Indian Nations & United States Debate Self-Determination and Self-Government at the United Nations - 1993 by Rudolph C. Ryser
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INDIAN NATIONS & UNITED STATES DEBATE SELF-DETERMINATION
AND SELF-GOVERNMENT AT THE UNITED NATIONS
- Geneva, Switzerland - July 18-31, 1993 -
By Rudolph C. Ryser
Center for World Indigenous Studies
20 August, 1993
(COPYRIGHT 1993 Center for World Indigenous Studies All Rights Reserved)
The United Nations Working Group on Indigenous Populations just
completed its Eleventh Session in Geneva, Switzerland. It was one of the
few times in international diplomatic history that representatives of many
of the world's indigenous nations directly debated the formulation of new
international law. During the week of July 18 through July 31 at the
Palaise des Nacions of the United Nations in Geneva, Switzerland more than
one hundred twenty five indigenous nations' delegations and more than sixty
states' government delegations conducted a vigorous debate over key words
and phrases to be contained in the Declaration on the Rights of Indigenous
Peoples slated soon to go before the UN General Assembly for final
adoption. At stake is whether international protections for the rights
(land, cultural, economic, political) of the world's original nations will
* whether treaties between nations and states' governments will
have the force of international law,
* whether states' governments may violate the rights of nations
and avoid international scrutiny or sanctions,
* whether nations will have the actual rather than the implied
right to self-determination, self-government and the right to
exercise sovereignty over their territories, and
* whether nations will enjoy the same rights to freely choose
their political, economic, social and cultural future without
external interference in the same way as other peoples in the
world have the guaranteed right under international law.
The Vatican, the leaders of the Russian Orthodox Church,
fundamentalist Christians in England, United States and Canada, and
militant practitioners of Islam would now argue that the Age of Ethics and
Morality has replaced the Cold War dualism of Communism vs. Capitalism.
While there is a great deal of evidence that religious contests for global
domination are at work around the world, there is also evidence that a
major global political realignment is now underway. I suggest that we have
just entered a transition period from political dominance by the global
state system to a basic political rearrangement which places cultural and
political diversity among peoples and ecosystems as the driving force for
human development. The "informal negotiations" between indigenous nations
and states at the annual Geneva Working Group on Indigenous Populations
sessions since 1982 have provided the foundation for a new movement toward
Nations like the Haudenosaunee (Six Nations Confederacy), Mapuche of
Chile, the La Lahui of Hawai'i, Lakota, Lubicon Cree, Maori of New Zealand,
Nuba of Sudan, Dene of Canada, Chukchi of Siberia, Sycuan Band of Mission
Indians (California), Alliance of Taiwan Aborigines, Teton Sioux, Chamorro
of Guam, Hmong of Laos, Chirapaq of Peru, Chakma of Bangladesh, the Even of
the Russian Federation, and the Ecuarunari of Ecuador are among the many
nations that have been participating in the process of developing new
international laws for the benefit of nations at the United Nations since
1982. The Center for World Indigenous Studies, Indian Council of South
America, Nordic Sami Council, Indian Law Resource Center, and National
Aboriginal and Islander Legal Services Secretariat are among the
organizations that have been participating as well. Now, after eleven
years of focused United Nations Working Group activity aimed at developing
new international standards for relations between nations and states'
governments, the first working Draft Declaration on the Rights of
Indigenous Peoples has been completed. The drafting process now moves from
the Working Group to the Sub-commission on the Prevention of Discrimination
and Protection of Minorities (August 1993), the Commission on Human Rights
(February 1994), the UN Economic and Social Council (April 1994) and the UN
General Assembly (October 1994).
THE OPENING INTERNATIONAL DEBATE OVER THE RIGHTS OF INDIGENOUS NATIONS
What made this Session of the Working Group more remarkable than any
one previous is the direct verbal debate between nations' and states'
delegations over the language to be contained in the Declaration on the
Rights of Indigenous Peoples. Sharp exchanges concerning whether certain
terms would be acceptable in the Declaration flew back and forth. The
Observer Delegation for the United States government set the tone for what
would be the states' government position when it issued its statement on
July 21. Earlier, the Observer Delegation for Canada hinted at the
arguments that would be formally presented by the U.S. Government later.
