Indigenous Decolonization and United Nations Membership: Indigenous Peoples and the Fundamental Right to Self-Determination** India Reed

Bowers*

Abstract: This LL.M. thesis provides legal arguments for, amongst other things, the inclusion of Indigenous and Tribal Peoples as Members of the United Nations (equal to States, but not required to form States) through an equality- and dignity-based examination of UN Decolonization, 'friendly relations', and self-determination. The arguments contained within also provide an examination of the violations of International Law resulting from, amongst other topics addressed, discrimination committed by the United Nations and States against Indigenous and Tribal Peoples via State-Indigenous governing relationships. Limited access to justice and limited actualized rights in regards to Indigenous Peoples self-determination are discussed with reference to Tribal/Indigenous/State shared histories, legal personality, the International Court of Justice and judicial procedure and remedy, State anti-discrimination laws, the UN and its relationship to international trade and business, the codification of international human rights and criminal law, mental health (with special attention to high Indigenous suicide rates in 'developed' States, colonialism and discrimination), current UN definitions of 'aggression', 'war, colonialism and conflict (with suggestions of definition revisions), State abuse towards Indigenous and Tribal Peoples, segregation and exclusion, and apartheid and cultural genocide as resulting from State-Indigenous inequality as experienced by Indigenous and Tribal Peoples. UN definitions of development are challenged and held accountable for cultural discrimination and death. Recommendations with an emphasis on healing include amendment of the UN Charter and suggested General Assembly Resolutions, as well as equal international leadership opportunity for traditional and chosen Indigenous and Tribal legal and governing cultures, subsistence-based lifeways and traditional Indigenous and Tribal healers with a focus on the right to cultural integrity, traditional Indigenous and Tribal lands, including the right to say no to non-native land-grabbing, resource exploitation and State abuses. The argument that State territorial integrity includes Indigenous and Tribal traditional lands is also countered. The original version of this LL.M. thesis was submitted to the Master's of Law program "International Law of Human Rights and Criminal Justice" at Utrecht University, the Netherlands, 22 August 2012. This online version was uploaded 5 March 2013.
**Original LL.M. thesis submitted 22 August 2012 to the Faculty of Law, Economics & Governance, Utrecht University, the Netherlands, for the degree of a Masters of Law (LL.M.) in International Law of Human Rights and Criminal Justice; LL.M. thesis supervisor: Dr. Brianne McGonigle Leyh. The LL.M. program was operated in collaboration with the Netherlands Institute of Human Rights (SIM) and the Willem Pompe Institute for Criminal Law and Criminology. This online version of the LL.M. thesis was uploaded 5 March 2013 to Social Science Research Network (SSRN). *India Reed Bowers (B.A. Cultural Anthropology, Brown University, United States, LL.M. International Law of Human Rights and Criminal Justice, Utrecht University, the Netherlands)

Prelude Circle
Many communities have experimented with various forms of sentencing circles for healing and reintegrating offenders who might otherwise be ostracized and handled entirely within the penal system. Other uses of meeting in circles include: talking circles, in which people speak openly and listen to others stories to begin to become aware of original hurts; sharing circles in which a high degree of trust is established and people express painful emotions; healing circles where people can work through memories of painful experiences; and spiritual circles in which people develop trust in their own experiences of spirituality as a source of comfort and guidance. The rules of these circles vary with their goals but have in common an emphasis on the individuals commitment to change, an etiquette that honours the individual voice through respectful listening, and a process of reaffirming collective and communal solidarity.1 Sam and some elders came around me and began to pray for me in their language. How did this coffee time turn into something so sacred? Over and over they said, Gala, Gala, this means to come back, come back to who you are. He took his coat off and put it around me and I began to weep. Years of questioning, self-hatred and confusion began to pour out of me I became a born again Cree, so to speak. Identity is the rudder to the ship of our lives. If you dont have a functioning rudder, youll never get to where you are meant to go I now have vision, and determination. I am a full time university student. My dream is to receive a M.A in Aboriginal Governance and Policy. I believe it is imperative that we as First Peoples take our rightful place.2 Now, state and global market intrusion and control in indigenous homelands are, of course, precisely what drove indigenous activists to seek out international fora in the first place, in the hope that international law could and would help their communities retain or regain control of the homelands that long ago shaped their distinctive identities and that still could guard them against the shock of physical and cultural dissipation in the present globalizing moment.3 The historical and current development of the right to self-determination shows that it has become one of the most important and dynamic concepts in contemporary international life and that it exercises a profound influence on the political, legal, economic, social and cultural planes, in the matter of fundamental human rights and on the life and fate of peoples and of individuals.4 Aware that, since wars begin in the minds of men, it is the minds of men that the defenses of peace must be constructed.5

Kirmayer, L., Simpson, C. and Cargo, M., Healing traditions: culture, community and mental health promotion with Canadian Aboriginal peoples, Australasian Psychiatry, Vol. 11 Supplement: 2003, p. S20. 2 Koi, Sarah, Change Happens, http://www.lastrealindians.com/: 6 July 2012. 3 Lm, Maivn Clech, Indigenous Peoples Rights to Self-Determination and Territoriality, in Eds. Richard Pierre Claude and Burns H. Weston, Human Rights in the World Community: Issues And Action, University of Pennsylvania Press: 2006, p. 155-156. 4 Cristescu, Aureliu, UN Special Rapporteur of the Sub-Commission on Prevention of Discrimination and Protection of Minorities, The Right to Self-Determination Historical and Current Development on The Basis Of United Nations Instruments, United Nations, New York, 1981, para. 679. 5 United Nations, General Assembly, Resolution 33/73, Declaration on the Preparation of Societies for Life in Peace, 14 December 1978; UNESCO Constitution, signed 16 November 1945, into force on 4 November 1946.

Table of Contents
1. INTRODUCTION3 2. BACKGROUND: INEQUALITY WITHIN A HUMAN RIGHTS REGIME....4 A. Indigenous Origins of Democracy, the United States Constitution and a United Nations..5 B. The United Nations Charter: A World Constitution for International Law.....6 I. The United Nations Charter and Membership.7 C. Self-Determination and Decolonization...8 I. Non-Self-Governing Territories...9 D. Indigenous Peoples and the United Nations......10 3. POLITICAL AND LEGAL POINTS OF CONTENTION13 A. Legal Personality13 B. Indigenous Peoples and Decolonization....16 C. Uti Possidetis..18 D. Trust Relationships....20 E. The International Court of Justice: The Case of the Western Sahara...24 4. RESULTING HUMAN RIGHTS VIOLATIONS..26 A. State Comparison: Membership, Segregation and United States Civil Rights..26 I. Discrimination, Organizations and Clubs......27 II. Organizational Intention...27 III. Private Clubs and Free Association....28 IV. Business, Funding, Accommodation and Membership....30 V. Discrimination and Criteria for Membership.......32 VI. Psychological Effects of Organizational Discrimination....32 B. Apartheid34 C. Cultural Genocide......38 I. High Indigenous Suicide Rates...43 II. Mining, Land-Grabbing and Resource Exploitation.48 5. STEPS TO SOLUTIONS...51 A. Step One: Redefining War and Conflict.51 I. Domestic Abuse and Redefining Aggression.....51 II. Conflict and Redefining Development...58 B. Step Two: Healing Dignity- Peace, Rights to Living Culture, Land and Self-Determination...64 I. Peace..67 II. Dignity...71 III. Cultural Integrity..75 IV. Decolonizing Friendly Relations: Redefining Colonialism..77 6. DISCUSSION.83 7. CONCLUSION: THE SOLUTION92 A. United Nations Charter Amendment..92 B. Equality in Leadership...94 Bibliography.....100

1. INTRODUCTION The mission of the United Nations (UN) as an organization has been, since its inception, to promote and protect world peace through an international legal order based on human rights. This legal order is intended to end and prevent atrocities such as those of and building up to the Second World War, particularly in the case of genocide, threat to world security, and terror. However, the restriction of UN Membership to States-only, and the supporting Articles of the UN Charter therein, are in need of revision. This revision, or amendment, is needed so as to begin to bring to an end another horror the worlds peoples have been living in through via lack of true self-determination6: the cultural genocide of Indigenous Peoples that has been resulting, and continues to result, from ongoing colonialism, including contiguous land-based (not only salt- or blue-water) colonialism, through political discrimination and segregation at the UN level via an apartheid-like system. Created and perpetuated by States and functioning against the selfdetermination of Indigenous Peoples, the exclusionary nature of UN Membership as States-only creates an ongoing situation of terror and internalized and external violence at the ground level for Indigenous Peoples. This world destruction currently exists in a political vacuum and lack of true judicial remedy. It is the duty of the UN Secretary General and the Member States, as well as the Economic and Social Council (ECOSOC) and the United Nations Educational, Scientific and Cultural Organization (UNESCO) alongside Indigenous Peoples, to work to amend the UN Charter so as to meet the advancements of the human rights legal regime and system and to fulfill the organizations foundational, fundamental intentions. This UN Charter amendment must come in the form of the right of Indigenous and Tribal peoples to UN Membership not via Statehood only, but by a new, self-determined, equally-negotiated, decolonized political international formation. Professor Bertie Ramcharan, former United Nations High Commissioner for Human Rights, addressed the current exclusion of non-State actors in the United Nations General Assembly and Security Council and the effects of that exclusion on equality in his paper Non-State Actors in the Future United Nations Legal Order:
Non-State Actors are rarely accorded a voice in the General Assembly (except when petitions are heard in the Special Committee on Decolonization). Non-State Actors are rarely, if ever, heard in the Security Council and are often unable to have their views presented to the Council even when their interests are directly at stake. The principle of equity is thus often distinctly lacking, in this respect, in the proceedings of the Security Council. At the World Conference on Human Rights held in Vienna in 1993, even as distinguished a personality as the Dalai Lama had difficulties in getting access to the Conference. The UN legal order is thus visibly deficient and in need of change.7

Peoples right to self-determination is found in 1945 UN Charter Article 1(2), 1966 UN International Covenant on Civil and Political Rights Article 1(1), 1966 UN International Covenant on Economic, Social and Cultural Rights Article 1(1), and the 2007 UN Declaration on the Rights of Indigenous Peoples Preamble (twice) and Articles 3 and 4. 7 Ramcharan, Bertie, Non-State Actors in the Future United Nations Legal Order, in Ed. Theo C. van Boven, Cees Flinterman, Fred Grnfeld, Rita Hut, The Legitimacy of the United Nations: Towards an

In suggesting change of the UN legal order due to exclusion of non-State actors, Mr. Ramcharan recommends that the UN create a Parliament to be elected by the peoples of the world. While the concept of a World Parliament at the UN is not within the scope or the recommendations of this thesis, it is important to make note that Mr. Ramcharan acknowledges the need for a more politically representative United Nations for non-State actors, so as to adhere to the fundamental human rights principle of equality. Indigenous and Tribal peoples have, since time immemorial, been diverse, selfdetermining, functioning political and societal nations and communities. The historical formation of States in the context of trade, world and regional wars, and competition created by market-based industrialization is one specific approach to political existence in the world - that of a culture of State - and cannot be privileged politically over the traditional and cultural societal groupings of Indigenous and Tribal Peoples and Nations if peace and human rights are to be attained. Indigenous and Tribal Peoples have been resisting and fighting the direct and indirect violence of colonization for hundreds of years. As well, Indigenous and Tribal Peoples have been signing treaties and creating oral and territorial agreements with other Peoples and States as self-determining and selfrepresenting peoples, cultures, nations and systems for an even longer time. For the United Nations to continue into the future without creating equality between States and Indigenous Peoples at the top levels of its functioning, in Membership and the powerful, decision-making benefits of Membership, voice and influence gained by and shared between Members therein, would be to promote a hollow promise of international human rights, equality, world peace, dignity and the necessary peoples self-determination. In the 1989 Report on the United Nations Seminar on the effects of racism and racial discrimination on the social and economic relations between indigenous peoples and States it was said that the racism against indigenous peoples is not based on biological characteristics but cultural and political ones. [It is] a new form of racism, when a modern society sets itself up as a standard.8 Katherine E. Speyer explains in New York State Club Association v. City of New York: The Demise of the All-Male Club, Discrimination perpetuates stereotypic notions and stigmatizes disfavored groups as innately inferior.9 The United Nations Charter must be amended so as to widen and decolonize UN Membership criteria and diversify legal and political methods, models and leadership, both old and new, so as to usher in a more politically and culturally equal international era. 2. BACKGROUND: INEQUALITY WITHIN A HUMAN RIGHTS REGIME
Enhanced Legal Status of Non-State Actors: Proceedings of the Symposium of Experts organized by The European Centre for Development Policy Management (ECDPM, Maastricht) and the Centre for Human Rights of the University of Maastricht October 1995, SIM Special No. 19, Utrecht: 1997, p. 163. 8 United Nations, Report on the United Nations Seminar on the effects of racism and racial discrimination on the social and economic relations between indigenous peoples and States, Geneva, Switzerland: 16-20 January 1989, background papers from expert Rodolfo Stavenhagen. 9 Speyer, Katherine E., New York State Club Association v. City of New York: The Demise of the AllMale Club, Pace Law Review, Vol. 10, Issue 1: Winter 1990, Article 7, p. 278, footnote 26.

A. Indigenous Origins of Democracy, The United States Constitution and a United Nations Upon examining the UN Charter it may seem that Nation-States claim (via UN Membership qualifications in regards to Statehood) to have been responsible for the modern political origins of such notions as democracy and a united or league of nations constructed for dignity and peace. However, the United States of America, a major player in the creation of the United Nations and promoter of democracy, has acknowledged that those very concepts of a united states and democracy, as defined and applied in its own political and legal systems, have originated from the Indigenous Peoples on whose land the United States have been politically and legally constructed. On the occasion of the 200th anniversary of the signing of the United States Constitution the U.S. Congress "acknowledged the historical debt which this Republic of the United States of America owes to the Iroquois Confederacy and other Indian Nations for their demonstration of enlightened, democratic principles of government and their example of a free association of independent Indian Nations."10 The foundation of the United States Constitution originates from the Haudenosaunee (Iroquois) Confederacy, and House Concurrent Resolution 331, passed by United States Congress in October 1988, acknowledges this fact of history. United States House Concurrent Resolution 331 also confirms government-to-government relationships (and thus government status) between the United States and Indian (Native American) Tribes and tribal sovereignty:
Concurrent Resolution: To acknowledge the contribution of the Iroquois Confederacy of Nations to the development of the United States Constitution and to reaffirm the continuing government-to-government relationship between Indian tribes and the United States established in the Constitution; Whereas, the original framers of the constitution, including most notably, George Washington and Benjamin Franklin, are known to have greatly admired the concepts, principles and government practices of the Six Nations of the Iroquois Confederacy; and Whereas, the Confederation of the original thirteen colonies into one Republic was explicitly modeled upon the Iroquois Confederacy as were many of the democratic principles which were incorporated into the Constitution itself; and, Whereas, since the formation of the United States, the Congress has recognized the sovereign status of Indian Tribes11

Thus, at time of the foundation of a contiguous land-based colonial Nation-State via independence from colonial powers abroad, sovereign Tribal Nations influenced the concepts and order behind a United States, or even a United Nations, democracy and constitutional order for peace. In fact, it was the colonizing peoples establishing colonial Nation-States, separating from the colonizing peoples abroad, who gained legitimacy as political bodies and States through government-to-government relationships with Indigenous and Tribal Nations.12 Just as they are today, Indigenous and Tribal Nations
10 11

United States, House Concurrent Resolution 331, 100th U.S. Congress, 2nd Session, 5 October 1988. United States, House Concurrent Resolution 331, 100th U.S. Congress, 2nd Session, 5 October 1988. 12 Taiaiake Alfred writes in his article Sovereignty, European sovereignties in North America first legitimated themselves through treaty relationships entered into by Europeans and indigenous nations. North American settler states (Canada and the United States, with their predecessor states Holland, Spain,

were already established political powers and leaders in the lands where they traded with and influenced each other. B. The United Nations Charter: A World Constitution for International Law The UN Charter functions as a Constitution for the United Nations and for international law today. The United Nations functions as an international organization meant to promote and protect the most fundamental of human rights through creating a constitutional framework of international law, as discussed here by Blaine Sloan as Professor Emeritus of International Law and Organization, Pace Law School:
In a strict-sense, the [United Nations] Charter is the Constitution of the Organization. It sets forth the powers and functions of the organs and the rights and duties of members. But it is more than that. As Sir Humphrey indicates, in a larger sense it provides the constitutional framework of international law today. It proclaims fundamental principles of law for the world community. So when we face the question of applying and interpreting the Charter we must look not only to the Law of Treaties but also to the particular character of the Charter as a Constitution.13

A simple explanation of the duties and origins of the United Nations is posted by the organization itself on its website, detailing the horrors of the Second World War as a major influence on the founding resolutions of the United Nations:
The promotion and protection of human rights has been a major preoccupation for the United Nations since 1945, when the Organization's founding nations resolved that the horrors of The Second World War should never be allowed to recur. Respect for human rights and human dignity is the foundation of freedom, justice and peace in the world, the General Assembly declared three years later in the Universal Declaration of Human Rights International Human Rights standards were developed to protect people's human rights against violations by individuals, groups or nations.14

France, and England) gained legitimacy as legal entities only by the expressed consent through treaty of the original occupiers and governors of North America. The founding documents of state sovereignty recognize this fact: all Dutch and French treaties with indigenous peoples, the Treaty of Utrecht, the Articles of Capitulation, and the Royal Proclamation (made in a context of military interdependency between the British and indigenous nations) all contain explicit reference to the independent nationhood of indigenous peoples. As the era of European exploration and discovery gave way to settlement, with its concomitant need for balanced peaceful relations with indigenous nations, the states charter documents made clear reference to the separate political existence and territorial independence of indigenous peoples; None of this historical diversity is reflected in the official history and doctrinal bases of settler state sovereignty today. Rather, Canada and the United States have written self-serving histories of discovery, conquest, and settlement that wipe out any reference to the original relations between indigenous peoples and Europeans. from Alfred, Taiaiake, Sovereignty, in Barker, Joanne, Ed., Sovereignty Matters: Locations of Contestation and Possibility in Indigenous Struggles for Self-Determination, University of Nebraska Press, Lincoln: 2005, p. 34. 13 Sloan, Blaine, The United Nations Charter as a Constitution, Pace International Law Review, Vol. 1, Issue 1: 1 January 1989, p. 62. 14 United Nations Website, The United Nations and Human Rights, http://www.un.org/.

