Emerging Indigenous Governance. Ainu Rights at The Intersection of Global Norms and Domestic Institutions

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Alternatives 33 (2008), 5382
Emerging Indigenous Governance:

Ainu Rights at the
Intersection of Global Norms
and Domestic Institutions
Erik Larson, Zachary Johnson,
and Monique Murphy*
While indigenous peoples have made great strides to institutionalize principles supporting indigenous rights in the global
arena, many of these advances will require recognition and
implementation by nation-states in domestic contexts to have
their greatest effect. How do these emerging global norms
shape the potential for indigenous peoples to influence domestic governance? To provide insight into this question, we
use historical research and interview data to examine Japans
policy toward the Ainu. Globally, indigenous peoples are defined by a collective subjective process; that is, in international
meetings in which indigenous peoples participate, indigenous
peoples act together to recognize other peoples as indigenous.
Such recognition by the global indigenous peoples movement
provided legitimacy and enhanced agency for the Ainu in the
face of the Japanese governments continued nonrecognition
of the Ainu as an indigenous people. Despite this international
legitimacy, the institutional structures of the Japanese state
mediate the effects of international influences and limit Ainu
domestic self-determination and participation in governance.
Domestic policies based on cultural promotion and Ainu welfare provide few points of direct contact between Ainu leaders
and the Japanese bureaucracy; further, these points of contact
tend to be isolated from the parts of the bureaucracy most subject to international influence. Although the pace of change
has been slow and its extent limited, Japans continued lack of
*Erik Larson, Sociology Dept., Macalester College, 1600 Grand Ave., St. Paul, MN. Email: larsone@macalester.edu
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Emerging Indigenous Governance
recognition of the Ainu as an indigenous people creates policy tension that enables Ainu and others influenced by global
norms to use these limited channels of domestic influence and
global pressures to renew calls for further changes. KEYWORDS:
As a consequence of the success of the global indigenous peoples

movement, international bodies have established a baseline of
global norms concerning indigenous rights. Although few formal
mechanisms exist for exercising these rights, emergent norms
shape governance. Internationally, the premises underlying indigenous rights have become resources that enable expanded agency
for indigenous peoples and that provide for legitimacy of international action.1 While the transnational indigenous peoples movement and the secretariats of international organizations regulate
access to these global resources, these actors have little authority in
domestic contexts governed by nation-states. Accordingly, the influence of global norms depends on their diffusion to and implementation in domestic environments. 2 The outcomes of normative
diffusion, therefore, depend on the manners in which the global
principles intersect with and are incorporated into domestic governance processes, particularly definition and policymaking.
While global norms can produce language and ideas that enable
domestic actors to reframe grievances into principled claims, 3 this
effect presumes that the global definitions have domestic salience.
Aggrieved actors need to identify with the global normfor example, they would need to identify themselves as an indigenous peopleand domestic political actors must recognize the category of
actor in order for these principled claims to be compelling. A comparison of womens rights and indigenous peoples rights exemplifies this point: Principles of womens rights are less likely to face
problems of recognition in diffusion than principles of indigenous
peoples rights since global and national definitions of who is a
woman likely differ less than definitions of who is indigenous. Without any preexisting salience to the identity, actors must assert the
identity as a recognizable and legitimate basis for action within the
polity.4 These definitional processes mark important transitions
since identities influence actors perceptions of their interests.5
The likelihood of actors claims for recognition succeeding may depend on expectations of what the consequences are for such recognition and how these consequences relate to the identity and interests of dominant state actors since compliant implementation of
global norms is more likely when challengers and incumbents find
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Erik Larson, Zachary Johnson, and Monique Murphy
55
common interest in compliance.6 Thus, perceptions that indigenous

rights may challenge states sovereignty could result in states resisting
recognizing indigenous peoples.
Domestic policymaking processes also seem likely to shape the
implementation of diffused global norms. In response to contentious
claims by relatively weaker parties, international bodies frequently
respond by developing soft law.7 For implementation, such ambiguous law requires even greater interpretation than more explicit law.8
While emerging global norms can reshape state actors perceptions
of their interests and while underresourced domestic actors can use
these norms to pursue change,9 the necessity of interpretation raises
questions about which actors have input on and determine decisions
about the applicability of these global principles in a domestic context and how these actors interact with one another. Rather than
expecting the state as a whole to be exposed to and embrace global
norms, we examine how actors at the interstices of global and
domestic fields react to global norms. These actors occupy receptor
sites in which global norms may be brought into the domestic context.10 In other words, we ask how and how effectively state and nonstate actors exposed to global norms bring these norms to bear in
domestic concerns.
To provide insight into how the intersections of global norms
and domestic institutions shape the diffusion of indigenous governance, we examine the Ainu in Japan. While Ainu histor y parallels
the history of other indigenous peoples in industrial capitalist democracies, the Ainu were relative latecomers to the global indigenous peoples movement.11 Accordingly, their history allows us to
examine the influence of international developments on domestic
events. Additionally, the relative receptivity of the Japanese government to international influence permits us to examine a variety
of potential intersections of global norms and domestic institutions.12 We base our analysis on data we collected through archival
research and interviews that we conducted with government officials and Ainu leaders and activists in Japan.
We find that the Ainu movement itself is bound up with governance of both the global indigenous peoples movement and the
institutional patterns of the Japanese state. The global indigenous
peoples movement provided important support to the development
of the Ainu as an indigenous peoples movement by recognizing and
certifying the Ainu as an internationally legitimate indigenous people. The Ainus international involvement and recognition open the
Japanese government to international influences; however, we find
that these influences are mediated by Japanese state structures,
which provide limited means for Ainu participation in governance.
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The states institutional patterns shape the range of issues on the

Ainu-rights agenda, while also creating potential allies for the Ainu.
National Ainu policy has focused on cultural promotion and
preservation, limiting the means for Ainu to make claims concerning more fundamental rights. By defining Ainu issues as associated
with cultural matters, the policy has kept Ainu claims to land rights,
economic rights, and political rights off the national agenda. The
federal nature of Japanese government has left the Hokkaido prefectural government responsible for administering social support
and service programs for the Ainu, restricting the range of issues
for which there is local responsibility. Due to these institutional patterns, Ainu organizations have limited points of contact to influence national policy and to renegotiate state claims to sovereign
control over resources.
Additionally, actors in the Japanese government exposed to
global normative pressures have little direct interaction with Ainu
specialists. Despite this seemingly ineffectual institutional arrangement, the combination of domestic struggle and international pressures has facilitated progressive development of Ainu policy. Ainu
activists outside of formal domestic governance structures and the
global indigenous peoples movement have spurred changes in Ainu
policy. Additionally, the resulting incremental increases in Ainu participation have created a foundation for greater Ainu control over
some government resources.
The Global Indigenous Peoples Movement and the Ainu

The global indigenous peoples movement has expanded the scope
of indigenous peoples agency in the global arena. In creating the
possibility for nonstate, collective involvement in global governance,
the indigenous peoples movement has helped transform the ontology of international relations.13 Despite the slow pace of progress on
formal documents, the movement and staff of global bodies have
achieved a base of legitimacy for indigenous rights underlying a variety of actions in many fora.14
While support from some allies may rest on tenuous understandings of the content of indigenous politics, the movements
true success has been to articulate self-determination as a concept
unifying diverse indigenous peoples from around the world. 15 At
its heart, self-determination entails indigenous peoples freely pursuing their economic, social, and cultural development and determining their political status.16 In this manner, the expansion of indigenous peoples agency globally reflects the institutionalization
of the principle of self-determination.
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The process of identifying indigenous peoples provides a clear

