jdmann@labrea.stanford.edu (08/30/89)
/* Written 2am 8/29/89 by David Yarrow(jdmann) in soc.rights.human */
/* ---- INTERNATIONAL PRINCIPLES OF INDIGENOUS RIGHTS, Part 1 ---- */
Source: DAYBREAK: Amer. Indian World Views, Winter 88, pp 14-17
"International Principles of Indigenous Rights" by John Mohawk
Indigenous peoples working toward definitions of their rights in
international law are involved in two international processes.
The first is the U.N. Human Rights Sub-Commission on the Prevention of
Discrimination and Protection of Minorities. A 1982 resolution of the U.N.
Economic and Social Council created the Working Group on Indigenous
Peoples/Populations (WGIP) in the Sub-Commission with a mandate to "give
special attention to the evolution of standards concerning the rights of
indigenous populations." This process is covered in Part 1.
A separate process involves the International Labor Organization's
Convention 107 which is currently discussing proposed revisions of language
intended to protect the rights of indigenous populations. This process is
reported on in Part 2 of this essay.
HISTORICAL PRECEDENCES
That indigenous peoples' rights are properly a matter of international
concern and law is arguably a modern phenomenon. But the practice of
dealing with indigenous nations and peoples with internationally recognized
procedures has a history dating back at least to European colonization.
Spain, England, Holland, France and other countries negociated with
American Indian and other indigenous peoples over issues such as peace,
trade and territory, and entered into treaties or international agreements.
There are hundreds such treaties in the western hemisphere. European
nations also entered into treaties with indigenous peoples throughout the
world. The idea indigenous peoples possess legal personalities that have
been and should continue to be recognized in international law is well
established historically.
During the 20th century, especially since World War II, international
law has evolved standards against which behavior of nation states toward
its people and peoples can be and is measured. The U.N. and International
Labor Organization (ILO) are developing new international standards for
acceptable treatment of indigenous peoples.
The best draft proposals for protection of indigenous rights, in the
eyes of the indigenous peoples, urge that countries should never be able to
forcibly remove indigenous peoples from their aboriginal lands. According
to these positions, countries should be able to remove indigenous peoples
only after affected indigenous peoples freely give their informed consent
to relocation; such informed consent must be arrived at in the absence of
coercion by the nation state involved.
Indian political organizations, including the Six Nations Confederacy,
and non-governmental organizations such as Inuit Circumpolar Conference,
National Aboriginal and Islanders Legal Services, National Indian Youth
Council, and Indian Law Resources Center urge that indigenous peoples are
fully PEOPLES as that term is used in international law, and should enjoy
rights of self-determination.
INADEQUATE REPRESENTATION
Almost all parties agree indigenous peoples have been underrepresented
at these discussions. In January 89 at a UN seminar in Geneva, Switzerland
entitled "The Effects of Racism and Racial Discrimination on the Social and
Economic Relations Between Indigenous Peoples and State" no tribal chairmen
or their representatives were present from the geographic area known as the
U.S. This is especially curious since the major distress in Indian country
in this century revolve around the Termination Policy, in which the U.S.
declared several Indian peoples dissolved by law. That kind of act
contradicts international laws that seek to protect indigenous peoples'
rights to continued existence as distinct peoples.
Indian leadership in Indian country is vitually unanimous in support of
the principle of the right of continued existence, but at a meeting to
discuss legal standards to promote that principle, Indian and other
indigenous representatives were largely absent.
NO "COMPELLING NATIONAL INTEREST"
Many criticize wording that allows nation states to remove indigenous
peoples from their land for "compelling national interest." They point out
such excuses are always available. Nation states claim indigenous peoples'
lands for such frivolous purposes as gunnery ranges, a reason which many
argue pales against crimes of destruction of whole peoples. Islands in the
Pacific were used to test atomic bombs, and whole populations were uprooted
for this. Some nation states argued they needed land occupied by indigenous
peoples for purposes the Nazis described as "lebensraum," a purpose they
ascribed to "national interest." Indeed, some indigenous rights activists
think no "national interest" should suffice for the forced removal of
indigenous people.
