CHR 2005 Report

The American Indian Law Alliance believes that the Declaration on the Rights of the World’s Indigenous Peoples may easily be one of the most important documents in history for improving the human rights and international standing of Indigenous peoples. Since the arrival of Europeans in the Western Hemisphere in the 15^th century the Catholic Church, the Christian faith and the secular powers of government have conspired to deprive Native Americans and Indigenous peoples worldwide of our lands, cultures, and juridical standing. Without the Declaration currently under discussion in the United Nations, the preservation of self-determination, sovereignty and responsibility for our lands and territories (including our sacred sites) will be trampled by nation states anxious to exploit our resources and finally exterminate the legacy of responsibility and accountability held in esteem by our cultures. Alongside our leaders and elders, the American Indian Law Alliance has now worked for nearly twenty years to ensure that this document respects the principles of Native American nations and Indigenous peoples worldwide and to assure its eventual passage by the General Assembly of the United Nations.

Officially, the mandate of the InterSessional Working Group expired in 2004, the end of the first International Decade of the World’s Indigenous peoples. It was therefore necessary that the Commission on Human Rights consider the continuance of the Working Group at its 61^st Session held in March and April, 2005. The Law Alliance, along with our allies of Indigenous peoples and nations and NGOs around the globe, thought there was little chance that the Commission would not renew the mandate. Pre-Commission research indicated that a majority of countries wished to continue the process, the General Assembly proclaimed a second Decade of Indigenous Peoples, the Office of the High Commissioner for Human Rights gave public support for the Working Group and the Commission has never abandoned a declaration on human rights issues once the process was underway. However, the fate of the Declaration was far too critical an issue for our peoples to leave it solely in the hands of member nations of the United Nations.

The American Indian Law Alliance Advocacy for the Renewal Resolution

Although we had every reason to believe the Commission would renew the Working Group mandate, we believed that the critical component was the language that was to be employed in the Commission’s resolution on the issue. The language can influence the input of Indigenous peoples and nations in the process, direct the States in the type of negotiations in which they should engage (i.e., based on the Charter of the United Nations and fair and equitable principles of international law) and set an atmosphere in which consensus can be reached without undue influence by a few nation states (especially the United States). The American Indian Law Alliance, in consultation with other Indigenous nations and organizations, sought to influence the language of this resolution. We submitted an intervention to the Commission making suggestions about the language of the proposed mandate that we, and several co-signers, thought would improve the process.

The Commission on Human Rights meets for six weeks every year and discusses a plethora of issues on human rights. Without the input of Indigenous peoples from all corners of the globe, our effectiveness at the level of the Working Group is dramatically limited and hinders passage of the Declaration which sets the minimum standard on human rights upon which we insist. We therefore set out to discuss and advocate for our position with state delegates and make presentations on issues critical to our cause. Our goal was simple:

1.        Get the Commission to review the consensus statement prepared by the Indigenous Peoples’ Caucus at the     December meeting of the Intersessional Working Group. Drafted by AILA in consultation with other Indigenous organizations and some nation states, this document describes the progress that has been made and was considered a useful tool in advocating for an extension of the Intersessional Working Group’s mandate to complete the Declaration.

2.        Get the Commission to review and agree to the suggestions that are set forth in the submission that the American Indian Law Alliance made prior to the Commission on Human Rights.

3.        Work with the Indigenous Caucus to ensure that the viewpoints of all Indigenous nations, organizations and peoples have the chance for equal discussion by the Caucus in order to achieve the highest standards for the Declaration.

At the United Nations – Geneva

The Resolutions

The agenda item on Indigenous peoples was scheduled and heard on Monday, April 11, 2005. (Indigenous peoples’ issues are all discussed in one day.) The resolutions for consideration for the Commission had to be tabled by Wednesday, April 13, 2005. By the time our delegation arrived in Geneva, there were basically three resolutions in which we were able to participate in the process.

The Cuba Resolution

Cuba, which was represented by the Chairperson of the Working Group on Indigenous Populations (“WGIP”) and the Special Rapporteur on Treaties, Miguel Alfonso Martinez, sponsored a resolution on the WGIP. Boiled down to its essential elements it, inter alia,:

· reiterates the importance of continuing the WGIP with respect to developments on Indigenous territories and standard-setting activities;

· requests the Commission to “invite” the WGIP to contribute its ideas on programs for the Second International Decade on Indigenous Peoples; and

· requests the Commission to “invite” the High Commissioner for Human Rights to contribute her ideas on programs for the Second Decade.

