"Defending Treaty Rights At The United Nations"

IITC Report from the 11th UN Working Group on the Draft Declaration for the Rights of Indigenous Peoples, December 2005

By Sherri Norris
Communications and Outreach Coordinator
International Indian Treaty Council

"When The International Indian Treaty Council was founded in 1974, our first assignment from our elders and Traditional leaders was to go the United Nations to assert Treaty Rights because their was no way to do that within the United States legal system. It's clear that we are continuing to do that today, as we move towards adoption by the UN of a strong Declaration for the Rights of Indigenous Peoples that fully recognizes and upholds the rights that our ancestors fought for and that are contained in the Nation to Nation Treaties and Agreements they made with the settler governments. As Indigenous Nations we can and will accept no less ."

- William Means, Oglala Lakota Nation
IITC Board member and Co-Founder

From December 5th to the 16th, delegates from the International Indian Treaty Council, along with almost 100 other Indigenous representatives from around the world and many state (country) delegations, participated in the 11th session of the United Nations Intersessional Working Group on the Draft Declaration for the Rights of Indigenous Peoples in Geneva Switzerland.

The UN Commission on Human Rights established the Working Group in 1995 to approve a Declaration that would be adopted by the UN General Assembly to recognize and defend the human rights of Indigenous Peoples internationally.

IITC's delegation at this session included Indigenous representatives from 5 countries (US, Canada, Mexico, Panama, New Zealand and Guatemala). The IITC has participated in each session of the Working Group to date, focusing on defending the text of the Declaration that was adopted in 1994 by the UN Subcommission for the Prevention of Discrimination and the Protection of Minorities after a 12-year drafting process in the UN Working Group on Indigenous Populations.

Throughout this process, most of the changes to the original Subcommission text proposed by states, including the United States, attempted to seriously undermine and weaken the rights it contains.

At last year's session six Indigenous delegates from throughout the Americas staged a four-day hunger strike and spiritual fast to call world attention to these attempts to weaken the recognition of Indigenous Peoples' rights. They received hundreds of messages of support and solidarity from Indigenous Peoples and supporters around the world (reported in Indian Country Today December 3, 2004), sparking the interest of many Tribes and communities who are now following this process with greater attention.

Indigenous delegations, as well as many states, have expressed strong disappointment that to date only two of the 45 articles in the original text have been provisionally adopted by consensus of the Working Group in its 11 years of existence.

At the latest session, which will continue to meet for a final week, from January 30th through February 3rd, 2006, there was some progress at long last. A group of 23 articles and preambular paragraphs, either in their original form or with only small changes which clarify, or even in some cases strengthen the original text, were agreed upon as ready to present for final adoption by consensus.

The strong position, for no changes that weaken the original text, is beginning to have an effect. It seems that most state delegations now understand Indigenous Peoples will not accept less than the "minimum standard" contained in the Subcommission text, explained Andrea Carmen, Yaqui Indian Nation and Executive Director of the IITC, who attended this and previous sessions of the Working Group.

"In the case of Treaty Rights, in keeping with the position of our Treaty Nation affiliates from the US, Canada and Aotearoa/New Zealand and elsewhere, the IITC for the first time in this process advocated for changes to strengthen the original text language. We were very encouraged that by working with other representatives of Indigenous Treaty Nations and a group of states, mainly those that have Treaty relationships with Indigenous Nations, we were able to reach consensus on strong language which should be able to be adopted by the Working Group."

But she added that, despite the first signs of progress in many years at this session and the wide support for strong language on Treaties in the text, many issues remain unresolved. "Full and effective international recognition of Indigenous Peoples' rights by the UN is still threatened by proposals for changes being pushed by a few states, including the US, Australia and New Zealand and Great Britain, especially on key provisions addressing self-determination, land rights and natural resources."

"IITC's affiliates have agreed that we will not oppose changes in the original text that have consensus among the Indigenous participants and that either strengthen or clarify it without in any way weakening the rights it now upholds. But the IITC reserves the option to maintain the Subcommission text with no changes at all if any provisions are included at the end of the day that undermine the rights of Indigenous Peoples," she explained.

