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Unfortunate Confusion on the Right of Self-Determination

Steven Newcomb
7/8/14

Sixteen months ago, the National Congress of American Indians (NCAI) issued a “Tribal Leaders’ White Paper.” Dated February 28, 2013, the paper was drafted in preparation for the March 1-2 2013 North American Indian Peoples Caucus gathering at the Sycuan Resort in the Kumeyaay Nation Territory, where the first day’s discussion was going to be dedicated to a United Nations High Level Plenary Meeting “to be known as the World Conference on Indigenous Peoples.” The UN High Level Meeting that was discussed back then will be taking place this September at the UN headquarters in New York.

The title of the NCAI’s 2013 White Paper is “The World Conference on Indigenous Peoples.” In the nuanced world of the United Nations, semantic subtleties are highly important. Yet the drafters of the NCAI White Paper did not seem at all concerned with the fact that the United Nations General Assembly never intended the UN High Level Plenary Meeting to actually be a world conference on Indigenous Peoples. The UN only wanted the event “to be known as” a world conference. This tells us something about the subtleties that the NCAI has failed to grasp regarding the strange world of the UN.

The UN is an odd world in which even one letter of the alphabet can mean a vast difference in political reality. I have in mind, of course, the difference between the word “people” with no ‘s,’ which means a bunch of individuals, and the world “peoples” with an ‘s,’ which means many entire Peoples (e.g., the entire People known as the Cree, the entire People known as the Lakota, the entire People known as the Kumeyaay, the entire People known as the Lummi, etc). When taken together in one broad category, they are correctly called “Peoples,” meaning more than one entire People.

From a naïve viewpoint it’s just one letter of the alphabet. Yet from a politically informed viewpoint, “Peoples” with an ‘s’ acknowledges that we are entire Peoples, and thus many entire Nations, with an existence originally free and independent of presumptions of domination over us by colonizing powers.

This mention of semantic subtlety is directed at a key point of the NCAI “White Paper.” Page one of the paper sensibly addresses the right of self-determination as expressed in Article 3 of the UN Declaration on the Rights of Indigenous Peoples. Specifically, it reads: “Indigenous peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social, and cultural development.” However, the NCAI paper then takes a bizarre turn into the domesticating and dominating labyrinth of federal Indian law and policy.

In the very next paragraph, the NCAI drafters say: “In the United States, self-determination is well-established in federal Indian law. The Supreme Court recognizes that tribes are inherent sovereigns predating the [U.S.] Constitution. Moreover, since the 1960s, Congress has repeatedly passed legislation that acknowledges this inherent right of self-determination.” At this point, the NCAI drafters cite “See, e.g., the Indian Self-Determination and Education Assistance Act, 25 USC § 450 et seq.

Those who drafted Article 3 in the UN Declaration did so on the basis of the right of self-determination in international law. The drafters of the NCAI “White Paper” were under the severely mistaken impression that the right of self-determination recognized in international law already “is well established in federal Indian law.” They apparently had no idea that there is no connection at all between the right of self-determination for all peoples in international law and the concept of self-determination in U.S. federal Indian policy such as is found in the U.S. “Indian Self-Determination and Education Assistance Act.”

Such confusion on the part of drafters of NCAI’s White Paper is a sad testimony. It tells us that many Indian people who purport to understand what is going on in the international arena and the United Nations have failed to grasp the full magnitude of what this fight is all about when it comes to self-determination. Such people apparently have a “U.S. federal Indian law and policy” mindset that they carry with them into the United Nations.

As a result, without even realizing it, they are normalizing “U.S. federal Indian law and policy thinking” in the UN. Rather than creating a fundamental challenge to U.S. federal Indian law and policy, such people are transferring the conceptual context of “U.S. federal Indian law and policy” into the United Nations.

A lot of Indian people are likely to misunderstand what I am saying. These are very difficult and challenging issues, no doubt about it. The amount of information to read, comprehend, and work through is massive, and it can also be massively confusing. Nonetheless, it is the height of folly for an organization such as NCAI to purport to know the subtleties of the international language system, and yet turn for guidance to those whose expertise is narrowly restricted to domestic U.S. federal Indian law and policy. The result is made evident by the confusion about international self-determination and a “U.S. domestic concept” of self-determination found in the NCAI “White Paper.”

