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The UN Is Ignoring Its Permanent Forum on Indigenous Issues

The "outcome document" of the high-level plenary meeting of the UN General Assembly—known as The World Conference on Indigenous Peoples—has generated controversy about whether it represents a "win" for Indigenous peoples. The evidence shows it does not.

As Dina Gilio-Whitaker noted, "Indigenous Peoples had no official say in the drafting process other than their input during the preparation process…and a consultative role through two informal interactive hearings…. This lack of an 'official' voice was why the North American Indigenous Peoples Caucus’ (NAIPC) withdrew … and issued a call to cancel the conference."

The "interactive hearings" listed participants as "representatives of indigenous peoples" and "representatives of entities of the UN system." This separation of Indigenous Peoples from the "UN system" shows why the enthusiastic responses by some Native leaders are misplaced, and why the critics have a strong point.

Will Micklin, 1st Vice President of the Tlingit Haida Indian Tribes of Alaska, acknowledged, "indigenous nations are not members of the UN nor are they subject to the UN Charter." Nevertheless, he declared the outcome document a "victory," saying it demonstrates "serious commitments by UN member states and…concrete and decisive action…."

Micklin lists four purported "commitments" and "actions": 1) "initiation of a process to create a permanent body in the UN system to monitor and encourage" compliance with the Declaration on the Rights of Indigenous Peoples; 2) "development of options to make it possible for Indigenous governments to participate" in the UN; 3) "attention" to violence against Indigenous women; and 4) "measures" to protect sacred places.

None of these four amounts to "concrete and decisive action." One—the creation of a permanent body to monitor the Declaration—ignores the existence of the Permanent Forum. Apparently, the drafters of the outcome document don't regard the Forum as an already existing "permanent body" to promote the Declaration.

The "development of options for Indigenous governments to participate" in the UN does not amount to "decisive action." Indeed, Micklin and others cheering the outcome document claim Indigenous governments are already participating in the UN. Critics point out that "participation" may mean anything from "providing input" to actual decision-making power. If the outcome document called for the latter, it would be "concrete and decisive action."

One may applaud "attention" to violence against Indigenous women, but "attention," like "options," hardly amounts to "serious commitment" or "decisive action."

The fourth item—recommendation of "measures" to protect sacred lands—not only fails to reach the level of "serious commitment" and "concrete and decisive action," it opens the door to a profound evidence-based critique: namely, the outcome document contains no mention at all of the most significant accomplishment of the Permanent Forum on Indigenous Issues—the challenge to the Doctrine of Discovery.

For the outcome document to deserve applause, it would have to acknowledge and pledge to implement the Permanent Forum's "Study on the impacts of the Doctrine of Discovery on indigenous peoples, including mechanisms, processes and instruments of redress."

The Forum's Study of the Doctrine of Discovery involved a multi-year process started in the eighth session of the Forum in May 2009, with the appointment of Special Reporter Tonya Gonnella Frichner to conduct a preliminary study of "the impact on Indigenous Peoples of the international legal construct known as the Doctrine of Discovery, which has served as the foundation of the violation of their human rights."

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At its ninth session, the Permanent Forum decided, "the information and material presented in the preliminary study of the international construct known as the Doctrine of Discovery indicates the need for further study and review and for a more comprehensive assessment and exploration of the issues raised therein on violations of Indigenous Peoples’ inherent rights, particularly as recognized in the United Nations Declaration on the Rights of Indigenous Peoples."

The Forum declared a "special theme" for its eleventh session: "The Doctrine of Discovery: its enduring impact on indigenous peoples and the right to redress for past conquests (articles 28 and 37 of the United Nations Declaration on the Rights of Indigenous Peoples)." At its 10th session, the Forum emphasized the special theme would include a focus on "redefining Indigenous and State relationships…in order to develop a vision of the future for reconciliation, peace and justice."

The eleventh session of the Permanent Forum described the Doctrine of Discovery as a "nefarious doctrine" that "became the basis for the assertion of authority and control [by states] over the lives of Indigenous Peoples and their lands, territories and resources." The Forum called upon States "to repudiate such doctrines." The session appointed Edward John, a member of the Forum, to produce a full study on the impacts of the Doctrine of Discovery, to be submitted to the Forum at its twelfth session

The 12th session of the Forum expressed "alarm" at the continuing application of "the erroneous and discredited 'doctrine of discovery,'" noting that the doctrine was applied in June 2012 by the British Columbia Court of Appeal "to deny the land rights and title of the Tsilhqot’in to their traditional lands and territories." The Forum might also have pointed out applications of the doctrine over and over again in the United States, including in 1955 against the Tee-Hit-Ton band of the Tlingit Nation.

At its 13th session, the Forum recommended that the full "Study on the impacts of the Doctrine of Discovery on indigenous peoples, including mechanisms, processes and instruments of redress" be "submitted to the President of the General Assembly and to Member States as a reference guide in the discussions relating to the high-level plenary meeting / World Conference on Indigenous Peoples."

How much clearer can the evidence be? Over the course of six years prior to the high-level plenary meeting, the Permanent Forum on Indigenous Issues studied and criticized the "Doctrine of Discovery" as a violation of the human rights of Indigenous peoples, and made a specific recommendation to "guide the discussions" of the high-level meeting.

If the high-level meeting were really a "World Conference on Indigenous Peoples," it would have—at a minimum—discussed the Doctrine of Discovery. At maximum, it would have followed the conclusions of the Study, that "the upcoming World Conference on the Rights of Indigenous Peoples provides an opportunity … in the outcome document to wholly repudiate colonial doctrines and to commit to processes of redress."

In fact, the high-level meeting did nothing. It neither discussed nor repudiated the Doctrine of Discovery. It left the doctrine in place, without critique, as an ongoing basis for states to claim Native lands.

The high-level meeting outcome document fails the test of evidence, proving that the supportive rhetoric of Micklin and other Native leaders has no foundation. As Glenn Morris put it, "Invader-States Hijacked [the] UN World Conference on Indigenous Peoples." Rudolph C. Ryser's statement comparing Morris to a "demagogue" was aimed at the wrong target. "Demagogue" means "a political leader who seeks support by appealing to popular desires and prejudices rather than by using rational argument."

"Popular desires" exist for Indigenous Peoples to have standing in the United Nations. A rational examination of the evidence shows this has not happened. The evidence from the high-level outcome document shows the UN does not even pay attention to its own Permanent Forum on Indigenous Issues.

Peter d’Errico graduated from Yale Law School in 1968. He was Staff attorney in Dinebeiina Nahiilna Be Agaditahe Navajo Legal Services, 1968-1970, in Shiprock. He taught Legal Studies at the University of Massachusetts, Amherst, 1970-2002. He is a consulting attorney on indigenous issues.