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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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T H E S T A T U S A N D R I G H T S OF I N D I G E N O U S P E O P L E S IN I N T E R N A T I O N A L L A W : T H E Q U E S T F O R E Q U A L I T Y by D A R L E N E ( D A L E E ) S A M B O D O R O U G H M . A . L . D . , The Fletcher School of Law and Diplomacy Tufts University, 1991 A THESIS S U B M I T T E D I N 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 P H I L O S O P H Y in T H E F A C U L T Y OF G R A D U A T E S T U D I E S (Faculty of Law) We accept this thesis as conforming to the/requij^jd sQidard T H E U N I V E R S I T Y OF B R I T I S H C O L U M B I A July 19, 2002 © Dalee Sambo Dorough, 2002 In presenting this thesis in partial fulfilment of the requirements for an advanced degree at the University of British Columbia, I agree that the Library shall make it freely available for reference and study. I further agree that permission for extensive copying of this thesis for scholarly purposes may be granted by the head of my department or by his or her representatives. It is understood that copying or publication of this thesis for financial gain shall not be allowed without my written permission. Bepactaefit- of L& *J The University of British Columbia Vancouver, Canada Date otf.U' 8, DE-6 (2/88) A B S T R A C T M y thesis is that Indigenous peoples, as distinct people, are entitled to the full affirmation and explicit recognition of the right to self-determination in the context of 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 of 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 of 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 of racial discrimination is considered by numerous authorities to be a peremptory norm. Throughout the draft Declaration debate, a number of states have proposed wording that would dramatically alter the scope and content of the right to self-determination, thereby limiting, qualifying or modifying this right in the context of indigenous peoples. Any state proposals to qualify, limit or modify the right of indigenous peoples to self-determination would be racially discriminatory. If Article 3 of 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 of other peoples. It might also have the effect of wrongfully freezing the interpretation of 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 of the rule of law in the context of 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 of the human rights framework, the United Nations system and nation-states themselves wi l l seriously erode the very concepts of democracy, human rights and the rule of law. i i T A B L E O F C O N T E N T S A B S T R A C T i i T A B L E O F C O N T E N T S i i i A C K N O W L E D G E M E N T S v C H A P T E R 1 1 A ) Introduction 1 B) Theoretical Constructs 6 C) Structure O f Dissertation 29 C H A P T E R II INTERNATIONAL PROCESSES TOWARDS INCLUSION OF INDIGENOUS PEOPLES 37 A ) The United Nations Working Group on Indigenous Populations and the draft Declaration 37 B ) Other United Nations Initiatives 57 C) Growing International Trend to Accommodate Indigenous Status 68 D) World Intellectual Property Organization 82 E) Arctic Council 84 F) Human Rights Treaty Bodies 85 G) Intersecting approaches and positions: the revision of I L O Convention 107, the O A S Proposed American Declaration on the Rights of Indigenous and the draft U . N . Declaration on the Rights o f Indigenous Peoples 91 C H A P T E R III CAPACITY OF THE HUMAN RIGHTS FRAMEWORK TO ACCOMMODATE INDIGENOUS PEOPLES I l l A ) International Human Rights Framework I l l B) Nature of Human Rights 132 C) Human Rights, Democracy and the Rule o f Law 139 D) Capacity to Accommodate Indigenous Rights within the Human Rights Framework 144 C H A P T E R IV ONGOING CHALLENGES FACING INDIGENOUS PEOPLES 146 A ) The lack of a definition of the term "peoples" 147 B) The term "Indigenous Peoples" 149 C) Important elements of the status and rights of Indigenous Peoples as distinct peoples 162 i i i D) Concept of the right to be different 168 E) Collective Rights 172 F) Important matter of genocide 181 G) Conclusion 196 C H A P T E R V THE ONGOING DEMAND FOR EQUALITY. 198 A ) The right to self-determination 198 B ) The term "Indigenous Peoples" and the right to self-determination 201 C) Indigenous perspectives on the right to self-determination 215 D) State positions 220 E) Present state government positions 225 F) The legal imperatives should follow the moral imperatives 231 G) Position of the United States - A n Increasing Anachronism 236 H) Essential International Obligations of States and Peremptory Norms of International L a w 244 I) Where do we go from here? 249 C H A P T E R V I THE CONTINUING EXERCISE OF THE RIGHT TO SELF-DETERMINATION 260 A ) The denial of the right to self-determination: The Alaska Native Claims Settlement Act of 1971 261 B) Political organizing and use of international human rights mechanisms 273 C) Litigation and human rights complaints 274 D) Negotiation 277 E) Indigenous community-based work 277 B I B L I O G R A P H Y 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 A C K N O W L E D G E M E N T S 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 of 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 of my husband, Luke, is unmatched. I cherish him as a partner, peer and as a person with the highest of 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 ICC, have all contributed to the development of 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, Mi l i l an i Trask, John Henriksen, Victoria Tauli Corpus, Paul Joffe, Maivan Clech Lam, David Maas, and Sarah Pritchard. I am especially grateful to Professor June McCue for her determination, grounding and belief in the legitimacy of 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 of formatting the text. Too many Inuit have come and gone without respect for and recognition of their basic and fundamental human rights. It is only through our individual and collective efforts that we wi 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 C H A P T E R I "Eurocentric thinkers automatically assume the superiority of 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 of the people of the earth and their views of 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 3 of the northwest coast of Alaska are my ancestors.4 I often think of the lives they must have led, when peace and security had very different meanings. I think of my great grandmother who cleaned skins with a handmade scraper in an effort to prepare them for the making of beautiful but utilitarian clothing to survive in the harsh Arctic environment. I think of my grandfather. A man who ensured that no one in the community went hungry despite the laws and fish and game regulations conceived of far away from the village. A man who did not like being inside buildings and who grew furious and frustrated at the thought of 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. 2 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. 3 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. 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 of my mother, whose youth disappeared in the Bureau of Indian Affairs boarding school at Mt . Edgecumbe, where she learned "home economics," and was swiftly punished for speaking her own language. I think of 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 of my maternal uncle and his alcoholism and the fact that he was one of many faceless, voiceless Alaska Natives who died in a downtown alley of Anchorage, to this day, of "unknown causes." I think of 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 of many Inuit women and men of 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. On many occasions, like my grandfather, I ask myself what have I learned? Sometimes I regret not having had more of 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 of anger over what I've learned about law and its 2 impact upon indigenous peoples, I remain optimistic and hopeful. The analogy of 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 of Native peoples in modern society. Each of us, as Native people, are an integral part of our overall survival as indigenous peoples. Each of us is sewn with intricate, ingenious designs that no others have imagined, created or demonstrated. Each of us has a role; each of us promotes or protects some aspect of our collective identity. Some of us may sew our skins together, to make a larger shelter for many. I do believe that we can and wi 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 of ability to speak, to articulate why Native people want what they want. Furthermore, consistent with Inuit values, I feel a sense of 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 wi 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 of 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 of Inuit leaders to organize themselves throughout the vast Inuit homelands of the Arctic and sub-Arctic regions of 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 of Inuit in Alaska as well as on behalf of the I C C . 7 Personally and professionally, I have played an active 5 In particular, I owe a debt of gratitude to the late Eben Hopson, an Inupiat from Barrow, Alaska, who was the first Mayor 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. 6 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). 7 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 the first gathering 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 4 and direct role in the development of 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 of indigenous legal perspectives in the context of international human rights law. Because of 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 President from 1982-1989. 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. 8 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. 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 of the draft Declaration itself bears out the inadequacy of traditional legal discourse and mainstream legal thought in relation to accommodating the unique status and rights of indigenous peoples. The draft Declaration and its development both illustrate the existence of a deep chasm between indigenous peoples and the dominant society in the area of 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 of a "legal theory" to support my thesis. I am not one for "fancy theories"9 nor 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 of most theories, and the result was often unnecessary perplexity and the blurring of 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 of 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 of superiority, obedience all appear to be pivotal features of western legal theories. Few approaches address inequality and most are absent the distinct perspectives of 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 of the Aboriginal & Torres Strait Islanders Commission have reiterated this fact throughout the discussions at the United Nations, as well as at home in Australia. 1 0 In his 1995 presentation, Dodson stated that there has been a "collision of two systems of law" and urges the reconciliation of such systems within the framework of human rights standards. He argues that a cultural context must be included in the discourse of human rights and the interpretation of domestic law concerning indigenous peoples' status and rights by the courts. There is a growing recognition of the need for a different "conceptual framework," by both indigenous and non-indigenous scholars. For example, Professor Robert A . Williams suggests: , . 