In the last session only the United States expressed major opposition to the proposed language on Treaties Rights contained in two preambular paragraphs and one operative article of the Declaration.

The US, represented by both the State and Justice Departments in the sessions, continues to oppose international recognition of Treaties or any international mechanisms to address Treaty violations, which are essential elements for Indigenous representatives.

US Justice Department officials explained that they base their position on the US doctrine defining Indian Nations, even those with which it signed Nation-to-Nation Treaties, as "domestic dependent Nations" and therefore the Treaty relationship and any disputes which arise from it would be addressed only in a "domestic" context.

Most Treaty Nations in and outside the US strongly disagree with this perspective and do not believe it should be allowed to impact the final language of the Declaration on Treaty rights. The Declaration is intended to reflect a universal and international perspective and not be limited by the views or policies of any one country.

Willie Littlechild, Ermineskin Cree Nation, Alberta Canada, and member of the UN Permanent Forum on Indigenous Issues representing Indigenous Peoples in North America, continued to take a lead role at this session to ensure that the final Declaration contains strong language upholding Treaty Rights of Indigenous Nations as legally binding international agreements. His organization, the International Organization of Indigenous Resource Development (IOIRD), worked closely with the IITC at this session on the Treaty Rights provisions. Willie presented the following consensus language for operative Article 36 on Treaties in the plenary:

"Indigenous Peoples have the right to the recognition, observance and enforcement of Treaties, Agreements and Other Constructive Arrangements concluded with States or their successors and to have States honour and respect such Treaties, Agreements and other Constructive Arrangements. Nothing in this Declaration may be interpreted as to diminish or eliminate the rights of Indigenous Peoples contained in Treaties, Agreements and Constructive Arrangements."

Several delegations, including Indigenous delegations and the governments of Canada, New Zealand, Mexico and Venezuela took the floor after Willie Littlechild spoke to support this language.

Willie summed up the current status of these discussions, in the view of IOIRD and Ermineskin First Nation, which is part of the Confederacy of Treaty 6 First Nations:

"While I'm very encouraged by the current emerging consensus on the cluster of paragraphs on Treaties and Agreements, we still need to be vigilant in monitoring the remaining work to ensure we end up with the strong proposed wording we presented after many serious deliberations. It is important that we have strong wording on Treaties because for Indigenous Peoples, Tribes and Nations, this is a United Nations Declaration of our Treaty Rights. Virtually every article in the Declaration touches an element of our Treaties. Whether it's a right to self-determination that is evidenced by Treaty or Indigenous Government affirmed by Treaties. Whether the article is on Lands, Territories and Resources, or health education or development. Whether it's about free, prior and informed consent or spiritual rights, all of these and more are Treaty Rights. Because they are also inherent rights and inter-national in character, we need to maintain the integrity of the whole Declaration.

Whenever States talk about what "States shall do" in the U.N. Declaration, they are Treaty based obligations. Therefore, we cannot agree to lower standards than are contained in our existing International Treaties and Agreements. To do so would be to put ourselves in potential breach or violation of our own Treaties. We have always tried to honour our own Treaty obligations by considering every proposal presented from this perspective. We will continue to work in other International arenas to elaborate further our understanding of Treaties according to the original spirit and intent as exemplified through sacred ceremonies.

The historic decision that was taken by the United Nations to hold a U.N. Expert Seminar in an Indigenous Treaty Territory has now taken on larger importance. The Maskwacîys Cree of the Treaty 6 Territory will host this United Nations' meeting this fall. As the U.N. Declaration could be making its way to the U.N. General Assembly, the U.N. Expert Seminar on Treaties, Agreements and Other Constructive Arrangements could be an important time for a call to action or a commitment to follow up early implementation of the U.N. Declaration on the Rights of Indigenous Peoples, in particular, as it applies to Treaties."