The Working Group on the Draft Declaration Report of the First Week’s Activities

Respectfully  submitted by Kent Lebsock, American Indian Law Alliance and Debra White Plume, Owe Aku

Where We Are

            Indigenous peoples and governments of nations are meeting at the United Nations in Geneva from December 5^th through 16^th, 2005 to discuss the Declaration on the Rights of the World’s Indigenous Peoples.  The Declaration is a human rights instrument that will set the standard of the relationship that should exist between Indigenous nations and peoples with countries.  Its 60 paragraphs address the historical injustice and continuing discrimination of Indigenous peoples rights to language, education, self-government, cultural expression, lands, resources and treaty rights.  The Declaration was drafted over a period of 10 years (from 1984 through 1994) with the direct and active input of Indigenous peoples from around the world, including Lakota people.  Many consider it the most critical declaration on Indigenous rights in history and can provide an opportunity for Native nations to begin to undue some of the destructive effects of genocide and colonization that have occurred over the past 500 years.

            Although the Declaration has been approved at lower levels of the United Nations (the Working Group on Indigenous Populations and the Subcommission on Discrimination and Minorities[1]), it is now being debated by the Commission on Human Rights.  This approval process is comparable to any type of legislation or international treaty which must be accepted by several levels of governance before it becomes a legal instrument.  Eventually, if successful, it will be passed by the United Nations General Assembly as a standard to be followed by all countries in the United Nations when dealing with Indigenous nations and communities.  In this way, it has the potential of holding countries[2] accountable for numerous historical and ongoing violations of Indigenous peoples’ human rights.  For example, the violation of treaties, the abuse of sacred sites such as Bear Butte, and the unjust disposal of hazardous materials on Indian territory are all addressed by the Declaration.  When passed, it provides Indigenous peoples with a new and powerful weapon in combating oppression and colonization, namely redress through the United Nations.

            We are now, as they say, down to the wire on the negotiations on the exact text of the Declaration for approval.  Because it is such a wide ranging document, covering all kinds of human rights of Indigenous peoples, these negotiations with governments are slow and hard.  Many governments (especially the United States, Australia and New Zealand) want to dramatically limit Indigenous peoples’ rights so that these rights give the countries control.  They

seek international support of colonial policies like plenary power and dependent domestic nations.  However, many others (including Norway, Sweden, Denmark, South Africa, Mexico, Guatemala, Venezuela, Cuba, Switzerland and even Canada) are siding with Indigenous peoples and acknowledging our rights to self-determination, the international status of treaties, and the critical right to Indigenous control over our own lands and territories. 

            Support from these countries has been shown during this first week of the 11^th Session being held here in Geneva this month.  Although the United States, along with New Zealand and Australia, introduced language that basically maintains Indigenous peoples as wards of the government or dependent domestic nations, the more enlightened countries have supported Indigenous peoples unwavering position on the right to self-determination, the international status of treaties, and the right to collective protection of lands and territories. 

            The Chairman of this meeting, Senor Luis Chavez from Peru, has often sided with countries like the United States making the process more difficult for Indigenous peoples.  However, years of education on the issues by the Indigenous peoples at the United Nations seems to be having its effect even on him.  When the United States, Australia and New Zealand introduced their very discriminatory language on self-determination earlier this week, even he questioned their motives.  Many other countries (especially Guatemala and Mexico) went so far as to challenge the American/New Zealand/Australian position on the floor of the United Nations, calling it “inappropriate” and damaging to the efforts to build consensus[3] on Indigenous peoples rights.  Even more encouraging, of the dozen or so countries who took the floor on this issue, not one of them supported the American changes in the Declaration’s text.  In the discussions that followed, Debra White Plume of the Owe Aku and Kent Lebsock of the American Indian Law Alliance[4] made it clear how the US, New Zealand and Australian position would have a devastating effect on the international human rights of Indigenous peoples.  Debra White Plume specifically related the Declaration’s application to the Owe Aku’s efforts to be self-sustaining, protect the sacred Bear Butte mountain, and the active support of treaty rights.   

            The struggle for the international human rights of Indigenous peoples is nothing more than organizing for social, political and environmental change on a global level.  The result of this organizing work, the Declaration itself, has high potential to positively impact the daily lives of Indians and Indigenous peoples worldwide.  Organizing on a global level is not an easy fight, but the lasting impact of the Declaration is something we can leave as a legacy for our children and grandchildren to continue the fight against oppression, environmental abuse and treaty right violations. 