Brazil, India, Canada, Japan, Australia, New Zealand, Belgium, to some
extent the Netherlands, Mexico, Indonesia, Malaysia echoed the U.S.
Maori led the less than unanimous debate by the nations' delegations.
The most frequent speakers included the Grand Council of the Cree of
Canada, Dene of Canada, Haudenosaunee, Confederacy of Treaty Six First
Nations (Canada), Cordillera Peoples' Alliance (the Philippines), the
Nordic Sami Council, Ka Lahui (Hawai'i), Mikmaq Grand Council (Canada),
the National Aboriginal and Islander Legal Services Secretariat, and the
Indian Council of South America. While it wasn't always unanimous,
virtually all of the nations' delegations remained consistent. (CWIS has
the non-verbatim transcripts for all debates with the identity of key
speakers and the substance of their remarks.)
One of the most remarkable aspects of the debate was the position
taken by the United States government. Despite the affirmation of the
right of self-determination by each U.S. President since 1970, and despite
a stated commitment to government-to-government relations and self-
government for Indian nations since 1983, the U.S. Observer Delegation
pronounced the U.S. government's opposition to the application of self-
determination, self-government and the reference term "peoples" to
indigenous nations. Striking for its contradiction of U.S. stated policy,
the U.S. government's views as expressed before the Working Group basically
rejected tribal sovereignty, tribal self-determination, and self-
government. Clearly the State Department, Department of the Interior, and
the White House are each running totally different policies as far as
Indian nations are concerned.
Equally disturbing is the fundamental contradiction between U.S.
statements at the Working Group and the U.S. government's formal policy
toward Indian nations as presented to the Commission on Security and
Cooperation in Europe. Not only are the statements contrary to these other
international commitments, but they are also contrary to agreements just
concluded with self-governance tribes (Quinault, Lummi, Jamestown
S'Klallam, Hoopa in 1990). The United States government has also ratified
the International Convention on Political and Economic Rights (1992) which
now obligates it further to support the self-determination of peoples. Its
positions before the UN Working Group on Indigenous Populations contributes
further to the sense that the U.S. government is pursuing a mixed policy
internally and externally regarding the self-determination of peoples.
During consultations between indigenous delegations it was decided on
July 30 to distribute a "Nations' draft" of the Declaration of Indigenous
Peoples for consideration by nations' governments during the next twelve
months in each of the world's regions. Haudenosaunee and the Indian Law
Resource Center are coordinating for North America. The NCAI President was
said to be attending the Sub-commission session in August. It is not clear
if the NCAI is planning to directly participate in the final process of
drafting the Declaration.
Here are the essential issues dividing nation and state
representatives, and a summary of agenda items taken up at the UN Working
Group on Indigenous Populations Session 11 in July 1993:
SUMMARY OF CONSIDERATIONS BEFORE THE WORKING GROUP
Standards Setting Activities: Declaration on the Rights
of Indigenous Peoples - Final Readings and amendments
Since the Working Group was established in 1982, delegates from
indigenous nations have been working to formulate internationally
acceptable principles on the rights of Indigenous peoples which would help
preserve the political, social, cultural and economic interests of
indigenous nations world-wide. Between 1982 and 1987, indigenous delegates
met in Geneva, Switzerland to formulate the principles relying in part on
the guidance of indigenous nations meeting in international conferences
during the period 1977 - 1987. In 1987, the indigenous nations draft
principles had been completed. In that previous year, the UN Working Group
on Indigenous Populations had been mandated by its parent body, the UN
Economic and Social Council/ Commission on Human Rights to draft and submit
a Declaration on the Rights of Indigenous Peoples for consideration by the
UN General Assembly.
