Rights of Indigenous People: Understanding Indigenous Data Sovereignty in the 21st Century

This article was originally written as an academic paper and is republished here as a knowledge-sharing resource. It has been lightly formatted; statutory references reflect the law as it stood at the time of writing.

Mr. Chaudhary Raj Deepak

Research Scholar

School of Legal Studies,

Babu Banarsi Das University (BBDU),

Lucknow, U.P.

raj95chaudhary@gmail.com

Dr. Srivastava Nitesh

Assistant Professor

School of Legal Studies,

Babu Banarsi Das University (BBDU),

Lucknow, U.P.

niteshyes@bbdu.ac.in

Abstract

The intersection of Indigenous people and digital data encompasses a complex array of opportunities and challenges pivotal to the preservation, empowerment, and autonomy of Indigenous communities worldwide. The doctrine of Indigenous Data Sovereignty (IDS) is the cornerstone that grants the Indigenous communities the inherent right to govern the collection, ownership, and application of data about their people and territories thereby enabling self-determination and also enhances decision-making processes, allowing communities to use data-driven insights to address local needs and challenges.

History shows that by deeming Indigenous people as uncivilised, the colonial forces suppressed the indigenous knowledge and data systems, exploited their natural resources by mining and agriculture and imposed their Western ideas, values and lifestyles causing devastating social, environmental and epidemiological impacts. Education and digital literacy are critical for empowering Indigenous peoples in the digital age. Protecting Indigenous knowledge from exploitation and ensuring that any research undertaken benefits the Indigenous community is an essential factor to be considered, further, digital data platforms must also implement robust measures to safeguard sensitive cultural information and prevent misuse of their data.

The relationship between Indigenous people and digital data is multifaceted, encompassing cultural preservation, data sovereignty, ethical research, education, economic development, and the need to address digital divides and security concerns. By navigating these complexities, digital data can be harnessed as a powerful tool for the empowerment and self-determination of Indigenous communities, fostering a future where their cultural heritage and knowledge are preserved and their autonomy is respected.

Keywords - Indigenous People, Data Sovereignty, International Law, Issues & Challenges in the Digital Age.

Introduction

Tribes, first peoples/nations, aboriginals, ethnic groups, adivasi, janajati, hunter-gatherers, nomads, peasants, hill people, etc., are the terms that for all practical purposes have been in use interchangeably with the term ‘Indigenous People’. According to the common definition, Indigenous People are those who inhabited a country or a geographical region at the time when people of different cultures or ethnic origins arrived. The new arrivals later became dominant through conquest, occupation, settlement or other means. As per 2009 data from the United Nations, worldwide there are more than 370 million indigenous people spread across 90 countries, with up to 5,000 different indigenous cultures around the world. In India, there are 705 ethnic groups officially recognised as “Scheduled Tribes” usually referred to as Adivasis (literally meaning Indigenous people) more than 104 million Indians or 8.6 % of the country’s population belong to constitutionally recognized and protected Scheduled Tribes.

Indigenous peoples are the holders of unique languages, knowledge systems and beliefs and possess invaluable knowledge of practices for the sustainable management of natural resources. For Indigenous people, culture refers to everything they are: their way of living, use of the land, food, rituals, practices and customs. They have a special relationship with and use of their traditional land. Their ancestral land has a fundamental importance for their collective physical and cultural survival as people. Indigenous peoples hold their own diverse concepts of development, based on/ their traditional values, visions, needs and priorities. All this is quantifiable as data and history tell us that Indigenous peoples have been collecting data for millennia, thus, Indigenous Data means and includes information and knowledge about their territories; traditions and culture as well as administrative, census, health, social and commercial information related to their population. Similarly, Indigenous knowledge is defined as knowledge passed on from one generation to the next that can advance scientific research and improve the public image of science, but the fact remains, indigenous knowledge is often viewed as “unscientific” although it is built upon existing scientific knowledge because as the European colonization spread, control of Indigenous knowledge was shifted into the hands of settlers and their governments, they appropriated and exploited Indigenous knowledge, for example biopiracy means exploitation of indigenous knowledge concerning the use of plant-based natural resources through colonial multinational corporations.