Since our purpose in writing these reports is to keep our constituency abreast of the issues at the United Nations, a little explanation is necessary here. The General Assembly, in its wisdom, assigned responsibility to “administer” the Second Decade to a much more bureaucratic agency within the United Nations system in New York City (not Geneva, the home of the Human Rights bodies). Some have been concerned that reassignment to New York will further hinder real progress on Indigenous issues during this second ten-year period. Therefore, the purpose of Cuba’s resolution was to ensure that adequate human rights input is received in planning and programming for the Second Decade given the long-time history of human rights based bodies’ work with Indigenous peoples in Geneva.

The Mexico/Guatemala Resolution

Mexico and Guatemala sponsored a resolution that suggested a meeting be held and sponsored by Mexico in June or July to discuss some of the overriding issues regarding Indigenous peoples and human rights relative to the Declaration. Several meetings were held on the language for this resolution and it proved to be a perfect example of the need for laying groundwork prior to these international meetings (see the Conclusion of this Report). Basically, Indigenous delegates made some very good recommendations designed to focus the resolution on the real issues of concern for Indigenous peoples. For example, the Mexico/Guatemala language stated that the meeting should look at “third party rights.” Indigenous language suggestions improved the text of the resolution, focusing on Indigenous issues and removing unwelcome language about such things as “third party rights”, etc. Not a big deal, but, in the step-by-step process of the UN, it helps in isolating those things that are of concern to us.

The Canada Resolution

Canada sponsored the resolution to continue the Working Group on the Declaration. The good news is there is a resolution to continue the efforts of the Working Group. The bad news is there was not necessarily what can be considered consensus on the continuance. This involved both Indigenous peoples’ organizations and states.

For example, the United States submitted an amendment to Canada’s resolution which would have forced a conclusion of the process by the summer of 2006. Then, when their amendment was embarrassingly defeated (only Australia voted with the United States), the U.S. insisted on a vote on the Canadian resolution. The Canadian delegation had worked hard to have its resolution in support of a continuance of the Declaration process passed by consensus. However, because of the American’s obstinate position, a vote was called and passed with every state voting in favor except the United States which abstained.

In a different situation, the weekend before the Commission began its deliberations, the International Indian Treaty Council, along with supporting organizations in its network (and some notable long-time participants in the UN process, including Innu Council of Nitassinan, Buffalo River Dene Nation and Confederacy of Treaty Six First Nations) called for:

“a pause or recess in this process in order to take effective steps that would make the chances of success much greater.” [IITC letter of March 15, 2005 to Honorable Ambassador Makarim Wibisono, President, 61^st Session of the United Nations Commission on Human Rights]

The American Indian Law Alliance, along with the majority of the Indigenous Caucus, did not believe that this call for a “recess in this process” was a good idea. We publicly expressed this opinion in a letter released to the Indigenous Caucus and interested nation states:

“The American Indian Law Alliance is of the opinion that a suspension in the Working Group on the Declaration is not necessary. We publicly expressed this position at the Indigenous Peoples’ Caucus meeting in Washington, D.C. during the last session of the Organization of American States’ meeting. Since the meeting in Washington and the release of the International Indian Treaty Council letter on suspension, we have learned more about potential changes within the UN system (and especially the Commission) in the area of human rights. Accordingly, we believe that it is better for indigenous peoples to build on the momentum generated by the new Decade and the consensus that has been clearly emerging between the Indigenous Caucus and an increasing number of states in the Working Group. We are also concerned that the Indigenous Caucus as a whole has not had sufficient opportunity to address the idea of a suspension and has not been sufficiently informed of the possible perils of suspension given the changes being contemplated by UN human rights’ organs.” [American Indian Law Alliance letter of Statement on Suspension, March 20, 2005]

The major issue for most members of the Indigenous Caucus was not, however, to suspend or not to suspend, but rather the process that would be employed in a continuance. All were concerned that Indigenous participation in the Working Group on the Declaration be fair and equitable and that the written records, submitted by the Chairperson of the Working Group, accurately reflect the positions and issues of Indigenous delegates. To that end, a few of our delegations worked on language for submittal to the Canadian resolution. At the Indigenous Caucus meeting at the World Council of Churches, held on Sunday, April 10^th (the day before the agenda item on Indigenous issues), we agreed to the following language for inclusion in our interventions.

“1. Emphasizing that the Working Group shall at all times carryout its mandate in a manner that fully uphold the purposes and principles of the Charter of the United Nations and is wholly consistent with international law and its progressive development,

2. Requests that the Working Group adopt new and dynamic methods of work, with particular regards for the full and effective participation of Indigenous peoples.

3. Establishes as a fundamental principle for the successful culmination of the elaboration of the Universal Declaration on the Rights of Indigenous Peoples, the necessary agreement between states and Indigenous peoples.”

