ABSTRACT
This chapter examines the place of Indigenous Peoples in international law by critiquing the use as well as non-use of the term 'people' in the relevant legal and theoretical contexts. It describes that the way the system is set up is such that access is the means by which the State is to meet the end of sharing benefits with Indigenous Peoples. The chapter approaches this question by engaging with the work of German jurist Carl Schmitt and Italian philosopher Giorgio Agamben to identify the points at which their work sharpens the dilemma at hand. The chapter demonstrates that the Convention on Biological Diversity's referencing Indigenous Peoples did not preclude and is indeed predicated upon sovereign States under whom indigeneity is either subsumed by way of inclusion or is heterogeneous and therefore can only be excluded. Thinking through the issues with Schmitt and Agamben the authors can see that in a democracy homogeneity is presupposed.