example of self-determination in practice. Debate concerning defining indigenous has centered on an objectivist-subjectivist
divide. An objectivist definitionbased on a set of criteria to determine who is indigenousresults in over- or underidentification
due to the diversity of indigenous peoples experiences and the
potential for state interference with claims of indigenous status.17
Subjectivist definitions allow indigenous peoples to identify themselves; however, the Working Group on Indigenous Populations
experience of individual self-identification illustrates the difficulties,
as demonstrated by the controversy over Afrikaner/Boer participation in the working group in the middle of the 1990s. In response
to these situations, the chairperson-rapporteur prepared a document on the concept indigenous, concluding that a precise objectivist definition was impossible and that a subjectivist definition
better fit with self-determination. 18 In practice, the working group
went beyond a simple subjectivist approach, identifying as indigenous those who feel themselves to be indigenous and are accepted
as such by members of the group and relying upon organizations
of indigenous peoples themselves to draw attention to any improper
assertions of the right to participate as Indigenous peoples.19
This practice represents a collective subjectivist definition of indigenousthat is, indigenous peoples acting as a whole identify
others who are indigenous. Indigenous peoples thereby possess a
collective authority that extends beyond an individual people and
also possess self-determination as a collective actor in global governance.20 For instance, beyond serving to identify who is indigenous, the Indigenous Peoples Caucus has effective power to nominate members of the Permanent Forum on Indigenous Issues.
The global indigenous peoples movements collective agency
has helped the Ainu frame their movement as an indigenous peoples movement and served as an alternative basis for Ainu identity
in the face of Japanese claims of assimilation. The Ainu people
inhabited Hokkaido (Ezo), Sakhalin, northern Honshu, and the
Kurile Islands prior to Japanese and Russian territorial expansion.
As part of its colonial settlement policy, Japan annexed Hokkaido
in 1872 and claimed it as terra nullius, limited the ability of Ainu
to sustain their livelihood traditionally, and coerced the Ainu into
agricultural production.21 In the face of increasingly acute threats
to Ainu survival, the government of Hokkaido joined humanitarian
reformers to call for government intervention. In response, Japan
passed the Hokkaido Former Aboriginal Protection Act (HFAPA)
in 1899.22 The HFAPAs protection largely consisted of paternalistic social-welfare measures to assimilate the Ainu into Japanese
society. While the HFAPA set aside land for Ainu agriculture, the
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law allowed the governor of Hokkaido to have administrative authority over this property.
The social-service orientation of Japanese Ainu policy continued with the founding of the Hokkaido Ainu (Utari) Kyokai as part
of the social section of the Hokkaido government.23 Although
founded as a social-welfare organization, the Kyokai also had the
effect of providing the Hokkaido government a single point of contact with the Ainu. Despite fluctuating levels of membership, the
Kyokai served to unite Hokkaido Ainu within one administrative
body.
By the 1960s, Ainu resistance, led by those outside the formally
recognized channels, ushered in an Ainu renaissance that focused
on the preservation of the Ainu as a distinct, nonassimilated population in Japan. This movement increasingly challenged the welfarist and assimilationist orientations of Japanese policy and the
leadership of the Kyokai.24 Ainu challenges to assimilation attracted
attention from opposition political parties, elevating the status of
these concerns. While government representatives held that Ainu
welfare measures attempted to foster equality, critics saw these policies as attempts to extinguish a distinct Ainu culture. 25
During the same period, participants in the global indigenousrights movement began to contact the Ainu. In 1977, two Inuit
leaders who were in Japan for an international whaling convention
meeting visited Ainu leaders in Nibutani. 26 The Inuit leaders saw
the meeting as an opportunity to promote solidarity. One of these
Inuit leaders, who was chair of the Inuit Circumpolar Conference,
stated: The Ainu have their rights and they are the same rights as
those of the Eskimo.27 After this initial meeting, further exchanges
included discussion about steps that indigenous peoples were taking to meet and work on developing protections and rights,28 And
an Ainu leader concluded that there is no limit to what oppressed
people can do when they meet and work together and that in the
future they would continue to maintain connections with indigenous peoples.29
In 1981, Ainu representatives first attended an international
meeting of indigenous peoplesthe third World Council of Indigenous Peoples.30 Citing the significant influence of their previous
meetings with indigenous peoples from North America, the Ainu
observers explained the importance of working together with other
indigenous peoples.31 Although the Ainu representatives expressed
concern that they were starting relatively late, they saw their presence as a way to support indigenous rights and considered further
work on these issues at the United Nations as the next step. 32 For
the global indigenous-rights movement, involvement at the United
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Nations indeed followed: The Working Group on Indigenous Populations began to meet the next year. Ainu representatives, however, became regular participants at the annual meetings of the
working group somewhat laterat the fifth session in 1987.
This international participation exposed Ainu leaders to new
issues. For instance, the Ainu had been unaware of International
Labor Organization Convention no. 107 until they participated in
international meetings.33 As a result of the contact and travel, the
more conservative Ainu leaders associated with the Kyokai came to
embrace the nonassimilationist agenda.34 Ainu participation in international meetings was well accepted, as illustrated by the selection of
Giichi Nomura as one of the indigenous leaders selected to give an
address at the inauguration of the International Year of Indigenous
People.
At the same time that the Ainu were becoming increasingly visible internationally, Japans position on Ainu policy shifted. Initially, government saw the challenge to assimilation as a matter of
strategic choice, exemplified by Minister Uekis 1976 statement expressing hope that assimilation efforts would continue:
Both the government and local organizations have been making
efforts that the Ainu would identify themselves as Japanese. I
myself can not be sure whether the word [term] ethnic minority
group, especially the word ethnic, is appropriate or not. But it
seems true that the Ainu people are so-called natives who have
been living in the Hokkaido or Sakhalin regions from early days
and that they have been considering themselves a separate small
ethnic group calling the non-Ainu people wajin or shamo. Nevertheless, we now sincerely hope that the Ainu people will identify
themselves as Japanese.35
As the global indigenous-rights movement grew, however, during the 1980s the Japanese government increasingly insisted that
the Ainu were fully assimilated Japanese. Although the government
backed away from this position, Japan still continued to not recognize the Ainu as an indigenous people. In response to questions in
the Diet regarding the Ainus status as indigenous in the wake of
Giichi Nomuras address, a government minister replied, We asked
why the UN invites people to ceremonies and conferences regarding Indigenous people. The UN responded by saying it invites,
through various routes, people who think of themselves as indigenous.36 This statement, while recognizing the importance of peoples subjective identification as indigenous, failed to appreciate
the rationale underlying UN practiceallowing indigenous peoples to self-identify can preserve self-determination in the face of
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governments that do not recognize a people as indigenous. Furthermore, the statement ignored the public character of the inaugural addresses. Since these addresses put human faces on the concept indigenous, they had to rest on a basic consensus among the
global indigenous-rights movement and the relevant UN secretariat
staff about which peoples could legitimately claim to be indigenous. International recognition highlighted the legitimacy of the
Ainus claim of indigeneity.
Despite not recognizing the Ainu as indigenous, Japan has long
acknowledged the Ainu as having been separate from and prior to
the Japanese. The governments position, however, has been that
the Ainu have been integrated. The 1899 laws use of Former Aboriginal in the title illustrates well the two halves of the governments position. Activists assertions of nonassimilation challenged
the governments claim, as well as policies designed to integrate
the Ainu by decreasing the gap between the Ainu and the rest of
Japans population. By asserting their identity as Ainuand by challenging Ainu leaders acceptance of integrationthese activists
showed that the Ainu had not been assimilated. The growth of
international recognition and participation propelled the movement from nonassimilation to a focus on indigenous rights, while
also providing a basis to change the orientation of Ainu leaders.
International recognition cemented this reorientation. As such, the
international involvement was not simply an attempt to mobilize
action when domestic channels were blocked.37 Rather, the influence of a distinct global levelfrom early contact with global leaders to the Ainus participation in international meetings and the
international recognition of the Ainu as indigenousserved to
reframe the Ainus position in Japan. In a sense, while the initial
Ainu renaissance challenged the first half of the Former Aboriginal title, the international involvement recaptured the second
halfthe use of Aboriginal (indigenous).38
The involvement of the Ainu in the global indigenous-rights
movement was neither an inevitable outcome of domestic developments nor a simple case of self-asserted indigeneity. Rather, the
Ainus involvement illustrates the collective subjective development of
the global indigenous-rights movement that was central to the recognition and ratification of the Ainu as indigenous. Thus, the claim by
Minister Kato in 1992 that the UN invites . . . people who think of
themselves as indigenous misconstrues the nature of legitimate
international participation. Access to the resources (exposure and
legitimacy) was governed by the logic of indigenous people retaining
meaningful influence on the applicability of the term indigenous in
global governance. The history of Ainu involvement illustrates that
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the Ainu were first accepted into and then orientated toward the
global movement. In this sense, the global movement was important as an empowered, transnational actor in its own right.
Despite this welcoming into and participation in global indigenous governance, Ainu activists reported difficulties in participation internationally. Participation in the global meetings presents
challenges of available time, language ability, and expertise. For example, one Ainu activist stated that it is the
elite from the indigenous group [that] can attend such meetings.
First, you have to speak English. Second, you have to have a knowledge of those things [being discussed and] know the UN terms.
Even with the WGIP [Working Group on Indigenous Populations],
in the Japanese social structure, you cant get two weeks off or
one week off easily. So its very unrealistic for most Ainu to go to
the UN.
Within an indigenous people, such differences in ease of participation may derive from differences between elders and statesmen;39 however, we attempt to understand why these differences
may exist across peoples. We anticipate that these differences reflect
not just personal barriers but structural patterns related to the intersections of the international and domestic spheres.
The State and Indigenous Governance in Japan