Moreover, UN Charter maintains in Article 1(1) that the purpose of the United Nations is
To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace.15

Additionally, UN Charter Article 1(2) states the organizations purpose to also be To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace.16 And, according to Article 1(3) To achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion and to be a center for the harmonizing of nations to these ends.17 If the United Nations is to be a center for the harmonizing of nations, all nations must be included on an equal basis, including Indigenous Nations. I. The United Nations Charter and Membership Chapter II of the United Nations Charter18 concerns Membership19 to the United Nations. Articles 3 and 4 of the UN Charter mandate that Membership to the UN is open to peaceloving States. UN Charter Article 2(1) states The Organization is based on the principle of the sovereign equality of all its Members. Given that currently only States may become Members of the United Nations, Member States and Peoples (specifically Indigenous Peoples) are currently not treated as equal sovereigns under the UN Charter (or Constitution). Along those lines, Rules 58, 59 and 60 of the Provisional Rules of Procedure of the Security Council20 provide the procedures and requirements for a State
15 16

United Nations Charter, 26 June 1945, San Francisco, Article 1(1). United Nations Charter, 26 June 1945, San Francisco, Article 1(2). 17 United Nations Charter, 26 June 1945, San Francisco, Article 1(3) and 1(4). 18 United Nations Charter, 26 June 1945, San Francisco. 19 Membership to the United Nations contains many powers and benefits, including but not limited to a General Assembly seat, ECOSOC seat, Security Council seat, Signing of treaties, Commenting on treaties in regards to other Members, Suggesting new treaties, Drafting treaties with Member negotiating powers, Having effect on the Trusteeship Council actions, maintaining Judicial effects via judge seat at International Court of Justice, Obtaining regional political seat and benefits therein- such as EU and AU, Member-level input into Peace Operations and Negotiations, More internal control and negotiation access (immigration, land use, economy) and general input into issues at the UN, Political influence and cultural influence on UN decision-making, Participation in drafting of legal terminology in international justice systems, Participating in final negotiations in defining of development and other UN mandates, resolutions and concepts, Participation in Meetings on International Issues as Members (ex. Climate Change). 20 United Nations, Security Council, Provisional Rules of Procedure of the Security Council, New York, 1983, Chapter X: Admission of New Members.

to become a Member of the United Nations. The Rules fail to recognize political selfdetermining bodies other than States. As a result of this discrimination against selfdetermining Indigenous Peoples, a political apartheid is formed in the structure of the United Nations. Indigenous Peoples consider themselves to be equal sovereigns to States as traditionally self-governing peoples, and yet the United Nations, via excluding Indigenous Peoples Membership to the UN, does not recognize their equality to States as self-determining, self-representing nations. John Hughes describes in his article It's time to expand the UN Security Council. But who gets a seat? some reasons for incongruence between representation, Membership, and the rights and privileges claimed via UN Security Council seats, including a notion of guardianship of peace on the part of the major State powers that had emerged from the horrors of World War Two, The UN was born in 1945, a creation of Britain, France, the US, China, and the Soviet Union, who saw themselves as guardians of the post-World War II peace, with dominance of the new international entity.21 Thus, we can see that in the context of UN Membership Nation-States are currently treated as guardians of world peace, and Indigenous Peoples are dependent Nations in UN-based world politics by virtue of lack of UN voting rights, equal decision-making powers, and other UN Membership benefits and privileges. C. Self-Determination and Decolonization More than 80 colonies and 750 million people have gained independence since the inception of the United Nations.22 A large number of the Member States at the United Nations have joined the organization through the process of UN Decolonization. In 1945 the UN consisted of 55 Members, and in 2012 there are 193 Members of the UN, with South Sudan voting to secede and becoming a Member State in 2011. Following the lead of the UN Charter Article 1(2), General Assembly resolution 1514 (XV) of 1960, Declaration on the Granting of Independence to Colonial Countries and Peoples, states that all peoples have the right to self-determination.23 According to resolution 1541, Principles which should guide Members in determining whether or not an obligation exists to transmit the information called for under Article 73e of the Charter, Principle VI, there are three ways in which a Non-Self-Governing Territory can exercise self-determination to reach a full measure of self-government: 1. By free association with the administering Power or another independent State as a result of a free and voluntary choice by the people of the Territory expressed through an informed and democratic process; 2. By integrating with the administering Power or another independent State on the basis of complete equality between the peoples of the Non-Self
21

Hughes, John, It's time to expand the UN Security Council. But who gets a seat? Christian Science Monitor: 20 January 2011. 22 United Nations website, United Nations and Decolonization, http://www.un.org/. 23 United Nations General Assembly, Resolution 1514 (XV), Declaration on the Granting of Independence to Colonial Countries and Peoples, 1960.

Governing Territory and those of the Independent State; 3. By becoming independent.24 The proceeding Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, General Assembly (GA) Resolution 2625, allows for even more flexibility in methods of self-determination:
The establishment of a sovereign and independent State, the free association or integration with an independent State or the emergence into any other political status freely determined by a people constitute modes of implementing the right of self-determination by that people.25 (emphasis added)

According to Chapter III (Organs) Article 7(1) of the United Nations Charter the Trusteeship Council (a Council devoted to decolonization) is a principle organ of the United Nations along with the General Assembly, Security Council, Economic and Social Council, International Court of Justice and the Secretariat.26 The placement of the Trusteeship Council within the structure of the United Nations exhibits the strong intentions of the organizations founders to undertake decolonization and restoration of self-determination to non-self-governing territories versus a continuation of a colonial administration over those territories. In the Section Implementation of United Nations resolutions relating to the right of peoples under colonial and alien domination to self-determination of the UN Economic and Social Council (ECOSOC) 27th session report, 1971, it is stated:
Believing that effective application of the principle of self-determination of peoples is the essential basis for recognition and observance of human rights and that self-determination means that all peoples have the right freely to determine their political status without external interference27

Meaning, Indigenous Peoples have the right to self-determine their political status without the external interference of States, including through UN Decolonization and via their own political and legal traditions (or creations) in local, regional and international contexts. I. Non-Self-Governing Territories UN Charter Chapter XI consists of the Declaration Regarding Non-Self-Governing Territories, Articles 73 and 74, and UN Charter Chapter XII, Articles 75 through 85,
24

United Nations General Assembly, Resolution 1541 (XV), Principles which should guide Members in determining whether or not an obligation exists to transmit the information called for under Article 73e of the Charter, 1960. 25 United Nations General Assembly, Resolution 2625, Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, 1970. 26 United Nations Charter, Chapter III: Organs. 27 United Nations Commission on Human Rights, Report on the Twenty-Seventh Session (22 February - 26 March 1971), Economic And Social Council Official Records.

details an International Trusteeship System for States and non-self-governing territories in the process of gaining independence and UN political decolonization. Under Chapter XIII of the UN Charter, entitled The Trusteeship Council (Articles 86 through 91), Article 86 states that the Trusteeship Council consists of Members of the United Nations, thus representatives of Non-Self-Governing territories and other non-UN Members are not included in the Trusteeship Council. Aside from availing itself of the assistance of ECOSOC and specialized agencies when appropriate,28 the Trusteeship Council receives communications, reports and completed questionnaires29 from the administering authority (the colonial State) of a non-self-governing territory and not the peoples seeking self-determination and decolonization themselves- a situation that only perpetuates State control and bias and the potential for silencing of peoples who wish to decolonize. Currently Indigenous Peoples territories are not labeled as non-self-governing territories under the United Nations Decolonization Committee or Trusteeship Council, despite having been colonized and still ultimately administered and determined by the encompassing colonial States. Should communications and reports from and by Indigenous Peoples via ECOSOC, the Expert Mechanism on the Rights of Indigenous Peoples (EMRIP) or the United Nations Permanent Forum on Indigenous Issues (UNPFII) fall under the category of communications concerning self-determination as expressed in the UN decolonization process for non-self-governing territories in the eyes of the United Nations or States, this process needs to be labeled as such formally and transparently, and Indigenous and Tribal Peoples must know that they are participating in the decolonization process due to them legally and allowed to make decisions under the appropriate UN decolonization legal conditions and circumstances. Otherwise, a transparent self-determination and UN decolonization process is not occurring for Indigenous and Tribal leaders, advocates and representatives, and is not occurring at all for the individuals within their collectives. D. Indigenous Peoples and the United Nations While Indigenous Peoples and Nations can participate at the United Nations via nongovernmental organizations, corporate interests, and representatives in United Nations conferences, meetings, and forums, Indigenous Peoples currently cannot be members of the organization unless they have, first and foremost, formed a State. The United Nations Charter itself creates this segregation between States and Peoples in its current membership criteria. Many Indigenous groups have a consultative role with the United Nations through a presence of NGOs and Peoples organizations via ECOSOC, the United Nations Permanent Forum on Indigenous Issues (UNPFII) and the recently developed Expert Mechanism on the Rights of Indigenous Peoples (EMRIP). However, Indigenous Nations currently cannot self-represent or self-determine as Members of the United Nations, despite being distinct political, cultural, legal and socially organized peoples, many in treaty agreements and government-to-government relationships with Member States. The UNPFII exists under the powers of ECOSOC. In accordance with the UN
28 29

UN Charter, Article 91. See UN Charter Articles 87 and 88.

10

Charter ECOSOC may make studies and reports30 and draft conventions for the General Assembly31 with respect to international economic, social, cultural, educational, health, and related matters and may make recommendations with respect to any such matters to the General Assembly, to the Members of the United Nations, and to the specialized agencies concerned.32 As well, ECOSOC may obtain reports from specialized agencies and make recommendations for the purpose of promoting respect for, and observance of, human rights and fundamental freedoms for all.33 EMRIP was established by the Human Rights Council in 2007 as a subsidiary body of the Council, and EMRIPs members consist of five independent experts, appointed by the Human Rights Council, on the rights of Indigenous Peoples. EMRIPs mandate is provide the Human Rights Council with thematic advice in the form of research and studies on the rights of Indigenous peoples, as directed by the Council. EMRIP may also suggest proposals to the Council for its consideration and approval.34 Despite existing within an apartheid-like system of colonial domination and not having equal access to the international organization as politically equal to Member States, Indigenous Peoples have acted on their own behalf throughout times of colonialism, State-building, and the League of Nations and United Nations as their own representatives from their own nations during negotiations, the signing of treaties, and in attempts for recognition as self-determining nations and peoples. In 1923 Cayuga Chief Deskaheh of the (Indigenous) Six Nations of the Iroquois spent over a year in Geneva working for recognition by the League of Nations, whereupon he mentioned, amongst other things, Six Nations acceptance of Six Nations membership at the League of Nations, should the invitation exist:
In his position to the League of Nations entitled The Red Mans Appeal to Justice, Deskaheh (1923) understood an escalation of the police presence to constitute an act of war upon the Six Nations, intended to destroy all de jure government of the Six Nations and of the constituent members thereof, and to fasten Canadian authority over all the six nations domain and to subjugate the Six Nations peoples, and these wrongful acts have resulted in a situation now constituting a menace to international peace. In an earlier, unsuccessful petition to the League of Nations that he hoped would be conveyed through the Queen of the Netherlands, Deskaheh (1922) made perhaps his strongest argument for the recognition of his peoples rights of self-government: The Six Nations are ready to accept for the purpose of this dispute, if invited, the obligation of membership in the League of Nations upon such just conditions as the Council may prescribe, having due regard to our slender resources the Leagues negative response to his effort could have been predicted. According to one independent lobbyist, The representative of the worlds first League of Peace received no welcome from the worlds newest (League of Nations 1924)35

30 31

UN Charter, Article 62(1). UN Charter, Article 62(3). 32 UN Charter, Article 62(1). 33 UN Charter, Article 62(2). 34 United Nations Office of the High Commissioner for Human Rights (OHCHR), http://www.ohchr.org/. 35 Niezen, Ronald, The Origins of Indigenism: Human Rights and the Politics of Identity, University of California Press, Berkeley and Los Angeles: 2003, p. 32, p. 34-35, p. 36.

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While some State delegations gave Chief Cayuga serious consideration (and thus consideration in the context of self-determination and equality), the end result was that the League of Nations did not permit for his inclusion. Similarly, in 1925 and 1925 Maori religious leader T.W. Ratana approached both King George in London and the League of Nations in Geneva concerning the breaking of the Treaty of Waitangi36 by New Zealand. In both instances, by the King of England and the League of Nations, Maori leader Ratana was denied access. In cases of the denial of the self-determination and self-representation of Indigenous Peoples, Confederations and Nations as equal to States at the United Nations, as experienced at the international level by both Cayuga Chief Deskaheh and Maori leader Ratana, Indigenous Peoples have had no direct remedy or recourse to justice other than to continue to fight for their rights as outsiders or from the internal sidelines. And at the same time, as early as 1924 the international community was recognizing native populations in the context of investigations by the International Labor Organization into forced labor of Indigenous persons. As a result of the investigations of the ILO into unfair labor practices by the States towards native populations, a series of treaties, resolutions and declarations have sprung up through the following decades in the protection of Indigenous Rights and, progressively, with Indigenous input and voice. Conventions such as ILO 29, the Forced Labour Convention,37 ILO 107,38 ILO 169,39 resolutions such as the United Nations International Decade of the Worlds Indigenous People, 1995-2004, the UN Second Decade of the Worlds Indigenous People, 2005-2015, UN International Day of Indigenous Peoples, 9 August, and the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) create a collection of binding and non-binding documents and intentions to which States may adhere to in the respect, protection and promotion of Indigenous Rights. Furthermore, argument could also be made that these documents concerning Indigenous and Tribal Rights, in their entirety as a collection, create a set of new legal norms and standards. However, the United Nations itself still maintains a structure and organization that excludes Indigenous Peoples from self-determination at the top political international level of Membership. As the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) is implemented the principle of the right to Indigenous Peoples self-determination becomes customary law via the UNDRIP. Adopted by the UN General Assembly in 2007, the UNDRIP states Indigenous peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural
36 37

Treaty of Waitangi, Maori and New Zealand, 1840. The International Labour Organization (ILO) began its work concerning Indigenous and Tribal rights as early as 1921, addressing the forced labor of Indigenous and Tribal peoples by European colonies. The Forced Labour Convention, ILO 29, was ratified in 1930. 38 In 1957 the ILO adopted the first international legal instrument concerning, specifically, the rights of Indigenous Peoples, ILO Convention 107. Later, this convention was replaced by ILO 169, the Indigenous and Tribal Peoples Convention. 39 ILO 169 (1989) was created via negotiations including both Indigenous and non-Indigenous representatives and organizations.

12

development.40 However, the established principle itself of self-determination of peoples is already considered customary law.41 3. POLITICAL AND LEGAL POINTS OF CONTENTION A. Legal Personality The very tribes who influenced the democratic Constitution and united political structure of the United States were rejected at both the State and international level for having neither legal personalities nor equality to Nation-States as Nations. Those same tribes and peoples were and continue to be in government-to-government relationships with States at the same time, a seeming legal contradiction. To Indigenous Peoples and those aware of realities of history and colonialism and settler states, the truth behind this legal inconsistency is simple and is embedded in the conflict between colonialism, decolonizing and human rights - so long as Indigenous Peoples were or are not granted legal personalities and political, self-determining equal sovereigns to States as Nations, they could and can be justifiably colonized and their land or ultimate decision-making rights acquired under terra nullius, the doctrine of discovery in its newer manifestations, or otherwise (such as lack of legislating powers or the existence of a trust relationship with States, as will be discussed later in this thesis). Attorney and academic W. Michael Reisman writes,
By the nineteenth century, with the ascendance of the conception of positive international law as a corpus juris created through the will of states, indigenous peoples, who were not organized in states, all but disappeared from international law's construct of reality Their languages were not dignified as such; their law, if it was recognized as law, was deemed primitive, appropriate for study by anthropologists, rather than jurists; and their religions and mores were likely to be viewed as exotic or barbaric atavisms.42

40 41

United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), 2007, Article 3. [self-determination] is to be regarded as an established principle, a universally recognized right under contemporary international law, and a legally binding principle enjoying universality and constituting a general rule of international law. It is a general and permanent principle of international law Equal rights and self-determination of peoples is also a rule of customary law created by the United Nations Custom is denned in Article 38, paragraph 1, subparagraph b, of the Statute of the International Court of Justice as follows: international custom, as evidence of a general practice accepted as law Declarations are of especial importance, for according to a memorandum by the Office of Legal Affairs of the United Nations Secretariat, dated 2 April 1962: [...] in view of the greater solemnity and significance of a 'declaration', it may be considered to impart, on behalf of the organ adopting it, a strong expectation that Members of the international community will abide by it. Consequently, in so far as the expectation is gradually justified by State practice, a declaration may by custom become recognized as laying down rules binding upon States., from Cristescu, Aureliu, UN Special Rapporteur of the Sub-Commission on Prevention of Discrimination and Protection of Minorities, The Right to Self-Determination Historical and Current Development on The Basis Of United Nations Instruments, United Nations, New York, 1981, paras. 136, 141-142, 148. 42 Reisman, W. Michael, Protecting Indigenous Rights in International Adjudication, The American Journal of International Law, Yale Law School, Faculty Scholarship Series Paper 885, Vol. 89, Issue 341: 1995.

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Indeed, the exclusion of indigenous peoples from international law recognition was confirmed in the few instances when it was considered: the decision on the status of the Isle of Palmas, the ruling on Eastern Greenland and the Cayuga arbitration.43 Historically the Cayuga Indians, whose chief had approached the League of Nations and had been denied access by the League, were also at the center of a case in the United States, Cayuga Indians v. United States. While progressively the U.S. tribunal addressed notions similar to colonialism, the result of the case was that the Cayuga Nation and the Cayuga as individuals were judged to have no status under international law:
From the time of the discovery of America the Indian tribes have been treated as under the exclusive protection of the power which by discovery or conquest or cession held the land which they occupied ... The power which had sovereignty over the land has always been held the sole judge of its relations with the tribes within its domain. The rights in this respect acquired by discovery have been held exclusive.44

At the same time, however, progressively the tribunal stated that the Cayuga were due rights of equity, fair dealing and justice prescribed by international law.45 The same legal process and incongruence seen in the Courts handling of the Cayuga Case can be seen today in regard to the legal status and rights of Indigenous Peoples and Nations Indigenous Peoples continue to demand a place at the bargaining table of the United Nations, and they are granted some international rights but not legal personality equal to that of States (despite having some legal personality as of 2007 as Nations via the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP)). The deficiency for Indigenous Peoples and Nations due to their lack of inclusion as equal to UN Member States within the international law systems (and thus as equal negotiators concerning those systems) forces them to rely heavily on United Nations human rights treaty bodies, such as the United Nations Committee on the Elimination of Racial Discrimination (CERD), instead of criminal courts for redress concerning human rights violations. The contradiction in regards to legal status of Indigenous Peoples and Nations creates a segregation and apartheid effect in the United Nations and States systems for Indigenous Peoples as non-self-determining political entities, and thus a violation of the most fundamental, foundational of human rights and all those rights affected by it. Significant is the effect, amongst others, of this inequality that Indigenous Peoples could not and cannot argue legally against the colonizing of their lands as criminal actions, despite the many brutal effects and human rights violations of State colonialism on Peoples. W. Michael Reisman of Yale Law School references in his article Protecting Indigenous Rights in International Adjudication the weakened position Indigenous Peoples were offered by the international legal community formed by States:
43

Sanders, Douglas, Indigenous Peoples at the United Nations, in Eds. Theo C. van Boven, Cees Flinterman, Fred Grnfeld, Rita Hut, The Legitimacy of the United Nations: Towards an Enhanced Legal Status of Non-State Actors: Proceedings of the Symposium of Experts organized by The European Centre for Development Policy Management (ECDPM, Maastricht) and the Centre for Human Rights of the University of Maastricht October 1995, SIM Special No. 19, Utrecht: 1997. 44 Cayuga Indians (Gr. Brit.) v. United States, 6 R.I.A.A. 173 (U.S.-Brit. Arb. Trib. 1926), para. 176. 45 Cayuga Indians (Gr. Brit.) v. United States, 6 R.I.A.A. 173 (U.S.-Brit. Arb. Trib. 1926), para. 179-184.