How We Got Here

            Like any struggle by Indigenous peoples and Native Americans, this one has moved forward slowly but surely over the years. In 1977, Lakota people, along with Iroquois, Hopi and several delegations of Indians from South America, came to the United Nations in Geneva demanding a seat at the table.[5]  As a result the United Nations established the Working Group on Indigenous Populations, which prepared the original text of the Declaration.  This was done with the direct input of literally thousands of Indigenous peoples from around the world.[6] 

            Since the first day, Lakota people have assumed a position of leadership and guidance in this work, always emphasizing the spiritual responsibility of Indigenous peoples to the lands and territories from which we come and demanding that our treaties be respected.  As a result of this leadership and pressure by, in particular, Lakota delegates, a special study on treaties was undertaken by the United Nations.  It supported the international character of our treaties and states that a means for redress must be established for Indigenous treaty nations.[7]  The United Nations expert who wrote the Treaty Study stated that the Lakota treaties not only demonstrate the most obvious abuses of international treaty making by governments but their clear international character and the 1980 US Supreme Court decision (see U.S. Supreme Court, UNITED STATES v. SIOUX NATION OF INDIANS, 448 U.S. 371 1980) make an excellent test case for an international resolution of treaty violations when domestic redress is inadequate.  The Declaration addresses these issues on treaties and would provide for an international mechanism to introduce treaty resolution outside the domestic control of the United States (and other countries violating Indigenous treaties).  The eventual passage of the Declaration would obviously be another tool in the treaty rights struggle.

The Issues

            The paragraphs of the Declaration conform with many ideas expressed by Indigenous peoples with respect to the principles of the Natural Law.  These include the right to traditional expressions of self-government, the collective right to use of lands, territories and resources in a way that is consistent with interdependence and responsibility, restitution of lands and territories taken in violation of treaties or traditional use, and the right to all forms of cultural expression without outside interference including protection of and access to sacred sites.

            As stated, the language of the Declaration was drafted by the Working Group on Indigenous Populations with input of Indigenous peoples.  This is the text that is now being discussed at the level of the Commission on Human Rights for, hopefully, eventual passage.  In the early days of these discussions, most Indigenous peoples took the position that we should not change the original text.  However, as with any organizing strategy, the need for flexibility and conciliation has evolved with the process.  It is this flexibility which has resulted in so many governments taking the side of Indigenous peoples over the past few years of the process.  However, it must be emphasized, that while most Indigenous peoples are ready to discuss some of the precise text, we are not willing to sacrifice the overriding principles of the Declaration that our leaders, elders and international experts fought so hard to establish.  In fact, the goal in participating in this process is to develop the best possible language that protects the human rights of Indigenous peoples while allowing for the thousands of different Indigenous circumstances and situations around the world. 

            To more effectively present the Indigenous world view, Indigenous peoples always gather in caucus meetings at the United Nations.  Although we cannot expect diverse Indigenous nations to always have the same perspective (no more than we would expect South Africa and France to have the same perspective), it is our goal to build consensus whenever possible.  Although members of the Indigenous caucus have differing positions on specific language, we have been successful in generally agreeing to the principles.  When some Indigenous groups are unable to consent to specific language, they have, by-in-large, not been willing to block consensus.  Again, this is organizing on an international level and 100% agreement cannot be expected. However, the united front of Indigenous peoples is a powerful weapon against the countries most anxious to limit our human rights and we are committed to continuing the work to build agreement amongst ourselves. 

The Hopes and Expectations

            The immediate goal is to have the Declaration passed by the Commission on Human Rights.  The next step will then be its passage by the General Assembly of the United Nations.  When this occurs, the Declaration will become a part of the body of international law known as “standards” to which the governments can be held accountable. 

            It will then be up to our local communities, tribal governments, traditional leadership and international coalitions of Indigenous communities to breathe life into the Declaration and use it in our daily struggles for everything from adequate shelter to the adherence to treaty rights.  With passage of the Declaration, the United Nations becomes a more powerful partner in this process. 

            The establishment of the Permanent Forum on Indigenous Issues at a high level of the United Nations in New York is one development that already establishes the UN as a partner in this process.  The Permanent Forum is charged with ensuring that every UN agency and body responds to the needs and issues of Indigenous peoples.  Passage of the Declaration will provide yet another weapon in our arsenal in bringing our issues to the doorstep of countries through the United Nations.  Already, even though it has not been officially passed, the Declaration has been used around the world to enhance the rights of Indigenous peoples.  The Supreme Court of Canada has cited it in decisions favorable to Indians up north.  New Zealand has felt the pressure in a recent critical study by the United Nations of the Maori people.  They have been forced to defend their treatment of Maoris in an international setting. 

            Passage of the Declaration will not be the end of the struggle, but rather a significant step in our international organizing efforts.  A piece of paper is nothing more than words, but when it is used by our communities and nations it will be given the living spirit it needs to protect our future generations and our lands, territories and resources.

The Meetings to Come

            It is important to again acknowledge that this is not an easy fight or one that will be over soon.  But we believe it is an important one and we are committed to continuing the struggle and especially continuing to support the participation of traditional leaders and young people enthusiastic about protecting the Lakota Nation. 

