Someone commented to me recently that she thought the U.N. Declaration on the Rights of Indigenous Peoples was fundamentally a document that allowed “nation-states” to identify and control indigenous peoples.
Here’s how I responded:
You are referring to the very process of human thought and categorization. “Nation-states” is a political category of the Western European mind and political tradition. Since Christian Europeans invaded Turtle Island (North America) with their language (their concepts and categories) they have been involved in the mental process of attempting to control our nations by categorizing (defining) us in terms that were familiar to them. They made certain their categories guaranteed their fabricated superiority. As Indian nations, our survival requires us to challenge this entire tradition of thought.
The ideas law professor Antony Anghie expresses in his 2005 book Imperialism, Sovereignty and the Making of International Law allow one to see that the Declaration is the latest manifestation of that long tradition of imperial/superior thought processes. “The State” is the category that automatically positions an invader society on an upper-level psychologically and politically, while positioning Indian nations on a lower-level cognitively and politically.
Although I share some concerns about the term peoples, the U.S. government rejects the application of that category to American Indian nations because, pursuant to the human rights covenants, the right of distinct “peoples” to political “self-determination” has always meant the option of full political liberty.
Peoples can be effective in the right context. When I was in Australia a year ago, I was listening to an astute aboriginal leader give an interview. At one point he said, “context is king.” Because I’m not into monarchy, I prefer to rephrase his comment to “context is key.” The context in which terms such as nations and peoples are being used is always critically important.
Here’s an example of how context works. One time I was in a conversation with a Kumeyaay man here in the San Diego area. He excused himself to accept a call on his cell phone. Not far into the conversation he asked the caller, “What’s the body look like?” There was no way for me to make sense of how the word body was being used without knowing the context. It could be a car body, a truck body, a dead body, the body of a woman’s hair, a body of literature. It is only when you know the context that you can grasp the meaning of the word (category).
Very few words in English accurately communicate Indian issues with the non-Indian world; nations and peoples are just two such words, which, in the right context can communicate a lot. We have the right, the responsibility and the power to control that context from our own indigenous standpoint.
The word nation, which is commonly demanded by indigenous rights activists, can be problematic, but there are not many other words in the realm of politics to choose from. And as Chief Justice John Marshall stated in Worcester v. Georgia (1832): “The words treaty and nation are words of our own language, selected in our diplomatic and legislative proceedings by ourselves, having each a definite and well-understood meaning. We have applied them to Indians as we have applied them to the other nations of the earth. They are applied to all in the same sense.”
There is also the issue of context to consider with regard to human rights in the Declaration. When it comes down to it, in a contest between Indian and non-Indian interests, the role of non-Indian judges and other U.S. government officials is to protect the “national interests” of the United States. To take our issues into their legal arena usually ends up allowing their non-Indian cultural and political context and norms to be the basis of the way our issues are decided.
This dimension of non-Indian law (which far too many Indian people wrongfully call “Indian law”) is a major reason why the non-Indian society and culture remains in a seemingly permanent position of dominance in relation to American Indian nations. The question remains, will the U.N. Declaration enable us to overcome or rectify the injustices of the non-Indian legal and political system relative to Indian nations?
The English language we now use has its own set of constraints that make our efforts all the more difficult. English is not our language. It is not a language designed to do what it is we are trying to do with it: construct a reality in which we are free and self-determining Indian nations.
When it comes to the U.N. Declaration and other issues we face, we need to recognize and work to overcome the colonization of our minds, we need to reaffirm traditional indigenous cultural and political models, while being critical of and challenging the foundational concepts of a federal Indian law system rooted in colonialism.
Steven Newcomb, Shawnee/Lenape, is the co-founder and co-director of the Indigenous Law Institute, author of Pagans in the Promised Land: Decoding the Doctrine of Christian Discovery, and a columnist for This Week From Indian Country Today.