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eLaw Journal: Murdoch University Electronic Journal of Law |
| Author: | Rudolph C Ryser Center for World Indigenous Studies |
| Issue: | Volume 2, Number 1 (April 1995) |
1. Introduction
Four Indian nations have been carrying forward a quiet political revolution
since 1987.[1] The drive by three Indian nations in the
Pacific Northwest
and one in Northern California to resume self-government has been underway
for more than a generation urged on
by the desire to choose freely their
own political and cultural futures.
Their efforts are leading toward an eventual exercise of
self-government. Rejecting the U.S.
court system in favor of direct political negotiations with the United
States government, these
nations have begun blazing a new path to renewed
political and economic development.[2] The policies of the Quinault,
Lummi, Jamestown
S'Klallam and Hoopa have already changed the domestic
political and legal landscape of Indian Affairs.[3] The transition of
these
Indian nations from non-self-governing to becoming self-governing
peoples will undoubtedly have a direct impact on changing political
relations between nations and states long into the future.[4]
These four nations have begun to show that self-governing sovereign nations
can coexist with a sovereign state and not threaten the
dismemberment of
the existing state. They have shown
that there is compatibility between a nation's sovereignty and a state's
sovereignty,
given that a framework of government-to-government relations
has been established, maintained and nurtured in order to ensure
cooperative
communications and systematic resolution of conflicts. Nations and states with formal
treaties, compacts and other constructive
arrangements can politically
coexist.
The 1993 negotiation of a long-term Self-Government Compact between four Indian
nations, the Quinault, Lummi, Jamestown S'Klallam
and Hoopa nations, and
the United States of America set a standard for future bilateral
government-to-government relations between
nations and states. There is,
however, an obstacle to an assured constructive and positive outcome to
these negotiations. The concept
of
self-determination, or the right of these peoples to self-government, is
paramount to the obstacle. Internal and external contradictions
between
U.S. government policies on self-determination, as reflected in recent
actions by the Department of State and the Department
of the Interior,
cast doubts about whether these nation and state negotiations represent a
net advance in political relations or
a confirmation of the status
quo. The U.S. government seems to
have begun a retreat from its former advocacy of self-determination
of peoples
and the promotion of self-government.[5]
Although the Jamestown S'Klallam, Hoopa, Lummi and Quinault are not strategically
important nations in any geopolitical sense, the
political initiative they
have decided to undertake in the last decade of the twentieth century may
turn out to have a profoundly
significant impact. If they are successful
in their efforts to reassume the powers of self-government, their success
will point
the way to peaceful resolution of conflicts between states and
the nations inside their boundaries around the world.
The move to regain powers of self-government is also being propelled by a two-decade-long
debate in the international community concerning
evolving standards for
the rights of indigenous peoples, or those millions of people around the
world whose nations were absorbed
into newly formed states without
consent, as were Indian nations in the United States.[6] The most visible
result of the growing
international debate is the formulation and imminent
United Nations General Assembly approval of a Declaration on the Rights of
Indigenous
Peoples.[7] Participating in drafting the Declaration are the
United Nations, state governments, indigenous nations and a growing
number
of specialized international agencies, as well as non-governmental
organizations. The prospects of a new
era of nation and
state treaty-making is signalled by the synergy of bilateral
negotiations between a nation and a state, resulting in a Compact of
Self-Governance, and multilateral negotiations in the United Nations
between nations and states to produce the Declaration on the
Rights of
Indigenous Peoples. It is a hopeful
time, but as suggested already there are obstacles on the path to
self-government
for Indian nations.
This article will examine the historical and contemporary political relations
between Indian nations and the United States in the
light of efforts by
Indian nations to exercise self-government.
It will begin by reviewing some of the history of key points of
U.S. government interference in the internal political life of Indian
nations, past attempts by Indian nations to govern themselves
and some
obstacles to self-government by Indian nations. It will analyze how the
United States government has attempted to apply
the principle of
self-determination to Indian nations as a matter of internal policy, and
how the United States government has dealt
with the principle of
self-determination as a matter of external policy concerning the rights of
indigenous peoples. It will conclude
that there is a profound contradiction between the U.S. government's
internal and external applications of self-determination and
that such a
contradiction may reflect the practice of many states' governments. This contradiction may have a significant
effect
on how Indian nations and other indigenous peoples seek to
implement self-determination.
2. Background
2.1 History of Intrusions into Self-Governance
For 120 years, Indian nations saw their ability to decide freely their own political,
economic, social and cultural affairs eroded
by the U.S. Congress. The judicial branch of the U.S. government
made efforts to take governmental powers from Indian nations, followed
by
similar efforts by the executive branch of the U.S. government.[8] The
principal means by which the powers were taken were through
preemption and
usurpation.[9] Most of the erosion of Indian governmental powers,
including the regulation of natural resource use,
land use regulation,
education, civil and criminal justice, and the making of laws, was done in
the name of "protecting Indian
interests."[10] The end result,
however, was quite different.
The actual effect of the government's attempt to protect Indian interests was
to undermine Indian governmental institutions.[11]
No Indian nation has a
political representative in the Congress or any branch of the U.S. government.
No Indian nation shares political
power with the states of union in the
federal system. Yet, the United States
claims and exercises its absolute dominion over Indian
peoples and their
territories through its self-proclaimed "Plenary Power of
Congress."
Modern claims to absolute U.S. rule over Indian nations are rooted in the 1860s
competition between the House of Representatives
and the Senate over powers
of budget.[12] The intramural Congressional contest had to do with the
making of treaties with Indian
nations, the cost of those treaties and the
Constitutional powers of finance. It was in 1867 that the House considered
passing legislation
to repeal the authority given the President, the
Secretary of the Interior and the Commissioner of Indian Affairs to make
treaties
with Indian nations.[13] Many Congressmen regarded treaties with
Indian nations as creating a two-fold problem: Rapidly increasing
demands
for revenues in a time of budgetary restraint following the Civil War; and
allowing the U.S. Senate to usurp the Constitutional
power of the House by
creating new budgetary demands through treaties.[14] Failing to win
passage of the bill to restrain the Executive
branch from making treaties,
and thus unable to restrain the Senate as the Constitutionally empowered
body of Congress responsible
for treaty ratification, the debate
continued. A compromise bill was subsequently introduced as an attachment
to the Indian Appropriation
Act of 1871.[15]
2.1.1 The Appropriation Act of 1871
As a compromise, language used in the bill attached to the Indian Appropriation
Act of 1871 stated: "That hereafter no Indian
nation or tribe within
the territory of the United States shall be acknowledged or recognized as
an independent nation, tribe or
power with whom the United States may
contract by treaty; Provided . . . , That nothing herein contained shall
be construed to invalidate
or impair the obligation of any treaty
heretofore lawfully made and ratified with any such Indian nation or
tribe."[16]
The passage of the Appropriation Act into law effectively stopped making new
treaties with Indian nations and severed formal government-to-government
relations between the U.S. and Indian nations. While satisfying the
political concerns of Congressmen worried about Senate usurpation,
the
breaking of government-to-government connections with Indian nations posed
dilemmas for the U.S. government: were
legal means
available for the United States to legally acquire Indian
lands, and could the government deal with the growing number of civil and
criminal problems involving U.S. citizens in Indian territories. A string of court cases resulting from
these dilemmas appeared
in the federal courts.
In one of two landmark cases, Elk v. Wilkins,[17] the Court first addressed
the congressionally created dilemma. It
stated, "...utmost
possible effect [of the 1871 Act] is to require
the Indian tribes to be dealt with for the future through the legislative and
not
the treaty-making power."[18] One year earlier, in Ex Parte Crow
Dog,[19] the Court ruled in favor of recognizing treaty obligations
between the U.S. and the Brule Sioux, and recognized the power of the
Brule Sioux government to administer "their own laws and
customs" in connection with crimes committed by Indians against
Indians.[20] Congress seized upon the court's ruling in Elk
v. Wilkins and
responded to the Crow Dog decision by enacting the Major Crimes Act in
1885.[21]
2.1.2 Major Crimes Act of 1885
As the first intrusion into Indian government jurisdiction by the U.S. government,
the Major Crimes Act imposed U.S. authority inside
Indian territory over
eight subject crimes. These included:
murder, manslaughter, rape, assault with intent to kill, arson,
burglary,
and larceny. New crimes
were added in the years to follow:
statutory rape, assault with intent to commit rape, assault with a
dangerous
weapon, assault resulting in serious bodily injury and robbery.