This language was discussed in the Caucus meeting after Wayne Lord (the representative from Canada who was coordinating their resolution) gave a presentation and set forth what he thought he could and could not do in the resolution. He reviewed the language and though not overwhelmingly optimistic in his prognosis for it, did promise to bring it up with the Canadian co-sponsors of the resolution.

In discussing the Working Group extension, Lord stated that only a one year extension would be agreed upon by the states and issues of process were inappropriate in such a resolution. The purpose, he said, of a Commission resolution was simply to resolve to continue. (Lord also said that although the resolution would only call for a one year extension, it was “understood” that more would probably be required. This then, is why, the United States probably wanted to add its amendment to insist that the process end within a year).

Not everyone agreed that the process could only be addressed by the Working Group and thought that it should be addressed by the Commission. The Inuit Circumpolar Conference and the Grand Council of the Cree took a strong stance on this in their intervention, basically saying that many member states of the CHR were continue to foster prejudice and racism, through the absence of a fair and just process based on international human rights law:

“Thus, over 300 million Indigenous people worldwide are being put in an intolerable position. States – who claim to support policies of equality and non-discrimination – are in effect assisting to create an environment within the U.N. where it is exceedingly comfortable to perpetuate discrimination against Indigenous peoples.

“It is highly disturbing that not a single State within the U.N. has shown the courage to speak publicly and effectively oppose this vile and horrific situation. The resolutions of the Commission regularly refer to Indigenous peoples as ‘people’, with a view to denying us our human rights as ‘peoples.’ This clearly constitutes racial discrimination…”

Although the International Indian Treaty Council consented to the Caucus language on process (set forth in the three points above) and most thought this ended the debate on a suspension of the Working Group on the Declaration, when they took the floor on Monday they (along with a few others) continued to argue for a suspension of the Declaration process. So, though some interventions did mention the agreed to language, there was certainly no ground swell of support. It was obviously even more difficult to have this potentially helpful language included in a resolution when the Indigenous nations and organizations did not support it. Ultimately, the language was not included in the resolution.

Chairperson of the Working Group on the Declaration

On Monday afternoon, Enrique Luis Chavez, the Chairperson of the Working Group on the Declaration gave a briefing. In it he outlined his approach to the next Working Group session to be held in 2005. He stated that:

1) positions will not change (apparently he means that of states and Indigenous peoples although this makes no sense because they were constantly changing, some in our favor and some not);

2) an extension beyond one year is ridiculous because positions won’t change (the objection to this logic is repeated);

3) the 2005 session should be used, not to continue to produce new language, but to approve the language we can live with (does this mean, language we can’t live with, either states or Indigenous peoples, will simply be left out of the declaration?);

Most alarmingly, Chavez stated that self-determination is a principle of international human rights law that applies to Indigenous peoples and therefore does NOT need to be reiterated in the Declaration because the purpose of the draft is to advance human rights law. Even more alarmingly, he went on to say that what does not exist in international human rights law is a definition of internal self-determination and therefore the draft declaration should be used to define Indigenous peoples’ right to domestic self-determination (this is of course contradictory to point number 3 set forth above that we should not meet to draft new language – such a process would involve all kinds of unacceptable new language).

Coincidentally, or not, this is the same position put forth by the Indian Law Resource Center, the Navajo Nation and the Citizen Potowatami Nation that has become so abhorrent to the rest of the Indigenous Peoples Caucus. It would create a new, non-existent and unequal definition of self-determination that would be applicable only to Indigenous peoples. This is “racist”, “vile and horrific” as stated by the Inuit Circumpolar Conference and the Grand Council of the Crees and the Chairperson and his supporters are making it “exceedingly comfortable to perpetuate discrimination.”

For this and a variety of other reasons, the American Indian Law Alliance argued in its intervention to the Commission on Human Rights that a continuance of the Declaration process should include:

“the appointment of a new chair to infuse new energy into the WGDD’s critical task of completing a principled review of the 1994 Draft Declaration. We appreciate the efforts of Mr. Chavez who has presided over most of the very difficult first phase of the WGDD in which many participants were meeting each other, as well as issues and procedures, for the first time. A new phase began this year when state and Indigenous participants worked productively together in finding language that clarifies and/or strengthens the 1994 Draft Declaration and meets our respective concerns. The new president of the Working Group should be a person who is sensitive to Indigenous needs, familiar with state concerns, yet brings a fresh energy and perspective to the WGDD. The appointment of a new Chairperson should be made in consultation with Indigenous nations, peoples and organizations participating in this process.”