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if the indigenous peoples survived disease, economic exploitation and sometimes genocide (and many did not), they were consigned to a kind of international legal shadow land. The international law of the newcomers allowed them the weakest of rights of title to the lands they inhabited and even weaker rights to equal treatment under the law.46

Such a position of weakened equality as that explained by Reisman promotes the very concept of protection versus equal participation of Indigenous Peoples at the international legal and political level by creating and maintaining apartheid-like State political systems in which, ultimately, the very essence of Indigenous cultures, religions, and traditional political and familial structures - land - is ultimately controlled by States and businesses. A 2011 report of the UN Secretary-General elaborated that the State responsibility to protect is directly connected to State sovereignty: III. Protection responsibilities of the State: 10. First and foremost, the responsibility to protect is about reasserting and reinforcing the sovereign responsibilities of the State.47 In similar violation of fundamental rights as notions of protection in lieu of participation was the notion of assimilation, where Indigenous Peoples were expected to be stripped of all cultural tradition so as to become civilized as State persons:
The Canadian government informally recognised the indigenous communities of Canada as peoples or nations but they were viewed as uncivilised and hence unable to acquire rights as citizens in a democratic polity. The Bagot Commission Report (1844) argued that reserves in Canada were operating in a half-civilised state and that, in order to progress towards civilisation, Aboriginal peoples needed to be imbued with the principles of industry and knowledge through formal education. The Bagot Commission Report resulted in a shift in Indian policy in Canada away from the guiding principle of protection towards assimilation; this was reinforced by the Davin Report (1879), which recommended a policy of aggressive civilisation. Aboriginal adults and elders were perceived by Davin to possess the helpless mind of a child. Hence, to be integrated into the emerging nation, Aboriginal children had to be separated from their parents and civilised through a program of education that would make them talk, think and act like British Canadians.48

These contradictions and human rights and dignity violations as dictated by States via dominance over legal and political systems and the (attempted) forced dependency of

46

Reisman, W. Michael, Protecting Indigenous Rights in International Adjudication, The American Journal of International Law, Yale Law School, Faculty Scholarship Series Paper 885, Vol. 89, Issue 341: 1995. 47 United Nations Report of the Secretary-General, General Assembly Sixty-fifth session, Security Council Sixty-sixth year, Agenda items 13 and 115, Integrated and coordinated implementation of and follow-up to the outcomes of the major United Nations conferences and summits in the economic, social and related fields; Follow-up to the outcome of the Millennium Summit, The role of regional and subregional arrangements in implementing the responsibility to protect, 28 June 2011, p. 3. 48 Kirmayer, L., Simpson, C. and Cargo, M., Healing traditions: culture, community and mental health promotion with Canadian Aboriginal peoples, Australasian Psychiatry, Vol. 11 Supplement: 2003, p. S16.

15

Indigenous Peoples and Nations have not gone unnoticed by Indigenous peoples and leaders.49 B. Indigenous Peoples and Decolonization The United Nations General Assembly has established that the State duty to promote the Declaration on the Granting of Independence to Colonial Countries and Peoples in all Trust Territories, Non-Self-Governing Territories and other colonial Territories is a remedy to the crime of the continuation of colonialism,
[The General Assembly] Declares the further continuation of colonialism in all its forms and manifestations a crime which constitutes a violation of the Charter of the United Nations, the Declaration on the Granting of Independence to Colonial Countries and Peoples and the principles of international law With a remedy of State duty to promote, in the United Nations and the international institutions and organizations within the United Nations system, effective measures for full implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples in all Trust Territories, NonSelf-Governing Territories and other colonial Territories, large and small50

Indigenous Peoples were not given the official choice to initiate UN Decolonization as per General Assembly Resolutions 1514 and 1541. The task of transmittal of information concerning non-self-governing territories being given to the authoritative States under the UN Charter, not to non-self-governing territories themselves or self-determining peoples. In addition, Indigenous Peoples have not been officially, democratically and formally consulted as Peoples as to their collective decisions in regards to the options for their political and territorial standings in the international community or via the options contained within UN Decolonization that might lead to UN Membership. The following excerpt of the 1975 Declaration of Judge Nagendra Singh concerning the International Court of Justice (ICJ) Western Sahara case exhibits a partial emphasis on the rights of Peoples to be consulted in regards to their goals of self-determination and decolonization:
49

In 1925, just a few months before his death, Cayuga Chief Deskaheh stated in a speech: "This is the story of the Mohawks, the story of the Oneidas, of the Cayugas - I am a Cayuga - of the Onondagas, the Senecas, and the Tuscaroras. They are the Iroquois. Tell it to those who have not been listening. Maybe I will be stopped from telling it. But if I am prevented from telling it over, as I hope I do, the story will not be lost. I have already told it to thousands of listeners in Europe. It has gone into the records where your children can find it when I may be dead or be in jail for daring to tell the truth This story comes straight from Deskaheh, one of the chiefs of the Cayugas. I am the speaker of the Council of the Six Nations, the oldest League of Nations now existing. It was founded by Hiawatha. It is a League which is still alive and intends, as best it can, to defend the rights of the Iroquois to live under their own laws in their own little countries now left to them, to worship their Great Spirit in their own way, and to enjoy the rights which are as surely theirs as the white man's rights are his own." From Deskaheh's last speech, printed in Basic Call to Consciousness, The Book Publishing Company, Summertown, Tennessee USA. 50 UN General Assembly, Resolution 2621 (XXV), Programme of action for the full implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples, 1863rd plenary meeting, 13 October 1970, Articles 1 and 3(1).

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In my opinion the consultation of the people of the territory awaiting decolonization is an inescapable imperative whether the method followed on decolonization is integration or association or independence. This is established by not only the general provisions of the United Nations Charter but also by specific resolutions of the General Assembly on this subject. Apart from Articles 1, 2, 55 and 56 of the Charter and paragraphs 2 and 5 of resolution 1514(XV) which bring out this aspect generally there are also specific provisions such as contained in principles VI1 and IX of resolution 1541(XV) which categorically state integration should be the result of the freely expressed wishes of the territory's peoples. It is principle VI(c) of resolution 1541(XV) which prescribes integration as a method of decolonization and principle IX(b) imposes the condition of consultation of the people as the means of achieving selfdetermination by integration. Again resolution 2625(XXV) concerning friendly relations goes a long way to further emphasize the point that on decolonization the emergence into any political status has to be freely determined by a people. Thus even if integration of territory was demanded by an interested State, as in this case, it could not be had without ascertaining the freely expressed will of the people - the very sine qua non of all decolonization.51

The failure of the United Nations and the ICJ to maintain the political will power to formally allow for Indigenous UN decolonization and self-determination in that process continues to affect Indigenous Peoples in multiple instances of extreme human rights violations via State colonialism, such as those expressed by the recent Kari-Oca 2 Declaration of the meeting of Indigenous delegations held parallel to the UN Rio+20 conference from which they were excluded as non-Members:
Since Rio 1992, we as Indigenous Peoples see that colonization has become the very basis of the globalization of trade and the dominant capitalist global economy. The exploitation and plunder of the worlds ecosystems and biodiversity, as well as the violations of the inherent rights of Indigenous Peoples that depend on them, have intensified. Our rights to self determination, to our own governance and own self-determined development, our inherent rights to our lands, territories and resources are increasingly and alarmingly under attack by the collaboration of governments and transnational corporations. Indigenous activists and leaders defending their territories continue to suffer repression, militarization, including assassination, imprisonment, harassment and vilification as terrorists. The violation of our collective rights faces the same impunity. Forced relocation or assimilation assault our future generations, cultures, languages, spiritual ways and relationship to the earth, economically and politically.52

Despite having their colonial borders honored at the United Nations due to the salt-water test (to be discussed later in this thesis), colonial States cannot claim State territorial integrity to include colonized peoples lands when that State is violating peoples self
51

Judge Nagendra Singh, Declaration concerning the ICJ Western Sahara Case, International Court of Justice, Western Sahara, Advisory Opinion, 16 October 1975, p. 12, para. 81. 52 Kari-Oca 2 Declaration: Indigenous Peoples Global Conference On Rio+20 And Mother Earth, KariOka Village, at Sacred Kari-Oka Pku, Rio de Janeiro, Brazil, 17 June 2012.

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determination and equal rights, per the Declaration on Friendly Relations.53 The right to decolonize remains most prominent legally when violations of peoples selfdetermination are being committed by the encompassing colonial State. As defined in Unikkaartuit: Meanings of Well-Being, Unhappiness, Health, and Community Change Among Inuit in Nunavut, Canada, colonialism is the conquest and control of other peoples land and goods the takeover of territory, appropriation of material resources, exploitation of labor and interference with political and cultural structures of another territory or nation.54 Moreover, as academic and legal expert Maivn Clech Lm states, the right to self-determination is jus cogens, whereas State territorial integrity is not:
Raising the bar of state territorial integrity against self-determination for indigenous peoples is jurisprudentially faulty The right of self-determination is generally considered to by jus cogens - i.e., of the highest order and nonderogable in international law. Territorial integrity, on the other hand, while a fundamental principle that shields states from other states, does not enjoy this status.55

Thus, Indigenous and Tribal Peoples rights to self-determination through UN decolonization and freely determined political status include the rights to traditional Indigenous lands that may be considered by the State to fall within the category of State territorial integrity. C. Uti Possidetis While many once-colonized territories have been granted the right to decolonize and to become self-determining and Members of the United Nations, such human-rights-based political and legal changes have occurred mainly in the context of uti possidetis, or the maintaining of colonial territorial boundaries, in decolonization. The maintaining of uti possidetis disrupts Indigenous self-determination via State borders that divide Indigenous territories, often causing dispute, conflict, and violence initiated by either or both the
53

The Declaration on Friendly Relations (Resolution 2625) states, bearing in mind that subjection of peoples to alien subjugation, domination and exploitation constitutes a violation of [the principle of equal rights and self-determination of peoples], as well as a denial of fundamental human rights, and is contrary to the Charter. The declaration continues, Nothing in the foregoing paragraphs shall be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples as described above and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour. (emphasis added). As this excerpt shows, States violating the principle of equal rights and selfdetermination of peoples do not maintain a right to territorial integrity including the territories of the peoples whose rights the State is violating. 54 Kral, M. J., Idlout, L., Minore, J. B., Dyck, R. J., Kirmayer, L. J., Unikkaartuit: Meanings of WellBeing, Unhappiness, Health, and Community Change Among Inuit in Nunavut, Canada, American Journal of Community Psychology, Vol. 48: 2011, p. 426. Referencing Loomba, Ania, Colonialism/Postcolonialism, 2nd Ed., Routledge, New York: 2011, p. 8 and 11. 55 Lm, Maivn Clech, Indigenous Peoples Rights to Self-Determination and Territoriality, in Eds. Richard Pierre Claude and Burns H. Weston, Human Rights in the World Community: Issues And Action, University of Pennsylvania Press: 2006, p. 155-156.

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State(s) and/or the Peoples. W. Michael Reisman explains the point of conflict between Indigenous Peoples rights, decolonization and uti possidetis in his article Protecting Indigenous Rights in International Adjudication:
The moral imperative of the historic movement of decolonization is directly relevant to the claims of indigenous peoples. Decolonization was not the grievance of particular historical sore losers. Those who demanded decolonization invoked what they took to be a basic legal and moral principle. They protested the very idea of the subjugation of one people by another and the imposition of an alien language and law, and they insisted on the right of all peoples to determine by whom and how they should be governed. Despite the moral relevance of decolonization to the situation of indigenous peoples, decolonization rarely encompassed indigenous peoples. In the New World, decolonization benefited mostly so-called Creole or local elites of European extraction. Legal doctrines such as uti possidetis juris, which the elites of the new states appropriated in the nineteenth century, effectively precluded any recognition of rights to the lands that indigenous peoples had historically inhabited. Uti possidetis juris was a Latin neologism (and, at that, an inversion of the Praetorian edict whose terms it purloined so as to give itself the illusion of the authority of antiquity) it bestowed an aura of historical legality to the expropriation of the lands of indigenous peoples. The new elites divided territory among themselves exactly as had the former imperial powers-in other words, without regard to the claims or interests of the aboriginal inhabitants. Even when the United Nations began to legislate for the rights of peoples, the elites of those same states established the rules of the game.56

A truly human-rights based decolonization and self-determination will occur when Indigenous and Tribal Peoples themselves are equals in the formations of international judicial systems equal to States but not of States (unless chosen as such), and can speak to their own territorial boundaries and relationships for purposes of self-determination, sans uti possidetis. Currently States that have colonized contiguous land bases, such as the United States, Canada, Sweden, Norway, Russia, Finland, New Zealand and Australia are not transmitting to the United Nations decolonization organization bodies, as per the UN Charter Article 73(e), that they contain non-self-governing peoples and territories due to colonialism, and Indigenous Peoples remain within a political corner in which they maintain their affairs only under the watchful and controlling eye of the State(s). The Sami People, for example, of the Indigenous territories of Sapmi, currently experience their lands and people as divided by the colonizing, administering States of Sweden, Norway, Finland and Russia. At the same time, the Sami people are under constant threat to loss of their lands to State-permitted resource extraction, relocation, and in may cases State borders that cross directly through community traditional migration lands. The Sami Parliament of Sweden has only administrative powers handed to them by the State government and lacks in the powers to legislate- a system designed (even the existence of

56

Reisman, W. Michael, Protecting Indigenous Rights in International Adjudication, The American Journal of International Law, Yale Law School, Faculty Scholarship Series Paper 885, Vol. 89, Issue 341: 1995.

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a parliament itself, versus traditional Sami leadership) and managed by the Swedish government.57 D. Trust Relationships From the Indian Trust of the United States, to the purely non-legislative powers of the Sami people on the Swedish side of Sapmi, to the United Nations approach of protection of Indigenous Peoples by the United Nations and Nation-States (versus the full participation of Indigenous Peoples with rights to UN Membership), colonial relationships between Indigenous Peoples and States are still in existence despite the UN commitment to eradicate colonialism.58 The May 2012 Recommendations document from the UN Permanent Forum on Indigenous Issues (UNPFII), topic 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), addresses the history of this reality:
Legal and political justification for the dispossession of indigenous peoples from their lands, their disenfranchisement and the abrogation of their rights such as the doctrine of discovery, the doctrine of domination, conquest, discovery, terra nullius or the Regalian doctrine were adopted by colonizers throughout the world. While these nefarious doctrines were promoted as the authority for the acquisition of the lands and territories of indigenous peoples, there were broader assumptions implicit in the doctrines, which became the basis for the assertion of authority and control over the lives of indigenous peoples and their lands, territories and resources.59

57

Lawrence, Rebecca, and Mrkenstam, Ulf, Sjlvbestmmande genom myndighetsutvning? Sametingets dubbla roller (Self-determining parliament or government agency? The curious double life of the Swedish Sami parliament), Statsvetenskaplig tidskrift, rgng Vol. 114, No. 2: 2012. 58 Taiaiake Alfred writes in his article Sovereignty, Recognizing the power of the indigenous challenge and unable to deny it a voice, the states response had been to attempt to draw indigenous people closer. It has encouraged indigenous people to reframe and moderate their nationhood demands to accept the fait accompli of colonization, to help create a marginal solution that does not challenge the fundamental imperial premise. By allowing indigenous peoples a small measure of self-administration, and by foregoing a small portion of the moneys derived from the exploitation of indigenous nations lands, the state has created an incentive for integration into its own sovereignty framework. Those indigenous communities that cooperate are the beneficiaries of a patronizing faux altruism. They are viewed sympathetically as the anachronistic remnants of nations, the descendants of once independent peoples who by a combination of tenacity and luck have managed to survive and must now be protected as minorities. By agreeing to live as artifacts, such coopted communities guarantee themselves a mythological role and thereby hope to secure a limited but perpetual set of rights. From Alfred, Taiaiake, Sovereignty, in Barker, Joanne, Ed., Sovereignty Matters: Locations of Contestation and Possibility in Indigenous Struggles for SelfDetermination, University of Nebraska Press, Lincoln: 2005, p. 44-45. 59 United Nations, Permanent Forum on Indigenous Issues (UNPFII), Recommendations, Special theme: 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) from United Nations, Permanent Forum on Indigenous Issues, Report on the eleventh session (7-18 May 2012), Economic and Social Council, Official Records, 2012, Supplement No. 23, p. 32.

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This unequal relationship exists more recently, as well- for example in the Trust relationship found in the United States, as Joanne Barker details in her article For Whom Sovereignty Matters:
Despite the superficial appearance of conflict within the Supreme Courts opinion in the Marshall trilogy, the decisions were in perfect keeping with the colonial objectives of the U.S. government at the time, a government that aimed to abrogate the means and abilities of Indian tribes to maintain their jurisdiction and territorial rights. The configuration of Indian tribes as being under the governing authority of the United States was neither adverse to nor undermining of the ultimate objective to dissolve Indian governments and dispossess Indians of their territories. And it certainly was not unique. European nations likewise constructed themselves as sovereigns with abject rights to claim jurisdictional authority and territorial rights over indigenous peoples in their colonies throughout the Americas and the Pacific. The specific claims and exercises of their sovereign powers military and otherwise made almost incestuous use of each others laws and policies to justify the dispossession, enslavement, and genocide of their Indians. This is reflected in the opinions of Marshalls trilogy which claimed that Indians had passed under U.S. plenary power, which in turn had a trust responsibility to govern the Indians as a matter of domestic policy and in the ways that these rulings were taken up by Englands Colonial Office to justify the usurpation of indigenous territorial rights in Canada, Australia, and New Zealand.60

Erica-Irene A. Daes, Chairperson and Rapporteur of the UN Working Group on Indigenous Populations 1984-2002 writes concerning the earlier but identical approach of the League of Nations to Indigenous and Tribal peoples:
According to Article 22 of the Covenant of the League of Nations, members of the League accepted as a sacred trust of civilization the duty of promoting the well being and development of the indigenous population of those colonies and territories remaining under their control. The Covenant specifically used the word indigenous to distinguish between the colonial powers and the peoples living under their domination. The Covenant included a second element of qualification, however, characterizing indigenous populations as peoples not yet able to stand by themselves under the strenuous conditions of the modern world. Both factors, that is, colonial domination and institutional capacity, were to be considered, under Article 22 of the Covenant, in determining the degree of supervision that was appropriate to particular territories and peoples. Another element important to the evolution of the term indigenous appeared in the Covenant. Article 22 also referred to territories as places demarcated by

60

Barker, Joanne, For Whom Sovereignty Matters, in Barker, Joanne, Ed., Sovereignty Matters: Locations of Contestation and Possibility in Indigenous Struggles for Self-Determination, University of Nebraska Press, Lincoln: 2005, p. 13-14.

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internationally recognized borders, in comparison to peoples, who could be distinguished by sociological, historical, or political factors.61

In the Western Sahara case the ICJ pointed to the fact that documentation showed that the King of Spain was taking the Rio de Oro under his protection62 also like the relationships dictated by States towards Indigenous Peoples still today. Despite the United States government claiming a government-to-government63 relationship with Native American tribes, the United States government also deems tribal nations as "domestic dependent nations" - the Constitution and federal laws permit local sovereign powers to tribal nations, yet do not allow for full sovereignty equal to foreign States or within the United States:
a few basic principles provide important guidance in the field of Indian affairs: 1) the Constitution vests Congress with plenary power over Indian affairs; 2) Indian tribes retain important sovereign powers over their members and their territory, subject to the plenary power of Congress; and 3) the United States has a trust responsibility to Indian tribes, which guides and limits the Federal Government in dealings with Indian tribes.64

Trust relationships show the lack of true self-governing and self-determination of Native American Tribes, with Congress (and the Executive Branch) overseeing land and resources, legislation, education, policy-making, justiciability and litigation, amongst other things:
In a broad sense, the trust responsibility relates to the United States' unique legal and political relationship with Indian tribes. Congress, with plenary power over Indian affairs, plays a primary role in defining the trust responsibility The term trust responsibility is also used in a narrower sense to define the precise legal duties of the United States in managing prosperity and resources of Indian tribes and, at times, of individual Indians; The trust responsibility, in both senses, will guide the Department in litigation, enforcement, policymaking and proposals for legislation affecting Indian country, when appropriate to the circumstances. As used in its narrower sense, the federal trust responsibility may be justiciable in some circumstances, while in its broader sense the definition and implementation of the trust responsibility is committed to Congress and the Executive Branch.65

61

Daes, Erica-Irene A., Source: Cengage, Gale, Genocide and Crimes Against Humanity, in Eds. Shelton, Dinah L. and Gale, Thomson, Encyclopedia of Genocide and Crimes Against Humanity, Michigan, USA: 2005. 62 International Court of Justice, Western Sahara, Advisory Opinion, 16 October 1975, p. 12; para. 81. 63 Articulated by Chief justice John Marshall, as described by current United States government information available at the website of the United States Department of Justice, section About Native Americans, http://www.justice.gov/otj/nafaqs.htm. This relationship is also describe in the document Department of Justice Policy on Indian Sovereignty and Government-to-Government Relations with Indian Tribes, Office of the Attorney General, Washington, D.C., 1 June 1995: To reaffirm the Department's recognition of the sovereign status of federally recognized Indian tribes as domestic dependent nations and to reaffirm adherence to the principles of government-to-government relations. 64 Office of the Attorney General, Washington, D.C., Department of Justice Policy on Indian Sovereignty and Government-to-Government Relations with Indian Tribes, 1 June 1995. 65 Office of the Attorney General, Washington, D.C., Department of Justice Policy on Indian Sovereignty and Government-to-Government Relations with Indian Tribes, 1 June 1995.