9 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." 7 "Pushed to the brink of extinction by the premises inherent in the West's vision of the world and the Indians' lack of a place in that world, contemporary tribalism recognizes the compelling necessity of articulating and defining its own vision within the global community. 1 1 Author M a i van Lam, 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 of 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 of indigenous peoples in the 1980s and 1990s. This struggle took shape against a background (and foreground) of exclusion, discrimination, and persecution, even extermination, assimilation, and marginalization - all factors expressive of confusing admixtures of arrogance, racism, and ignorance. These extraordinary efforts of indigenous peoples to protect the remnants of their shared civilizational identity, an identity that was coherent and distinct only in relation to the otherness of modernity, achieved two results . . . : first of all, it exposed the radical inadequacy of a civilizationally "blind" approach to human rights, by which is meant the utter failure of the modernist instruments of human rights to address in any satisfactory way the claims, values, grievances, and outlooks of indigenous and traditional peoples; and second, transnational activism by indigenous peoples in the last decades has given rise to an alternative conception of rights 1 0 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. 1 2 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 of various legal theories is not possible here. However, a quick survey of issues in legal theory wi 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 of 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 of 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 of 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 of new norms and new approaches to the role of 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 of indigenous peoples. Indeed, Richard Falk further notes that: ".. .this recent authentic expression of indigenous peoples' conception of their rights contrasted with that of 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 of grievance, demand, and aspiration. This alternative conception has been developed by indigenous peoples in an elaborate process of normative reconstruction that has involved sustained and 1 3 R. Falk, Human Rights Horizons: The Pursuit of Justice in a Globalizing World (New York/London: Routledge, 2000) at pp. 151 -152. 9 often difficult dialogue among the multitude of representatives of indigenous traditional peoples...." 1 4 There is no question that the views of indigenous peoples expressed at the international level are legitimate views, and may form the basis of a new theoretical framework or a "reconstruction" of norms. However, unfortunately, little thought has gone into legal theory and legal studies by indigenous peoples, with the exception of the efforts of the small but deep (and growing) pool of indigenous legal scholars who are attempting to take stock of our place in the world of legal theory in a formal, academic fashion. Such efforts are few and far between, primarily because of the urgent nature of 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 of 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 of the limitations of traditional legal discourse. In addition, the use of storytelling and counter-storytelling and the overarching proactive notion or objective of 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 of Inuit to the work of the draft Declaration. 1 5 When viewed in this way, I am the practice. Myse 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 of the Declaration process is to recognize the distinct place of indigenous peoples in the context of international human rights law and thereby uplift the status and conditions of indigenous peoples through the principles of equality and the rule of law. Above, I use the term "temporarily" because Critical Race Theory, upon closer inspection remains yet "another Western theoretical framework." 1 6 Though I understand 17 * the basic objectives of Critical Race Theory and its emphasis on exclusion, subordination and use of "racial power" in international and American law, I cannot help being disturbed by the negative connotations of race and difference. For example, references to people of color as "outsiders" or from the "bottom" or use of 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 of an "out group." M y natural inclination or response is to advance indigenous peoples by emphasizing indigenous 1 3 Ibid. 1 6 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. 11 culture and difference in a positive fashion, to promote notions of 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 of the legitimacy of their life ways, values and perspectives by advancing their understanding of how law operates within their societies, as well as in their interactions with "outsiders." Furthermore, many of 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 of 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 of the term "cultural differences" rather than "racial difference" because of the more "expansive" nature of the former. She states that "cultural differences should be understood more as manifestations of differing human (collective) imaginations, of different ways of knowing." She adds that "cultural differences are differences between ways of knowing, describing, or understanding." Turpel asserts that the efforts of indigenous peoples, in their use of "human rights terminology" is actually a "plea for recognition of a different way of life, a different idea of community, of politics, of spirituality, differences that have 1 7 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." 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 Convention19 and the 1978 United Nations Educational, Scientific and Cultural Organization (UNESCO) Declaration denouncing theories of racial superiority20 both place emphasis upon the "persons committing" such acts or the 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 1 8 ME. Turpel, "Aboriginal Peoples and the Canadian Charter: Interpretive Monopolies, Cultural Differences," supra note 2 at 503. 1 9 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. 2 0 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...." 13 define these so-called races have in themselves a racist connotation, in that generally they aim to demonstrate not only some common denominator of physical characteristics, such as type of 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 of a social group defined by somatic visibil i ty ' . Nevertheless, in popular usage the concept of 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." 2 1 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 of 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. On the contrary, I utilize Critical Race Theory to demonstrate the limitations of existing theories and frameworks and, where appropriate, I utilize the term "race" to point out the discriminatory actions of States. This dynamic wi l l be discussed further in the context of the right of 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 of 2 1 W.A. Schabas, Genocide in International Law (Cambridge: Cambridge University Press, 2000) at 122-123. [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 14 Critical Race Theory and rights discourse, in very real terms. M y efforts and those of other indigenous advocates have not been abstract discussions concerning theory and rights. Rather, we have been sharing our experiences of colonization, domination, subjugation and exploitation and how attitudes of superiority practiced by so-called "civilized" peoples have affected our indigenous communities, nations and peoples. Like other Critical Race Theory proponents, scholars, and practitioners, we are sharing our perspectives in an effort to reconstruct relationships that genuinely wi l l accommodate our place in society, a society where the equal application of the rule of law wi 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 of our fundamental rights. The methodology can be summarized as a very direct, personal account of my participation in the human rights standard setting process. I have taken my story, my experiences and the history of my people to the international arena. Through such participation, I have sharpened my understanding of the human rights framework and gained additional tools to expand rights discourse into the field of indigenous human rights development. Furthermore, the theoretical construct of the right of indigenous peoples to self-determinaiton (within a human rights framework) plays a central role in the analysis of the capacity of international law to accommodate indigenous peoples and second quoted phrase: E.F. Borgatta & M.L. Borgatta, eds., Encyclopedia of Sociology (New York: Macmillan, 1992), p. 1617. 15 to ensure equality. I have also relied upon the writings of 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 of indigenous peoples at the United Nations and in the context of the right to self-determination, there is virtually no literaure on the work in the Commission of Human Rights Working Group on the draft Declaration. Therefore, throughout the course of 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 of an abstract concept and my more layperson view of it. While explaining the topic of my thesis to a friend, I was asked the question of 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. As stated by scholar Vine Deloria: 2 2 See generally the UNESCO Universal Declaration on Cultural Diversity, Resolution 25, adopted by the General Conference at its 31st session, and based upon the report of Commission IV at the 20th 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, inseparable from respect 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." 16 "American Indians are a unique branch of the human family possessing a wide variety of cultural expressions, origins, and traditions. The very diversity of 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 of Indian life have dissolved when the particularities of tribal existence have been noted." 2 3 Among Inuit alone, there is immense economic, social, cultural, linguistic and political diversity. However, in the context of 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 of attaining a strong United Nations Declaration on the Rights of 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 of universal themes have emerged, some based upon our shared experience of colonialism but moreover based upon long-standing indigenous values, rules or methods of social control. Many of the universal aspects of indigenous law reflect the relationships between individuals, kinship 2 3 V. Deloria and C. Lytle, American Indians, American Justice (Austin: Univ of Texas Press, 1983) at 1. 17 and collective relationships, as well as responsibilities toward others and all living things. 2 4 Such worldviews are preserved and promoted through indigenous languages 2 5 and our spiritual customs and practices, legends and stories. In other settings, they are often simply referred to as "values" such as respect, cooperation, consensus decision-97 making, sharing and the importance of family, kinship and future generations. Though I discuss the work of indigenous peoples at the United Nations with terms such as the "indigenous peoples' position," I do not mean to create a pan-indigenous world of homogeneity nor peaceful relations amongst all concerned. In contrast to the stereotypical ideal of the peaceful and harmonious Native peoples, we are not all one big happy family. On the contrary, the gradual politicization of the so-called "Indigenous Caucus" has spawned a wide-range of opposing indigenous viewpoints. Heated differences have emerged over strategy, tactics, interpretation, dialogue with states or no dialogue with states, negotiation of the text or no negotiation of the text, no changes, amendments and deletions to the original Sub-Commission text or 2 4 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). 