However, this recommendation did not see the light of day. GRULAC (the acronym for Latin American and Caribbean Group at the United Nations) has supported Chavez’s continued services and therefore other nations are not prepared to challenge his tenure. For the time being, it appears that Enrique Luis Chavez will continue as the Chairperson of the Working Group on the Declaration.

The Results

After all the language was debated, the positions given, the divisions identified, and the resolutions tabled the Commission on Human Rights took action on Item 15, Indigenous Issues, on April 20, 2005. The process was report by Ms. Sezin Rajandran and the American Indian Law Alliance extends its gratitude to her for her record of events since our delegation was forced to leave Geneva due to financial constraints.

“All of the resolutions concerning indigenous issues were passed, even the contentious ones, and the overwhelming arrogance of the USA and Australia were made crystal clear to the entire world in their single-minded opposition to the rights of indigenous peoples.” [Sezin Rajandran, email report of 4/21/2005]

The Working Group on Indigenous Populations and the 2^nd Decade

The Cuban resolution discussed above (Resolution E/CN.4/2005/L.56 on Working Group on Indigenous Populations of the Sub-Commission on the Promotion and Protection of Human Rights) presented by Miguel Alfonso Martinez included provisions for continuance of the Working Group on Indigenous Populations as well as language in favor of broader input for the second decade. During the discussion, the USA informed the Commission that in their view the WGIP had outlived its influence and “its day is done.” It is no secret that for many years now, the USA has openly argued for termination of the Working Group on Indigenous Populations. A vote was called and:

In favor: (39): Argentina, Armenia, Bhutan, Brazil, Burkina Faso, Canada, China, Congo, Costa Rica, Cuba, Dominican Republic, Ecuador, Egypt, Eritrea, Ethiopia, Gabon, Guatemala, Guinea, Honduras, India, Indonesia, Kenya, Malaysia, Mauritania, Mexico, Nepal, Nigeria, Pakistan, Paraguay, Peru, Qatar, Russian Federation, Saudi Arabia, South Africa, Sri Lanka, Sudan, Swaziland, Togo et Zimbabwe.
Against (13): Australia, France, Germany, Hungary, Ireland, Italy, Japan, Netherlands, Republic of Korea, Romania, Ukraine, United Kingdom and the United States.
Abstaining: (1): Finland.

The Mexico Meeting

The Mexico/Guatemala invitation for a meeting to be held in Mexico in June or July of 2005 on the “cross-cutting” issues of the Declaration appears in paragraph 8 of the Canadian proposal for continuance of the Working Group:

“8. Takes note of the proposal raised during the resumed meeting of the tenth session of the working group, to hold a workshop with the participation of representatives of States, indigenous experts, internationally recognized academics, independent experts and civil society organizations, to be hosted and co-sponsored by the Government of Mexico, on issues related to the draft declaration with the purpose of promoting the rapprochement of positions of all partners involved, and invites the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people to participate in this workshop;” [E/CN.4/2005/L.11/Add.6, page 74]

We could not identify a separate tabled resolution on this idea in the Commission’s report.

Continuance of the Working Group on the Declaration

As stated above, Canada assumed responsibility for tabling the resolution on the future of the Working Group on the Declaration [E/CN.4/2005/L.62, Working Group of the Commission on Human Rights to elaborate a draft declaration in accordance with paragraph five of the General Assembly resolution 49/214 of 23 December 1994]. Canada made a very general statement in presenting their text, in which they noted that governments and indigenous peoples concerns were taken into account in the text drafting, as well as mentioning the good progress the WGDD was making. Nonetheless,

“the USA proceeded to table an amendment to the text which would force the WGDD to complete its work before the 62^nd Commission on Human Rights… They wanted the Commission to know how committed they are to the WGDD and the importance they place on a Declaration on the Rights of Indigenous People, but that the WGDD could not continue indefinitely and had to be adopted by the end of this year. Canada took the floor once again in support of the original text of the resolution to state that the Co-sponsors were very much against this amendment as it would not allow the WGDD to successfully complete its work. Guatemala made an excellent statement in which they reiterated much of what Canada said, but surprisingly encouraged the Chairperson of the WGDD to include within the sessions new and dynamic methods of work in order to clarify procedural matters for all the participants as there has been confusion about the definition of consensus and provisional adoption among other technical issues arising in the Declaration elaborations. Mexico re-stated the comments made by Canada and Guatemala, also noting that the Chairperson of the WGDD needs to adopt new and dynamic methods of work, as well as the fact that we are in the crucial moments of the future of the Declaration on the Rights of Indigenous Peoples.” [Sezin Rajandran, email report of 4/21/2005, emphasis added]

The language that Guatemala used “new and dynamic methods of work” is important because it echoes statements made by the High Commissioner for Human Rights as well as many Indigenous delegates in making their presentations before the Commission regarding the Working Group on the Declaration. This phrase is used to indicate that equal and non-discriminatory methods of work must be employed and the language was used in the Indigenous Caucus consensus language for inclusion in our interventions. It is therefore significant that Guatemala and Mexico advocated the same point of view.