            This current meeting is to be held in two separate sessions: December 5-16, and January 30 through February 3, 2006. The goal of this two-part meeting is to adopt the language for a substantial portion of the Declaration, including the critical language in the paragraphs on self-determination.  As of Friday, December 9^th we had the language approved for 10 of the 60 paragraphs.  We are very, very close to approval on another 23 paragraphs.  Passage of these 33 articles or so would represent consensus on more than half of the Declaration. It is our hope that this will occur before the end of this current session.

            Two critical issues remain, however.  The first is the exact language of the paragraphs on self-determination (preambular paragraphs[8] 14, 15, and Articles 3, 31, 32 and 45) and the second are those dealing with lands, territories and resources (Articles 25 through 30).  The introduction of the damaging language on self-determination by the United States, Australia and New Zealand has definitely thrown a wrench into the works. However, because the Indigenous caucus and so many states spoke up in opposition to it, we are optimistic about isolating the American position. The second week of the December session will provide a clearer idea of the exact situation and we will report as developments occur.  We are hopeful that we will close this session with a clear and positive position on the right to self-determination.

            If we can return to the February session with more than half the articles passed and a positive starting point for the discussion on self-determination, we believe that we will be in an excellent position to begin fine tuning the actual language.  Indigenous peoples, along with most states, agree that one more year of discussions will, however, be necessary to finalize all the language on self-determination, lands, territories and resources and treaties.  We therefore expect to return sometime during the winter of 2006 and look forward to celebrating the passage of a clear and strong Declaration on the Rights of the World’s Indigenous Peoples.

Timeline for 2005-2006

Intervention of Debra White Plume on December 8, 2005 at the Working Group on the Declaration on the Rights of the World’s Indigenous Peoples

            “President Chavez, thank you for acknowledging me to speak here at the United Nations where I come to work for a good way for our people.  Congratulations on becoming Chairman again for this process.  I am Debra White Plume and this is my first time speaking here.  I come from the Owe Aku Tiospaye along the banks of Wounded Knee Creek in 1868 Fort Laramie Treaty Territory, what is now treaty lands occupied by the United States of America.  I come with the blessing of Chief Oliver Red Cloud of the Oglala Lakota Council Fire known historically as the Great Sioux Nation.  I support the original text of Article 26 because it has been said these are our traditional lands and it has been said it is our duty to protect it for our future generations. The wording of the original text of Article 26 as well as 25 is more appropriate because we Lakota People of the Great Sioux Nation, an ancient people with an ancient way of life, fought for and retained a land base through the 1868 and 1851 Fort Laramie treaties with America.  Our treaties include sacred places but because of treaty violations our Lakota people have to struggle daily for the treaty right and the human right to have access to our place of prayer, namely Bear Butte in our sacred Black Hills.  Bear Butte is being desecrated and encroached upon daily. 

            The original text is good text.  The Declaration on the Rights of Indigenous Peoples needs to be for our rights, all our rights, to our sacred way of life, our lands and our water.  Our grass roots people have to fight for our human right to clean water, a resource, at home our drinking water is full of arsenic and alpha emitters.  We need our traditional rights as recognized in the original text of Article 25 and 26.  Otherwise tourism and recreation is more profitable and corporate access to our water is more important than our spiritual and traditional rights and our access to our sacred sites – to our identity as Lakota people of the Great Sioux Nation.  Lila wopila iciciyapi.  Hecetuye.”

Debra White Plume’s Statement on Article 30 on December 9, 2005

            “Mitakuyepi na Oyate kin (My relatives, and the people) As Lakota Oyate of the Great Sioux Nation we are a people of the Earth.  As I said yesterday there are sacred places on Earth that we need to live a spiritual life-way.  With this realization, I want everyone in this room to understand this document, the Declaration of the Rights of Indigenous Peoples, in such a way so that it is seen that our sacred places and thus our Human Rights to practice our spiritual way are definitely connected and must be protected.  Our sacred places cannot be part way, or half way, protected or exploited or desecrated, and then reclaimed.  When a sacred place is destroyed - it is gone forever, and this means the end of the Lakota Oyate, and the Great Sioux Nation.  Among our people, we believe a good leader stands in the way of something bad coming toward the people.  In this way, both text suggestions of the United States to paragraph two of Article 30 weakens the rights of Indigenous Peoples and are inappropriate to a document that is about the rights of Indigenous Peoples.  The third paragraph of Article 30 is unacceptable. The text puts a price on sacred places.  It has no place in this document.  This text cannot be placed on any list of  ‘provisionally approved’ or any list of those Articles that are ‘close to consensus’.  We must do more work on Article 30. Lila wopila iciciyapi."