The Japanese state is characterized by a strong bureaucracy, interand intraparty political competition, and a weak civil society. The
strength of ministerial bureaucracies gives rise to a refractive state
that is, while the state responds to demand for policy changes,
responses reflect the interests of state managers, as demands are redirected once adopted by the state.40 Competition between ministries
over resources and expertise may further shape the dynamics of such
refraction. Bureaucratic structures, however, may also be used to frustrate policy response, particularly when such policies may decrease
the autonomy of governmental agencies.41 Therefore, we suspect that
policy proposals that would decrease governmental authority may
meet with a competition to pass responsibility on to other agencies,
while policy changes that are resource-neutral may open up greater
agency for incumbents in the bureaucracy.
To act, however, the refractive state first must receive demands
for policy changes. The Japanese state shapes civil society, influencing the ability of groups to make these demands. By promoting locally based membership organizations but discouraging professional
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advocacy organizations, the regulatory framework in Japan results

in fewer successful attempts by citizens to influence public policy
when compared with other industrialized democracies.42 This pattern suggests that the connections between civil-society organizations and the state may have important consequences for their
influence on policy changes. In particular, given the localized character of many civil-society organizations in Japan, the extent of administrative responsibilities of local governments may shape the
influence of civil-society demands on public policies. 43
In 1984, the Hokkaido Utari Kyokai adopted a six-point plan for
new national legislation to replace the Hokkaido Former Aboriginal
Protection Act (HFAPA). The history of this proposal provides an
opportunity to assess how the structure of the Japanese state shapes
reform. The Kyokais plan called for respect for the human rights of
the Ainu, including elimination of discrimination; a right to Ainu
political participation, including special representation in legislative
assemblies; support for Ainu language, culture, and education,
including a national research program; enhanced support for Ainu
economic activity; an Ainu-controlled independence fund to support
self-reliance; and a central body for government to consult for Ainurelated policy.44 After endorsing this plan, the Kyokai petitioned the
governor and prefectural assembly of Hokkaido to take up the plan.
In response, the Hokkaido government, under the leadership
of the socialist governor, Takahiro Yokomichi, established an advisory council, which included Kyokai members. After the council
completed its work more than three years later, its final report recommended the abolition of the HFAPA and the adoption of a new,
national Ainu law. The recommended law reflected most of the
provisions of the Kyokais plan, including recognition of indigenous rights as the basis for the new law. The proposal, however,
eliminated the call for provisions for special Ainu representation.45
While the provisions in the councils final recommendations
largely reflect the aspirations of Ainu, they also correspond with the
dynamics of refraction of public demands. Establishing support for
cultural activities could increase the flow of resources to the prefectural government, while promoting national-level human rights,
antidiscrimination, and self-reliance policies could serve as a means
to transfer the responsibility from the prefectural government to the
national government for addressing continuing gaps. While the
council cited constitutional concerns as underlying the elimination of
the provision calling for special representation,46 this provision also
would have applied to the Hokkaido prefectural assembly and may
have been seen as imposing a cost on the prefectural government for
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which it would receive no corresponding subsidy from the national

government.
The process through which the Ainu pressed for demands for
legislative change also demonstrates the importance of access to
structures of the state. The Kyokais call for repeal of the HFAPA
required action by the national government; however, it was presented to the prefectural government, reflecting the long-standing
association between the Kyokai and the Hokkaido government. The
timing of the resolution and the response of the Hokkaido government suggest a keen awareness of an opening in the political opportunity structure since a newly elected progressive governor may
offer opportunity for broader participation in an attempt to influence policy.47 Additionally, such making of claims can create allies
for policy change since the prefectural bureaucracy had interests
in supporting the changes and opposition leaders could use the
claims as a means to challenge the ruling Liberal Democratic Party
(LDP) at the national level.
Indeed, the Hokkaido prefectural government formally requested that the national government replace the HFAPA with a
law based on the councils recommendations. This request, however, languished in the Diet until 1995, when the chief cabinet secretary formed an Experts Meeting Concerning Ainu Affairs. In the
middle of 1994, an LDP-Socialist-Sakigake coalition formed in the
Diet in the wake of two short-lived coalitions that had excluded the
LDP from government for the first time since 1955. Also in 1994,
due to his position on the Socialist Partys proportional representation list, Shigeru Kayano succeeded a deceased Diet member to
become the first Ainu member of the Diet.
The experts meeting report, submitted in April 1996, provided for the development of new measures for the Ainu in light
of the continuing gaps in living conditions, the continued selfidentity of the Ainu as an ethnic group, and the historical and contemporary discrimination the Ainu suffered. The report established a number of basic ideas to guide policy based on the unique
circumstances of the Ainu as an indigenous people and noted that
these principles would govern the specific response to various
demands from relevant parties concerning so-called indigenous
rights.48 Despite the reference to the Ainu as indigenous, the
principles to govern policy were reduced largely to those concerning culture and language. The specific measures proposed were
only research on the Ainu, promotion of Ainu language and culture, reproduction of traditional living spaces, and promotion of
measures to increase the understanding of the Ainu. 49
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In May 1996, the government established a liaison committee

of ministries and agencies to consider the experts meeting report.
This committee drafted legislation, announced in mid-May 1997
and passed on July 1, 1997.50 The Law for the Promotion of the
Ainu Culture (LPAC) established duties for the national and relevant local governments to make efforts to promote and support
Ainu cultural activities, but removed any direct reference to the Ainu
as an indigenous people.51 The law also provided for the appointment of a corporationthe subsequently created Foundation for
Research and Promotion of Ainu Culture (FRPAC)to implement
support, research, and public education activities to promote Ainu
culture. FRPAC receives operating funds from subsidies from the
national and Hokkaido governments and includes a number of
members of the Ainu associations on its managing board.52
The much narrower focus of the LPAC than the proposal from
Hokkaido exhibits the process of refraction of the proposals by
government ministries. Recognition of Ainu rights would require
ministries of the national government to face potential decreased
autonomy. Support for cultural activities and public education,
conversely, provided for an expansion of activity for relevant ministries, without risking the decreased autonomy of recognition of
greater Ainu rights. While more direct participation of Ainu representatives in national policymaking may have made some difference in the final legislation,53 such differences may have been limited since there were neither long-standing connections between
the Ainu and the ministries nor were there many coinciding interests between the Ainu and national government ministries.
Despite the refraction of the Ainu demands to a narrow focus
on culture, the LPAC has transformed the basis of Ainu policy in
Japan in a manner that may provide a foundation for further advances and that enhances Ainu control over these resources. Prior
the LPAC, the primary funding provided for the Ainu consisted of
the Hokkaido Utari Welfare Measures instituted by the prefectural
government. As explained by a prefectural government official,
the measures and the programs are divided mainly in five fields
the stability of the lifestyle of the Ainu people; enrichment of education for them; the stability of employment; the stability of industry,
especially the agriculture or forestry; and to improve the organizational activities by the Ainu people. Other than the final measure,
which supports the Hokkaido Utari Kyokai, the success of each of
the welfare provisions is measured by surveys of the Ainu population in Hokkaido every seven years. The official explained: We
have investigated the population of Ainu people in Hokkaido, their
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economic situation, and their advancement rate in high school and

university. The official noted that over the past three decades the
gap has closed between the Ainu people and the other Hokkaido citizens. While decreasing these gaps remains an important goal since
they may reflect the effects of overt and structural discrimination,
the welfare measures and the means of assessing these measures
reproduce a goal of assimilationthat is, eliminating the differences
between Ainu and wajin (non-Ainu) populations in Hokkaido.54
The LPACs explicit focus on culture, however, moves beyond
simple assimilation by providing a basis for an enduring differencebut one not based on hierarchical inequalitybetween the
Ainu and wajin. The designation of the FRPAC as the corporation
to implement cultural promotion activities provides both for increased Ainu participation in policy governance and for an increased
flow of resources, over which Ainu have a greater degree of control. By creating a position for the FRPAC in the structure of government, the LPAC has also created greater space for consultation
of the Ainu for policy (albeit over a relatively narrow range of
issues). Furthermore, recognition and support of Ainu culture itself
represents both an important goal for many Ainu and a policy
reversal for the government of Japan. An Ainu activist reflecting on
long-term goals noted, in part, We want [the Japanese people and
government] to realize that theres so much that they can learn
from us, especially about the natural resources, how we used to preserve food, how we used to keep the forest going. Things like that
they can still learn from us, too, instead of destroying it. The shift
from destroying Ainu culture and its practice-based knowledge to
funding programs to enable the propagation of the culture and dissemination of the knowledge might also represent a first step toward
gaining wider acceptance of broader claims for social justice and
land rights.55
Yet there is also a substantial risk that passage of the LPAC may
also hinder further efforts for policy change, as law frequently
serves as a signal that problems of the past have been addressed. 56
An Ainu leader explained that while cultural promotion does help
build visibility, it makes it more difficult to make the case for further policy changes, particularly since the Ainu are seen by the
Japanese public and government from the framework of multiculturalism, rather than understood as indigenous. 57 The difficulty in
gaining acceptance as indigenous raises the question of how this
international construction might influence Japanese policy and
whether these initial reforms may decrease pressure for subsequent
or wider-reaching changes.
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Intersections Between the Japanese State