“Mexico stated that nothing can prevent the adoption of the Declaration, and furthermore if the 10 years of the 1^st Decade on Indigenous Peoples did not see the adoption, then how could anyone think that in 20 days of meetings the negotiations would be finished. Mexico opposes any time limit on this process because even though it has been slow, there has been progress and it is evident that the WGDD needs more time.” [Sezin Rajandran, email report of 4/21/2005]

In the discussions between states and Indigenous peoples, Mexico had suggested at least a two year extension, three weeks each, consistent with the High Commissioner’s statement on the 2^nd Decade. Such an extension is also closer to what we at the American Indian Law Alliance recommended. However, in our talks with the states they said the cosponsors would not support more than a year-by-year continuance. The American Indian Law Alliance commented in support of Mexico that this seems to be somewhat burdensome, spending time passing resolutions about continuance, rather than just passing one with sufficient time. Logic does not, however, often rule the day at the United Nations. However, although a multiple year extension of the Working Group on the Declaration would not be entertained, the U.S. amendment to insist upon completion within a year was overwhelmingly rejected as follows:

In favor:             (2) Australia and United States.
Against:            (49) Argentina, Armenia, Bhutan, Brazil, Burkina Faso, Canada, China, Congo, Costa Rica, Cuba, Dominican Republic, Ecuador, Egypt, Eritrea, Ethiopia, Finland, France, Gabon, Germany, Guatemala, Guinea, Honduras, Hungary, India, Indonesia, Ireland, Italy, Japan, Kenya, Malaysia, Mauritania, Mexico, Nepal, Netherlands, Nigeria, Pakistan, Paraguay, Peru, Qatar, Republic of Korea, Russian Federation, Saudi Arabia, South Africa, Sri Lanka, Sudan, Swaziland, Ukraine, United Kingdom and Zimbabwe.
Abstaining:        (2) Romania and Togo

Again, the United States has managed to isolate itself, and we, as Indigenous peoples, must count this as one of those small victories that will ultimately advance our cause. With typical arrogance though, the United States said:

“even though their amendment was rejected, they will assume that the work will be finished by the 62^nd Commission and will treat the WGDD as such.” [Sezin Rajandran, email report of 4/21/2005]

Having been defeated in their amendment, the United States then insisted on a vote on the resolution to continue the work of the Working Group on the Declaration and further stated that they would abstain from the vote (therefore preventing Canada from obtaining its desired consensus on the resolution). Australia, the current lackey of the United States, did vote in favor of the resolution but prior to the vote insisted that they agreed with the Americans and would only vote in favor of the resolution this one time because they considered this the last session of the WGDD. The battle lines have clearly been drawn. The United States and Australia have shown their determination, as they have stated publicly, to either have a Declaration which conforms to their discriminatory and prejudicial policies or simply see to it that there is no Declaration at all. Of course, Indigenous peoples, and apparently some states, are not willing to succumb to their dictatorial international stands.

The vote on the Canadian resolution was:

In favor: 51 (all voting states)

Against: 0

Abstaining: 1 (United States of America)

Other Indigenous Resolutions

The Guatemala/Mexico Resolution on Human Rights and Indigenous Issues

This resolution concerns itself with the work of the Special Rapporteur and was adopted by consensus. This resolution discusses the mandate of the Special Rapporteur and the topic of his next report which will deal with indigenous peoples and legislation. The language on the resolution can be found in E/CN.4/2005/L.11/Add.6 beginning on page 75.

Indigenous Peoples in Times of Conflict Resolution

The Sub-Commission draft resolution on the protection of indigenous peoples in times of conflict was also adopted. The United Kingdom “regretted” that they had to call a vote on this draft resolution because they continue having trouble with the word “peoples” within texts referring to indigenous peoples. The report on this can be found in E/CN.4/2005/L.10/Add.15, page 7

The voting was as follows:

In favor:             (35) Argentina, Armenia, Bhutan, Brazil, Burkina Faso, China, Costa Rica, Cuba, Dominican Republic, Ecuador, Egypt, Eritrea, Ethiopia, Gabon, Guatemala, Guinea, Honduras, Indonesia, Kenya, Malaysia, Mauritania, Mexico, Nepal, Nigeria, Pakistan, Paraguay, Peru, Qatar, Russian Federation, Saudi Arabia, South Africa, Sri Lanka, Sudan, Swaziland and Zimbabwe.
Against              (13) Australia, Canada, Finland, France, Germany, Hungary, Ireland, Italy, Netherlands, Romania, Ukraine, United Kingdom and United States.
Abstaining:        (4) Congo, India, Japan and Republic of Korea.