Other players on the international scene -- some who purport to
represent indigenous rights -- are much less assertive. Representatives of
some of these, such as the Four Directions Council (an NGO represented by
Seattle attorney Russell Barsh), the World Council of Indigenous People
(Hawaii attorney Hayden Burgess) and the Grand Council of the Cree (Ted
Moss), have urged that indigenous peoples could be forcibly relocated when
there exists a compelling national interest.
"I expected a certain amount of opposition from other people," said Tim
Coulter, Director of the Indian Law Resources Center in Washington, DC, in
a recent interview. "But not from indigenous people themselves."
INADEQUATE REPRESENTATIVE STRUCTURE
There is a weakness in the process by which representation is gained in
intenational forums. At the January meeting NGOs were present but
indigenous leadership, elected or selected by indigenous peoples whose work
and behavior is subject to evaluation by indigenous people, were largely
absent. The result is NGO representatives speaking on behalf of the rights
of millions of indigenous peoples from thousands of indigenous communities
who have never heard of them. U.S. Indians are only vaguely aware of the
existence of Roxanne Dunbar Ortiz, anthropology professor at the University
of California at Hayward who represents Indigenous World Association, a
NGO. Some indigenous rights advocates assert these nonrepresentative
organizations sometimes do enormous damage to indigenous rights issues.
Some observers said that when indigenous leaders are on the scene (eg.
at meetings of the Working Group) NGOs become strong advocates for
indigenous rights, but when they're absent advocacy recedes. The most
striking result of the January seminar was the absence in the final report
of any recommendation on the right of self-determination, or any
to the ILO for revising the Convention on Tribal Populations.
Despite disappointments, the seminar's recommendations are, in general,
very positive. Its conclusions reject conquest and discovery as modes of
territorial acquisition, condemns trusteeship which interferes in the
exercise of human rights, and suggests treaties between indigenous peoples
and states should be subject to international supervision and enforcement.
EFFORTS TOWARD INDIGENOUS PEOPLES ORGANIZATIONS
Indigenous peoples' organizations which represent peoples whose
territories have been divided by the boundaries of nation states are not
new. The Sami people of Norway, Finland and Sweden founded the Nordic Sami
(Lapp) Council in 1953. What is new is that widely diverse indigenous
peoples around the world are organizing toward coordinated action within
the community of nations.
The first step occurred in November 73 at the First Circumpolar Arctic
People's Conference in Copenhagen, Denmark, which attracted delegates from
sixteen indigenous organizations representing Inuit (Eskimo), American
Indian and Sami peoples in Sweden, Finland, Greenland and Canada. In 1974
(a few months after the Copenhagen conference) Indians in Paraguay hosted
the American Indian Conference of the Southern Cone, attended by 15 Indian
groups in Brazil, Argentina, Paraguay, Bolivia and Venezuela. Both
conferences issued statements in defense of the rights of indigenous
peoples to land and a continued existence as distinct peoples.
INTERNATIONAL INDIAN TREATY COUNCIL
North American Indians held a historic conference on the Stand Rock
Sioux Reservation in the summer of 1974. The conference was organized by
the American Indian Movement (AIM), but because existing court orders
prevented some AIM members from attending AIM functions, it was designated
the International Indian Treaty Council (IITC) Conference. It attracted
several thousand delegates and observers from the U.S. and Canada.
This conference expressed determination to pursue American Indian rights
to land and self-determination represented in treaties between Indian and
other nations. It observed such rights aren't recognized by laws of nation
states, and urged Indian and other indigenous groups to pursue principles
recognizing such rights under international law. It approved an initiative
to work toward recognition of indigenous rights in international law.
A similar movement by the National Indian Brotherhood of Canada
organized a 1975 conference hosted by Nootka people in British Columbia.
This created the World Council of Indigenous Peoples. It was attended by 52
delegates of indigenous peoples from North and South America, Australia,
New Sealand, Scandanavia and Greenland. The WCIP charter adopted stated
goals to "further economic self-sufficiency and to obtain self-
determination." The WCIP sought and gained NGO status in the U.N.