and Normative Global Pressures
While international constructions can enable domestic mobilization by recasting domestic struggles as principled action,58 such
mobilization seems less likely when the international norms are
still emerging and when domestic actors are simply not recognized
as members of the international category of actor. When a new category of actor emerges on the global level (indigenous peoples),
there needs to be some means to bring this category into the domestic context. International norms may also shape states interests and
willingness to recognize domestic actors. 59 Global normative diffusion is more likely with the presence of receptor sites, or locations
within the nation-state in which actors have close connections to
the global polity.60 Such receptor sites represent interstitial locations
at which actors can connect global norms to domestic concerns. In
this process of diffusion, domestic institutional structures serve as
an important mediator of the influence of global norms. 61
Japans goal of becoming an important international leader
has led it to embrace global norms that may clash with domestic
priorities.62 Based on the structure of the Japanese state, we anticipate that the influence of diffused global norms will be mediated
by how receptor sites are located within state structures and are
connected to civil society actors. To assess these ideas, we draw on
three instances in which Japanese government actors confronted
global norms concerning indigenous rights: Japans 2006 vote in
the Human Rights Council on the Declaration on the Rights of
Indigenous Peoples, the Sapporo District Courts decision about the
Nibutani Dam, and Japans participation in international negotiations concerning folklore and intellectual property. While we find
normative pressures in each case, the influence of this pressure ultimately was limited by how the international sphere intersected with
domestic political structures.
Voting for the Declaration
on the Rights of Indigenous Peoples
On June 29, 2006, the United Nations Human Rights Council voted
in favor of a revised Draft Declaration on the Rights of Indigenous
Peoples. Thirty members, including Japan, voted for the declaration, two members voted against it, and twelve members abstained.
For more than a decade, a working group had considered and
revised the initial draft declaration. The groups chairpersonrapporteur determined further deliberation was unnecessary and
would only delay wider consideration of the draft declaration.
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67
Accordingly, he prepared the revised draft declaration based on

language that he considered the best representation of a consensus
and forwarded this version to the Human Rights Council. 63
Japan had long argued that an indigenous peoplesrights declaration would need to include an objective definition of indigenous people.64 The revised draft, however, continued the practice
of allowing indigenous peoples to identify themselves, suggesting
that it had, from the perspective of the Japanese government, a serious shortcoming. In addition, some of Japans most important allies
had major concerns about the draft declaration.65 Given these facts,
Japans vote in favor of the draft declaration was surprising.
After the vote, the Japanese delegate made a statement concerning the draft declaration. While the statement noted that Japan
attaches great importance to the rights of Indigenous Peoples, it
also provided for a number of stipulations about the declaration. 66
The main statement only expressed concerns about the Human
Rights Council having to proceed without consensus.67 Japan did
not address its previous concerns in its statement, even though
these concerns featured prominently in its allies arguments against
passing the declaration.68
Japans vote for the draft declaration demonstrates the influence of international normative pressures. An official in the Ministry of Foreign Affairs who was involved with Japans vote noted
that the ministerial staff initially persuaded the government to
abstain from the vote. As the vote approached, however, Japans
representative in Geneva said that abstaining would cause the government to be criticized from both sides. In the run-up to the
vote, Japans statement was noncommittal, providing the potential
for Japan to abstain or vote either way on the resolution.69 The
Geneva-based delegation reported back to Tokyo that Canada and
Russiathe two council members who had indicated that they
were going to vote against the declarationwere very criticized by
international society for their position. The representative to the
United Nations in Geneva didnt want Japan to be criticized by
international society in the conference room and so persuaded
Tokyo to vote for the resolution.
Despite the influence of international pressure on Japan to support the declaration, international pressure has not influenced official recognition of the Ainu as indigenous. Japan attaches great
importance to promoting indigenous rights, as a foreign-affairs official noted in response to our interview questions:
A: Promoting the rights of indigenous people is important. As
the Japanese government, weve had some conferences about
that, promoting the rights of indigenous people.
68
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Q: Does that include the Ainu?

A: We recognize that includes Ainu.
But while the government might recognize that the Ainu should participate in conferences about indigenous peoples rights, the recognition does not extend to official status: We are not recognizing the
Ainu as Indigenous people.70
The ministrys position is that the position of indigenous rights
is not clear in international society. . . . We dont know what the
rights of Indigenous people are and, therefore, we cannot answer
whether the Ainu is an Indigenous people or not. This policy is
based on concerns that recognition of the Ainu as indigenous
would require recognition of expansive rights associated with selfdetermination, particularly concerning natural resources.
The international pressure felt by foreign-affairs officials plays
less of a role inside of Japan due to the institutional structures of the
Japanese state as well as the division between Tokyo- and Genevabased staff. Since the decisions about policy that affects the Ainu
rest with a variety of ministries and at both the national and prefectural levels, and since these points of policymaking are isolated
from either contact with the Ainu or with the international community, there are few pathways through which international and
domestic pressures can be brought together. The reaction of a representative of the Hokkaido prefectural government during our
interview to the declaration represents how the Japanese state structure limits the influence of global developments on Ainu policy:
The national government is likely to process and discuss the issue
after following the Declaration by the United Nations. So, the
Hokkaido government as well is looking at whats going on at the
national government to reply for the Declaration of the United
Nations. National government officials in other ministries
expressed similar sentiments.
The Nibutani Dam Decision
The national government had developed a long-standing plan to
dam the Saru River at Nibutani to supply water for industrial use.71
The village of Nibutani has been the only place where Ainu have remained a majority of the population. Shigeru Kayano and Tadashi
Kaizawa, two Ainu leaders, did not accept a proposed compensatory settlement and worked to oppose the construction of the
dam, which would disrupt salmon fishing and also permanently
flood land of significant cultural value. The government pressed
ahead with its efforts, beginning construction of the dam and insti-
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69
tuting compulsory takings of land in 1986. Three years later, after

a land-expropriation committee ordered Kayano and Kaizawa to
surrender their land, the two launched an administrative appeal.
The appeal petition was denied after four years of slowly paced
proceedings. As the government continued to construct the dam,
in 1993 Kaizawas eldest son, Koichi (who took over the dispute
after his fathers death), and Kayano filed suit in Sapporo District
Court.72 Finally, on March 27, 1997, the district court handed down
its decision, finding largely for Kayano and Kaizawa.
While the decision did not provide any direct relief with respect to the construction of the dam due to provisions of administrative case law,73 the court found that the governments confiscation
rulings were illegal. More importantly, the court based its decision
on a finding that the government had failed to consider the rights of
the Nibutani Ainu to land, resources, and cultural practices as indigenous people. Extending the protection of minorities from article 27
of the International Covenant of Civil and Political Rights, the court
held that indigenous peoples circumstances warrant greater consideration.74 The court concluded:
We can see that for the most part the Ainu people have inhabited
Hokkaido from before the extension of our countrys rule. They
formed their own culture and had an identity. And even after their
governance was assumed by our country, even after suffering enormous social and economic devastation wrought by policies adopted
by the majority, they remain a social group that has not lost this
unique culture and identity. Accordingly, the definition provided
above of an indigenous people should certainly apply.75
The courts decision and its holding that the Ainu are indigenous
received widespread coverage in the Japanese media.76
While the Sapporo courts decision can serve as precedent in
Japan,77 the value of the precedent may be limited. For immediately similar cases, the precedent seems strongest. Thus, an Ainu
leader noted in reference to a new dam proposed for the Saru
River in Biratori just downstream from Nibutani: This time the
government will have to consult with the Ainu. Even in such consultations, however, the provisions of administrative law that denied
any substantive relief for the Nibutani dam limit the potential impact
of the precedent. The courts holding that the Ainu are an indigenous people is important, but also has limited legal applicability
since Japan only incorporates international human rights law when
it is legally binding due to treaty or custom.78 Given the lack of
domestic law defining or attaching value to Indigenous people and
the nascent nature of custom, there would appear to be little to
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gain in the near term from pursuing further court actions on the
basis of the Sapporo courts declaration that the Ainu are Indigenous.79 Most importantly, findings from socio-legal analyses of courts
and social change suggest that they provide a limited forum to introduce far-reaching change, since court decisions require compliance
and implementation by often reluctant executives and legislatures.80
International Negotiations on Intellectual Property
Finally, we consider a case in which a government official took a
proactive approach to the Ainu: A Japanese government negotiator
for global intellectual-property meetings called the Ainu to find
out if they had any concerns about folklore. The officials susprising consultation of the Ainu represents a subtle influence of global
normative pressure. Japans position on folkloreit is protected as
both an intangible and tangible cultural property, but not intellectual propertyis at odds with the position of the transnational
indigenous peoples movement on the issue. Further, as the official
noted, Im not a specialist on this issue, so I cannot talk as our official position, but my understanding is that I dont think the Japanese government has even admitted that they [Ainu] are Indigenous
people. Despite these reasons to not contact the Ainu, the official
felt it was an important part of his preparation, reflecting the influence of emergent global norms of indigenous participation.
The global indigenous peoples movement participates in a wide
range of policy discussions, including discussions about intellectual
property.81 Discussions concerning folklore in the World Intellectual Property Organization (WIPO) meetings have highlighted the
importance of protecting indigenous folklore. The official recalled
the impression of these discussions: Folklore is a very international
issue, because Indigenous people from Africa and Latin America
and Asia are worried about European and American capital going
into their countries, and making souvenirs out of what was originally their traditional artifact.
In preparing for international meetings, the official explained
that the first question a policymaker has to ask is: Do we have folklore in our country? Aside from the traditional Japanese culture,
we also have a population of people who are said to be different
from our people. The experience of the official at international
meetings with indigenous peoples made a strong impression:
As a policy related to Indigenous peoples per se, it was just very
shocking that the Ainu people had so [little presence] compared
to, you know, the American Native Indians, and the, the Inuit
people and other Indigenous people in the Northeast Asian
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71
countries. . . . Not just in terms of being present at the meeting,

