Group-differentiated Rights for Indigenous Communities That Straddle Borders

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.