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The status and rights of indigenous peoples in international law : the quest for equality Dorough, Darlene (Dalee) Sambo 2002

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THE S T A T U S A N D RIGHTS OF INDIGENOUS P E O P L E S IN I N T E R N A T I O N A L L A W : THE QUEST FOR EQUALITY by DARLENE (DALEE) S A M B O DOROUGH  M . A . L . D . , The Fletcher School of L a w and Diplomacy Tufts University, 1991  A THESIS S U B M I T T E D IN P A R T I A L F U L F I L M E N T OF T H E R E Q U I R E M E N T S F O R T H E D E G R E E OF D O C T O R OF PHILOSOPHY in T H E F A C U L T Y OF G R A D U A T E STUDIES (Faculty of Law)  We accept this thesis as conforming to the/requij^jd sQidard  T H E UNIVERSITY OF BRITISH C O L U M B I A July 19, 2002 © Dalee Sambo Dorough, 2002  In  presenting this  degree at the  thesis in  partial  fulfilment  of  of  department  requirements  University of British Columbia, I agree that the  freely available for reference and study. I further copying  the  this or  his  or  her  representatives.  an advanced  Library shall make it  agree that permission for extensive  thesis for scholarly purposes may be granted by  for  It  is  by the  understood  that  publication of this thesis for financial gain shall not be allowed without permission.  Bepactaefit- of  L& *J  The University of British Columbia Vancouver, Canada  Date  DE-6 (2/88)  otf.U'  8,  head of copying  my or  my written  ABSTRACT  M y thesis is that Indigenous peoples, as distinct people, are entitled to the full affirmation and explicit recognition o f the right to self-determination in the context o f the draft U N Declaration on the Rights of Indigenous Peoples and in international law generally. The international community, and in particular, the nation-state members o f the United Nations must uphold their legally binding international obligations in this regard. M y methodology has been to utilize the human rights framework and approach, as well as rights discourse to advance this thesis. In addition, I am relying upon my direct participation in this important standard setting process, as well as the writings o f various publicists. The right of peoples to self-determination is considered by numerous international authorities to be jus cogens or a peremptory norm. Similarly, the prohibition o f racial discrimination is considered by numerous authorities to be a peremptory norm. Throughout the draft Declaration debate, a number o f states have proposed wording that would dramatically alter the scope and content o f the right to selfdetermination, thereby limiting, qualifying or modifying this right in the context o f indigenous peoples. A n y state proposals to qualify, limit or modify the right o f indigenous peoples to self-determination would be racially discriminatory. If Article 3 o f the draft Declaration were to be altered - even to include the same or similar notions as might currently exist under international law - it would invite interpretations to be applied to indigenous peoples' right to self-determination that are different from those o f other peoples. It might also have the effect o f wrongfully freezing the interpretation o f this indigenous human right, in such a manner as to prevent or otherwise stifle its natural evolution under international law. If there is no equality of application o f the rule o f law in the context o f international law and states succeed in introducing discriminatory double standards in connection to indigenous peoples and their fundamental right to self-determination, then the failure o f the human rights framework, the United Nations system and nation-states themselves w i l l seriously erode the very concepts o f democracy, human rights and the rule o f law.  ii  TABLE OF CONTENTS  ABSTRACT  ii  T A B L E OF CONTENTS  iii  ACKNOWLEDGEMENTS  v  CHAPTER 1  1  A) B) C)  Introduction Theoretical Constructs Structure O f Dissertation  1 6 29  C H A P T E R II INTERNATIONAL PROCESSES INDIGENOUS PEOPLES A) B) C) D) E) F) G)  TOWARDS INCLUSION  37  The United Nations Working Group on Indigenous Populations and the draft Declaration Other United Nations Initiatives Growing International Trend to Accommodate Indigenous Status World Intellectual Property Organization Arctic Council Human Rights Treaty Bodies Intersecting approaches and positions: the revision o f I L O Convention 107, the O A S Proposed American Declaration on the Rights o f Indigenous and the draft U . N . Declaration on the Rights o f Indigenous Peoples  C H A P T E R III CAPACITY OF THE HUMAN RIGHTS FRAMEWORK ACCOMMODATE INDIGENOUS PEOPLES A) B) C) D)  FACING  INDIGENOUS  peoples  91  Ill  PEOPLES  The lack o f a definition o f the term "peoples" The term "Indigenous Peoples" Important elements o f the status and rights o f Indigenous Peoples as distinct  37 57 68 82 84 85  TO  International Human Rights Framework Nature o f Human Rights Human Rights, Democracy and the Rule o f L a w Capacity to Accommodate Indigenous Rights within the Human Rights Framework  C H A P T E R I V ONGOING CHALLENGES A) B) C)  OF  Ill 132 139 144 146 147 149 162  iii  D) E) F) G)  Concept o f the right to be different Collective Rights Important matter o f genocide Conclusion  C H A P T E R V THE ONGOING A) B) C) D) E) F) G) H) I)  DEMAND  B) C) D) E)  FOR EQUALITY.  198  The right to self-determination The term "Indigenous Peoples" and the right to self-determination Indigenous perspectives on the right to self-determination State positions Present state government positions The legal imperatives should follow the moral imperatives Position o f the United States - A n Increasing Anachronism Essential International Obligations o f States and Peremptory Norms o f International L a w Where do we go from here?  C H A P T E R V I THE CONTINUING DETERMINATION A)  168 172 181 196  EXERCISE  198 201 215 220 225 231 236 244 249  OF THE RIGHT TO SELF260  The denial o f the right to self-determination: The Alaska Native Claims Settlement A c t o f 1971 Political organizing and use o f international human rights mechanisms Litigation and human rights complaints Negotiation Indigenous community-based work  BIBLIOGRAPHY  261 273 274 277 277 285  A N N E X " A " Draft United Nations Declaration On The Rights Of Indigenous  Peoples 308  A N N E X "B"The Revision of International Labor Organization Convention No. 107: A Subjective Assessment 318  iv  ACKNOWLEDGEMENTS  This writing would not have been possible i f it had not been for my family, friends and colleagues, who have all made their own, distinct contribution to the ongoing challenges facing indigenous peoples. M y family and, in particular, the memory o f my father continues to provoke thought and awareness, and I thank him for the comaraderie, principles and political insights shared. I also acknowledge my mother, who provides encouragement and guidance in ways that only a mother can. The love, support, and sacrifice o f my husband, Luke, is unmatched. I cherish him as a partner, peer and as a person with the highest o f principles. M y daughter, Hannah, has demonstrated, beyond her tender age, immense patience and understanding for the hours taken from her to complete this work. In this way she inspires me to show greater patience and understanding toward others. Inuit Circumpolar Conference (ICC) President Aqqaluk Lynge, Hjalmar Dahl, Henriette Rasmussen, and numerous other Inuit friends and colleagues associated with the I C C , have all contributed to the development o f Inuit diplomacy and I am thankful for the opportunity to have benefited from their knowledge, political leadership and insights. I would like to express my appreciation to Jerry Strauss, former Principal and educator, who understood my struggle and helped to ensure that I didn't "fall through the cracks" of the Anchorage School District. I am also fortunate to have received academic guidance in various ways from scholars and practitioners Professor John Borrows, S. James Anaya, Robert A . Williams, Jr., Kimberly Martus, M i c k Dodson, M i l i l a n i Trask, John Henriksen, Victoria Tauli Corpus, Paul Joffe, Maivan Clech Lam, David Maas, and Sarah Pritchard. I am especially grateful to Professor June M c C u e for her determination, grounding and belief in the legitimacy o f indigenous legal theory, worldviews and perspectives, Professor Michael Jackson for his insights, enthusiasm for the topic and unwavering support, and Professor Douglas Sanders for his frank and constructive comments. I would also like to thank Dan Hertrich, for his computer skills and the tedious task o f formatting the text. Too many Inuit have come and gone without respect for and recognition o f their basic and fundamental human rights. It is only through our individual and collective efforts that we w i l l arrive at a day when Inuit, along with other indigenous peoples, w i l l actually realize and enjoy their individual and collective human rights.  v  CHAPTER I  "Eurocentric thinkers automatically assume the superiority o f their worldview and attempt to impose it upon others, extending their definitions to encompass the whole world. Typically this quest for universal definitions ignores the diversity o f the people o f the earth and their views o f themselves." 1  M. Batiste & J.Y. Henderson, Protecting Indigenous Knowledge and Heritage: A Global Challenge, 2000 "Can cultural differences ever be reconciled in the legal domain?"  A ) Introduction 1) M y personal and professional role The Inuit o f the northwest coast o f Alaska are my ancestors. 3  4  I often think o f the  lives they must have led, when peace and security had very different meanings. I think o f my great grandmother who cleaned skins with a handmade scraper in an effort to prepare them for the making o f beautiful but utilitarian clothing to survive i n the harsh Arctic environment. I think o f my grandfather. A man who ensured that no one in the community went hungry despite the laws and fish and game regulations conceived o f far away from the village. A man who did not like being inside buildings and who grew furious and frustrated at the thought o f his grandchildren going to college "to learn."  1  See M. Battiste and J.Y. Henderson, Protecting Indigenous Knowledge and Heritage: A Global  Challenge, (Saskatoon: Purich Publishing Ltd, 2000) at 36. See M.E. Turpel, "Aboriginal Peoples and the Canadian Charter: Interpretive Monopolies, Cultural Differences, R. Devlin, ed., Canadian Perspectives on Legal Theory, (Toronto: Emond Montgomery Publications, Ltd., 1991) at 505. Inuit or the "real people" are the indigenous peoples settled in the Arctic and sub-Arctic regions of Alaska, Canada, Greenland and the Russian Far East, which now number some 150,000. See generally D. Dumond, "Prehistory: Summary," and D. Anderson, "Prehistory of North Alaska," in Handbook of North American Indians, Vol. 5, ARCTIC (Washington, D.C.: Smithsonian Institute, 1984) at 72-94. 2  3  4  Ticasuk (E.I. Brown), The Roots ofTicasuk: An Eskimo Woman's Family Story (Anchorage: Alaska  Northwest Books, 1981). Ticasuk documented the oral history and genealogy of my maternal family and extended family, going back fourteen generations to Alluyagnak I, hereditary Chief of Unalakleet, which is the traditional village of my people.  1  I think o f my mother, whose youth disappeared in the Bureau o f Indian Affairs boarding school at M t . Edgecumbe, where she learned "home economics," and was swiftly punished for speaking her own language. I think o f my late father's struggle to raise a Native family in a white, urban area, and the B I A Relocation experiment, resulting in a very brief stay in snow-free California. I think o f my maternal uncle and his alcoholism and the fact that he was one o f many faceless, voiceless Alaska Natives who died in a downtown alley o f Anchorage, to this day, o f "unknown causes." I think o f the times when my siblings and I were the only Native family in the entire neighborhood and sharing some quiet, vague connection to the one African American family there. I think of my late brother, and the many times that he was incarcerated for no legitimate reason, only to be beaten and then released with his scars, bruises, contempt, and anger. A t times, I feel like a scraped skin. M y story is the story o f many Inuit women and men o f my generation, who have grown up in an urban setting, where we have been scraped like skins. The dominant society working to cleanse, stretch, make more pliable, to tan us through public education and other institutions in vain attempts to make us more presentable or useful in their society. In the end, though I may be more presentable, I am still a skin — I am still an Inuit woman. O n many occasions, like my grandfather, I ask myself what have I learned? Sometimes I regret not having had more o f an opportunity to learn from him. However, as more time passes, I realize our place in society and our very real potential to express the things that make our lives worth living, especially as we are now more prepared for the harsh political and legal environment that we know today. Despite my personal experiences, and the resulting surges o f anger over what I've learned about law and its  2  impact upon indigenous peoples, I remain optimistic and hopeful. The analogy o f preparing skins that I use is one that can also be viewed in a positive light.  I am a skin  that has been scraped, stretched, tanned and am ready for use. B y this, I mean that I take my status and position in life very seriously. I have worked to demonstrate the beauty, legitimacy, and reality o f Native peoples in modern society. Each o f us, as Native people, are an integral part o f our overall survival as indigenous peoples. Each o f us is sewn with intricate, ingenious designs that no others have imagined, created or demonstrated. Each o f us has a role; each o f us promotes or protects some aspect o f our collective identity. Some o f us may sew our skins together, to make a larger shelter for many. I do believe that we can and w i l l be able to take all that we are as indigenous peoples and proudly achieve a place as distinct members of humankind, internationally, and in many other places and settings. The design sewn throughout my being at a young age is one o f ability to speak, to articulate why Native people want what they want. Furthermore, consistent with Inuit values, I feel a sense o f responsibility to share my experiences and the perspectives I have gained from the human rights work that I have done, at the international level, in particular, with other indigenous peoples. I have involved myself in this work because I believe that it is possible to establish minimum international human rights standards that indigenous peoples, individually or collectively, can use as a tool to safeguard our rights. Though standards alone are insufficient, they can be used along with other Inuit tools, to protect us from the harsh political and legal environment that we face, to ensure that there w i l l always be Inuit. It is through this thesis that I would like to share my perspectives about my work and attempt to demonstrate that indigenous peoples, internationally, are  3  sewing their skins together by adapting and using existing tools and fashioning new ones in order to create a shelter for indigenous peoples through international human rights law. This thesis is largely confined to the work o f the United Nations. I personally have been afforded the opportunity to participate in this work due to the many Inuit individuals who have gone before me.  5  M y role in this work and this writing would not  be possible i f it had not been for the determination and foresight o f Inuit leaders to organize themselves throughout the vast Inuit homelands o f the Arctic and sub-Arctic regions o f present day Alaska, Canada, Greenland and the Russian Far East through the Inuit Circumpolar Conference (ICC).  6  A s an Inuit (of Alaska), I have been an advocate for the rights o f Inuit in Alaska as well as on behalf o f the I C C .  7  Personally and professionally, I have played an active  In particular, I owe a debt of gratitude to the late Eben Hopson, an Inupiat from Barrow, Alaska, who was thefirstMayor the North Slope Borough, and is regarded as one of Alaska's few elder statesman. Recognized as the Founder of the Inuit Circumpolar Conference, Eben Hopson, was a forthright visionary, who was patient, inclusive and one who shared his political vision with me and many others. 5  The Inuit of the Arctic circumpolar region organized themselves internationally through the Inuit Circumpolar Conference (hereinafter ICC) founded in 1977 in Barrow, Alaska. The goals of the ICC are: To strengthen unity among Inuit of the Circumpolar region; To promote Inuit rights and interests on the international level; To ensure and further develop Inuit culture and society for both the present and future generations; To seek full and active participation in the political, economic, and social development in our homelands; To develop and encourage long-term policies which safeguard the Arctic environment; and To work for international recognition of the human rights of all Indigenous Peoples. The organization has an internationally elected President and an Executive Council with two elected Inuit from each of the four regions. In addition, ICC has staff and offices in all four nation-states, as well as a number of Commissions and Working Groups that assist in carrying out their four-year mandates. These mandates are established through their General Assembly, which is held every four years and involve elected delegates from across the entire Inuit territory. The ICC gained United Nations Non-Governmental Organization (NGO) status in 1983 and has been active in the UN's work as a leading and well-respected indigenous NGO. See generally D. Sambo, "Inuit Assert Control Over Arctic," Arctic Policy Review, July/August 1977, Arctic Coastal Zone Management Newsletter, August 1983; and A. Lynge, Inuit (Nuuk: Attuakkiorfik, 1992). 6  By seeking out issues that I felt had more relevance to my life, I created on-the-job training schemes to gain high school credit in order to graduate. One such scheme was to serve as a staff person and volunteer for the North Slope Borough, assisting with conference coordination of thefirstgathering of Inuit in Barrow, Alaska, in June 1977. In addition to being staff for the 1977 conference, I held the position of film crewmember for the 1980 ICC gathering in Nuuk, Greenland, wherein Inuit formally organized themselves as the ICC. I subsequently served as the Director of the Alaska Office of the ICC and Special Assistant to 7  4  and direct role in the development o f the draft United Nations Declaration on the Rights o  of Indigenous Peoples. (Hereinafter draft Declaration).  Through this thesis, I hope to  raise awareness about the issues facing indigenous peoples and to demonstrate the legitimacy o f indigenous legal perspectives in the context o f international human rights law. Because o f my direct role in the work and the personal and professional interest that I have in the work, I have chosen to develop this thesis from my perspective. Therefore, it has been difficult to balance my first person, singular views with more conventional, third person legal writing.  the Presidentfrom1982-1989. During this tenure, I was responsible for the ICC's human rights program and participated as the ICC representative to the United Nations Working Group on Indigenous Populations, the International Labor Organization, the Organization of American States and numerous other international fora. I was also responsible for the Alaska Native Review Commission project, which conducted a comprehensive review of the impact of the Alaska Native Claims Settlement Act of 1971. Canadian jurist, Thomas R. Berger, sole Commissioner, authored the report Village Journey: The Report of the Alaska Native Review Commission (New York: Hill & Wang, 1985), which is considered one of the most important studies of Alaska Native rights ever concluded. I remain involved with the ICC as a representative to the various UN sessions and through their newly established Working Group on United Nations Issues. The text largely prepared by the United Nations Working Group on Indigenous Populations (hereinafter WGIP). U.N. Economic and Social Council Resolution 1982/34 of May 7, 1981, created the WGIP, with the mandate of giving special attention to the evolution of standards concerning the rights of indigenous peoples and to review the status and conditions of indigenous peoples worldwide. From 1984-present, 1 have participated in the annual WGIP sessions, usually held in late July-early August. In 1993, the WGIP completed the task of preparing a draft declaration. However, the members continue to meet to review the status and conditions of indigenous peoples. In addition, they have begun to deal with special focus topics, such as health, lands, cultural heritage, education, development and other issues. The WGIP forwarded the text to the full Sub-Commission on Prevention of Discrimination and Protection of Minorities, which subsequently adopted the draft Declaration in Resolution 1994/45 of August 26, 1994 as an annex, U.N. Doc. E/CN.4/1995/2, E/CN.4/Sub.2/1994/56, at 105 (1994). Hereinafter "draft Declaration." Through the same resolution, the Sub-commission transmitted the draft Declaration text to its parent body the Commission on Human Rights (CHR) for review and consideration, where it is presently being considered by an open-ended inter-sessional working group to elaborate a draft Declaration on the Rights of Indigenous Peoples, UN CHR Resolution 1995/32 of March 3, 1995. Hereinafter CHRWG. 