Over the past 30 years there has been the emergence of Indigenous economies being developed by Indigenous nations and entrepreneurs. This is not something new but a re-assertion of the inherent right of Indigenous governments to regulate trade and commerce within their territories and jurisdictions. What is new is the potential application of international law to support Indigenous nations in their efforts to develop their economies and economic potentials.
The 1928 Montevideo Convention on the Law of Nations states that a “nation” has the following characteristics:
1. A defined territory.
2. A stable population.
3. The institutions of governance and law.
4. The ability to enter into international treaties and agreements.
Clearly, all Indigenous nations meet these criteria. But in the realm of inherent right and authority the element of “the institutions of governance and law” is the one that applies to and affirms the fundamental inherent right of a nation to exercise authority and control over what occurs within its jurisdictions. All Indigenous nations have original laws, policies and regulations concerning the conducting of trade and commerce internally and externally.
In the vast woodlands of North America there is a diplomatic protocol that is contained in the phrase “at the edge of the woods”. In the realm of trade and commerce it was the common law amongst all Indigenous nations that one needed to acquire the permission of the national or local government to conduct any trade and/or commerce within their territory. So a trade delegation would come to the edge of the woods and open up trade and commerce negotiations.
This fundamental inherent right is something that was never given up in any treaty. In fact, it is such a universally recognized right, by all parties, that it doesn’t even come up for negotiations. It is such a fundamental right that even the emerging American government recognized its sanctity and reserved onto itself the sole right to conduct and administer trade and commerce relations with Indigenous nations as seen in Article 1, Section 8, Clause 3 of the U.S. Constitution which states: “To regulate commercewith foreign Nations, and among the several States, and with the Indian Tribes.”
What’s most important about this clause are the words, “with the Indian tribes”. It does not say within or amongst the Indian tribes. It is clearly intended to leave with Congress the power to regulate Americans trading and conducting commerce with Indigenous nations in the same manner as it would regulate trade and commerce with foreign Nations.
It takes almost 200 years for international laws to finally emerge that have a bearing on this issue. Beginning in the 1950’s there is a global uprising against European colonialism and oppressed peoples begin the process of de-colonization.
Work began in 1958 on what became U.N. General Assembly Resolution 1803 (XVII) of 14 December 1962 "Permanent Sovereignty Over Natural Resources". In December 1958, the Commission on Permanent Sovereignty over Natural Resources was established and instructed to conduct a full survey of the status of permanent sovereignty over natural wealth and resources as a basic constituent of the right to self?determination.
Paragraph 1 of Resolution 1803 (XVII) establishes an important principle:
1. The right of peoples and nations to permanent sovereignty over their natural wealth and resources must be exercised in the interest of their national development and of the well?being of the people of the State concerned.
What’s important here is that this paragraph does not say that permanent sovereignty is something that is granted or delegated – it is in fact a fundamental inherent right. Of course the degree of exercising that right could be the subject of negotiations. What is important to understand is that with the adoption of this resolution it has now become critical language that carries over into all international law and is interwoven as an element of self-determination.
In 1966, the United Nation adopted two fundamental pieces of international law. They are the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. Article 1, Sections 1 and 2 are identical in both covenants and states:
- All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.
- All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and internationallaw. In no case may a people be deprived of its own means of subsistence.
In December 1986 the U.N. General Assembly adopted resolution 41/128 – Declaration on the Right of Development. Again there is emphasis on inherent/inalienable rights in Article 1, which states:
1. The right to development is an inalienable human right by virtue of which every human person and all peoples are entitled to participate in, contribute to, and enjoy economic, social, cultural and political development, in which all human rights and fundamental freedoms can be fully realized.
2. The human right to development also implies the full realization of the right of peoples to self?determination, which includes, subject to the relevant provisions of both International Covenants on Human Rights, the exercise of their inalienable right to full sovereignty over all their natural wealth and resources.
In 2002, Madam Erica-Irene Daes, former Chairperson-Rapporteur of the Working Group on Indigenous Populations released her Working Paper entitled: “PREVENTION OF DISCRIMINATION AND PROTECTION OF INDIGENOUS PEOPLES: Indigenous peoples’ permanent sovereignty over natural resources” in which she states:
“It is apparent that this basic principle of permanent sovereignty over natural resources applies as well to indigenous peoples for the following reasons, among others:
(a) Indigenous peoples are colonized peoples in the economic, political and historical sense;
(b) Indigenous peoples suffer from unfair and unequal economic arrangements typically suffered by other colonized peoples;
(c) The principle of permanent sovereignty over natural resources is necessary to level the economic and political playing field and to provide protection against unfair and oppressive economic arrangements;
(d) Indigenous peoples have a right to development and actively to participate in the realization of this right; sovereignty over their natural resources is an essential prerequisite for this;
(e) The natural resources originally belonged to the indigenous peoples concerned and were not freely and fairly given up.”
Many of our own folks need to go through a de-colonization process as witnessed by NCAI resolution TUL-13-018, which states:
“BE IT FURTHER RESOLVED, that NCAI calls upon the President and the Secretary of the Interior to modernize the Federally Licensed Indian Trader Regulations to provide for a National Indian Traders License for Indian nations and tribes seeking to engage in the National Native Trade Network and thereby promote the economy of Indian Country, delegate such licensing and enforcement authority through 638 Contracts and Self-Governance Compacts, and recognize tribal authority over reservation commerce and pre-empt contrary state laws, regulations and taxation authority;..” [emphasis added]
One sovereign does not ask another sovereign to “provide”, “delegate”, “recognize” or authorize the exercise of an inherent sovereign right. This is not how self-determination is actualized. Fortunately, this seems to have faded into the sunset.
Mike Myers is the founder and CEO of Network for Native Futures, a Native non-profit that works with Indigenous nations, communities and organizations internationally. The network's mission is to support sustainable development and nation re-building through providing of technical assistance, training and consulting.