Madam Daes’ Report on Permanent Sovereignty over Natural Resources

Australia called for a recorded vote regarding Madame Erica Irene Daes’ Report on indigenous peoples’ permanent sovereignty over natural resources. Pakistan and Cuba spoke in favor of the resolution. Pakistan urged the establishment of an expert seminar on this topic to examine the issues that arise from indigenous peoples and lands. Cuba also noted that it was quite unusual for a member state to call for a vote without any explanation.

The vote was:

In favor:             (38) Argentina, Bhutan, Brazil, Burkina Faso, Canada, China, Congo, Costa Rica, Cuba, Dominican Republic, Ecuador, Egypt, Eritrea, Ethiopia, Gabon, Guatemala, Guinea, Honduras, India, Indonesia, Kenya, Malaysia, Mauritania, Mexico, Nepal, Nigeria, Pakistan, Paraguay, Peru, Qatar, Romania, Russian Federation, Saudi Arabia, South Africa, Sri Lanka, Sudan, Swaziland and Zimbabwe.
Against:            (2) Australia and United States.
Abstaining:        (12): Armenia, Finland, France, Germany, Hungary, Ireland, Italy, Japan, Netherlands, Republic of Korea, Ukraine and United Kingdom.

The record of the vote can be found in E/CN.4/2005/L.10/Add.15, page 7. This report is a critical one for Indigenous peoples because, as the title suggests, it addresses our permanent sovereignty over natural resources and those of us who have not availed ourselves of its conclusions should certainly give it the attention it deserves.

Disappearance of Indigenous Territories

The final resolution that had to do with indigenous peoples is entitled the Legal implications of disappearance of States and other territories for environmental reasons, including the implications for the human rights of their residents, with particular reference to the rights of indigenous peoples. This is a report prepared by Ms. Haimpson and is particularly concerned with Indigenous island nations that are being overrun by the rising seas. She will submit an expanded working paper to the 57^th Sub-Commission on the Promotion and Protection of Human Rights.

And, forced here to repeat the unwavering objection of one nation to the promotion and protection of Indigenous peoples’ human rights, the United States of America insisted on a recorded vote being taken on the draft decision:

In favor: (51) Argentina, Armenia, Bhutan, Brazil, Burkina Faso, Canada, China,Congo, Costa Rica, Cuba, Dominican Republic, Ecuador, Egypt, Eritrea,Ethiopia, Finland, France, Gabon, Germany, Guatemala, Guinea,Honduras, Hungary, India, Indonesia, Ireland, Italy, Japan, Kenya,Malaysia, Mauritania, Mexico, Nepal, Netherlands, Nigeria, Pakistan,Paraguay, Peru, Qatar, Republic of Korea, Romania, Russian Federation,Saudi Arabia, South Africa, Sri Lanka, Sudan, Swaziland, Togo, Ukraine,United Kingdom of Great Britain and Northern Ireland, Zimbabwe.

Against: (2) Australia, United States of America.

Abstaining: (0).

The record of the vote can be found in E/CN.4/2005/L.10/Add.17, page 24.

It is certainly easy to discern a pattern within the voting record of the 61^st Session. Although there are differences in opinion, and although not all states may support the exact language of resolutions and declarations on Indigenous issues, the vast majority are willing to concede the need for a more fair and equitable approach to these issues. The United States in particular, along with Australia, the United Kingdom and France, continue to isolate themselves in this arena of international human rights. It would be hard for these nations to claim that they support either democracy or human rights if their records on these issues could be brought into careful international focus. The time appears to be rapidly advancing when international pressure, utilizing the processes began by our ancestors within the international field of advocacy, may indeed reap positive results for our peoples.

Conclusions and Lessons

The Law Alliance has participated in this process now for many years. However, wisdom comes from experience and our delegation learned a lot at this particular session at the United Nations. We believe that the time has come to spend a lot more time and energy laying the proper foundation for participation in international forums. As an NGO in consultative status with a full-time presence in New York City, we are in a particularly good position to begin to nurture lasting relationships with permanent missions to the United Nations that are open to a logical discourse on our issues. Because many of the resolutions and proposals that are presented in international forums are put together well before the meetings, having advance notice of the issues, the language and a potential means for influencing both could be invaluable for Indigenous nations, peoples and organizations. Naturally, we could not do this simply on our own behalf, but in consultation with other Indigenous peoples, organizations and nations. The American Indian Law Alliance has already committed itself to maintaining as vast a communication network as possible. Taking this to the next step, from communication to action, seems like a fairly natural progression.

