Indigenous Land Rights Pt III

Notes from the third section of the U.N. report: PREVENTION OF DISCRIMINATION AND PROTECTION OF INDIGENOUS PEOPLES AND MINORITIES.

Because this is a particularly long and important section, I will break it down over two or three days.

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III. FRAMEWORK FOR THE ANALYSIS OF CONTEMPORARY PROBLEMS REGARDING INDIGENOUS LAND RIGHTS

A.) Failure of States to acknowledge indigenous rights to lands, territories and resources

• This most fundamental and widespread problem is divided into two parts: the failure of States to recognize the existence of indigenous use, occupancy and ownership, and the failure of States to accord appropriate legal status, juridical capacity and other legal rights in connection with indigenous peoples’ ownership of land.

1. Failure of States to recognize the existence of indigenous use, occupancy and ownership

"Countries in many parts of the world are unaware of or ignore the fact that communities, tribes or nations of indigenous peoples inhabit and use areas of land and sea and have done so, in many cases, since time immemorial. These areas are typically far from the capitals and other urban areas of the country and typically countries regard these lands and resources as public or government lands. Although the indigenous people concerned regard themselves, with good reason, as owning the land and resources they occupy and use, the country itself, typically, disposes of the land and resources as if the indigenous people were not there. These
governmental tendencies are further exacerbated in federations such as Canada and the United States, where state/provincial and even municipal governments sometimes pursue such actions, either in coordination with the central or national Government, or independently and in pursuit of their own policy.


2. Failure of States to accord appropriate legal status, appropriate juridical capacity and other legal rights

"This problem is closely related to the one discussed above. Although States know that indigenous communities, nations or groups exist and have exclusive use and occupancy of an area, some States do not acknowledge that the indigenous peoples concerned have legal entitlement or rights to the land or resources. In some situations, the indigenous peoples are regarded as using the public or national lands at the sufferance of the Government.


"The concept of aboriginal title and the relationship of this legal concept to the human rights of indigenous peoples is centrally important. In many countries, particularly those of the British Commonwealth, exclusive use and occupancy of land from time immemorial gives rise to aboriginal title, a title that is good against all but the Sovereign, that is, the Government of the State. Where aboriginal title is recognized, indigenous peoples have at least some legal right that can be asserted in the domestic legal system. However, aboriginal title is often subject to the illegitimate assumption of State power to extinguish such title, in contrast to the legal protection and rights that, in most countries, protect the land and property of non-indigenous citizens, their individuals and corporations ... This single fact probably accounts for the overwhelming majority of human rights problems affecting indigenous peoples.


B.) Discriminatory laws and policies affecting indigenous peoples in relation to their lands

• "In those States that have developed a body of positive law and a body of jurisprudence in regard to indigenous peoples... the most significant problems appear to arise because of persistent discriminatory laws and legal doctrines that are applied to indigenous peoples and their lands and resources.

1. Laws regarding the extinguishment of indigenous peoples’ land and resource rights

Practically all countries where indigenous peoples live assert the power to “extinguish” the land titles and rights of the indigenous peoples within their borders, without the consent of the indigenous peoples. The concept of extinguishment includes voluntary purchase and sale of title, but more commonly the term “extinguishment” is used to mean outright taking or expropriation, most often without just compensation. Like the concept of aboriginal title, extinguishment is a term that came into prominent use during the colonial period.

"One particularly clear example of the problem of extinguishment is provided by the case of the Tee-Hit-Ton Indians v. United States. In this case the Supreme Court decided that the United States may (with limited exceptions) take or confiscate the land or property of an Indian tribe without due process of law and without paying just compensation, this despite the fact that the United States Constitution explicitly provides that the Government may not take property without due process of law and just compensation. The Supreme Court found that property held by aboriginal title, as most Indian land is, is not entitled to the constitutional protection that is accorded all other property. The racially discriminatory nature of the Tee-Hit-Ton decision can be seen in the opinion, an extract of which follows:

“No case in this court has ever held that taking of Indian title or use by Congress required compensation. The American people have compassion for the descendants of those Indians who were deprived of their homes and hunting grounds by the drive of civilization. They seek to have the Indians share the benefits of our society as citizens of this Nation. Generous provision has been willingly made to allow tribes to recover for wrongs, as a matter of grace, not because of legal liability.