but just they have no voice. Not very many people know that
these people exist in Japan.
Accordingly, the negotiator decided to call the Ainu. I contacted

the Ainu people and I asked them, Do you have any issues with
folklore, or any type of traditional cultural expressions that you
would like to have protected in an intellectual property scheme?82
The official thought that he may have been the first person in his
position to contact the Ainu. When I called them, they seemed to
be kind of surprised that, that a government person would talk to
them. You know, on a casual basis like this. Because, I guess one of
the reasons is that the government and the Ainus, in a lot of aspects,
have conflicting interests.
The official occupied an important receptor site in the Japanese state. That is, by virtue of his duties, he encountered global culture and its norms in a manner that allowed him to carry these
norms back to the domestic sphere. In this case, the norm of
indigenous peoples participation in global governance impressed
upon him the duty to consult with the Ainu. The consultation represents a first step in connecting the government and Ainu in relation to international intellectual-property discussions. While existing connections concerning cultural promotion provided some
foundation for this connection, the official still wondered if the
Ainu may have had reason to not share information: Maybe they
distrust the government. They might not trust somebody from the
government calling them and then not want to openly talk about
these issues. Such trust, of course, only emerges over time, due to
repeated interaction. Even if the government and Ainu disagree on
policy direction, continued consultation and familiarity provide a
more enduring, deeper opportunity to build reception to global
norms. Thus, although an Ainu representative attended the WIPO
meetings in 1998 and although the global indigenous peoples
movement can connect the Ainu to global developments in intellectual property, continued consultation with the national government
presents an important channel through which the global norms can
be reinforced in the domestic sphere.
Comparative Lessons
Across these three instances of international-domestic intersections,
Japan responded to global norms concerning Indigenous peoples
rights in surprising ways: voting for the draft declaration, finding
against the government in the Nibutani case, and consulting the
Ainu about folklore. Yet, in each case, the international norms did
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not result in Japan recognizing the Ainu as an indigenous people.

These international pressures will have greater domestic influence
when there is a conjunction of connections between global governance and the state, between Ainu organizations and the state, and
between Ainu organizations and the global indigenous-rights movement. In other words, when both the Japanese state and the Ainu
movement have receptor sites for a particular global issue and these
state and Ainu receptor sites are connected through consultation,
we should anticipate the greatest potential influence of global
developments on domestic actions. Domestic connections serve as
channels through which the Ainu can express policy concerns and
preferences, but are limited to those in which there is an existing
connection. As an Ainu leader put it: We go to those windows [in
the government that are open]. Culture and Ainu welfare measures are our only windows for our work. The international and
external affairs are not in those sections. . . . Now we have a very
narrow [window of] internal interests.
There is, however, a difference between official recognition and
effective acceptance. While the Japanese state may refract domestic
issues, it may also reflect international concerns. The same Ainu
leader noted that the Hokkaido prefectural government was taking
an increasing interest in Ainu issues because they recognized the
international circumstances about indigenous people. Similarly, the
intellectual-property negotiator responded to international norms
and sought input from the Ainu. These gains may be easiest to
achieve when they are limited in scopein both instances, the government actors were drawing on the increased attention to indigenous culture and existing connections between the government and
Ainu about culturebut represent an expansion of the foundation
of the connections between the Ainu and government. Furthermore, extending the understanding of the Ainu as an indigenous
people throughout civil society may provide further bases for
expanding these connections. An Ainu activist explained that in
Japan, the language of international law is too technical to convince
the public of the value of indigenous rights, but that the people
they simply dont know because they are not educated on the Ainu
issue. But when you explain, and then its easy for them to understand. High-profile advances, such as the Nibutani decision, may
help to further this public understanding.83 Even though civil society
in Japan has limited influence on public policy, this greater public
understanding may influence a wider part of the bureaucracy.
* * *
The global indigenous peoples movement has empowered new
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73
actors in international politics. As part of the movements exercise

of self-determination, it has advanced a collective subjectivist practice of identifying indigenous peoples. Recognition of a people as an
indigenous people by the global movement provides a level of legitimacy that can counteract a governments refusal to acknowledge a
people as indigenous. In turn, this legitimacy also enhances the peoples agency by offering a normative basis for the making of claims,
resources for framing, and potential linkages to transnational allies.
These dynamics have been influential on the development of the
Ainu rights movement in Japan. From early contact between international indigenous leaders and the Ainu to contemporary normative pressures on the Japanese state, the global indigenous peoples
movement has helped the Ainu to define, transform, and renew
their movement.
These international influences, however, are mediated by the
institutional structures of the Japanese state, which controls resources
in a manner that limits Ainu self-determination. From its earlier
law protecting the former aboriginals to contemporary practices
granting quasi-official status to certain Ainu organizations, the government implicitly defines who is Ainu and what it means to be Ainu.
In both its welfare and cultural-promotion policies, the government
has recognized Ainu organizations on the basis of regions, but does
not recognize any national body. Consequently, outside of the prefectures that have established Ainu offices, Ainu individuals are not
covered by existing policies or recognized organizations. As such,
within Japan, Ainu lack effective self-determination in relation to
government policies. While shut out of official policymaking channels, Ainu activists have used involvement with the global indigenous-rights movement to help shift the debate about Ainu policy
in Japan in ways that encouraged Ainu leaders to adopt a changeoriented agenda.
The state structure also limits the ability of the Ainu to participate in governance and to shape policy by providing limited channels
through which Ainu leaders are connected with policymakers. The
small number of channels and the refractory nature of the Japanese
state result in a narrow scope for Ainu to consolidate policy gains.
Despite the reliance on only a few channels of direct connection
between the Ainu and the Japanese state, indigenous peoples international involvement reshapes global culture in a manner that can
partially diffuse to the Japanese state. The global indigenous-rights
movement has succeeded in establishing a norm of indigenouspeoples participation internationally and also influenced the international agenda on a variety of issues. As part of this activity, the
movement has expanded agency in a manner that built allies, particularly with secretariat staff in relevant UN bodies. While the influence
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of diffusion of these ideas from global culture is limited to receptor

sites in the Japanese state with some degree of authority, the combination of global normative pressures and domestic channels of connection may help to push the domestic agenda forward.84
Global developments concerning indigenous rights will also
serve as a source to renew domestic policy in a manner that demonstrates the LPAC has not sufficiently addressed Ainu issues. In contrast to socio-legal scholarship that finds that initial legal changes
often inhibit further attempts at social change, this gap between the
LPAC and official recognition may increase further pressures for
change due to the obvious lack of addressing the base concern of
recognition of the Ainu as indigenous. In particular, the tension
between Japans international support for indigenous rights and the
lack of recognition of the Ainu as an indigenous people will provide
a continual motivation for actors influenced by international developments to push for recognition in a variety of manners. Consequently, the governments fear that recognition of the Ainu as an
indigenous people will require recognition of a panoply of rights
might more likely result from the continued lack of recognition as
an indigenous people, as the government opens itself to criticism
from international actors, actors within the state, and actors in civil
society, including Ainu leaders, activists, and allies. While previous
research found that states arguments to resist particular elements of
customary international law also entrench the rule of international
treaty law,85 our analysis suggests that another mechanism connects
politics and international law: Japans continued refusal to recognize
the Ainu as an indigenous people encourages political action by
multiple actors to advocate for the application of global norms in
the domestic context. Each of these actors may work to expand de
facto recognition of the Ainu as an indigenous people by pushing
for an ever-widening set of rights. While such an outcome may be to
the Ainu preferable to the status quo, it would likely be less than
optimal as the set of gains may still not result in recognition, may not
reflect the Ainus priorities, and may be poorly integrated.
Better integration of indigenous rights for the Ainu in Japan
depends on overcoming the challenges posed by existing institutional structures. While recent changes have been limited in their
scope, they do provide a basis for continued progress and suggest a
way forward for Japan and the Ainu. The practice of indigenous
peoples self-determination fits well with socio-legal analysis that
suggests the contingency of law. Law emerges as an actual practice
within social fields as actors reinterpret and apply ambiguous formal law.86 As such, the practice of law and rights frequently diverges
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75
from the initial design of rights. Indigenous self-determination

