Indigenous Peoples’ Cultural Rights in Transitional Justice

Abstract The marginalization of cultural rights in transitional justice is inextricably intertwined with the field’s historical marginalization of Indigenous Peoples. While Indigenous Peoples endure the full spectrum of human rights violations, much of the harm they sustain is directed at their unique cultural identities and practices. Forced removals of Indigenous children, the banning of Indigenous languages and dress, restrictions on cultural and spiritual practices and various assimilationist policies have all been pursued by States to culturally eliminate Indigenous Peoples. In the wake of this violence, Indigenous Peoples consistently prioritize approaches that seek to reckon with a loss of culture. Thus, a cultural rights-based approach to transitional justice is most likely to take root in cases of large-scale harm perpetrated against Indigenous Peoples. This chapter charts the evolution of transitional justice’s interaction with Indigenous Peoples, ranging from wholesale neglect to the current emerging consensus that historical and contemporary wrongdoing against Indigenous Peoples can and should be addressed through some sort of transitional justice response. A cultural rights-based lens is then applied to three distinct transitional justice initiatives in the context of large-scale wrongdoing against Indigenous People: (1) Canada’s National Inquiry into Missing and Murdered Indigenous Women and Girls, (2) Victoria’s Yoorrook Justice Commission, and (3) the Peruvian theatre collective Yuyachkani. These diverse cases provide insights into the ways in which transitional justice programming has already begun to embrace a cultural rights-based approach in the case of large-scale harm perpetrated against Indigenous Peoples.

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