8  5  B ) Theoretical Constructs 1) M y struggle with establishing a "theoretical framework," Critical Race Theory and Indigenous Legal Theory • A s w i l l be discussed in this thesis, the Declaration is a unique document addressing unique peoples. The standard setting work o f the draft Declaration itself bears out the inadequacy o f traditional legal discourse and mainstream legal thought in relation to accommodating the unique status and rights o f indigenous peoples. The draft Declaration and its development both illustrate the existence o f a deep chasm between indigenous peoples and the dominant society in the area o f law, legal theory and legal thought. Coterminous with the fact that traditional legal discourse and mainstream legal thought are inadequate, I myself have also struggled with conventional legal writing and the notion o f a "legal theory" to support my thesis. I am not one for "fancy theories" nor 9  am I very abstract. I also have great difficulty with writing, especially i f it is to be regarded as "scholarly work." Rather, I tend to deal with real life situations and face facts with a straight face and blunt words. Throughout my Ph.D. coursework, I was required to read writings that covered a wide range of diverse legal theories. During our seminar sessions, I would advance my indigenous perspective or experiences and hold them up against the backdrop o f most theories, and the result was often unnecessary perplexity and the blurring o f what I considered fairly straightforward matters. I found some approaches useful but, in large part, most remained too western in their grounding. In particular, the focus upon individualism and the value laden rhetoric drawn from the reality o f the property regimes  6  introduced by the invaders. In addition, concepts such as coercive force or authority centered in the state or the relationships between a sovereign and its subjects, the social contract and notions o f superiority, obedience all appear to be pivotal features o f western legal theories. Few approaches address inequality and most are absent the distinct perspectives o f indigenous peoples, who view rights more as responsibilities to the collective than individual interests to be protected. It is becoming clear to most indigenous peoples, including myself, that a very different framework or legal theory is needed to transform or change indigenous/state relations that are largely based on European or these western dominated frameworks and values. Individuals such as M i c k Dodson, former Social Justice Commissioner o f the Aboriginal & Torres Strait Islanders Commission have reiterated this fact throughout the discussions at the United Nations, as well as at home in Australia.  10  In his 1995  presentation, Dodson stated that there has been a "collision o f two systems o f law" and urges the reconciliation o f such systems within the framework o f human rights standards. He argues that a cultural context must be included in the discourse o f human rights and the interpretation of domestic law concerning indigenous peoples' status and rights by the courts. There is a growing recognition o f the need for a different "conceptual framework," by both indigenous and non-indigenous scholars. For example, Professor Robert A . Williams suggests:  , .  R.A. Williams, "Vampires Anonymous and Critical Race Practice," 95 Mich. L. R. 741 (1997), who discusses critical race theory, his personal experience in mainstream law schools and his academic activism as a "critical race practioner." 9  7  "Pushed to the brink o f extinction by the premises inherent in the West's vision o f the world and the Indians' lack o f a place in that world, contemporary tribalism recognizes the compelling necessity o f articulating and defining its own vision within the global community. 11  Author M a i van L a m , writes: "Indigenous peoples have been subordinated and injured by the modern state. Politically, and often physically as well, they live at its edge. Conceptually, however, they may be turning that edge into a cutting one as they construct new paradigms of the rightful structure, function, and relationship o f states to constituent peoples. Certainly, few seem anxious to appropriate or reproduce the unreconstructed state." 12  Similarly, leading international legal scholar, Richard A . Falk writes: "The first truly intercivilizational critique of the prevailing human rights discourse and its world order implications emerged, somewhat surprisingly, from the concerted struggle o f indigenous peoples in the 1980s and 1990s. This struggle took shape against a background (and foreground) o f exclusion, discrimination, and persecution, even extermination, assimilation, and marginalization - all factors expressive o f confusing admixtures o f arrogance, racism, and ignorance. These extraordinary efforts o f indigenous peoples to protect the remnants o f their shared civilizational identity, an identity that was coherent and distinct only in relation to the otherness o f modernity, achieved two results ... : first o f all, it exposed the radical inadequacy o f a civilizationally "blind" approach to human rights, by which is meant the utter failure o f the modernist instruments o f human rights to address in any satisfactory way the claims, values, grievances, and outlooks o f indigenous and traditional peoples; and second, transnational activism by indigenous peoples in the last decades has given rise to an alternative conception of rights  M. Dodson, "Human Rights and the Extinguishment of Native Title" presentation to the Australasian Law Students Association, July 3-10, 1995, Sydney, Australia. On file with author. " R.A. Williams, Jr., The American Indian in Western Legal Thought (New York: Oxford Publishing, 1990) at 328. 10  12  M.C. Lam, At the Edge of the State: Indigenous Peoples and Self-Determination (Ardsley, N.Y.:  Transnational Publishers, 2000), at xxvi; and at 211: "Indigenous peoples today share complex boundaries with non-indigenous peoples, but not a system of meaning that permits a mutually intelligible recognition and limited transgression of those boundaries. They look now to international law to supply such a system of meaning, the contours of which they have outlined in their vision of their self-determination. But the interstate system, captured as it is by the method of positivism and the history of statism, fails to trust the ambivalence and pliability inherent in the indigenous vision. It is a pliability that springs from the common human experience, unknown to or forgotten only by the most dominant of societies, of negotiating contested, contingent, layered, and adaptive modes of survival as well as of meaning."  8  that has been put forward after a long process by previously excluded civilizational representatives." 13  A complete synthesis o f various legal theories is not possible here. However, a quick survey o f issues in legal theory w i l l reveal the gaps that exist for indigenous peoples. Many approaches do not have the capacity to respond to the contemporary aspirations nor the rights o f indigenous peoples. Yet, indigenous peoples are unconsciously reformulating, re-conceptualizing, and modifying existing approaches to advance their various efforts at the international level. For example, use o f natural law conceptions, law and norms, or rights discourse, law and language, realism, critical legal studies, feminist approaches are all being utilized. It is safe to say that, at the international level, indigenous peoples have contributed to the expansion o f the various schools of legal thought by introducing their own values and practices into the ongoing human rights standard setting activities. Such development reflects the creation o f new norms and new approaches to the role o f law in society and relations between distinct peoples and others. Hence a new legal theory may be evolving, which is more consistent with the values, practices and institutions o f indigenous peoples. Indeed, Richard Falk further notes that: ".. .this recent authentic expression o f indigenous peoples' conception o f their rights contrasted with that o f earlier mainstream human rights instruments claiming universalism....Such comparisons confirm the contention that participatory rights are integral to a legitimate political order, as well as to a reliable clarification o f grievance, demand, and aspiration. This alternative conception has been developed by indigenous peoples in an elaborate process o f normative reconstruction that has involved sustained and  R. Falk, Human Rights Horizons: The Pursuit of Justice in a Globalizing World (New York/London: Routledge, 2000) at pp. 151 -152. 13  9  often difficult dialogue among the multitude o f representatives o f indigenous traditional peoples...." 14  There is no question that the views o f indigenous peoples expressed at the international level are legitimate views, and may form the basis o f a new theoretical framework or a "reconstruction" o f norms. However, unfortunately, little thought has gone into legal theory and legal studies by indigenous peoples, with the exception o f the efforts o f the small but deep (and growing) pool o f indigenous legal scholars who are attempting to take stock o f our place in the world o f legal theory in a formal, academic fashion. Such efforts are few and far between, primarily because o f the urgent nature o f the issues that face indigenous communities and the powerful and dominant social, economic, political and cultural forces that surround indigenous communities. Therefore, I am still grappling with the notion o f the "theoretical underpinnings" of this thesis or any other writing that attempts to advance our worldviews. However, I must confess that the only theoretical framework that I can temporarily embrace is Critical Race Theory (CRT). I have begrudgingly accepted that it may be the best theoretical framework for examining indigenous legal perspectives and propelling them into the spotlight. I recognize that Critical Race Theory provides a useful measure o f the limitations of traditional legal discourse. In addition, the use o f storytelling and counter-storytelling and the overarching proactive notion or objective o f Critical Race Theory to effect change make it an attractive and likely more constructive theoretical framework for indigenous peoples.  1 4  Ibid.  10  After some further thought, I now understand the role that scholar Robert A . Williams plays and describes as Critical Race Practice. I, too, am playing a role through my own Critical Race Practice, working to effect change in the traditional legal discourse by bringing forward the perspectives o f Inuit to the work o f the draft Declaration.  15  When viewed in this way, I am the practice. M y s e l f and other indigenous representatives, scholars and advocates involved in the draft Declaration work are the storytellers advancing our perspectives in order to effect change at the international and national level. In fact, the goal o f the Declaration process is to recognize the distinct place o f indigenous peoples in the context o f international human rights law and thereby uplift the status and conditions o f indigenous peoples through the principles o f equality and the rule o f law. Above, I use the term "temporarily" because Critical Race Theory, upon closer inspection remains yet "another Western theoretical framework." 17  the basic objectives o f Critical Race Theory  16  Though I understand *  and its emphasis on exclusion,  subordination and use o f "racial power" in international and American law, I cannot help being disturbed by the negative connotations o f race and difference. For example, references to people o f color as "outsiders" or from the "bottom" or use o f terms such as "out groups." These terms chafe at me because I don't always feel like an "outsider," or that I ' m operating from the "bottom" or as a representative o f an "out group." M y natural inclination or response is to advance indigenous peoples by emphasizing indigenous Ibid. R. Gordon, "Critical Race Theory and International Law: Convergence and Divergence," 45 Vill.-L. Rev. 827 (2000), who offers a foreword to a Critical Race Theory symposium. 13  16  11  culture and difference in a positive fashion, to promote notions o f indigenous peoples as "real people." This is particularly important in my work for and within indigenous communities where they are the majority and culturally intact, and incrementally gaining ground in terms o f the legitimacy o f their life ways, values and perspectives by advancing their understanding o f how law operates within their societies, as well as in their interactions with "outsiders." Furthermore, many o f the activists that have advanced Critical Race Theory come from a different historical, legal and cultural background quite distinct from indigenous peoples. In particular, many do not share the concept o f sovereignty or the political right to self-determination, or the relationship to their homelands (or lands, territories and resources), which indigenous peoples regard as fundamental to their identity and being. Indigenous scholar and now Saskatchewan Provincial Court Judge, Mary Ellen Turpel seems to sense this tension as well and urges the use o f the term "cultural differences" rather than "racial difference" because of the more "expansive" nature o f the former. She states that "cultural differences should be understood more as manifestations of differing human (collective) imaginations, o f different ways o f knowing." She adds that "cultural differences are differences between ways o f knowing, describing, or understanding." Turpel asserts that the efforts o f indigenous peoples, in their use o f "human rights terminology" is actually a "plea for recognition o f a different way o f life, a different idea o f community, o f politics, o f spirituality, differences that have  Ibid. R. Gordon summarizes CRT as a means "to understand how a regime of white supremacy and its subordination of people of color have been created and maintained in America" and to not only "understand the connection between racial power and law, but to change that relationship." 17  12  existed...since time immemorial, but have been cast as differences to be repressed or transformed since colonization." Turpel's assertions identify the limitations of the term "race" in the context of indigenous peoples, who are distinct political entities. This point adds to the argument that the existing approaches, including Critical Race Theory, do not adequately respond to the status, rights, characteristics and attributes of indigenous peoples. The term "race" is now being disputed by modern science as well. However, when it comes to the common or popular usage of this archaic term in international law, the emphasis has been upon identification of perpetrators of racism and racial discrimination and not upon those arguing for recognition of the rights of peoples that comprise distinct cultures. For example, the 1948 Genocide Convention and the 1978 United Nations Educational, 19  Scientific and Cultural Organization (UNESCO) Declaration denouncing theories of racial superiority both place emphasis upon the "persons committing" such acts or the 20  State practicing racial discrimination. Scholar W. Schabas attempts to elucidate such an understanding: "From a purely scientific standpoint, the value of the term 'race' is now disputed by modern specialists. As a way to classify humans into major subspecies based on certain phenotypical and genotypical traits (e.g., Negroid, Mongoloid, Caucasoid), race has become virtually obsolete. Indeed, efforts to ME. Turpel, "Aboriginal Peoples and the Canadian Charter: Interpretive Monopolies, Cultural Differences," supra note 2 at 503. Convention on the Prevention and Punishment of the Crime of Genocide. Concluded at new York, December 9, 1948. Entered into force, January 12, 1951. 78 U.N.T.S. 277; 1951 A.T.S. 2; 1949 Can. T.S. 27; 1970 U.K.T.S. 58, Cmnd. 4421, 151 B.F.S.P. 682; S. Exec. Doc. 0 818-8, at 7-12 (1949); reprinted in 3 Weston I1I.J.1. United Nations Educational, Scientific and Cultural Organization (UNESCO) Declaration on Race and Racial Prejudice (1978), which declares, inter alia, that "all human beings belong to a single species...all individuals and groups have the right to be different...any theory which involves the claim that racial or ethnic groups are inherently superior...has no scientific foundations and is contrary to themoral and ethical principles of humanity...any form of racial discrimination practiced by a State constitutes a violation of international law...." 18  19  20  13  define these so-called races have in themselves a racist connotation, in that generally they aim to demonstrate not only some common denominator o f physical characteristics, such as type o f hair and skin colour, but also purportedly scientific justifications for slavery and colonialism. . . . Apart from references to 'human race' as a unified group, 'nearly all social scientists only use "race" in [the] sense o f a social group defined by somatic visibility'. Nevertheless, in popular usage the concept o f racial distinctions continues to have 'tremendous social significance' because 'we attach meaning to them, and the consequences vary from prejudice and discrimination to slavery and genocide'. Thus, although the term 'racial group' may be increasingly antiquated, the concept persists in popular usage, social science and international law. Understandably, progressive jurists search for a meaning consistent with modern values and contemporary social science." 21  Clearly, indigenous peoples are seeking recognition and meaning consistent with their distinct status, rights, values and contemporary conditions as particular cultural groups. However, due to the fact that indigenous peoples collectively are the subject o f inequality in treatment based upon their cultural distinctions and qualities, which results in a disability, the term "race" and its common usage have been important in identifying the discriminatory actions being taken by States against indigenous peoples. Therefore, I am not making a parallel between race and indigenous peoples. O n the contrary, I utilize Critical Race Theory to demonstrate the limitations o f existing theories and frameworks and, where appropriate, I utilize the term "race" to point out the discriminatory actions o f States. This dynamic w i l l be discussed further in the context o f the right o f indigenous peoples to self-determination. M y role in defining the rights embraced by the draft Declaration and my advocacy work or "storytelling" at the United Nations can be characterized as a combination o f  W.A. Schabas, Genocide in International Law (Cambridge: Cambridge University Press, 2000) at 122123. [footnote for first quoted phrase: P.L. van der Berghe, "Race - As Synonym," in E. Cashmore, ed., Dictionary of Race and Ethnic Relations (London and New York: Routledge, 1996) at 297; footnote for  21  14  Critical Race Theory and rights discourse, in very real terms. M y efforts and those o f other indigenous advocates have not been abstract discussions concerning theory and rights. Rather, we have been sharing our experiences o f colonization, domination, subjugation and exploitation and how attitudes o f superiority practiced by so-called "civilized" peoples have affected our indigenous communities, nations and peoples. L i k e other Critical Race Theory proponents, scholars, and practitioners, we are sharing our perspectives in an effort to reconstruct relationships that genuinely w i l l accommodate our place in society, a society where the equal application o f the rule o f law w i l l have concrete effect upon our ability to exercise and enjoy our human rights, day in and day out. Indigenous peoples are actively seeking to end the rhetoric concerning rights and to change the social structures and perspectives that breed the racism and racial discrimination that we continue to face in our homelands and in the context o f our fundamental rights. The methodology can be summarized as a very direct, personal account o f my participation in the human rights standard setting process. I have taken my story, my experiences and the history o f my people to the international arena. Through such participation, I have sharpened my understanding o f the human rights framework and gained additional tools to expand rights discourse into the field o f indigenous human rights development. Furthermore, the theoretical construct o f the right o f indigenous peoples to self-determinaiton (within a human rights framework) plays a central role in the analysis o f the capacity o f international law to accommodate indigenous peoples and  second quoted phrase: E.F. Borgatta & M.L. Borgatta, eds., Macmillan, 1992), p. 1617.  15  Encyclopedia of Sociology  (New York:  to ensure equality. I have also relied upon the writings o f various publicists who have contributed to the continuing dialogue on the right to self-determination in international law. Though numerous articles and volumes exist on the topic o f indigenous peoples at the United Nations and in the context o f the right to self-determination, there is virtually no literaure on the work in the Commission o f Human Rights Working Group on the draft Declaration. Therefore, throughout the course o f writing this thesis, I have found my experiential account to be essential and by utilizing the most recent debates as a starting point, I have tried to make a contribution to the ongoing and future dialogue. 