Recognising The Rights Of Indigenous People

Given the colonial history of marginalisation of indigenous peoples and a legacy of European knowledge systems being considered superior to others, history shows that always groups/Indigenous were discriminated against, the major problems that have been identified with regard to the indigenous people are increased land conflicts, torture, invasion of territories, moral and collective harassment, attack on social media, collective silencing and racism, political persecution and harassment on social participation. Looking back in time, it can be seen that dominant settlers have exploited the Indigenous resources, land and people making them their slaves. The slavery of Africans or eliminating the Indigenous population by mass killing capturing their land, property & resources, treatment of red Indians or even the domination through legal & economic sanctions that is the domination of India are the few examples that illustrates the treatment of indigenous peoples by dominant settlers.

United Nations Permanent Forum on Indigenous Issues (UNPFII) was established on 28 July 2000 by resolution no. 2000/22 constituted by both Indigenous experts and representatives of states is a high-level advisory body to the Economic and Social Council (ECOSOC), with the mandate to deal with Indigenous issues related to economic and social development, culture, the environment, education, health and human rights.. The UNPFII in its first and second sessions (2002, 2003) recognised that a key challenge faced by national and international bodies is the lack of disaggregated data on indigenous peoples as the absence or lack of data that reflects where and how many Indigenous peoples there are and how they are faring in relation to the realisation of their individual and collective rights. Similarly, the UNESCO Local and Indigenous Knowledge Systems programme has contributed to the promotion of Indigenous people’s participation in the UN system and supporting their advocacy for a greater understanding of their knowledge, systems of transmission, values, practices, beliefs, languages and ways of understanding the world.

At the Regional level, in the case of Worcester v. Georgia (31 U.S. 6 Pet. 515 515 (1832) the U.S. Supreme Court on March 3, 1832, held (5–1) that the states did not have the right to impose regulations on Native American land and the American Indian Tribes were held as sovereign government. In in the 2010 US Census 5.2 million individuals self-identified as American Indian or Alaska Native (AIAN). In 2018, the United States government recognized 573 Native nations and 342 tribes in the lower 48 states with the remaining in Alaska. To protect Indigenous Peoples from the misuse and misappropriation of their tangible and intangible cultural heritage and knowledge, the American Declaration on the Rights of Indigenous Peoples, 2016 recognizes Indigenous Peoples’ rights to ownership, control, development and protection of their cultural heritage, including collective intellectual property rights.

So far as India is concerned little is known about the history of India’s Adivasi although it appears that many were pushed into the hill areas after the invasions of the Indo-Aryan tribes 3,000 years ago. Indigenous peoples were not integrated into Hindu caste society. It was not until the political rule of the British that the government made substantial inroads into Adivasi society. British rule brought money, government officials and moneylenders into indigenous areas, beginning the process of encroachment on Adivasi lands by outsiders. In the 1870s, the British administration exploited these divides by enacting the Criminal Tribes Act branding entire communities as criminals. This act, which lasted until 1949, wasn't just about control-it highlighted how caste was used as a tool of colonial power, deepening the societal rifts in India. As a result, there were Adivasi revolts from the mid-nineteenth century in several parts of eastern India, and this forced the administration to recognize the vulnerable position of Adivasis and pass laws to protect their lands from outsiders. After Independence while the Indian Constitution doesn’t explicitly define “indigenous people”, it recognises and protects the rights of tribal communities, often considered synonymous with indigenous populations. Article 341 of the Constitution of India authorised the President of India to specify ‘castes, races or tribes’ which shall be deemed to be ‘scheduled tribes’. The first amendment to the Constitution passed in 1951 allowed the state to make special provisions for the advancement of socially and educationally backward classes of citizens of the scheduled castes and scheduled tribes. There are reserved seats for scheduled tribes in Parliament and the State Legislatures. The central government has a special commission for scheduled castes and scheduled tribes, which issues an annual report. These reports give accounts of illegal actions against Adivasis and make recommendations to improve their position. The Fifth Schedule for Central India and the Sixth List for certain areas of northeastern India recognise the rights of Indigenous Peoples to land and self-government. Still, in practicality, their implementation is far from being satisfactory. and the condition of Indigenous women is far worse, in the report “Crime in India 2020”, published in October 2021, the National Crime Records Bureau (NCRB) of the Government of India recorded a total of 3,676 cases of violence against tribal women and girls in 2020. Of these, 1,137 were rape cases. India voted in favour of the UNDRIP on the condition that after independence all Indians are Indigenous, therefore, it does not consider the concept of ‘Indigenous Peoples’ and hence, the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) applies to India.