“'... Every American schoolboy knows that the savage tribes of this
continent were deprived of their ancestral ranges by force and that, even
when the Indians ceded millions of acres by treaty in return for blankets,
food and trinkets, it was not a sale but the conquerors’ will that deprived
them of their land.'”

"The legal doctrine created by this case continues to be the governing law on this matter in the United States today."


"[Canada's] Constitution Act of 1982, section 35 (1), recognizes and affirms aboriginal and treaty rights. By reason of the Constitution Act of 1982, courts in Canada no longer acknowledge government power to “extinguish” aboriginal rights. Instead, the courts have decided that aboriginal rights, including aboriginal land title, are not absolute but may be “infringed” by the federal or provincial governments when the infringement is “justified” by the needs of the larger society. In a recent case, Chief Justice Lamer of the Supreme Court of Canada wrote: 'In my opinion, the development of agriculture, forestry, mining, and hydroelectric power, the general economic development of the interior of British Columbia, protection of the environment or endangered species, the building of infrastructure and the settlement of foreign populations to support those aims, are the kinds of objectives that are consistent with this purpose and, in principle, can justify the infringement of aboriginal title.' (Delgamuukw v. The Queen, paragraph 165 of the Chief Justice’s opinion, unpublished decision, 11 December 1997). It remains unclear whether this new requirement of “justification” will in fact provide greater protection to indigenous land rights than previous law... [I]t also remains doubtful whether the law accords an equal, non-discriminatory level of legal protection to indigenous property rights as compared to the property rights of others.

2. Plenary power doctrine

Another discriminatory legal doctrine that appears to be widespread is the doctrine that States have practically unlimited power to control or regulate the use of indigenous lands, without regard for constitutional limits on governmental power that would otherwise be applicable. In the United States, this is known as the “plenary power doctrine” and it holds that the United States Congress may exercise virtually unlimited power over indigenous nations and tribes and their property. No other population or group is subject to such limitless and potentially abusive governmental power.

3. Treaty abrogation and land rights

"... Treaties have been used, among other purposes, as mechanisms for gaining cessions of indigenous land and for ostensibly guaranteeing rights to the remaining lands held by the indigenous nation. The problem of discrimination arises when the State later abrogates or violates the treaty. In the typical case, the injured indigenous nation or tribe has no legal remedy against the State either in domestic law or under international law. The denial of any remedy under international law is inconsistent with the use of treaties as a legal mechanism and with the status of indigenous peoples as subjects of international law. Thus, indigenous peoples appear to be unique in being denied legal remedies for violation of their rights where the State abrogates or violates a treaty between the State and an indigenous nation, tribe or peoples. Certain States, including New Zealand and the United States, regard treaties as instruments of domestic law as well as international law and accordingly do not believe a remedy under international law is necessarily appropriate. The question, in such cases, remains whether a just remedy is provided for treaty violation or abrogation, and whether the use of the treaty mechanism in domestic law is non-discriminatory."

The next post will begin with the failure of States to demarcate indigenous lands.

This is all something to think about, yes?

Colleen

Indigenous Land Rights Pt II

In case anyone out there who thinks that discrimination towards Indigenous peoples or Eurocentrist beliefs which harm Native peoples are things of the past, please read on.

(Bullets and highlighting are mine added for ease of the reader.)

II. HISTORY AND BACKGROUND: IMPACT OF THE DOCTRINES OF DISPOSSESSION

"The gradual deterioration of indigenous societies can be traced to the non-recognition of the profound relationship that indigenous peoples have to their lands, territories and resources, as well as the lack of recognition of other fundamental human rights.

"The colonization of indigenous territories has affected indigenous peoples in a number of ways.

• Demographic deterioration occurred through maltreatment,enslavement, suicide, punishment for resistance, warfare, malnutrition due to destruction of the natural environment or over-exploitation of natural resources, disease and outright extermination. Rodolfo Stavenhagen states that “the entire population of the Americas decreased by 95 per cent in the century and a half following the first encounter”.
• The intent to convert indigenous peoples to Christianity and bring them under the “sovereignty” of foreign monarchs created widespread havoc, despite some early attempts at “friendly treatment”.
• With population decline came the destruction of the traditional social order, due to the efforts of missionaries and Western attitudes towards the divisions of labour and of gender, among other things.
• The introduction of the practice of attaching a monetary value to things and of buying and selling things previously considered non-merchantable, including land, added the stress of an economic environment quite opposite to the traditional economic order of most indigenous communities.
• These concepts were all alien to the collective social organization of indigenous communities.