2) Indigenous unity and Indigenous diversity Here is another example o f an abstract concept and my more layperson view o f it. While explaining the topic o f my thesis to a friend, I was asked the question o f how do you intend to "essentialize" indigenous peoples? First, I ' l l confess that I was not even sure what was meant by "essentialize." After some discussion about the topic, it was clear that I was not going to "essentialize" indigenous peoples. There is no question that there is great diversity  amongst indigenous peoples,  nations and communities and their respective identities, oral histories and political, social, cultural, economic and environmental contexts. A s stated by scholar Vine Deloria:  See generally the UNESCO Universal Declaration on Cultural Diversity, Resolution 25, adopted by the General Conference at its 31 session, and based upon the report of Commission IV at the 20 plenary meeting, November 2, 2001, which states in Article 1: "Culture takes diverse forms across time and space. This diversity is embodied in the uniqueness and plurality of the identities of the groups and societies making up humankind. As a source of exchange, innovation and creativity, cultural diversity is as necessary for humankind as biodiversity is for nature. In this sense, it is the common heritage of humanity and should be recognized and affirmed for the benefit of present and future generations." Article 4 states: "The defence of cultural diversity is an ethical imperative, inseparablefromrespect for human dignity. It implies a commitment to human rights and fundamental freedoms, in particular the rights of persons belonging to minorities and those of indigenous peoples. No one may invoke cultural diversity to infringe upon human rights guaranteed by international law, or to limit their scope."  22  st  th  16  "American Indians are a unique branch o f the human family possessing a wide variety o f cultural expressions, origins, and traditions. The very diversity o f Indian tribes has dampened efforts to treat Indians as a monolithic group although historians have often struggled to bring meaning and understanding to what the non-Indian community views as "the Indians." Almost all generalizations that been constructed to explain the nature o f Indian life have dissolved when the particularities o f tribal existence have been noted." 23  Among Inuit alone, there is immense economic, social, cultural, linguistic and political diversity. However, in the context o f this thesis, my specific focus is upon our collective work at the United Nations, where certain concepts have emerged in the human rights discourse that are universal or at least unanimous amongst those who have played a consistent and active role in the work. This has been expressed through not only the procedures used by indigenous peoples to organize themselves at the international level but also through the collective decisions made by indigenous peoples on substantive matters. In my view, it is significant that very diverse indigenous peoples and organizations from across the globe are united in the objective o f attaining a strong United Nations Declaration on the Rights o f Indigenous Peoples. Though extraordinary cultural diversity exists, indigenous peoples have repeatedly affirmed this common objective, which has resulted in a united agenda or platform. This phenomenon has infused the standard setting process with real flavor and richness in what would otherwise be a somewhat drab exercise. Despite our colorful and deeply rooted diversity within the indigenous world, a number o f universal themes have emerged, some based upon our shared experience o f colonialism but moreover based upon long-standing indigenous values, rules or methods o f social control. Many o f the universal aspects o f indigenous law reflect the relationships between individuals, kinship  23  V. Deloria and C. Lytle, American  Indians, American Justice  17  (Austin: Univ of Texas Press, 1983) at 1.  and collective relationships, as well as responsibilities toward others and all living things.  24  Such worldviews are preserved and promoted through indigenous languages  and our spiritual customs and practices, legends and stories.  25  In other settings, they are  often simply referred to as "values" such as respect, cooperation, consensus decisionmaking, sharing and the importance o f family, kinship and future generations.  97  Though I discuss the work o f indigenous peoples at the United Nations with terms such as the "indigenous peoples' position," I do not mean to create a pan-indigenous world o f homogeneity nor peaceful relations amongst all concerned. In contrast to the stereotypical ideal o f the peaceful and harmonious Native peoples, we are not all one big happy family. O n the contrary, the gradual politicization o f the so-called "Indigenous Caucus" has spawned a wide-range o f opposing indigenous viewpoints. Heated differences have emerged over strategy, tactics, interpretation, dialogue with states or no dialogue with states, negotiation o f the text or no negotiation o f the text, no changes, amendments and deletions to the original Sub-Commission text or  There are far too many volumes by indigenous peoples and others to list here, which describe the social, cultural and spiritual relationships between indigenous peoples and "all living things." However, see generally Our Land is Our Life: Land Rights—Past, Present and Future, G. Yunupingu, ed., (St. Lucia: University of Queensland Press, 1997); T. Berger, Village Journey: The Report of the Alaska Native Review Commission, supra note 7; and Will the Time Ever Come: A Tlingit Source Book, A. Hope & T. Thornton, eds., (Fairbanks: University of Alaska Press, 2000). J.S. Henderson, "Micmaw Tenure in Atlantic Canada," 18 Dalhousie L. J. 2 (1995) at 196, where he uses the term "langscape" to describe an "Aboriginal vision of land." For example, see R.A. Williams, "Linking Arms Together: Multicultural Constitutionalism in a North American Indigenous Vision of Law and Peace," 82 California Law Review (1994) at 996. This article discusses the need to "listen to each other's stories" and the importance of "traditions and language," which "defined the political and cultural aspects of Iroquois life: familial, societal, and constitutional." For example, the Inupiat of the north and northwest coast of Alaska have interpreted a number of concepts crucial to collective relations within Inuit communities: Qiksiksrautiqagniq (respect) for elders, others, and nature; Ilagiigniq (family kinship and roles); Signatainniq (sharing); Inupiuraallaniq (knowledge of language); Paammaagiinniq (cooperation); Piqpakkutiqagniq (love and respect for one another); Quvianguniq (humor); Anuniagniq (hunting traditions); Naglikkutiqagniq (compassion); Qinuinniq (humility); Paaqtaktautainniq (avoidance of conflict); and Ukpiqqutiqagniq (spirituality). 24  25  26  27  18  willingness to review and consider state proposed changes, amendments or deletions to the draft text, and so on. Despite the reality o f differences and diversity, the objective o f a strong Declaration remains unanimous amongst the "Indigenous Caucus." A t the moment, there appear to be some indigenous peoples who hold the view that i f we insist upon no changes to the text, governments w i l l end their work at the Commission level and the 1994 Sub-Commission text w i l l somehow remain unscathed yet still be regarded as the Universal Declaration on the Rights of Indigenous Peoples. Another group o f indigenous peoples have espoused a program for "ethical engagement"  28  to review proposed state changes, and thereby maintain the right to  denounce the text i f we are ultimately not satisfied with the result. Another group o f indigenous peoples, nations and organizations are prepared to "negotiate" with states under a set o f indigenous advanced "terms o f reference to develop the strongest text possible within the United Nations.  A n d , yet another approach has emerged: to  establish an indigenous advisory group to provide technical and legal assistance to indigenous peoples in their article-by-article consideration o f state proposed changes.  30  The diversity o f indigenous peoples and views, as well as the diversity o f individual personalities, ideologies and politics has been compounded by the recent hyper-politicization o f the Indigenous Caucus, making this work the most painful work that I've been engaged in. Increasingly, these sessions are far removed from indigenous processes and values, which normally operate consistently with principles such as  28 29  Memorandum by the Indian Law Resource Center, 1998, http://www.indianlaw.org. Statement by Inuit Circumpolar Conference, 2002 Session of the CHRWG. Onfilewith author.  19  respect, consensus, and honorable relations. Nevertheless, they are our sessions and our ways and means o f gathering and uniting to influence the one document that we believe to be a culmination o f universal minimum standards to protect and preserve our distinct peoples, nations and communities. 3) Universality o f International L a w Again, throughout my research and discussion with John Borrows, an early Committee member, I came upon the perplexing concept o f "universalism" when I thought the matter was pretty straightforward. Here's my understanding o f the "universal" nature o f international law. Amongst members o f the international legal academy at least, there is general consensus that international law is universal. I understand this to mean that international law is a body o f law that applies to all peoples regardless o f race, culture, values, beliefs, religion, or political institutions. I do not mean the universalization or globalization of the extreme positivist interpretation o f international law nor do I support the notion that 31  international law is confined to states and state actors.  It may be that, the emergence o f  international law in the nineteenth century as a body o f law confined to relations amongst and between states is the prevailing view. However, more recently, in the area o f international human rights law and in particular, questions relating to the right o f self-  Memorandum by Maori lawyer, Tony Sinclair, outlining the proposed advisory body was circulated at the 7 session of the Commission on Human Rights working group on the draft Declaration. Onfilewith author. To be discussed below. Though international law generally has been confined to a system for the regulation of affairs between states, by virtue of the fact that individuals and peoples collectively were involved, international law has always been infused with political and human ideals. J  lh  31  20  determination, it is "peoples" that are o f concern and not merely "states."  It is in this  context that I assert that international law does not include the perspectives o f indigenous peoples and therefore, at present, it is not universal. The ongoing reality o f colonization and the "Age o f Empire,"  has limited the universal reach o f international law, and it is  such attitudes that continue to shape and inform the current positions o f state actors involved in the draft Declaration process. It is the exclusion o f indigenous perspectives, the denial of rights and the persistent attitudes o f colonialism exposed by the ongoing debates taking place within the United Nations Commission on Human Rights working group on the draft Declaration (hereinafter C H R W G ) that compels me to write this thesis and to focus upon the contribution of indigenous peoples to this work. The persistent colonial attitudes o f states has been revealed and demonstrated through their attempts to maintain an old world view o f international law, even within the human rights processes o f the United Nations. Such actions have led states away from their obligation to genuinely fulfill the objective o f contributing to the progressive evolution o f human rights standards to favor the maintenance o f the status quo. This thesis intends to advance from this point - to use the present debate o f the C H R W G as a point o f departure. This thesis aims to contribute to the realization of the "universality" of international law: a body o f law that w i l l , through word and deed, be universal by including indigenous peoples' worldviews and perspectives.  J. Crawford, "The Right of Self-Determination in International Law: Its Future and Development," in P. Alston, ed., Peoples' Rights (Oxford: Oxford University Press, 2001) at 64. See E. Hobsbawm, The Age of Empire: 1875-1914 (1987) at 8. This historian asserts that imperial expansion for economic and political expansion was the primary force behind the universalization of international law. 32  33  21  Again, I use the term universal in the sense that international law must be common to all yet still adaptable to particular and distinct cultural contexts and differences.  In this way, international law should not be hierarchal but rather applicable  to all peoples. Though state government representatives presently do not use the same vocabulary o f earlier times (i.e. savages, barbarism, civilized and uncivilized), the fact remains that there is a "cultural bias in international law" and the true diversity o f humankind is therefore not reflected in international law. Given this absence or exclusion of indigenous legal perspectives, the L a w o f Nations is presently not universal. 4) Dominant legal theories and the need for an indigenous perspective If one undertakes even a cursory review of the application o f international law to indigenous peoples, it is clear that the dominant legal theories and doctrines developed by non-indigenous actors have often resulted in the demise and continuing deterioration of indigenous societies.  34  The evolution and development o f legal doctrines and legal  thinking by members o f the dominant society have shown little capacity to respond to 35  the rights, status and aspirations o f indigenous peoples.  The basic assumptions o f  superiority and other colonial attitudes upon which international law is built, heavily  See generally Indigenous Peoples: A Global Quest for Justice, A Report for the Independent Commission on International Humanitarian Issues, (Zed Books, Ltd., London, 1987) at 14. See R.A. Williams, American Indians in Western Legal Thought, supra note 11, which discusses the western legal school of thought and its interpretation of indigenous rights. The United Nations working definition of "indigenous peoples" can be found in the final report of the Jose Martinez Cobo, Special Rapporteur, Study on the Problem of Discrimination against Indigenous Populations, U.N. Doc. E/CN.4/Sub.2/1986/7/Add.4 at para. 379. Cobo was the Special Rapporteur for the UN Sub-Commission on the Prevention of Discrimination and Protection of Minorities. His comprehensive and voluminous study reviews the status and conditions of indigenous peoples worldwide, and further provides conclusions and recommendations for concrete responses to such conditions by the United Nations. (Hereinafter Martinez Cobo Study). The definition and term will be discussed further in Chapters IV and V. 34  35  36  22  contributed to the devaluation o f the fundamental rights o f indigenous peoples. Furthermore, the narrow interpretation o f international law by national governments and domestic courts and the often-discriminatory nature o f internal laws and policies have contributed to the intolerable conditions that many indigenous communities continue to face.  38  Due to this reality, indigenous peoples have persistently sought international recognition or acceptance o f their unique place in world society.  With the  formalization of a new "family o f nations" through the establishment of the League o f Nations, Deskaheh, a Chief o f the Iroquois Confederacy, visited Geneva, Switzerland i n 1922 to seek out justice and to bring forward the views o f his nation concerning future relations between his peoples and the newcomers.  40  Though Deskaheh did not gain access to the League o f Nations as a representative of a sovereign Indian people, his journey has had a lasting impact. Indigenous peoples  There is a wide range of volumes addressing the abuses and violations of indigenous human rights, too numerous to list here. However, see generally R. Wright, Stolen Continents: The Americas Through Indian Eyes Since 1492 (1992); The State of Native America: Genocide, Colonization, and Resistance (M. Annette Jaimes, ed., 1992); War in the Tribal Zone: Expanding States and Indigenous Warfare (R. Brian Ferguson and Neil L. Whitehead, eds., 1992); T.R. Berger, A Long and Terrible Shadow: White Values, Native Rights in the Americas, 1492-1992 (1991); The Indigenous Voice (J. Moody, ed., 1988); J. Burger, Report From the Frontier: The State of the World's Indigenous Peoples (1987); J.H. Bodley, Victims of  37  Progress (3d ed. 1990).  Such intolerable conditions have been surveyed in texts such J. Burger, Ibid, at 17-30, which includes statistics on employment, health, education, and further discusses discrimination and marginalization. See D. Sanders, "The Legacy of Deskaheh: Indigenous Peoples as International Actors" in C. Price Cohen, ed., Human Rights of Indigenous Peoples, ed. (N.Y.: Transnational Publishers, 1998) at 73, which briefly describes resistance to "domestic law" status and early efforts for international redress. Though the Iroquois Confederacy engaged in international relations with Great Britain, France, and other indigenous nations, it was not until the creation of the League of Nations that they attempted to gain access to a formal international organization to resolve a conflict. See generally Akwesasne Mohawk Counselor Organization, Deskaheh: Iroquois Statesman and Patriot (1984); and also D. Sanders, "Remembering Deskaheh: Indigenous Peoples and International Law" in I. Cotler& F.P. Eliadis, (eds.), International Human Rights Law [:] Theory and Practice (Montreal: Canadian Human Rights Foundation, 1992) at 485. 38  39  4 0  23  have continued to embark on similar journeys as that o f Deskaheh,  compelled by many  of the same problems: persistent abrogation and non-fulfillment o f treaties; nonrecognition o f the distinct status o f indigenous peoples; and lack o f respect for their fundamental rights and values.  42  In dramatic contrast to the early blatant acts o f genocide perpetrated against indigenous peoples and later imposition o f "domestic law" status over indigenous peoples, generally speaking, some advances have taken place on domestic fronts.  In  addition, international action was prompted due to severe violations o f indigenous human rights i n Latin America  4 3  However, conflicts such as the Chiapas uprising and other  armed skirmishes continue. In the course o f the last forty years or so, indigenous peoples have had greater ability to organize themselves to improve their conditions and to increase recognition o f their rights through law and policy, litigation, national dialogue and enhanced leadership opportunities. Examples o f national laws and policies, which protect and promote indigenous self-government, land rights and other rights can be cited. Yet full accommodation o f indigenous rights remains elusive. Domestically, remnants o f the same colonial approaches have been applied with nuance and subtlety and, therefore,  For example, the International Non-Governmental Organization Committee on Human Rights had been holding a series of meetings on human rights issues that they deemed relevant. In 1977, the Committee chose to focus on indigenous peoples and racism in the Americas. In collaboration with a number of indigenous organizations, they convened the International Non-Governmental Organization Conference on Discrimination Against Indigenous Populations in the Americas, held in September 1977 at the Palais des Nations, in Geneva, Switzerland. For a discussion of the early efforts of indigenous peoples within the United Nations system see R.T. Coulter, "Les Indiens Sur la Scene Internationale, Les Premiers Contacts Avec VOrganisation des Nations Unies," in Destins Croises 333 (UNESCO, 1992). For a full discussion of the effects of colonialism see R.A. Williams, American Indians in Western Legal Thought, supra note 11, which discusses the history of colonialism and racism towards indigenous peoples and its persistence in modem international law and domestic law. See Foreword to Indigenous World, Vol. 3/98. 41  42  43  24  have become difficult to specify or identify. Despite encouraging advances domestically, indigenous peoples have renewed their efforts to secure their place within the international community. Indigenous peoples and others  44  have been working at the  international level to shift the assumptions away from Eurocentric or dominant thinking 45  and definitions and move them closer to the realities o f the indigenous world. Indigenous peoples are struggling to achieve cross-cultural understanding and respect. In this way, we are seeing an important synergy develop between domestic arenas and international politics, which may ultimately ensure indigenous peoples their rightful place within the international community and create new tools to reconstruct or reshape their political and legal relationships with nation-states and others. In large part because of this synergy and the linkage between the domestic and international arenas, more recently, the international community's response to indigenous peoples and their interpretation o f human rights has become more promising than past experience.  