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d’Errico: ‘Full and equal members of the UN family’

The Ninth Session of the United Nations Permanent Forum on Indigenous Issues opened in New York April 19 with remarks by UN Secretary-General Ban Ki-moon.

“Indigenous peoples often live in the most isolated places on earth – from the Arctic to the African savannah. But, the United Nations is working to make sure that indigenous people themselves are not isolated.” He added, “You have a unique place in the global community.”

The most significant element in the welcoming statement was the next short sentence, “You are full and equal members of the U.N. family.” Mr. Ban followed this by saying, “And we will continue to support and protect your human rights and fundamental freedoms, and your right to pursue social and economic development.”

To say that indigenous peoples are “full and equal members of the U.N. family” is to break with a line of thinking far older than the United Nations itself, going back to and before the foundation case of U.S. federal Indian law, Johnson v. M’Intosh.

The defendant in that case, M’Intosh, “denied the right of the Indians to be considered as independent communities,” and argued that Indians “have never been admitted into the general society of nations.” Chief Justice Marshall borrowed from this argument to write the decision in the defendant’s favor, holding that “Christian discovery” was the “foundation” of the “paramount title” of the United States.

The United Nations is moving in a different direction. It has changed its attitude toward indigenous people since the days of its predecessor, the League of Nations.

Eight years later, in Cherokee Nation v. Georgia (1831), Marshall coined the infamous dicta that Indian nations “may, more correctly, perhaps, be denominated domestic dependent nations,” and that “Their relation to the United States resembles that of a ward to his guardian.” Through the twists and turns of legal history, the United States has not abandoned that foundation to its claim that Indian nations are not equal to non-Indian nations.

The United Nations is moving in a different direction. It has changed its attitude toward indigenous people since the days of its predecessor, the League of Nations. In 1923, the League refused to allow Cayuga Chief Deskaheh, to present the Iroquois case against Canada’s violation of Iroquois nationhood. Deskaheh and his lawyer were not even allowed to observe League proceedings from the visitors’ gallery.

On Sept. 13, 2007, 84 years after Deskaheh’s visit to Geneva and 30 years after a historic 1977 presentation in the same city by 130 representatives of indigenous nations from the Americas, the U.N. General Assembly adopted the Declaration on the Rights of Indigenous Peoples. The story of both these visits can be read in detail in Akwesasne Notes’ “Basic Call to Consciousness.”

The U.S. is one of four members of the U.N. that voted against the Declaration. Of the other three nations, two – Australia and New Zealand – have since endorsed it, and Canada announced in March it was moving to endorse it. New Zealand’s endorsement was announced at the opening of the ninth session, to great applause and cheering.

Pressure will continue to build on the U.S. to endorse the U.N. Declaration, especially when it becomes the last member to actively oppose the document. One of the key elements will be the Permanent Forum’s increasingly deep examination of the doctrine of “Christian discovery.”

The Forum requested Tonya Gonnella Frichner, North American regional member of the Permanent Forum, to submit a “preliminary study” of the impact on indigenous peoples of the Doctrine of Discovery, for consideration. The study establishes that the Doctrine of Discovery “lies at the root of the violations of indigenous peoples’ human rights, both individual and collective” and has resulted in “mass appropriation of the lands, territories and resources of indigenous peoples.”

The study recommends “that an international expert group” be convened to discuss in detail the findings and implications of this preliminary study and present its findings to the Permanent Forum.

The U.S. had a chance in 1823 and again in 1923 to reject the Doctrine of Christian Discovery and to recognize indigenous nationhood on equal footing with all nations. The U.N. Permanent Forum on Indigenous Issues will provide another opportunity.

We will see if the U.S. can change.

Peter d’Errico is a consulting attorney on indigenous issues. D’Errico was a staff attorney in Dinebeiina Nahiilna Be Agaditahe Navajo Legal Services from 1968 to 1970. He taught Legal Studies at University of Massachusetts, Amherst until 2002.