Using the draft principles prepared by indigenous representatives, the
Working Group began preparing new drafts in each succeeding year -- making
amendments, adjustments and refinements upon each succeeding reading. That
process, involving the participation of indigenous representatives,
representatives of states' governments, non-governmental organizations and
a growing list of consulting experts was completed by the Working Group in
its Eleventh Session (1993). The document as drafted was submitted to the
Sub-Commission on Prevention of Discrimination and Protection of
Minorities. After further refinements in this body, the document is
expected to proceed to the Commission on Human Rights where representatives
of states' governments will make further amendments and refinements. If
the Declaration is approved with changes in the Commission on Human Rights,
it then goes before the UN Economic and Social Council, and from there to
the UN General Assembly. It is widely expected that a UN Declaration on
the Rights of Indigenous Peoples will be adopted before the end of this
What the text of the UN Declaration on the Rights of Indigenous
Peoples will actually say when all is said and done (following more than
fourteen years of work), is not yet clear. Though it is likely that the
final Declaration will follow the contours of the June 8, 1993 revised
working draft (E/CN.4/Sub.2/1993/26), there remain some uncertainties.
Here are the reasons why:
* the draft Declaration leaving the Working Group has many more
"refinement and amendment" levels to complete before it is
* by the end of Session 11, the gap between indigenous
representative views and states' government views on the use
of the words "self-determination," "self-government,"
"territory," and "peoples" remained wide and unresolved.
Indigenous representatives argued for inclusion of these
terms while states' government representatives argued for
their omission, deletion or substitution.
I described the process for adoption above, but the controversy over
"terms" requires more elaboration. Since the very beginning of the formal
process of considering the draft Declaration (1987) the states' governments
of United States of America, Canada, Australia, New Zealand, Norway, Sweden
and Denmark have stressed their unwillingness to apply the international
meaning of the words "self-determination," "self-government," "territory,"
and "peoples" to indigenous peoples. Each of these states, joined by
others including Japan, Brazil, India, Burma, Peoples' Republic of China
and Indonesia has emphasized the view that questions concerning indigenous
peoples must remain a "domestic issue," not open for consideration at the
international level. One reason for this tact is the fear of all states'
governments that some indigenous nations may not chose to remain under
state control, thus creating the possibility that some states will come
apart, disassemble, dismember, or collapse. Events associated with the
collapse of the U.S.S.R. into fifteen states and probably many more, (when
all is said and done) illustrate how even the apparently most powerful
super-state can come apart. So it is not without some justification that
states' government representatives express opposition to recognizing the
international right of self-determination applied to indigenous nations.
However, its neither an absolute certainty that a nation will opt for
independence from a state nor a strong probability that a nation will work
to change its relationship to the state at all. It is highly probable that
most nations will seek to continue a cooperative relationship with a state.
While states' governments seek to maintain political control over
indigenous nations (even those not consenting to such control), nations'
representatives at the UN Working Group stress the view that "denying the
right of self-determination to indigenous peoples simply sets the stage for
potential violent confrontations between indigenous nations and states'
governments." The wars in India between the state government and the Naga
nation, in Bangladesh between the Jumma peoples and the state government
and in Indonesia between the state government and several nations including
the Timorese, Molluccans and the Papuans are often cited as examples of
Similarly, states' governments have difficulty with the term "peoples"
being applied to indigenous nations. This problem flows from the fact that
virtually all international legislation authorizing the exercise of certain
rights allows only "peoples" to exercise those rights. States' governments
are obliged to take steps to implement the rights of peoples if they sign
the relevant international laws. Working Group Chairman/Rapporteur Eric-
Irene Daes notes in her "Explanatory note concerning the draft declaration"
(E/CN.4/Sub.2/1993/26/Add.1) "Certain Governments have sought to narrow the
definition of "peoples" in order to limit the number of groups entitled to
exercise a claim to self-determination. ....Indigenous groups are
unquestionably "peoples" in every political, social, cultural and
ethnological meaning of this term. ....It is neither logical nor
scientific to treat them as the same "peoples" as their neighbours, who
obviously have different languages, histories and cultures." If the word
"peoples" is not associated with indigenous nations, then international
laws have limited importance in enforcing the rights of "indigenous
States' governments wish to invoke the recently revised ILO Convention
107 (1957), now standing as the ILO Convention 169 (1989), particularly
Article 1(3) to narrow the meaning of the term "peoples." It is in
paragraph 3 of Article 1 in ILO Convention 169 that states' governments
introduced a disclaimer on the question of indigenous nations being defined
as "peoples:" "The use of the term 'peoples' in this Convention shall not
be construed as having any implications as regards the rights which may
attach to the term under international law." It is this disclaimer that
states governments now want inserted in the Declaration. The states'
appeal to ILO Convention 169 will persist despite the fact that only five
states' governments have actually ratified the instrument -- leaving 188
state signatures still possible but unlikely.