46  We are now witnessing the construction o f a new phase o f norms and  mechanisms through the "international hearing" of indigenous voices, languages, and  For example, the International Work Group for Indigenous Affairs (IWGIA), which "is an independent, international organization which supports indigenous peoples in their struggle against oppression." IWGIA provides financial support to indigenous representatives through their Human Rights Fund, and they publish extensive and comprehensive documents covering indigenous issues in both English and Spanish. In addition to IWGIA, there are numerous other non-governmental organizations, churches, academics, publicists, human rights advocates, foundations, and individuals assisting in the efforts at the United Nations and other international venues. R. Gordon, "Saving Failed States: Sometimes a Neocolonialist Notion," 2 Am U. J. Int'l. L. & Pol'y 903 (1997) at 935-937. Gordon describes the notion that only European states were fully sovereign, and thus, non-European states did not have the standing to challenge Europeans through international law. Hence, the problem of Euro centrism also had an impact on Marxist thinking or nationalist nation building, Hinducentric or Javanese-centric views as well. For a review of indigenous rights at the international level, see S.J. Anaya, Indigenous Peoples in International Law (Oxford/New York: Oxford University Press, 1996); R.L. Barsh, "Indigenous Peoples: An Emerging Object of International Law, 80 Am. J. Int'l L. 369 (1986); V. Muntarbhorn, "Realizing Indigenous Social Rights, 2 Without Prejudice 7 (1989); H. Hannum, "New Developments in Indigenous 44  45  46  25  worldviews,  which explicitly and distinctly recognize and protect the rights and status  of indigenous peoples. This, in turn, is opening up more effective domestic and '  *  international recourse for the violations o f our fundamental human rights  48  *  and ultimately  expanding the range o f international human rights law. In many respects, the world community is witnessing dramatic changes in the nature o f political and economic relationships between states, as well as changes in the international legal order due to the emergence o f new states.  49  In addition to the changes  brought about by the expansion o f capitalism, such changes are also the result o f the international community's realization o f the need to accommodate and recognize the manifestation o f diverse interpretations o f human rights. To be sure, there remains a reticence on the part o f states to embrace minorities and indigenous peoples. A n d , many indigenous peoples remain concerned about the role and power o f the dominant society even within this sphere. Yet, Mary-Ellen Turpel's assertion about the "interpretive monopoly" o f the dominant society is one o f the compelling reasons for indigenous peoples to dismantle or deconstruct that monopoly i n order to ensure that "cultural difference" is recognized rather than repressed.  50  Hence,  Rights," 28 Va. J. Int'l L. 649 (1988); and D. Sanders, "The Re-Emergence of Indigenous Questions in International Law," 3 Can. Hum. Rts. Yrbk (1983). See generally S. Weissner, "Rights and Status of Indigenous Peoples: A Global Comparative and International Legal Analysis," 12 Harv. H.Rts. J. 57 (1999). As will be discussed below, there is a growing movement of international action amongst indigenous peoples, nations and communities, as well as a growing number of indigenous peoples organizing and pursuing international agendas to safeguard their rights and interests, ranging from the Inuit Circumpolar Conference to the Ainu Association of Hokkaido to the Aboriginal peoples of Australia. See generally H. Hannum, Autonomy, Sovereignty, and Self-Determination: The Accommodation of Conflicting Rights, (Philadelphia: University of Pennsylvania Press, 1990) Chapters 5, 10 and 12; T.M. Frank, "Legitimacy in the International System," 82 Am J Int'l L (1988) at 705; and C. Tomuschat, ed. Modern Law of Self-Determination (Dordrecht, Boston: M. Nijhoff, 1993). Turpel, "Aboriginal Peoples and the Canadian Charter," supra note 2.  4 7  48  4 9  50  26  "[t]he diversity of the people o f the earth" is finally gaining some acceptance or currency within the international community.  51  Throughout the course o f the indigenous human rights standard setting process at the United Nations, indigenous peoples have been consciously and unconsciously contributing to the development o f "indigenous legal theory" and legal perspectives. Legal theory in this context can be described as a distinct legal school o f thought, "distinct worldviews," philosophy or ideology. We are effectively introducing, to the 52  international community, our conceptions of law or a legal school o f thought by expressing and further defining our values, customs and practices.  There are a growing  number o f fundamental indigenous "values" or concepts being addressed and discussed in a universal fashion. Regardless o f whether the terms "Indigenous Legal Theory" or indigenous legal perspectives are used formally, indigenous peoples have always had their own legal theory. The pre-existing methods o f social control and relations within and between indigenous communities, as well as their organized societies, are evidence o f procedures and institutions for collective decision-making. These organized societies were not chaotic and arbitrary (which would be a contradiction o f terms). It is clear that indigenous societies were highly organized, with established customs, practices and  Battiste and Henderson, supra note 1. J.S. Henderson, "Micmaw Tenure in Atlantic Canada," supra note 25, at 198, wherein the author addresses "different legal consciousnesses" and the "distinct worldviews and linguistic traditions" of the Micmaw. These expressions range from descriptions of indigenous measures for social control and relations to selfgovernment and long-standing indigenous values, such as respect, cooperation, consensus decision-making, sharing, and the importance of family, kinship and future generations. 51  52  53  27  institutions, which have been recognized by judicial institutions and others.  Most, if not  all, indigenous communities have demonstrated that they are organized societies, with a legal foundation, whether written or unwritten, which range from extremely intricate methods of government and control to simple but useful rules regarding interaction and inter-relations. It defies logic to come to an opposite conclusion. Without such organization, collective decision-making and measures for social control would not have been possible. In fact, the denial of social control and legal order by non-indigenous peoples contributed to the stereotyping and mythology. Such stereotyping and the "mythology of conquest," propped up law and legal pedagogy and repeatedly distorted and 55  misrepresented indigenous peoples. Thereby allowing the dominant society to legitimize their "systems of control" and justify colonial conquest by believing that "an indigenous legal order did not have to be respected i f it was deemed not to exist."  56  For example,  European concepts of property were linked to race and notions of civilized versus "uncivilized," thereby, justifying conquest by identifying indigenous peoples as savages and barbarians, and therefore, different or backwards, and "inferior" in rights.  Recent examples of judicial recognition of indigenous perspectives include the Delgamukw v. British decision by the Supreme Court of Canada, [1997] 3 S.C.R. 1010, 153 D.L.R. (4 ) 193, [1998] 1 C.N.L.R. 14, 37 I.L.M. 268 [hereinafter Delgamukw], where the court ruled that Aboriginal peoples' oral histories should be placed "on an equal footing" with other forms of historical evidence, and that the "collective right to land" attaches to "all members of an aboriginal nation." In regard to recognition of the usefulness of indigenous perspectives in other areas, "Wellness" and "Drug" courts being used in Canada and the United States are growing in popularity in addition to "Circle Sentencing." See generally J. Carrillo, "Disabling Certitudes: an Introduction to the Role of Mythologies of Conquest in Law," 12 U. Fla. J. L. & Pub. Pol'y 13 (2000). S. Weissner, "Rights and Status of Indigenous Peoples: A Global Comparative and International Legal Analysis," supra note 47 at 72, who writes, in the context of Australian Aboriginal peoples: "Since indigenous inhabitants of a settled colony had no recognized sovereign, they were considered to be without laws, and the English common law was imposed. The occupier's law did not recognize the aboriginal inhabitants' proprietary interest in land." 54  th  Columbia  55  56  28  Some may argue that it is inappropriate to label the thinking or the worldviews o f indigenous peoples a "legal theory." Indeed, it has often been difficult to illustrate or fully articulate the cultural differences and perspectives o f indigenous peoples. Again, I do not intend to lump indigenous peoples together or to present a monolithic, single, identifiable "indigenous world view." However, this thesis contends that i f indigenous peoples themselves do not actively affirm their pre-existing values, perspectives, laws and legal orders, in the context o f the draft Declaration, then the doctrines and legal theories o f the dominant society w i l l overwhelm the text and result in undesirable assimilationist language,  57  stifling opportunities for and aspirations o f indigenous peoples  to fully achieve a truly multi-national "post-colonial" state. C ) Structure O f Dissertation This dissertation intends to illustrate the emergence, as well as the importance and legitimacy o f indigenous legal perspectives within international human rights law. Chapter II w i l l introduce the growing international trend to include Indigenous Peoples in various international processes. Chapter III w i l l address the international human rights framework and in particular, the status and rights o f indigenous peoples within the United Nations human rights standard setting process and the necessity to accommodate indigenous legal  In regard to the assimilationist policies in the Indigenous and Tribal Populations Convention, 1957 (No. 107), see "Extracts from the Report of the Meeting of Experts on the Revision of the Indigenous and Tribal Populations Convention, 1957 (No. 107)" (Geneva, 1-10 September 1986), in International Labour Office, Partial revision of the Indigenous and Tribal Populations Convention, 1957 (No. 107), Report VI (1), Geneva, 1987, Annex, para. 46: "... the integrationist language of Convention No. 107 is outdated, and that the application of this principle is destructive in the modern world. ... [Integration] had become a destructive concept, in part at least because of the way it was understood by governments." 57  29  perspectives and indigenous peoples status and rights within the draft Declaration.  It is  safe to say, that this work is at the heart o f the international indigenous movement o f resistance to assimilation, to engage in dialogue and to gain respect for and recognition o f their distinct rights. In this context, Chapter I V o f this thesis w i l l focus upon and highlight the significant advances made, and the contentious issues that have arisen, due to the dynamic of direct participation o f indigenous peoples, nations, and organizations. The United Nations arena has allowed for the free expression o f indigenous world perspectives, and specifically our conception o f our place in both the political and legal realms o f society.  59  This international stage allows one to spotlight indigenous legal  perspectives within the scope o f normative development o f human rights. This forum also offers some useful benchmarks concerning the transformation or incremental change in the dynamics o f relationships between indigenous peoples and states, as well as the return o f Indigenous Peoples to the international stage.  60  Chapter V w i l l survey the right o f indigenous peoples to self-determination and the ongoing challenges facing indigenous peoples and w i l l focus upon those states that have been most resistant to recognizing and advancing indigenous perspectives o f international law and international human rights standards. The Chapter w i l l close with the argument that the world community, and in particular the United Nations, must fully  As agreed upon by the members of the United Nations Working Group on Indigenous Populations at its eleventh session, Geneva, July 1993. Adopted by the U.N. Subcommission on Prevention of Discrimination and Protection of Minorities by its resolution 1994/45, August 26, 1994. U.N. Doc. E/CN.4/1995/2, E/CN.4/Sub.2/1994/56, at 105 (1994). The United Nations process has attracted more indigenous participation than any other arena. However, the International Labor Organization and the Organization of American States also have respectively concluded and initiated indigenous human rights standard-setting activities, to be discussed below. Anaya, Indigenous Peoples in International Law, supra note 46 at 45, discusses the contemporary international movement to accommodate indigenous peoples' rights within a human rights framework. 58  59  60  30  embrace and include indigenous legal perspectives in order to uphold their own principles, obligations and values. This chapter w i l l advance the argument that even the western construction o f human rights law is intended to apply to all peoples, on the basis of equality, non-discrimination and consistent with the absolute prohibition against racial discrimination. Finally, Chapter V I w i l l offer a brief discussion o f the denial o f the right to selfdetermination in the context o f my own peoples in Alaska. In addition, the conclusion w i l l succinctly address how the emerging international indigenous human rights standards can contribute to genuine change within indigenous communities and in the reshaping o f political and legal relationships with local and national governments. It is important to underscore, at the outset, that a full transformation has not taken place — indigenous peoples continue to have difficulty in gaining recognition o f and respect for our distinct rights, both nationally and internationally. The national governments that have subsumed indigenous peoples have repeatedly violated our fundamental human rights  61  and maintain traces o f the same colonial attitudes o f their  predecessors. These same states are the controlling actors of the United Nations, an 62  international organization that maintains a constant political charge.  We must all be  cognizant o f this fact. The most active states continue to make proposals that would significantly dilute the emerging international standards and they are often unwilling to Examples include the Government of Brazil, which has violated the rights of the Yanomami peoples while continuing their active participation in the work of the U.N. Working Group on Indigenous Peoples, the Sub-Commission, and the Commission on Human Rights. The composition of the United Nations Commission on Human Rights is limited to member nations of the U.N. Not only the 53-member states of the Commission have been actively involved in the indigenous human rights standard setting work to date but it also includes those nation states that have direct interests by virtue of the high number of indigenous peoples living within their borders. 61  62  31  engage in a substantive dialogue at home.  In many areas, Nation-state reluctance or  reticence has remained. However, there are some exceptions. For example, several Latin American states, over the course o f their involvement have come to understand indigenous peoples' perspectives and modified their positions. Furthermore, the international debates have prompted domestic and regional change and illustrate a greater willingness for open dialogue in both arenas. A t all levels, indigenous peoples have taken the lead and are making increased efforts to achieve the goal of a strong Declaration.  64  Largely, and with the help o f the  United Nations agencies and organs, states are being propelled toward this goal. I f indigenous peoples can generate real dialogue and enhance understanding about their rights, status and values, they w i l l gain greater respect for and recognition o f indigenous rights as human rights.  65  The ultimate goal for indigenous peoples is survival as distinct peoples and communities. Indigenous peoples have made a conscious decision to resist assimilation. We have not chosen to succumb to, or fit into, the legal order and worldview o f the  The United States government has been the most draconian in this regard. While proposing the most regressive positions internationally, they have all but avoided any substantive consultations with Indian tribes and tribal leaders domestically. R.A. Williams, "Encounters on the Frontiers of International Human Rights Law: Redefining the Terms of Indigenous Peoples' Survival in the World," 660 Duke L. J. (1990) at 676. In relation to indigenous rights as human rights, see J.Y. Henderson, M.L. Benson & I.M. Findlay, Aboriginal Tenure in the Constitution of Canada (Toronto: Carswell, 2000) at 447; P. Joffe, "Assessing the Delgamuukw Principles: National Implications and Potential Effects in Quebec, 45 McGill L.J. 155 (2000) at pp. 182-188; A. Buchanan, "The Role of Collective Rights in the Theory of Indigenous Peoples' Rights," 3 Transnat'l L. & Contemp. Probs. 89 (1993) at 108; I. Cotler, "Human Rights Advocacy and the NGO Agenda" in I. Cotler & F.P. Eliadis, eds., International Human Rights Law: Theory and Practice (Montreal: Canadian Human Rights Foundation, 1992) at 66. See generally CP. Cohen, ed., Human Rights of Indigenous Peoples (Ardsley, N.Y.: Transnational Publishers, 1998); and S. Pritchard, ed., Indigenous Peoples, the United Nations and Human Rights (London: Zed Books and Sydney: The Federation Press, 1998). 63  64  65  32  dominant society.  In recent years, it has become increasingly apparent to nation-states  that the human rights framework does have the capacity to accommodate indigenous peoples rights as human rights.  67  Once states come to better understand the meaning and  effect of our distinct human rights, they may be more likely to conclude that they can, and indeed have an obligation to, support such norms. More importantly, states should recognize that they have international legal and moral obligations to respect, recognize and uphold the human rights o f indigenous peoples. At a minimum, the international community must broaden the scope o f existing western constructs o f international human rights law to ensure our distinct cultural context. In the end, the real measure w i l l be the extent to which states and others domestically recognize and apply such standards in very real and specific ways. The measure cannot merely be abstract or politically charged discussions that take place in Geneva, far away from indigenous homelands and communities. Despite the fact that the draft Declaration took over a decade to gain widespread support amongst indigenous peoples,  68  it is safe to say that the document has the  universal support o f the international indigenous community. The document holds  J. Carrillo, "Disabling Certitudes," supra note 55, where she also states "Yet, whether they are credited or not, indigenous peoples have always insisted upon their right to survive as peoples, as well as upon their right to resist or to participate in the imagining of the nation that now surrounds them." For example, the governments of Mexico, Guatemala, Denmark, Norway, Finland and others have all made constructive contributions to the dialogue and believe that by accommodating indigenous peoples' rights within the human rights framework will assist in the overall enjoyment of such rights and will greatly improve domestic relations as well. Upon the completion of drafting of the Declaration by the WGIP, a number of indigenous organizations were concerned about the text and the fact that it was being rushed through the process. Concern was largely focused upon the issue of self-determination because of the last minute addition of Article 31 concerning self-government and autonomy. Indigenous representatives thought that the intent was to confine self-determination to the operative forms of self-government elaborated upon throughout Articles 31 and the remainder of Part VII of the text. And, all of this came during the penultimate drafting session 67  68  33  commonly shared concepts reflecting views from all parts o f the world. The methodology used to create the declaration has made it a common declaration.  69  A s such,  this universal instrument w i l l help to inform all other instruments, existing and emerging documents or those yet to come. It should be noted, that we are not really introducing anything new or different. For example, the exercise o f the right to self-determination by  70 peoples is one o f the oldest concepts in modern international law.  Through the  declaration, we are introducing an indigenous cultural context to the right o f selfdetermination. Similar to regional instruments and organizations such as the Arctic Council  71  and the Inuit Circumpolar Conference , which are expressions o f unique 72  regional conditions, so to the draft Declaration is an expression o f an appropriate cultural context for the exercise and enjoyment o f collective and individual human rights o f indigenous peoples.  