Human rights and self-determination are hot issues as nations debate the application of the UN Declaration on the Rights of Indigenous Peoples: Is the Declaration a revolutionary challenge to the colonial system that dominates Indigenous peoples? Or a modest proposal to accommodate Indigenous peoples within state structures?
A multitude of Indigenous voices assert that the UN Declaration guarantees Indigenous self-determination and the protection of international standards of human rights. They say the aim of the Declaration is to establish Indigenous nations on an equal footing with all other nations.
The U.S. Mission to the United Nations challenges this, asserting that the Declaration establishes a "different" standard of rights and does not put Indigenous peoples in the same class as nation-states. The goal of the Declaration, says the U.S., is to perfect the legal framework of subordination—"wardship," as it is called in federal Indian law—to incorporate Indigenous peoples into states.
This debate echoes the U.S. Declaration of Independence. The issue of subordination—and whether or not to talk about it—was implicated in the drafting of the U.S. Declaration. A comparison of Thomas Jefferson's original rough draft with the final version shows the Continental Congress didn't want to name it.
Jefferson's draft opens with the following sentence: "When in the course of human events it becomes necessary for a people to advance from that subordination in which they have hitherto remained, & to assume among the powers of the earth the equal & independant (sic) station to which the laws of nature & of nature's god entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the change."
The final version reads, "When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation."
What happened between Jefferson's pen and the delegates' vote obviously had something to do with "subordination," which Jefferson named and the delegates omitted. David Bromwich, reviewing a book about the history of ambition, suggests that the delegates shied away from the brashness of Jefferson's statement. They didn't want to be seen as too "ambitious." In the terminology surrounding debates of the UN Declaration, the delegates in Philadelphia preferred to present an "aspirational" document.
Whatever the merits of analyzing documents in terms of ambition, we can see that the UN Declaration on the Rights of Indigenous Peoples revisits the history of self-determination. This is a sign that the U.S. is wrong in saying the Declaration is "different."
Under conventional international principles applied since the 1648 Treaty of Westphalia, Indigenous self-determination is subordinated to state sovereignty. The principle of "sovereignty" was designed to prop up a unitary system of power, allowing states to suppress internal challengers and extend jurisdiction to colonial empires. Within this framework, Indigenous peoples exercise only those powers permitted by states, and there is no room for non-state self-determination.
One result of this is that Indigenous peoples are defined by the negative fact that they are dominated by a state system, despite the fact that they existed before the creation of dominating states. The UN Declaration marks the end of this system and the entry onto the world stage of Indigenous peoples in their own right, as defined by themselves. This is the change the U.S. is trying to block, by insisting that nothing fundamental has changed with the Declaration.
In a 2002 law review article, Prof. Robert Odawi Porter (Seneca) suggested three choices for Indigenous peoples: 1) do nothing about their relation to states; 2) maintain some distinctive characteristics; 3) promote separate Indigenous systems of governance. The first choice, he says, will result in the extinction of Indigenous peoples. The second produces cultural differences. The third produces "indigenization," a resumption of self-determination.
Porter acknowledges the barriers to indigenization: psychological and political. The experience of missionary and boarding school regimes left a legacy of self-doubt and even shame at being an Indigenous person. The legal and economic structures of the global corporate-state system present barriers to practical steps toward indigenous self-determination. Porter describes one major obstacle as "the inability to recall the memory of the colonization process upon one's nation," and another as "the pursuit of remedies to colonization that have the practical effect of promoting rather than alleviating colonization's impact."
Indigenous peoples' representatives today can remember their own colonization and reject proposals that will promote ongoing colonization. They can follow Thomas Jefferson's lead and name the condition that has to be overthrown: "subordination."
Peter d’Errico graduated from Yale Law School in 1968. Staff attorney in Dinebeiina Nahiilna Be Agaditahe Navajo Legal Services, 1968-1970. Taught Legal Studies at University of Massachusetts, Amherst, 1970-2002. Consulting attorney on indigenous issues