The word "territory" also has important meanings in the international
context not generally applied within the domestic state. Nations, peoples
and states have territories while minorities, ethnic groups and populations
have "land rights." Territory is a term governed under international law,
but "land rights" is governed under domestic state law. Indian
reservations are the subject of "land rights" while aboriginal lands,
water, resources, etc. are subjects of "territory." Chairman/Rapporteur
Erica-Irene Daes addresses this issue in her "Explanatory note concerning
the draft declaration" (E/CN.4/Sub.2/1993/26/Add.1) where she equivocates
and asserts a view which narrows the international meaning of "territory."
Daes argues "...the reference to "territories" should not be confused with
the concept of "territorial integrity" in international law. It is not
meant to imply a separation from the territory of the State as a whole in
political terms, for it is clear that an indigenous people, even in the
exercise of its rights to autonomy or self-government, is still ordinarily
connected with the political territory or sovereignty of the State, as, for
example, in the case of Greenland." She goes on to rationalize her
narrowing of the term's meaning by appealing to the International Labour
Organization Convention 107 concerning the Protection and Integration of
Indigenous and other Tribal and Semi-Tribal Populations in Independent
Countries (1957): "...the term 'territory' is used here in [the] same sense
as the often criticized 1957 ILO Convention No. 107. ....Hence the term
'territory' in the above-mentioned paragraphs conveys some notion of the
totality of indigenous peoples' relationship to the land and to all of its
resources and characteristics." Daes' arguments are clearly weak and
unpersuasive on this point, and will likely not dissuade states'
governments from still attempting to delete the term "territory" from the
Finally, the term self-government has rather vague and sometimes
confusing meanings depending on whether you represent the established state
point of view as opposed to the view of international relations. States'
governments generally seek to limit self-government when applied to people
inside state boundaries. Inside, the term is used to mean "the power to
make decisions, enact laws, and provide for the common welfare within the
state framework and under limitations defined by the state." Outside, in
the international setting, the term self-government means "a peoples' power
to freely choose a political status and decide their political, economic,
social and cultural future without external interference." Clearly, a
state like the United States of America would prefer the "internal meaning"
due to the capacity of the state to impose limitations on the exercise of
As you will see below in the "Highlights" section (July 20), the
United States of America presents all of these views as its own. It denies
self-determination, self-government, territory and the application of the
term "peoples" to indigenous nations in an apparent contradiction of its
publicly stated policies to Indian nations. Since 1970 the United States
government has proclaimed its commitment to "Indian self-determination,"
and its courts have even gone so far as to affirm the political sovereignty
of Indian nations. The United States government has been negotiating
Compacts of Self-Governance since 1987 and in its solemn commitments to 38
states governments under the Helsinki Final Act of 1975 the United States
government reported that it recognized the rights of Indian "peoples" and
conducted its relations with Indian nations under a policy of government to
government relations in accord with Principle VIII of the Final Act. In
its statement at the Working Group on July 20, 1993 the U.S. government
effectively denied any such policies or commitments under the Helsinki
Final Act. It is quite clear that the U.S. government (as are Canada,
Australia, New Zealand and several other states) is either lying to Indian
nations "internally" or it is lying "externally." Worst of all, it is
possible that the U.S. government has two faces it wishes to present even
though they are diametrically opposed to each other -- they contradict each
other. Either Indian nations are being told the truth internally or they
are being manipulated by a government that cynically attempts to undermine
Indian governments and Indian cultures.