73 Finally, all cultures contribute to the common heritage o f humankind. Therefore, the answer to Mary Ellen Turpel's question concerning the reconciliation o f of the WGIP, the year before transmitted the must draft Declaration to its parent body. Hence, thewould concern cultural differences in theitlegal domain be yes. To conclude the opposite over rushing the text and the meaning of Article 31 vis-a-vis Article 3. The Indigenous Peoples' Caucus, numerous indigenous Non-Governmental Organizations, indigenous community and regional organization representatives have repeatedly stated that they regard the draft Declaration as a statement of the minimum standards necessary to safeguard the status and rights of indigenous peoples worldwide. For example, dating back to September 1984, the World Council of Indigenous Peoples in Panama declared: "These principles constitute the minimum standards which States shall respect and implement." More recently, at the 1995 session of the Commission working group, the Inuit Circumpolar Conference stated: "It is essential that this working group consider the draft declaration as it reflects minimum standards in order to gain respect for and survival of Indigenous Peoples." S. J. Anaya, "Self-Determination as a Collective Human Right Under Contemporary International Law," in Operationalizing the Right of Indigenous Peoples to Self-Determination, P. Aikio and M. Scheinin, eds., (Abo: Abo Adademi University, 2000) at 3. See Declaration on the Establishment of the Arctic Council, I.L.M., Vol. 35, 1996, pp.1, 387ff. A. Lynge, Inuit, supra note 6, which chronicles the history and establishment of the ICC.  6 9  70  71  72  34  suggest cultural superiority or imperialism o f one culture over another, which is inconsistent with established principles and peremptory norms  o f international law. For 76  states to avoid violation o f their own norms and to avoid denial o f their own obligations they must, first and foremost, recognize the legal, political and historical reality o f indigenous peoples. This reality includes indigenous legal perspectives, which are manifested on an ongoing basis in their relationships with others, as well as in their values, perspectives, customs, practices, and laws. Once recognized, I believe, we w i l l have begun the path toward reconciliation o f cultural differences in the legal domain and elsewhere. Through greater recognition and sensitivity we could avoid discrimination and double standards, such as the denial o f recognition o f traditionally oral cultures and their governments, where no written "constitution" exists, in the same way that we accord such recognition to unwritten laws and policies o f non-indigenous peoples. A s Robert A . Williams writes in the context o f achieving peace with others, "literally, we must enter  In regard to the notions of cultures as the common heritage of humankind, see Declaration of Principles of International Cultural Cooperation, proclaimed by the General Conference of the United Nations Educational, Scientific and Cultural Organization, fourteenth session, 4 November 1966, Art. 1, para. 3. L. Henkin, "Rhetoric and Reality," in Human Rights, L. Henkin, G. Neuman, D. Orentlicher, D. Leebron, eds., (New York: Foundation Press, 1999) at 1214, where he discusses "cultural relativism" and "cultural imperialism." In particular, the right of peoples to self-determination, the prohibition of racial discrimination and prohibitions against genocide, torture, slavery, and trading in human beings are all considered by numerous international authorities to be jus cogens or peremptory norms. Jus cogens is defined as a body of norms or standards "accepted and recognized by the international community of States as a whole ...fromwhich no derogation is permitted and which can be modified only by subsequent norm[s] of general international law having the same character." [ See Vienna Convention on the Law of Treaties, art. 53.] To be discussed below. This is especially true for those states that have agreed to the terms of the United Nations Charter and other United Nations instruments agreeing to uphold their own norms and principles of equality, nondiscrimination and the prohibition of racial discrimination. 74  75  76  35  into their designs, and make our own thoughts known to them."  Ultimately, this is what  indigenous peoples have been doing throughout the last 20 years o f the United Nations standard setting work.  R.A. Williams, "Linking Arms Together: Multicultural Constitutionalism in a North American Indigenous Vision of Law and Peace," supra note 26 at 1040.  36  C H A P T E R II  INTERNATIONAL  PROCESSES  TOWARDS INCLUSION  OF  INDIGENOUS  PEOPLES  A ) T h e United Nations W o r k i n g G r o u p on Indigenous Populations and the draft Declaration  The preceding chapter briefly discussed how international law has subsumed indigenous peoples through its narrow, state-centered framework. Though international organs began to focus upon the suffering o f indigenous peoples and responsive initiatives began surfacing in the 1920's and 1930's, attitudes of superiority remained. This fact is evidenced by the early inter-governmental institutional attention given primarily due to the widespread poverty and other socio-economic indicators concerning the status and conditions of indigenous peoples by the International Labor Organization American Indian Institute  o f the Organization o f American States.  and the Inter-  Despite what may  have been good intentions, both o f these entities have been characterized as undertaking  See S. Venne, Our Elders Understand Our Rights: Evolving International Law Regarding Indigenous (Penticton, BC: Theytus Books Ltd., 1998) at 32-34, which provides a succinct history of the International Labor Organization's "Action on Indigenous Peoples," and comments upon conclusions of a 1930 ILO study by stating: "The ILO expressed the view that the 'ultimate aim of transforming the presently existing primitive society into a producer and consumer society like that of the white man presupposed the introduction in the colonies of the white man's methods and means of labour.' The ILO was supporting the model of colonization. Indigenous Peoples could not be allowed to exist in their territories. The intent was to change Indigenous Peoples and their rights rather than respecting their rights." In addition, see H. Hannum, "New Developments in Indigenous Rights," 28 Va. J. Int'l L. 649 (1988) at 657-58, which briefly addresses the early history of the ILO and its activities concerning indigenous peoples. Convention Providing for the Creation of an Inter-American Indian Institute, Nov. 1, 1940, T.S. No. 978, 3 Bevans 661. See Anaya, Indigenous Peoples in International Law, supra note 46 at 45-47, describes "The Contemporary Indigenous Rights Movement" by recounting the early history of the International Labor Organization and the Organization of American States. Rights  79  80  37  extreme integrationist and assimilationist policies towards indigenous peoples.  The  supposed aim being to safeguard indigenous individuals while bringing them into mainstream society. Even on the domestic front o f the United States, this period has been referred to as a period o f "allotment and assimilation." Prompted by a number of factors,  83  82  dynamics began to slowly transform such  policies away from assimilation and integration o f indigenous "objects" toward indigenous peoples becoming "subjects" i n the dialogue concerning their status and conditions, and eventually bringing into focus the concept o f fundamental human rights.  84  See S. Venne, "The New Language of Assimilation: A Brief Analysis of ILO Convention 169" in International Review of Racial Discrimination, Vol II, No. 2 (1989) at •53. In this context, the term "allotment" means to distribute or apportion land, by lot, to individuals. The United States General Allotment Act of February 8, 1887, 24 Stat. 388 and commonly referred to as "the Dawes Act.", transferred title of lands to Indian "heads of household" in direct contradiction to the communal or collective land tenure systems of indigenous peoples in North America. Some of these lands were held in trust until the rightful owners were deemed "competent" to hold them without restrictions. In many cases, "trust" land was leased to developers, and those lands held by Indian families were subject to pressures from settlers seeking to obtain or expand their farms. This act resulted in the loss of Indian ancestral lands and territories andfragmentationof tribal collectivities. See V. Deloria and CM. Lytle, American Indians, American Justice, supra note 23 at 9, in describing the Allotment and Assimilation period of U.S. policy, the authors write: "It goes without saying that the president generally found it was to the advantage of the Indians to allot their lands. A period of twenty-five years was established during which the Indian owner was expected to learn proper business methods; at the end of this time the land, free of restrictions against sale, was to be delivered to the allotee. With afreeand clear title the Indian became a citizen and came under the jurisdiction of the state in which he or she resided. Through this simple formula and rather naive expectation federal officials believed they could solve the problems of the Indians in one generation. Private property, they believed, had mystical magical qualities about it that led people directly to a 'civilized' state." See Editorial page of Indigenous Affairs, Vol. 3/98, which discusses the formation of the International Work Group for Indigenous Affairs as prompted by "the horrifying information" about the "atrocities being carried out against indigenous peoples in Brazil, Colombia, Peru and Venezuela."; Sunday Times, February 23, 1969, published an article written by travel writer Norman Lewis, entitled "Genocide," which documented the violent destruction of Brazil's original inhabitants and is cited as the rallying call to create "an international organization to raise funds and provide pratical support for the Amazon Indians." See also D. Sanders, "Indigenous Peoples and Human Rights," paper presented in Kolata, March, 2002, which states: "The specific impetus for seeking international action on indigenous issues came from concerns with Latin America, concerns focused on the isolated indigenous populations in the Amazonian and forest interior areas, largely in Brazil and Paraguay. Concerns with those peoples led, in the late 1960s, to the formation of the pioneering European-based international support groups - Survival International and the International Work Group for Indigenous Affairs." See Anaya, Indigenous Peoples in International Law, supra note 46 at 61, ff. 41, wherein he describes the growing number of educated Indian leaders of the 1960's, the founding of the National Indian Youth 81  Without Prejudice, The EAFORD  82  83  84  38  This era was followed by the constantly growing movement o f indigenous peoples as direct actors in the human rights discourse o f the United Nations and other international fora. In addition to the changes within the indigenous world and those o f regional and international organizations, during the past three decades, there have been significant advances in international law generally, allowing a shift away from positivist, state dominated dialogue toward a more inclusive framework that is much more responsive to the ideals enshrined in the United Nations Charter.  For indigenous peoples, this shift  has created a space for them to move an agenda o f "promoting and encouraging respect for" their human rights within this formal international organization. This groundswell o f positive progress has had a contagious effect upon other international and regional, intergovernmental institutions, including the International Labor Organization, the World  Council, and the connection between Indian rights and civil rights. Also, the history of the American Indian Movement and the creation of the International Indian Treaty Council are also relevant indications of a growing awareness and empowerment of Indian peoples with regard to their rights and status both domestically and internationally. 85  In particular, the Purposes and Principles embraced by Article 1 of the UN Charter: 1. To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace; 2. To develop friendly relations among nations based on respect for the principle of equal rights and self-determination ofpeoples, and to take other appropriate measures to strengthen universal peace; 3. To achieve international cooperation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights andfor fundamental freedoms for all without distinction as to race, sex, language, or religion; and  4. To be a center for harmonizing the actions of nations in the attainment of these common ends. (Emphasis added).  39  Bank, Commission for Sustainable Development, the Organization o f American States and numerous others. These more recent initiatives have also expanded the indigenous human rights dialogue and discourse originating in the Americas, to Europe, the Arctic, Asia, the Pacific Basin and Africa. This is attested to by the fact that the numbers o f indigenous representatives participating at the United Nations has been steadily growing since the 1970's.  86  In addition to Tribes, First Nations and numerous indigenous  organizations and peoples of Latin America, today, we are seeing the regular participation o f representatives o f the Maori o f N e w Zealand, the Aboriginal and Torres Strait Islanders o f Australia, representatives from the Chittagong H i l l Tracts, the Cordillero Peoples Alliance o f the Philippines, A i n u o f Japan, the Masai o f Kenya, the various Small Nations o f the Russian North, and many others. Though not all indigenous peoples are represented in these dialogues, the fact that every continent and region has at least some representation is quite significant. Such positive developments have been the result o f persistent efforts by indigenous peoples at every stage.  M u c h credit is due to indigenous peoples and their 88  communities and organizations for opening doors that have previously been shut.  At  the same time, it is essential to honor those others, who with conviction and courage have  The 1977 conference held at the Palais des Nations in Geneva, Switzerland around 150 indigenous peoples represented. The most recent session of the WGIP had just over 900 indigenous participants registered. See generally, Anaya, Indigenous Peoples in International Law, supra note 46, under the heading "Contemporary Indigenous Rights Movement" and R.L. Barsh, "Indigenous Peoples: An Emerging Object of International Law," supra note 46 at 369. It is important to note the indigenous leaders who came before us and made direct contributions to the human rights work at the United Nations. Not only Deskaheh and the Maori Chief who visited the League of Nations but also by those who participated in the 1977 Non-Governmental Organization Conference on Racism Against the Indigenous Peoples of the Americas. 87  88  40  helped to push the doors open from the inside and made an important contribution to the much-needed bridge building between indigenous peoples and states.  89  It is also important to note that prior to and throughout the establishment o f the U . N . Working Group on Indigenous Populations, a number o f trans-national indigenous initiatives were simultaneously emerging. In particular, the founding o f the World Council o f Indigenous Peoples ( W C I P ) ,  90  a worldwide indigenous peoples organization,  and the International Indian Treaty Council (IITC)  91  took place. The W C I P subsequently  collapsed in a midst o f political divisions and corruption. However, the IITC continues to play an active role in international developments. A l s o , as mentioned in the introductory chapter, the Inuit o f the circumpolar region organized the Inuit Circumpolar Conference in 1977, a pan-Arctic Inuit organization established to respond to a number of threats to their traditional territory.  92  The I C C has maintained their interest and has played a  consistent role in the standard setting and other relevant international initiatives. These international indigenous organizations subsequently gained United Nations Economic and Social Council Non-Governmental Organization ( N G O ) status. The creation o f these various international indigenous-controlled organizations should be recognized as the  Individuals such as Erica Irene A. Daes and the four other member of the United Nations Working Group on Indigenous Populations, established by United Nations Economic and Social Council (ECOSOC) Resolution 1982/34, May 7, 1981, who provided leadership, advocacy and immeasurable assistance in this effort. D. Sanders, "The Formation of the World Council of Indigenous Peoples," (1977) International Work Group for Indigenous Affairs, Document No. 29, Copenhagen. The following information was downloaded from the http://www.treatycouncil.org: "The IITC was founded in 1974 at a gathering by the American Indian Movement in Standing Rock, South Dakota attended by more than 5000 representatives of 98 Indigenous Nations, which supports grassroots Indigenous struggles through information dissemination, networking, coalition building, technical assistance, organizing and facilitating the effective participation of traditional Peoples in local, regional, national and international fora, events and gatherings. In 1977, the IITC became the first organization of Indigenous Peoples to be reorganized as a Non-Governmental Organization (NGO) with Consultative Status to the United Nations Economic and Social Council." 89  90  91  41  trumpeters for the growing trend toward the internationalization o f indigenous issues. O n 93  numerous domestic fronts, a number o f land claim "settlements" and agreements,  as  well as favorable policy development, litigation and dialogue had also been accomplished by this time. 1. Working Group on Indigenous Populations A t the international level, the more recent history has been challenging yet encouraging. Within the United Nations, which represents the pinnacle o f institutions for the promotion o f human rights, the first substantive foray into indigenous matters was the initiation o f a study on the problem o f discrimination against indigenous populations, in order to identify measures and make recommendations for eliminating such discrimination.  94  This voluminous study is commonly referred to as the Martinez Cobo  report after the Special Rapporteur appointed by the Sub-Commission on the Prevention of Discrimination and Protection o f Minorities.  95  Though the report was not yet  complete, one important decision stemming from this work was the establishment o f the Working Group on Indigenous Populations (hereinafter W G I P ) by the Sub-Commission  96  on the Prevention of Discrimination and Protection o f Minorities. The mandate o f the W G I P was to review the status and conditions o f indigenous peoples worldwide and to "give attention to the evolution o f standards concerning the rights o f indigenous  "INUIT," a publication by the North Slope Borough describing thefirstmeeting of the Inuit Circumpolar Conference, 1977. Onfilewith author. See also A. Lynge, Inuit, supra note 6. For example, the Alaska Native Claims Settlement Act of 1971 and the James Bay and Northern Quebec Agreement of 1975 had both been drafted and adopted. U.N. Economic and Social Council (ECOSOC) Resolution 1589 (L), 21 May 1971, para. 7. See Martinez Cobo Study, supra note 36, and the Sub-Commission Resolution 8 (XXIV) of August 18, 1971. ECOSOC Resolution 1982/34, May 7, 1982.  92  93  94 95  96  42  populations, taking account o f both the similarities and differences in the situations and aspirations o f indigenous populations throughout the world." The W G I P is a panel o f five independent human experts appointed from its parent body, the Sub-Commission. The members are to serve in their individual capacity and are not to hold any allegiance toward any nation-state member or particular region. The first W G I P session took place in 1982 and they have met annually in late July/early August. One exception was the 1986 cancellation due to lack o f funds to support their one-week meeting. The earliest discussions amongst the five-member W G I P concentrated on the review o f developments and the hearing o f interventions by indigenous peoples about the conditions within indigenous communities, primarily in the Americas. Due to the urgent and harsh realities facing indigenous peoples, many representatives spoke about the human rights violations taking place within their communities and against their members. Some may recall, for example, a 1985 intervention that was so gruesome that the official U . N . interpreters could not even bear to translate the words of the indigenous speaker, who was subsequently gaveled and admonished by the Chair for accusing a government o f brutal killings and removal of indigenous peoples from their homelands. In response to such interventions, the Chairperson clearly stated that the W G I P was not a body with the capacity to hear human rights "complaints" and indigenous representatives were often interrupted by gavel and requested to proceed with their remarks but to refrain from accusations and in particular, the naming o f nation-state perpetrators o f genocide and other gross violations o f human rights. Such a response was  43  often frustrating and left some early indigenous participants disillusioned by the capacity and intent o f the forum.  