The imposition of the Major Crimes Act led to a court challenge in 1886 to the
law's constitutionality.[22] Attorneys for two Indians
who had been indicted
for the murder of a member of the Hoopa tribe argued that the Act went
beyond the constitutional powers of
the Congress. The court agreed, noting that the Constitution did not grant
Congress power to intrude into the jurisdiction of Indian tribes.[23]
Ignoring its own conclusions affirming the unconstitutionality
of the
Major Crimes Act, the court, however, turned to a political argument for
its final decision:
But, after an experience of a hundred years of the treaty-making system of government,
Congress has determined upon a new departure--to
govern them by acts of
Congress. This is seen in the Act of March 3, 1871. . .[24]
It seemed that Congress' own action was evidence enough that it had the power
to act. The issue of the
constitutionality of the
law became moot. Without saying the Congress had
acted in a way inconsistent with the U.S. Constitution, the court was
uncertain about whether it had the competence to enter a judgment that
would limit the power of Congress to undertake
what was essentially a
political act outside the Constitution.
However, a few years later, Congress was challenged again.
2.1.3 The Plenary Power of Congress
In 1899, the court first used the term plenary power to describe Congress' exercise
of extra-Constitutional legislative powers in
Stephen v. Cherokee Nation[25]. The court was presented with the issue of
whether Congress had the authority to establish a mechanism
for
determining membership rolls of several Indian tribes. The Supreme Court said: [A]ssuming that Congress
possesses plenary power
of legislation in regards [Indians], subject only
to the Constitution of the United States, it follows that the validity of
remedial legislation of this sort cannot be questioned unless in violation
of some prohibition of that instrument.[26]
Thus, the Court asserted that Congress had plenary power over Indian nations. The only evidence that Congress had such
power was
the Appropriation Action of 1871. The Court's reach for evidence to support its conclusion
only confirmed that Congress had unlawfully
exercised absolute power over
Indians. After establishing the Plenary Power Doctrine, the Court, three
years later held that Congress'
power over Indian legislation was a
political question and not subject to judicial review.[27]
The Legislative Branch of the U.S. government first closed the door on government-to-government
relations by enacting the Appropriations
Act of 1871. It then imposed laws of the U.S. government
directly over individual Indians.
The U.S. courts supported Congress'
actions through the Plenary
Power Doctrine, and then closed the doors to judicial consideration of the
lawfulness of the doctrine
through the Political Question Doctrine,
effectively insulating itself from criticism or challenge. Finally, the Executive Branch
enforced both
the Congressional and Judicial actions and assumed administrative powers
of its own over Indian people. By
1902, the
U.S. government's dictatorship over Indian nations was complete:
Indian nations had been stripped of the capacity to determine and
decide
their own political, economic and social future.
2.2 Past Attempts at Self-Governance
Ninety-three years after the U.S. Congress closed the door on nation and state
treaty negotiations by passing the Appropriations
Act of 1871, Indian
nations took their own initiatives to regain power over their lives.[28]
Beginning in 1964 with the Johnson Administration's
Great Society Programs
and "Indian Self-Determination Policy," Indian nations received
small amounts of community development
funds and began to pursue a new
political course of "strengthening tribal government."[29] Further encouraged
by the Nixon
Administration's "Indian Self-Determination Policy,"[30]
and gaining momentum with the Reagan Administration's "government-to-government
policy,"[31] Indian nations moved systematically to reassume their
powers of self-government. Through
structured negotiations
in U.S. courts, informal negotiations with the
Executive Branch and work with Congress, many nations moved toward
clarifying their
governmental powers.[32] 2.2.1 Preliminary
discussions of 1987
The events leading up to the 1993 self-government agreements officially began
in October 1987 with discussions between Lummi Chairman
Larry G. Kinley,
Quinault President Joe DeLaCruz and the Chairman of the Interior and
Related Agencies Appropriations Sub-Committee
Congressman Sidney Yates of
Illinois. The issue under discussion
was attempting to find a solution to problems the Lummi and Quinault
suffered while dealing with the Bureau of Indian Affairs, such as
mismanagement of tribal and individual trust funds, and possible
illegal
activities in the management of natural resources.[33] Previously, as
President of the National Congress of American Indians
in 1983, DeLaCruz
had urged Indian leaders to ". . . make a decisive departure from the
recurring issues that divert our attention
from the most important
priorities and initiatives necessary to establish meaningful
government-to-government relations with the
United States."[34] While
meeting with Congressman Yates, DeLaCruz reiterated his views on government-to-government
relations.
In addition, Chairman Kinley appeared before Congressman Yates' Sub-Committee
and delivered testimony entitled "Problems and
Solutions in the
Tribal-Federal Relationship"[35] which emphasized building a framework for
government-to-government relations
to help find solutions to persistent
problems that were perceived as responsible for undermining constructive
tribal development.
2. The Tribal Self-Governance Demonstration Project
As a result of these discussions and public hearings, the House Interior and
Related Agencies Sub-Committee decided to include a
three paragraph attachment
to its annual appropriation bill that identified funds for a tribal
self-governance demonstration project.[36]
In addition to appropriating
funds for conducting the demonstration project and identifying ten tribes
as participants, including
Lummi and Quinault tribes, the bill provided
that the United States government and the Indian governments would
negotiate demonstration
agreements.[37] Without fanfare or public notice,
other than the three paragraphs in the Appropriation Bill, the United
States government
had reopened government-to-government relations with
Indian nations through exactly the same device it had used to close them.
During the eighteen months after passage of the Appropriation Act,[38] all ten
Indian nations involved in the project entered into
a period of intensive
research and planning to assess their political and economic interests
while building a framework for formal
government-to-government relations
with the United States. Some of the
participants did not complete the project. For example,
the Mescalero Apache Indian nation[39] decided
not to continue to participate in the process, and the Red Lake Chippewa[40]
chose
to quickly negotiate agreements with the Bureau of Indian Affairs in
order to rearrange administration in their territory. Only the
Jamestown
S'Klallam, Hoopa, Lummi and Quinault nations continued with the project,
emphasizing the formulation of government-to-government
relations and
standards for negotiating agreements between themselves and the United
States government. In June 1990, each
of the
four tribes undertook bilateral negotiations with the United States
and concluded a Compact of Self-Governance. The central purpose
of each Compact was stated in this way:
This Compact is to carry out . . . Self-Governance Demonstration Project . .
. intended as an experiment in the areas of planning,
funding and program
operations within the government-to-government relationship between Indian
tribes and the United States. The
Demonstration Project encourages experimentation in order to determine how
to improve this government-to-government relationship
. . . .[41]
As they cautiously move toward greater internal self-government, these nations
are choosing to reassume most powers of internal self-government:
taxation,
control of natural resources, boundary regulation, trade, environmental
regulation, civil affairs, and criminal jurisdiction.
The parties to each Compact mutually recognize the
sovereignty of the other and pledge to conduct relations on a
government-to-government
basis.[42] The internal laws of each nation are
to be applied in the execution of the Compact and the decisions of the
nation's courts
are to be recognized and respected.[43] The balance of the
Compact describes procedures for funding transfers, records and property
management, retrocession, dispute resolution, ratification, and a
statement of obligations for each of the parties. Treaty relations
between
each of the nations and the United States began again and clear steps
toward self-government were taken.[44]
2.2.3 U.S. Response to the Demand for Self-Government
The United States government has made its policy on Indian self-determination
abundantly clear with the election of each new president
since Lyndon
Johnson offered self-determination as the basis of his policy in 1968.[45]
Succeeding administrations affirmed the recognition
of the sovereignty of
tribal governments. Beyond the Executive
Branch's frequent affirmation of Indian Self-Determination in policy,
the
Congress of the United States has placed itself on the public record
repeatedly endorsing the principle of self-determination
since it enacted
the Indian Self-Determination and Education Assistance Act of 1975.[46]
The United States and Indian nations have entered into no fewer than 400 international
treaties concerning their direct relations.
