False specter of indigenous 'secession' again raised at the United Nations

Steven Newcomb
12/28/05

The 11th Intersessional Working Group on the U.N. Draft Declaration on the
Rights of Indigenous Peoples was held at the United Nations in Geneva,
Switzerland Dec. 5 -- 16, where both nation-states and indigenous nations
and peoples from around the world were represented.

Reports from the American Indian Law Alliance and the Indian Law Resource
Center indicated that the United States, Australia and New Zealand, in
particular, were opposed to recognizing indigenous peoples as having a full
right of self-determination in international law, unless the U.N.
Declaration on the Rights of Indigenous Peoples also endorsed the
"territorial integrity of states."

According to the AILA, on Dec. 6, the New Zealand representative stated
from the U.N. floor that a recognition of a right of self-determination for
indigenous peoples in the draft declaration must be accompanied by an
acknowledgment of "the territorial integrity of states."

An ILRC press release stated that "[d]eliberations are continuing on how to
assure countries like the United States, Indonesia, China, New Zealand and
Australia that indigenous nations will not disrupt their territorial
integrity -- a legal principle that holds no group has the right to break
away and form an independent country."

The ILRC statement also said, "While many countries participating in the
session have agreed to recognize a genuine right of self-determination for
indigenous peoples, some fear indigenous nations may try to secede from
independent countries." The specter of indigenous peoples trying to
"secede" raises a point, particularly with regard to indigenous nations
located within the political and geographical boundaries of the United
States.

It bears repeating that each and every one of our respective indigenous
nations were originally free and independent for many thousands of years
prior to the political formation of the United States. This legacy may be
thought of as our sacred birthright and our inherent right to exist on our
own lands, free of all forms of oppression and domination.

Given this birthright, and our inherent right of self-determination, it is
patently false to claim that an effort by our respective nations to be
liberated from a wrongfully imposed system of subjugation known as federal
Indian law and policy constitutes an effort to "secede" from the United
States. To "accede" means to freely enter into or join a political union
alliance. Because "secede" is the opposite of "accede," a nation, state or
political society must first have acceded to join a political order before
the possibility of "seceding" or "secession" can even enter into the
conversation.

After all, an effort to secede is an effort by a nation, or political
society to "break away from" a political order that it freely joined to
begin with. This cannot be said of our respective nations, even on the
basis of treaty-making. Treaties are made between independent nations, and
our Native nations were free and independent at the time that they made
treaties with the United States. Those treaties recognized our nations, and
our ancestors, as among the independent political societies of the world
capable of making war and peace. And while our treaties declared a state of
peace and friendship to exist between our nations and the United States,
the treaties also affirmed the free existence of our nations.

In 1852, a federal district court in Michigan declared: "It is contended
that a treaty with Indian tribes has not the same dignity or effect as a
treaty with a foreign and independent nation. This distinction is not
authorized by the Constitution. Since the commencement of the government,
treaties have been made with the Indians, and the treaty-making power has
been exercised in making them. They are treaties within the meaning of the
Constitution, and as such are the supreme laws of the land."

Over time, however, generations of U.S. government officials instituted an
oppressive system of policies and laws designed to rob our nations of
independence, and to expropriate the vast majority of our lands. The
Western Shoshone Nation is an excellent case in point. The United States
made a treaty with the Western Shoshone Nation in 1863, but later used
federal Indian law and policy to form the 1946 Indian Claims Commission
Act. This commission then created a false and fraudulent "finding" that
some 24 million acres of Western Shoshone lands had been "taken," without
Western Shoshone consent, by a process of "gradual encroachment." The
"territorial integrity" of the Western Shoshone Nation, or of any other
Native nation for that matter, does not exist in federal Indian law and
policy.

Given such oppression and lack of redress for American Indians in federal
Indian law and policy, traditional indigenous leaders, elders and activists
became active in the international arena, along with indigenous leaders
from other regions of the world, beginning in the late 1970s. Particularly
in Indian land rights cases, U.S. courts had tended to rule in favor of the
very same government that those courts represented, a trend that has
continued ever since. In any case, failure to find redress in U.S. courts
in major land cases, such as the Black Hills case of the Sioux Nation, and
the land rights cases of the Haudenosaunee Confederacy (or Iroquois Six
Nations), drove Indian nations into the international arena and the United
Nations.

For many years now, U.S. representatives have said that federal Indian law
and policy is a model that the world community ought to emulate. But if
that system is truly fair and supportive of indigenous peoples' human
rights, why does that system not protect the lands and rights of the
Western Shoshone Nation and other Native nations?

The truth of the matter is that the ideas and arguments that constitute
"federal Indian law and policy" -- undergirded by the doctrine of Christian
discovery -- have always provided the United States with a means of
stealing Indian lands and resources with impunity. The United States, as
the American empire, has proven time and time again that it will not
respect the territorial integrity of Indian nations, but it and other
nation-states now demand that indigenous nations acknowledge the
"territorial integrity" of the states that have oppressed them.

After nearly 30 years of indigenous representatives working tirelessly to
uphold and protect indigenous human rights internationally in the U.N.
Draft Declaration on the Rights of Indigenous Peoples, the government
officials of many nation-states continue to make the same arguments that
would ensure that no real reform occurs in international law. It seems
clear that nation-state officials do not want to uphold and protect the
inherent right of self-determination for indigenous nations and peoples,
especially if this will prevent nation-states from continuing to hold
indigenous peoples under a system of domination. Indeed, such efforts seem
intended to prevent indigenous nations and peoples from ever achieving true
liberation within the conceptual framework of international law.

Steven Newcomb, Shawnee/Lenape, is an indigenous law research coordinator
at Kumeyaay Community College, co-founder and co-director of the Indigenous
Law Institute, a research fellow at the American Indian Policy and Media
Initiative at Buffalo State College and a columnist for Indian Country
Today.

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