United Nations Declaration On The Rights Of Indigenous Peoples (Undrip)

The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), adopted in September 2007, establishes a comprehensive framework for protecting the rights of Indigenous peoples. Its 46 articles cover various aspects of Indigenous rights, organized into key themes of Self-Determination: Articles 1-6 affirm Indigenous peoples' rights to self-determination, autonomy, and equality, allowing them to govern their internal and local affairs; Life, Integrity, and Security: Articles 7-10 address the rights to life, personal integrity, and security, ensuring protection from violence and discrimination; Cultural and Linguistic Identity: Articles 11-13 emphasize the right to practice, revitalize, and develop Indigenous cultures, languages, and traditions; Education and Public Information: Articles 14-17 focus on education, including the right to state-provided education and the establishment of Indigenous-controlled educational systems; Participatory Rights: Articles 18-23 cover economic, social, and cultural rights, including measures to improve living conditions and protect Indigenous women and children from violence; Lands, Territories, and Resources: Articles 24-31 grant Indigenous peoples rights to their traditional lands and resources, including control over their use and protection from encroachment; Implementation: Articles 32-39 outline how self-determination can be implemented, including traditional judicial customs and the right to treaties. States are also required to support these rights with financial and technical assistance and General Provisions: Articles 40-46 deal with the role of states and international organizations in implementing UNDRIP, emphasizing that these rights are subject to existing international and domestic laws.

Indigenous Data Sovereignty (Ids)

In earlier times, Indigenous data storage took diverse forms, including art, painting, written records, oral traditions, and stories. Today, data permeates our lives daily and a wide-ranging set of issues relating to data consent, use, ownership and storage from legal and ethical dimensions to intellectual property rights have become increasingly complex in the context of research, policy and practice. Nations need data about their citizens, communities, lands, resources, and culture to make informed decisions but the data collected often fails to reflect community needs, priorities, and self-conceptions creating data imbalance that threatens self-determination, limits informed policy decisions and restricts progress toward Indigenous aspirations for healthy, sustainable communities eventually resulting in the development of data infrastructures that are designed based on cultural assumptions leading to systematic misrepresentation of Indigenous peoples.

The doctrine of Indigenous Data Sovereignty (IDS) refers to the collective right to data, the idea is while individuals may hold data and have data rights Indigenous peoples as collectives (or nations) have the right to govern the data about their peoples, lands, and resources. IDS also comprises the entitlement to determine how Indigenous data is governed and stewarded, referred to as Indigenous Data Governance (IDG). IDG provides a framework for protecting the right/claim over the data of Indigenous peoples i.e., IDS. IDS derives from inherent sovereignty and finds its genesis in the oral traditions of Indigenous peoples and community roles and responsibilities.