Only a few multi-lateral agreements have been concluded between
state governments directly relevant to U.S. and Indian nation
relations.[47]
Four international agreements relevant to Indian Affairs
were ratified by the United States between 1944 and 1992.[48]
Representatives
of the U.S. government have also actively participated in
the formulation of the U.N. Declaration on the Rights of Indigenous
Peoples,
which directly bears on U.S. relations with Indian nations inside
a framework of internationally defined standards.
2.3 Obstacles to Self-Governance
Events involving indigenous peoples worldwide have increasingly drawn the United
States government into the intense international
debate about the standards
that ought to guide state governments in relations with non-self-governing
peoples. As the number of multi-state
agreements concerning human rights
in general grows, and, in particular, the number of agreements concerning
indigenous peoples grows,
questions about state government treatment of
indigenous peoples is on the rise.
2.3.1 Inside the U.S.
Despite this increased demand, the U.S. Department of State does not have special
capabilities or experience in matters concerning
indigenous peoples. On rare occasions the Department of State
will draw a connection between the international debate on evolving
standards concerning indigenous peoples and Indian nations inside U.S.
boundaries. On those occasions,
Department of State officials
have requested assistance from the
Department of the Interior, or have asked leading Indian officials to sit
on a U.S. delegation
in order to demonstrate the government's commitment
to the interests of Indian people.
2.3.2 The International Realm
The United States government's treatment of Indian nations has regularly come
under scrutiny by international agencies since 1970.[49]
The result has
been increased U.S. participation in international forums where indigenous
peoples' issues are discussed.[50] Strong
demands for new international
policy in the highly specialized area concerning indigenous peoples are
being made by non-governmental
organizations and indigenous peoples, as
well as by state governments.[51]
In 1957, the International Labor Organization (ILO) Convention 107, the Convention
Concerning Tribal and Semi-Tribal Populations
in Independent States came
into force. In addition to the 1944
Inter-American Treaty on Indian Life between the United States and
seventeen South and Central American States, the ILO Tribal Convention
was, until the Helsinki Act of 1975, the only other major
international
instrument concerned with state government treatment of indigenous
peoples. Twenty-five state governments, including
the United States,
ratified Convention 107.
The International Labor Organization is a tripartite organization controlled
by state governments, but involving delegate participation
of labor unions
and businesses. Its Secretariat decided
that Convention 107 should be changed to correspond with the new
international
standards of the United Nations. The central issue motivating the Secretariat to push for
revisions in Convention 107 was the belief
that the language advocating
assimilation of indigenous peoples into state societies was antiquated and
should be changed to reflect
modern political realities. The land rights
provisions of the 1957 Convention were also considered badly formulated
and, thus, required
updating. The
growing visibility of indigenous peoples' concerns on the international
plane and the greater visibility and importance
of the United Nations
efforts that began in 1982 by seeking to develop the Declaration on the
Rights of Indigenous Peoples.
2.4 The Convention Concerning Indigenous and Tribal Peoples in Independent Countries
After two years of preparations, a draft for a new Convention Concerning Indigenous
and Tribal Peoples in Independent Countries ILO
Convention 169 was tabled
for final consideration in 1989. The
three active groups permitted to engage in debate to determine the
final
language were representatives of Labor Unions, Businesses and State
governments. Only the state
governments had the power
of decision to accept or not accept the proposed
terms of reference. Representatives of indigenous nations and indigenous
peoples'
organizations participated as observers, with the right to lobby
official delegates during the negotiations.[52] The views of indigenous
peoples were represented at the table by Labor Union representatives and
by Portugal, Colombia and Ecuador. The
Business group representatives
resisted all proposals for changes in the
original Convention language.
Other participating state, including Peru, Argentina, Brazil,
Venezuela, India, Japan, Canada and the United States, formed into three
mutually supportive blocs. The South
American, Asian and
North American blocs were formed with the intent to
ensure that international standards remained well below the standards
already
set in the laws of each state.[53]
2.4.1 Issues for Consideration in the Draft
Among the leading issues concerning delegates were:
i. Whether the Revised Convention
should use the term
"peoples"or the term "populations" to describe
the subject text;
ii. Whether the Revised Convention
should use the term
"self-determination" explicitly in the text;
iii. Whether the Revised Convention
should use the term "land" or the term "territory" in the text;
and
iv. Whether the Revised Convention
should use the term
"consent" or the term "consultation" in the
text.[54]
The choice of these particular terms would make the difference between an international
convention that enhanced the rights of indigenous
peoples or a convention
that had little political meaning, except as a cover for continued state
exploitation of indigenous peoples.
The
representatives of Canada and the United States led diplomatic efforts to
limit and narrow the terms of reference in the Convention's
proposed
text.[55] These representatives worked to defeat the use of
"peoples" as a term of reference, advocating the word
"populations" instead.[56] They argued, along with delegates
from India and Venezuela that the word "peoples"
implied the
right of secession from the state, but the term "populations" implied
units of metropolitan state citizens.
Further, they asserted that the right of self-determination granted
to "peoples" would pose an unacceptable threat to the
territorial integrity of the state, and, therefore, use of the term
without qualifiers would be unacceptable.[57]
The term "peoples" constitutes a wider concept, presumably not self-governing,
and each "people" is presumably
distinguishable from other "peoples"
by virtue of language, culture, common history or common heritage. Identification
as a "people" is a
requisite qualification for a nation to secure international guarantees of
fair treatment in relations
with state governments.[58] Use of the term
"people" as language to identify the subject of the 1989
International Labor
Organization (ILO) Convention No. 169[59] was
deliberately narrowed by state governments to limit the number of nations
entitled
to exercise a claim to self-determination. In the attempt to create a new meaning for
"peoples" in international law,
state governments included a
disclaimer in the final text of the new Convention: "The use of the
term 'peoples' in this Convention
shall not be construed as having any
implications as regards the rights which may attach to the term under
international law."[60]
The pattern of confusion and constant shifting of positions established by the
U.S. and Canadian representatives during the debate
on the term "peoples"
continued during the debates over the reference terms land and territory,
self-determination, and
consent and consultation.[61] Representatives of
indigenous peoples lobbied for use of the term "territories" to
cover
all lands and resources belonging to the particular people,[62]
while Canada and U.S. representatives, along with other resistant
states
viewed the use of "territories" as a threat to a state's integrity.[63]
After two days of debate and negotiations,
Article 13 of the revised text
read :
"In applying the provisions of this Part of the Convention governments shall
respect the special importance for the cultures
and spiritual values of
the peoples concerned of the relationship with the lands or territories,
or both as applicable, which they
occupy or otherwise use, and in
particular the collective aspects of this relationship."[64]
The paragraph was immediately followed by a second paragraph:
"The use of the term lands in Article 15 and 16 shall include the concept of
territories, which covers the total environment
of the areas which the peoples
concerned occupy or otherwise use."[65]
By inserting the term "territories," the Article avoided inserting
the term in Article 14, which dealt with the rights
of ownership and possession
of land for people who traditionally occupied it.[66] Similar efforts were
made to emphasize the difference
between "consult" and its more
active counterpart, "consent," and the term
"self-determination" was
completely left out of the text in favor
of indirect references.
The effect of the work of the delegations from the United States and other states
was to prevent an advance in the development of
international law protecting
the rights of indigenous peoples. After
the revision process was completed and the Convention was opened
for
ratification by ILO member states, Mr. Lee Swepston of the Secretariat
addressed the United Nations Working Group on Indigenous
Populations:[67]
"An effort was made at every stage to ensure that there would be no conflict
between either the procedures or the substance
of the ILO Convention and
the standards which the UN intends to adopt.
