Time to Recognize the National Sovereignty and Human Rights of North American Indians

In the past century, efforts by Native Indian nations to achieve recognition of signed treaties have been thwarted. When attempts to use domestic law failed, Native Indian Nations joined with other indigenous nations from around the world to gain recognition under international law. This effort, which took the form of a Declaration on the Rights of Indigenous Peoples in the United Nations, was sabotaged by the United States, Canada and some of their allies.

Native American.
A Native American pow-wow in Taos,
New Mexico, July 12, 2009.
(Photo: Jim Nix / Flickr)

Kevin Zeese and Margaret Flowers Truth-out 09 October 2013

Recently we wrote about the need to transform US foreign policy from one that is dominating and militaristic to one that is based on diplomatic relations. US Empire is not sustainable because of its tremendous cost in dollars and its impacts on the environment and lives of people all over the world. We asked if it might be possible to dismantle US Empire in a responsible way that would cause the least harm.

We often think of US Empire acting on the global stage through occupations and wars abroad, but the longest-running manifestation of US imperialism is the illegal occupation of portions of the United States and denial of the sovereignty of Native Indians, which continues today. The brutal history of this occupation and the fact that it is ongoing are largely ignored by most Americans, but awareness and the need for a peaceful resolution are imperative if we are to evolve into a cooperative and just society.

In the past century, efforts by Native Indian nations to achieve recognition of signed treaties have been thwarted. When attempts to use domestic law failed, Native Indian Nations joined with other indigenous nations from around the world to gain recognition under international law. This effort, which took the form of a Declaration on the Rights of Indigenous Peoples in the United Nations, was sabotaged by the United States, Canada and some of their allies.

Charmaine White Face, spokesperson for the Great Sioux Nation Treaty Council, fought for the original declaration written and agreed upon by indigenous nations from around the world after ten years of negotiations. In her new book, Indigenous Nations' Rights in the Balance: An Analysis of the Declaration on the Rights of Indigenous Peoples, White Face describes how the original document was significantly altered to avoid recognition of indigenous sovereignty, protection of indigenous culture and the creation of international law to provide enforcement of indigenous rights.

Recently, the United States, which initially voted against it, signed on to the Declaration of the Rights of Indigenous Peoples. While that headline no doubt sounded good, in fact it leaves Native American nations without clearly enforceable legal rights. Without guaranteed legal recourse, they face continued genocide and destruction of their lands.

The time has arrived to understand these facts and to act in solidarity to respect and protect the rights of all people. As Paolo Freire wrote in Pedagogy of the Oppressed, "This, then, is the great humanistic and historical task of the oppressed: to liberate themselves and their oppressors as well."

During the past year, the Native Indian movement has been reinvigorated. Idle No More started in Canada and spread throughout the United States. Allied groups, especially those who also are opposed to the extreme methods of extracting energy, are following the lead of Idle No More. On October 7, 2013, Idle No More celebrated an international day to proclaim sovereignty. In this article, we provide some background information about the struggle for sovereignty. Next week we will write about the growing indigenous movement.

Stripping Away Native Indian Rights

When European colonizers arrived on American soil, known as Turtle Island, there was estimated to be more than 100 million Native Indians living here. From the beginning, Native Indians were not treated with respect. Whole communities were massacred, enslaved or forced off of their lands. In the Declaration of Independence, the Native Indians are labeled: "merciless Indian Savages."

White Face notes that the Great Sioux Nation has suffered from the colonization of the United States for the past 150 years. Grandparents, still alive today, can recall stories of battles with the US military. Her relatives participated in the Great Sioux War of 1876, which included the Battle of Little Bighorn or Custer's Last Stand.

The Great Sioux War was the result of violations of the 1868 Treaty of Fort Laramie by gold miners. The Treaty of Fort Laramie is of continued importance to the Sioux because it grants them ownership of the Black Hills as well as rights in South Dakota, Wyoming and Montana. But education about the treaty was severely suppressed. White Face reports that oral history accounts of those who talked about the treaty include stories of people being taken away and never returning, being jailed or killed, or being taken to Canton, South Dakota, where they underwent lobotomies without the benefit of anesthetics. Knowledge of the treaty was passed down quietly from grandparents to grandchildren, which is how White Face learned about it.

In 1871, the Indian Appropriations Act stripped all Native Indian nations of sovereignty and made individual Native Indians "wards of the state." Sovereignty includes land, language and culture. All of these aspects have been under attack since then.

The US government attempted to eradicate Native Indian languages and cultures and did not allow the practice of their religion. Native Indian children were forced to attend boarding schools, where they were "re-educated" to adopt the English language and customs.

Native Indians continue to face serious threats to their basic existence today because of government policies that allow mining and energy-extraction corporations to pollute their water and land and steal their resources. This has been going on for decades. We wrote in 2013 about the thousands of open pit uranium mines on tribal land throughout the West that are connected to high rates of cancer, birth defects and other serious health conditions.