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In addition to restricting Indigenous self-determination through the Indian Trust system and ultimate decision-making powers over Indian affairs residing with US Congress and the Executive Branch, the United States further violates Indigenous Peoples fundamental right to self-determination (and decolonization) by determining within the US Court system which tribes may have tribal status or Federal Recognition66 as Native American tribes,67 and thus determining whether such tribes shall have a government-togovernment relationship with the United States and, moreover, rights to legal claims as tribes in regards to land, cultural preservation and education, litigation, and sovereignty. Such a system clearly violates the right to self-determination codified in the Charter of the United Nations and 1966 Covenants of the United Nations (the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR)), and the UN Declaration on the Rights of Indigenous Peoples (UNDIP). Professor of law Philip J. Prygoski writes about the progressive loss of sovereignty and self-determination of Native American tribes in his article From Marshall to Marshall: The Supreme Court's Changing Stance on Tribal Sovereignty:
The Direction Is Clear: At least two troubling aspects of the Court's treatment of the sovereign rights and powers of Indian tribes emerge from a look at the development of the doctrine of tribal sovereignty. First, the Court has moved away from the concept of intrinsic tribal sovereignty that predated the coming of the European conquerors, and has adopted the view that tribal sovereignty, and the concomitant freedom of the tribes from encroachments by the states, exists solely because Congress has chosen to confer some protections on the tribes. Second, whatever the doctrinal underpinnings of tribal sovereignty may be, it is clear that the sovereignty of American Indian tribes has been progressively and systematically diminished by the actions of the federal government, including the Supreme Court.68

The previously mentioned United Sates Congressional Resolution 331 states a trust relationship between the United States government and Native American tribal governments. The resolution also acknowledges that the trust relationship has reaffirmed policies through legislation and has been reaffirmed by judicial legislation.69 Indigenous
66

For more on the system of US Federal Recognition of Native American Tribes, visit the website of the Native American Rights Fund, http://www.narf.org/nill/resources/recog.htm, and US Title 25 - Indians, Code of Federal Regulations, doc. AE 2.106/3:25/, Revised as of April 1, 2005. 67 For example of this system and the injustice therein, visit the website of the Winnemem Wintu Tribe in California, one tribe amongst many that the United States Government and justice system do not recognize as Native American and is therefore not subject to the rights granted to Native American by the US: http://www.winnememwintu.us/winnemem-wintu-position-on-recognition/. 68 Prygoski, P.J., From Marshall to Marshall: The Supreme Court's Changing Stance on Tribal Sovereignty, Compleat Lawyer, Volume 12, Issue 4: Fall 1995. 69 Whereas, since the formation of the United States, the Congress has recognized the sovereign status of Indian Tribes, and has, through the exercise of powers reserved to the Federal Government in the Commerce Clause of the Constitution (art. I, s8, cl.3), dealt with Indian tribes on a government-togovernment basis and has, through the Treaty Clause (art.II, s2, cl.2), entered into 370 treaties with Indian tribal nations; and, Whereas from the first treaty entered into with an Indian nation, the treaty with the Delaware Indians of Sept. 17, 1778, and thereafter in every Indian Treaty until the cessation of treaty-

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and Tribal Peoples have also been minimized, through a similar process, to legal status as minorities within the States that have occupied their territories (see, for example, the Sami Indigenous People in Sweden). As Joanne Barker further discusses in For Whom Sovereignty Matters,
One of the other legacies of the Marshall trilogy was the configuration of indigenous peoples as welfare beneficiaries. The notion that indigenous peoples are weaker than, wards, dependent, and limited in power in relation to their colonial states has perpetuated dominant ideologies of race, culture, and identity. Within these identifactory practices, indigenous people are marked as yet another ethnic group within the larger national melting pot, where the goal is to boil out cultural differences and the national jurisdictions and territorial boundaries of indigenous groups by boarding schools, farming programs, citizenship, and adoption. As I have argued elsewhere, the making ethnic or ethnicization of indigenous peoples has been a political strategy of the nation-state to erase the sovereign from the indigenous. To extent that the nation-state can maintain that indigenous peoples are nothing but welfare recipients under its trust, the very notion that indigenous peoples are members of sovereign political collectives is made incomprehensible. This incomprehensibility works to collapse indigenous peoples into minority groups that make up the social rainbow of multicultural difference as a means of erasing their unique political status and rights under precedence of international law.70

In the situation mentioned previously concerning the Sami Parliament and Sweden, the dual function of the Sami Parliament as both Sami-elected body and Swedish government agency does not allow for any real political influence in decision making, participation in legislating, taxation, or veto power.71 Moreover, the Swedish Sami Parliament cannot tax traditional Sami areas. These examples of State-Indigenous relationships are the very kind of non-self-governing relationship that the United Nations has instructed States to submit to the UN under the Decolonization process in General Assembly (GA) Resolutions 1514 and 1541. E. The International Court of Justice: The Case of the Western Sahara
making in 1871, the Congress has assumed a trust responsibility and obligation to Indian Tribes and their members to exercise the utmost good faith in dealings with the Indians as provided for the Northwest Ordinance of 1987 (I Stat.50); and Whereas, Congress has consistently reaffirmed these fundamental policies over the past 200 years through legislation specifically designed to honor this special relationship; and, Whereas, the judicial system of the United States has consistently recognized and reaffirmed this special relationship, United States House Concurrent Resolution 331, 100th U.S. Congress, 2nd Session, 5 October 1988. 70 Barker, Joanne, For Whom Sovereignty Matters, in Barker, Joanne, Ed., Sovereignty Matters: Locations of Contestation and Possibility in Indigenous Struggles for Self-Determination, University of Nebraska Press, Lincoln: 2005, p. 16-17. 71 Lawrence, Rebecca, and Mrkenstam, Ulf, Sjlvbestmmande genom myndighetsutvning? Sametingets dubbla roller (Self-determining parliament or government agency? The curious double life of the Swedish Sami parliament), Statsvetenskaplig tidskrift, rgng Vol. 114, No. 2: 2012.

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The International Court of Justice, the Principle Judicial organ of the United Nations,72 has set legal precedence via the Western Sahara case in regards to the rights of peoples to be seen as socially and politically organized prior to colonization.73 The ICJ elaborated that land inhabited prior to colonization by such organized peoples, even if tribal and nomadic, cannot be considered terra nullius when, as in the Western Sahara case, the State has signed agreements for the purposes of land titles with local chiefs.74 Given the nature of the reason for the request put upon the ICJ in the Western Sahara Case, namely to determine decolonization policy in regards to the territory disputed, it would have been of the utmost importance to include Indigenous and Tribal peoples in the proceedings on equal footing with the States. The Court itself states in paragraph 161 of the Western Sahara Advisory Opinion of 16 October 1975:
when the General Assembly asks in Question II what were the legal ties between the territory of Western Sahara and the Kingdom of Morocco and the Mauritanian entity, it is addressing an enquiry to the Court as to the nature of these legal ties. This question must be understood as referring to such legal ties as may affect the policy to be followed in the decolonization of Western Sahara. In framing its answer, the Court cannot be unmindful of the purpose for which its opinion is sought. Its answer is requested in order to assist the General Assembly to determine its future decolonization policy and in particular to pronounce on the claims of Morocco and Mauritania to have had legal ties with Western Sahara involving the territorial integrity of their respective countries.75

Where the ICJ failed it its conducting of a fair and human-rights based practice of international law in the Western Sahara case was in the Courts lack of consultation with or inclusion of the tribes being discussed themselves, so that the tribes in question could self-determine in the context of the procedures of justice. Namely, putting these tribal leaders on equal footing in the Court (the ICJ) with States. While both the State of Spain and the State of Morocco as well as Mauritania were allowed submissions to the Court, as well as various experts, the very tribes whom the Court referenced as organized and selfrepresenting peoples76 in agreements with the States were not asked or permitted to represent themselves in the ICJ concerning their own lands and political and historical perspectives. Moreover, the ICJ turned to the practices of the States and colonial documentation to legitimize the notion that the peoples inhabiting the land prior to colonization were socially and politically organized and self-representing and thus not living on terra nullius.77
72 73

UN Charter, Article 92. International Court of Justice, Western Sahara, Advisory Opinion, 16 October 1975, p. 12, para. 80. 74 International Court of Justice, Western Sahara, Advisory Opinion, 16 October 1975, p. 12, para. 80. 75 International Court of Justice, Western Sahara, Advisory Opinion, 16 October 1975, p. 12, para. 161. 76 International Court of Justice, Western Sahara, Advisory Opinion, 16 October 1975, p. 12, para. 81. 77 Whatever differences of opinion there may have been among jurists, the State practice of the relevant period indicates that territories inhabited by tribes or peoples having a social and political organization were not regarded as terra nullius. It shows that in the case of such territories the acquisition of sovereignty

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That the ICJ did not come to the same or any other decision by route of consultation with and inclusion of the original Indigenous tribal inhabitants of the land themselves in the courtroom and proceedings is deeply problematic from a human rights perspective. The lack of equal access to participation is a human rights violation of the right to selfdetermination. Clearly the judges did understand the connection between the Indigenous tribal peoples and the territory in the context of daily tribal self-determination:
Western Sahara (Rio de Oro and Sakiet El Hamra) is a territory having very special characteristics which, at the time of colonization by Spain, largely determined the way of life and social and political organization of the peoples inhabiting it. In consequence, the legal rgime of Western Sahara, including its legal relations with neighbouring territories, cannot properly be appreciated without reference to these special characteristics.78

The ICJ failed to take into account, regardless of its decision indirectly in support of tribal and Indigenous rights, that such characteristics must be described by the peoples themselves with equal opportunity as States to participation and self-determination in proceedings affecting their lives and lands. In the case of the Western Sahara, further lack of UN political willpower to defend the dignity, self-determination and equality of the Indigenous Sahrawi led to further tensions, violations of Sahrawi rights, and violence between the State of Morocco, a neighboring colonizer, and the Sahwari. As a result, like many Indigenous and Tribal peoples around the world, the Sahrawi experience the settings for cultural genocide as their territory and natural resources are extracted by Morocco:
As a reaction to the lack of firmness by the UN in the face of Morocco's obstructionist attitude, the Sahrawis in the occupied territories started, on 21 May 2005, a series of peaceful demonstrations, an intifada (or uprising). They called for respect of the right of the Sahrawi people to self-determination. There are numerous reports by major human rights bodies that document the gross human rights abuses perpetrated by Moroccan authorities against the Sahrawi population in the occupied territories. In the meantime, Morocco continues to plunder the natural resources of Western Sahara in violation of the right of its population to have permanent sovereignty over its resources.79

4. RESULTING HUMAN RIGHTS VIOLATIONS A. State Comparison: Membership, Segregation and United States Civil Rights
was not generally considered as effected unilaterally through occupation of terra nullius by original title but through agreements concluded with local rulers. From International Court of Justice, Western Sahara, Advisory Opinion, 16 October 1975, p. 12, para. 80. 78 International Court of Justice, Western Sahara, Advisory Opinion, 16 October 1975, p. 12, para. 87. 79 Omar, Sidi M., The right to self-determination and the indigenous people of Western Sahara, Cambridge Review of International Affaris, Vol. 21, Issue 1: March 2008, p. 41-57.

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I. Discrimination, Organizations and Clubs Can the United Nations be held accountable for political segregation or otherwise due to State-biased Membership criteria as a club or organization? Given that the fundamental human and peoples right of self-determination, affecting all other human rights, is affected by access to UN Membership, answering this question is of the utmost importance in examining the need for capacity building in regards to the United Nations and human rights within the institution. II. Organizational Intention In considering the lesser status to States Indigenous Peoples and leaders are given in international law and the UN Charter in regards to Membership, one can see not only the resulting segregation but also the indirect larger social implications and psychological effects. As Goodwin expresses in her essay on gender discrimination in clubs and organizations, To be stamped as inferior or a nonparticipant is particularly painful in the context of a legal order that professes equality as a fundamental tenet.80 Arguably, the same can be said for United Nations Membership and equal opportunity. Law, considered as a collection of social ideals, exhibits a current international socio-political ideal of State Membership privilege over Indigenous Nations self-determination - even in the context of the international human rights legal regime and the ways in which it functions - similar to the segregation that has been fought against through the United States Civil Rights and Womens Rights movements. In Brown v. Board of Education the United States (US) Supreme Court emphasized, so as to determine the fairness or lack thereof of segregation, that the public education must be considered in the light of its full development and its present place in American life throughout the Nation. Only in this way can it be determined if segregation in public schools deprives these plaintiffs of the equal protection of the laws.81 The same can be said of examining the organization of the United Nations and its political segregation of States and self-representing Indigenous Peoples who wish to self-govern and selfdetermine. Segregation of Indigenous Peoples & Nations and States at the UN does not represent the intentions of the world society, but rather current and historical sociopolitical and cultural prejudices. The ratification of the UNDRIP by the UN General Assembly and the (eventual) endorsing of the UNDRIP by all Member States exhibits international commitment to Indigenous self-determination.82 Indigenous Peoples will have equal protection via the international legal systems when they are able to self-represent and be self-determining as Members of the United Nations with a voice in decision-making, voting, appointing, drafting and all other Member
80

Goodwin, Catharine M., Challenging the Private Club: Sex Discrimination Plaintiffs Barred at the Door, Southwestern University Law Review, Vol. 13: 1982, p. 271, footnote 230. 81 U.S. Supreme Court, Brown et al. v. Board of Education of Topeka et al., Appeal from the United States District Court for the District of Kansas, 347 U.S. 483 (1954). 82 See UNDRIP Preamble and Articles 3 and 4.

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benefits. Brown v. Education looks to this fundamental question- does the forced segregation being analyzed deprive one or more historically oppressed groups of equal opportunities? In the case of Brown v. Board of Education, the Court determined the answer to that question to be yes. The Court referenced McLaurin v. Oklahoma State Regents in its explanation of its opinion on the matter, referring to the effects of being treated unequally on hearts and minds:
[A case] requiring that a Negro admitted to a white graduate school be treated like all other students, again resorted to intangible considerations: his ability to study, to engage in discussions and exchange views with other students, and, in general, to learn his profession. Such considerations apply with added force to children in grade and high schools. To separate them from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone."83

The issue at hand for Indigenous and Tribal Peoples in regards to self-determination and legal and political status is, in the context of segregation at the international United Nations level, amongst other venues and processes, who determines. III. Private Clubs and Free Association The free association chosen by States in maintaining a UN Membership that is elite to only States is not in congruence with US anti-discrimination laws. In the United States many private clubs and organizations have attempted to utilize the right to associate freely as a means to discrimination in regards to membership. In the 1987 article Private Club Membership--Where Does Privacy End and Discrimination Begin? Hyman Hacker wrote concerning discrimination in regards to membership to institutions and the right to free association (exclusivity) and the historical relationship between the two to business:
Historically, the right to associate freely with others for social as well as political and business purposes has been a hallmark of equality. In the past two decades courts have been summoned to balance the interests of groups aspiring toward equality against the interests of individuals and groups seeking to maintain the status quo through discriminatory institutions. Perhaps one of the most controversial issues involved in this struggle concerns the extent to which the government may constitutionally intrude into the criteria for membership in private clubs.84

In her 1982 article Challenging the Private Club: Sex Discrimination Plaintiffs Barred at the Door, Catharine M. Goodwin details definitions of private club and club in regards to organizations, corporations and clubs that wish to discriminate in regards to membership:
83

U.S. Supreme Court, Brown et al. v. Board of Education of Topeka et al., Appeal from the United States District Court for the District of Kansas, 347 U.S. 483 (1954). 84 Hacker, Hyman, "Private Club Membership--Where Does Privacy End and Discrimination Begin?," St. John's Law Review, Vol. 6, Issue 3: 1987, p. 476.

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The term private club refers to those clubs, corporations, or organizations whose membership or guest policies are selective, and not generally thought of as open on an equal basis to the public at large. Club connotes the feature of mutual selectivity of association. Private club is itself a legal conclusion, ie., a club that is truly a bona fide private club under the Public Accommodations Act, 42 U.S.C. 2000a (1976), or one that is not found to involve state action. Private club will be used to designate a group claiming the right to discriminate in selecting members. Whether a group is truly, legally, private is the subject of this article.85

Goodwin contends that a private club is one that does not involve state action. Were these regulations to be applied to the United Nations, the organization must be determined to be public and not private, given its State affiliation and claims of World representation. Moreover, States such as the United States must, in turn, abide by their own laws against segregation in the admittance of Indigenous Nations and leadership into the organizations membership. However, reading the following excerpt from Goodwins article below, one can see that, in fact, the United Nations can be seen to be operating as a private club:
Relevant factors in determining whether a club is truly private include: selectivity of membership; members' role in selection or rejection of members; formal membership procedures; qualifications for membership; amount of dues; whether the club takes on business characteristics; whether members control spending; whether there is a bond stronger than mere patronage of the same facility between members; how open the guest policy is; and whether the club advertises to the public at large. Therefore, if a club wishes to discriminate on the basis of race in membership decisions, it must show that it fits into the narrow refuge of a bona fide private club under the PAA. These factors involve a balancing of the private association interests of members and the equal access rights of, those excluded. Although freedom of association is a valid constitutional interest, this freedom does not permit the exclusion of a certain class of people in a public setting.86

Moreover, that the United Nations purports to operate for all children and peoples of the world, such as in the United Nations Childrens Fund (UNICEF) and other internal UNoperated organizations and treaty bodies, and does so throughout the world via offices, moving conferences and charity events, and other happenings involving meetings, food, accommodation, displays, and treaties that are meant to apply to all people and peoples of the world if ratified or customary law, implies that the organization purports itself to be a public organization. For this reason (amongst other reasons), the organization cannot discriminate as such if it is to be a public organization. See, for example, the flexible definition of place applied in the US case of National Organization for Women v. Little League Baseball, Inc:
85

Goodwin, Catharine M., Challenging the Private Club: Sex Discrimination Plaintiffs Barred at the Door, Southwestern University Law Review, Vol. 13: 1982, p. 237, footnote 1. 86 Goodwin, Catharine M., Challenging the Private Club: Sex Discrimination Plaintiffs Barred at the Door, Southwestern University Law Review, Vol. 13: 1982, p. 267-268.

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Definition of Place: Most state civil rights statutes prohibit discrimination in places of public accommodation. In National Organization for Women v. Little League Baseball, Inc., which involved a challenge to all-male baseball programs, Little League asserted that it should not be considered a place of public accommodation because it did not operate from any fixed parcel of real estate. While pointing to some location-specific connections, the court held the Little League to be a place of public accommodation essentially because it was open to children in the community at large, with no restriction (other than sex) whatever. The court emphasized that the term place was a term of convenience, not of limitation.87

IV. Business, Funding, Accommodation and Membership Title II of the United States Civil Rights Act of 1964, 42 U.S.C. 2000a(a) (1976) provides that: "All persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation, as defined in this section, without discrimination or segregation on the ground of race, color, religion, or national origin."88 Hacker describes a New York State upholding of the notion that clubs utilizing meals combined with business activity could not claim rights to discriminate as private institutions:
A legislative definition of a private club was upheld in New York State Club Association, Inc. v. City of New York. In 1984, the City Council of the City of New York (City Council) passed Local Law 63135 to deal with discrimination by clubs of over 400 members that are used primarily for business rather than social purposes. Determining that these large clubs, which regularly provided meal service during which business was conducted, were pervaded by business activity, the City Council decreed that such clubs could not be distinctly private so as to be exempt from the anti-discrimination provisions of the public accommodations law.89

As well, the United States Civil Rights Act covers trade and commerce between US states, and Goodwin explains how the Civil Rights Act applies to US state financial aid,
Direct financial aid implies state approval and provides the entity with the ability to function. Arguably, the aid may constitute the requisite nexus between the state and the discriminatory behavior Federal statutes prohibit internal discrimination by entities that receive certain federal funds, regardless of whether the entities particular programs are discriminatory.90

87

Hacker, Hyman, "Private Club Membership--Where Does Privacy End and Discrimination Begin?," St. John's Law Review, Vol. 6, Issue 3: 1987, p. 481, footnote 3. 88 Title II of the Civil Rights Act of 1964, 42 U.S.C. 2000a(a) (1976). 89 Hacker, Hyman, "Private Club Membership--Where Does Privacy End and Discrimination Begin?," St. John's Law Review, Vol. 6, Issue 3: 1987, p. 496, footnote 3. 90 Goodwin, Catharine M., Challenging the Private Club: Sex Discrimination Plaintiffs Barred at the Door, Southwestern University Law Review, Vol. 13: 1982, p. 257.