2. REVIEW OF DEVELOPMENTS SINCE PREVIOUS SESSION
Nations' and States' delegation reported often different pictures of
social, economic and political conditions around indigenous nations. From
wars involving the Karen, Shan and Kachin against the state of Burma to the
developing "sovereignty movement" among Hawi'ians dealing with the United
States of America, at least 100 reports were delivered to the Working Group
in the final two and one half days of the two week session.
3. REVIEW OF PROGRESS OF THE STUDY ON TREATIES, AGREEMENTS AND OTHER
CONSTRUCTIVE ARRANGEMENTS BETWEEN STATES AND INDIGENOUS
POPULATIONS - Special Rapporteur Miguel Alfonso Martinez.
At the request of the Working Group on Indigenous Populations (and the
urgings of indigenous delegations) the UN Economic and Social Counsel
(ECOSOC) appointed in 1989 a Special Rapporteur (Prof. Miguel Alfonso
Martinez) and gave him a mandate to undertake a Study on Treaties,
Agreements and other Constructive Arrangements between States and
Indigenous Populations (ECOSOC resolution 1989/77 of 24 May 1989). Now in
its third year, the UN Treaty Study has issued its first progress report
(E/CH.4/Sub.2/1992/32) containing the following subjects:
* Research and other activities so far undertaken
* Some anthropological and historical considerations on key
issues relevant to the study.
* The first encounters: Indigenous Peoples, Euro-Centrism and
the Law of Nations
* Diverse Juridicial situations within the scope of the study
* Treaties between States and indigenous nations
* Agreements between States or other entities and indigenous
* Other constructive arrangements
* Situations involving indigenous peoples who are not parties
to, or the subject of any of the above-mentioned instruments.
* Treaties between States affecting indigenous peoples as third
* Conclusions and Recommendations
(CWIS has a full copy of the Special Rapporteur's report.)
4. REVIEW OF PROGRESS OF THE STUDY ON THE PROTECTION OF THE CULTURAL
AND INTELLECTUAL PROPERTY OF INDIGENOUS PEOPLES - Special
Rapporteur Mme Erica-Irene Daes.
5. REVIEW THE PROGRAMME OF ACTION AS PROPOSED BY THE WORLD CONFERENCE
ON HUMAN RIGHTS (Vienna, Austria - June 1993)
For two weeks in June 1993, the UN hosted the World Conference on
Human Rights (the first such meeting in twenty-five years) to review and
create new emphasis and commitment supporting the principles of the 1948
Universal Declaration on Human Rights. At the request of indigenous
peoples and the Chairman/Rapporteur of the UN Working Group on Indigenous
Populations, the Conference took up a series of recommendations concerning
indigenous peoples. In its final report, the World Conference on Human
Rights made several recommendations directly concerning indigenous nations.
These were reviewed by the Working Group and subsequently presented to the
Sub-commission for approval and forwarding to other competent organs of the
a. Completion of the draft declaration on the rights of
indigenous peoples at the eleventh session.
b. Commission on Human Rights consider the renewal and updating
of the mandate of the Working Group on Indigenous Populations
c. The advisory services and technical assistance programs with
the UN System respond positively to request by States for
assistance which would be of direct benefit to indigenous
d. Adequate human and financial resources be made available to
the Centre for Human Rights within the framework of
strengthening the Centre's activities as envisaged by this
e. Urges States to ensure the full and free participation of
indigenous peoples in all aspects of society, in particular
in matters of concern to them
f. The General Assembly proclaim an International Decade of the
World's Indigenous Peoples to begin from January 1994,
including action-oriented programs, to be decided upon in
partnership with indigenous peoples
g. Establish an appropriate Voluntary Trust Fund for the purpose
of the International Decade of the World's Indigenous Peoples
h. Within the framework of a Decade of the World's Indigenous
Peoples, establish a permanent forum for indigenous peoples
in the United Nations system.
