It is typical to refer to our respective nations and peoples as being "in" Canada or "in" the United States and therefore as being deemed subject to the jurisdictions of those two political constructs called "states" in international law. What we seldom express, however, is the more profound point that those two Western European political constructs are on and in Turtle Island, as North America is traditionally known to the Original Nations of Turtle Island.
For far too long we have been conditioned to seemingly accept the idea that Indian nations are subject to the political and legal jurisdiction of the United States and Canada. We have not spent much time at all developing the viewpoint that originally free Indian nations are still rightfully free and that those two political constructs of European origin are in and on Turtle Island. To even express such an idea seems mad because of the ingrained conditioning we have received from a very young age that we as Indigenous nations and peoples are unquestioningly subject to the dictates of dominating societies.
In his amazing book Imperialism, Sovereignty, and the Making of International Law (2004), Professor Antony Anghie argues that international law is a product of the colonial confrontation between European and non-European peoples. International law is, in other words, an outgrowth of imperialism, and thus was conceived and operates on the basis of a structure of domination and subordination. In the book's Foreword, the eminent scholar James Crawford refers to the "relations between civilizations and peoples" as "relations of domination." (original emphasis)
To further Anghie's perspective, it has not been well understood that in the context of international law "Indigenous peoples" are understood as dominated peoples, or, peoples that have been compelled by various means to live under forms of domination. In the book Indigenous Peoples: A Global Quest for Justice (1987), published by the Commission for Humanitarian Issues, we find a "working definition" of the term "indigenous peoples":
Indigenous populations are composed of the existing descendents of the peoples who inhabited the present territory of a country wholly or partially at the time when persons of a different culture or ethnic origin arrived there from other parts of the world, overcame them and, by Conquest, settlement or other means reduced them to a non-dominant or colonial situation.
Key words above which indicate domination are "overcame them", "conquest", "reduced them", "non-dominant" and "colonial situation". Given these terms, the phrase "arrived there from other parts of the world" may be sensibly rephrased as "invaded from other parts of the world."
There is evidently, no clear doctrine in international law by which "Indigenous peoples" that have been and continue to be forced or compelled to live under regimes of domination have the perfect right to free themselves from that condition. It was that condition and the effects of domination which inspired American spiritual leaders, elders, scholars, and activists to enter the international arena in the late 1970s in an effort to find redress for their grievances from the centuries-long effects of domination.
Now, more than three decades later, the UN Declaration on the Rights of Indigenous Peoples has been formally adopted by the United Nations General Assembly. Given that domination has been clearly identified as the root problem of all peoples termed "Indigenous", the question now becomes: "to what extent does the UN Declaration on the Rights of Indigenous Peoples provide the means for our nations and peoples to free or liberate ourselves from domination?" For if that document does not provide a path to free ourselves from domination then we must now move on to the next phase of the work that needs to be done to find that path on Turtle Island.
The states of Canada and the United States that have erected themselves on and within Turtle Island—on the conceptual foundation of the Doctrine of Christian Discovery and Domination--desire to maintain their illegitimate claims of dominance over our originally free nations and peoples. Now that the UN Permanent Forum on Indigenous Issues is scheduled to hold a half-day session on the Doctrine of Discovery next May, there has been a deft response to redirect the discussion toward the theme of "reconciliation."
Thus, the question from the perspective of Original Nations of Turtle Island becomes: "What does the term 'reconciliation' mean in a context of ongoing domination by the states of Canada and the United States?" It evidently means this: "How do we get them to reconcile themselves with and to the unquestionable dominance (ultimate sovereignty) of the state?" In other words, the issue of "reconciliation" is nothing other than a trap door that leads inevitably right back to the seemingly never ending cycle of domination.
Steven Newcomb, Shawnee/Lenape, is co-founder and co-director of the Indigenous Law Institute, author of Pagans in the Promised Land: Decoding the Doctrine of Christian Discovery (Fulcrum, 2008), and a columnist for Indian Country Today Media Network.