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The New York City Council found a link in 1984 between discrimination in regards to eating club membership and barriers to the business, political and professional advancement of oppressed groups (in this case minorities and women). The City Council created criteria to determine whether or not a club or organization functions for business purposes based on membership dues, number of members (or, in the UN, one can consider number of political bodies represented in the world context), and service such as meals provided:
The City Council declared that it had a compelling interest in providing its citizens... [with] ... an equal opportunity to participate in the City's business and professional life. Furthermore, the City Council found a barrier to the advancement of women and minorities could be traced to discriminatory membership practices of certain clubs where members could gain personal contacts and consummate business deals that would aid in their professional advancement. Despite the fact that such clubs are ostensibly organized for other than business purposes and indeed often perform valuable community services, the City Council found that if clubs: (1) have more than 400 members; (2) provide regular meal service; and (3) receive fees and dues from or on behalf of nonmembers, they will be deemed to be organized for business purposes.91

Following these criteria the United Nations could be seen to be an organization for business purposes. The same can be said for the right to participate as Members of the United Nations, as self-determining Indigenous Peoples and Nations, contextualized by a right to participate in trade and commerce, including the right to free, prior and informed consent92 and to say no to any or all aspects of development as well as take part in its implementation and defining. As well, the United Nations receives funding aid, or Membership dues, from Nation States and thus is, by US legal standards, a business institution. The UN cannot operate as a private club (with States-only Membership) for business purposes (international trade and monetary-based development) while simultaneously segregating and discriminating against Indigenous and Tribal Peoples cultural-politicallegal systems and their leaders in regards to Membership and, at the same time, truthfully
91

Legislative Declaration, New York, N.Y., [1984] N.Y. Local Law No. 63, 1, as referenced by Hacker, Hyman, "Private Club Membership--Where Does Privacy End and Discrimination Begin?," St. John's Law Review, Vol. 6, Issue 3: 1987, p. 24, footnotes 137 and 138. 92 EMRIP submission on the definition of free, prior and informed consent: The element of free implies no coercion, intimidation or manipulation; prior implies that consent is obtained in advance of the activity associated with the decision being made, and includes the time necessary to allow indigenous peoples to undertake their own decision-making processes; informed implies that indigenous peoples have been provided all information relating to the activity and that that information is objective, accurate and presented in a manner and form understandable to indigenous peoples; consent implies that indigenous peoples have agreed to the activity that is the subject of the relevant decision, which may also be subject to conditions. From EMRIP, Expert Mechanism Advice No. 2 (2011): Indigenous peoples and the right to participate in decision-making, para. 25 (see also footnote 18, referencing for an interpretation of free, prior and informed consent doc. UN ECOSOC, Permanent Forum on Indigenous Issues, Fourth session, New York, 16-27 May 2005, Item 4 of the provisional agenda, Ongoing priorities and themes, Report of the International Workshop on Methodologies regarding Free, Prior and Informed Consent and Indigenous Peoples, (New York, 17-19 January 2005), 17 February 2005).

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promote itself a public organization (treaties and a Constitution that claim effect over all the world and accommodation) based on equality. V. Discrimination and Criteria for Membership The test for UN Membership includes the assumption of political statehood, however the test results in the segregation of those nations that self-determine culturally as States, despite the fact that many peoples have traditional self-governing methods and mechanisms. In the U.S. Supreme Court case Griggs v. Duke Power Co. of 1971 the United States Supreme Court questioned whether a specific test was fair or biased in the context of inclusion and opportunity for African American petitioners to advance in career within the company; the US Supreme Court judgment was that a test can and has been determined to be unfair when applying criteria unnecessary to the performance goals.93 The criteria test of statehood for Membership to the United Nations is not necessary for the organization (UN) to meet the goals as detailed in the UN Charter. In fact, to meet the goals and purposes of the organization (UN) the Membership criteria must be amended to eliminate the test of statehood. Proposed Massachusetts public accommodations statute guidelines have included examination of membership policy and practices alongside the functions and activities of an organization.94 Determination as to how public a membership process is discriminatory would consist of the nature of recruiting (which, in the case of the United Nations can be considered to be the UN Decolonization process, as submitted by States in the context of determining non-self-governing territories) and the character of the selectivity process (which in the case of the UN would be, for example, an initial requirement of statehood), along with an analysis of purposes, programs and practices of the organization. Similar guidelines could be formulated and utilized to examine the public and private nature of the United Nations as an organization and thus its adherence to Civil Rights expectations in the exclusivity of its political membership criteria. VI. Psychological Effects of Organizational Discrimination United States legal precedence has determined that discrimination that results in inferiority and dependency can have significant negative effects on self-image and motivation. In Plessy v. Ferguson the US Supreme Court guided that laws could not override social prejudices.95 Today, however, the National Humanities Center has this to say about U.S. Supreme Court decision Plessy v. Ferguson of 1896 and the denial of desegregation and Constitutional rights:
93

U.S. Supreme Court, Griggs v. Duke Power Co., 401 U.S. 424 (1971), 401 U.S. 424, Griggs et al. v. Duke Power Co., Certiorari to the United States Court of Appeals for the Fourth Circuit, No. 124, 8 March 1971. 94 Goodwin, Catharine M., Challenging the Private Club: Sex Discrimination Plaintiffs Barred at the Door, Southwestern University Law Review, Vol. 13: 1982, p. 278. 95 U.S. Supreme Court, Plessy v. Ferguson, 163 U.S. 537 (1896).

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Perhaps the single most telling moment of the 1890s for black citizens was the Supreme Court's decision that segregated public facilities did not violate the Constitution. Why a telling moment? Because it said to African Americans you're on your own. The federal government would not enforce integration, just as it would not pass an anti-lynching law or, later, maintain integrated federal workplaces. Thus we first read from the Court's decisionfrom the majority opinion that segregation does not [stamp] the colored race with a badge of interiority, and from Justice Harlan's poignant dissent that segregation does, in fact, give a badge of servitude wholly inconsistent with the civil freedom and the equality before the law guaranteed by the Constitution.96

In Brown v. Board of Education of 1954 the US Supreme Court countered the Plessy v. Ferguson approach and determined that segregation in public schools is an inherent violation of equal opportunity.97 In Brown v. the Board of Education it is stated that A sense of inferiority affects the motivation of a child to learn.98 Legal inferiority and forced dependency of the oppressed on the dominant can be compared between cultural-political groups as well as genders. The Civil Rights movement coexisted historically with the Womens Rights movement, which coexisted with the abolishment of slavery, and the Civil Rights movement deeply influenced the American Indian and Indigenous Rights movements. Concerning gender-based forced dependency and legal discrimination, K. Karst states, "It is ... the right to be treated as one who is free to make independent choices that is undermined by the legal rules symbolizing a woman's dependency."99 Furthermore, Catharine M. Goodwin explains in Challenging the Private Club: Sex Discrimination Plaintiffs Barred at the Door, that often people will have a depleted self-image in addition to the loss of decision-making power, influence and benefits when deprived of the right to participate fully in certain social institutions:
A widely accepted legal tenet is that separate is inherently unequal. To the extent that club membership results in tangible professional benefits, such as enhanced professional status, mobility and contacts, would-be members are denied economic and employment interests. Historically, public policy has protected the equality interests that are derived from federal and state constitutions. Currently, there is an increasing awareness of the need to protect free access to commerce and the pursuit of a profession [see, e.g., Civil Rights Act of 1964, 701, 42 U.S.C. 2000e to 2000e-17 (1976)]. The injury to an excluded individual is symbolic and psychological, as well as tangible. Those denied full participation in certain parts of society suffer a decreased sense of self-worth. In addition, society as a whole inevitably suffers from arbitrary classbased discrimination due to reinforced social stereotypes and impeded social change. Although religion and morals are matters of individual conscience, law

96

Toolbox Library: Primary Resources in U.S. History & Literature, Topic: Politics, Section: Segregation, National Humanities Center, http://nationalhumanitiescenter.org/. 97 Brown v. Board of Education, 347 U.S. 483, 494 (1954). 98 Brown v. Board of Education, 347 U.S. 483, 494 (1954). 99 Karst, Kenneth, "A Discrimination So Trivial: A Note on Law and the Symbolism of Women's Dependency, Los Angeles Bar Bulletin, Vol. 49, No. 22: October 1974.

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has become the dominant collective expression of social ideals.100

Frank I. Michelman also writes on psychological affect of discrimination in the forward of On Protecting the Poor Through the Fourteenth Amendment:
"The peculiar evil of a relative deprivation is psychic or moral; it consists of an affront; it is immediately injurious insofar as resented or taken personally, and consequentially injurious insofar as demoralizing."101

B. Apartheid Are the General Assembly and Secretary General complicit in the committing of apartheid102 by States and assisting in State-sponsored apartheid by not allowing Membership to Indigenous Peoples and committing Indigenous and State political UN Membership segregation? Are UN bodies themselves to abide by UN-adopted resolutions and conventions in their functioning? UN General Assembly Resolution S-16/1, Declaration on Apartheid and its Destructive Consequences in Southern Africa, states: Reaffirming our conviction, which history confirms, that where colonial and racial domination or apartheid exist, there can be neither peace nor justice.103 In fact, there is neither peace nor justice for Indigenous Peoples who face discrimination in favor of Statehood for Membership at the UN, and the violations of their communities fundamental rights that result from this apartheid-inducing segregation. The Convention on the Suppression and Punishment of the Crime of Apartheid, which came into force 18 July 1976, was the result of a decades-long struggle at the United Nations to achieve opposition to apartheid in South Africa, which existed from 1948 to 1990. The General Assembly condemned apartheid from 1952 until 1990 as contrary to Articles 55 and 56 of the UN Charter. However, it took several years for the General
100

Goodwin, Catharine M., Challenging the Private Club: Sex Discrimination Plaintiffs Barred at the Door, Southwestern University Law Review, Vol. 13: 1982, p. 270-271. 101 Michelman, Frank I., Forward in On Protecting the Poor Through the Fourteenth Amendment, Harvard Law Review No. 83: 1969. 102 Reaffirming the right of all peoples, including the people of South Africa, to determine their own destiny and to work out for themselves the institutions and the system of government under which they will, by general consent, live and work together; Making these commitments because we believe that all people are equal and have equal rights to human dignity and respect, regardless of colour, race, sex or creed, that all men and women have the right and duty to participate in their own government, as equal members of society, and that no individual or group of individuals has any right to govern others without their democratic consent, and reiterating that the apartheid system violates all these fundamental and universal principles; Affirming that apartheid, characterized as a crime against the conscience and dignity of mankind, is responsible for the death of countless numbers of people in South Africa, has sought to dehumanize entire peoples and has imposed a brutal war on the region of southern Africa, which has resulted in untold loss of life, destruction of property and massive displacement of innocent men, women and children which is a scourge and affront to humanity that must be fought and eradicated in its entirety From United Nations, General Assembly, Resolution S-16/1, Declaration on Apartheid and its Destructive Consequences in Southern Africa, 14 December 1989. 103 United Nations General Assembly, Resolution S-16/1, Declaration on Apartheid and its Destructive Consequences in Southern Africa, 14 December 1989.

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Assembly to respond to suggestions and urges that the United Nations should take a stand against the practice.104 After 1960 the Security Council regularly condemned the practice of apartheid in South Africa, and in 1966 apartheid was stated to be a crime against humanity by the General Assembly.105 In 1984 the Security Council further endorsed the General Assembly Resolution of 1966.106 The preamble to the International Convention on the Suppression and Punishment of the Crime of Apartheid exhibits the close ties between colonialism and the need for justice therein, racism and discrimination, genocide and elements of the Universal Declaration of Human Rights (UDHR), such as dignity and equality, and the UN Charter fundamental human rights. Specifically, the Apartheid Convention recalls the provisions of the UN Charter in that all Members of the Organization (the UN) take joint and separate action in co-operation with the Organization for the achievement of universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language or religion. Moreover, the Apartheid Convention Preamble considers the UDHR and UN Charter in that all human beings are equal and free in dignity and rights and the Declaration on the Granting of Independence to Colonial Countries and Peoples in that in the interests of human dignity, progress and justice, an end must be put to colonialism and all practices of segregation and discrimination associated therewith. The Apartheid Convention Preamble also observes that the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) States particularly condemn racial segregation and apartheid and undertake to prevent, prohibit and eradicate all practices of this nature in territories under their jurisdiction. Lastly, the Apartheid Convention Preamble observes that in the Convention on the Prevention and Punishment of the Crime of Genocide certain acts which may also be qualified as acts of apartheid constitute a crime under international law.107 Article 1(1) of the Apartheid Convention declares apartheid a crime against humanity and that inhuman acts resulting from policies and practices of apartheid, segregation and discrimination are a violation of the principles of international law, in particular the purposes and principles of the Charter of the United Nations, and constituting a serious threat to international peace and security.108 Article 3(d) of the Apartheid Convention states that any measures, including legislative measures, designed to divide the population along racial lines by the creation of separate reserves and ghettos for the
104

The State of India first raised the issue of apartheid in South Africa at the UN General Assembly as early as 1946. Not until 30 January 1957 did the General Assembly adopt resolution 1016 (XI) on apartheid (by 56 votes to 5, 12 abstentions). 26 November 1957 the General Assembly adopted resolution 1178 (XII) on apartheid (59 votes to 6, 14 abstentions). Australia, Belgium and UK opposed keeping apartheid on the General Assembly agenda. Several other State Members, including the USA and Canada, questioned the propriety or desirability of adopting new resolutions on the matter. For the facts and more and a timeline concerning apartheid in South Africa and related action taken at and by the United Nations, see http://www.sahistory.org.za/topic/united-nations-and-apartheid-timeline-1946-1994. 105 See UN General Assembly, Resolution 2202 A (XXI), 16 December 1966. 106 UN Security Council, Resolution 556 (1984), October 1984. 107 International Convention on the Suppression and Punishment of the Crime of Apartheid, Adopted by the United Nations General Assembly on 30 November 1973, into force 18 July 1976. 108 International Convention on the Suppression and Punishment of the Crime of Apartheid, Adopted by the United Nations General Assembly on 30 November 1973, into force 18 July 1976.

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members of a racial group or groups and the expropriation of landed property belonging to a racial group or groups or to members thereof are acts of violation. ILO Forced Labor Convention of 1930 (No. 29) addressed the reality of Indigenous and Tribal Peoples in what is now Article 2(e) of the Apartheid Convention: exploitation of the labour of the members of a racial group or groups, in particular by submitting them to forced labour. However, these actions still occur with displacement of Indigenous Peoples for development of their lands, wherein they are forced to become laborers on those lands for the States or companies that grab the land for resource extraction, plantation use or other development purposes, thus altering the subsistence and landbased cultural and economic lifestyle of the Indigenous or Tribal People.109 Both Articles 2(a) and 2(f)110 of the Apartheid Convention can be applied as actions of apartheid that occur to Indigenous and Tribal Peoples by State actions against Indigenous and Tribal human rights defenders. Article 2(b)111 can be applied to assimilationist and relocation or removal policies used by States to separate Indigenous and Tribal Peoples from their traditional lands that they consider to be connected to their well-being, cultural survival, and individual and collective identities. Article 2(c)112 of the Apartheid Convention is especially pertinent to Indigenous Peoples at the international level concerning self-determination and access to political participation as nations equal to States, despite being culturally and thus politically diverse and different from States.
109

Interestingly, Robert A. Williams, Jr. explains that similar practices were committed through the British colonizing discourses against the subsistence-based Irish tribes: It is often assumed that European racism was the unfortunate by-product of European Discovery-era dynastic contact with non-European cultures. In examining Elizabethan Irish colonizing discourse, however, it appears that divergent cultural norms, particularly those preserved in subsistence tribalism, and not divergent pigmentation, energized in part Englands fierce subjugation of Irish tribes. The legal discourse articulated by the Elizabethans justifying the conquest and colonization of Irelands recalcitrant wild Gaelic peoples manifests a close structural affinity with the colonizing legal discourse relied on by the English crusaders in the New World justifying their brutal subjugation of the American Indians. From Willliams, Jr., Robert A., The American Indian in Western Legal Thought: The Discourses of Conquest, Oxford University Press, New York: 1990, p. 149150. 110 Article II. For the purpose of the present Convention, the term "the crime of apartheid", which shall include similar policies and practices of racial segregation and discrimination as practised in southern Africa, shall apply to the following inhuman acts committed for the purpose of establishing and maintaining domination by one racial group of persons over any other racial group of persons and systematically oppressing them: (a) denial to a member or members of a racial group or groups of the right to life and liberty of person: (i) by murder of members of a racial group or groups; (ii) by the infliction upon the members of a racial group or groups of serious bodily or mental harm, by the infringement of their freedom or dignity, or by subjecting them to torture or to cruel, inhuman or degrading treatment or punishment; (iii) by arbitrary arrest and illegal imprisonment of the members of a racial group or groups; (f) persecution of organizations and persons, by depriving them of fundamental rights and freedoms, because they oppose apartheid. 111 Apartheid Convention, Article 2(b): deliberate imposition on a racial group or groups of living conditions calculated to cause its or their physical destruction in whole or in part. 112 Apartheid Convention, Article 2(c): any legislative measures and other measures calculated to prevent a racial group or groups from participation in the political, social, economic and cultural life of the country and the deliberate creation of conditions preventing the full development of such a group or groups, in particular by denying to members of a racial group or groups basic human rights and freedoms, including the right to work, the right to form recognized trade unions, the right to education, the right to leave and to return to their country, the right to a nationality, the right to freedom of movement and residence, the right to freedom of opinion and expression, and the right to freedom of peaceful assembly and association.

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Indigenous and Tribal Peoples have been systematically violated collectively in regards to the fundamental right to self-determination, and due to this violation they have, for example, been violated by both States and business entities in regards to right to work in the context of traditional works and livelihoods that maintain Indigenous and Tribal Peoples culturally and also as families. Nomadic Peoples have been systematically denied their right to freedom of movement and residence by colonial borders maintained by States, inaccessibility of the right to decolonize due to false definitions of colonialism that do not include contiguous land bases, and decolonization that follows the principles of uti possidetis. Moreover, many Indigenous Peoples have been denied the right to traditional learning (education) through the calculated destruction of their cultures and lands via State policies, and as a result are no longer be able to educate their youth to traditional Indigenous and Tribal lifeways. All of these destructive methods of establishing racial and cultural superiority on the part of non-Indigenous States over Indigenous and Tribal Peoples have a genocidal effect that is aided by an international apartheid system stemming from industrialized development without self-determination, as will be discussed later in this thesis. The International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) Article 3 expresses States Parties particularly condemn racial segregation and apartheid and undertake to prevent, prohibit and eradicate all practices of this nature in territories under their jurisdiction.113 General Comment number 19 maintains that the obligation to eradicate all practices of this nature includes the obligation to eradicate the consequences of such practices undertaken or tolerated by previous Governments in the State or imposed by forces outside the State,114 meaning that residual systems of segregation and apartheid must be addressed and eliminated even if they are the result of previous or old regimes. For the purposes of this thesis, the CERD Committees comment can be applied to organizations such as the United Nations as it is made up of Member States, in addition to States governments, and must address issues of segregation that maintain an apartheid effect. In a 1971 ECOSOC report concerning measures and decisions taken to eliminate racial discrimination the following was stated about failures on the part of the United Nations to recognize apartheid and progress therein at the time:
The following were among the views expressed on the results of United Nations measures adopted on apartheid: (d) It was imperative to review the all too modest progress achieved in the action undertaken to combat racism in southern Africa and the distressing failures registered in the struggle against apartheid. This was attributed to three basic factors: (i) the economic, political and military interests of the major Western powers were the main reasons for the contradiction between the noble declarations made against the racist policy of the white minorities in southern Africa and the persistent violations of the decisions

113

International Convention on the Elimination of All Forms of Racial Discrimination, Adopted and opened for signature and ratification by the United Nations General Assembly, Resolution 2106 (XX) of 21 December 1965, entry into force 4 January 1969, in accordance with Article 19. 114 United Nations Committee of the International Convention on the Elimination of All Forms of Racial Discrimination (CERD), General Comment No. 19: Racial segregation / apartheid, 17 August 1995.