A second WCIP conference, held in 1977 in Samiland, Sweden, issued a
report in Sami language, English and Swedish that called for international
recognition of the just claims of indigenous peoples to their traditional
lands and the right to self-determination.
UN CONFERENCE ON DISCRIMINATION AGAINST INDIGENOUS POPULATIONS
In September 77, at the uging of many indigenous organizations, the NGO
organizations of the U.N. hosted the International Conference on
Discrimination Against Indigenous Populations in the Americas at Geneva,
Switzerland. This conference was the largest event of its kind to that
date. It was attended by 46 national and international organizations and
observers from 27 different national governments.
In 1977 the Issue of Indigenous Peoples entered into the discussions of
the U.N. Since that time there have been numerous meetings, seminars,
discussions and papers concerning the development of principles of law to
protect the rights of indigenous peoples. In January 1989, the U.N.
convened a Seminar to discuss indigenous rights in Geneva, Switzerland. The
seminar consisted of 25 experts on human rights appointed by their country
or by an NGO. They are not, in this capacity, representing their
government. They are attending in their capacity as experts.
1989 WGIP SEMINAR
In 1989 the idea of the existence of indigenous peoples (as opposed to
"populations," which refers to scattered individuals among the whole) is
being proposed to the human rights community. This was an idea that emerged
from the seminar and was incorporated into its recommendations to the
Working Group. Practically all the representatives agreed to this
principle. It was a small but important step toward recognition of
indigenous peoples and nations as sovereign entities.
One recommendation was that the principle of self-determination be
clearly stated in the standard setting work of the WGIP. The recommendation
was carefully worded. It did not state, for example, that all indigenous
poeples must be accorded the right to secede from a nation state. It was
simply a vague, general statement in the form of a recommendation in the UN
standard setting activities that self-determination be stated.
One seminar participant, a Mr. S. Rama Rao, an expert on law and treaty
commissions from India, stated he could not support any recommendation that
included the principle of self-determination. Surprisingly, some indigenous
NGOs interpreted Mr. Rao's position as definitive.
"That was odd," said R.T. Coulter of the Indian Law Resource Center.
"People were behaving as if one vote against was reason enough to back
down. Sometimes that can be true, but not in a seminar. I respect his
position. He didn't do anything wrong. He just took a position that was his
right to take and that was it. What went wrong was that others, many of the
NGOs, were too timid and too unwilling to face up to opposition and insist
on what was right. They behaved as if they had something serious to lose -
as if disagreement on self-determination was a serious loss in some way."
There followed a recommendation that the ILO process for revising the
ILO Convention in indigenous peoples be opened to broad, direct indigenous
participation and that, if necessary, the process be delayed until such
participation was possible. No one spoke against this recommendation, but
the chairman and rapporteur refused to consider it or allow it to be
brought to a vote. Rapporteur Ted Moses, Chief of the Grand Council of the
Crees of Quebec, was advised by Ottawa attorney Bob Epstein.
"I think, generally speaking, anybody that would take the Cree Nation
and make them an NGO doesn't understand sovereignty," Onondaga Chief Oren
Lyons stated. "He doesn't understand or have the feel for sovereignty that
he should have." Chief Lyons is referring to the contradiction which arises
when an Indian government chooses a designation as a NON-government.
***** ***** *****
(JOHN MOHAWK, a Seneca Indian journalist, is a Professor of American
Indian Studies at the University of Buffalo, and Editor-in-Chief of
DAYBREAK, a quarterly journal of "American Indian World Views"; PO Box 315,
Williamsville, NY 14231; 716-636-3678)
=============================================================
-*+*- prepared by David Yarrow(jdmann), the turtle, for SOLSTICE magazine
***** SOLSTICE, devoted to "Perspectives on Health and Environment", is
published bimonthly at 200 E. Main St Suite H, Charlottesville, VA 22901
804-979-0189/4427.
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