From a technical meeting designed to develop detailed recommendations
from the Conference a series of more specific suggestions were made. These
included suggestions concerning:
a. The Technical Meeting
b. Coordination of the United Nations System
d. Dissemination of Information
e. International Decade of the World's Indigenous Peoples
f. Financial Provisions
(The full document is available from CWIS)
Finally, three informal consultation sessions involving indigenous
peoples representatives and representatives of the UN secretariat were
conducted at the World Conference on Human Rights to "discuss possible
future United Nations activities." From the report of those meetings, this
is a summary:
* Review of Accomplishments resulting since first formal
relationship between indigenous people and the United Nations
* Two major studies: UN Treaty Study and the Cultural and
Intellectual Property of Indigenous Peoples Study
* Three UN Expert Meetings: on Racism, Self-government and
* Proclamation of the International Year of the World's
Indigenous Peoples in 1993
* Draft Declaration on the Rights of Indigenous Peoples -
Second Reading 1993.
* Creation of the Voluntary Fund for International Year
providing direct assistance to indigenous communities
* Revision of the ILO Convention 107 and adoption of ILO
Convention 169 (1989).
* Establishment of Voluntary Fund for Indigenous Populations
providing assistance for travel for participants in UN WGIP
sessions -- 50 persons in 1993.
* Increase in participation of indigenous delegations at WGIP
from 30 in 1982 to 600 in 1992 -- including Africa, Asia and
* Cases relating to indigenous peoples interests submitted to
UN treaty bodies.
* Indigenous peoples' staff appoint to UN secretariat
* World Bank policy on economic development concerning
* Creation of a regional fund for development of indigenous
peoples in Latin America and the Caribbean
* A growing information dissemination process inside countries
and internationally to inform the public about the situations
of indigenous peoples.
During the previous 12 months representatives of indigenous peoples
have expressed several concerns and made proposals before the UN General
Assembly, Commission on Human Rights and at the World Conference on Human
* Establish a permanent body in the UN to serve the needs of
indigenous peoples. Suggest that the new body operate at a
high level within the UN structure, be capable of taking
decisions and have full and equitable indigenous peoples'
* Establish a mechanism for monitoring the situation of human
rights among indigenous peoples; providing for grievances and
taking action to protect their rights.
* Establish a system-wide programme to improve the situations
of indigenous peoples in areas such as health, development,
environment, etc.; such a program would also provide
technical assistance to indigenous people and launch a major
initiative in education and public awareness; indigenous
peoples want to be part of decision-making process.
* Establish new procedures for expanding access to all levels
of the UN system to indigenous peoples.
Consideration of various new options for UN actions in support of
A. Special Rapporteur for review of situations involving torture
of indigenous people
B. A New Working Group on Indigenous Populations at the UN
Commission on Human Rights or the Economic and Social Counsel
C. Office of Indigenous Peoples within the Centre for Human
D. UN System-wide programme installing indigenous peoples'
offices throughout UN agencies
E. UN High Commissioner for Indigenous Peoples similar to the
position concerned with refugees
F. Committee of Experts including indigenous peoples
G. United Nations agency of indigenous peoples
H. Rigoberta Menchu Tun: a Maya and Nobel Laureate appointed as
a Goodwill Ambassador to appoint a panel of indigenous
leaders to conduct public speeches and raise awareness.
I. Place "Indigenous Peoples" as an item on the agenda of the
Commission on Human Rights and the General Assembly.
6. REFERENCE TO THE SPECIAL UN MEETINGS ON TRANSNATIONAL INVESTMENTS
AND OPERATIONS on THE LANDS OF INDIGENOUS PEOPLES.
In the twenty years since Shuswap Chief George Manuel began his search
for international help and support for Indian nations in their struggles
with the Canadian government great strides have been made. But, as one who
has directly participated in a great many meetings, conferences, strategy
sessions, and position paper preparations since the early 1970s, I am
somewhat troubled by the growing emphasis on absorbing indigenous nations
into the state dominated system. I am hopeful that nations will reassume
their role as the dominant influence in the formulation of international
relations. It is the nation, after all, that originated the notion of
"international relations." More on this later.
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