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taken at the international level; (ii) the illusion cherished by those who thought it possible to tone down the abhorrent nature of racial policy in southern Africa; and (iii) the failure to consider the struggle against apartheid in the context of the struggle of peoples for their political and economic independence and against colonialism and neo-colonialism.115

The same can be said for the struggle Indigenous Peoples experience at the State and international level in striving for political equality and collective self-determination, representation and dignity. Economic and security interests on the part of the States in the context of ultimate control over Indigenous lands, decision-making power and resources places Indigenous Peoples in a constant psychological and physical condition of needing to fight segregation in the context of internationally-conceptualized dignity. Thus, fittingly Additional Protocol I to the Geneva Conventions states in Article 4(c):
In addition to the grave breaches defined in the preceding paragraphs and in the Conventions, the following shall be regarded as grave breaches of this Protocol, when committed willfully and in violation of the Conventions or the Protocol: (c) practices of apartheid and other inhuman and degrading practices involving outrages upon personal dignity, based on racial discrimination;116

C. Cultural Genocide The psychological effects of continued mistreatment, discrimination racially and culturally, and from loss of land essential to individual and collective Indigenous identity caused by colonial efforts to eradicate Indigenous lifestyle via land-grabbing for the State and business have caused deep underlying tensions in Indigenous communities resulting in suicides, violence and addictions as well as loss of life and death of cultures. As Martinez-Cobo stated in his report, It is also essential to increase understanding of the profound sense of deprivation experienced by indigenous populations when the land to which they, as peoples, have been bound for thousands of years is taken away from them.117 While cultural genocide has not yet been codified into the international criminal law regime, it is not a new concept and its codification is legally supported by the Rights to Culture found in both the ICCPR and ICESCR. Article 27 of the International Covenant on Civil and Political Rights states that persons belonging to ethnic, religious or linguistic minorities shall not be "denied the right, in community with other members of their group, to enjoy their own culture, to profess and practice their own religion or to use their own language."
115

United Nations Commission on Human Rights, Report on the Twenty-Seventh Session (22 February 26 March 1971), Economic And Social Council Official Records: Fiftieth Session, Supplement No. 4, para. 71. 116 Protocol Additional to the Geneva Conventions of 12 Aug. 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977. 117 United Nations ECOSOC, UN Commission on Human Rights, Final Report (last part) submitted by the Special Rapporteur, Mr. Jose R. Martinez Cobo Sub-commission on prevention of discrimination and protection of minorities, Item II of the provisional agenda, Study of the Problem of Discrimination Against Indigenous Populations, 30 September 1983.

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The importance of examining the realities of cultural genocide, despite not having been included in the final UN Genocide Convention or the final version of the UNDRIP as a result of State negotiations,118 is that cultural genocide, whether or not it is currently codified by the powers that determine international law, exists for its Indigenous and Tribal victims. Cultural genocide exists for the Indigenous and Tribal Peoples experiencing it and for the world as it loses those peoples and their cultures on this planet. Cultural Genocide of Indigenous Peoples is and has been occurring in many forms, including the death of traditional Indigenous and Tribal cultures themselves, save for museums and show (versus as ways of life), and in internalized genocide through high suicide rates and other self-destructive actions such as addictions, crime and abuse.119 The racism that permits for the cultural genocide of Indigenous Peoples can be seen at the UN level as expressed by State representatives. For example, on 20 February 2012 the CERD Committee during informal meetings with NGOs addressed reports, comments and information submitted by States parties under Article 9 of the ICERD. Mr. Thornberry of the Committee made notice of a particularly telling prevalent racist attitude towards Indigenous Peoples worldwide, and in this instance in the context of social attitudes in the State of Mexico:
[Mr. Thornberry] had been struck by the statement in paragraph 14 of the State partys report that one third of the respondents in a national survey thought that the only thing that indigenous people needed to do to escape from poverty was not to behave like indigenous people.120

Moreover, the complex racist and discriminatory linkage made by States in considering definitions of poverty, or wealth criteria based on a State culture of neo-colonial market systems and industrial economies, and Indigenous and Tribal ways of life is exhibited clearly in such statements made by State representatives at the UN. When Indigenous Peoples continue to be subjugated by the UN governing body itself via Membership criteria, Indigenous Peoples are dispossessed of the political bargaining power to renegotiate those definitions and prejudices in a self-determining manner and through legal codification and remedies of their own creation,121 so as to eradicate the cultural genocide being inflicted upon them through political and cultural discrimination.
118

Coelho, Raquel Faria Pinto, Cultural genocide and the conservative approach of the genocide convention, Juiz de Fora, Vol. 2, No. 1 and 2: January 2008. 119 Comparatively, in Robert Costellos review of Mass Incarceration is the New Jim Crow, by Michelle Alexander, Costello states The cumulative social, physical, political, and psychological impact of the current incarceration rate is no different or less harmful than that of slavery., see Costello, Robert, The New Jim Crow: Mass Incarceration in the Age of Colorblindness, Crime, Law and Social Change, Vol. 55: 2011, p. 54. 120 United Nations Committee on the Elimination of Racial Discrimination (CERD), Summary record of the 2128th meeting (held at the Palais Wilson, Geneva, on Tuesday, 14 February 2012, at 10 a.m. Chairperson: Mr. Avtonomov), Contents: Consideration of reports, comments and information submitted by States parties under article 9 of the Convention: Informal meetings with NGOs, Eightieth session, 20 February 2012, para. 26. 121 Taiaiake Alfred addresses the importance of legal pluralism in his article Sovereignty, But the state is not going to release its grip on power so easily. The traditional values of indigenous peoples constitute

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The history of the forced removal of Indigenous children from their families in States like the United States, Canada, Scandinavian States and Australia is now well known and acknowledged by both States and the mainstream. The passage below from an article published in the journal Australasian Psychiatry details a vast array of discriminatory and oppressive administration and policy maneuvers on the part of the State of Canada that have caused mental health problems leading to high suicide rates in Aboriginal Nations:
By the 1970s, approximately one in four status Indians could expect to be separated from his or her parents; rough estimates on the rates of non-status and Mtis children apprehended from their families show that one in three could expect to spend their childhood as a legal ward of the state. The large scale apprehension of Aboriginal children from the family, community and cultural context via the residential school system and the Sixties Scoop has had damaging consequences for individuals and communities. Much like former residential school students, who often returned to their communities in a culturally betwixt and between state, Aboriginal children relegated to the care of the state or non-Aboriginal families have experienced problems of identity and self-esteem growing up on the margins of two worlds. Physical and sexual abuse, emotional neglect, internalised racism, language loss, substance abuse and suicide are common in their stories. The intense governmental surveillance and control of the lives of Aboriginal peoples in Canada was mandated and institutionalised by federal Indian policy. The Indian Act (1876) is the most comprehensive piece of federal legislation directed towards the management of Aboriginal peoples in Canada. Although established over a century ago, this document continues to play an integral role in the lives and juridical identities of Aboriginal peoples. The Indian Act defines Aboriginal peoples as Crown wards, subjects for whom the state has a responsibility to provide care. The broad application of the Act has ranged from prohibiting participation in cultural activities such as the potlatch and the sun dance, restricting movement through the application of the pass system, to creating social categories of identity such as status and non-status Indians and exempting status Indians from taxation.122

Important to note, amongst other things discussed in the passage above, are the mention of the States control over social categories of identity such as status and non-status Indians and the non-self-determining situation of being a Crown ward. Not only are these situations discriminatory and lead to mental oppression and cultural genocide, but
knowledge that directly threatens the monopoly on power currently enjoyed by the state. Struggle lies ahead. Yet there is real hope for moving beyond the intellectual violence of the state in a concept of legal pluralism emerging out of the critiques and reflected in the limited recognition afforded indigenous conceptions in recent legal argumentation. In a basic sense, these shifts reflect what many indigenous people have been saying all along: respect for others is a necessary precondition to peace and justice. From Alfred, Taiaiake, Sovereignty, in Barker, Joanne, Ed., Sovereignty Matters: Locations of Contestation and Possibility in Indigenous Struggles for Self-Determination, University of Nebraska Press, Lincoln: 2005, p. 48.
122

Kirmayer, L., Simpson, C., and Cargo, M., Healing traditions: culture, community and mental health promotion with Canadian Aboriginal peoples, Australasian Psychiatry, Vol. 11 Supplement: 2003, p. S17.

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these laws of the State are not compatible with a people being self-governing as per UN decolonization and friendly relations mandates. Continuing in the examination of the cultural genocide past and present of Indigenous Peoples, youth author Sarah Koi describes below her own experience of internalized discrimination and trauma that has resulted from State control over Indigenous identity, forced assimilation and boarding schools:
The intergenerational trauma of Residential School and the breakdown of family left an open wound that riddled my bloodline with addiction, abuse and sickness. [My mother] died from an overdose in 1995; I never got to meet her. Im not quite sure if I was taken or given up at birth. Either way, my biological mother could not care for me, thus I was adopted into a European family. This is my story as a colonized Cree. Around age 14 I began to lie about my identity. I would tell people that I was Portuguese or Hispanic. I even dyed my hair blonde and put blue contact lenses in. Looking back at that time in my life, I realize this self-hatred was the intergenerational effects of my Native history and policies of assimilation. To kill in the Indian in the child; this is exactly what I was doing to myself, and sadly no one stopped me.123

The forced assimilationist boarding schools have been (and in some cases still are, often in the name of development) mandated for Indigenous and Tribal Peoples by both wealthy and poor/developing Nation-States alike, and this alongside the external control over Indigenous identity has dictated cultural and political decimation of Indigenous and Tribal People. In the text Genocide and Crimes Against Humanity it can be interpreted that Erica-Irene Daes states that cultural decimation, the death of old customs, can be labeled as cultural genocide:
At the end of a half-century under Spanish rule, the peoples of the Aztec and Inca empires had undergone devastating cultural as well as numerical decimation. Ancient ceremonies of birth, marriage, and death disappeared. Old customs died. A cultural genocide was committed.124

Daes also gives mention to the fact that comparatively high suicide rates amongst Indigenous peoples are amongst the results of policies of dominant non-indigenous societies.125
123 124

Koi, Sarah, Change Happens, http://www.lastrealindians.com/: 6 July 2012 Erica-Irene A. Daes, Source: Cengage, Gale, Genocide and Crimes Against Humanity, Eds. Dinah L. Shelton, Thomson Gale, Encyclopedia of Genocide and Crimes Against Humanity, Michigan USA: 2005. 125 There are disturbing contemporary studies of indigenous communities in the Arctic and Sub-Arctic regions that identify a social pathology which threatens to destroy life there: family violence, alcoholism, and a high suicide rate among young people, with most victims being in their teens and early twenties. This is the tragic outcome of the policies pursued by dominant non-indigenous societies for many years. Certain governments and their economic, social, and educational institutions, as well as some missionaries and clergy, have made every effort to destroy indigenous languages, cultures, customs, and traditions. Despite this history, Native peoples remain in the New World. From Erica-Irene A. Daes, Source: Cengage, Gale, Genocide and Crimes Against Humanity, Eds. Dinah L. Shelton, Thomson Gale, Encyclopedia of Genocide and Crimes Against Humanity, Michigan USA: 2005.

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Many attempts have been made by Indigenous Peoples through the years to communicate with the international human rights and legal regimes, in both Indigenous cultural language and UN language, to express the ongoing experienced genocide of Indigenous Peoples and their need to be self-determining and self-representing. However, exclusion from being treated as truly self-determining Nations from the very international institution meant to promote and protect human rights forces Indigenous Peoples to access the United Nations through the institutionalized backdoor or side doors for attempted negotiations, influence, international decision-making, codification of criminal law (including cultural genocide) and self-determination, due to a segregated UN political Membership criteria. For example, the League of Indigenous Sovereign Nations of the Western Hemisphere Draft Declaration of Principles of 1991 states:
Considering that indigenous sovereignty, self-determination, land rights, and human rights present non-negotiable conflicts which stand in the way of meaningful growth in life and will not be resolved until the demands, needs, and natural rights of indigenous peoples are recognized, addressed, and implemented; Affirming the Universal Declaration of Human Rights, and related covenants, as well as the Declaration of Principles for the Defense of the Indigenous Nations and Peoples of the Western Hemisphere, and the Declaration of Quito; Recognizing that no proper channels now exist to address the issues of concern to indigenous peoples, and that most of the world has absolutely no knowledge of the forces of genocide we still confront each day126

Jose Martinez-Cobo submitted a UN-mandated study entitled Study of the Problem of Discrimination Against Indigenous Populations in 1983 to ECOSOC. Martinez-Cobos study contained many findings that continue to be relevant issues today. In fact, not much has changed. Martinez-Cobo raised the issue of cultural genocide in the context of the problem of governments accepting those Indigenous Peoples who abandon their cultures while promoting discrimination against those who preserve their customs and traditions:
Sometimes Governments are pleased to accept those who abandon their distinctive culture, while at the same time allowing or promoting discrimination against those who insist on preserving and even developing their own customs, practices and traditions. Where such measures may be describes as deliberately designed to eliminate a groups culture by acts of systematic destruction and obstruction, they might even be regarded as constituting clear cases of ethnocide or cultural genocide.127

Along these lines, Inter-American system has explained that failure to secure rights of Indigenous Peoples to ancestral territories can result in the failure to protect the life of an Indigenous community and persons.128
126

League of Indigenous Sovereign Nations of the Western Hemisphere, Draft Declaration of Principles, 24 -27 May 1991. 127 United Nations ECOSOC, UN Commission on Human Rights, Final Report (last part) submitted by the Special Rapporteur, Mr. Jose R. Martinez Cobo, Sub-commission on prevention of discrimination and protection of minorities, Item II of the provisional agenda, Study of the Problem of Discrimination Against Indigenous Populations, 30 September 1983, para. 136. 128 A. The Right to Life: 154. The life of members of indigenous and tribal communities fundamentally

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In fact, the United Nations maintains two positions within its organization, the Special Adviser on the Prevention of Genocide and the Special Adviser on the Responsibility to Protect, who should bring attention to the genocide that is occurring to Indigenous Peoples and the relevance of cultural genocide in criminal law for Indigenous Communities and persons, as well as the political element, i.e. political segregation biasing Statehood and UN Membership criteria therein, in the lack of acknowledgement of the cultural genocide of Indigenous Peoples and its resulting continuation.129 Moreover, the persons holding these positions have the duty to examine and report on the situation of Indigenous Peoples and colonial policy as war and aggression. Issues concerning current UN definitions of war and aggression and their relevance to the situations of Indigenous Peoples under colonial and political domination are discussed in the section Redefining War and Conflict of this thesis. I. High Indigenous Suicide Rates Many Indigenous peoples politically contained within developed States such as the United States, Canada, Sweden, Norway, Australia, New Zealand and Brazil exhibit the highest suicide rates of those States, with an exceptionally high rate of male youth suicides.130 From a clinical perspective, for all populations depression and suicide have
depends on the subsistence activities agriculture, hunting, fishing, gathering that they carry out in their territories including continued utilization of traditional collective systems that are in many instances essential to the individual and collective well-being, and indeed the survival of, indigenous peoples. The failure of the State to guarantee indigenous communities right to ancestral territory can imply a failure to comply with the duty to secure the life of their members; such was the case of the Yakye Axa community: the State, by not ensuring the right of the Community to its ancestral territory, has failed to comply with its duty to guarantee the life of its members, as it has deprived the Community of its traditional means of subsistence, forcing it to survive under appalling conditions and leaving it at the mercy of State assistance. The State violates article 4.1 of the American Convention in relation to article 1.1, when it does not adopt the necessary positive measures within its powers, which could reasonably be expected to prevent or avoid risking the right to life of the members of [an indigenous community].. From the Organization of American States (OAS) Inter-American Commission on Human Rights, Indigenous and Tribal Peoples Rights Over Their Ancestral Lands and Natural Resources: Norms and Jurisprudence of the Inter-American Human Rights System, 30 December 2009. 129 The Special Adviser on the Prevention of Genocide acts as a catalyst to raise awareness of the causes and dynamics of genocide, to alert relevant actors where there is a risk of genocide, and to advocate and mobilize for appropriate action. The Special Adviser on the Responsibility to Protect leads the conceptual, political, institutional and operational development of the Responsibility to Protect. The mandates of the two Special Advisers are distinct but complementary. The efforts of their Office include alerting relevant actors to the risk of genocide, war crimes, ethnic cleansing and crimes against humanity, enhancing the capacity of the United Nations to prevent these crimes, including their incitement, and working with Member States, regional and sub-regional arrangements, and civil society to develop more effective means of response when they do occur., from the website of the UN Office of the Special Adviser on the Prevention of Genocide, http://www.un.org/en/preventgenocide/adviser/. 130 Indigenous youth suicide incidence is high globally. Most of these suicides involve young males. This is the case for Australia, New Zealand, Brazil, Pacific Islanders, Peru, Guam, Micronesia, Canada, and the United States. It is also high among circumpolar indigenous youth from Siberia, Alaska, Arctic Canada, Greenland, and northern Norway. From Kral, Michael J., Postcolonial Suicide Among Inuit in Arctic

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been linked to discrimination as well as access to resources: Negative social interactions, including discrimination, have been linked to elevated mortality rates, potentially through adverse effects on mental and physical health as well as decreased access to resources.131 In Indigenous Suicide in Australia, New Zealand, Canada and the United States Ernest Hunter and Desley Harvey connect colonial settler authority-based relations past and present to current high rates of suicides, crime, addiction and abuse in Indigenous Communities:
suicide and self-injury among Aboriginal people are the result of a complex mix of social, cultural, economic and psychological dislocations that flow from the past into the present. The root causes of these dislocations lie in the history of colonial relations between Aboriginal peoples and the authorities and settlers who went on to establish Canada, and in the distortion of Aboriginal lives that resulted from that history. We have also concluded that suicide is one of a group of symptoms, ranging from truancy and law breaking to alcohol and drug abuse and family violence, that are in large part interchangeable as expressions of the burden of loss, grief and anger experienced by Aboriginal people in Canadian society.132

Lars Jacobsson, Swedish psychiatrist, expert on suicide, and researcher concerning high Indigenous Sami suicide rates in Sweden and Norway, explains simply that life situations that lead persons to suicide, not a lack of will to live.133 Researcher Jessica Lusk explains that American Indian and Alaska Native (AIAN) youth share common historical factors that include the experience of genocide by States and status as a colonized people, resulting in a shared historical trauma that puts AIAN at risk for developmental issues concerning suicide and mental health:
Although AIAN consist of diverse tribal communities/nations with specific languages and cultural practices, they share common historical factors including a history of genocide and ethnic cleansing policies (e.g. boarding schools, forced relocations). General theoretical models of risk do not address what influence these specific factors may have on youth developmental outcomes. The proposed theoretical model hypothesizes that the disparities in mental health outcomes found among AIAN youth cannot be fully understood without identifying and

Canada, Culture, Medicine and Psychiatry, Vol. 36: 2012, p. 306-307 (see original text for additional references to documentation for each region). 131 Sandro Galea, MD, DrPH, Melissa Tracy, MPH, Katherine J. Hoggatt, PhD, Charles DiMaggio, PhD, and Adam Karpati, MD, MPH, Estimated Deaths Attributable to Social Factors in the United States, American Journal of Public Health, Vol. 101, No. 8: August 2011, p. 1456. 132 Hunter, Ernest and Harvey, Desley (North Queensland Health Equalities Promotion Unit, School of Population Health, University of Queensland, Cairns, Australia), Indigenous Suicide in Australia, New Zealand, Canada and the United States, in Emergency Medicine: Suicide Prevention Series, Vol. 14: 2002, p. 16, Referencing Royal Commission on Aboriginal Peoples, Choosing Life: Special Report on Suicide among Aboriginal People, Royal Commission on Aboriginal Peoples, Ottawa:1995, p. 2). 133 suicide is usually the consequence of a life situation that is experienced as impossible to deal with. Individuals who finally commit suicide do that not because they dont want to live, but because they cannot stand the situation in which they live., quote from Jacobsson, Lars, Living in conflict talks within reindeer herding Sami in southern Swedish Spmi with special reference to psychosocial conditions, in Eds. Stoor, Krister and Skld, Peter, Rivers to Cross: Sami Landuse and the Human Dimension, Ume University Press, Sweden: In press (2012).