2 5 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." 2 6 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." 2 7 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). 18 willingness to review and consider state proposed changes, amendments or deletions to the draft text, and so on. Despite the reality of differences and diversity, the objective of 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 wi l l somehow remain unscathed yet still be regarded as the Universal Declaration on the Rights of Indigenous Peoples. Another group of indigenous peoples have espoused a program for "ethical engagement"2 8 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 of indigenous peoples, nations and organizations are prepared to "negotiate" with states under a set of indigenous advanced "terms of reference to develop the strongest text possible within the United Nations. And , yet another approach has emerged: to establish an indigenous advisory group to provide technical and legal assistance to 30 indigenous peoples in their article-by-article consideration of state proposed changes. The diversity of indigenous peoples and views, as well as the diversity of individual personalities, ideologies and politics has been compounded by the recent hyper-politicization of 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 2 8 Memorandum by the Indian Law Resource Center, 1998, 2 9 Statement by Inuit Circumpolar Conference, 2002 Session of the CHRWG. On file with author. 19 respect, consensus, and honorable relations. Nevertheless, they are our sessions and our ways and means of gathering and uniting to influence the one document that we believe to be a culmination of universal minimum standards to protect and preserve our distinct peoples, nations and communities. 3) Universality of International Law Again, throughout my research and discussion with John Borrows, an early Committee member, I came upon the perplexing concept of "universalism" when I thought the matter was pretty straightforward. Here's my understanding of the "universal" nature of international law. Amongst members of 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 of law that applies to all peoples regardless of race, culture, values, beliefs, religion, or political institutions. I do not mean the universalization or globalization of the extreme positivist interpretation of 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 of international law in the nineteenth century as a body of law confined to relations amongst and between states is the prevailing view. However, more recently, in the area of international human rights law and in particular, questions relating to the right of self-J Memorandum by Maori lawyer, Tony Sinclair, outlining the proposed advisory body was circulated at the 7 l h session of the Commission on Human Rights working group on the draft Declaration. On file with author. To be discussed below. 3 1 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. 20 determination, it is "peoples" that are of concern and not merely "states." It is in this context that I assert that international law does not include the perspectives of indigenous peoples and therefore, at present, it is not universal. The ongoing reality of colonization and the "Age of Empire," has limited the universal reach of international law, and it is such attitudes that continue to shape and inform the current positions of state actors involved in the draft Declaration process. It is the exclusion of indigenous perspectives, the denial of rights and the persistent attitudes of 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 of states has been revealed and demonstrated through their attempts to maintain an old world view of international law, even within the human rights processes of the United Nations. Such actions have led states away from their obligation to genuinely fulfill the objective of contributing to the progressive evolution of human rights standards to favor the maintenance of the status quo. This thesis intends to advance from this point - to use the present debate of the C H R W G as a point of departure. This thesis aims to contribute to the realization of the "universality" of international law: a body of law that w i l l , through word and deed, be universal by including indigenous peoples' worldviews and perspectives. 3 2 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. 3 3 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. 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 of 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 of humankind is therefore not reflected in international law. Given this absence or exclusion of indigenous legal perspectives, the Law of 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 of 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. 3 4 The evolution and development of legal doctrines and legal thinking by members of the dominant society 3 5 have shown little capacity to respond to the rights, status and aspirations of indigenous peoples. The basic assumptions of superiority and other colonial attitudes upon which international law is built, heavily 3 4 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. 3 5 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. 3 6 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. 22 contributed to the devaluation of the fundamental rights of indigenous peoples. Furthermore, the narrow interpretation of international law by national governments and domestic courts and the often-discriminatory nature of internal laws and policies have contributed to the intolerable conditions that many indigenous communities continue to face. 3 8 Due to this reality, indigenous peoples have persistently sought international recognition or acceptance of their unique place in world society. With the formalization of a new "family of nations" through the establishment of the League of Nations, Deskaheh, a Chief of the Iroquois Confederacy, visited Geneva, Switzerland in 1922 to seek out justice and to bring forward the views of his nation concerning future relations between his peoples and the newcomers. 4 0 Though Deskaheh did not gain access to the League of Nations as a representative of a sovereign Indian people, his journey has had a lasting impact. Indigenous peoples 3 7 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 Progress (3d ed. 1990). 3 8 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. 3 9 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. 4 0 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. 23 have continued to embark on similar journeys as that of Deskaheh, compelled by many of the same problems: persistent abrogation and non-fulfillment of treaties; non-recognition of the distinct status of indigenous peoples; and lack of respect for their fundamental rights and values. 4 2 In dramatic contrast to the early blatant acts of genocide perpetrated against indigenous peoples and later imposition of "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 of indigenous human rights in Latin America 4 3 However, conflicts such as the Chiapas uprising and other armed skirmishes continue. In the course of the last forty years or so, indigenous peoples have had greater ability to organize themselves to improve their conditions and to increase recognition of their rights through law and policy, litigation, national dialogue and enhanced leadership opportunities. Examples of national laws and policies, which protect and promote indigenous self-government, land rights and other rights can be cited. Yet full accommodation of indigenous rights remains elusive. Domestically, remnants of the same colonial approaches have been applied with nuance and subtlety and, therefore, 4 1 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). 4 2 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. 4 3 See Foreword to Indigenous World, Vol. 3/98. 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 4 4 have been working at the international level to shift the assumptions away from Eurocentric 4 5 or dominant thinking and definitions and move them closer to the realities of 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 of human rights has become more promising than past experience. 4 6 We are now witnessing the construction of a new phase of norms and mechanisms through the "international hearing" of indigenous voices, languages, and 4 4 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. 4 5 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, Hindu-centric or Javanese-centric views as well. 4 6 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 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 ' * 48 * international recourse for the violations of our fundamental human rights and ultimately expanding the range of international human rights law. In many respects, the world community is witnessing dramatic changes in the nature of political and economic relationships between states, as well as changes in the international legal order due to the emergence of new states.49 In addition to the changes brought about by the expansion of capitalism, such changes are also the result of the international community's realization of the need to accommodate and recognize the manifestation of diverse interpretations of human rights. To be sure, there remains a reticence on the part of states to embrace minorities and indigenous peoples. And , many indigenous peoples remain concerned about the role and power of the dominant society even within this sphere. Yet, Mary-Ellen Turpel's assertion about the "interpretive monopoly" of the dominant society is one of the compelling reasons for indigenous peoples to dismantle or deconstruct that monopoly in order to ensure that "cultural difference" is recognized rather than repressed. 5 0 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). 4 7 See generally S. Weissner, "Rights and Status of Indigenous Peoples: A Global Comparative and International Legal Analysis," 12 Harv. H.Rts. J. 57 (1999). 4 8 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. 4 9 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). 5 0 Turpel, "Aboriginal Peoples and the Canadian Charter," supra note 2. 26 "[t]he diversity of the people of the earth" is finally gaining some acceptance or currency within the international community. 5 1 Throughout the course of the indigenous human rights standard setting process at the United Nations, indigenous peoples have been consciously and unconsciously contributing to the development of "indigenous legal theory" and legal perspectives. Legal theory in this context can be described as a distinct legal school of thought, "distinct worldviews," 5 2 philosophy or ideology. We are effectively introducing, to the international community, our conceptions of law or a legal school of thought by expressing and further defining our values, customs and practices. There are a growing number of fundamental indigenous "values" or concepts being addressed and discussed in a universal fashion. Regardless of 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 of social control and relations within and between indigenous communities, as well as their organized societies, are evidence of procedures and institutions for collective decision-making. These organized societies were not chaotic and arbitrary (which would be a contradiction of terms). It is clear that indigenous societies were highly organized, with established customs, practices and 5 1 Battiste and Henderson, supra note 1. 