Obviously, we cannot expect every Indigenous organization and nation to have the same perspective. We are distinct peoples with distinct opinions. But the more of us that can act in concert with like-minded approaches, the stronger our stance will appear to be. Some members of the Indigenous Caucus, by-in-large a minority for sure, seem determined, willingly or unwilling, to derail the process and/or, to some of us, the underlying principles. Retreating at this juncture can only result in chaos. Handing states internalized self-determination is wrong. Some of these positions could result in the need to recommence, from scratch, a process for a declaration/convention on Indigenous peoples’ rights. Nothing could make the United States, Australia, France and Great Britain happier. However, we are committed to bringing together the Indigenous nations and organizations who stand for a declaration on Indigenous rights that preserves our right to self-determination, our sovereignty over lands, territories and resources, and a need for international recognition of our treaties. We support equal rights for Indigenous peoples, group rights that recognize our distinct cultures and nations, and the inclusion of Indigenous peoples as equal players in all of the processes that involve us.

Another principle of the United Nations to keep in mind is the nature of the progress. It is easy to become discouraged. It is easy to think that the endless discussions over the placement of single consonants (the “s” on peoples) or prepositions are pointless. However, we have long supported the idea, taught to us by the mentors that guide the work of the Law Alliance, that this work is for the future, for that seventh generation yet unborn. This sense of a long-term goal can easily be dismissed at times, in the heat of battle, when the only thing that seems critical is immediate survival. But it should not be dismissed. It is why we are here and what we have been chosen to do.

We know this is how the UN works. We use all the meager dollars, pesos, yen and pounds we can beg, borrow, or steal to move a half step forward only to be pushed back a couple miles. We are confronting the richest, vastest, resource-rich nations on Earth with little more than our will. But someday, all those half steps come together and we will actually find we have created a path. The path may not be a wide boulevard easily navigated. It is more like a reservation road, cratered with pot holes and broken-up asphalt, but nonetheless, it’s the road we have built and travel. And it can lead to the place we call home with the blessing of our ancestors and peoples. And, in a couple of generations, they can fix the potholes after we have cleared the way.

Remembering Tony Black Feather: Our Turn

Nearly a year ago, Tony Black Feather passed away, leaving us to our own devices in carrying on this work without his daily presence. For 12 years, the American Indian Law Alliance worked very closely with Tony. Kent Lebsock, the Executive Director of the American Indian Law Alliance, had the privilege of working with him on international advocacy probably longer than any other single individual. We talked to him at least twice a week, traveled to incredibly diverse places for any variety of reasons (need we remind everyone of the now infamous horseback ride through France), made innumerable trips to the United Nations, hosted a dozen treaty gatherings, and made presentations from German cities to the California seashore. In all this time, the American Indian Law Alliance was there to support him in his arguments for the rights of the Oyate to its sovereignty and treaties. Our role was acknowledged in at least four treaty gatherings on Lakota territory and innumerable written documents by Tony, Chief Garfield Grass Rope and other Lakota leaders.

The goal that he worked towards in everything that he did was the recognition of the Lakota people as a sovereign nation, with language, culture, territory, resources and treaties already in place. To gain recognition of this sovereignty, he announced his international strategy to the elders in 1984. He recognized that it was a long, arduous road ahead but always, with unfailing humor and optimism, despite our own waning confidence at times, would point his finger outward and say, “we’ll make it.”

Of all the innumerable lessons taught to us in working with him, one stands out in particular: that of common sense. “The Lakota way,” he always said, “is common sense. Don’t act like children. We’re grown ups so act like grown ups.” He often invoked this standard at the United Nations to rebuke states for their unprincipled stands against human rights, for their needless distraction over minutiae, and their child-like positions that detained progress while people suffered. Nor did the Indigenous Caucus escape the same gentle rebuke. It was often Tony who would put us back on the right track when we would wonder from the goal and get caught up over senseless rambling over positions.

But Tony was also an experienced and effective diplomat. He was respected by and friendly to everyone (except maybe the American delegates whose ability to support unprincipled positions he found abhorrent). He was equally recognized by the security guards, Madam Daes, Alfonso Martinez or Chief Oren Lyons as one of the most revered figures at the United Nations. He brought respect and recognition, simply by his presence, to a sovereign Lakota Nation. He was a head-of-state and accepted the respect due to a head-of-state but always with humility and humor.

