The debate over the meaning and significance of the outcome document for the United Nations (UN) high level plenary meeting (erroneously referred to as the World Conference on Indigenous Peoples) is not going to end anytime soon. On September 22, the outcome document became a UN resolution, that is now proclaimed by its proponents to be a UN member state effort to implement the UN Declaration on the Rights of Indigenous Peoples that was adopted by the UN September 13, 2007. A close reading of the outcome document shows that it is undeserving of the praise it has received from its enthusiasts.
Prior to outlining the specifics of the outcome document, first recall the context of the term “indigenous” in United Nations usage. According to UN working definitions, peoples said to be “indigenous” were existing freely in a particular place. Then, eventually, another people of a different “race” or “ethnic origin” arrived there, and the new arrivals gradually became dominant through conquest, settlement, and other means. In other words, the UN working definitions tell us that the original peoples were reduced down “to a non-dominant or colonial situation.”
In the United Nations there are different kinds of “rights.” What are being called “indigenous rights” pertain to those peoples who have been made to live under either colonial or state domination. While some people may presume that the UN currently recognizes that peoples existing under state domination possess a fundamental right to free themselves, the states of the world seem to assume that no such right of liberation exists for “indigenous” peoples. As explained below, the outcome document of the UN high level meeting of September 22 and 23, 2014 reflects this view.
I have contended in numerous articles, that efforts by state governments to implement the articles of the UN Declaration on the Rights of Indigenous Peoples represent an attempt to maintain state domination over nations and peoples termed “indigenous.” The use of capital letters is one way that states symbolize their claimed ascendancy over peoples termed “indigenous.” Accordingly, we find the following use of capital letters in the opening paragraph of the UN High Level outcome document: “Heads of State and Government, Ministers and representatives of Member States.” This is contrasted with the lower case ‘i’ and ‘p’ on “indigenous peoples” in the same paragraph. This use of uppercase lettering for “States” and lowercase lettering for “indigenous peoples” is one method that state governments and the United Nations use to project a reality of state dominance or domination over peoples called “indigenous.”
Applying uppercase or capital letters to “States” is the UN’s way of signaling that whatever rights peoples termed “indigenous” are said to be deemed by states to have a political status and existence under, beneath, or below the political entities called states. The UN Declaration on the Rights of Indigenous Peoples reinforces rather than challenges this political structure, and for this reason, state efforts to implement the UN Declaration on the Rights of Indigenous Peoples are not state efforts to end the domination of “indigenous” peoples, but to perpetuate it. This also holds true for the UN high level meeting outcome document.
With regard to the United States government, the above analysis can be tested by asking a simple question: Has the United States made any official statement indicating that it commits itself, pursuant to the UN Declaration on the Rights of Indigenous Peoples, or the “implementing” UN high level meeting outcome document, to end its claim of plenary power over Indian nations or to end the subjection of Indian nations through federal Indian law and policy? The obvious answer is, “Of course not.” No one can provide any evidence to the contrary.
As evidence of the domination-subordination or subjection system, refer to James Crawford’s foreword to Anthony Anghie’s book Imperialism, Sovereignty, and the Making of International Law (Oxford, 2004). Crawford notes the history of relations between “civilizations” and “peoples” are relations of “domination” (his original emphasis) by “states.” This is additional evidence that an effort to “implement” the UN Declaration on the Rights of Indigenous Peoples, from the dominating viewpoint of states, involves states maintaining their dominance over nations and peoples termed “indigenous.”
Article 46 of the UN Declaration on the Rights of Indigenous Peoples, defends the “territorial integrity” of states against assertions by indigenous peoples. This point is critically important to any discussion of the UN high level outcome document, and any effort to implement the UN Declaration. The language of Article 46 appears to assert that no one has the right to question “the territorial integrity of states,” but what this actually means is that states presume that no one, least of all peoples termed “indigenous,” have a right to question the state domination that is being typically called the “territorial integrity of states.” The form of domination that is now termed “territorial integrity” for the United States begins with the Doctrine of Christian Discovery and Domination, and the Johnson v. M’Intosh ruling of 1823.
The UN high level outcome document draws attention away from any consideration of the rightful political status of Indian nations or any acknowledgment that there is a “national level” for Indian nations. The language of the outcome document treats the “states” as being the only political entities with a “national” level. Thus, for example, paragraph 8 of the UN high level outcome document has state governments saying: “We commit to cooperate with indigenous peoples, through their own representative institutions, to prepare and implement national action plans where relevant, devoted to achieving the ends of the UN Declaration on the Rights of Indigenous Peoples.” (emphasis added)
The vast majority of paragraphs in the outcome document place the focus on indigenous “individuals” or “persons,” such as “indigenous persons with disabilities,” “indigenous peoples and individuals, particularly elders, women, youth, children and persons with disabilities” within the domestic and domesticating political framework of the state. The phrase “their own representative institutions” was the method by which state governments deftly and effectively side-stepped any acknowledgment in the context of the United Nations that “Indigenous peoples” have “governments.” In the view of states, they are the ones with “governments” in the context of the international arena. Peoples termed “indigenous,” because they are deemed to exist under the authority of state governments, are deemed by states to have merely “representative institutions.”
Given the above analysis, the question remains: Why do some representatives of peoples termed “indigenous” seem so enthusiastic about such a fundamentally flawed UN high level outcome document, which has been developed in the name of implementing the UN Declaration on the Rights of Indigenous Peoples?
Steven Newcomb (Shawnee, Lenape) is the co-founder and co-director of the Indigenous Law Institute, and author of Pagans in the Promised Land: Decoding the Doctrine of Christian Discovery (Fulcrum, 2008). He has been studying U.S. federal Indian law and international law since the early 1980s.