5 2 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. 53These expressions range from descriptions of indigenous measures for social control and relations to self-government and long-standing indigenous values, such as respect, cooperation, consensus decision-making, sharing, and the importance of family, kinship and future generations. 27 institutions, which have been recognized by judicial institutions and others. Most, i f 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,"55 propped up law and legal pedagogy and repeatedly distorted and 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. 5 4 Recent examples of judicial recognition of indigenous perspectives include the Delgamukw v. British Columbia decision by the Supreme Court of Canada, [1997] 3 S.C.R. 1010, 153 D.L.R. (4th) 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." 5 5 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). 5 6 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." 28 Some may argue that it is inappropriate to label the thinking or the worldviews of indigenous peoples a "legal theory." Indeed, it has often been difficult to illustrate or fully articulate the cultural differences and perspectives of 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 of the draft Declaration, then the doctrines and legal theories of the dominant society wi l l overwhelm the text and result in undesirable assimilationist language, 5 7 stifling opportunities for and aspirations of 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 of 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 wi l l address the international human rights framework and in particular, the status and rights of indigenous peoples within the United Nations human rights standard setting process and the necessity to accommodate indigenous legal 5 7 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." 29 perspectives and indigenous peoples status and rights within the draft Declaration. It is safe to say, that this work is at the heart of the international indigenous movement of resistance to assimilation, to engage in dialogue and to gain respect for and recognition of their distinct rights. In this context, Chapter IV of this thesis wi l l focus upon and highlight the significant advances made, and the contentious issues that have arisen, due to the dynamic of direct participation of indigenous peoples, nations, and organizations. The United Nations arena has allowed for the free expression of indigenous world perspectives, and specifically our conception of our place in both the political and legal realms of society. 5 9 This international stage allows one to spotlight indigenous legal perspectives within the scope of normative development of human rights. This forum also offers some useful benchmarks concerning the transformation or incremental change in the dynamics of relationships between indigenous peoples and states, as well as the return of Indigenous Peoples to the international stage.6 0 Chapter V wi l l survey the right of indigenous peoples to self-determination and the ongoing challenges facing indigenous peoples and wi l l focus upon those states that have been most resistant to recognizing and advancing indigenous perspectives of 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 5 8 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). 5 9 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. 6 0 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. 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 of 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 wi l l offer a brief discussion of the denial of the right to self-determination in the context of my own peoples in Alaska. In addition, the conclusion wi l l succinctly address how the emerging international indigenous human rights standards can contribute to genuine change within indigenous communities and in the re-shaping of 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 of 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 6 1 and maintain traces of the same colonial attitudes of 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 of this fact. The most active states continue to make proposals that would significantly dilute the emerging international standards and they are often unwilling to 6 1 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. 6 2 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. 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 of 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. At all levels, indigenous peoples have taken the lead and are making increased efforts to achieve the goal of a strong Declaration. 6 4 Largely, and with the help of the United Nations agencies and organs, states are being propelled toward this goal. If indigenous peoples can generate real dialogue and enhance understanding about their rights, status and values, they wi l l gain greater respect for and recognition of indigenous rights as human rights. 6 5 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 of the 6 3 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. 6 4 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. 6 5 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). 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. 6 7 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 of indigenous peoples. At a minimum, the international community must broaden the scope of existing western constructs of international human rights law to ensure our distinct cultural context. In the end, the real measure wi 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, 6 8 it is safe to say that the document has the universal support of 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." 6 7 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. 6 8 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 33 commonly shared concepts reflecting views from all parts of the world. The methodology used to create the declaration has made it a common declaration. 6 9 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 of the right to self-determination by 70 peoples is one of the oldest concepts in modern international law. Through the declaration, we are introducing an indigenous cultural context to the right of self-determination. Similar to regional instruments and organizations such as the Arctic Counc i l 7 1 and the Inuit Circumpolar Conference 7 2, which are expressions of unique regional conditions, so to the draft Declaration is an expression of an appropriate cultural context for the exercise and enjoyment of collective and individual human rights of indigenous peoples. 73 Finally, all cultures contribute to the common heritage of humankind. Therefore, the answer to Mary Ellen Turpel's question concerning the reconciliation of cultural differences in the legal domain must be yes. To conclude the opposite would of the WGIP, the year before it transmitted the draft Declaration t its parent body. Hence, the c ncern over rushing the text and the meaning of Article 31 vis-a-vis Article 3. 6 9 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." 7 0 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. 7 1 See Declaration on the Establishment of the Arctic Council, I.L.M., Vol. 35, 1996, pp.1, 387ff. 7 2 A. Lynge, Inuit, supra note 6, which chronicles the history and establishment of the ICC. 34 suggest cultural superiority or imperialism of one culture over another, which is inconsistent with established principles and peremptory norms of international law. For 76 states to avoid violation of their own norms and to avoid denial of their own obligations they must, first and foremost, recognize the legal, political and historical reality of 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 wi l l have begun the path toward reconciliation of cultural differences in the legal domain and elsewhere. Through greater recognition and sensitivity we could avoid discrimination and double standards, such as the denial of recognition of 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 of non-indigenous peoples. A s Robert A . Williams writes in the context of 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. 7 4 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." 7 5 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 ... from which 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. 7 6 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, non-discrimination and the prohibition of racial discrimination. 3 5 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 of 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) The United Nations Working Group 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 of 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 and the Inter-American Indian Institute of the Organization of American States. Despite what may have been good intentions, both of these entities have been characterized as undertaking See S. Venne, Our Elders Understand Our Rights: Evolving International Law Regarding Indigenous Rights (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. 7 9 Convention Providing for the Creation of an Inter-American Indian Institute, Nov. 1, 1940, T.S. No. 978, 3 Bevans 661. 8 0 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. 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 of the United States, this period has been 82 referred to as a period of "allotment and assimilation." Prompted by a number of factors, 8 3 dynamics began to slowly transform such policies away from assimilation and integration of indigenous "objects" toward indigenous peoples becoming "subjects" in the dialogue concerning their status and 84 conditions, and eventually bringing into focus the concept of fundamental human rights. 8 1 See S. Venne, "The New Language of Assimilation: A Brief Analysis of ILO Convention 169" in Without Prejudice, The EAFORD International Review of Racial Discrimination, Vol II, No. 2 (1989) at •53. 8 2 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 and fragmentation of 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 a free and 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." 8 3 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." 8 4 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 38 This era was followed by the constantly growing movement of indigenous peoples as direct actors in the human rights discourse of the United Nations and other international fora. In addition to the changes within the indigenous world and those of 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 of "promoting and encouraging respect for" their human rights within this formal international organization. This groundswell of positive progress has had a contagious effect upon other international and regional, inter-governmental 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. 