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addressing those specific risk factors resulting from this shared history, and status as a colonized people.134

In her analysis Lusk provides evidence that the death of traditional cultural as well as the death of youth and other Indigenous community members via suicide, addiction and abuse resulting from historical trauma share a root cause of colonial tactics and dependency relationships with the State. These colonial relationships are the result of a non-self-governing and non-self-determining status of Indigenous Peoples as dictated by the State. A group of researchers produced the study Estimated Deaths Attributable to Social Factors in the United States in August 2011. The study was not specifically aimed at Indigenous Peoples, it was an overview of all persons of the State. In this study the researchers took an approach to understanding death and health that can be seen to be more Indigenous in that it examines the social relationships between the two in the context of social factors. The results confirm that the number of deaths that can be attributed to racial segregation and low social support, separately, are equal to some of the most prolific causes of death from a pathophysiological perspective. Moreover, the researchers make note that because stress can be one of the largest determining factors in pathophysiologically-diagnosed illnesses and death, the numbers for deaths resulting from the stressors of racial segregation and low social support can be attributed to even more deaths than the researchers have directly analyzed and calculated.135 The evidence
134

Lusk, Jessica, Influence of Historical Trauma on Developmental Pathways for American Indian and Alaska Native Youth, The McNair Scholars Journal of the University of Washington, McNair Program Office of Minority Affairs & Diversity, Volume XI: Spring 2012, p. 145. Lusk details that status as a colonized people leads to high suicide rates for AIAN youth on p. 146-147: Historical Trauma and Exosystemic Risks for AIAN (American Indian and Alaska Native) Youth: For AIAN youth, forced relocations and ethnic cleansing policies profoundly disrupted community functioning resulting in an ongoing trauma that continues to influence exosystemic factors. Reservations originally operated similar to large concentration camps or penal colonies by restricting the rights of residences and imposing poverty. The trauma ensuing from this cultural discontinuity continues to influence the functioning of social relationships, practices, and institutions within AIAN communities, resulting in HT [historical trauma] being embedded within the context of community. The interaction between HT and the functioning of communities exacerbates the effects of exosystemic risks towards community violence, and subsequently increases the likelihood of the development of depression and substance use in AIAN youth. In addition to dramatically changing social norms forced relocations also eradicated traditional ways and means of survival by forcing AIAN to move to geographically isolated areas that often had little productive land value, and no economic value to Europeans. As a result AIAN were unable to rely on traditional knowledge, unable to survive on the land they now occupied, and became dependent on the government for food, shelter, and healthcare. The resulting trauma (e.g. HT) ensuing from this dramatic disruption in ways of sustainability interacts with current exosystemic risks towards the development of substance use and depression in youth, and exacerbates their effects. 135 The researchers write, We found that in 2000, approximately 245,000 deaths in the United States were attributable to low education, 176,000 to racial segregation, 162,000 to low social support, 133,000 to individual-level poverty, 119,000 to income inequality, and 39000 to area-level poverty. These mortality estimates are comparable to deaths from the leading pathophysiological causes The number of deaths attributable to racial segregation is comparable to the number from cerebrovascular disease (167,661), the third leading cause of death in 2000, and the number attributable to low social support is comparable to deaths from lung cancer (155,521). stress processes may also mediate the relation between other nonsocial factors and mortality, so we might have underestimated the contribution of social factors to

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from the researchers raise the question in the context of this thesis: how many deaths have been caused by the segregation of Indigenous Peoples at the UN via State-exclusive Membership? One can include, in the hypothetical analysis, that a large number of deaths result only a few times removed from the lack of political and legal power of Indigenous Peoples due to UN political segregation and the resulting lack of power to self-determine. Considering the excerpt below, one must keep in mind in the context of old and new historical trauma, community health and colonialism/colonial State-biasing systems, what current traumas are being produced and reproduced by the political segregation of Indigenous Peoples at the UN via Membership criteria and subjugation of Indigenous Peoples and their traditional leaders therein: Recent epidemiological studies indicate significant mental health disparities
among American Indian and Alaska Native (AIAN) youth including higher rates of substance abuse, mood disorders, and suicides compared to peers from other ethnic groups. While these findings can paint a bleak picture for AIAN youth, these data need to be understood within the broader socio-environmental context of AIAN communities. AIAN communities have endured a long history of past injustices and traumatic genocidal events (e.g. historical trauma). Furthermore, they face present day adversities such as societal marginalization, inequities, and traumas. Indigenous scholars have widely accepted that these salient social and contextual factors play a contributing role in the continuance of mental health disparities for AIAN... We propose that historical trauma contributes to adolescent depression and substance abuse by influencing exposure to violence, maternal depression, and parental and family monitoring and support systems.136

Equally problematic is the fact that these psychosocial factors in AIAN and Indigenous mental health in colonial Nation-States have been understood and documented by mainstream mental health researchers for many years,137 and yet States still circumvent
mortality in the United States. This analysis suggests that, within a multifactorial framework, social causes can be linked to death as readily as can pathophysiological and behavioral causes. All of these factors contribute substantially to the burden of disease in the United States, and all need focused research efforts and public health efforts to mitigate their consequences., from Galea, MD, DrPH, Sandro, Tracy, MPH Melissa, Hoggatt, PhD, Katherine J., DiMaggio, PhD, Charles, and Karpati, MD, MPH, Adam, Estimated Deaths Attributable to Social Factors in the United States, American Journal of Public Health, Vol. 101, No. 8: August 2011, p. 1462. 136 Lusk, Jessica, Influence of Historical Trauma on Developmental Pathways for American Indian and Alaska Native Youth, The McNair Scholars Journal of the University of Washington, McNair Program Office of Minority Affairs & Diversity, Volume XI: Spring 2012, p. 141. 137 For example (two examples): 1. The interconnected issues of cultural dislocation, personal trauma and the ongoing stresses of disadvantage, racism, alienation and exclusion were all acknowledged by the Commission [Royal Commission into Aboriginal Death in Custody (RCIADIC, 1991)] as contributing to the heightened risk of mental health problems, substance misuse and suicide. from Silburn, Sven; Glaskin, Belle; Henry, Darrell and Drew, Neil, Preventing Suicide among Indigenous Australians, in Eds. Purdie, N.; Dudgeon, P., & Walker, R., Working together: Aboriginal and Torres Strait Islander mental health and wellbeing principles and practice, Canberra, ACT: Dept of Health and Ageing: 2010, p. 95, discussing RCIADIC (Royal Commission into Aboriginal Deaths in Custody). (1991). Final report. Canberra: AGPS; 2. Researchers began assessing prevalence rates for mental health problems among AIAN youth approximately 20 years ago., from Lusk, Jessica, Influence of Historical Trauma on Developmental Pathways for American Indian and Alaska Native Youth, The McNair Scholars Journal of the University of Washington, McNair Program Office of Minority Affairs & Diversity, Volume XI: Spring 2012, p. 142.

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international law that dictates a State must report non-self-governing territories and colonialism to the United Nations as a protection and promotion of the human right to dignity, peoples self-determination, and all the human rights that result from selfdetermination, such as those human rights in the ICCPR and ICESCR. The failure by both States and the United Nations to equally recognize and remedy the colonial, non(truly)self-governing, non-(truly)self-determining relationships between States and Indigenous Nations directly affects Native health, including suicide attempts - and the situation is worsening.138 As Chief Jean-Charles Pitacho of the Mingan First Nation has been documented in 1995 to submit to the Canadian Royal Commission on Aboriginal Peoples:
Collective despair, or collective lack of hope, will lead us to collective suicide. This type of suicide can take many forms, foreshadowed by many possible signs: identity crisis, loss of pride, every kind of dependence, denial of our customs and traditions, degradation of our environment, weakening of our language, abandonment of our struggle for our Aboriginal rights, our autonomy and our culture, uncaring acceptance of violence, passive acknowledgement of lack of work and unemployment, corruption of our morals, tolerance of drugs and idleness, parental surrendering of responsibilities, lack of respect for elders, envy of those who try to keep their heads up and who might succeed, and so on.139

The following excerpts further exhibit the deaths and cultural genocide caused by the State-Indigenous colonial relationship. The first excerpt, from Healing traditions: culture, community and mental health promotion with Canadian Aboriginal peoples, explains historical and cultural contexts of trauma:
The origins of the high rates of mental health and social problems in Aboriginal

138

Whitbeck et al., (2006) conducted a large longitudinal study of youth from a single Midwest tribe results revealed consistently higher rates of disorders among similar aged AIAN youth (e. g.10-12 years) than those reported over a decade ago. Results showed rates of substance abuse, behavioral disorders, and depressive symptoms were roughly twice that of those reported in the GSMS [Great Smokey Mountains Study] In addition to having higher rates of depression and substance use disorders, AIAN youth have disproportionately higher rates of suicide, with rates reported to be three to seven times higher than that of their non-Native peers A study examining racial and ethnic differences in rates of suicidal behaviors among adolescents found that AIAN males had the highest incidents of suicide, and rates of non-lethal suicide attempts were highest among AIAN females. While epidemiological findings can paint a pretty bleak picture for AIAN youth, these data need to be understood within the broader socio-historical and environmental context of AIAN communities. Failure to recognize the colonized position of AIAN while interpreting epidemiological findings could lead to a misinterpretation of the causes of mental health disparities., from Lusk, Jessica, Influence of Historical Trauma on Developmental Pathways for American Indian and Alaska Native Youth, The McNair Scholars Journal of the University of Washington, McNair Program Office of Minority Affairs & Diversity, Volume XI: Spring 2012, p. 142143. 139 Hunter, Ernest and Harvey, Desley (North Queensland Health Equalities Promotion Unit, School of Population Health, University of Queensland, Cairns, Australia), Indigenous Suicide in Australia, New Zealand, Canada and the United States, in Emergency Medicine: Suicide Prevention Series, Vol. 14: 2002, p. 14, Referencing Chief Jean-Charles Pitacho of the Mingan First Nation, given in submission to the Canadian Royal Commission on Aboriginal Peoples (to be found in the Royal Commission on Aboriginal Peoples Choosing Life: Special Report on Suicide among Aboriginal People Ottawa: Royal Commission on Aboriginal Peoples: 1995, p. 38.

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communities are not hard to discern. Aboriginal peoples in Canada have faced cultural oppression through policies of forced assimilation on the part of Euro Canadian institutions since the earliest periods of contact. Early missionary activities focused on saving heathen souls by religious conversion. In many cases, this involved suppression or subversion of existing religious beliefs and practices that were integral to subsistence activities and the structure of families and communities.140

The second excerpt consists of informative statements provided by the Australian Government's Mindframe National Media Initiative concerning recent Indigenous suicides:
Suicide and self-harming behaviours were not part of traditional Aboriginal and Torres Strait Islander culture, prior to contact with Europeans. However, suicide and self-harm now occur more frequently in these communities than among other Australians Death rates from suicide for Aboriginal and Torres Strait Islander males and females are over twice the rate for other Australian males and almost twice the rate for other Australian females. Intentional self-harm was the leading cause of death from external causes for Indigenous males for the 20012005 year period. The suicide rate was almost three times that for nonIndigenous males, with the major differences occurring in younger age groups. For Indigenous males aged 0-24 years and 25-34 years, the age-specific rates were three and four times the corresponding age-specific rates for nonIndigenous males respectively From 2001-2005, the suicide rate for Indigenous females aged 0-24 years was five times the corresponding agespecific rates for non-Indigenous female. 141

In an examination of the effects of cultural genocide, colonialism, racism and exclusion and State-suppressed Indigenous self-determination, suicide rates, alongside other methods of self-destruction, or internalized violence, cannot be ignored. II. Mining, Land-Grabbing and Resource Exploitation In the recent Indigenous Kari-Oca Declaration, produced parallel to the UN Rio+20 Conference by Indigenous representatives not included in the UN Conference itself,
140

Kirmayer, Laurence; Simpson, Cori and Cargo, Margaret, Healing traditions: culture, community and mental health promotion with Canadian Aboriginal peoples, Australasian Psychiatry, Vol. 11 Supplement: 2003, p. S16. 141 Mindframe, the companion website to the Australian Government's Mindframe National Media Initiative in Australia, http://www.mindframe-media.info. References include: Zubrick, S. R., Silburn, S. R., Lawrence, D. M., Mitrou, F. G., Dalby, R. B., Blair, E. M., Griffin, J., Milroy, H., De Maio, J. A., Cox, A., and Li, J. The Western Australian Aboriginal Child Health Survey: The social and emotional wellbeing of Aboriginal children and young people, Curtin University of Technology and Telethon Institute for Child Health Research, Perth, 2005; Australian Bureau of Statistics & Australian Institute of Health and Welfare (2010) The Health and Welfare of Australia's Aboriginal and Torres Strait Islander Peoples, Oct 2010, ABS Cat. No 4704. Canberra, ACT: Commonwealth of Australia; the Australian Bureau of Statistics, Causes of Death Australia, 2009, Cat. 3303.0, 3 May 2011; Centre for Mental Health, New South Wales Health Department, NSW Aboriginal Mental Health Policy. A Strategy for the delivery of mental health services for Aboriginal people in New South Wales, Sydney, 1997.

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Indigenous leaders proclaimed both their right to self-determination and their connection with their traditional lands and territories:
As peoples, we reaffirm our rights to self-determination and to own, control and manage our traditional lands and territories, waters and other resources. Our lands and territories are at the core of our existence we are the land and the land is us; we have a distinct spiritual and material relationship with our lands and territories and they are inextricably linked to our survival and to the preservation and further development of our knowledge systems and cultures, conservation and sustainable use of biodiversity and ecosystem management.142

These traditional lands and territories are under well-known and well-documented threat and exploitation by outsider- and State-funded mining and land-grabbing without Indigenous free, prior and informed consent (FPIC). The implementation occurs through systems of colonial-State policies that strip Indigenous Peoples of their rights and selfdetermination. Due to not being Members at the UN as the World leaders that they are, traditional and elected Indigenous and Tribal leaders cannot have an equal role in developing the world legal structures or access to remedy. Moreover, non-State Indigenous and Tribal leaders cannot utilize the Security Council or influence the General Assembly directly on these issues as Indigenous Peoples self-determining Members. However, the General Assembly has stated that subverting the rights of colonized peoples on the part of an administering State power for economic and financial interests is a violation under Chapters XI and XII of the UN Charter.143 The permitting of mining and other land-grabbing and resource extraction by State and outsider and business interests without the free, prior and informed consent of Indigenous Peoples causes cultural genocide through the death of the culture as it is connected to the land. Sacred places of prayer closely dependent on the sustainable Indigenous cultural lifeways along with subsistence living, traditional medicines, and generational traditional housing, family traditions, and traditional foods and communities are all under threat when the land they depend on is under threat. The very life of the culture as well as the lives of the Peoples are endangered in what they experience to be attacks for their land
142

Kari-Oca 2 Declaration, Indigenous Peoples Global Conference On Rio+20 And Mother Earth, KariOka Village, at Sacred Kari-Oka Pku, Rio de Janeiro, Brazil, 17 June 2012. 143 The General Assembly has declared that any administering Power, by depriving the colonial peoples of the exercise of their rights, or by subordinating them to foreign economic and financial interests, violates the obligations it has assumed under Chapters XI and XII of the Charter of the United Nations. It has condemned the activities and operating methods of those foreign economic and other interests in the Territories under colonial domination which are designed to perpetuate the subjugation of dependent peoples; deplored the support given by the colonial Powers and other States to those foreign economic and other interests engaged in exploiting the natural and human resources of the Territories without regard to the welfare of the indigenous peoples and obstructing the full and speedy implementation of the Declaration in respect of those territories, and called upon the colonial Powers to review, in accordance with the provisions of the resolution, all the privileges and concessions which are against the interests of the indigenous inhabitants. by Cristescu, Aureliu, UN Special Rapporteur of the Sub-Commission on Prevention of Discrimination and Protection of Minorities, The Right to Self-Determination Historical and Current Development on The Basis Of United Nations Instruments, United Nations, New York, 1981, para. 336. See General Assembly resolutions 2288 (XXII), 2425 (XXIII), 2554 (XXIV), 2873 (XXVI), 2279 (XXVII), 3117 (XXVIII), 3299 (XXIX) and 3398 (XXX).

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and resources by colonial societies that are dependent on industrialized lifeways of excess materialism and consumerism and, as a result, excess use of resources. For Indigenous Peoples living under the threat and reality of externally imposed mines and other landgrabbing that destroys their cultures, communities and identities as well as other lifesustaining needs is an experience of being forced into war. Additional Protocol I to the Geneva Conventions states in Article 4(d):
In addition to the grave breaches defined in the preceding paragraphs and in the Conventions, the following shall be regarded as grave breaches of this Protocol, when committed willfully and in violation of the Conventions or the Protocol: (d) making the clearly-recognized historic monuments, works of art or places of worship which constitute the cultural or spiritual heritage of peoples and to which special protection has been given by special arrangement, for example, within the framework of a competent international organization, the object of attack, causing as a result extensive destruction thereof...144

In fact, one does not have to look only to the silent war on traditional Indigenous and Tribal lifeways and lands by State-permitted colonial business interests that sustain a developed world of excess. Actual genocide and cultural genocide is occurring through State militarization of colonized Indigenous territories. From the mineral-rich, Indigenous Adivasi Red Corridor and the State militarys Operation Green Hunt in India, to the presence of Freeport McMoRan and the Indonesian KOPASSUS in West Papua, to everincreasing FBI presence and mining in the territories of Native American reservations and State-permitted non-native destructive land use on traditional sacred Native sites,145 one can see that State-sponsored or State-permitted mining in Indigenous and Tribal lands without tribes free, prior and informed consent and with the maintaining of a trust or dependent relationship is in fact being enacted through heavy application of the State military occupation and violence. As a result, amongst other violations the State is committing, the right to Indigenous and Tribal control over traditional Indigenous and Tribal resources via self-determination is being violated. Erica-Irene Daes references a 1955 report of the UN Secretary-General concerning this distinction of interpretation:
1955 report of the Secretary-General. In describing the debates surrounding the drafting of common article 1, he noted that while delegates made reference to the concerns stated above, it was also acknowledged that the right of selfdetermination certainly included the simple and elementary principle that a nation or people should be master of its own natural wealth or resource, and therefore the proposed language was not intended to frighten off foreign investment by a threat of expropriation or confiscation; it was intended rather to warn against such foreign exploitation as might result in depriving the local population of its own means of subsistence.146

144

Additional Protocol to the Geneva Conventions of 12 Aug. 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977. 145 For example, see Sacred Sites: Groups Continue to Call for Action on San Francisco Peaks, Indian Country Today Media Network, 17 June 2012. 146 Daes, Erica-Irene A. Indigenous peoples' permanent sovereignty over natural resources: Final report of the Special Rapporteur, Prevention of Discrimination Prevention of Discrimination and Protection of

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Indigenous and Tribal Peoples and Nations are not committing criminal acts in defending their lands against foreign (State or international) exploitation, but rather engaging in rightful action to protect their self-determining local land-based lifeways and subsistence and collective rights and dignity. The related aggressions of the State, both visible and invisible, are experienced as an act of war. 5. STEPS TO SOLUTIONS A. Step One: Redefining War and Conflict World conflict, mass destruction and catastrophic consequences are resulting in the apartheid and segregation of traditional leadership of Indigenous Peoples. Under the UN Charter issues concerning international peace and security are a main focus of the Security Council and are to be of consideration to the General Assembly in matters to bring to the attention of the Security Council.147 Under Article 39 of the UN Charter the Security Council shall shall determine the existence of any threat to the peace, breach of the peace, or act of aggression. Article 11(1) of the Charter considers the maintenance of international peace and security to include, specifically, disarmament and the regulation of armaments.148 However, the acts that threaten the peace and security of Indigenous and Tribal Peoples in the world context include non-physical aggression- as discussed, these acts of aggression include psychological and emotional violence through discrimination, segregation and restricted traditional culture-based self-determination. The following Articles support that what Indigenous and Tribal Peoples experience acts of aggression as committed by States against Indigenous Tribal Peoples ushers a need for international attention to and responsibility taken for these acts of aggression by State(s): Article 5(3) of General Assembly Resolution Definition of Aggression: No territorial acquisition or special advantage resulting from aggression is or shall be recognized as lawful.149 Article 5(2) of General Assembly Resolution Definition of Aggression: A war of aggression is a crime against international peace. Aggression gives rise to international responsibility.150 I. Domestic Abuse and Redefining Aggression Indigenous Peoples experience a violence as colonial dependents via discriminatory State and international laws and policies. That violence can be understood as similar to the emotional violence that a domestic dependent experiences when she or he cannot exit an
Indigenous Peoples Commission on Human Rights, United Nations ECOSOC, Sub-Commission on the Promotion and Protection of Human Rights, 13 July 2004, paras. 19-21. 147 See UN Charter, Articles 11(1), 11(2) and 11(3). 148 UN Charter, Article 11(1). 149 United Nations General Assembly, Resolution 3314 (XXIX), Definition of Aggression, 14 December 1974, Annex, Article 5(3). 150 United Nations General Assembly, Resolution 3314 (XXIX), Definition of Aggression, 14 December 1974, Annex, Article 5(2).