Central to the concept of IDS is the Consent Rule which requires obtaining explicit permission from Indigenous groups before collecting, using, or sharing their data thereby ensuring that Indigenous peoples maintain control over how their data is managed and prevents the exploitation of their information without their knowledge or approval. Complementary to Consent Rule is the Doctrine of Data Justice which advocates for fair and equitable treatment of data of Indigenous communities rather than exploitation, by ethical handling of data, ensuring that it serves the interests of Indigenous peoples and aligns with their values and aspirations. This Doctrine addresses systemic issues in data management, promoting practices that correct historical injustices and empower Indigenous communities. Misuse or lack of consent in these contexts can lead to misinterpretation or harmful outcomes, underscoring the necessity of integrating Indigenous perspectives and approval throughout the data analysis process. The principle of Notice & Choice mandates transparency about how data will be used and offers options for participation or opt-out ensuring transparency and control over data practices, this transparency will allow communities to make informed decisions about their data and to exercise their rights effectively, aligning with their preferences and priorities. The Right to Participate in Decision-Making promotes right of self-determination and reinforces the sovereignty of Indigenous peoples over their data as it guarantees Indigenous communities have a say in how their data is handled and communities can ensure that data practices reflect their needs and values and that their cultural and ethical considerations are respected.

Presently, collective consumption leads to public interest that is protected through Public Interest Litigation (PIL), in the context of big data, collective usage of data leads to identifying patterns in the behaviour of groups, communities and even the entire country or termed as Social datatification which refers to the impact of data use on social identities and community dynamics, as data can impact how communities perceive themselves and how they are perceived by others, potentially affecting their social cohesion and identity. The application of machine and deep learning on Indigenous data can generate actionable insights, but it must be done with respect and consent to avoid misrepresentation. These technologies have the potential to uncover patterns, trends, and predictions that can support community development and address specific needs. However, their application must be carried out with rigorous attention to ethical standards and the principles of data sovereignty. The CyberTracker application was awarded the Rolex Award for Enterprise and was designed for the Master Trackers of the indigenous community of Kalahari San of Africa who cannot read or write, to record complex field data and replicate biodiversity field thereby empowering Indigenous Communities and gather knowledge for scientific conservation and management applications. The blood sample of Yonomamic people (Havasupai) of Brazil was collected in the year 1960s and 70s for research & development of precision medicine that tailors to clinical, environmental and genetic characteristics of patients thereby reducing the cost of medical treatment, however, the said data was not collected after taking informed consent the questions regarding how the database of the genome would be protected arose as the data collected is a sensitive data that might be even misused to develop tailored biological weapon. Finally, in the year 2017 after a long legal battle to honour the spirits of ancestors, the collected blood samples of the ancestors were buried as per their rituals.

Problems & Challenges

Data collected from Nations/States plays a key role in tracking the progress of Indigenous peoples and respect for Indigenous rights, this collected data has several implications for personal and big data. The commercial importance of Indigenous Data was known to the controllers of Indigenous data. Under IDS, the data governance rights of Indigenous nations apply regardless of where the data is held or by whom. While these and other issue areas have been identified in relation to Indigenous peoples’ collective rights to data, the IDG and data stewardship mechanisms and legal strategies have yet to be fully realised. The IDS has problems the foremost being the Structural imbalance meaning power imbalances between Indigenous communities and external entities (like governments, corporations, and researchers) that control data systems and infrastructures that lead to Indigenous communities having limited say or control over data resulting in potential misuse or misrepresentation of their information. As researchers, governments, or organisations are aware of the appropriate processes. Thus, the aim is for governments, researchers, funders, and others to choose data governance and stewardship mechanisms that better align with Indigenous rights and aspirations; to improve data quality, access, and value; and to invest in building data capacity and infrastructure. Lack of Adequate Regulatory Frameworks Mechanisms for the Protection of Collective Rights, as the existing data protection legal and regulatory frameworks usually fail to protect these collective rights effectively, there is a need for mechanisms that recognise and accommodate Indigenous data governance systems as well as ensure Indigenous groups can collectively manage and protect their data. The traditional notion of Privacy has always been individualistic which is inadequate for addressing the collective nature of Indigenous data, for Indigenous communities, data privacy and protection are often communal, requiring group-level enforcement mechanisms rather than individual consent and control. Risks from Social Media Monitoring and Surveillance of Indigenous individuals and groups can lead to risks such as privacy breaches, profiling, and influencing population movements (e.g., migration and asylum seekers), often without proper consent or consideration of the communities’ rights. The challenge of inconsistent Indigenous identifiers, the siloing of data by sector, laborious or unclear data sharing and access protocols, low investments in Indigenous peoples’ data science skills, and Indigenous nations’ data infrastructures have always existed. The practical problem that arises for Indigenous nations and peoples is there are difficulties in accessing and paying for programmes to build data capacity and a general lack of access to digital hardware, software, connectivity, and funding for issue-specific capacities. The inconsistencies and inadequacies of, and lack of access to, existing Indigenous data systems have led to researchers, data repositories, and data service operations being increasingly aware of the need to understand IDS.