"It is safe to say that the attitudes, doctrines and policies developed to justify the taking of lands from indigenous peoples were and continue to be largely driven by the economic agendas of States.

"In most situations, it was only through rationalization and military domination that colonizers secured “ownership” of the lands, territories and resources of indigenous peoples. The territories of indigenous peoples in the Americas and elsewhere were taken through many means, but largely by military force. Where “just war” could not be waged, treaties sometimes were concluded. In regard to North America, Vine Deloria, Jr. wrote:

"Treaty-making was a feasible method of gaining a foothold on the continent
without alarming the natives. Treating with the Indians, then, brought an air of
civility and legitimacy to the white settlers’ relations with the Indians and
provoked no immediate retaliation by the tribes. Instead of the Indians being
subjected to bondage or their lands merely seized through the use of force,
which Spain eventually did, civility reigned in North America. Indian land and
the rights to live in certain areas were purchased at formal treaty sessions.”

"The doctrines of dispossession which emerged in the subsequent development of modern
international law, particularly terra nullius and “discovery”, have had well-known adverse effects on indigenous peoples. The doctrine of terra nullius as it is applied to indigenous peoples holds that indigenous lands are legally unoccupied until the arrival of a colonial presence, and can therefore become the property of the colonizing power through effective occupation. Strictly speaking, in the seventeenth, eighteenth, and nineteenth centuries, the doctrine of “discovery” gave to a discovering State of lands previously unknown to it, an inchoate title that could be perfected through effective occupation within a reasonable time. The doctrine, as it has come to be applied by States with little or no support in international law, gives to the discovering colonial power free title to indigenous lands subject only to indigenous use and occupancy, sometimes referred to as aboriginal title. Only recently has the international community begun
to understand that such doctrines are illegitimate and racist."

Here's an example:

"The High Court of Australia in its 1992 decision in Mabo v. Queensland discussed the
legal and other effects of the doctrine of terra nullius. The Court denounced the doctrine by concluding that this “unjust and discriminatory doctrine ... can no longer be accepted”. This decision gave rise to the Native Title Act, adopted by the Government of Australia in 1993, which established a framework and mechanism by which Aboriginal peoples in Australia could secure land rights. However, Australian Aboriginal peoples have reported to the Working Group that they have great difficulties with the Act, and regard as unjust and ill-founded the State’s asserted authority, recognized in the Mabo decision, to extinguish indigenous land rights.

"To what extent the Government of Australia can continue to extinguish indigenous land title through legislation that discriminates against indigenous title is a matter of ongoing debate. The Committee on the Elimination of Racial Discrimination, on 18 March 1999, issued a decision finding that provisions in the 1998 Native Title Act Amendments extinguish or impair the exercise of indigenous title rights and interests and discriminate against native title holders (A/54/18, para. 21, decision 2 (54))... It demonstrates that Eurocentrist and discriminatory ideas continue to be evident in legal theory and action and that such attitudes in national legislation and court decisions may trap indigenous peoples in a legal discourse that does not embrace their distinct cultural values,beliefs, institutions or perspectives."

Tomorrow, I'll post excerpts from part III: FRAMEWORK FOR THE ANALYSIS OF CONTEMPORARY PROBLEMS REGARDING INDIGENOUS LAND RIGHTS

Colleen

A good read for those interested in indigenous land rights...

Angelique Eaglewoman sent me this U.N. Report by Special Rapporteur Erica-Irene Daes. It is on the relationship Indigenous People have to land.

It goes far beyond what many non-Indigenous people understand -- or think we understand -- this relationship to be. The difference in our cultures' connection to land is profound.

I hope you take the time to read through the following comments that I've pulled from the document. I will cover one chapter per day. I am also trying to find a link to the original that I can post here. In the meantime, here is a link to the UNITED NATIONS DECLARATION ON THE RIGHTS OF INDIGENOUS PEOPLES.

