Steven Newcomb

Unfortunate Confusion on the Right of Self-Determination

Sixteen months ago, the National Congress of American Indians (NCAI) issued a “Tribal Leaders’ White Paper.” Dated February 28, 2013, the paper was drafted in preparation for the March 1-2 2013 North American Indian Peoples Caucus gathering at the Sycuan Resort in the Kumeyaay Nation Territory, where the first day’s discussion was going to be dedicated to a United Nations High Level Plenary Meeting “to be known as the World Conference on Indigenous Peoples.” The UN High Level Meeting that was discussed back then will be taking place this September at the UN headquarters in New York.

The title of the NCAI’s 2013 White Paper is “The World Conference on Indigenous Peoples.” In the nuanced world of the United Nations, semantic subtleties are highly important. Yet the drafters of the NCAI White Paper did not seem at all concerned with the fact that the United Nations General Assembly never intended the UN High Level Plenary Meeting to actually be a world conference on Indigenous Peoples. The UN only wanted the event “to be known as” a world conference. This tells us something about the subtleties that the NCAI has failed to grasp regarding the strange world of the UN.

The UN is an odd world in which even one letter of the alphabet can mean a vast difference in political reality. I have in mind, of course, the difference between the word “people” with no ‘s,’ which means a bunch of individuals, and the world “peoples” with an ‘s,’ which means many entire Peoples (e.g., the entire People known as the Cree, the entire People known as the Lakota, the entire People known as the Kumeyaay, the entire People known as the Lummi, etc). When taken together in one broad category, they are correctly called “Peoples,” meaning more than one entire People.

From a naïve viewpoint it’s just one letter of the alphabet. Yet from a politically informed viewpoint, “Peoples” with an ‘s’ acknowledges that we are entire Peoples, and thus many entire Nations, with an existence originally free and independent of presumptions of domination over us by colonizing powers.

This mention of semantic subtlety is directed at a key point of the NCAI “White Paper.” Page one of the paper sensibly addresses the right of self-determination as expressed in Article 3 of the UN Declaration on the Rights of Indigenous Peoples. Specifically, it reads: “Indigenous peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social, and cultural development.” However, the NCAI paper then takes a bizarre turn into the domesticating and dominating labyrinth of federal Indian law and policy.

In the very next paragraph, the NCAI drafters say: “In the United States, self-determination is well-established in federal Indian law. The Supreme Court recognizes that tribes are inherent sovereigns predating the [U.S.] Constitution. Moreover, since the 1960s, Congress has repeatedly passed legislation that acknowledges this inherent right of self-determination.” At this point, the NCAI drafters cite “See, e.g., the Indian Self-Determination and Education Assistance Act, 25 USC § 450 et seq.

Those who drafted Article 3 in the UN Declaration did so on the basis of the right of self-determination in international law. The drafters of the NCAI “White Paper” were under the severely mistaken impression that the right of self-determination recognized in international law already “is well established in federal Indian law.” They apparently had no idea that there is no connection at all between the right of self-determination for all peoples in international law and the concept of self-determination in U.S. federal Indian policy such as is found in the U.S. “Indian Self-Determination and Education Assistance Act.”

Such confusion on the part of drafters of NCAI’s White Paper is a sad testimony. It tells us that many Indian people who purport to understand what is going on in the international arena and the United Nations have failed to grasp the full magnitude of what this fight is all about when it comes to self-determination. Such people apparently have a “U.S. federal Indian law and policy” mindset that they carry with them into the United Nations.

As a result, without even realizing it, they are normalizing “U.S. federal Indian law and policy thinking” in the UN. Rather than creating a fundamental challenge to U.S. federal Indian law and policy, such people are transferring the conceptual context of “U.S. federal Indian law and policy” into the United Nations.

A lot of Indian people are likely to misunderstand what I am saying. These are very difficult and challenging issues, no doubt about it. The amount of information to read, comprehend, and work through is massive, and it can also be massively confusing. Nonetheless, it is the height of folly for an organization such as NCAI to purport to know the subtleties of the international language system, and yet turn for guidance to those whose expertise is narrowly restricted to domestic U.S. federal Indian law and policy. The result is made evident by the confusion about international self-determination and a “U.S. domestic concept” of self-determination found in the NCAI “White Paper.”

As this is being written, an Interactive Hearing took place at the UN in preparation for the drafting of an UN High Level Plenary Meeting Outcome Document. Even though NCAI has not cleared up its confusion about self-determination, it has placed itself front and center in the discussions leading to that Outcome Document. Ironically, the NCAI, the Indian Law Resource Center, and the United States government, are all calling for “U.S. federally recognized tribes” to be recognized in the UN. Returning now to the earlier point about semantic subtlety, notice the similarity between “U.S. federally recognized tribes,” “U.S. Embassy,” the “U.S. State Department,” and “U.S. government.” They all have the prefix “U.S.” meaning “created by or belonging to the United States.”

The right of self-determination in international law includes the right of every People to define their own political status. What happens if the United States succeeds in making it look as if our Original Nations and Peoples have freely chosen as a political status only a “domestic” U.S. policy “concept of self-determination,” instead of an international right of self-determination?

What happens if the U.S. succeeds in making it seem as if our originally free and independent Nations and Peoples have freely chosen to define our own political status as that of ‘subservient sovereigns,’ namely, “U.S. federally recognized tribes,” which is a status that originates in the U.S. constructed conceptual framework of U.S. federal Indian law and policy?

What happens if we are being “led” to a “destination” that is the opposite of political reform, in the name of political reform? If that happens, then the danger exists that U.S. federal Indian law and policy system will end up being reaffirmed and accepted, rather than fundamentally challenged, internationally. We are in perilous times in the international arena, and those who ought to heed this warning are the ones least likely to do so.

Steven Newcomb (Shawnee, Lenape) is co-founder and co-director of the Indigenous Law Institute, and author of Pagans in the Promised Land: Decoding the Doctrine of Christian Discovery (Fulcrum, 2008). He has been studying U.S. federal Indian law and international law since the early 1980s.

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Unfortunate Confusion on the Right of Self-Determination

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