The need of the hour is to empower the Indigenous communities through education and increase Digital Literacy and awareness about data rights and data management so that they are able to understand how digital technologies and data systems work and are able to navigate the data sovereignty issues and the implications of data use both within Indigenous communities and in broader contexts. Implementing robust measures to safeguard cultural information, Indigenous heritage and identity from unauthorized access and misuse, ensuring that it is protected while conducting research the rights and contributions of Indigenous communities must be respected according to the wishes of Indigenous communities, protect the indigenous knowledge from exploitation and if Indigenous data is misused or exploited causing harm to the community’s cultural and moral integrity compensation for these collective moral damages, acknowledging the harm done and providing remedies is the collective responsibility of the world toward the Indigenous communities. At the same time, every Indigenous community face unique local challenges related to data sovereignty, including varying levels of infrastructure, resources, and legal support thus local needs require tailored solutions that consider the specific contexts and priorities of different Indigenous groups.

Conclusion

While there is some nod to the involvement and needs of Indigenous peoples in data gathering, there is a clear implementation gap concerning key provisions of UNDRIP. The global data revolution and associated new technologies can be a double-edged sword for Indigenous peoples. If Indigenous peoples have control over what and how data and knowledge will be generated, analysed and documented, and over the dissemination and use of these, positive results can come about. While the Western idea of ‘data sovereignty’ can be seen as a product of the digital age and nation-state jurisdiction over such data, Indigenous people are asserting their own claims to data sovereignty, which are rooted in their inherent rights to self-determination as sovereign entities predating European settlers. The data that integrates us as human beings–just like the integral parts of our body–is inalienable, therefore, Indigenous peoples should be actively involved in the governance of such data. Although the Government of India has enacted progressive legislation to improve their well-being, Scheduled Tribes remain among the most marginalized and disadvantaged socio-economic groups in India Indigenous Data Sovereignty (IDS) and its implementation mechanism Indigenous Data Governance (IDG) provide a buttress to the likely negative consequences. But without the enactment of systems that support Indigenous interests and Indigenous entitlement to govern the stewardship and application data, the likely result will be just a continuation of the long history of Indigenous data and policy failure.

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Autobiographical Sketch Of Author(S)

Mr. Raj Deepak Chaudhary is a practising Advocate in the Lucknow High Court and a Research Scholar of Dr Nitesh Srivastava, Assistant Professor at Babu Banarasi Das University (BBDU), Lucknow with a flair for research, he has been able to focus on the areas of law which he finds are lacking and pursue them. Mr. Chaudhary has a deep-rooted interest in the subject of Digital Data Protection and its nexus with various ethical issues. Apart from cyber law, he also holds expertise in service law.

Dr. Nitesh Srivastava is an Assistant Professor at Babu Banarasi Das University (BBDU), Lucknow. He has a deep interest in the subject of Digital Data Protection and Artificial Intelligence. His areas of expertise include International Law, Data Protection and Taxation Law. He actively advocates for progressive legal reforms, particularly in the field of data protection and ethics. Outside the classroom, Dr. Srivastava is an avid reader and likes to write for various journals and sites, sharing his views on various subjects.