Thus, the ILO standards are designed to be minimum standards,
in
the sense that they are intended to establish a floor under the rights of
indigenous and tribal peoples and, in particular, to
establish a basis for
government conduct in relation to them."[68]
2.4.2 The Declaration
In 1986, the United Nations Working Group on Indigenous Populations officially
became responsible for drafting and putting before
the General Assembly a
Declaration on the Rights of Indigenous Peoples. As work continues on the development of this document of
international consensus concerning accepted standards for the rights of indigenous
peoples, key terms of reference in its text have
become central to the
growing debate. As of July 1993, five of the 144 member ILO states had
ratified the new convention.
Convention
No. 169 is nevertheless being used as authoritative
evidence that narrow interpretations of "peoples," "territories,"
"self-determination," and "self-government" should be included
in the United Nations-sponsored Declaration.[69]
While many state governments
have participated in the formulation of the Declaration, along with
hundreds of representatives of indigenous
nations, the work of the representatives
of the United States, Sweden, Canada, Australia, New Zealand, Japan and
the Peoples Republic
of China should be noted.
Since 1986, these representatives have been working to prevent the
new Declaration from including key
terms of reference such as
"peoples" and "self-determination" in ways that are
consistent with customary international
law.
In an effort to narrow the meaning of terms like "self-determination,"
the U.S. government's representative before the
United Nations Working
Group on Indigenous Populations urged Working Group members to
characterize "the concepts of 'self-determination,'
'peoples,' and
'land rights,'" as "desired objectives rather than rights"
in August 1992.[70] Kathryn Skipper, a member
of the U.S. delegation,
expressed serious questions about the definition of "indigenous
peoples" as a term of reference
in July of 1993.[71] Discussing
provisions of the draft Declaration on the Rights of Indigenous Peoples,
she said: The draft declaration
does not define 'indigenous peoples.'
Hence, there are no criteria for determining what groups of persons can
assert the proposed
new collective rights. . . we are concerned that in
some circumstances, the articulation of group rights can lead to the
submergence
of the rights of individuals.[72]
The U.S. government's position set the tone of state delegation interventions
with the intent of narrowing and limiting the meaning
of terms of
reference in the same way as the ILO Convention.[73]
Dr. Rolf H. Lindholm, on behalf of the Swedish government, amplified the U.S.
government's serious questions by specifically urging
the narrow application
of the term "peoples."[74] Stating that the Swedish government "favors
a constructive dialogue
between governments and indigenous people,"
Lindholm nevertheless called for "consensus language" that would make
the Declaration acceptable to various bodies within the UN system, including
the General Assembly.[75] Indicating that a consensus
should be achieved
as to the reference term "self-determination," Lindholm averred: It
is important that we recognize in
this context, as we have in others, that
the concept, as used in international law, must not be blurred. It is therefore necessary
to find
another term in the declaration, or to introduce an explanatory definition
such as that included in ILO Convention No. 169,
which provides that
"The use of the term 'peoples' in this Convention shall not be
construed as having any implications as regards
the rights which may
attach to the term under international law."[76]
Delegations of indigenous peoples participating in the proceedings argued that
it was necessary to maintain the term "peoples"
in order to remain consistent
with existing international laws. In
particular, the language originally proposed in 1987 was stressed,
"Indigenous nations and peoples have, in common with all humanity,
the right to life, and to freedom from oppression, discrimination,
and
aggression."[77]
As to the state governments' efforts aimed at narrowing the meaning of the word
"peoples," the United Nations Working Group
on Indigenous Populations Chairman
Erica-Irene Daes responded:
"Indigenous groups are unquestionably "peoples" in every
political, social, cultural and ethnological meaning of this
term. . . . . It is neither logical nor
scientific to treat them as the same "peoples" as their
neighbors, who obviously
have different languages, histories and cultures. The United Nations should not pretend, for
the sake of a convenient legal fiction,
that those differences do not
exist."[78]
She offered, ". . . the right of
indigenous peoples to self-determination. . . should comprise a new
contemporary category
of the right to self-determination."[79]
Delegations of indigenous peoples argued the need to introduce their own paragraph
on self-determination: All indigenous nations
and peoples have the right
to self-determination, by virtue of which they have the right to whatever
degree of autonomy or self-government
they choose. This includes the right to freely determine their political
status, freely pursue their own economic, social, religious
and cultural
development, and determine their own membership and/or citizenship,
without external interference.[80]
The U.S., Canadian, Japanese and Brazilian objections to the use of "self-determination"
as a term of reference in the
Declaration flew in the face of eighty years
of expanding use in the international arena. In the case of the United
States, objections
to the term contradicted the long-standing Indian
Affairs policy that affirmed the sovereignty of Indian nations as well as
their
right to self-determination. 3. Analysis
The principle of self-determination is deeply rooted in the customary and formal
rules of conduct between nations and between states.
The broad outline of the concept of self-determination was
first delivered into international discourse by United States President
Woodrow Wilson as the fifth point in his Fourteen Points Speech: ". .
. free, open-minded, and absolutely
impartial adjustment
of all colonial claims, based upon a strict
observance of the principle that in determining all such questions of
sovereignty the
interests of the population concerned must have equal weight
with the equitable claims of the Government whose title is to be determined."[81]
It is not merely coincidental that the subject of self-determination looms large
in the developing domestic and international debate
over self-determination
of nations in their relation to states.
Wilson's concern was the establishment of a process for
non-self-governing
peoples inside existing states. He sought to establish
a peaceful manner in which to rearrange the political landscape without
war;
a way in which to encourage negotiations between state governments
and nations. He felt that a nation
or part of a nation inside
or under the control of an existing state
needed recognition in order to determine its political future without
prejudice. The method
for ensuring
equal weight being given to such nations became identified as
self-determination.
3.1 Right of Self-Determination in the United States
Though most of the 44 million refugees in the world are people from indigenous
nations,[82] and though indigenous peoples' concerns
are at the heart of
regional instabilities in Africa, especially Nigeria, Somalia, Sudan,
Kenya and South Africa in particular, in
the former Yugoslavia, Spain,
Georgia and Italy in Europe, and in Eurasia generally, and instabilities
in the Middle East, Central
Asia, South Africa and Melanesia, the United
States foreign policy establishment remains oblivious. This weaknesses in U.S. foreign
policy
accounts for the inconsistent and often incoherent U.S. positions on
indigenous peoples' issues, and on Indian Affairs in
particular. The United States government policy
initiatives in connection with the International Labor Organization's
revision of
its Convention 107, the Helsinki Final Act and the Declaration
on the Rights of Indigenous Peoples illustrate the difficulty of
maintaining
consistency between internal Indian Affairs policy and
external indigenous peoples policies.
The gap between internal and external
self-determination
discussions is rapidly disappearing.
This is due to the greater convergence between Indian Affairs, self-determination
and self-government policies in U.S. domestic policy and the activities of
the UN and other international organizations to undertake
standard-setting
activities concerning indigenous peoples at the international level. The Department of State regards Indian
Affairs
and concerns about indigenous peoples a very low priority: a matter of little strategic or
diplomatic importance.
3.2 International Right to Self-Determination
Framers of the United Nations Charter attached paramount importance to the principle
of self-determination, as illustrated in Article
I of the Charter. There, member states affirm the purpose of
the organization to be, "...to develop friendly relations among
nations based on respect for the principle of equal rights and
self-determination of peoples."[83] In its broadest formulation,
the
principle of self-determination encompasses the political, legal,
economic, social and cultural subjects of the life of peoples.
In international law, the principle of
self-determination is unique in that it is a recognized collective right
which may be exercised
by peoples. "The right to self-determination
is a collective right, a fundamental human right forming part of the legal
system
established by the Charter of the United Nations, the beneficiaries
of which are peoples-whether or not constituted as independent
States-nations and states."[84]
While relatively amiable dialogue characterizes the continuing evolution of
the social, economic and cultural aspects of self-determination,
discussions
concerning the full development of the right of political self-determination
has become increasingly contentious.