97  In regard to early nation-state member participation, this too was limited to those states that, first o f all, agreed that indigenous "populations" existed within their borders and had had substantive dealings with such peoples. Other states maintained that matters related to indigenous peoples were solely o f a domestic nature and that the world community had no standing to determine, define or pronounce upon the status, QO  conditions, let alone the rights, o f "their" indigenous populations. There was general agreement amongst the W G I P members that their reviews were useful in terms o f gaining an understanding o f the content and form o f indigenous human rights standards. Therefore, the reviews were necessary to achieve their mandate. In 1985, the W G I P agreed to begin the preparation o f "a Draft Declaration on Indigenous Rights" for eventual adoption by the United Nations General A s s e m b l y .  99  After brief  experience with the formal sessions o f the W G I P , it became clear that further indigenousinitiated preparation should take place. In direct response to this need, the World Council of Indigenous Peoples, who held their annual General Assembly in Panama City, Panama in September 1984, made the W G I P draft Declaration a topic o f discussion. The assembly participants agreed that indigenous peoples themselves should prepare a declaration for delivery to the W G I P , and a small committee was immediately organized  See generally the reports of the WGIP contained in UN Documents E/CN 4/Sub 2/1982/33; E/CN 4/Sub2/l 983/20; and E/CN4/Sub 2/1984/20. In this regard, Japan first insisted that there were no indigenous peoples within Japan, later they acknowledged the Ainu as culturally distinct peoples within Japan. However, the government then stated that matters related to the Ainu were for the government of Japan to deal with and not the international community. UN Doc E/CN4/Sub 2/1985/2, Annex II. 97  98  99  44  to draft such a text.  100  The assembly participants unanimously adopted the seventeen-  point text and delivered it to the 1985 session o f the W G I P and requested that it be annexed to the official U . N . report o f the W G I P .  1 0 1  This text makes explicit reference to  the right o f indigenous peoples to self-determination the International C o v e n a n t s .  102  and mirrors the language found in  103  A l s o , a number o f international indigenous non-governmental organizations, which recognized the limitations o f the one-week sessions o f the W G I P and being cognizant o f the fact that they were not member nations of the U . N . , determined that it would be constructive to hold "indigenous peoples' preparatory" meetings to introduce newcomers to the process and furthermore, discuss strategy and develop unified positions to influence the W G I P agenda. The first Indigenous Peoples' Preparatory Meeting took place in 1985 and was hosted by a number o f international indigenous Non-Governmental Organizations: the Indian L a w Resource Center, the National Aboriginal and Islanders Legal Service, the Inuit Circumpolar Conference, the National Indian Youth Council, the Four Directions Council, and the International Indian Treaty C o u n c i l .  104  These meetings proved to be a  tactical success in that the unanimous positions amongst indigenous peoples influenced  On behalf of the ICC, the author attended the WCIP meeting, in order to conduct fact-finding to determine if the ICC should join the WCIP. I subsequently became a member of the drafting committee formed and played an active role in the WCIP 1984 declaration drafting. U.N. Doc. E/CN.4/1985/22, Annex 2 (1985) Principle 1 of the text reads: "All indigenous peoples have the right of self-determination. By virtue of this right they may freely determine their political status and freely pursue their economic, social, religious and cultural development." The language is borrowed almost verbatimfromArticle 1(1) of the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. Coulter, "Les Indiens," supra note 41. 101  102  103  104  45  the course o f action o f the W G I P members and had a direct bearing upon their decisionmaking in terms o f their scope o f work and future agenda setting. 2. The draft Declaration A t the 1985 indigenous peoples' preparatory meeting, leaders determined to adopt a Declaration o f Principles on the Rights o f Indigenous Peoples as another method to influence the work and agenda o f the W G I P .  1 0 5  The twenty-two-point declaration,  106  like  107  that o f the W C I P , emphasized the importance o f the right o f self-determination. 108  document was also more informed by other human rights instruments.  The  *  The indigenous  text was annexed to the report o f the W G I P , which decided that year to begin the drafting process albeit quite differently from the methodology indigenous peoples had envisioned.  109  Because o f the strong and unified positions o f indigenous peoples, on a number o f occasions, the W G I P Chairperson had to carefully and diplomatically encourage the ongoing participation o f states and indigenous peoples. In this way, the standard setting On behalf of the ICC, I participated in both the preparatory meeting and chaired a large number of the indigenous peoples' sessions that led to the declaration text adopted by all indigenous representatives and organizations present. UN Document E/CN.4/Sub.2/1987/22, Annex 5 (1987). Paragraph 2 reads: "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." Examples of this include reference to "permanent control" and enjoyment of renewable and nonrenewable resources, right to participate in the life of the state if they so desire, reference to indigenous peoples as subjects of international law, treaties and other agreements being accorded the same status as other treaties in international law, and specific reference to the International Bill of Human Rights and other United Nations instruments. Though indigenous peoples were active and direct participants in the WGIP plenary sessions, the WGIP member-led drafting of text was done behind closed doors. To date, the internal negotiation that may or may not have taken place amongst the five members has not been shared publicly. Hence, it is difficult to 105  106 107  108  109  46  process could continue, despite the regressive positions o f the few active states present. The first draft principles tabled at the W G I P contained only six principles, which were considered by its Chairperson to be "non-contentious" and therefore palatable to state participants. Needless to say, indigenous peoples criticized the cautious approach o f the W G I P members  110  and reiterated the unified position o f indigenous representatives:  the  foundational principle o f the right o f indigenous peoples to self-determination must be dealt with squarely by the W G I P in order to provide a suitable context for the consideration o f all other indigenous human rights. The period from 1988 to 1993 is the time frame wherein the text o f the draft Declaration really began to take shape. Informed readers w i l l note that this is approximately the same period in which the International Labor Organization (ILO) decided to revise the 1957 Convention on Indigenous and Tribal Populations (No. 107), to be discussed below. Following the revision o f Convention N o . 107, the painful experience that indigenous peoples had at the I L O was a constant undercurrent in the debate on the right to self-determination and the principles concerning lands, territories and resources in the W G I P draft Declaration. In 1990 and 1991, a series o f informal drafting groups were organized, which included the W G I P members, and indigenous and state government representatives. This was a critical turning point for indigenous peoples in terms o f the advancement o f the paramount right o f self-determination and was primarily due to the tripartite dialogue that took place in these informal sessions. In particular, the informal drafting group led by  guess what happened both procedurally and substantively between the WGIP members and their drafting process. Furthermore, the level of state or Secretariat involvement is unknown.  47  then W G I P member Danilo Turk, focused on self-determination and the changing interpretations o f the right against the backdrop o f the break up o f Yugoslavia, the homeland o f M r . Turk. This group also included indigenous scholar, S. James Anaya, who made a convincing contribution to the dialogue by elaborating upon the exercise o f self-determination by indigenous peoples. In addition, the Grand Council o f the Crees and other First Nation representatives were in the midst o f the growing Canadian national debate over the Charlottetown Accord. This debate propelled Aboriginal leaders and organizations to the forefront o f the "nation-building" effort, which necessitated the sharpening o f indigenous arguments, in a constitutional framework, to support the distinct rights o f Aboriginal peoples in the face o f demands o f unfettered exercise o f the right to self-determination by the Francophone population o f Quebec.  111  The Crees and others echoed their arguments at  the United Nations, furthering the exploration o f the right to self-determination within the 1991 W G I P informal drafting group. The persistent efforts by indigenous peoples culminated in the inclusion o f explicit reference to the right o f self-determination, as well as a number o f references to the principle o f the right of self-determination in the Preamble o f the draft Declaration.  112  UN Document E/CN4/Sub2/1985/22, Annex IV. "' The Grand Council of the Cree of Eeyou Astchee (Quebec), Canada, commissioned a legal brief, which they later published as Sovereign Injitstice[:] Forcible Inclusion of the James Bay Crees and Cree Territory Into a Sovereign Quebec (Nemaska, Eeyou Astchee: Grand Council of the Crees, 1992). The text has been cited by academics and scholars worldwide and has had a tremendous impact on both international and domestic dialogue concerning the indigenous perspective of the right to self-determination. UN Document E/CN4/Sub2/1993/29, Annex I, United Nations draft Declaration on the Rights of Indigenous Peoples, adopted by the Working Group on Indigenous Populations at its Eleventh Session in 1993. In addition to paragraphs 14 and 15 of the Preamble, Article 3 states: "Indigenous peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development." 110  112  48  In 1993, the W G I P completed its work and transmitted the text for approval to the Sub-Commission on the Prevention o f Discrimination and Protection o f Minorities in 1994.  113  The Sub-Commission adopted the draft Declaration by passage o f Sub-  Commission Resolution 1994/45. The full text o f the draft Declaration is set out in Appendix A o f this thesis. The document is divided into a Preamble and eight Parts that cover general principles; life, integrity and security; cultural rights; education, information, and labor rights; development, decision making, and economic and social rights; lands, territories and resources; self-determination and indigenous institutions; and implementation. 3. The Commission on Human Rights working group on the draft Declaration In 1994, the document was then delivered to the Commission on Human Rights, who adopted Resolution 1995/32 wherein they decided to "establish an open-ended intersessional working group... with the sole purpose o f elaborating a Draft Declaration, considering the draft contained in the annex to resolution 1994/45 o f 26 August 1994 o f the Sub-Commission on the Prevention o f Discrimination and Protection o f Minorities, entitled draft 'United Nations declaration on the rights of Indigenous peoples' for consideration and adoption by the General Assembly within the International Decade o f the World's Indigenous Peoples."  114  UN Doc E/CN4/Sub 2/1994/2/Add 1 UN Doc E/CN.4/1995/2, E/CN.4/Sub.2/1994/56 at 105 (1994). The Decade began in 1995 and ends in 2004. 113  114  49  A t the time, many indigenous peoples and organizations expressed concern over the language adopted by the W G I P  1 1 5  and criticized the "closed door" work o f its  members, especially i n light o f their last minute inclusion o f Article 31 addressing autonomy and self-government. This article was immediately interpreted by indigenous peoples as potentially capping the self-determination text o f Article 3 thereby freezing indigenous rights. However, the draft Declaration has since been heralded by indigenous peoples as a statement o f the minimum standards necessary to safeguard the rights and status o f indigenous peoples, nations and communities. Others were more focused upon the future path o f the draft Declaration, knowing that it had to climb the ladder o f the United N a t i o n s .  116  In hindsight, the success within the W G I P i n both the procedural  aspects o f the work, as well as gaining specific language on the right o f selfdetermination emboldened indigenous peoples in terms o f setting the bar quite high for the future challenges that the text would face. There were numerous important spin off effects generated by the W G I P drafting exercise. The unifying effect upon indigenous peoples, the organizing o f the preparatory meetings, and the early signs o f cracks in the U . N . rules o f procedure concerning participation are among a few of the significant developments prompted by the process. For example, on a number o f occasions indigenous representatives spoke in their own  For example, the statement of the National Congress of American Indians and the Indian Law Resource Center, Twelfth Session of the WGIP, July 26, 1994: "From our own experience in this process, we know that there are provisions that do not fully accommodate the aspirations of indigenous peoples everywhere. We know that the diverse conditions of indigenous peoples have not been completely responded to by the Declaration." Statement of the Inuit Circumpolar Conference, Twelfth Session of the WGIP, July 25, 1994: "The need to preserve the integrity of the entire text is going to be a very important issue when the member States start the process of redrafting the various provisions. Serious consideration will have to be given by Indigenous Peoples whether the Draft Declaration can be supported after the governments have completed their analysis and made revisions." 115  116  50  languages, offered prayers or in the case o f the M a o r i delegation, broke out i n song, to be immediately gaveled by Chairperson Daes, who would state that the United Nations was a legal and political organ and not a place for worship or to show favoritism to one culture over another. However, by 1994, in the days leading up to the adoption o f the draft Declaration, W G I P members, indigenous peoples, and even state government representatives were not only observing prayers in indigenous languages but they were also holding hands, chanting and dancing in a large circle around the plenary hall. One o f the more important results is the fact that the most active and influential W G I P members have become indigenous rights "advocates," who appear to feel personally charged to defend the text they drafted and to lead the agenda for indigenous peoples within the U . N . system.  117  The early criticism o f the W G I P , which was and continues to be a largely i i8  democratic forum in terms o f open and direct participation o f indigenous peoples,  may  be somewhat unfair, especially in light o f its dramatic contrast to the present circumstances that indigenous peoples are encountering in the context o f the draft Declaration in the C H R W G . One example o f the W G I P ' s more democratic leanings pertains to indigenous participation: in the C H R W G , governments have the opportunity to review and approve the applications and credentials for indigenous organizations that seek accreditation to Namely former Chairperson Daes and Miguel Alfonso Martinez, who have both actively pursued a number of issues within the human rights arm of the United Nations, ranging from resolutions that have arisen in the Commission on Human Rights to the Permanent Forum, to be discussed. 1 use the term "democratic" in the context of social equality and respect for the individual. There was equal participation of indigenous peoples within the WGIP forum, with every indigenous representative and organization having the ability to participate through interventions, state lobbying, and so forth. Also, 117  118  51  participate under Commission Resolution 1995/32. In contrast, the W G I P has been open to all indigenous peoples, organizations, leaders and representatives and the members have been much more willing to discuss topics o f relevance to its indigenous constituency. The C H R W G has been meeting annually since 1995, with the exception o f 2001, when the September 1 1 terrorists attacks delayed the session until February 2002. th  Commission Resolution 1995/32 allows those indigenous organizations without E C O S O C N G O status to apply for accreditation to attend the Commission working group sessions. The sessions attract most o f the C H R members with significant numbers o f indigenous peoples living within their borders and those who have a vested interest in the standard setting work. The C H R W G annually elects a Chairperson. Since its inception, the meetings have been chaired by a Latin American state representative: first Jose Urrutia o f Peru, who was followed by his protege and fellow countryman, Luis Enrique Chavez. The former was minimally effective but not as engaged as the present Chair, who has taken to summing up the sessions and offering his own views on the procedural and substantive matters before the C H R W G .  1 1 9  Procedural and substantive issues plague the C H R W G , with the former drawing much debate throughout the course o f the working group's sessions, prompting walkouts by indigenous peoples, as well as closed-door meetings o f government representatives intent on re-drafting the text. In regard to substantive debate during these sessions, the  indigenous peoples, though not voting "members" of the U N were the "majority" in this forum in terms of ability to influence the WGIP agenda, as well as the content and form of the draft Declaration.  52  agenda is largely dictated by what states seek to discuss rather than what is suggested by indigenous peoples as urgent or fundamental matters. Similar to the substantive problems related to the various standard setting initiatives, which w i l l be discussed fully below, there continue to be problems with the procedural aspects o f the U . N . Declaration work as well (in particular, the participation o f indigenous peoples). A t the U . N . , one o f the first hurdles to clear was to increase indigenous participation in Commission level discussions beyond E C O S O C non-governmental organizations. This was accomplished in Commission Resolution 1995/32, which adopted procedures for application to the Coordinator o f the International Decade (or more specifically the staff person responsible at the Office o f the H i g h Commissioner for Human Rights for indigenous affairs). The procedures dictate that the Coordinator must contact the respective State concerned for review o f the application, as well as the E C O S O C s Committee on Non-Governmental Organizations for its decision. In this way, states are allowed to review and approve or disapprove o f participation o f individual indigenous peoples' organizations. Thus far, there has been one case where a government has attempted to bar the participation o f an organization. However, this organization was able to gain participation through an E C O S O C approved N G O . A second procedural matter that continues to hinder indigenous involvement in the work is the development o f the agenda and organization o f work, which has been inconsistent in all sessions o f the C H R W G . A t every session this matter has prompted an opening debate about the "modalities o f participation" o f indigenous peoples, with the  For example, see draft report of the February 2002 CHRWG session, UN Document E/CN.4/2002/. dated February 15,2002, which contains a number of paragraphs reflecting the Chair's summary of debate 119  53  pivotal point being whether or not indigenous peoples participate effectively in the decision making o f the body. Though voting is highly unusual within the Commission forum, which prefers decision making by consensus, indigenous peoples to some extent have a veto over the outcome o f the debates by virtue o f their ability to voice their concerns and objections, and stall "consensus." Indigenous peoples have capitalized upon this leverage in order to increase their participation and influence the organization of work. To date, there has been no formalization o f the role, procedures or "modalities of participation" o f indigenous peoples and this may be both a blessing or later become a disaster. There is also difficulty in building a record of the debate at the C H R W G sessions due to the fact that so many different types o f sessions take place. For example, there are formal plenary sessions used to adopt the agenda, appoint the Chairperson and adopt the working group report. A n d , the informal plenary sessions to engage in general debate o f overarching issues and specific discussion o f the draft Declaration articles, where no formal record exists. Later, because very little constructive dialogue was taking place in the informal sessions, the idea o f "informal informal" meetings was introduced. The purpose o f such sessions was to allow for state government representatives and indigenous peoples to speak frankly about their views and positions, and to elaborate or expand upon them informally, with no record o f the debate and no attribution o f government positions. These were useful to the extent that government representatives were willing to speak freely, not to mention the need to be prepared to do so. The C H R W G reports are hastily prepared, with no attribution of positions and they are not an  on procedural and substantive matters.  