All highlighting below is mine.
_________________________

PREVENTION OF DISCRIMINATION AND PROTECTION OF INDIGENOUS
PEOPLES AND MINORITIES (E/CN.4/Sub.2/2001/21 11 June 2001)

"Reports and statements by indigenous peoples from all parts of the world delivered
during sessions of the Working Group on Indigenous Populations and information received in
the preparation of the working paper have made it clear that land and resource issues,
particularly the dispossession of indigenous peoples from their lands, are issues of the most
urgent and fundamental nature. At the same time, there has been great concern on the part of
certain States, academic institutions, non-governmental organizations (NGOs) and individuals
that the recognition of the human rights of indigenous peoples would supposedly require that all
the lands and resources ever taken from indigenous peoples be returned...

"There are an enormous number of problems and issues relating to indigenous land rights,
so many that no study or paper could give them all full consideration within the time-frame
allowed for this initiative. Any attempt to deal with all of the land and resource issues would
necessarily be superficial and lengthy. The better course, adopted here, is to sort and organize
the multitude of issues into an analytical framework and to attempt to identify those issues or
problems which are the most fundamental or most severe and, of these, the most deserving of
attention in the search for means of alleviating the suffering and injustices endured by
indigenous peoples.

"What core values should guide our judgement in this work? First, the great human rights
principles embodied in the Universal Declaration of Human Rights and the International
Covenants on Human Rights, particularly the principles of equality and self-determination and
the prohibition of discrimination. In addition, we must be guided by the fundamental values and
interests that form the foundation of the draft United Nations declaration on the rights of
indigenous peoples: among others, the preservation and well-being of indigenous cultures and
communities, the elimination of poverty and deprivation among indigenous peoples, and the
great goals of equality before the law and justice for indigenous peoples and all peoples....


I. RELATIONSHIP OF INDIGENOUS PEOPLES TO THEIR LANDS, TERRITORIES AND RESOURCES

"In order to understand the profound relationship that indigenous peoples have with their
lands, territories and resources, there is a need for recognition of the cultural differences that
exist between them and non-indigenous people, particularly in the countries in which they live...
"The relationship with the land and all living things is at the core of indigenous societies. For example, the land tenure system, known as Kipat, of the Limbu indigenous people of Nepal provides a means of belonging to a place and to a distinctive community - the one not separable from the other...

"Professor James Sakej Henderson attempts to illustrate this distinct relationship and
conceptual framework by stating that 'the Aboriginal vision of property was ecological space
that creates our consciousness, not an ideological construct or fungible resource ... Their vision
is of different realms enfolded into a sacred space ... It is fundamental to their identity,
personality and humanity ... [the] notion of self does not end with their flesh, but continues with
the reach of their senses into the land'. Such a relationship manifests itself in the elements of
indigenous peoples’ cultures, such as language. For example, an Inuit elder tried to articulate
this relationship by stating that 'our language contains an intricate knowledge of the Arctic that
we have seen no others demonstrate.'”

"Mr. Martínez Cobo [author of the Study of the Problem of Discrimination against Indigenous Populations] states:

'It is essential to know and understand the deeply spiritual special relationship between indigenous peoples and their land as basic to their existence as such and to all their beliefs, customs, traditions and culture.

'For such peoples, the land is not merely a possession and a means of production. The entire relationship between the spiritual life of indigenous peoples and Mother Earth, and their land, has a great many deep-seated implications. Their land is not a commodity which can be acquired, but a material element to be enjoyed freely.'

"In summary, each of these examples underscores a number of elements that are unique to
indigenous peoples:

(i) a profound relationship exists between indigenous peoples and
their lands, territories and resources;

(ii) this relationship has various social, cultural, spiritual,
economic and political dimensions and responsibilities;

(iii) the collective dimension of this relationship is significant; and

(iv) the intergenerational aspect of such a relationship is also
crucial to indigenous peoples’ identity, survival and cultural viability.

"There may be additional elements relating to indigenous peoples and their relationship to their lands, territories and resources which have not been captured by these examples."

It really makes you think about the impacts of taking land, doesn't it?

I'll highlight the second section next: HISTORY AND BACKGROUND: IMPACT OF THE DOCTRINES OF DISPOSSESSION.