The
original, Wilsonian conception of self-determination was
political. State governments have
historically wanted to emphasize the
less controversial subjects of
economic, social and cultural self-determination. Political self-determination is regarded as a direct
threat
to the stability or permanence of many states where the claimed internal
population includes many distinct peoples. Article
76 is the only
provision of the United Nations Charter which addresses the right of
peoples to political self-determination: "...to
promote the
political, economic, social, and educational advancement of the
inhabitants of the trust territories, and their progressive
development
towards self-government or independence as may be appropriate to the
particular circumstances of each territory and its
peoples and the freely
expressed wishes of the peoples concerned...."[85]
The Declaration on the Granting of Independence to Colonial Countries and Peoples[86]
elaborated on Article 76 with the affirmation
that peoples "freely
determine their political status:" The "political status" which each
people has the right
freely to determine by virtue of the equal rights and
self-determination of peoples comprises both international status and
domestic
political status. Consequently
the application of the principle of equal rights and self-determination of
peoples in the political
field has two aspects, which are of equal
importance.[87]
The United Nations Declaration on Principles of International Law Concerning
Friendly Relations and Co-operation Among States in
Accordance with the
Charter of the United Nations[88] specifically defines various modes by
which peoples may determine their international
political status: The
establishment of a sovereign and independent State, the free association
or integration with an independent
State or the emergence into any other
political status freely determined by a people constitute modes of implementing
the right of
self-determination by that people.[89]
Where state governments have assumed responsibilities for administering territories
whose peoples do not exercise the full measure
of self-government, they
automatically acquire an obligation to advance the social, economic and
political well-being of the inhabitants
of those territories. Chapter XI, Article 73 of the UN Charter
affirms that member states accept "as a sacred trust" the
obligation to, among other things:
"...develop self-government, to take due account of the political aspirations
of the peoples, and to assist them in the progressive
development of their
free political institutions, according to the particular circumstances of
each territory and its peoples and
their varying stages of
advancement."[90]
It is by virtue of this provision that non-self-governing peoples obtain an
internal political status of their own choosing. If
non-self-governing peoples are administered under the
international trusteeship system, the process similar to Article 73
defined
in the Declaration on the Granting of Independence to Colonial
Countries and Peoples[91] applies.
The International Covenant on Civil and Political Rights contains the strongest
and most succinct statement of the principle of self-determination:
"All peoples have the right of
self-determination. By virtue of the right they freely determine their
political status and
freely pursue their economic, social and cultural
development."[92] This statement is repeated in the International
Covenant
on Economic, Social and Cultural Rights[93] and the Helsinki
Accords.[94]
Even if the U.S. government's position in the United Nations Working Group on
Indigenous Populations accurately reflects one policy
on "sovereignty," "self-determination,"
and "self-government," there is no ambiguity in the U.S.
government's
affirmation of Indian self-determination within the framework
of the Helsinki Final Act. The United
States government negotiated
the Helsinki Accords with thirty-seven
European states, including the USSR and Canada, and in 1979 issued a
National Security Council
approved progress report on US government Final
Act compliance concerning American Indians. The report emphatically affirms, ".
. . Indian rights
issues fall under both Principle VII of the Helsinki Final Act, where the
rights of national minorities are addressed,
and under Principle VIII,
which addresses equal rights and the self-determination of peoples."[95]
The National Congress of American Indians, in its statement at the 1983 session
of the United Nations Working Group on Indigenous
Peoples in Geneva,
Switzerland,[96] expressed its confidence that the: United States of
America took a revolutionary step toward
clarification of international standards
concerning Principle VII and Principle VIII in relation to Indian Nations,
the United States
has committed itself to conduct its relations in accord
with the law of nations and new international law evolved since the
founding
of the League of Nations.[97]
The National Congress of American Indians statement went even further to say:
"The recognition of Indian nations as 'peoples'and the commitment to promote
effective exercise of equal rights and self-determination
of peoples for
the development of friendly relations among all states [Helsinki Final
Act; Principle VIII] by the United States creates
a commitment to apply
provisions of . . . international agreements to Indian/U.S.
relations."[98]
The report asserts that the U.S. Government's policy of Indian self-determination
"is designed to put Indians, in the exercise
of self-government, into
a decision-making position with respect to their own lives."[99] The
U.S. government report further
clarified the state's relationship to
Indian nations by saying: ". . . the U.S. Government entered into a
trust relationship
with the separate tribes in acknowledgment, not of
their racial distinctness, but of their political status as sovereign
nations."[100]
Principle VIII of the Helsinki Final Act affirms the "right of a people to freely
choose their political, economic, and social
future without external
interference," virtually the same language as is contained in the U.N.
Charter and Article 1 of the
International Covenant on Economic, Social
and Cultural Rights and the International Covenant on Civil and Political
Rights. Despite
recent U.S. government requests for the International
Labor Organization and the United Nations to specifically narrow definitions
for self-determination in connection with indigenous peoples, there is no
ambiguity about U.S. commitments under international agreements
to apply
the full, normative meaning of these terms to its relations with Indian
nations.
While it is
perfectly within the right of any government to change its policy, the
U.S. government's failure to advise Indian nations
entering into
good-faith negotiation of Self-Governance Compacts that it no longer maintains
a commitment to self-government or the
principle of self-determination
seems a gross deception. Just as
negotiations over the final text of the ILO Convention 169 were
being
debated to narrow the meaning of critical terms of reference, the U.S.
government representative negotiated Compacts to affirm
the political
sovereignty and self-determination of Indian nations. By blocking international recognition
of nations' rights to
self-government and therefore certain international
guarantees under existing international laws, U.S. actions in the United
Nations
and elsewhere threaten to exacerbate growing tensions between
nations, and between nations and states.
The policy gap on Indian
self-determination from inside to outside
threatens to expose the United States to international criticism and risks
the stability
of relations with Indian nations. The inconsistency of policy also threatens to undermine
United States government's ability to
formulate a new, coherent and
effective post-Cold War foreign policy.
4. Conclusion
The negotiation of Self-Governance Compacts has, for all practical purposes,
reopened treaty-making between Indian nations and the
United States of
America. Whether both parties to Self-Governance Compacts fully comprehend
the significance of this process is still
open to question. It is clear, however, that Indian
nations are seeking a new political level of development, and they seem
intent
on achieving this new level with at least the appearance of U.S.
government participation and support. It is also clear that the
United
States government is eager to have the appearance of a tolerant and
benevolent political power, but policymakers are equally
eager to put the
"genie" of self-determination back into its bottle by seeking
back-door measures to prevent international
recognition of Indian rights
to self-government.
NOTES:
[1] The Quinault Indian Nation, Lummi Indian Nation, Jamestown S'Klallam Tribe
in the northwestern part of the state of Washington
and the Hoopa Nation
on the west coast of Northern California. Their decision to undertake
negotiation of bilateral compacts of self-governance
is a striking
departure from conventional conduct of Indian Affairs which has been long
characterized by legal and administrative
tugs-of-war between Indian
governments and officials of the Bureau of Indian Affairs..
[2] The use of bi-lateral and multi-lateral compacts negotiated between Indian
nations and the United States government has increasingly
become the
standard for formalizing agreements to resolve disputes and particularly
to establish new jurisdictional arrangements
between Indian nations and
the United States government and its states, i.e., tribal/state compacts
on gambling.
[3] Where are these tribes located?
What is the population or other related demographics?
[4] Changing from political dependence to a position of recognized sovereignty
involves constructing a new framework for political
relations, and this
framework necessarily reduces the role of the Bureau of Indian Affairs as
a governing influence in the internal
affairs of an Indian nation. Self-government not only implies, but
requires that an Indian nation take responsibility for making
and
enforcing its decisions.