54  official record o f the informal plenary sessions. Furthermore, there is no official record of any o f the "informal informal" sessions. In addition to the plenary meetings, both government only and indigenous only delegations have been holding closed door sessions outside o f the plenary hall. It is a known fact that the government only sessions have been focused upon re-drafting the articles o f the Declaration and such sessions have generated alternate text, which have been subsequently delivered to the Chairperson and eventually annexed to the report. This action raised numerous objections from indigenous peoples. However, the Chair has facilitated the procedure rather than make any effort to bring all dialogue back to the plenary hall. More recently, the government o f Canada has been facilitating and paying for inter-sessional government-only gatherings to wholly re-draft the text. Through the leak o f a document from a government consultation held in Ottawa in October 2001, indigenous peoples learned the extent o f the government re-drafting efforts and moved to head off any effort to legitimize the document through its annexation to the C H R W G report at this past February 2002 session. Not all governments concerned participated in the inter-governmental, inter-sessional meeting and therefore, they, too, objected to its use at the C H R W G . Following additional government only sessions, the government document became obsolete during the session. The indigenous side of the table is fraught with inconsistency as well. Divergent views remain and little is done to carefully analyze positions, develop strategy and tactics to advance the agenda o f safeguarding the draft Declaration, and remain unified throughout the course o f the two-week sessions. Though indigenous peoples are afforded the opportunity to influence the organization o f work and the outcome o f the draft report,  55  this is done somewhat haphazardly. There is no formal procedure o f selection o f indigenous spokespersons, chairpersons, report committee selection, etc. In summary, it is difficult to analyze indigenous peoples' participation or for that matter state government participation in the process as both are so inconsistent. Both procedural and substantive matters are compounded by the fact that every session attracts different indigenous participants and representatives, as well as different diplomats posted to the Geneva-based state missions. Each session must be reviewed and analyzed to understand the dynamics of these very unique gatherings. One positive conclusion that can be made, however, is the fact that indigenous peoples have greatly influenced how the Commission working group operates. The presence o f indigenous peoples in the room itself cannot be underestimated. The only other certainty is the fact that no other United Nations Commission-level working group operates in the fashion that the C H R W G on the draft Declaration operates. This can only be attributed to the fact that indigenous peoples have forced open the doors o f the United Nations and have been able to constructively change the dynamics o f their participation. Since 1995, it has become clear that this is the most critical stage for indigenous human rights standard-setting work due to the highly political nature o f the Commission and the increased level of state control over the forum. To date, only two of the 45 articles have been adopted: Article 5 which states "Every Indigenous individual has the right to a nationality" and Article 43 which provides "All the rights and freedoms, recognized herein are equally guaranteed to male and female Indigenous  individuals."  The work before the C H R is where indigenous peoples are facing the greatest test in advancing indigenous legal perspectives, and reconciling cultural differences. More in-  56  depth analysis o f a number o f the substantive provisions, which illustrate such difficulties, w i l l be discussed below.  B) Other United Nations Initiatives Following the standard setting work, a wide range o f other initiatives concerning indigenous peoples has been launched by the United Nations. To a large degree, these activities were triggered by the W G I P work and the review o f the conditions o f indigeous peoples. In 1989 the United Nations hosted a seminar on the "Effects o f Racism and Racial Discrimination on the Social and Economic Relations Between Indigenous Peoples and States" i n Geneva, Switzerland. In an unprecedented move, Ted Moses (Ambassador o f the Grand Council o f the Cree) was elected as the Rapporteur for the gathering, which was chaired by Ndary Toure o f Senegal.  120  The report and the meeting  itself, helped to propel the dialogue and debate within the W G I P on the draft Declaration. In particular, the Conclusions o f the Seminar address the "principle" o f selfdetermination, rather than the right to self-determination. Such a reference was intended to make the concept more palatable to states in the context o f the draft Declaration. To what degree such a characterization o f the right had any effect upon states remains difficult to quantify. Unfortunately, many o f the seminar Recommendations remain outstanding. However, the fact that an indigenous person was elected to report on the 121  session is still significant in the course o f United Nations gatherings.  Report of a Seminar, The effects of racism and racial discrimination on the social and economic relations between indigenous peoples and States, Geneva, Switzerland, January 16-20, 1989, 120  HR/PUB/89/5. This is another example of changes in procedural aspects and rules of the United Nations that a growing number of participants in other U.N. fora and working groups are commenting upon. 121  57  In 1991, another United Nations Meeting o f Experts took place in Nuuk, Greenland, to discuss Self-Government o f Indigenous Peoples.  122  Here again, the  meeting contributed to the larger discussion o f self-determination and self-government within the draft Declaration dialogue. The experts gathered in N u u k concluded that "indigenous peoples are historically self-governing, with their own languages and cultures, laws and traditions, and that self-determination is a precondition for freedom, 123  justice and peace, both within States and in the international community."  A n d , in  1992 the preparations for the World Conference on Environment and Development prompted a gathering on "the role of indigenous peoples in the practice o f sustainable development" focusing upon self-development by indigenous peoples consistent with their concepts o f sustainable, equitable development, while enjoying their right to own, control and utilize their own resources and institutions in the context o f the right to development.  124  Then in 1996, the Government o f Canada hosted an Expert Seminar on Practical 125  Experiences Regarding Indigenous Land Rights and Claims in Whitehorse.  The  conclusions and recommendations emphasized the linkage between indigenous rights to lands, the right to development and cultural survival. In addition, indigenous representatives underscored the need for direct, full and meaningful participation in  Nuuk Conclusions and Recommendations on Indigenous Autonomy and Self-Government, United Nations Meeting of Experts, Nuuk, Greenland, 24-28 September 1991, U.N. Doc. E/CN.4/1992/42 and Add.l, preamble. This seminar was chaired by the former Premier of Greenland, Mr. Jonathan Motzfeldt. Ms. Maria Lorenza Dalupan from the Philippines served as Rapporteur. This United Nations Technical Conference was chaired by Jose Bengoa of Chile and Ingmar Egede, a representative of the Inuit Circumpolar Conference, served as Rapporteur. The seminar was chaired by David Keenan, of the Yukon Council of First Nations, and the Rapporteur was the Chilean government representative, Jose Ay 1 win Oyarzun. 122  I2j  124  125  58  decision-making processes not only in the context o f co-management regimes but throughout all decision-making, which may affect them and their homelands. Equally as significant and often underutilized are the various studies that have been completed by the members of the W G I P . Specifically, the United Nations "Study on Treaties, Agreements and Other Constructive Arrangements Between States and Indigenous Populations" completed by W G I P member and Special Rapporteur, M i g u e l Alfonso Martinez, in 1999.  126  The seed for the study was planted in the Sub-Commission  authorized Martinez Cobo study (discussed earlier) in the form o f a recommendation for such a study due to the "paramount importance for indigenous peoples and nations in various countries and regions o f the world o f the treaties concluded with present nationstates or with countries acting as colonial administering powers at the time in question."  127  It is significant that the United Nations felt that the matter o f treaty-making powers and capacity o f indigenous peoples, as well as the solemn treaty obligations and the substance o f treaties between indigenous peoples and states, were worthy o f in-depth study by the U N . The study surveyed the origins o f treating with indigenous peoples in the context o f European expansion, the contemporary status of such treaties, as well as other "constructive arrangements." In addition, Miguel Alfonso Martinez, Special Rapporteur, highlighted "situations lacking specific bilateral legal instruments," and finally the use o f such instruments as a guide for future relationships between indigenous peoples and states," which suggests that there is much unfinished business concerning the  126 127  UN Document E/CN.4/Sub.2/1999/20. UN Document E/CN.R/Sub.2/199/20, paragraph 1.  59  legal and political relations between these two distinct communities. For those First Nations, Tribes, indigenous peoples and communities that concluded treaties with nationStates, this work was important in advancing and validating, on the international plane, the status o f their respective treaties. Many o f them provided the under-funded Special •  128  Rapporteur with substantial support, resources, and documentation. In the wake o f the release o f the final report, this work came under attack due to the highly political position taken by M i g u e l Alfonso Martinez on the "definition" of "indigenous peoples." Unfortunately, his views on the topic were interpreted as an exclusion o f indigenous peoples in A s i a and Africa. The swift response o f a large number o f indigenous peoples was bordering on complete denunciation o f the study, leaving those few indigenous peoples who had concluded treaties, embracing the report. In June 1997, Special Rapporteur Erica-Irene A . Daes was appointed to conduct a study on "Indigenous Peoples and Their Relationship to Land," which was completed in 2000.  129  This report surveys the distinct relationship that indigenous peoples have to  their lands, territories and resources, and the history o f dispossession. The report also outlines a framework for analyzing contemporary problems regarding indigenous land rights, and offers various conclusions and recommendations to resolve indigenous land issues and problems. The report is especially useful in identifying the range of discriminatory policies applied to indigenous peoples in order to legitimize the  128  UN Document E/CN.4/Sub.2/1999/20, paragraphs 29-32 list a wide range of "indigenous organizations and institutional bodies," which all contributed to the substance and completion of the study. UN Document E/CN.4/Sub.2/2000/25 contains the Final Working Paper Prepared by the Special Rapporteur, Mrs. Erica-Irene A. Daes, which was preceded by two progress reports: UN Documents E/CN.4/Sub.2/1998/15 and E/CN.4/Sub.2/1999/18. 129  60  dispossession o f their lands. Again, such an analysis was intended to further the discussion o f these crucial matters within the context of the draft Declaration dialogue. Yet, at the same time, the report has been utilized in a number o f other human rights and domestic contexts as well.  130  Other complements to the ongoing debate concerning the draft Declaration are the activities o f the W G I P focusing upon particular issues, such as the "Report o f the seminar on the draft principles and guidelines for the protection of the heritage o f indigenous people," which was concluded in 2000. This work resulted i n a set o f principles and guidelines for the protection o f the heritage o f indigenous peoples, which has been considered preliminarily by the World Intellectual Property Organizations (WIPO), who feels that it is the appropriate agency within the United Nations to deal with such matters. Furthermore, the United Nations General Assembly proclaimed 1993 the International Year o f the World's Indigenous People.  131  A l s o , in 1993, the World Conference on  Human Rights, held in Vienna, Austria, attracted numerous indigenous peoples' representatives, who were able to contribute to the Declaration and Programme o f Action, which specifically recognized the "inherent dignity and the unique contribution o f indigenous people to the development and plurality of society;" and reaffirmed "the commitment o f the international community to their economic, social and cultural wellbeing and their enjoyment o f the fruits o f sustainable development." The conference also called upon States to "take concerted positive steps to ensure respect for all human rights  For example, the complaints and briefs brought before the Inter-American Commission on Human Rights, Organization of American States, by the Awas Tingni community in Nicaragua. On file with author. General Assembly Resolution 45/164 of December 18, 1990, which states that "one day of every year shall be observed as the "International Day of Indigenous People" (para. 3). 130  131  61  and fundamental freedoms o f indigenous people, on the basis o f equality and nondiscrimination, and recognize the value and diversity o f their distinct identities, cultures and social organization."  132  The Conference recommended that an the International  Decade o f the World's Indigenous People be declared, wherein the United Nations specialized agencies and organs are to devote resources and energy to indigenous peoples issues and concerns under the banner o f "partnership" between governments and 133  indigenous peoples. However, likely the most dramatic decision made in Vienna was to urge the United Nations to consider the establishment o f a Permanent Forum on Indigenous Issues. The idea stemmed from Conference remarks made by Henriette Rasmussen, an Inuit woman from Greenland. M s . Rasmussen also participated in the Nuuk Seminar on Indigenous Self-Government (and after some time at the International Labor Organization), where she shared her frustrations concerning the need for a permanent mechanism within the United Nations to deal with indigenous peoples' rights, issues and concerns. The idea was latched onto by the Government o f Denmark, who worked in close cooperation with the Greenland Home Rule Government and the Danish-based support group I W G I A , to realize the establishment o f the Permanent F o r u m .  1 3 4  In order to develop and crystallize the idea, a number o f meetings and two working group sessions on the particular topic o f a Permanent Forum were organized. In  The Vienna Declaration and Programme of Action, [Part I, para. 20]. The conference also called upon States to "take concerted positive steps to ensure respect for all human rights and fundamental freedoms of indigenous people, on the basis of equality and non-discrimination, and recognize the value and diversity of their distinct identities, cultures and social organization." General Assembly Resolution 48/163 of December 21, 1993. The decade runs from 1995-2004, and its activities are, to some extent supported by the Voluntary Fund for the International Decade of the World's Indigenous People, established by the General Assembly. 132  133  62  July 2000, a General Assembly resolution established the forum as a subsidiary organ o f the Economic and Social Council, with sixteen representatives: eight appointed by Governments and "eight members to be appointed by the President o f the Council following consultations with the Bureau and the regional groups through their •  coordinators, on the basis o f broad consultations with indigenous organizations...."  135  The General Assembly resolution broadly defines the purpose o f the Permanent Forum by stating that it "shall serve as an advisory body to the Council with a mandate to discuss indigenous issues within the mandate o f the Council relating to economic and 136  social development, culture, the environment, education, health and human rights."  In  this regard, the Permanent Forum w i l l operate within the established rules o f procedure for subsidiary organs o f the Council, and like the W G I P before it, the Permanent Forum w i l l also serve as a repository o f information from the various U . N . agencies and organs.  137  It is difficult to know the present level o f government or U . N . agency political  w i l l and commitment to the Forum from the rocky road traveled to establish it. However, the resolution makes clear that the new entity w i l l be funded out o f the "regular budget o f the United Nations and its specialized agencies and through such voluntary contributions as may be donated." Though the members o f the Permanent Forum have been elected,  138  A/RES/2000/22 of 28 July 2000. Ibid. Ibid. For example, in preparation for itsfirstpublic meeting, the following agencies furnished updates and made progress reports concerning their various activities relating to indigenous peoples: FAO, UNDP, UNITAR, UN-HABITAT, ILO, UNEP, CBD, World Bank, WHO, UNFPA, UNICEF, UNESCO, CHR, and the Pan American Health Organization. 134 135  136 137  ) 38  The following is excerptedfromthe ECOCOC decision: In accordance with its resolution 2000/22 and decision 2001/316, the Council elected the following members by acclamation to the newly established Forum for a three-year term beginning on 1 January 2002; Njuma Ekudanayo (Democratic Republic of the Congo), Yuji Iwasawa (Japan) and Yuri Alexandrovitch Boitchenko (Russian Federation). The Council  63  there are many unanswered questions concerning these uncharted waters.  139  The high  level o f indigenous expectations for the Forum, lukewarm nation-State member support, and the lack o f financial resources do not bode well for a productive first term for the new body. The first public meeting o f the Permanent Forum took place from M a y 13 24, 2002 at the United Nations in N e w York, with Ole Maaga Henrik, a Sami representative, being elected as the first Chairperson o f the F o r u m . inundated with proposals from indigenous peoples  141  140  The members were  but were primarily consumed with  proceeded to elect by secret ballot two members from Latin American and Caribbean States and two membersfromWestern European and other States for a three-year term beginning on 1 January 2002. Bettina Cadenbach (Germany) and Hans Plut (Austria) served as tellers. The results of the secret ballot were as follows: Latin American and Caribbean States: Otilia Lux Garcia de Coti (Guatemala) 39 votes Marcos Matias Alonso (Mexico) 30 votes Ronald Karwofodi (Suriname) 19 votes Maria Fernanda Espinosa (Ecuador) 16 votes Having obtained the required majority, Otilia Lux Garcia de Coti (Guatemala) and Marcos Matias Alonso (Mexico) were declared elected. Western European and other States: Wayne Lord (Canada) 49 votes Ida Nicolaisen (Denmark) 36 votes Maria Noguerol (Spain) 20 votes Having obtained the required majority, Wayne Lord (Canada) and Ida Nicolaisen (Denmark) were declared elected. Following a statement by the representative of the Russian Federation, the President of the Council read out the names of the eight members appointed by him to the Forum for a three-year term beginning on 1 January 2002: Antonio Jacanamijoy (Columbia), Ayitegau Kouevi (Togo), Willie Littlechild (Canada), Ole Henrik Magga (Norway), Zinaida Strogalschikova (Russian Federation), Parshuram Tamang (Nepal), Mililani Trask (United States of America) and Fortunato Turpo Choquehuanca (Peru). The Council postponed to a future session the election of one member from Asian States for a three-year term beginning on 1 January 2002. For example, in February, 2002,1 had the opportunity to meet with three of the indigenous members of the Permanent Forum in Geneva. At this meeting, it was quite clear that each of them had different perceptions about what should be done at the first meeting, selection of chairpersons, agenda, time frame, etc. It was also unclear as to whether or not the Permanent Forum had sufficient funding to carry out their vague mandate. In addition, Parshuram Tamang, Mililani Trask, Antonio Jacanamijoy, and Njuma Ekundanayo were elected Vice-Chairpersons, and Wilton Littlechild was elected Rapporteur. Indigenous organizations such as the ICC proposed the establishment of a permanent and separate Secretariat for the Forum, a World Conference of Indigenous Peoples to be scheduled at the conclusion of the International Decade, the declaration of a second Decade, and the adoption of the draft Declaration on the Rights of Indigenous Peoples by 2004 provided that it was acceptable to indigenous peoples. 139  140  141  64  the fact that they have insufficient funds to operate on an annual basis and no concrete operational guidelines, nor a firm work p l a n .  