allows indigenous peoples to renegotiate their status in societies. 87
Both the practice of indigenous self-determination and the
socio-legal findings suggest that the most effective regime will involve rights that come into force through a process of negotiation
between the government and a broad cross-section of the Ainu.
Developing consensual decision making and common interests in
relation to global norms leads to both greater access for rights advocates and increased government compliance.88 Such a process of
mutual consultation may also enable the Ainu and government to
overcome some of the challenges of international participation,
particularly since effective international participation may require
a level of expertise and time commitment that is difficult for all but
full-time bureaucrats to muster.
As suggested by the intellectual-property negotiator we interviewed, the development of trust on both sides poses a difficult
challenge. Indigenous peoples generally have good reasons not to
trust governments due to the history through which they have been
dispossessed of land, culture, and autonomy; however, for rights to
work, governments will need to enforce them. Governments may
fear granting rights and ceding control, perhaps not entirely trusting what indigenous peoples want from their rights. Since indigenous peoples have been largely excluded from political decisionmaking structures, they have had to use outsider tactics to promote
their interests. Furthermore, because indigenous peoples frequently
have not been consulted about policy decisions, they often must
express their concerns outside of formal channels after governments make final decisions. Governments must determine that it
is better to bring indigenous peoples into the process early to avoid
making decisions that prove to be poor in retrospect.
Finally, both the governments and indigenous peoples have
to decide on issues of representation. Governments should allow
indigenous peoples to determine representation through a selfdetermined process. Globally, the indigenous peoples movement
has demonstrated that its collective subjective manner of identifying participants can work, including the process of consensus-based
decision making by the Indigenous Peoples Caucus. Similar
processes can bypass the distorting effects of state institutional structures on indigenous governance. While not without difficulties (e.g.,
determining whether consensus-based decisionmaking should prevail
and, if so, how to determine consensus), such an approach is superior to current practices, which rest upon and reproduce failed
assumptions about welfarist and assimilationist policy.
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Notes
Funding for this research was provided by a Wallace Research Grant provided by Macalester College. An earlier version of this article was presented as a paper at the joint annual meetings of the Midwest Sociological Association and the North Central Sociological Association in April
2006 in Chicago. We thank David Blaney, Jeff Broadbent, Kanako Uzawa,
Yozo Yokota, the editors, and referees for their comments and suggestions
about both the project and the paper that was presented. In addition, we
thank all who participated in our research.
1. Erik Larson, Regulatory Rights: Emergent Indigenous Peoples
Rights as a Locus of Global Regulation, in Bronwen Morgan, ed., The
Intersection of Rights and Regulation (London: Ashgate, 2007), pp. 107127.
2. Sidney Tarrow, The New Transnational Activism (New York: Cambridge University Press, 2005).
3. Ibid.; Dongxiao Liu and Elizabeth Heger Boyle, Making the Case:
The Womens Convention and Equal Employment Opportunity in Japan,
International Journal of Comparative Sociology 42, no. 4 (2001): 389404; Alison Brysk, From Tribal Village to Global Village: Indian Rights and International
Relations in Latin America (Stanford: Stanford University Press, 2000); Kiyoteru Tsutsui, Redressing Past Human Rights Violations: Global Dimensions of Contemporary Social Movements, Social Forces 85, no. 1 (2006):
331354; Larson, note 1.
4. Not recognizing a category of actors differs from rejecting the
legitimacy of action by those actors and, accordingly, poses a different set
of difficulties in implementing principles diffused from global culture.
While national leaders may claim that principles of womens equality are
culturally inappropriate or that the women of the countr y do not desire
political equality, it is difficult to imagine leaders of a state claiming that
there are no women in the country. Recognition, combined with rejection
of the legitimacy of particular norms, may reinforce underlying global
norms. See Richard Price, Emerging Customary Norms and Anti-personnel Landmines, in Christian Reus-Smit, ed., The Politics of International Law
(New York: Cambridge University Press, 2004), pp. 106130.
5. Christian Reus-Smit, The Politics of International Law, in ReusSmit, note 4, pp. 1444.
6. Keisuke Iida, Human Rights and Sexual Abuse: The Impact of
International Human Rights Law on Japan, Human Rights Quarterly 26, no.
2 (2004): 428453.
7. Kenneth W. Abbott and Duncan Snidal, Hard and Soft Law in International Governance, International Organization 54, no. 3 (2000): 42456.
8. Lauren B. Edelman, Christopher Uggen, and Howard S. Erlanger,
The Edongeneity of Legal Regulation: Grievance Procedures as Rational
Myth, American Journal of Sociology 105, no. 2 (Sept. 1999): 406454; Lauren B. Edelman, Legal Ambiguity and Symbolic Structures: Organizational Mediation of Civil Rights Law, American Journal of Sociology 97, no.
6 (May 1992): 15311576.
9. Price, note 4; Amy Gurowitz, Mobilizing International Norms:
Domestic Actors, Immigrants, and the Japanese State, World Politics, 51,
no. 3 (1999): 413445.
10. John W. Meyer, John Boli, George M. Thomas, and Francisco O.
Ramirez, World Society and the Nation-State, American Journal of Sociology
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77
103, no 1 (1997): 144181; David John Frank, Ann Hironaka, and Evan
Schofer, The Nation-State and the Natural Environment over the Twentieth Century, American Sociological Review 65, no. 1 (2000): 96116.
11. Japans attempt to emulate aspects of Western modernity resulted
in similar policies of territorial expansion and forced assimilation of indigenous peoples as witnessed in northern Europe and the Americas. Richard
Siddle, Race, Resistance, and the Ainu of Japan (New York: Routledge, 1996);
Andrew Gordon, A Modern History of Japan: From Tokugawa Times to the Present (New York: Oxford University Press, 2002).
12. Petrice Ronita Flowers, International Norms and Domestic Policies in Japan: Identity, Legitimacy, and Civilization, PhD diss., University
of Minnesota, 2002; Amy Gurowitz, International Law, Politics, and Migrant Rights, in Reus-Smit, note 4, pp. 131150.
13. S. James Anaya, Indigenous Peoples in International Law, 2d ed. (New
York: Oxford University Press, 2004).
14. Larson, note 1.
15. Rhiannon Morgan, Advancing Indigenous Rights at the United
Nations: Strategic Framing and Its Impact on the Normative Development
of International Law, Social and Legal Studies 13, no. 4 (2004): 481500;
Ronald Niezen, The Origins of Indigenism: Human Rights and the Politics of Identity (Berkeley: University of California Press, 2003); Jeffrey Sissons, First Peoples: Indigenous Cultures and Their Futures (London: Reaktion Books, 2005).
16. Article 3, Draft Declaration on the Rights of Indigenous Peoples,
in Working Group Established in Accordance with Commission on Human
Rights Resolution 1995/32 of March 3, 1995, Report on Its Eleventh Session
to the Commission on Human Rights (Geneva: UN Office at Geneva,
E/CN.4/2006/79, 2006).
17. Jos R. Martnez Cobo, Study of the Problem of Discrimination Against
Indigenous Populations, vol. 5: Conclusions, Proposals, and Recommendation (New
York: United Nations, E/CN.4/Sub.2/1986/7/Add.4, 1987); Julian Burger,
Report from the Frontier: The State of the Worlds Indigenous Peoples (London: Zed
Books, 1987); Ken S. Coates, A Global History of Indigenous Peoples: Struggle
and Survival (New York: Palgrave Macmillan, 2004); Richard B. Lee, Indigenous Rights and the Politics of Identity in Post-Apartheid Southern Africa,
in At the Risk of Being Heard: Identity, Indigenous Rights, and Postcolonial States,
ed. Bartholomew Dean and Jerome Levi (Ann Arbor: University of Michigan
Press, 2003), pp. 80111.
18. Erica-Irene A. Daes, Working Paper on the Concept of Indigenous People (Geneva: UN Economic and Social Council Commission on Human
Rights, Sub-Commission on Prevention of Discrimination and Protection
of Minorities, Working Group on Indigenous Populations, E/CN.4/Sub.2/
AC.4/1996/2, 1996).
19. Ibid., pp. 13, 21.
20. The description of the collective subjectivist nature of identifying
indigenous peoples differs from Kingsburys constructivist approach (although the two may be complementary). In contrast to the constructivist
approach, which emphasizes how abstract international principles are
made concrete when applied to particular peoples in specific societies, the
collective subjectivist process of identifying indigenous peoples examines
the global legitimacy given to such claims by the transnational indigenouspeoples movement. Benedict Kingsbury, Indigenous Peoples in International Law: A Constructivist Approach to the Asian Controversy, American
78
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Journal of International Law 92, no. 3 (1998): 412457. Under Kingsburys