[5] Global uncertainties created by the collapse of the Union of Soviet Socialist
Republics, breakup of Yugoslavia and Czechoslovakia
and the new threats by
indigenous nations to the possible breakup of the Russian Federation shook
the normal self-confidence of U.S.
Department of State.
[6] The United Nations Commission on Human Rights authorized its Sub-commission
on Prevention of Discrimination and Protection of
Minorities to undertake
a Study of the Problem of Discrimination Against Indigenous Populations
beginning in 1973. See, "Study
of
the Problem of Discrimination Against Indigenous Populations,"
Special Rapporteur, Mr. Jose R. Martinez Cobo. Commission
on Human Rights,
Sub-Commission on Prevention of Discrimination and Protection of
Minorities, (E/CN.4/Sub.2/1983/21/Add.1-12). On
a parallel, but converging historical track indigenous
nations began organizing communications between themselves through new
international
organizations (i.e., International Indian Treaty Council,
World Council of Indigenous Peoples, Inuit Circumpolar Conference). International
activity concerning indigenous peoples
affairs increasingly involved non-governmental organizations like the
World Council of Churches,
International Commission of Jurists, and the
Anti-Slavery Society. All of these
trends contributed to an expanding dialogue concerned
with international
standards concerning the rights of indigenous peoples. See, the Human Rights Monitor published by
the International
Service for Human Rights in Geneva, Switzerland for commentaries
and reports describing the dialogue.
[7] Beginning in 1986 the United Nations Working Group on Indigenous Populations
took under consideration the formulation of a new
international
Declaration. It worked under the
direction of the UN Commission on Human Rights to draft a declaration
flowing from
its annual review of developments concerning the rights of
indigenous peoples and its responsibility to consider international
standards
for the application of international rules to the conduct of relations
between states and indigenous nations.
In 1993, the Working
Group on Indigenous Populations finished
drafting the instrument for the Declaration and sent it to the Sub-Commission
on Prevention
of Discrimination and Protection of Minorities. After a cursory review in 1994 the
Sub-Commission sent the Draft Declaration for
review by the Commission on
Human Rights. The final draft of
the new Declaration would be considered for ratification by the UN
General
Assembly in 1995 or 1996.
[8] See Milner Ball's discussion of this phenomenon in his Constitution, Court,
Indian Tribes, Research Journal: American Bar Foundation. Volume 1987,
Winter, Number 1 , p. 58 and p. 59 "Indian nations
have prevented recent
congressional deployment of plenary power against them. But the plenary power does not lie
idle. Like Ariel,
it reappears,
transported from Congress to the Supreme Court, where its lack of both
limits and legitimacy is matched by a lack of
appeal from its results.
[9] Ibid., p. 57
[10] The United States, it is argued by scholars, has a fiduciary duty to American
Indians (See Chambers, Judicial Enforcement of
the Federal Trust Responsibility
to Indians, 27 Stan. L. Rev.1213 (1975)), and President Richard M. Nixon
declared in his July 1970
statement (116 Cong. Rec. 23,131, 23,132) the
existence of a "special relationship between the Indian tribes and
the Federal
government. Nixon claimed
that the special relationship "continues to carry immense moral and
legal force:" obligating
the United States to protect Indian
interests. Milner Ball expressed
the view in his Constitution, Court, Indian Tribes (See footnote 8 above)
at p. 62: "Although the trust doctrine has undeniably served as a remedy
in certain
instances of federal mismanagement of tribal lands and money,
it appears in fact primarily to give moral color to depredation of
tribes."
[11] For most of the last century, the United States of America presented itself
as the paramount advocate of self-determination
for non-self-governing
peoples throughout the world. U.S.
government officials pushed France, Britain and Spain to free their
colonial
holdings. The Union of Soviet Socialist Republics was under
constant pressure to release its control over Lithuania, Estonia and
Latvia--characterized
as "captive nations." World
War II losses by Germany, Italy and Japan also included lost colonies
which were "liberated to determine their own political future."
Yet, little if anything was ever said about the extra-Constitutional
legislative dictatorship the U.S. government extended over the lives of
Indian peoples.
[12] At Article 1, Section 7 Paragraph 1 the United States Constitution provides
"All Bills for raising Revenue shall originate in the House of Representatives;
but the Senate may propose or concur
with Amendments as on other
Bills."
[13] Antoine v. Washington, [1975] USSC 26; 420 U.S. 194, 202 (1975).
[14] The costs associated with the Civil War were monumental and members of
the House of Representatives felt the burden of their
Constitutional responsibility
(Article 1, Section 7, Paragraph 1), and the Senate's Constitutional
authority to ratify treaties negotiated under the authority of the
President (Article
II, Section 2, Paragraph 2 "...shall have Power, by
and with the Advice and Consent of the Senate, to make Treaties") created
new financial
obligations--especially in connection with Indian/U.S. treaties.
These agreements usually involved commitments by the U.S.
government
to pay for land.
[15] Ch. 120 16 Stat. 544 at 566 (1871).
[16] Id., carried forward into 2079,
Rev. Stat. (1878), 18 Stat. 364; current version at 25 U.S.C. 71).
[17] [1884] USSC 215; 112 U.S. 94 (1884).
[18] Id. at 107.
[19] [1883] USSC 252; 109 U.S. 556 (1883).
[20] Id. at 568.
[21] 18 U.S.C. 1153 (1885).
[22] United States v. Kagama, [1886] USSC 194; 118 U.S. 375 (1886).
[23] Id., pp. 378-379, 382.
[24] Id.
[25] [1899] USSC 121; 174 U.S. 445 (1899).
[26] Id., p. 478.
[27] Cherokee Nation v. Hitchcock [1902] USSC 179; 187 U.S. 294 (1902).
[28] Some Tribal Councils began adopting resolutions intended to set aside some
tribal lands as wilderness zones (Yakima Nation),
to establish taxation on
business transactions (Quileute Indian Tribe), others imposed (without
Secretary of the Interior approval)restrictions
on waste disposal, and
still others began to draw up complete "law and order codes" and
other land use regulations (Quinault
Indian Nation, Red Lake Chippewa, Colville
Confederated Tribes).
[29] Though the "Great Society Programs" were not specifically
targeted to Indian reservations, they were open to "pockets
of
poverty," a category under which, alas, Indians could qualify. The "Indian Self-Determination Policy"
was so overshadowed
by the traumatic political events choking American
political leaders and the general public, little notice was given to this
policy
which had been the Administration's late response to the 1961
"Declaration of Indian Purpose" which grew out of an intertribal
conference
in Chicago.
[30] U.S. President Richard Nixon issued the "Indian Self-Determination Policy"
declaring that the earlier "termination
policy" was ended and replaced
by a policy to encourage Indian nations to decide their own future with
the support of the United
States government.
[31] U.S. President Ronald Reagan offered an Indian Policy that emphasized reservation
economic development and the conduct of relations
with each Indian
government on a "government-to-government" basis. This policy implied a partnership
between the U.S.
government and Indian governments within a mutually
defined framework that respected tribal sovereignty and U.S. sovereignty
-- in
other words, a treaty relationship.
[32] Indian nations' leaders organized a systematic strategy within the National
Congress of American Indians to carefully select
and advance only those
pieces of legislation (in the U.S. Congress) or litigation (in the Federal
Courts) that supported a return
of tribal governmental powers. In efforts
to deal with the Executive Branch of the Federal Government, Indian
leaders targeted their
efforts to reduce Bureau of Indian Affairs control
over Indian nations' internal affairs.
[33] More specifically, Congressman Sydney Yates (Dem. Illinois) was preparing
to convene hearings concerning allegations of B.I.A.
mismanagement of
tribal and individual trust funds, as well as probable illegal activities
associated with the management of oil,
coal and land leases appearing in
reports published by an Arizona newspaper.
He invited these tribal chairmen to give suggestions
as to what
might be done. Both tribal
chairmen recited extensive complaints about B.I.A. mismanagement of resources
and finances
in connection with their reservations. These exchanges naturally led to their consideration of
"taking back control" from
the B.I.A. Source: Interview with Quinault President Joe DeLaCruz.
