Peter d'Errico

Policies of “self-government” promoted by the U.N. Declaration on the Rights of Indigenous Peoples “are amazingly close…to Spanish colonial policies.” Champagne described how the U.N. and the Spanish policies both postulate the assimilation of Native Peoples into state government systems. Both conceptualize indigenous local governments as ordinary municipal governments subject to nation-state laws and control.

Duane Champagne recently pointed out that policies of “self-government” promoted by the U.N. Declaration on the Rights of Indigenous Peoples “are amazingly close…to Spanish colonial policies.” Champagne described how the U.N. and the Spanish policies both postulate the assimilation of Native Peoples into state government systems. Both conceptualize indigenous local governments as ordinary municipal governments subject to nation-state laws and control.

Champagne’s analysis echoes what Vine Deloria Jr., and Clifford Lytle wrote in 1984 (The Nations Within: The Past and Future of American Indian Sovereignty), where they discussed the 1975 U.S. Indian Self-Determination and Education Act: “In an overall sense, self-determination policy puts tribal councils on the same footing as state and municipal governments with regard to acquiring federal funds, thus undermining the unique treaty-based position of Native Americans.”

Deloria, never one to mince words, said U.S. programs pushing Native Peoples into a municipal government model were “clothed ironically not as termination but in the new language of self-determination.” He added, “Federal bureaucrats began to speak in hushed tones about the ‘government-to-government relationship.’”

The rhetoric of “self-government” requires careful analysis. The surface looks appealing, since it seems to support what Native peoples are demanding; but beneath the glittering surface lurk difficult and dangerous assumptions and institutional forces. In the Spanish case, “self-government” policy presumed Native peoples would abandon their indigenous modes of life and adopt Christian modes—including modes of land ownership and political leadership. In the United States, federal “government-to-government” programs presume that Native peoples will subordinate themselves to settler-state extractive economic programs and land laws based on Christian Discovery claims.

A danger common to discussion of Indigenous Peoples rights arises from the use of “human rights” and “civil rights” concepts developed around issues of gender and race equality. Those concepts are suitable for understanding individual social and political relations—people’s rights—but are inadequate to understand a peoples’ rights—the rights of societies vis-à-vis other societies. The significance of the “s” and where to put the apostrophe explains the fiercely fought debate in the United Nations about the name of the Declaration. Some member states—led by the U.S.—insisted there are Indigenous people, but no Indigenous Peoples, and therefore the system of individual “human rights” and “civil rights” was sufficient, with no need for a category of “collective rights” for Peoples.

The U.S. lost the battle to prevent the articulation of Indigenous Peoples’ rights in the U.N., but the struggle continues. For example, since 1989, the Organization of American States (OAS) has been discussing its own proposed Declaration on the Rights of Indigenous Peoples, involving the same debates as in the United Nations. By 2011, the OAS members had reached consensus on a range of issues, and had identified several matters where “difficulties” remained.

At the top of the OAS “difficult” list stood the question whether “Indigenous Peoples have collective rights that are indispensable for their existence, well-being, and integral development as peoples.” This question included whether Indigenous Peoples have the right “to administer and control their lands, territories, and natural resources,” and whether “indigenous law and legal systems shall be recognized and respected by the national, regional and international legal systems.”

In 2016, the OAS presented its 12th draft of the Declaration for discussion in Washington, D.C. This version included an affirmation of Indigenous Peoples’ collective rights, including to their “lands, territories, and resources.” However, the draft states that such indigenous land rights are held “in accordance with the legal system of each State and the relevant international instruments [unspecified]. The states shall establish the special regimes appropriate for such recognition, and for their effective demarcation or titling.” In other words, beneath the glittering appeal of “collective rights” in the OAS Declaration lurks the continuing insistence on state power to establish “special regimes” governing indigenous rights.

True to form, the United States delegation to the OAS asserted that “the U.S. remains committed to… collaborating on issues of land rights and self-governance,” eliding the difference between “collaboration” and “consent.” To emphasize its point, the U.S. delegation added that it has “persistently expressed objections to the text of this American Declaration.” In closing, the U.S. tried to reapply the glitter, stating that it “reiterates its solidarity with the concerns expressed by Indigenous Peoples concerning their lack of full and effective participation in these negotiations.” In short, while undercutting indigenous self-determination, the U.S. backed indigenous participation in negotiations controlled by states. To play with words, we might call the U.S. statement a call for self-termination or self-subordination.

Canada’s delegation struck a somewhat different note, but to the same end: It declared that Canada would consult with “our Indigenous Peoples.” Whose peoples?

The Columbia delegation started with heavy glitter—”enthusiastic in welcoming the fact that the Declaration has been adopted at long last—a very important step forward for Indigenous Peoples of the Americas”; and then proceeded to refuse to agree to “free, prior and informed consent” by Indigenous Peoples “before adopting and implementing legislative or administrative measures that may affect them,” or “prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources.” Columbia also refused to agree that “military activities shall not take place in the lands or territories of Indigenous Peoples.”

In other words, the international status of Indigenous Peoples—or, to put it another way, whether and to what extent Indigenous Peoples have international status—remains an ongoing debate, despite glittering high-level Declarations.

Resources exist to assist Indigenous Peoples’ advocates in understanding the nature of the debate. For example, The Center for World Indigenous Studies issued its critique of the OAS document, calling it “regressive in relation to the UN Declaration.” And TONATIERRA, an Indigenous Peoples community empowerment movement engaged with the Original Nations of Abya Yala, mounted similar critiques, highlighting especially the need to shift the overall discourse from civil rights and human rights to “Indigenous Rights and the Rights of Mother Earth.”

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Nahuacalli, an Embassy of Indigenous Peoples in support of “Community Ecology and Self Determination,” offers radical Indigenous Declarations challenging the good faith and intentions of settler state declarations. For example, the 2000 Declaration of Teotihuacan offers “principles of Community Spirituality and the inalienable right to Self Determination as Original Peoples of the Continent…in this present era of economic globalization driven by the great capital interests of transnational corporations and the so called industrialized nations, which threatens our very existence daily, … to protect the sacred rights of our Nations and Pueblos for the future generations.”

From these indigenous perspectives, state and corporate invasions of Native lands—as in Standing Rock by the Dakota Access Pipeline—represent an “ongoing colonization and usurpation of the geopolitical rights of the Original Nations,” at the hands of forces operating under a doctrine of the “Divine Right of States.” Yet again, these perspectives warn us to look beneath the glitter of documents and policies that seem to support indigenous self-determination, to see whether such documents and polices are nothing more than “the emperor’s new clothes.”

Peter d’Errico graduated from Yale Law School in 1968. He was Staff attorney in Dinébe’iiná Náhiiłna be Agha’diit’ahii Navajo Legal Services, 1968-1970, in Shiprock. He taught Legal Studies at the University of Massachusetts, Amherst, 1970-2002. He is a consulting attorney on Indigenous issues.