flexible constructivist approach (p. 455), groups still make claims to the
requirements and indices that measure indigeneity; however, there must
be a way to evaluate these claims, which is what the practice of collective
subjectivism provides.
21. Richard Siddle, Ainu: Japans Indigenous People, in Michael
Wiener, ed., Japans Minorities: The Illusion of Homogeneity (New York: Routledge, 1997), pp. 1749; Hitoshi Kikkawa, The Ainu, The Aboriginal People in Japan, and the Policy of the Japanese Government, Shakai KagagkuKenkyu 14, no. 1 (1994): 2528. Prior to these resettlement policies, the
Ainu had a village-based social life, largely focused on subsistence gathering,
fishing, and hunting. Hitoshi Watanbe, The Ainu Ecosystem, in Ainu: Spirit
of a Northern People, ed. William W. Fitzhugh and Chisato O. Dubreuil (Washington, D.C.: Arctic Studies Center, National Museum of Natural History,
Smithsonian Institution in association with University of Washington Press,
1999), pp. 198201; Toshihiro Kohara, Foods of Choice, in Ainu: Spirit of a
Northern People, ed. William W. Fitzhugh and Chisato O. Dubreuil (Washington, D.C.: Arctic Studies Center, National Museum of Natural History, Smithsonian Institution in association with University of Washington Press, 1999),
pp. 202207.
22. Siddle, note 11; Hokkaido Ex-Native Protection Law (no. 27 of
March 2, 1899, as amended by Law 6, March 25, 1919, Law 21, March 30,
1937, Law 17, Sept. 9, 1946, and Law 29, March 31, 1947). The translation
is from Collection of Laws Under the Jurisdiction of the Ministry of Welfare (Tokyo:
Ministry of Welfare, 1951), pp. 256257.
23. Siddle, note 11. In 1960, the Kyokai renamed itself Hokkaido
Utari Kyokai due to the negative connotations associated with Ainu in
Japanese. In English, the name has been consistently translated as Ainu
Association. While often appearing as simply Utari Kyokai or Ainu Kyokai,
the association is place-designated, a feature we examine below. Throughout the article, we refer to the Kyokai (since many of the documents we
cite use the Japanese name) except for material produced in English and
credited to the Ainu Association of Hokkaido, which we cite as such.
24. Siddle, note 21, p. 25.
25. Third Subcommittee of the Lower House of the Diet, Budget Committee Session, March 5, 1973. The translation is from Hokkaido Utari
Kyokai, Ainu Shi: Katsu Dou Shi KenHokkaido Ainu Kyokai/Hokkaido Utari
Kyokai [Ainu history, collected documents], vol. 5 (Sapporo: Hokkaido Shappan Kikkusen Center, 1994), pp. 11661162.
26. T. Kawabata, Sunday Interview: Charles Edwardsen Jr., Eskimo
Rights Leader, Japan Times, Dec. 11, 1977, p. 2; Siddle, note 11. We interviewed one of the Inuit leaders who visited with the Ainu. His account of
these meetings provides further evidence to support our arguments in the
next section about how international connections may diffuse through
specific segments of the institutions of the Japanese bureaucracy: The
Hokkaido government invited myself [and another Inuit leader] because
we supported the whaling. We went to Sapporo. . . . I have had a working
relationship with the Hokkaido Federationthe fishing cooperatives
since 1968. That is how I got into it and I had raised the issue publicly
about a similar experience that we had: that Japan was exposed to the Ainu
genocide. I shamed them publicly and shamelessly and stood up to them.
Preexisting social relations and an interest-based alliance (against the com-
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79
mon opponent of bans on all whaling) opened a space for the introduction
of indigenous politics in Japan, as brought in by the Inuit leaders, who
applied the international frame to the Japanese domestic situation.
27. This newspaper report of the meeting suggests that the meeting
was on the Inuits initiative: Asked whether he wrote letter to Ainu or
received invitations for the real people in Hokkaido, Edwardsen replied,
I do it the Eskimo way: When Eskimos make a visit, they dont need an
invitation. They simply go: Kawabata, note 26, p. 2. The interview we
conducted with one of the Inuit leaders confirms the account. The individual recounted: We enlightened [the Ainu about international efforts
to promote indigenous rights], as we were there and they had our strong
support. We knew that they were the first people there. Aside from the
impetus for the meeting, the subsequent events suggest the importance of
recognition and acceptance by internationally involved actors prior to the
Ainus international involvement.
28. Indian To Koryu No Ryoko [Indians and their exchange trip],
Hokkaido Shinbun, Sept. 7, 1978, p. 21.
29. Ibid.
30. Siddle, note 11; Ainu Daihyo Ga Shosanga: Daisankai Seikai Senjumin Kaigi [Ainu representatives first participate: Third World indigenous peoples meeting], Hokkai Times (evening ed.), April 23, 1981, p. D2.
31. Hokkai Times, note 30.
32. Ibid.
33. Ainu Association of Hokkaido, A Statement of Opinion Regarding the Partial Revision of ILO Convention No. 107 (1988), in Hokkaido
Utari Kyokai, note 25, p. 1018. At the time, ILO Convention 107 was the
only international instrument to recognize any indigenous rights. Its focus
on assimilation, however, made it a focal point of criticism by the global
indigenous-peoples movement. This criticism, along with the standardsetting activities of the Working Group on Indigenous Populations, spurred
the ILO to revisit Convention 107, eventually leading to the adoption of
ILO Convention 169 (1989), which was based on indigenous peoples selfdetermination. Anaya, note 13. The lack of awareness of Ainu leaders of
ILO Convention 107 demonstrates the extent to which the Ainu were outside of the global indigenous-rights movement and may also reflect the
nascent self-identification of the Ainu as indigenous.
34. Siddle, note 11.
35. No. 8 minutes of the 77th Lower House of the Diet Accounts Committee Session, May 20, 1976. The translation is from Hokkaido collected
documents, note 25, p. 1144.
36. Minister Kato, quoted in minutes of the 125th Diet, Upper House
Cabinet Committee Session, December 8, 1992. The translation is from
Hokkaido collected documents, note 25, p. 858.
37. Margaret Keck and Kathryn Sikkink, Activists Beyond Borders: Advocacy Networks in International Politics (Ithaca, N.Y.: Cornell University Press,
1998).
38. The case represents a conjunction of causal mechanisms: A diffusion of ideas led to global action, which included global framing. Tarrow,
note 2. The global framing was both preceded by and a precursor to
changes in Ainu international participation.
39. Niezen, note 15.
40. Gerald L. Curtis, The Logic of Japanese Politics: Leaders, Institutions,
80
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and the Limits of Change (New York: Columbia University Press, 1999).
41. Vivek Chibber, Bureaucratic Rationality and the Developmental
State, American Journal of Sociology 107, no. 4 (2002): 951989.
42. Robert Pekkanen, Japans Dual Civil Society: Members Without Advocates (Stanford: Stanford University Press, 2006).
43. Ian Neary, The State and Politics in Japan (Malden, Mass.: Blackwell,
2002).
44. Hokkaido Utari Kyokai, note 25; Saeko Kawashima, The Right to
Effective Participation and the Ainu People, International Journal on Minority and Group Rights 11, nos. 12 (2004): 2174.
45. Kawashima, note 44; Ainu Affairs Office, To Understand the Ainu,
rev. ed., trans. Foundation for Research and Promotion of Ainu Culture
(Sapporo: Department of Environment and Lifestyle, Hokkaido Government, 2001).
46. Kawashima, note 44.
47. Jeffrey Broadbent, State as Process: The Effect of Party and Class
on Citizen Participation in Japanese Local Government, Social Problems 35
no. 2 (1988): 131144; Steven R. Reed, The Changing Fortunes of Japans
Progressive Governors, Asian Survey 26, no. 4 (1986): 452465.
48. Summary of report quoted in Ainu Affairs Office, note 45, p. 25.
49. Ibid., p. 25.
50. Foundation for Research and Promotion of Ainu Culture (FRPAC),
Summary of the Foundation (Sapporo: Foundation for Research and Promotion of Ainu Culture, 2004).
51. Law for the Promotion of the Ainu Culture and the Dissemination
and Advocacy for the Traditions of the Ainu and Ainu Culture (no. 52 of
May 14, 1997, as amended by law 160 of December 22, 1999). The translation is by the Foundation for Research, note 50.
52. Foundation for Research, note 50.
53. Kawashima, note 44.
54. For the prevalence of reported discrimination, see Ainu Affairs
Office, note 45.
55. Stanley Meng Heong Yeo, Making the Most of the Legislation for
the Promotion of Ainu Culture, Yokohama Law Review 11, no. 3 (2003):
3360.
56. Derrick A. Bell, Silent Covenants: Brown v. Board of Education and the
Unfulfilled Hopes for Racial Reform (New York: Oxford University Press, 2004).
57. See also Richard Siddle, The Limits to Citizenship in Japan: Multiculturalism, Indigenous Rights, and the Ainu, Citizenship Studies 7, no. 4
(2003): 447462.
58. Liu and Boyle, note 3.
59. Martha Finnemore, Defining National Interests in International Society (Ithaca, N.Y.: Cornell University Press, 1996); Martha Finnemore and
Kathryn Sikkink, International Norm Dynamics and Political Change,
International Organization 52, no. 4 (1998): 887917.
60. Meyer, et al., note 10; Frank, Hironaka, and Schofer, note 10.
61. Jeffrey T. Checkel, International Norms and Domestic Politics:
Bridging the Rationalist-Constructivist Divide, European Journal of International Relations 3, no. 4 (1997): 473495.
62. Flowers, note 12.
63. Working group report, note 16.
64. See, for example, Consideration of a Draft United Nations Declaration
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81
on the Rights of Indigenous Peoples, Information Received from Governments,