Colleen

Conspiracy Theories and 9/11

There is a great series running at Mother Jones on 9/11 and what we've learned since then.

"NEWS: Six years after 9/11 and three years after the 9/11 Commission, Congress has just started to do what's necessary to protect us from the next terror attack. But have they done enough? And is time running out?"

You can read it here.

Colleen

Guest Blog: U.N. Declaration on the Rights of Indigenous Peoples

On Sept. 13th, 2007, the United Nations General Assembly approved the U.N. Declaration on the Rights of Indigenous Peoples. It has taken over twenty years for the passage of a declaration outlining the minimum floor of human rights for indigenous peoples around the globe. Four nation-states opposed adoption of the Declaration - the United States, Canada, Australia and New Zealand. It is no surprise to Tribal Nations in the United States that the supposed advocate for human rights around the world continues to oppose basic protections for those Native to this land and other lands. Even with this opposition, the overwhelming majority of U.N. members (143) voted in favor of these basic protections to provide guidance around the globe.

Art. 31 of the Declaration states that indigenous peoples have the right to control and protect their cultural traditions and expressions including in sports. As an alum of the University of North Dakota School of Law, I am still deeply offended by the continued exploitation of my People, the Sisseton-Wahpeton Dakota Oyate, commonly referred to as the 'Sioux' by non-Natives. Not only is this offense a continuing educational barrier that should be removed to serve the educational needs of Native peoples in the area, but now it is a violation of the basic human rights principles of indigenous peoples recognized around the world.

May 2008 will mark the tenth year since my graduation from UND and in 2008 we will see the 60th anniversary for the Universal Declaration on Human Rights. With the addition of the Sept. 13th, 2007 passage of the UN Declaration on Rights of Indigenous Peoples, isn't it about time that the major public university in the state of North Dakota stop violating Native human rights with the use of the offensive 'Sioux' mascot and start joining in the worldwide movement to accord Native peoples with the basic dignities of life that all other populations are entitled to?

For more information on the Declaration: http://www.un.org/esa/socdev/unpfii/en/declaration.html

Angelique EagleWoman
(Wambdi A. WasteWin)
UND Law Class of 1998

Wasase Movement and Anarcha-indigenism

Thanks to a friend, I have recently come across the Wasase Movement.

From the Wasase website: "Wasáse is an intellectual and political movement whose ideology is rooted in sacred wisdom. It is motivated and guided by indigenous spiritual and ethical teachings, and dedicated to the transformation of indigenous people in the midst of the severe decline of our nations and the crises threatening our existence. It exists to enable indigenous people to live authentic, free and healthy lives in our homelands.

"Wasáse promotes the learning and respecting of every aspect of our indigenous heritage, working together to govern ourselves using indigenous knowledge, and unifying to fight for our freedom and the return of our lands. It seeks to liberate indigenous people from euroamerican thoughts, laws and systems."

If you're interested in finding out more about Wasase, you can visit the website here.

You may also be interested in an article that ran recently in the Globe and Mail on anarcha-indigenism written by Daniel Morley Johnson, a PhD student in comparative literature at the University of Alberta.

Link to Daniel Johnson's article here.

Some food for thought, yes?

Colleen

Canada's first Indigenous Lieutenant Governor

I must apologize for neglecting this blog as I have done over the past month. Deadlines of many sorts are upon me and I've had to let a few things slide. It will be a few weeks until things get any better.

That said, there is some news that bears mentioning...

Steven Point -- one of only a handful of Indigenous judges in Canada, is the Chief Commissioner of the B.C. Treaty Commission, and is an elected chief of the Skowkale First Nation -- has just been named Canada's first Indigenous Lieutenant Governor. Check out Shelagh Roger's interview with the Honourable Steven Point here.

Imagine that! Someone from a First Nations' community representing the Queen. There's a certain irony in that, don't you think?

Also, Shelagh will be focusing on the lives of Native individuals in a segment called Our Home and Native Land. Here's a link to info from the first show last week on Dan Christmas, Calvin Helin and Ellen Gabriel. Sadly, the links aren't the most informative, but lead to links where you can find information related to these individuals or the work they do. However, I think the program is worth watching for. I believe it will be on weekly.

All the best,
Colleen