[34] Quoted in Shaping Our Own Future, and Overview and Red Paper, a joint publication
of the Quinault, Jamestown S'Klallam and Lummi
Indian Nation. Published by
the Lummi Government. 1989. p.23.
[35] "Problems and Solutions in the Tribal-Federal Relationship," Testimony
of Larry G. Kinley, Lummi Indian Business Council,
Lummi Indian Nation,
House Appropriations Sub-Committee on the Interior and Related Agencies.
October 1987.
[36] Conference Report 100-498 accompanying H.J. Res. 395. 100th Congress, First
Session December 22, 1987.
[37] Id.
[38] The key language concerning the self-governance initiative is contained
in the 1988 Appropriation Act: $1 million is to be used
by the Bureau for
a tribal self-governance demonstration project. The project allowed up to ten tribal governments, named in
the
department's letter to the Appropriations Committee dated December 15,
1987, the opportunity to design their own budgets to address
tribally
determined priorities. The managers
were to direct the Bureau to analyze all budgets and functions at all
levels of the
Bureau, and to formulate a proposal for the equitable distribution
of resources and service responsibilities between these demonstration
tribal governments and the remaining tribal governments in multi-tribal
agency and area offices. The Bureau was to prepare proposals
for reduction
or transfer of personnel and consolidation of program functions to
accommodate the eventual transition...[T]he negotiated
agreements were to
include clear delineations of trust responsibility protections assumed by
the tribes and retained by the U.S.
government. To document tribal progress under self-governance, mutually
determined baseline measures were to be incorporated into
each
demonstration agreement between the federal government and the tribes.
[39] Mescalero Apache Chairman Wendel Chino sent a letter (shared with leaders
of other tribal leaders) to the Secretary of the Interior
advising the
U.S. government that the Mescalero Apache government would not further pursue
planning toward negotiation of a self-government
agreement (1988)
[40] Well before the self-government planning process began, Red Lake Chippewa
Chairman Roger Jourdain had begun negotiation of a
memorandum of understanding
with representatives of the Assistant Secretary for Indian Affairs in the
U.S. Department of the Interior.
This
agreement conveyed Bureau of Indian Affairs Agency Superintendent
administrative powers to the Chippewa Chairman, thus, making
the Red Lake
Chippewa Chairman effectively an employee of the U.S. government AND the
Chairman of the Red Lake Chippewa.
[41] Compact of Self-Governance between the Lummi Indian Nation and the United
States of America, in Article I, section 2, paragraph
(a), June 29, 1990. This language is duplicated in the
bi-lateral agreements of Quinault, Jamestown S'Klallam and Hoopa as well.
[42] Id., Article 1 , section 2, paragraph (c).
[43] Id., Article 1, section 3.
[44] Just as the United States and Indian nations were beginning to negotiate
Self-Governance Compacts in 1989 and 1990, the United
States government
was participating in meetings of the International Labor Organization and
the United Nations concerning new standards
for the rights of indigenous
peoples, including Indian nations.
Despite concluding several Self-Governance Compacts,
representatives
of the U.S. Government in Geneva, Switzerland delivered
statements opposing the raising of international standards that recognize
the right of Indian nations and other indigenous peoples to the exercise
of self-determination and self-government. On five key
international agreements concerning the rights
of indigenous peoples or U.S. obligations to advance the human rights of
Indian peoples,
the United States government delivered mixed messages
which often conflicted with internally proclaimed Indian Affairs policies
concerning
recognition of the sovereignty of Indian nations and their
right of self-determination.
[45] In the last months of the Lyndon Johnson Presidency, his administration
announced its fundamental rejection of the "tribal
termination policies"
of earlier administrations and urged that a new policy be adopted which
fosters self-determination. On
July 8,
1970, President Richard M. Nixon announced the first comprehensive
Executive branch policy on Indian Affairs: Rejecting tribal
dissolution
and termination of the trusteeship, and instead the "Indian
Self-Determination Policy."
(American Indian Policy,
White House, July 1970) The Congress enacted
the Indian Self-Determination and Education Assistance Act (Public 93-638,
1975) with
the expressed intent of increasing tribal self-government and a
systematic reduction in the staff and powers of the Bureau of Indian
Affairs. A joint Congressional
commission (the American Indian Policy Review Commission) reaffirmed the
Johnson, Nixon and Congressional
affirmations of the principle of
self-determination in its May 1977 final report to the Congress. While
neither the Gerald R. Ford
Presidency nor the James E. Carter Presidency
issued Indian Affairs policy statements, both continued the previous
administrations'
administrative policies.
On January 14, 1983 President Ronald Reagan issued his "Indian Policy
Statement" which affirmed
that "The Administration will deal with Indian
tribes on a government-to-government basis . . . . Excessive regulations
and
self-perpetuating bureaucracy have stifled Tribal decision-making,
thwarted Indian control of reservation resources, and promoted
dependency
rather than self-sufficiency . . . . This Administration will reverse this
trend by removing obstacles to self-government
and by creating a more
favorable environment for development of healthy reservation
economies." ("Indian Statement,"
White House, January 14,
1993) By associating itself with the "government-to-government
policy" the Reagan administration
substantially advanced the
political debate about tribal self-determination and moved the dialogue
one step closer to defining a
new political framework for relations
between Indian nations and the United States.
[46] Public Law 93-638.
[47] Since the end of World War I and the Treaty of Paris in 1918, states' governments
have repeatedly affirmed and reaffirmed the
principle of "non-intervention"
in the internal affairs of states. Indeed, this principle is deeply rooted
in European
international relations.
The Peace of Westphalia in 1648 ended the Thirty Years' War and
defined the basic rules of relations between
states. Chief among these rules were: Affirmation
of states' territorial boundaries, proclaiming state sovereignty and a
recognized
policy of non-interference in the domestic affairs of other
states. Contemporary restatements of these principles effectively
eliminated
any perceived need for multi-lateral treaties concerning
indigenous nations. This was particularly
true of the United States of
America because of its youthfulness as a
state. Only after World War I did
other states governments regard the United States of
America as a
significant player in international affairs. This new role as a player on
the international stage gave rise to the United
States government needing
to affirm its basic identity as a state.
Indian Affairs was considered an "internal matter."
This
view remained unexamined until Bureau of Indian Affairs Commissioner John
Collier began to work toward extending President Franklin
Roosevelt's
"New Deal" to Indian Affairs in the late 1930s and early
1940s. It was in these years that the international
dimension was added to Indian Affairs.
See, Footnote 43.
[48] The four international agreements are: 1. The Inter-American Treaty on
Indian Life, ratified in 1944 by the Organization of
American States (OAS); 2. The Convention Concerning Tribal and
Semi-Tribal Populations in Independent States, ratified in 1957 by
the
International Labor Organization (ILO); 3. The Helsinki Final Act,
ratified in 1975 and forming the Commission on Security and
Cooperation in
Europe (CSCE) [The organization was renamed in 1995 the Organization on
Security and Cooperation in Europe (OSCE)];
and 4. The International
Covenant on Civil and Political Rights, ratified in 1992 by the United
Nations (UN) 1966. 5. The Declaration
on the Rights of Indigenous Peoples
is currently being considered within the United Nations Organization
(UN). See supra notes ..........
[49] Charges of U.S. mistreatment of Indian people by the Indian Health Service
(sterilization of Indian women), and the Bureau of
Indian Affairs created
demand for information and clarifications by the Commission on Security
and Cooperation in Europe and resulted
in "American Indians" becoming
a chapter in the 1977 report of the U.S. Commission on Security and
Cooperation in Europe
discussing U.S. compliance with the Helsinki Accords.