As this is being written, an Interactive Hearing took place at the UN in preparation for the drafting of an UN High Level Plenary Meeting Outcome Document. Even though NCAI has not cleared up its confusion about self-determination, it has placed itself front and center in the discussions leading to that Outcome Document. Ironically, the NCAI, the Indian Law Resource Center, and the United States government, are all calling for “U.S. federally recognized tribes” to be recognized in the UN. Returning now to the earlier point about semantic subtlety, notice the similarity between “U.S. federally recognized tribes,” “U.S. Embassy,” the “U.S. State Department,” and “U.S. government.” They all have the prefix “U.S.” meaning “created by or belonging to the United States.”

The right of self-determination in international law includes the right of every People to define their own political status. What happens if the United States succeeds in making it look as if our Original Nations and Peoples have freely chosen as a political status only a “domestic” U.S. policy “concept of self-determination,” instead of an international right of self-determination?

What happens if the U.S. succeeds in making it seem as if our originally free and independent Nations and Peoples have freely chosen to define our own political status as that of ‘subservient sovereigns,’ namely, “U.S. federally recognized tribes,” which is a status that originates in the U.S. constructed conceptual framework of U.S. federal Indian law and policy?

What happens if we are being “led” to a “destination” that is the opposite of political reform, in the name of political reform? If that happens, then the danger exists that U.S. federal Indian law and policy system will end up being reaffirmed and accepted, rather than fundamentally challenged, internationally. We are in perilous times in the international arena, and those who ought to heed this warning are the ones least likely to do so.

Steven Newcomb (Shawnee, Lenape) is co-founder and co-director of the Indigenous Law Institute, and author of Pagans in the Promised Land: Decoding the Doctrine of Christian Discovery (Fulcrum, 2008). He has been studying U.S. federal Indian law and international law since the early 1980s.

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Wanbli Koyake's picture
Hau mitakuye Steven, Greetings my Relative Steven, Wopila cicu for your writing about the crookedness of wasicu/greedy language and how it’s being (unwittingly?) upheld by the NCAI and other supposedly knowledgeable people. Maybe they’re suffering from Stockholm Syndrome; that is, as abducted victims (All Original Peoples) of kidnappers (Colonizers like the U.S. A.) who come to identify with their captors, as a matter of abject survival. That’s all of us Original Peoples/Nations, so we know how that is, that it’s a matter of being swallowed up and forgetting that such a thing ever happened. It could be said they (N.C.A.I. and other representative institutions like the Tribes) have the best interests of the People at heart. But like my mom would say, “The road to hell is paved with good intentions”. She would say this to me, humorously, teasingly, whenever I’d make a promise to do something as matter of, escape, of getting away from the family life that was so unfamiliar to me, after several generations of familial boarding school experience. Even as I took comfort in the thought/intention that I was taking care of my kinship with her –my first kin in this Life– Mom was right. I was wrong, That’s the micro of the macro, regarding our present day situation as Original Peoples/Nations. We’re like those crabs in a bucket we hear about every now and then. Only some of us see through the words, the metaphor, the lie. Crabs don’t belong in buckets so of course they want to get out of an insane situation, they’ll do anything! But I always wondered, whose bucket is that, who put the crabs in the bucket? Why do we think that’s a fitting metaphor for our situation? That it’s wrong to pull down those who want to get out –assimilate– and that it’s right to accept your lot in life –to be food in someone’s providential bucket! Unquestionable shit if you aren’t paying attention. Ake wopila mitakuye Steven ta ecetu ilukcan wowapi na wicoiye. Mitakuye Owasin Again, Thanks my Relative Steven, for your original thinking, writing and word! All my Relations!
Wanbli Koyake
Mary Aurelia Johns's picture
Great explanation of the unique and subtle use of language by the UN. You have stated the problem so what should the tribes do about this? I agree with you in regards to the NCAI stepping into the center of important international issues. So once more what are your suggestions on how to handle their ignorance? I believe when problems are stated, examples of solutions should also be provided. This allows those of us who are interested in your positions and opportunity to better understand what can be done. Solutions combined with problem statements give a better understanding of why the problem is important and clues on how to develop other solutions which fit the need. I do appreciate your articles - they are informative - but as you say to discover solutions to this particular problem will require a great amount of research which unfortunately isn't high on tribal leadership's agenda.... they are consumed with trying to figure out how to make sure their people stay warm or cool depending on the time of year; if their youth are wasting away because of the high meth use; or gang culture has taken the place of long observed traditions. Of course if you'er a leader of a wealthy tribe your issues are different but Indian Country is always suffering from some serious problems which keep leaders from looking to the UN as a place to spend their time and energy.
Mary Aurelia Johns