Addendum (Geneva: Economic and Social Council, Commission on Human
Rights, Open-ended Inter-sessional Working Group on a Draft UN Declaration on the Rights of Indigenous Peoples, First Session,
E/CN.4/1995/WG.15/2/Add.1, 1994), p. 2.
65. Permanent Mission of Canada to the UN at Geneva, Statement by
Ambassador Paul Meyer concerning Working Group on the Draft Declaration on the Rights of Indigenous Peoples, United Nations Human
Rights Council, 1st session, June 29, 2006, Geneva; Australia, New Zealand,
and the United States, Joint Statement on the Chairs Text on the Declaration on the Rights of Indigenous Peoples, UN Human Rights Council,
1st session, June 27, 2006, Geneva: available at http://www
.docip.org/Human%20Rights%20Council/Session1/cddh1_22.pdf;
accessed March 31, 2007.
66. Specifically, Japan held that self-determination for indigenous
peoples does not entail sovereignty; that collective human rights do not
exist in international law; and that property rights as defined in domestic
civil laws condition the rights of indigenous peoples to land and territory.
67. Government of Japan, Statement Concerning the Declaration on
the Rights of Indigenous Peoples, UN Human Rights Council, 1st session,
June 29, 2006, Geneva.
68. Australia, New Zealand, and the United States, note 65.
69. Government of Japan, note 67, 1st session, June 27, 2006, Geneva.
70. This careful wording and distinction is similar to the careful parsing of language in the Law for the Promotion of Ainu Culture (LPAC),
which does not reference the Ainu as indigenous, and a supplementary
resolution passed after the LPAC that called for the government to make
efforts to disseminate the knowledge about Ainu traditions, including the
Indigenous nature of the Ainu, which is a historical fact: cited in FRPAC,
note 50, p. 25.
71. Mark A. Levin, Essential Commodities and Racial Justice: Using
Constitutional Protection of Japans Indigenous Ainu People to Inform
Understandings of the United States and Japan, NYU Journal of International Law and Politics 33, no. 2 (2001): 419526.
72. Ibid.
73. Ibid.
74. Kayano v. Hokkaido Expropriation Committee (Sapporo Dist. Ct., Mar. 27,
1997), extract trans. M. A. Levin, in Ainu Association of Hokkaido, Koukosai
Kaigi Shiryou Shu [submissions to the Working Group on Indigenous Populations], 19872000 (Sapporo: Ainu Association of Hokkaido, 2001), p. 308.
75. Ibid., p. 314.
76. See Levin, note 71, pp. 423 n. 14 and 456 n. 131.
77. Ibid., pp. 466 n. 162.
78. Yuji Iwasawa, International Law, Human Rights, and Japanese Law:
The Impact of International Law on Japanese Law (New York: Clarendon Press,
1988), pp. 3538.
79. Indeed, there may be much to lose since the government technically won the Nibutani case (the plaintiffs were denied substantive relief)
and, consequently, the government could not appeal the decision. Further
litigation may open the door to a court deciding that the finding that the
Ainu are indigenous was in error: Levin, note 71.
80. Gerald N. Rosenberg, The Hollow Hope: Can Courts Bring About
82
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Social Change? (Chicago: University of Chicago Press, 1991); John Sutton,

Law/Society: Origins, Interactions, and Change (Thousand Oaks, Calif.: Pine
Forge Press, 2001); Edelman, note 8.
81. Erica-Irene Daes, Globalization, Intellectual Property, and Indigenous Peoples, in Indigenous Peoples: Resources Management and Global Rights,
ed. Svein Jentoft, Henry Minde, and Ragnar Nilsen (Delft: Eburon, 2003),
pp. 6773.
82. The representative noted that he saw the contact as a means to
uphold a professional practice, rather than promote indigenous rights: I
just felt that it was a duty to contact them. Not from the standpoint of trying to promote the Indigenous culture or not especially because it is an
Indigenous people per se, but just as a general practice. For example, if I
were doing other policies regarding to intellectual property, I would contact the consumers and I would call the industries and the related politicians and the NGOs. This explanation may also relate to the officials
characterization of the Ainu issue as a very sensitive issue, so we try not
to make it too political.
83. Levin, note 71, p. 501 nn. 292299. Anecdotally, the public may
also be ahead of the government on the acceptance of Ainu as an indigenous people. In casual conversations, strangers asked us about our research
and shared their thoughts with us. Reactions included a company executive
who said, The problem is very simple. Theyre Indigenous. In other
instances, members of the public analogized the Ainu situation to the Inuit.
These conversations occurred in Sapporo, where there likely is greater
familiarity with Ainu issues.
84. For instance, a government official whose duties did not include
Ainu policy asked us during our inter view for our advice on Japans policy
toward the Ainu.
85. Price, note 4.
86. Edelman, Uggen, and Erlanger, note 8; Edelman, note 8.
87. Anaya, note 13.
88. Iida, note 6.

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Alternatives 33 (2008), 5382

Emerging Indigenous Governance:

Emerging Indigenous Governance

As a consequence of the success of the global indigenous peoples

Erik Larson, Zachary Johnson, and Monique Murphy

common interest in compliance.6 Thus, perceptions that indigenous

Emerging Indigenous Governance

The states institutional patterns shape the range of issues on the

The Global Indigenous Peoples Movement and the Ainu

Erik Larson, Zachary Johnson, and Monique Murphy

The process of identifying indigenous peoples provides a clear

Emerging Indigenous Governance

Erik Larson, Zachary Johnson, and Monique Murphy

Emerging Indigenous Governance

Erik Larson, Zachary Johnson, and Monique Murphy

The State and Indigenous Governance in Japan

Emerging Indigenous Governance

advocacy organizations, the regulatory framework in Japan results

Erik Larson, Zachary Johnson, and Monique Murphy

which it would receive no corresponding subsidy from the national

Emerging Indigenous Governance

In May 1996, the government established a liaison committee

Erik Larson, Zachary Johnson, and Monique Murphy

economic situation, and their advancement rate in high school and

Emerging Indigenous Governance

Intersections Between the Japanese State

Erik Larson, Zachary Johnson, and Monique Murphy

Accordingly, he prepared the revised draft declaration based on

Emerging Indigenous Governance

Q: Does that include the Ainu?

Erik Larson, Zachary Johnson, and Monique Murphy

tuting compulsory takings of land in 1986. Three years later, after

Emerging Indigenous Governance

Erik Larson, Zachary Johnson, and Monique Murphy

countries. . . . Not just in terms of being present at the meeting,

Accordingly, the negotiator decided to call the Ainu. I contacted

Emerging Indigenous Governance

not result in Japan recognizing the Ainu as an indigenous people.

Erik Larson, Zachary Johnson, and Monique Murphy

actors in international politics. As part of the movements exercise

Emerging Indigenous Governance

of diffusion of these ideas from global culture is limited to receptor

Erik Larson, Zachary Johnson, and Monique Murphy

from the initial design of rights. Indigenous self-determination

Emerging Indigenous Governance

Erik Larson, Zachary Johnson, and Monique Murphy

Emerging Indigenous Governance

Journal of International Law 92, no. 3 (1998): 412457. Under Kingsburys

Erik Larson, Zachary Johnson, and Monique Murphy

Emerging Indigenous Governance

Erik Larson, Zachary Johnson, and Monique Murphy

on the Rights of Indigenous Peoples, Information Received from Governments,

Emerging Indigenous Governance

Social Change? (Chicago: University of Chicago Press, 1991); John Sutton,

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