142  Furthermore, indigenous peoples (and the W G I P members) have expressed concern over the probability o f phasing out o f the W G I P due to the creation o f the Permanent Forum. There are a number o f arguments for and against such action. O n the indigenous side o f the table, many feel that the W G I P should remain, as it has been constructive in focusing on critical indigenous issues. Consistent with expectations o f indigenous peoples, the Forum was understood to be a "system-wide" mechanism to saturate or infuse all o f the relevant United Nations agencies and organs with indigenous concerns and perspectives, including matters related to peace and security; environment and development; as well as indigenous human rights. The W G I P has, until recently, only had responsibility for the latter. State government representatives have asserted that the W G I P ' s continuation would be a budgetary drain and a duplication o f U . N . initiatives. Possibly, the upcoming annual session o f the W G I P (late July-early August) w i l l reveal the future path o f the W G I P . Finally, the Commission on Human Rights, at their 57 Session in 2001, adopted th  a resolution establishing a "Special Rapporteur on the situation o f human rights and fundamental freedoms o f indigenous people," with the following functions: "(a) To gather, request, receive and exchange information and communications from all relevant sources, including Governments, indigenous people themselves and their communities and organizations, on violations o f their human rights and fundamental freedoms;  The members were focused on the development of guidelines under which to operate and a realizable work plan for their coming three year term. Neither of which were concluded by the end of their first public meeting on May 24, 2002. 142  65  (b) To formulate recommendations and proposals on appropriate measures and activities to prevent and remedy violations o f the human rights and fundamental freedoms o f indigenous people; (c) To work in close relation with other special rapporteurs, special representatives, working groups and independent experts o f the Commission on Human Rights and o f the Sub-Commission on the Promotion and Protection of Human Rights, taking into account the request o f the Commission contained in resolution 1993/30;" Despite the unhelpful role and resistance o f the U . S . in nearly every debate concerning indigenous peoples, it is remarkable that they: 1) supported the idea o f a Commission level Rapporteur; and 2) supported the candidacy o f S. James Anaya, an indigenous person, scholar and long-time advocate o f indigenous rights, for the Special Rapporteur position. A number o f other individuals were identified and nominated, which made for an interesting dialogue on the question o f the appointment o f an indigenous versus a non-indigenous person, indicative o f the fact that the present milieu of the United Nations represents both old and new world ideals about the status and place of indigenous peoples. The recent heated campaign concluded with the appointment o f Rodolfo Stavenhagen, a scholar with a history o f work concerning indigenous peoples in Mexico and other parts o f Latin A m e r i c a .  143  The Special Rapporteur has completed his first  report to the Commission on Human Rights, which provides a concise "panorama o f the main human rights issues besetting indigenous people at the present time" and sets "out a framework and agenda for his activities in the future."  144  A s a newly appointed  Rapporteur, it is interesting to note that he has offered commentary on a number o f the  R. Stavenhagen has published widely in Spanish and has served as a Researcher at the El Colegio de Mexico, advisor/consultant to the Inter-American Indian Institute of the Organization of American States, and other institutions. 143  66  difficult issues that have surfaced in the draft Declaration debate. For example, Stavenhagen writes in his first report that "[wjhile debates continue over questions o f a definition o f indigenous people, the Special Rapporteur notes that the right o f indigenous persons and peoples to self-definition is the most accepted form o f identification consistent with a human rights approach."  145  There is no doubt that the Special  Rapporteur's work w i l l be closely monitored by both indigenous peoples and governments. Though indigenous peoples may be at the lowest rung o f the ladder in socioeconomic status and politically marginalized within most nation-states, in a relatively short period o f time at the United Nations, indigenous peoples have gained a voice within the U N system: from a low-level working group to the establishment o f the Economic and Social Council level Permanent Forum that includes eight indigenous members (who serve with equal status with eight state elected members). A l l o f these activities have taken place in the span o f only two generations. The foregoing illustrates the fact that albeit slow, there have been many constructive and substantive activities specifically focused upon the plight o f indigenous peoples within the United Nations. Let us now turn our attention to other important international developments that help to illustrate this growing international trend.  UN Document E/CN.4/2002/97 of February 4,2002. Ibid, 6 paragraph of Executive Summary. The Special Rapporteur is making reference to various cultural criteria for consideration of a "peoples," and the element of self-identification in the context of the right to self-determination, as well as the need for recognition of the value and diversity of distinct identities, cultures and social organization. Furthermore, the Special Rapporteur has noted that despite absence of a definition this "should not prevent constructive action in the promotion and protection of the human rights of indigenous peoples." 144  145  th  67  C) Growing International Trend to Accommodate Indigenous Status 1) Environment and Development (a) World Bank In addition to the human rights standard setting activities, diverse international standards are being developed in relation to indigenous peoples and the environment in a number o f international instruments.  146  Some o f the most significant (yet still  . inadequate) are those policies being adopted by development banks. The World Bank expressed an early concern for the protection o f "small, isolated tribal societies (many of them forest-dwelling tribes in the lowlands o f South American)" from the "negative impacts o f development" conducted by its Borrowers, and urged the active participation o f "indigenous peoples in the development process."  147  This action was taken primarily  as the result o f the early fieldwork conducted by Robert Goodland o f the Environmental Unit o f the B a n k .  148  Goodland, throughout the course o f his environmental assessment  work, was motivated by personal views about the ethical position o f the Banks' actions in development projects, which were adversely impacting indigenous peoples in Brazil. He subsequently published Amazon Jungle:  Green Hell to Red Desert,  149  which examines  some o f these issues more comprehensively.  See, for example, H. Mann, International Environmental Law and Aboriginal Rights, in Proceedings of the 1993 Conference of the Canadian Council on International Law, The Scope of Native Rights in Relation to Self-Determination Under International Law (Ottawa: Canadian Council on International Law, 1993) at 144; and in the same volume, F. Harhoff, International Environmental Law and Aboriginal Rights, at 155. See S.H. Davis, "The World Bank and Indigenous Peoples," Environment Department, The World Bank. The article appears at the Banks' web site: http://www.worldbank.org. See R.J.A. Goodland, Tribal Peoples and Economic Development: Human Ecolocric Considerations, Washington, World Bank, 1962. R.J.A. Goodland and H. S. Irwin, Amazon Jungle: Green hell to red desert: An ecological discussion of the environmental impact of the highway construction program in the Amazon Basin. (New York: Elsevier Scientific Publishing, 1975). 146  147  148  149  68  In February 1982, the World Bank adopted Operational Manual Statement 2.34 ( O M S 2.34) entitled "Tribal Peoples in Bank-Financed Projects." Unfortunately, this policy was oriented towards integration and state measures to "effectively safeguard the integrity and well-being o f the tribal people" resulting in the treatment o f indigenous peoples as objects rather than subjects o f the Statement.  150  The OMS 2.34 definition o f  "tribal peoples" is based on very western standards o f quality o f life. In part, reference is made to being "unacculturated" or "partially acculturated" in the dominant society and being "non-monetized, or only partially monetized."  151  However, the definition did  accurately characterize indigenous peoples by recognizing cultural differences and the fact that indigenous peoples are ethnically and linguistically distinct from the national society, identifying with one particular territory, and having an economy dependent upon the land and resources. The World Bank's definition makes no specific reference to any measure o f historical contact with the dominant society with exception o f distinction o f category o f indigenous "property rights." Although the policy o f the OMS 2.34 was inadequate and somewhat behind the international trend towards accommodating indigenous rights and status, it does represent a minimal effort by a financial institution to establish guidelines to curb the adverse effects o f development projects affecting indigenous communities. This development was followed by an implementation review conducted by the Environmental and Scientific Affairs Office o f the Bank, which consisted o f an appraisal o f Bank-financed  150 151  Tribal Peoples in Bank-Financed Projects, Operational Manual Statement 2.34, February 1982. OMS 2.34, paragraph 2.  69  projects affecting indigenous communities and homelands. The review made clear that the OMS 2.34 was inadequate in terms o f overall implementation o f the policy statement. Then in 1991, the World Bank adopted Operational Directive 4.20 ( O D 4 . 2 0 ) concerning indigenous rights and interests.  153  152  Some claim that this policy change was  largely the result o f actions by tribal peoples in India in their opposition to the Narmada River dam project.  The subsequent report Sardar Sarovar:  154  Independent Review,*  55  The Report of the  written by Co-Commissioners Bradford Morse and Thomas R.  Berger, criticized the Bank and the Government o f India for inadequately addressing issues relating to resettlement, rehabilitation and environmental protection in the context of the rights and interests o f the tribal peoples concerned. Aware o f developments in the area o f indigenous human rights standards, Commissioners Morse and Berger cited relevant provisions o f the outdated I L O Convention N o . 107, which India ratified in 1958.  World Bank Operational Directive 4.20, Indigenous Peoples, September 17, 1991. Paragraph 6 of O.D. 4.20 provides: The Bank's broad objective towards indigenous people, as for all the people in its member countries, is to ensure that the development process fosters full respect for their dignity, human rights, and cultural uniqueness.... And para 8: The Bank's policy is that the strategy for addressing the issues pertaining to indigenous peoples must be based on the informed participation of indigenous peoples themselves." I5j  154  See E.K. MacDonald, "Playing by the Rules: The World Bank's Failure to Adhere to Policy in the Funding of Large-Scale Hydropower Projects," 1011 Environmental Law Fall 2001, who writes: "The Sardar Sarovar project on the Narmada River in India became a catalyst for the reform of World Bank policy. Although not among the worst Bank-funded hydropower project, the Sardar Sarovar project gained attention because of the "remarkable alliance of determined villagers, local activists, and international' groups that fought it." In response to the public opposition of numerous environmental and human rights groups, the Bank agreed to commission an independent review of the Sardar Sarovar project, asking Bradford Morse to lead the review team. For the first time, the Bank requested an outside critique of an entire Bank project." B. Morse and T.R. Berger, Sardar Sarovar: The Report of the Futures International Inc., 1992). 155  70  Independent Review  (Ottawa: Resource  The OD 4.20 does exhibit a slight progression from the integrationist language o f OMS 2.34 by requiring that "the development process fosters full respect for their dignity, human rights, and cultural uniqueness"  156  and goes further to address the need for  "informed participation o f the indigenous peoples themselves,"  157  which is a departure  from previous attitudes of the Bank and governments. A l s o , OD 4.20 contains a very broadly formulated definition o f indigenous peoples, recognizing that "no single definition can capture their diversity." Presently, the Bank is revising their OD 4.20, consistent with their overall objective o f transforming their directives into comprehensive "policies" that combine "mandatory policy, Bank procedures, and good practice."  159  Their initial step in this  OD 4.20, paragraph 6. OD 4.20, paragraph 8. The following paragraphs from OD 4.20 were downloaded from the World Bank website at http://www.worldbank.org: 3. The terms "indigenous peoples," "indigenous ethnic minorities," "tribal groups," and "scheduled tribes" describe social groups with a social and cultural identity distinctfromthe dominant society that makes them vulnerable to being disadvantaged in the development process. For the purposes of this directive, "indigenous peoples" is the term that will be used to refer to these groups. 4. Within their national constitutions, statutes, and relevant legislation, many of the Bank's borrower countries include specific definitional clauses and legalframeworksthat provide a preliminary basis for identifying indigenous peoples. 5. Because of the varied and changing contexts in which indigenous peoples are found, no single definition can capture their diversity. Indigenous people are commonly among the poorest segments of a population. They engage in economic activities that range from shifting agriculture in or near forests to wage labor or even small-scale market-oriented activities. Indigenous peoples can be identified in particular geographical areas by the presence in varying degrees of the following characteristics: (a) a close attachment to ancestral territories and to the natural resources in these areas; (b) self-identification and identification by others as members of a distinct cultural group; (c) an indigenous language, often different from the national language; (d) presence of customary social and political institutions; and (e) primarily subsistence-oriented production. Task managers (TMs) must exercise judgment in determining the populations to which this directive applies and should make use of specialized anthropological and sociological experts throughout the project cycle. 157  158  159  In addition, the World Bank is pursuing the following, according to their website (http://www.worldbank.org): "(a) revision of OD 4.20 on Indigenous Peoples, including broad consultation within the Bank and with indigenous peoples' organizations, Borrower country governments and NGOs; (b) development of regional guidelines on Indigenous Peoples; (c) establishment of partnerships with private foundations, NGOs and UN system agencies working on programs relating to Indigenous Peoples and  71  process has been to hold consultations with representatives from borrower governments, indigenous peoples' organizations, non-governmental organizations and academics. A n "Approach Paper" was utilized to prompt discussion during the consultations.  160  The  direct participation o f indigenous peoples in such a process may help to move the Bank away from a "protective measures" approach to one o f direct, meaningful and genuine participation o f indigenous peoples in policy development to ensure that the Bank's future activities do not violate the basic rights o f indigenous peoples. The Bank w i l l likely have difficulty in tackling the same issues that have plagued the United Nations, namely the scope and application o f the Operational Directive and land and resource rights. However, because o f the level of impact that the Bank's activities can have upon indigenous communities, and their current willingness to gain direct participation by indigenous peoples, the ongoing revision process signals an important step in the right direction. Hopefully, through this work indigenous peoples and others can effectively strengthen the text and make it more reflective o f the rights, needs and aspirations o f indigenous peoples in the context o f development.. (b) Asian  Development  Bank  and Inter-American  Bank  The World Bank's indigenous work has sparked initiatives within the Asian Development Bank ( A D B ) . The A D B intended to establish policy and practices for their  Cultural Diversity; (d) sponsorship of training courses, most recently in the area of Indigenous Peoples and Human Development Project Design; (e) development of an internal and external Web Site on Indigenous Peoples; (f) conducting of a review of the role of Indigenous Peoples in Bank-financed Forestry Projects; (g) design of specific development interventions in support of indigenous peoples; and (h) monitoring and evaluation of development interventions in relation to indigenous peoples." S. Davis, S. Salman, and E. Bermudez, Consultation on Approach Paper on Revision of Indigenous People's Operational Directive OD4.20, World Bank, Washington, D.C. 1 6 0  72  interventions consistent with a set of elements that they have identified to date.  The  elements include consistency with needs and aspirations of indigenous peoples; compatibility in substance and structure with affected indigenous peoples' cultural, social and economic institutions; development with the informed participation of affected communities; equitable development; and ensuring compensation for any adverse effects of development. Yet these elements would not replace or supersede existing Bank policies but would somehow operate simultaneously with them. They are to be implemented in the context of national development policies and practices. Given the latter point, it appears that the ADB has not begun to grapple with the complex nature of indigenous rights to lands, territories and resources let alone their distinct political rights. In another region, the Inter-American Bank has established the Fund for the Development of the Indigenous Peoples of Latin America and the Caribbean (or the Indigenous Peoples Fund).  162  The Indigenous Peoples' Fund was created in 1992 in  order to facilitate dialogue concerning the preparation and financing of indigenous development initiatives and policy in areas such as resettlement. There is no question that these minimal steps are inadequate, from an indigenous peoples perspective. However, as noted, such moves on the part of these very powerful institutions signal a growing awareness of the status and rights of indigenous peoples.  http://www.adb.org/Documents/Policies/Indigenous Peoples/IPPP old.PDF contains a 20-page document entitled "The Bank's Policy on Indigenous Peoples." See also the Asian Development Bank: Draft Working Paper on Indigenous Peoples (ADB, Manila, 1995). 161  162  See Inter-American Development Bank: Strategies and Procedures on Socio-Cultural Issues (IDB,  Washington D.C., 1990); and the Ibero-American Summit:  Agreement establishing the Fundfor the Development of the Indigenous Peoples of Latin America and the Caribbean (Second Summit Meeting  the Ibero-American Heads of States, Madrid, 1992).  73  of  2) United Nations Conference on Environment and Development The work o f the World Bank, A D B and the Indigenous Peoples Fund all hint at the potential conflicts between indigenous peoples and national development policy. For these reasons, the U . N . has also attempted to respond directly on these matters. For indigenous peoples, development has generally put the world out o f balance. In the U . N . context, the early linkage o f "development" to the State assertions o f "permanent sovereignty over natural resources" exploit"  164  163  and the rights of States "to freely utilize and  such resources began to take on a more human rights orientation by the  elaboration o f the International Covenant on Economic, Social and Cultural Rights, which addresses the right o f self-determination and the pursuit o f "economic, social and cultural development."  165  However, this conception o f development is limited solely to  an economic development framework. This assertion is evidenced by the link made between the right to development and the Declaration on the Establishment o f a N e w International Economic Order ( N I E O ) ,  166  which spells out the need for cooperation and  furthering international economic relations with emphasis upon the economic needs o f peoples in "least developed" or developing countries. A l s o , the Charter o f Economic Rights and Duties o f States makes mention o f "promoting the economic, social and  Resolution on Permanent Sovereignty Over Natural Resources, December 14, 1962 U.N.G.A. Resolution 1803 (XVII), 17U.N.GAOR, Supp. (No. 17) 15, U.N. Document A/5217 (1963), reprinted in 2 I.L.M. 223 (1963). U.N.G.A. Resolution 262 (VII), December 21, 1962. International Covenant on Economic, Social and Cultural Rights, Opened for signature December 19, 19