Click here to read part 1 by Dina Gilio-Whitaker.
Baby Veronica’s adoption case reminds us that our fate as Indian people is still too often in the hands of colonizers and the systems they created—especially the legislative and the judicial branches of America’s government. History and the arrogance of the Europeans who came to these and other shores have woven a complicated philosophical web that has us psychologically and legally entrapped in processes not our own. Those processes and systems are based on worldviews that are to this day foreign to us.
We are, after all, still distinct peoples with languages, governing practices, lands and instructions on the right way to live on those lands, handed down to us by our Creator(s). Even those of us who are struggling to regain lost languages and traditions are rooted in fundamentally different experiences and ways of seeing the world which are etched into our collective souls, compared to non-indigenous Americans. Federally recognized or not, full-blood or not, we are of this land; we are nations more than we are tribes, and even Justice John Marshall affirmed that while he was inventing the legal myth of the domestic dependent nation.
In broad strokes, it is the conceptual trap of the doctrine of domestic dependent nationhood that makes it possible for Veronica to be ripped away from her father and her Cherokee culture. The trust doctrine, bolstered by the plenary power doctrine as they are currently interpreted in America’s law, reinforce the domestic dependent nationhood doctrine, resulting in the concept of limited tribal sovereignty. This is what renders the Cherokee Nation essentially powerless to prevent the forced removal of Veronica from her family.
This is precisely why Native nations never have relinquished their inherent, pre-constitutional autonomy (sovereignty), and continue to fight in the international arena to defend it.
In 1966 the United Nations General Assembly adopted the International Covenant on Civil and Political Rights (ICCPR), with the United States a signatory to the treaty. This makes the US legally obligated in international law to uphold the treaty’s principles to ensure against human rights violations. States are periodically reviewed by the UN Human Rights Committee (UNHRC) who oversees the treaty, and recommendations are made on how states can better fulfill their obligations under the Covenant.
The United States will be undergoing review in this session of the UNHRC from October 14 to November 1, 2013. Reports are submitted by states under review and other non-governmental entities to the UNHRC who then determine what the state will be evaluated for. In December, 2012 the International Indian Treaty Council together with other indigenous groups in the US, Hawaii and Puerto Rico submitted two proposals that focused on Article 1 of the treaty which addresses self-determination, and Articles 18 and 27 which pertain to language, culture, and freedom of religion for minorities. As a result of the submissions of IITC et al, the UNHRC has drafted questions related to Native peoples to which the US must respond:
27. Please provide information on measures taken to guarantee the protection of Indigenous Sacred Areas, as well as to ensure that indigenous peoples are consulted and that their free, prior and informed consent is obtained regarding matters that directly affect their interests. Please provide information on steps taken to implement Executive Order 13175 on Consultation and Coordination with Tribal Governments.
The reference to “free, prior and informed consent” is based on a principle enshrined in the UN Declaration of the Rights of Indigenous Peoples which was adopted in the years since the ICCPR. In addition to the reports already submitted, IITC is requesting input for alternative “shadow” reports related to the above questions and concerns of the UNHRC.
The Supreme Court and South Carolina court’s rejection of ICWA is a clear violation of the civil and human rights of Dusten and Veronica Brown, setting a dangerous precedent for future Indian child adoptions and the weakening of the ICWA. The disempowerment of the Cherokee Nation to determine the fate of Baby Veronica who is a citizen of the Cherokee Nation is a violation of the principle of free, prior and informed consent on a “matter that directly affects their interests,” as stated in the UNHRC’s draft questions.
Although the above questions of the UNHRC seems to relate specifically to the protection of sacred sites, this is an issue that should be taken up by the UN Human Rights Committee in its review of the US this fall. While the Cherokee Nation has filed a civil rights lawsuit on behalf of Veronica Brown we have to be vigilant to remember that civil rights law is designed to protect individuals, not communities and certainly not the rights of nations. The same can be said of international human rights law (and from an indigenous perspective that is its flaw), but as indigenous nations assert themselves as polities in the international arena one of their goals is paradigm shift where individual rights always trumps group rights.
The International Indian Treaty Council is still accepting submissions of text for inclusion in its shadow report. They can be reached at email@example.com.
Dina Gilio-Whitaker is a research associate at the Center for World Indigenous Studies.