Steven Newcomb

Walking Backward in the International Arena

There was a deeply troubling development at this year’s United Nations Permanent Forum on Indigenous Issues (the 12th Session) in New York. Before we get into that, though, let’s first build some historical context. In 1973, Russell Means and Dennis Banks of the American Indian Movement gained the approval of elders and spiritual leaders of the Oglala Lakota Nation to lead a protest at the site of the Wounded Knee massacre where more than 300 Oglala and Hunkpapa ancestors were slaughtered by the US military in 1890. The protest lasted 71 days.

Afterward, the American Indian Movement called for a convening of the first international Indian Treaty Council. In the summer of 1974, Indian nations gathered at the Standing Rock Reservation in the Dakotas, in the traditional territory of the Great Sioux Nation, and they issued a Declaration of Continuing Independence. Next year will be the fortieth anniversary of that Declaration.

In the fall of 1977, in the spirit of the Declaration at Standing Rock, Indian leaders traveled to Geneva, Switzerland and began the international work for the liberation of our Nations and Peoples that continues to this day. After thirty years of dedicated efforts by Indigenous Nations and Peoples and their allies, the United Nations General Assembly voted on September 13, 2007 to adopt the UN Declaration on the Rights of Indigenous Peoples. However, eleven countries abstained from the vote, and the CANZUS states (Canada, Australia, New Zealand, and the U.S.) voted “no.”

The “no” vote by the United States was predictable. It had taken the official position in 2006—which it has never reversed—that the then “Draft Declaration” was “fundamentally flawed” and “unworkable.”

                  On December 16, 2010, President Barack Obama issued a statement saying that the U.S. was willing to support the UN Declaration on the Rights of Indigenous Peoples. The U.S. Department of State posted a U.S. position paper on its website in which the U.S. claims that the UN Declaration “calls for a new concept of self-determination for Indigenous peoples. The Declaration’s call is to promote the development of a concept of self-determination for indigenous peoples that is different from the existing right of self-determination in international law.” (emphasis added)

The U.S. said that, in its view, “the Declaration’s concept of self-determination” is nothing other than what is already found in U.S. federal Indian law and policy, and that it considers self-determination in the UN Declaration as being

consistent with the United States’ recognition of, and relationship with, federally recognized tribes as political entities that have inherent sovereign powers of self-governance. This recognition is the basis of the special legal and political relationship, including the government-to-government relationship, established between the United States and federally recognized tribes.

The U.S.’s claim that the UN Declaration makes a call for “a new concept” of self-determination is, of course, a complete fabrication designed to undercut the expression of self-determination in Article 3 of UN Declaration. Article 3 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.” (emphasis added) Article 3 of the UN Declaration was drafted on the basis of the right of self-determination already recognized in international law, in international instruments such as the UN Charter, and UN Resolution 1514.

At this year’s UN Permanent Forum on Indigenous Issues (May 20-May 31), the United States revealed its latest strategy for undermining Article 3 of the UN Declaration. Recruit Indian leadership. At the May 22, 2013 session of the Permanent Forum, the United States said that it wanted to ‘reiterate’ its position that “self-determination as expressed in the UN Declaration is not the same as self-determination in international law.”

Six days later, on May 28 at the UN Permanent Forum, the US said that it is time for the United Nations to give “Indian tribes” an “appropriate” partcipation at the 2014 High Level Plenary Meeting-World Conference. During the delivery of her remarks, Ms. Laurie Phipps placed verbal emphasis on the word “appropriate.” When we combine the U.S. government’s 2010 statement and its May 22 UNPFII intervention on the Declaration, an “appropriate” participation can only be interpreted to mean one that is “consistent with the United States’ recognition of, and relationship with, federally recognized tribes…”, i.e., domestic dependent nationhood under U.S. plenary power.

A couple of hours after the United States’ statement, the National Congress of American Indians—in partnership with several other organizations and Indian “tribes”—issued its statement at the Permanent Forum calling for U.N. recognition of American Indian governments “as observers with, at a minimum, the same participatory rights as non-governmental organizations in consultative status with the Economic and Social Council,” according to an accompanying document issued by the Indian Law Resource Center.

United States support for the NCAI recommendation to the UN Permanent Forum came just five days after the U.S. reiterated its position on Article 3 of the Declaration. It is troubling that NCAI and its allies did not once publicly take issue with the U.S.’s domesticating interpretation of Article 3 of the UN Declaration. As a result, the United States is now making it look as if NCAI is fully supportive of the U.S.’s 2010 federal Indian law interpretation of Article 3 of the UN Declaration.(By contrast, the International Indian Treaty made a powerful intervention, presented by Roberto Borrero, challenging the U.S.'s expressed view of Article 3).

Advocating that U.S. domestic dependent nationhood and U.S. plenary power over Indian “tribes” be recognized in the United Nations is not political reform or liberation for Indian nations. It is political regression. It serves to undercut more than 30 years of work in the international arena.

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 (Fulcrum, 2008), and Indigenous and Kumeyaay Research Coordinator for the Sycuan Band of the Kumeyaay Nation.

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Walking Backward in the International Arena

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