As an effective diplomat, he understood the need to participate in the process on behalf of our nation. He took pride in the principled positions we always supported and also took pride in what he always referred to “as the professionals he worked with” at the American Indian Law Alliance. Again, he would say, we are not children, we work only with professionals and it was the Law Alliance’s highest honor to be considered the head of his support team. Over the years we of course had differences of opinion and differences in approach, but there was never a lack of respect or a dismissal of our collaboration on behalf of our peoples. He recognized the value of a meeting of the minds between his own unwavering traditional perspective and our ability to professionally maneuver the system with those principles in mind. That is how we worked.

Knowing this, Tony would not have thought it was a common sense or principled strategy to take a position that could jeopardize the entire Declaration process. He recognized that the PRINCIPLES of the declaration were the critical part of its existence. The right to self-determination, a process for the peaceful and equal recognition of Indigenous treaties in the international arena, recognition of sovereignty over land and resources; these were the principles he supported. The language was never considered particularly holy or inflexible. But the principles were inflexible.

One specific example from the early days of drafting the Declaration in the Working Group on Indigenous Populations regards Article 36 on treaties, which states:

“Indigenous peoples have the right to the recognition, observance and enforcement of treaties, agreements and other constructive arrangements concluded with States or their successors, according to their original spirit and intent, and to have States honour and respect such treaties, agreements and other constructive arrangements. Conflicts and disputes which cannot otherwise be settled should be submitted to competent international bodies agreed to by all parties concerned.” [Article 36, 1994 Draft Declaration on the Rights of the World’s Indigenous Peoples as approved by the Subcommission on Human Rights]

During this particular session, Kent Lebsock, Tonya Gonnella Frichner, Tony Black Feather and Chief Garfield Grass Rope traveled as a single delegation. Tony and Garfield were strictly opposed to the language of the last sentence which ends with “agreed to by all parties concerned.” We wanted the sentence to end after “international bodies” in order to ease access to such jurisdictional bodies as the International Court of Justice without the consent of the United States. Access to the International Court of Justice was (and still is) one of the key objectives of the work founded by Tony and Garfield. Under the Sub-Commission draft, U.S. approval would be required to go to the International Court of Justice. We made several interventions objecting to the inclusion of the intolerable language. But the language was included anyway. Nonetheless, as diplomats of a sovereign nation and recognizing that this paragraph, even with the unwanted language, provides our nation with a basis for arguing for our treaty issues, it was ultimately supported. Why? Because it is common sense. It also demonstrates that the language of the 1994 Declaration is not perfect, sacred or able to be improved upon. The language is not sacred, as far as we have been taught, until the nation accepts it and the pipe smoked, as with a treaty.

In the Working Group on the Declaration we find ourselves involved in a process to come up with language that can become an international standard and, hopefully, eventually, a treaty or convention. Then, if it contains specific principles involving our right to sovereignty, self-determination, and treaties, we will adhere to it as a signatory nation, if the nation agrees. But make no mistake, if these principles are compromised or the agreement to only make changes that improves or clarifies the language are not adhered to, Indigenous peoples, including the American Indian Law Alliance, will not support the Declaration. We are willing to walk away when and if the principles are not respected.

However, it would not be common sense to insist upon a process that would do away with the Declaration altogether, simply because words were changed that might improve or clarify the Declaration while leaving the principles in tact. This would leave us without a Declaration and back where we were in the beginning, in 1982. How can this be a common sense approach to fighting for our rights?

Equally non-sensical is the idea that a suspension in the process would somehow benefit our position. We have made some significant strides in the last couple of years. Nearly half of the articles in the Declaration are in a position to be approved including, it appears, with the support of Canada, the key article and the most basic principle of the Declaration, the right to self-determination. The UN is being reorganized. In two or three years, after a suspension of the process, we will not know where we stand, who we would be working with, or what new approval process would be imposed.

It seems to be common sense that when one is making advances, moving forward, and coming to terms with the most important principles, to continue to fight for our rights. It seems the opposite of common sense to retreat, rest, sit back and wait for our enemies to regroup. Throughout the 80s and 90s, under Tony and Garfield’s leadership, the American Indian Law Alliance and the Tetuwan Oyate had significant input in to both the language and process, maintained a position of leadership and, collaborating with many others, were able to advance a principled Declaration that would establish the rights of our nations’ future generations.

The American Indian Law Alliance is committed to Tony’s common sense approach to the preservation of all of our rights and proudly declares that we will not retreat or rest but rather insert ourselves into the struggle whenever we can be of use.

Respectfully submitted,

The American Indian Law Alliance

611 Broadway, Suite 632

New York, NY 10012

212-477-9100

aila@ailanyc.org

611 Broadway
Suite 632
New York, NY
10012

1.212.477.9100
phone

1.212.477.0004
fax

aila@ailanyc.org