8 5 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 of peoples, 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 and for 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 of 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 of indigenous representatives participating at the United Nations has been steadily growing since the 1970's. 8 6 In addition to Tribes, First Nations and numerous indigenous organizations and peoples of Latin America, today, we are seeing the regular participation of representatives of the Maori of New Zealand, the Aboriginal and Torres Strait Islanders of Australia, representatives from the Chittagong H i l l Tracts, the Cordillero Peoples Alliance of the Philippines, A i n u of Japan, the Masai of Kenya, the various Small Nations of 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 of persistent efforts by indigenous peoples at every stage. Much credit is due to indigenous peoples and their 88 communities and organizations for opening doors that have previously been shut. A t 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. 8 7 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. 8 8 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. 40 helped to push the doors open from the inside and made an important contribution to the 89 much-needed bridge building between indigenous peoples and states. It is also important to note that prior to and throughout the establishment of the U . N . Working Group on Indigenous Populations, a number of trans-national indigenous initiatives were simultaneously emerging. In particular, the founding of the World Council of Indigenous Peoples (WCIP) , 9 0 a worldwide indigenous peoples organization, and the International Indian Treaty Council ( IITC) 9 1 took place. The W C I P subsequently collapsed in a midst of political divisions and corruption. However, the IITC continues to play an active role in international developments. Also , as mentioned in the introductory chapter, the Inuit of 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. 9 2 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 (NGO) status. The creation of these various international indigenous-controlled organizations should be recognized as the 8 9 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. 9 0 D. Sanders, "The Formation of the World Council of Indigenous Peoples," (1977) International Work Group for Indigenous Affairs, Document No. 29, Copenhagen. 9 1 The following information was downloaded from the "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." 41 trumpeters for the growing trend toward the internationalization of indigenous issues. On 93 numerous domestic fronts, a number of 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 At the international level, the more recent history has been challenging yet encouraging. Within the United Nations, which represents the pinnacle of institutions for the promotion of human rights, the first substantive foray into indigenous matters was the initiation of a study on the problem of discrimination against indigenous populations, in order to identify measures and make recommendations for eliminating such discrimination. 9 4 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 of Minorit ies. 9 5 Though the report was not yet complete, one important decision stemming from this work was the establishment of the Working Group on Indigenous Populations (hereinafter WGIP) by the Sub-Commission 9 6 on the Prevention of Discrimination and Protection of Minorities. The mandate of the WGIP was to review the status and conditions of indigenous peoples worldwide and to "give attention to the evolution of standards concerning the rights of indigenous 9 2 "INUIT," a publication by the North Slope Borough describing the first meeting of the Inuit Circumpolar Conference, 1977. On file with author. See also A. Lynge, Inuit, supra note 6. 9 3 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. 9 4 U.N. Economic and Social Council (ECOSOC) Resolution 1589 (L), 21 May 1971, para. 7. 9 5 See Martinez Cobo Study, supra note 36, and the Sub-Commission Resolution 8 (XXIV) of August 18, 1971. 9 6 ECOSOC Resolution 1982/34, May 7, 1982. 42 populations, taking account of both the similarities and differences in the situations and aspirations of indigenous populations throughout the world." The WGIP is a panel of 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 WGIP session took place in 1982 and they have met annually in late July/early August. One exception was the 1986 cancellation due to lack of funds to support their one-week meeting. The earliest discussions amongst the five-member W G I P concentrated on the review of developments and the hearing of 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 of 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 of nation-state perpetrators of genocide and other gross violations of human rights. Such a response was 43 often frustrating and left some early indigenous participants disillusioned by the capacity and intent of the forum. 9 7 In regard to early nation-state member participation, this too was limited to those states that, first of 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 of a domestic nature and that the world community had no standing to determine, define or pronounce upon the status, Q O conditions, let alone the rights, of "their" indigenous populations. There was general agreement amongst the WGIP members that their reviews were useful in terms of gaining an understanding of the content and form of 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 of "a Draft Declaration on Indigenous Rights" for eventual adoption by the United Nations General Assembly. 9 9 After brief experience with the formal sessions of the WGIP , it became clear that further indigenous-initiated 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 WGIP draft Declaration a topic of discussion. The assembly participants agreed that indigenous peoples themselves should prepare a declaration for delivery to the WGIP , and a small committee was immediately organized 9 7 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. 9 8 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. 9 9 UN Doc E/CN4/Sub 2/1985/2, Annex II. 44 to draft such a text. 1 0 0 The assembly participants unanimously adopted the seventeen-point text and delivered it to the 1985 session of the WGIP and requested that it be annexed to the official U . N . report of the W G I P . 1 0 1 This text makes explicit reference to the right of indigenous peoples to self-determination 1 0 2 and mirrors the language found in the International Covenants. 1 0 3 Also, a number of international indigenous non-governmental organizations, which recognized the limitations of the one-week sessions of the W G I P and being cognizant of 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 of international indigenous Non-Governmental Organizations: the Indian Law 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 Counc i l . 1 0 4 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. 1 0 1 U.N. Doc. E/CN.4/1985/22, Annex 2 (1985) 1 0 2 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." 1 0 3 The language is borrowed almost verbatim from Article 1(1) of the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. 1 0 4 Coulter, "Les Indiens," supra note 41. 45 the course of action of the WGIP members and had a direct bearing upon their decision-making in terms of their scope of work and future agenda setting. 2. The draft Declaration At the 1985 indigenous peoples' preparatory meeting, leaders determined to adopt a Declaration of Principles on the Rights of Indigenous Peoples as another method to influence the work and agenda of the W G I P . 1 0 5 The twenty-two-point declaration, 1 0 6 like 107 that of the WCIP , emphasized the importance of the right of self-determination. The 108 * document was also more informed by other human rights instruments. The indigenous text was annexed to the report of the WGIP , which decided that year to begin the drafting process albeit quite differently from the methodology indigenous peoples had envisioned. 1 0 9 Because of the strong and unified positions of indigenous peoples, on a number of occasions, the W G I P Chairperson had to carefully and diplomatically encourage the ongoing participation of states and indigenous peoples. In this way, the standard setting 1 0 5 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. 1 0 6 UN Document E/CN.4/Sub.2/1987/22, Annex 5 (1987). 1 0 7 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." 1 0 8 Examples of this include reference to "permanent control" and enjoyment of renewable and non-renewable 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. 1 0 9 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 46 process could continue, despite the regressive positions of the few active states present. The first draft principles tabled at the WGIP 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 of the W G I P members 1 1 0 and reiterated the unified position of indigenous representatives: the foundational principle of the right of indigenous peoples to self-determination must be dealt with squarely by the WGIP in order to provide a suitable context for the consideration of all other indigenous human rights. The period from 1988 to 1993 is the time frame wherein the text of the draft Declaration really began to take shape. Informed readers wi 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 of Convention No . 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 of informal drafting groups were organized, which included the WGIP members, and indigenous and state government representatives. This was a critical turning point for indigenous peoples in terms of the advancement of the paramount right of 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 of the right against the backdrop of the break up of Yugoslavia, the homeland of 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 of self-determination by indigenous peoples. In addition, the Grand Council of the Crees and other First Nation representatives were in the midst of the growing Canadian national debate over the Charlottetown Accord. This debate propelled Aboriginal leaders and organizations to the forefront of the "nation-building" effort, which necessitated the sharpening of indigenous arguments, in a constitutional framework, to support the distinct rights of Aboriginal peoples in the face of demands of unfettered exercise of the right to self-determination by the Francophone population of Quebec. 1 1 1 The Crees and others echoed their arguments at the United Nations, furthering the exploration of the right to self-determination within the 1991 WGIP informal drafting group. The persistent efforts by indigenous peoples culminated in the inclusion of explicit reference to the right of self-determination, as well as a number of references to the principle of the right of self-determination in the 112 Preamble of the draft Declaration. 1 1 0 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. 1 1 2 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." 48 In 1993, the W G I P completed its work and transmitted the text for approval to the Sub-Commission on the Prevention of Discrimination and Protection of Minorities in 1994. 1 1 3 The Sub-Commission adopted the draft Declaration by passage of Sub-Commission Resolution 1994/45. The full text of the draft Declaration is set out in Appendix A of 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 inter-sessional working group... with the sole purpose of elaborating a Draft Declaration, considering the draft contained in the annex to resolution 1994/45 of 26 August 1994 of the Sub-Commission on the Prevention of Discrimination and Protection of Minorities, entitled draft 'United Nations declaration on the rights of Indigenous peoples' for consideration and adoption by the General Assembly within the International Decade of the World's Indigenous Peoples." 1 1 4 1 1 3 UN Doc E/CN4/Sub 2/1994/2/Add 1 1 1 4 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. 