Native Indians suffer with high levels of incarceration, illiteracy, unemployment, alcoholism and addiction because of polices that have mistreated them since the European colonizers came to North America. One tool used as a weapon against the indigenous people is the rule of law. The story of the formation and passage of the Declaration of the Rights of the Indigenous Peoples illustrates how this is done. White Face's book describes the process of drafting the agreement and compares three versions of the text, beginning with one drafted and agreed upon by indigenous peoples and ending with one they did not approve or consent to.

The Initial Drafting of the Declaration

It is in the context of violence at the hands of US colonizers, and violations of important legal agreements such as the Treaty of Fort Laramie, that White Face went into the negotiations for the Declaration of Indigenous Rights.

In her book, White Face begins by pointing out that this declaration would not even be needed if the Universal Declaration of Human Rights, which guarantees the fundamental rights of all human beings, applied to indigenous peoples. Indeed, several international covenants are relevant to the rights of indigenous peoples. Among them are the United Nations International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, which state that all peoples have the right of self-determination by virtue of which they "freely determine their political status and freely pursue their economic, social and cultural development." Also relevant are covenants against genocide and against racial discrimination.

Beginning in 1984, the Sioux Nation Treaty Council began its involvement in negotiating the Declaration of Indigenous Rights. The UN Working Group on Indigenous Population recognized the need for a declaration to specifically address the distinct rights of indigenous peoples. Many indigenous peoples from around the world participated in a lengthy negotiation to develop the text.

In 1994, after ten years, the Working Group and the UN Sub-Commission on the Prevention of Discrimination and Protection of Minorities approved the original language of the declaration. As a next step, it should have been presented to the Commission on Human Rights for approval. However, during the Clinton administration, the United States and other English-speaking nations opposed the language of the declaration. As a result, the agreement that had the approval of a majority of indigenous peoples as well as the UN subcommission was reassigned to a newly created Working Group on the Draft Declaration (WGDD).

There were two articles in particular in the original text that caused the US government to be concerned. First, Article 36 provided for a method for indigenous nations to seek redress for violations under international treaties made between indigenous nations and the United States. That means the Great Sioux Nation could seek redress for violations of the Treaty of Fort Laramie. If that legal agreement had been enforced, it would mean the United States would have to end its illegal occupation of the Black Hills and other treaty territories. The United States might also be required to reimburse the Great Sioux Nation for the destruction of its economy and environment.

Second, under Article 3 of the original declaration, the right to self-determination of indigenous peoples was affirmed. This would have applied to all of the indigenous nations within the United States. This would have meant enforcement of numerous treaties with Indian nations that have been routinely violated by the US.

Rather than recognize the rights of indigenous peoples, the US worked to ensure their rights were not recognized by opposing the draft and requiring it be sent to the new Working Group on the Draft Declaration for review.

Rewriting the Declaration

As a result of opposition from the English-speaking colonizer countries, especially the United States, the original declaration was sent to the new Working Group in 1994. Working groups of the UN normally hold their meetings for no more than five years. Standard procedure dictates that if the WGDD had not reached agreement in five years, then the original text would go to the Commission on Human Rights for approval. Instead, the WGDD continued to debate for six more years and still never reached consensus.

White Face was chosen as spokesperson for the Great Sioux Nation Treaty Council in 2002, taking the place of Antoine "Tony" Black Feather, who served as the spokesman from 1984 to 2002. Black Feather had taken White Face under his wing in 1999 and mentored her in all aspects of the work. Black Feather explained to White Face that no changes should be made from the original text because it had taken years of negotiation to achieve consensus. Black Feather died in 2004.

In September 2004, the chairperson-rapporteur, Louis Enrique Chavez, announced his intention to present his own chairperson's text to the Commission on Human Rights for passage. To preserve the original text that had been agreed upon by indigenous negotiators, a group of six negotiators began a hunger strike and prayer fast. One of the six was White Face. She was joined by a Seminole nation representative and a Yaqui nation representative from the United States, a Buffalo River Dene nation representative from Canada, a Zapoteca representative from Mexico and Kali'a from French Guyana.

The hunger strike and prayer session ended after five days when a promise was made that if no agreement was reached on a new text by December 2004 then the original text would be submitted to the full commission. Instead, between November 2004 and July 29, 2006, the UN abolished the Commission on Human Rights and created a UN Human Rights Council. No reason was given for the change, but one rumor was that the US opposition to the original text and the subcommission's preliminary approval was the reason. The new council disregarded the promise made as a result of the hunger strike-prayer fast.

Chavez wrote the version of the declaration that the new Human Rights Council considered. The chairman's text did not have the approval of the indigenous peoples or the states that took part in the drafting of the original declaration. Nor did it have the approval of the people participating in the debates before the WGDD. Thus, the chairman not only violated the agreement of the hunger strike but also violated the rules of the UN's negotiation and approval process.

This final version was neither approved nor even discussed by indigenous people and nations. While 144 countries voted in favor of the declaration, four countries - Australia, Canada, New Zealand and the United States - voted against it. Notably, each is a former British colony and has large nonindigenous settler majorities and only small indigenous populations, which have all suffered under colonizers.