The United States government has also been asked to respond to queries
from
United Nations Special Rapporteur Jose R. Martinez Cobo who conducted
the 1983 Commission on Human Rights "Study of the Problem
of Discrimination
Against Indigenous Populations." See, United Nations Economic and Social
Council Document E/CW.4/Sub.2/1983/21/Add
1-12. The United States
government has also been asked to respond to queries from the
International Labor Organization on its treatment
of Indian peoples, and
by the United Nations Special Rapporteur Miguel Alfonso Martinez on Treaties,
Agreements and Other Constructive
Arrangements Between States and
Indigenous Peoples. The United States and other states governments was a
recipient of a special questionnaire
sent by the Special Rapporteur in 1992.
See, UN Economic and Social Council Document E/CN.4/Sub.2/1992/33.
[50] The United States government hosted the 9th Inter-American Congress on
Indian Life in Sante Fe, New Mexico in 1989 and participated
in this quadrennial
Congress since 1944; has participated in virtually all annual sessions of
the United Nations Working Group on
Indigenous Populations since 1982;
convened annual sessions of meetings between government officials
responsible for "indigenous
peoples" involving the United States,
Australia, New Zealand and the Hawaiian State Office of Hawaiian Affairs,
and participated
actively in three years of meetings designed to revise
ILO Convention 107 and produce Convention 169.
[51] The World Council of Churches (Geneva), the Anti-Slavery Society (London),
International Working Group on Indigenous Affairs
(Denmark) and Amnesty
International (London) are among the non-governmental organizations
pressing for new standards for the protection
of indigenous peoples
rights. The Haudenosaunee (Six Nations Iroquois Confederacy), West Papuans,
Yanonomi, Cree, Quechua, Mapuche,
Maori, and Chakma are among the indigenous
nations playing an active role. Norway
has been the most active state pressing for the
formulation of an
international declaration on indigenous peoples' rights, but Holland is
perhaps the only state that is actively
developing a new foreign policy
based on evolving standards concerned with indigenous peoples' rights.
[52] Gray, Andrew. "The ILO Meeting at the UN, Geneva, June 1989. Report on
International Labor Organization Revision of Convention
107," in International
Work Group for Indigenous Affairs (IWGIA) Yearbook 1989, p.174 1990. Gray
reports that the representatives
of Four Nations, Treaty Six Chiefs, the
Federation of Saskatchewan Indians and the Four Directions Council of
Canada, the Ainu of
Japan and the National Coalition of Aboriginal
Organizations of Australia were joined by representatives of the World
Council of
Indigenous Peoples (WCIP), Nordic Sami Council, the Pacific
Council of Indigenous Peoples (PACIP), and the Indian Council of South
America (CISA). In addition, the
Coordinadora of the Amazon Basin, indigenous peoples of Brazil, Inuit
Circumpolar Conference and
delegates of the Mohawk nation participated in
what became known as the "Indigenous Peoples' Caucus."
[53] Id. at p. 178-79.
[54] Id., pp. 180-186.
[55] Id.
[56] Id., p. 178.
[57] Id.
[58] See: "The Historical and Current Development of the Right to Self-Determination
on the basis of the Charter of the United
Nations and other instruments
adopted by United Nations Organs, with particular reference to the
promotion and protection of Human
Rights and Fundamental Freedoms."
Special Rapporteur Mr. Areliu Cristescu, UN Commission on Human Rights
(E/CN.r/Sub.2/404 Vol.
II). Mr.
Cristescu gives a clear and incisive history of the term's usage in the UN
system.
[59] Convention concerning Indigenous and Tribal Peoples in Independent Countries,
International Labor Organization, Geneva, Switzerland.
Convention 169.
1989.
[60] Id., Article 1, paragraph 3.
[61] Gray, Andrew. "The ILO Meeting at the UN, Geneva, June 1989. Report on
International Labor Organization Revision of Convention
107," in International
Work Group for Indigenous Affairs (IWGIA) Yearbook 1989, pp.18 0-186,
1990.
[62] They noted that the strongest part of the 1957 Convention was Article II:
The right of ownership, collective or individual,
of the members of the
population concerned over the lands which these populations traditionally
occupy shall be recognized. Gray,
Andrew. "The ILO Meeting at the UN,
Geneva, June 1989. Report on International Labor Organization Revision of
Convention 107,"
in International Work Group for Indigenous Affairs
(IWGIA) Yearbook 1989, p. 185. 1990.
[63] Gray, Andrew. "The ILO
Meeting at the UN, Geneva, June 1989. Report on International Labor
Organization Revision of Convention
107," in International Work Group
for Indigenous Affairs (IWGIA) Yearbook, 19891, p. 185. 1990.
[64] ILO Convention 169. Article 13,1.
[65] Id., Article 13, 2 (emphasis added).
[66] Id., Article 14,1.
[67] The United Nations Working Group on Indigenous Populations was established
in 1982 after non-governmental organizations and
indigenous peoples'
representatives urged the establishment of a United Nations mechanism to
examine the situation of indigenous
peoples.
The Sub-Commission on Prevention of Discrimination and Protection
of Minorities proposed in its resolution 2 (XXXIV) of
8 September 1981 establishment
of the working group. The Commission on
Human Rights endorsed the Sub-Commission's proposal in its
resolution
1982/19 of 10 March 1982. The
United Nations Economic and Social Council formally authorized in its
resolution 1982/34
of 7 May 1982 the Sub-Commission to establish annually
a working group to meet for the purposes of: Reviewing developments
pertaining
to the promotion and protection of human rights and fundamental
freedoms of indigenous peoples, and examining the evolution of standards
concerning the rights of indigenous peoples.
[68] Swepston, Lee., "Paper presented to the Working Group on Indigenous Peoples,
United Nations Sub-Commission on the Prevention
of Discrimination and
Protection of Minorities," Geneva, Switzerland, July 31, 1989 (emphasis
added).
[69] As of this writing, the U.N. Declaration on the Rights of Indigenous Peoples
is moving to a probable 1995 vote in the U.N. General
Assembly.
[70] United Nations, 1992:14 para. 52 (E/CN.4/Sub.2/1992/33).
[71] The Government of the United States of America, Statement of Kathryn Skipper,
Observer Delegation of the United States of America,
before the United
Nations Working Group on Indigenous Populations, Geneva, Switzerland, July
21, 1993.
[72] Id. at p.4.
[73] Ryser, Rudolph C. "Indian Nations & United States Debate Self-Determination
and Self-Government at the United Nations,
GenHve, July 18-31, 1993,"
Center for World Indigenous Studies, Olympia, Washington, U.S.A.
[74] The Government of Sweden, Statement of Dr. Rolf H. Lindholm, before the
United Nations Working Group on Indigenous Populations,
Geneva, Switzerland,
July 1993.
[75] Id.
[76] Id., p.3.
[77] United Nations, 1987: para. 1.
[78] United Nations, 1993:2.
[79] United Nations, 1993.
[80] United Nations, 1989-a:para 2.
[81] Walter Laqueur and Barry Rubin, The Human Rights Reader 151 (1979).
[82] Lewis, Paul. "Stoked by Ethnic Conflicts, Refugee Problem Consumes Resources,"
New York Times, Nov 9, 1993.
[83] Charter of the United Nations, Article 1, Para. 2.
[84] United Nations, 1978-b:91.
[85] United Nations Charter, Article 76.
[86] United Nations General Assembly Resolution 1514 [XV] 1960.
[87] United Nations, 1978-a:2.
[88] United Nations, 1970 General Assembly Resolution 2625 (XXV).
[89] Id.
[90] Charter of the United Nations, Chapter XI, Article 73.
[91] United Nations, 1960.
[92] United Nations, 19666: Article 1 paragraph 1.
[93] Article 1 paragraph 1.
[94] Principle VIII contains the complete language on the right of a people
to self-determination.
[95] United States, 1979:149.
[96] National Congress of American Indians, "On the Evolution of Standards Concerning
the Rights of Indigenous Populations"
United Nations Working Group on
Indigenous Populations; 10 August, 1983, Palais de Nacions, Geneva,
Switzerland
[97] Id., p. 3.
[98] Id., p.4.
[99] United States, 1979:149.
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