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 of its members, especially in light of their last minute inclusion of Article 31 addressing autonomy and self-government. This article was immediately interpreted by indigenous peoples as potentially capping the self-determination text of Article 3 thereby freezing indigenous rights. However, the draft Declaration has since been heralded by indigenous peoples as a statement of the minimum standards necessary to safeguard the rights and status of indigenous peoples, nations and communities. Others were more focused upon the future path of the draft Declaration, knowing that it had to climb the ladder of the United Nations. 1 1 6 In hindsight, the success within the W G I P in both the procedural aspects of the work, as well as gaining specific language on the right of self-determination emboldened indigenous peoples in terms of 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 of the preparatory meetings, and the early signs of cracks in the U . N . rules of procedure concerning participation are among a few of the significant developments prompted by the process. For example, on a number of occasions indigenous representatives spoke in their own 1 1 5 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." 1 1 6 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." 50 languages, offered prayers or in the case of the Maori delegation, broke out in 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 of 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 of the more important results is the fact that the most active and influential WGIP 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. 1 1 7 The early criticism of the WGIP , which was and continues to be a largely i i 8 democratic forum in terms of open and direct participation of indigenous peoples, may be somewhat unfair, especially in light of its dramatic contrast to the present circumstances that indigenous peoples are encountering in the context of the draft Declaration in the C H R W G . One example of the WGIP ' 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 1 1 7 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 1 81 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, 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 wil l ing to discuss topics of relevance to its indigenous constituency. The C H R W G has been meeting annually since 1995, with the exception of 2001, when the September 11 t h terrorists attacks delayed the session until February 2002. 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 of the C H R members with significant numbers of 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 of 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 of the working group's sessions, prompting walkouts by indigenous peoples, as well as closed-door meetings of 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 wi l l be discussed fully below, there continue to be problems with the procedural aspects of the U . N . Declaration work as well (in particular, the participation of indigenous peoples). A t the U . N . , one of 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 of the International Decade (or more specifically the staff person responsible at the Office of the High Commissioner for Human Rights for indigenous affairs). The procedures dictate that the Coordinator must contact the respective State concerned for review of 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 of participation of individual indigenous peoples' organizations. Thus far, there has been one case where a government has attempted to bar the participation of 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 of the agenda and organization of work, which has been inconsistent in all sessions of the C H R W G . A t every session this matter has prompted an opening debate about the "modalities of participation" of indigenous peoples, with the 1 1 9 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 53 pivotal point being whether or not indigenous peoples participate effectively in the decision making of 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 of the debates by virtue of 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 of the role, procedures or "modalities of participation" of 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 of sessions take place. For example, there are formal plenary sessions used to adopt the agenda, appoint the Chairperson and adopt the working group report. And , the informal plenary sessions to engage in general debate of overarching issues and specific discussion of the draft Declaration articles, where no formal record exists. Later, because very little constructive dialogue was taking place in the informal sessions, the idea of "informal informal" meetings was introduced. The purpose of 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 of the debate and no attribution of government positions. These were useful to the extent that government representatives were wil l ing 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 of the informal plenary sessions. Furthermore, there is no official record of any of the "informal informal" sessions. In addition to the plenary meetings, both government only and indigenous only delegations have been holding closed door sessions outside of the plenary hall. It is a known fact that the government only sessions have been focused upon re-drafting the articles of 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 of Canada has been facilitating and paying for inter-sessional government-only gatherings to wholly re-draft the text. Through the leak of a document from a government consultation held in Ottawa in October 2001, indigenous peoples learned the extent of 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 of safeguarding the draft Declaration, and remain unified throughout the course of the two-week sessions. Though indigenous peoples are afforded the opportunity to influence the organization of work and the outcome of the draft report, 55 this is done somewhat haphazardly. There is no formal procedure of selection of 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 of 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 of the United Nations and have been able to constructively change the dynamics of 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 of 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 of a number of 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 of other initiatives concerning indigenous peoples has been launched by the United Nations. To a large degree, these activities were triggered by the WGIP work and the review of the conditions of indigeous peoples. In 1989 the United Nations hosted a seminar on the "Effects of Racism and Racial Discrimination on the Social and Economic Relations Between Indigenous Peoples and States" in Geneva, Switzerland. In an unprecedented move, Ted Moses (Ambassador of the Grand Council o f the Cree) was elected as the Rapporteur for the gathering, which was chaired by Ndary Toure of Senegal. 1 2 0 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 of the Seminar address the "principle" of self-determination, rather than the right to self-determination. Such a reference was intended to make the concept more palatable to states in the context of the draft Declaration. To what degree such a characterization of the right had any effect upon states remains difficult to quantify. Unfortunately, many of 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 of United Nations gatherings. 1 2 0 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, HR/PUB/89/5. 1 2 1 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. 57 In 1991, another United Nations Meeting of Experts took place in Nuuk, Greenland, to discuss Self-Government of Indigenous Peoples. 1 2 2 Here again, the meeting contributed to the larger discussion of self-determination and self-government within the draft Declaration dialogue. The experts gathered in Nuuk 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." And , in 1992 the preparations for the World Conference on Environment and Development prompted a gathering on "the role of indigenous peoples in the practice of sustainable development" focusing upon self-development by indigenous peoples consistent with their concepts of sustainable, equitable development, while enjoying their right to own, control and utilize their own resources and institutions in the context of the right to development. 1 2 4 Then in 1996, the Government of 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 1 2 2 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. I 2 j This seminar was chaired by the former Premier of Greenland, Mr. Jonathan Motzfeldt. Ms. Maria Lorenza Dalupan from the Philippines served as Rapporteur. 1 2 4 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. 1 2 5 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. 58 decision-making processes not only in the context of 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 WGIP . Specifically, the United Nations "Study on Treaties, Agreements and Other Constructive Arrangements Between States and Indigenous Populations" completed by WGIP member and Special Rapporteur, Miguel Alfonso Martinez, in 1999. 1 2 6 The seed for the study was planted in the Sub-Commission authorized Martinez Cobo study (discussed earlier) in the form of a recommendation for such a study due to the "paramount importance for indigenous peoples and nations in various countries and regions of the world of the treaties concluded with present nation-states or with countries acting as colonial administering powers at the time in question." 1 2 7 It is significant that the United Nations felt that the matter of treaty-making powers and capacity of indigenous peoples, as well as the solemn treaty obligations and the substance of treaties between indigenous peoples and states, were worthy of in-depth study by the U N . The study surveyed the origins of treating with indigenous peoples in the context of 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 of such instruments as a guide for future relationships between indigenous peoples and states," which suggests that there is much unfinished business concerning the 1 2 6 UN Document E/CN.4/Sub.2/1999/20. 1 2 7 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 nation-States, this work was important in advancing and validating, on the international plane, the status of their respective treaties. Many of them provided the under-funded Special • 128 Rapporteur with substantial support, resources, and documentation. In the wake of the release of the final report, this work came under attack due to the highly political position taken by Miguel Alfonso Martinez on the "definition" of "indigenous peoples." Unfortunately, his views on the topic were interpreted as an exclusion of indigenous peoples in As ia and Africa. The swift response of a large number of indigenous peoples was bordering on complete denunciation of 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. 1 2 9 This report surveys the distinct relationship that indigenous peoples have to their lands, territories and resources, and the history of 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. 1 2 9 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. 60 dispossession of their lands. Again, such an analysis was intended to further the discussion of these crucial matters within the context of the draft Declaration dialogue. Yet, at the same time, the report has been utilized in a number of other human rights and 130 domestic contexts as well . Other complements to the ongoing debate concerning the draft Declaration are the activities of the W G I P focusing upon particular issues, such as the "Report of the seminar on the draft principles and guidelines for the protection of the heritage of indigenous people," which was concluded in 2000. This work resulted in a set of principles and guidelines for the protection of the heritage of 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 of the World's Indigenous People. 