All four countries were concerned that the declaration could reopen treaty disputes and provide a legal basis for indigenous peoples to reclaim land now owned by colonizers and to seek redress for the theft of resources and the resulting environmental destruction. Since then, all four countries have moved to endorse the declaration.

The United States, home to more than 2 million Native Indians, with 565 federally recognized Indian tribes and other indigenous communities, was the last to approve the declaration. The United States announced its support for the declaration on December 16, 2010. President Obama made the announcement with a great deal of pomp and circumstance at an event in Washington, DC, where tribal leaders gathered. However, the United States noted the declaration was not legally binding, writing, "The United States supports the Declaration, which - while not legally binding or a statement of current international law - has both moral and political force." It should be noted that there are lawyers and case law that dispute this conclusion and see the declaration as creating legal power for indigenous peoples.

Small Changes have a Broad Impact 

A comparison of the three versions of the declaration - the version agreed to by the indigenous negotiators, the Human Rights Commission version and the final version approved by the General Assembly in 2007 - shows the critical differences that change the meaning and tenor of the Declaration on the Rights of Indigenous Peoples. This document, which contains 23 preambular clauses and 46 articles, affects the rights of the planet's 370 million indigenous peoples and sets out their individual and collective rights, as well as their rights to culture, identity, language, employment, health, education and other issues.

The first preambular paragraph was added without any review by the indigenous negotiators. It talks about "the obligations assumed by States." White Face points out that it should have focused on the human rights of indigenous peoples and that the declaration sets a frame of native people being dependent on colonizing nations for their human rights rather than possessing the same inalienable rights as all human beings. This condescending tone sets the stage for many of the other changes between the original draft and the final declaration.

In addition to adding a paragraph that changed the tone and purpose of the declaration, they deleted a preamble paragraph that expressed some of the most basic purposes of the declaration: "Recognizing also that indigenous peoples have the right freely to determine their relationship with States in a spirit of coexistence, mutual benefit and full respect." And they deleted an article the indigenous saw as essential: "Indigenous peoples have the collective and individual right to maintain and develop their distinct identities and characteristics, including the right to identify themselves as indigenous and to be recognized as such." Assimilation into the colonizers' culture still seems to be the goal.

Phrases like "dignity and rights" - which were central to the purpose of the document - are deleted from the original and not included in the final declaration. When injustices are discussed in the original text, they are described as ongoing violations. But in the final declaration, they are "historic injustices" that occurred in the past. Similarly when discussing the need to demilitarize the lands and territories of indigenous peoples and nations, the final draft describes this as if it is resolved, while the original refers to the "need for demilitarization" because it continues to be an issue.

One repeated change is the removal of the word nation from the original draft. The United States seeks to avoid using nations when referring to indigenous lands and territories. This is a conscious attempt to undermine indigenous sovereignty.

A constant problem in the declaration is that it contains many directives but provides no method of enforcement. And although the original version made it clear that the "arrangements between States and indigenous peoples are properly matters of international concern," the final draft changed it to "are in some situations, matters of international concern" thereby limiting the role of international review.

A problem that has plagued Native Indians for a long time is the removal of children from their homes. In the original text, one article prohibited "the removal of indigenous children from their families and communities under any pretext." The final version inserted the word "forcible" before removal and deleted "under any pretext." White Face writes that this "is very ominous, since colonizers devise all sorts of excuses and pretexts to kidnap Indigenous children and place them under non-Indigenous control."

The weakening of article after article is a constant in the revisions. The examples given here show how the consistent goals were to undermine sovereignty, prohibit the treatment of indigenous rights as inalienable, treat the indigenous as wards of the state and prevent legal means for redress.

The Ongoing Struggle

As she went through process, White Face wanted to scream, "This is not about the fights of indigenous peoples, but a collection of mandates for the states that will not be enforced."

The rule of law with no clear enforcement, created in a process that undermined the original intent and mandate of the declaration, becomes a tool for the colonizers to avoid their responsibility.

Gabriel Galanda wrote in Indian Country in January 2012 that "the United States still routinely violates Indian treaty rights and sovereignty." He pointed out that President Obama speaks well about Indians but uses the "rule of law" to undermine indigenous rights: "What is disturbing about this administration's approach to Indian country is that it professes to honor tribal sovereignty - the president recently said he's 'got our back' - while employing increasingly sophisticated legal and political tools to undermine inherent and reserved tribal rights."

In the past two years, there has been a reawakening and tremendous growth of the First Nations and Native Indian rights movements. They have become a guidepost for many non-Native environmental justice activists who look to them for leadership and guidance. The effort continues for recognition that indigenous peoples share the universal rights that all humans share. The historic prejudice and destruction of their culture and land will begin to be corrected only when their sovereignty is respected. These are aspirations that remain unfulfilled, but the struggle to achieve them continues.

This article is the first of a two-part series on the ongoing struggle for indigenous peoples to have their human rights and national sovereignty recognized.

To hear our interview with Charmaine White Face on the struggle for recognition of the rights of indigenous nations, click here.

This article was first published on Truthout and any reprint or reproduction on any other website must acknowledge Truthout as the original site of publication.