthony Pagden, 79–98. Cambridge: Cam-
bridge University Press.
Padgen, Anthony, and Jeremy Lawrance, eds. 1991. Francisco de Vitoria: Political writings.
Cambridge: Cambridge University Press.
Pereira, Gómez. (1554) 2000. Antoniana Margarita. Santiago de Compostela: Editorial de la
Universidad de Santiago de Compostela.
Pitrou, Perig. 2016. Le chemin et le champ: Parcours ritual et sacrifice chez les Mixe de Oax-
aca (Mexique). Nanterre: Société d’ethnologie.
Postero, Nancy Grey, and Leon Zamosc, eds. 2004. The struggle for indigenous rights in
Latin America. Brighton: Sussex Academic Press.
Povinelli, Elizabeth A. 1995. “Do rocks listen? The cultural politics of apprehending Austra-
lian aboriginal labor.” American Anthropologist 97 (3): 505–18.
Rodríguez-Piñero, Luis. 2005. Indigenous peoples, postcolonialism, and international law:
The ILO regime (1919–1989). Oxford: Oxford University Press.
Rubenstein, Steven Lee. 2012. “On the importance of visions among the Amazonian Shuar.”
Current Anthropology 53 (1): 39–79.
Sax, William S. 2009. God of justice: Ritual healing and social justice in the Central Himala-
yas. Oxford: Oxford University Press.
Sieder, Rachel, ed. 2002. Multiculturalism in Latin America: Indigenous rights, diversity, and
democracy. New York: Palgrave Macmillan.
Surrallés, Alexandre. 2003a. Au coeur du sens: Perception, affectivité, action chez les Can-
doshi. Paris: Centre national de la recherche scientifique et Maison des sciences de
l’homme.
———. 2003b. “Face to face: Meaning, feeling and perception in Amazonian welcoming
ceremonies.” Journal of the Royal Anthropological Institute (N.S.) 9 (4): 775–91.
———. 2008 “Intériorité, cœur et âme en Amérique indienne.” In Études sur le moi et
l’intériorité, edited by Gwenaëlle Aubry and Frédérique Ildefonse, 303–21. Paris: Vrin.
———. 2016. “On contrastive perception and ineffability: Assessing sensory experience
without colour terms in an Amazonian society.”Journal of the Royal Anthropological In-
stitute (N.S.) 22 (4): 810–29.
Surrallés, Alexandre, and Pedro García Hierro, eds. 2005. The land within: Indigenous ter-
ritory and perception of the environment. Copenhagen: International Work Group for
Indigenous Affairs.
Taylor, Anne Christine. 1996 “The soul’s body and its states: An Amazonian perspective on
the nature of being human.” Journal of the Royal Anthropological Institute (N.S.) 2 (2):
201–15.
Thornberry, Patrick. 2002. Indigenous peoples and human rights. Manchester: Manchester
University Press.
Tobin, Brendan. 2014. Indigenous peoples, customary law and human rights—why living law
matters. London: Earthscan Routledge.
United Nations. 2007. United Nations Declaration on the Rights of Indigenous Peoples. http://
www.un.org/esa/socdev/unpfii/documents/DRIPS_en.pdf.
Varese, Stefano. 2006. Witness to sovereignty: Essays on the Indian movement in Latin Amer-
ica. Copenhagen: IWGIA
Vitoria, Francisco de. (1539) 1933. Relectiones theologicae: Relecciones teológicas, edited by
Luis G. Alonso Getino. Madrid: Publicaciones de la Asociación Francisco de Vitoria,
Impr. La Rafa.
Viveiros de Castro, Eduardo. 2005. “Perspectivism and multiculturalism in indigenous
America.” In The land within: Indigenous territory and perception of the environment,
edited by Alexandre Surrallés and Pedro García Hierro, 36–75. Copenhagen: Interna-
tional Work Group for Indigenous Affairs.
Wenzel, George W. 1991. Animal rights, human rights: Ecology, economy, and ideology in the
Canadian Arctic. Toronto: University of Toronto Press.