1 3 1 Also , 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 of Action, which specifically recognized the "inherent dignity and the unique contribution of indigenous people to the development and plurality of society;" and reaffirmed "the commitment of the international community to their economic, social and cultural well-being and their enjoyment of the fruits of sustainable development." The conference also called upon States to "take concerted positive steps to ensure respect for all human rights 1 3 0 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. 1 3 1 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). 61 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." 1 3 2 The Conference recommended that an the International Decade of 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 of "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 of a Permanent Forum on Indigenous Issues. The idea stemmed from Conference remarks made by Henriette Rasmussen, an Inuit woman from Greenland. Ms . 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 of 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 of the Permanent F o r u m . 1 3 4 In order to develop and crystallize the idea, a number of meetings and two working group sessions on the particular topic of a Permanent Forum were organized. In 1 3 2 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." 1 3 3 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. 62 July 2000, a General Assembly resolution established the forum as a subsidiary organ of the Economic and Social Council, with sixteen representatives: eight appointed by Governments and "eight members to be appointed by the President of the Council following consultations with the Bureau and the regional groups through their • 135 coordinators, on the basis of broad consultations with indigenous organizations...." The General Assembly resolution broadly defines the purpose of 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 of the Council relating to economic and 136 social development, culture, the environment, education, health and human rights." In this regard, the Permanent Forum wi l l operate within the established rules of procedure for subsidiary organs of the Council, and like the W G I P before it, the Permanent Forum wi l l also serve as a repository of information from the various U . N . agencies and organs. 1 3 7 It is difficult to know the present level of 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 wi l l be funded out of the "regular budget of the United Nations and its specialized agencies and through such voluntary contributions 138 as may be donated." Though the members of the Permanent Forum have been elected, 1 3 4 A/RES/2000/22 of 28 July 2000. 1 3 5 Ibid. 1 3 6 Ibid. 1 3 7 For example, in preparation for its first public 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. ) 38 The following is excerpted from the 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 63 139 there are many unanswered questions concerning these uncharted waters. The high level of indigenous expectations for the Forum, lukewarm nation-State member support, and the lack of financial resources do not bode well for a productive first term for the new body. The first public meeting of the Permanent Forum took place from May 13 -24, 2002 at the United Nations in New York, with Ole Maaga Henrik, a Sami representative, being elected as the first Chairperson of the Forum. 1 4 0 The members were inundated with proposals from indigenous peoples 1 4 1 but were primarily consumed with proceeded to elect by secret ballot two members from Latin American and Caribbean States and two members from Western 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. 1 3 9 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. 1 4 0 In addition, Parshuram Tamang, Mililani Trask, Antonio Jacanamijoy, and Njuma Ekundanayo were elected Vice-Chairpersons, and Wilton Littlechild was elected Rapporteur. 1 4 1 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. 64 the fact that they have insufficient funds to operate on an annual basis and no concrete operational guidelines, nor a firm work p lan . 1 4 2 Furthermore, indigenous peoples (and the WGIP members) have expressed concern over the probability of phasing out of the WGIP due to the creation of the Permanent Forum. There are a number of arguments for and against such action. On the indigenous side of 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 of indigenous peoples, the Forum was understood to be a "system-wide" mechanism to saturate or infuse all of 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 WGIP has, until recently, only had responsibility for the latter. State government representatives have asserted that the WGIP ' s continuation would be a budgetary drain and a duplication of U . N . initiatives. Possibly, the upcoming annual session of the WGIP (late July-early August) w i l l reveal the future path of the WGIP . Finally, the Commission on Human Rights, at their 57 t h Session in 2001, adopted a resolution establishing a "Special Rapporteur on the situation of human rights and fundamental freedoms of 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 of their human rights and fundamental freedoms; 1 4 2 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. 65 (b) To formulate recommendations and proposals on appropriate measures and activities to prevent and remedy violations of the human rights and fundamental freedoms of indigenous people; (c) To work in close relation with other special rapporteurs, special representatives, working groups and independent experts of the Commission on Human Rights and of the Sub-Commission on the Promotion and Protection of Human Rights, taking into account the request of the Commission contained in resolution 1993/30;" Despite the unhelpful role and resistance of the U.S . in nearly every debate concerning indigenous peoples, it is remarkable that they: 1) supported the idea of a Commission level Rapporteur; and 2) supported the candidacy of S. James Anaya, an indigenous person, scholar and long-time advocate of indigenous rights, for the Special Rapporteur position. A number of other individuals were identified and nominated, which made for an interesting dialogue on the question of the appointment of an indigenous versus a non-indigenous person, indicative of 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 of Rodolfo Stavenhagen, a scholar with a history of work concerning indigenous peoples in Mexico and other parts of Latin Amer ica . 1 4 3 The Special Rapporteur has completed his first report to the Commission on Human Rights, which provides a concise "panorama of 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." 1 4 4 A s a newly appointed Rapporteur, it is interesting to note that he has offered commentary on a number of the 1 4 3 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. 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 of a definition of indigenous people, the Special Rapporteur notes that the right of indigenous persons and peoples to self-definition is the most accepted form of identification consistent with a human rights approach." 1 4 5 There is no doubt that the Special Rapporteur's work wi l l be closely monitored by both indigenous peoples and governments. Though indigenous peoples may be at the lowest rung of the ladder in socioeconomic status and politically marginalized within most nation-states, in a relatively short period of 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 of 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 of these activities have taken place in the span of only two generations. The foregoing illustrates the fact that albeit slow, there have been many constructive and substantive activities specifically focused upon the plight of 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. 1 4 4 UN Document E/CN.4/2002/97 of February 4,2002. 1 4 5 Ibid, 6th 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." 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 of international instruments. 1 4 6 Some of the most significant (yet still . inadequate) are those policies being adopted by development banks. The World Bank expressed an early concern for the protection of "small, isolated tribal societies (many of them forest-dwelling tribes in the lowlands of South American)" from the "negative impacts of development" conducted by its Borrowers, and urged the active participation of "indigenous peoples in the development process." 1 4 7 This action was taken primarily as the result of the early fieldwork conducted by Robert Goodland of the Environmental Unit of the Bank . 1 4 8 Goodland, throughout the course of his environmental assessment work, was motivated by personal views about the ethical position of the Banks' actions in development projects, which were adversely impacting indigenous peoples in Brazi l . He subsequently published Amazon Jungle: Green Hell to Red Desert,149 which examines some of these issues more comprehensively. 1 4 6 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. 1 4 7 See S.H. Davis, "The World Bank and Indigenous Peoples," Environment Department, The World Bank. The article appears at the Banks' web site: 1 4 8 See R.J.A. Goodland, Tribal Peoples and Economic Development: Human Ecolocric Considerations, Washington, World Bank, 1962. 1 4 9 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). 68 In February 1982, the World Bank adopted Operational Manual Statement 2.34 (OMS 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 of the tribal people" resulting in the treatment of indigenous peoples as objects rather than subjects of the Statement. 1 5 0 The OMS 2.34 definition of "tribal peoples" is based on very western standards of quality of life. In part, reference is made to being "unacculturated" or "partially acculturated" in the dominant society and being "non-monetized, or only partially monetized." 1 5 1 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 of historical contact with the dominant society with exception of distinction of category of indigenous "property rights." Although the policy of 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 of development projects affecting indigenous communities. This development was followed by an implementation review conducted by the Environmental and Scientific Affairs Office of the Bank, which consisted of an appraisal of Bank-financed 1 5 0 Tribal Peoples in Bank-Financed Projects, Operational Manual Statement 2.34, February 1982. 151 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 of overall implementation of the policy statement. Then in 1991, the World Bank adopted Operational Directive 4.20 (OD 4.20) 1 5 2 concerning indigenous rights and interests. 1 5 3 Some claim that this policy change was largely the result of actions by tribal peoples in India in their opposition to the Narmada River dam project. 1 5 4 The subsequent report Sardar Sarovar: The Report of the Independent Review,*55 written by Co-Commissioners Bradford Morse and Thomas R. Berger, criticized the Bank and the Government of India for inadequately addressing issues relating to resettlement, rehabilitation and environmental protection in the context of the rights and interests of the tribal peoples concerned. Aware of developments in the area of indigenous human rights standards, Commissioners Morse and Berger cited relevant provisions of the outdated I L O Convention No . 107, which India ratified in 1958. World Bank Operational Directive 4.20, Indigenous Peoples, September 17, 1991. I 5 j 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." 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." 1 5 5 B. Morse and T.R. Berger, Sardar Sarovar: The Report of the Independent Review (Ottawa: Resource Futures International Inc., 1992). 70 The OD 4.20 does exhibit a slight progression from the integrationist language of OMS 2.34 by requiring that "the development process fosters full respect for their dignity, human rights, and cultural uniqueness" 1 5 6 and goes further to address the need for "informed participation of the indigenous peoples themselves," 1 5 7 which is a departure from previous attitudes of the Bank and governments. Also , OD 4.20 contains a very broadly formulated definition of 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 of transforming their directives into comprehensive "policies" that combine "mandatory policy, Bank procedures, and good practice." 1 5 9 Their initial step in this OD 4.20, paragraph 6. 1 5 7 OD 4.20, paragraph 8. 1 5 8 The following paragraphs from OD 4.20 were downloaded from the World Bank website at 3. The terms "indigenous peoples," "indigenous ethnic minorities," "tribal groups," and "scheduled tribes" describe social groups with a social and cultural identity distinct from the 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 legal frameworks that 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. 159 In addition, the World Bank is pursuing the following, according to their website ( "(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. 1 6 0 The direct participation of indigenous peoples in such a process may help to move the Bank away from a "protective measures" approach to one of direct, meaningful and genuine participation of indigenous peoples in policy development to ensure that the Bank's future activities do not violate the basic rights of indigenous peoples. The Bank wi l l likely have difficulty in tackling the same issues that have plagued the United Nations, namely the scope and application of the Operational Directive and land and resource rights. However, because of 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 of the rights, needs and aspirations of indigenous peoples in the context of 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." 1 6 0 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. 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. 1 6 1 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). 1 6 2 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 Fund for the Development of the Indigenous Peoples of Latin America and the Caribbean (Second Summit Meeting of the Ibero-American Heads of States, Madrid, 1992). 73 2) United Nations Conference on Environment and Development The work of 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 of balance. In the U . N . context, the early linkage of "development" to the State assertions of "permanent sovereignty over natural resources" 1 6 3 and the rights of States "to freely utilize and exploit" 1 6 4 such resources began to take on a more human rights orientation by the elaboration of the International Covenant on Economic, Social and Cultural Rights, which addresses the right of self-determination and the pursuit of "economic, social and cultural development." 1 6 5 However, this conception of 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 of a New International Economic Order ( N I E O ) , 1 6 6 which spells out the need for cooperation and furthering international economic relations with emphasis upon the economic needs of peoples in "least developed" or developing countries. Also , the Charter of Economic Rights and Duties of States makes mention of "promoting the economic, social and 1 6 3 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). 1 6 4 U.N.G.A. Resolution 262 (VII), December 21, 1962. 165 International Covenant on Economic, Social and Cultural Rights, Opened for signature December 19, 1966. Entered into force January 3, 1976. U.N.G.A. Resolution 2200 (XXI), 21 U.N. GAOR, Supp. (No. 16)49, U.N. Document A/6316 (1977), reprinted in 6 I.L.M. 360 (1967), Part 1, Article 1. Hereinafter "ICESCR". 1 6 6 Declaration on the Establishment of a New International Economic Order, May 1, 1974, U.N.G.A. Resolution 3201 (S-VI), 6 (Special) U.N. GAOR, Supp. (No. 1)3, U.N. Document A/9559 (1974), reprinted in I.L.M. 715 (1974). 74 cultural development" of peoples but here again only within the context of economic development. In 1977, the United Nations began to shift its orientation away from a purely state driven notion of development when they began studying the right to development in the context of human rights. Subsequently, the U . N . adopted the Declaration on the Human 168 Right to Development. Though some scholars have referred to the right to development as "something of a mantra for states seeking to justify the privileging of economic development over human rights and to legitimize repressive or authoritarian policies ," 1 6 9 indigenous peoples and others have seized upon it as one possible tool for the promotion and protection of their rights and environment. The Declaration, to some extent, provides the backdrop for indigenous peoples' interpretation of the right to development as a human right and has helped to increase sensitivity to cultural diversity and different human conditions and needs. The adverse impacts of large scale economic and industrial development, which has taken place without recognition of and respect for the fundamental rights of indigenous peoples, especially land and resource rights, has left many indigenous peoples adamantly opposed to the whole notion of "development." Most large scale development schemes have had untold consequences for indigenous communities. 1 7 0 1 6 7 Charter of Economic Rights and Duties of States, December 12, 1974, U.N.G.A. Resolution 3281 (XXIX), 29 U.N. GAOR, Supp. (No. 32) 50, U.N. Document A/9631 (1975), Reprinted in 14 I.L.M. 251 (1975), Article 7. 1 6 8 United Nations Declaration on the Right to Development, General Assembly Resolution 41/128, Annex, 41 U.N. GAOR Supp. (No. 53) at 186, U.N. Document A/41/53 (1986). 1 6 9 A. Orford, "Globalization and the Right to Development," in P. Alston (ed.) Peoples' Rights (Oxford: Oxford University Press, 2001) at 133. 1 7 0 See D. Sambo, "Emerging Indigenous Human Right to Development," IWGIA Yearbook 1991 at 167. 75 In 1987, the World Commission on Environment and Development warned governments of the adverse impact of continuing to exclude indigenous societies in North 171 America and elsewhere from the processes of development and stated, in the context of "empowering vulnerable groups" that: "These communities are the repositories of vast accumulations of traditional knowledge and experience that links humanity with its ancient origins... .The starting point for a just and humane policy for such groups is the recognition and protection of their traditional rights to land and the other resources that sustain their way of life—rights they may define in terms that do not fit into standard legal systems. These groups' own institutions to regulate rights and obligations are crucial for maintaining the harmony with nature and the environmental awareness characteristic of the traditional way of life. Hence the recognition of traditional rights must go hand in hand with measures to protect the local institutions that enforce responsibility in resource use....In terms of sheer numbers, these isolated, vulnerable groups are small. But their marginalization is a symptom of a style of development that tends to neglect both human and environmental considerations. Hence a more careful and sensitive consideration of their interests is a touchstone of a sustainable 172 development policy." Simultaneously with the assertions of "Third World" countries having a direct role in the discussions concerning development, the international indigenous movement was developing and beginning to take shape. In particular, the Inuit Circumpolar Conference had begun to take up consideration of the Declaration on the Human Right to Development in the context of their Principles and Elements for a Comprehensive Arctic Policy113 and also became active in international organizations addressing sustainable development. 1 7 4 Furthermore, the W G I P process and the I L O revision of Convention 107 1 7 1 G. Bruntland, Our Common Future, Report of the World Commission on Environment and Development, (Oxford: Oxford University Press, 1987) 115-16. 1 7 2 Ibid. 1 7 3 Inuit Circumpolar Conference, Principles and Elements for a Comprehensive Arctic Policy (Montreal: Centre for Northern Studies and Research, McGill University, 1992) pp. 25-27, 31-34. Though published in 1992, the policy drafting began in earnest in 1986. 1 7 4 To a large extent, off-shore and on-shore oil development provided the impetus for the organization of Inuit on a transnational to advance our rights and interests, as well as views about development. In 76 were both forums in which this discussion was propelling the concept of and linkage between indigenous peoples, environment and development. For example, the language of Articles 6 and 7 of the I L O Convention 169, though not entirely adequate, supports the 175 notion of self-determination with respect to development. Also , one of the conclusions of the 1990 Global Consultation on the Realization of the Right to Development, prepared by the Secretary-General stated: " A development addition, the ICC was an active participant and possibly the first indigenous organization to join the International Union for the Conservation of Nature and Natural Resources. In preparation for the IUCN conference in San Jose, Costa Rica, in 1984, a number of Inuit (including myself) worked on the re-drafting of the World Conservation Strategy in order to infuse the document with indigenous perspectives on sustainable and equitable development. In this regard, we were the main proponents of the notion of "equitable" development. In addition, I participated in the Working Group on Arctic International Relations, which focused on issues concerning environment, development, peace and security. This Working Group was comprised of academics, scientists, diplomats and indigenous peoples, and is considered by some as the precursor to the present day Arctic Council. 1 7 5 ILO Convention 169, Article 6: "1. In applying the provisions of this Convention, governments shall: (a) consult the peoples concerned, through appropriate procedures and in particular through their representative institutions, whenever consideration is being given to legislative or administrative measures which may affect them directly; (b) establish means by which these peoples can freely participate, to at least the same extent as other sectors of the population, at all levels of decision-making in elective institutions and administrative and other bodies responsible for policies and programmes which concern them; (c) establish means for the full development of these peoples' own institutions and initiatives, and in appropriate cases provide the resources necessary for this purpose. 2. The consultations carried out in application of this Convention shall be undertaken, in good faith and in a form appropriate to the circumstances, with the objective of achieving agreement or consent to the proposed measures." Article 7: " 1. The peoples concerned shall have the right to decide their own priorities for the process of development as it affects their lives, beliefs,