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abusive relationship due to dependency, danger and surrounding external societal discrimination: When indigenous peoples have reacted and tried to assert their rights, they have suffered physical abuse, imprisonment, torture and even death.151 It is imperative that the United Nations remedies human rights violations occurring to Indigenous Peoples by striving to create international peace in redefining war, conflict and aggression to include not only armed conflict, but culturally oppressive State policies and international political segregation that are designed to prevent Indigenous and Tribal Peoples from formally decolonizing in a transparent and self-determined manner. It fact, such steps are the duty of the United Nations as an organization, and at the very foundation of its promotion and protection of human rights. UN Charter Chapter I (Purposes and Principles) Article 1 states:
The Purposes of the United Nations are: 1. To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace.152

Currently the Definition of Aggression states:

Considering also that, since aggression is the most serious and dangerous form of illegal use of force, being fraught, in the conditions created by the existence of all types of weapons of mass destruction, with the possible threat of world conflict and all its catastrophic consequences, aggression should be defined at the present stage.153

The General Assembly Resolution Definition of Aggression must be expanded to violence and abuse that occurs not only via force or weapons, but exclusive State sociopolitical structuring and repressed self-determination. In addition to State militarization of Indigenous territories so as to be able to utilize Indigenous and Tribal lands for resource extraction and other purposes, identified weapons of mass destruction in the definition of aggression must include policies and systems, including segregated, exclusive States-only UN Membership, that result in State-sponsored cultural discrimination, international political and judicial dominance, a denial of the right to say no to land-grabbing and development (a violation of free, prior and informed consent), and high crime and suicide rates. The need for the redefining of aggression and weapons by the UN General Assembly and its application by the Security Council is imperative for peace and for putting an end to cultural genocide. For example, as discussed in previous sections, effects of the acts of aggression by States against
151

United Nations Department of Economic and Social Affairs (DESA), Division for Social Policy and Development, Secretariat of the Permanent Forum on Indigenous Issues State of the Worlds Indigenous Peoples, New York, 2009, p. 92. 152 UN Charter, Chapter I (Purposes and Principles), Article 1. 153 United Nations General Assembly, Resolution 3314 (XXIX), Definition of Aggression, 14 December 1974.

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Indigenous Peoples living within State contiguous (or internal) colonial boundaries include those in this passage: The introduction of Western beliefs that historically devalued and exploited
AIAN peoples, not only influenced risk factors such as poverty and employment opportunities, but also severely disrupted traditional gender roles and labor division within families. Stereotypical images of AIAN men as savages, and women as Indian princess devalued traditional gender roles, and patriarchal and cash based economy systems alter the way in which AIAN women and men managed family resources. The resulting trauma (e.g. HT) interacts with present day experiences of oppression and microaggression, and for some AIAN, leads to the experience of an anger turned inward... .154

Looking to the development of the understanding of domestic abuse and psychological trauma, a form of violence, for a more current definition of aggression and conflict, experts explain that psychological abuse- continued discriminatory treatment, for example, can be just as damaging as if not more damaging than physical violence. Michelle Fine writes in Troubling calls for evidence: A critical race, class and gender analysis of whose evidence counts: An advocate working with women from Central America told us its impossible to call the police or leave if a woman is undocumented and the man is a citizen.155 Similarly, how can an Indigenous Nation politically separate from a colonial State if it is treated as an unequal international political leadership with no documented international political legal status, and the offending State is codified as an international political leader, trumping the influence of the Indigenous People or Nation, by the UN Charter Membership? While the UNESCO Constitution addresses these issues in part
That ignorance of each others ways and lives has been a common cause, throughout the history of mankind, of that suspicion and mistrust between the peoples of the world through which their differences have all too often broken into war; That the great and terrible war which has now ended was a war made possible by the denial of the democratic principles of the dignity, equality and mutual respect of men, and by the propagation, in their place, through ignorance and prejudice, of the doctrine of the inequality of men and races.156

the reality for Indigenous and Tribal Peoples experiencing internal colonial oppression and discrimination is that armed conflict or war are not made possible by inequality and prejudice, but that inequality and prejudice are war and conflict. As a result, murdered Indigenous bodies may not be on the ground with bullets or wounds by the State, or perhaps they once were or still are, but, as described in the cultural genocide section, life is still being murdered. The loss and forced perpetual state of psychological conflict
154

Lusk, Jessica, Influence of Historical Trauma on Developmental Pathways for American Indian and Alaska Native Youth, The McNair Scholars Journal of the University of Washington, McNair Program Office of Minority Affairs & Diversity, Volume XI: Spring 2012, p. 60. 155 Fine, Michelle, Troubling calls for evidence: A critical race, class and gender analysis of whose evidence counts, Feminism & Psychology, City University of New York, Vol 22, No. 1: February 2012, p. 11. 156 UNESCO Constitution, signed 16 November 1945, into force on 4 November 1946.

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leading to death of culture and suicides that are experienced by Indigenous Peoples continuously colonized internally and thus denied self-determination by the developed State are no less violent and no less tactical than armed conflict as defined by and admonished by the United Nations and the International Criminal Court. Why one violation of human rights is only remedied via complaint mechanisms of the UN treaty bodies, which States may or may not adhere to, and the other, more visual violence is codified into a separate criminal law system is not at all mysterious. States with international power have created international legal systems that only hold the poor States accountable to the point of punishment and command- power through international political segregation against the Peoples whose land they have stolen. The perpetuation of these conditions is war and aggression. UN General Assembly Resolution 3314 (XXIX), Definition of Aggression, 14 December 1974 states in the beginning of the resolution Deeply convinced that the adoption of the Definition of Aggression would contribute to the strengthening of international peace and security157 and proceeds to approve the draft Definition of Aggression contained within the Report of the Special Committee on the Question of Defining Aggression of 1974.158 The Resolution also
Calls upon all States to refrain from all acts of aggression and other uses of force contrary to the Charter of the United Nations and the Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations

and calls the attention of the Security Council to the Definition of Aggression and to use the Resolution as a guide to determine the existence of an act of aggression.159 The principles of international law concerning friendly relations in both the Friendly Relations Declaration and the UN Charter include the self-determination of peoples. Moreover, concerning the State militarization of Indigenous territories where rebellion against the colonial State has taken up arms in struggle for defense of self-determination and freedom, Article 7 of General Assembly Resolution Definition of Aggression supports the struggle against colonialism:
Nothing in this Definition, and in particular article 3, could in any way prejudice the right to self-determination, freedom and independence, as derived from the Charter, of peoples forcibly deprived of that right and referred to in the Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, particularly peoples under colonial and racist regimes or other forms of alien domination; nor to the right of these peoples to struggle to that end and to

157

United Nations General Assembly, Resolution 3314 (XXIX), Definition of Aggression, 14 December 1974. 158 Official Records of the UN General Assembly, 29th Session, Supplement No. 19 (A/9619 and Corr. 1). 159 United Nations General Assembly, Resolution 3314 (XXIX), Definition of Aggression, 14 December 1974.

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seek and receive support, in accordance with the principles of the Charter and in conformity with the above-mentioned Declaration.160

However, the Definition of Aggression must also cover the aggression peaceful warriors and peaceful Indigenous Peoples experience at the political hand of States, even when those warriors are not partaking in armed rebellion, so as to support those peaceful peoples in achieving self-determination. Moreover, Article 1 of the Definition of Aggression states that acts of aggression consist of one State against another State, however this definition must also include of State against peoples so as to fully comply with the second half of the same first sentence or in any other manner inconsistent with the Charter of the United Nations. The Charter of the United Nations determines the fundamental right of peoples self-determination, peace and equality as well as dignity. The General Assemblys Declaration on Apartheid reads:
While extending this support to those who strive for a non-racial and democratic society, a point on which no compromise is possible, we have repeatedly expressed our objective of a solution arrived at by peaceful means; we note that the people of South Africa, and their liberation movements who felt compelled to take up arms, have also upheld their preference for this position for many decades and continue to do so161

Along those lines, in the section Policies of apartheid and racial discrimination in an ECOSOC report of 1971, genocide is discussed as having occurred via policy of apartheid in ways that can be said to be experienced by Indigenous Peoples as well, historically and currently:
A veritable act of genocide was being committed, not by violent means such as gas or firearms, but by a slow process of repressive laws, segregation, unjust detention and inhuman punishment, and forced settlement of people in barren regions and by all measures calculated to weaken and degrade non-white inhabitants. In tolerating that state of affairs, the world community was allowing an explosive situation to build up which might well engender an armed conflict in which progressives and reactionaries throughout the world would be in confrontation.162

160

United Nations General Assembly, Resolution 3314 (XXIX), Definition of Aggression, 14 December 1974. 161 United Nations General Assembly, Resolution S-16/1, Declaration on Apartheid and its Destructive Consequences in Southern Africa, 14 December 1989. 162 United Nations Commission on Human Rights, Report on the Twenty-Seventh Session (22 February 26 March 1971), Economic And Social Council Official Records: Fiftieth Session, Supplement No. 4, United Nations, B. Comprehensive review of measures and decisions taken to eliminate racial discrimination in order to evaluate their effectiveness and the stages reached in their implementation, to identify the obstacles encountered and to determine the necessity of taking further measures and decisions with a view to achieving rapid and total elimination of racial discrimination, including the policy of apartheid and manifestations of nazism and racial intolerance. Referencing Special study of racial discrimination in the political, economic social and cultural spheres, chapters X, XI and XIII (E/CN.4/Sub.2/307, Add.3 and 5 and Add.5/Corr.l, 3 and 4).

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Can the Geneva Conventions apply, if aggression and war are redefined to include nonphysical State attacks against peoples and tactics of suppression/oppression? All international law must be updated to reflect Indigenous Peoples rights to selfdetermination. For example, the International Committee of the Red Cross (ICRC) states that the Additional Protocols I and II, adopted June 8 1977, to the Geneva Conventions adopted in 1949
significantly improve the legal protection covering civilians and the wounded, and - for the first time - lay down detailed humanitarian rules that apply in civil wars They were adopted by States to make international humanitarian law more complete and more universal, and to adapt it better to modern conflicts. The Geneva Conventions of 1949 afforded major improvements in the legal protection of victims of conflict. However, they apply essentially to international conflicts wars between states.163

The international human rights and criminal legal regimes must address the fact that aggression, violence and genocide do not just exist in the context of armed conflict or direct physical violence. These legal regimes must also not ignore the role of uti possidetis as well as the non-recognition of non-saltwater, or contiguous-land-based, colonialism in these conflicts. High suicide rates, addictions, and death of culture as a way of life (versus preserved as in a museum or events-only based) are all indicators of conflict. Policies of racial discrimination and apartheid are experienced by Indigenous Peoples around the world by both States and, by lack of equal treatment to States, the United Nations. The policies of both States and the laws and rules of the States are acts of non-violent aggression, and sometimes violent aggression, that result in both explosive situations, from violence imposed on Indigenous Peoples protesting for their rights to forced relocation and murder of activists, to armed conflicts such as that in the Red Corridor where Tribal (Indigenous, Adivasi) Peoples are forced to choose between a State regime-imposed army cleansing their lands for mining and other industries without tribal permission or joining Maoist rebel forces violently claiming to protect tribal land rights.164 In all of these situations of State-sponsored aggression against Indigenous Peoples, sorry is not enough to rectify inequalities in self-determination.165
163

International Committee of the Red Cross (ICRC) Website, Protocols I and II additional to the Geneva Conventions, 1 January 2009, http://www.icrc.org/. 164 For example, see the following passage from Dungdung, Gladson, The Buck Stops at Your Door Mr. Chidambaram, http://jharkhandmirror.org/, 12 July 2012: The [Indigenous Tribal] Adivasis live and die with the Nature. They believe in the super natural God, therefore; they worship the Nature in every occasion. The Adivasis economy is totally based on the Agriculture and Forest, which also depends merely on rainfall. Therefore, the villagers get together and pray to their Super Natural God before and after the harvesting. The Adivasi communities also have their own democracy, which is totally based on consent, which they practice in every village in every occasion. On 28 June, 2012, the Adivasis of Kottaguda, Sarkeguda and Rajpenta village in Bijapur district of Chhattisgarh had gathered at Kottaguda village to plan for the performance of the traditional festival Beej Pandum (seed Festival) so that they would celebrate the festival and start sowing the seeds on their lands as the Monsoon has reached to the region. Unfortunately, 17 of them were attending this kind of meeting for the last time in their life. The Cobra battalion of the CRPF and the Chhattisgarh police, who were deployed in the region in the name of elimination of the Maoists, surrounded the villagers and fired on them without giving any signal to the villagers. Consequently, 16 of them got bullets in their chests, heads and other parts of the body, and died in the spot and 1 was brutally killed in the next morning. The Security Forces claimed of killing 18 dreaded Maoists

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There is another conflict that the world must take note of and that is the conflict that is internalized by the Peoples experiencing oppressing and discrimination. While many in oppressed Indigenous communities are rising together in unity to fight for their rights and at times successfully so, not only are those people(s) and persons who are fighting for rights forced to spend their valuable time, resources, talents and skills and other aspects of life in battle against the dominant regimes, there are also persons, families and communities that face more suicides in developed countries than any other groups who are also fighting. To live in a constant state of struggle for ones rights against criminal actions of the dominant regimes or State is not a state of human dignity. As Aureliu Cristescu, UN Special Rapporteur of the Sub-Commission on Prevention of Discrimination and Protection of Minorities in 1981 wrote in The Right to SelfDetermination Historical and Current Development on The Basis Of United Nations Instruments, Every State has the duty to refrain from any armed action and repressive measures of any kind directed against peoples fighting colonialism.166 In fact, the Friendly Relations Declaration itself states that A war of aggression constitutes a crime against the peace, for which there is responsibility under international law.167 Under Resolution 2625 States also have the duty to refrain from forcible action depriving peoples of their self-determination: Every State has the duty to refrain from any forcible action which deprives peoples referred to in the elaboration of the principle of equal rights and self-determination of their right to self-determination and freedom and independence.168
and celebrated it as one of the grand successes in anti-Naxal Operations. Similarly, P. Chidambaram, the Union Home Minister had also claimed that the Security Forces had shot top Naxal leaders in Chhattisgarh, and when the encounter was questioned he attempted to cover up it. However, when the breaking news of encounter appeared in the television screens and the print media, the story seems to be totally untrue. The question immediately came into ones mind was, how could 18 top Maoists have a meeting in a village, which is situated merely at a distance of 3 km from the CRPF camp? The truth of Bijapur encounter was finally revealed. A brave Journalist Aman Sethi, who has been tirelessly reporting on the state sponsored crime against the Adivasis of Chhattisgarh; this time also exposed the lies of the top cops, the Chhattisgarh government and Home Minister P. Chidambaram. According to his report, the security forces fired at a peaceful gathering of villagers, killing 20 of them, including five children aged 12-15, and sexually assaulted at least four girls during the encounter. The conclusion of the story was no Maoists were present in the village that day. The villagers had gathered to discuss the upcoming seed festival, when the security forces fired on them, which led to death of 20 villagers including 5 children. When the truth was unearthed, the Union Home Minister and Architect of the Operation Green Hunt P. Chidambaram said deeply sorry for killing of innocent civilians. 165 See, for example, the Sorry campaigns launch by the Australian government in apology for the era of the Stolen Generation. 166 Cristescu, Aureliu, UN Special Rapporteur of the Sub-Commission on Prevention of Discrimination and Protection of Minorities, The Right to Self-Determination Historical and Current Development on The Basis Of United Nations Instruments, United Nations, New York, 1981, para. 205. 167 United Nations General Assembly, Resolution 2625, Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, 1970. 168 United Nations General Assembly, Resolution 2625, Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, 1970.

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II. Conflict and Redefining Development The problem of traditional Indigenous and Tribal Peoples having been and being defined and referred to as backward for political, development and land-grabbing purposes illuminates a greater need for traditional Indigenous and Tribal voice and equality at the international level for effective human rights implementation. Definitions of development that treat traditional Indigenous and Tribal peoples as backward or, by implication of the word, undeveloped or under-developed, are used as justification for human rights violations of self-determination, right to culture and related rights of those peoples. Examples of these culturally discriminatory perceptions can be seen in UN Reports, amongst other resources. For example:
The right to development possessed by all peoples, whether they constitute sovereign States or not, is becoming vitally important for the progress of humanity as a whole. The affirmation, the observance and the promotion of this right must be a matter of major concern for the whole international community. The urgency of the question of this right is dictated by the imperative development needs felt throughout the world and particularly in the most backward areas, which constitute an affront to human dignity and to civilization.169

Here in the report by Cristescu human dignity is equated to civilization and the development (which the report later defines as industrialization and agriculture) of backward (traditional Indigenous and Tribal) areas.170 Violations of fundamental rights
169

Cristescu, Aureliu, UN Special Rapporteur of the Sub-Commission on Prevention of Discrimination and Protection of Minorities, The Right to Self-Determination Historical and Current Development on The Basis Of United Nations Instruments, United Nations, New York, 1981, p. 120, para. 702. 170 A similar view was contained within British colonial discourse concerning Ireland- that tribal Irish land used for subsistence lifeways and herding was vacant and therefore justifiable to colonize and use for agriculture and settlement: Several points in Sydneys letter [to William Cecil in 1568 promoting new direction in British policy and Ireland] merit comment, as they relate to subsequent English discursive practice more fully developed during the mercantile colonization efforts in North America. The twin goals of religious reformation and revenue, first popularized in Edens preface to The Decades of the New Worlde or West India, were by now familiar themes of English colonial discourse. Another theme would come to assume even greater prominence in English colonial discourse: Sydneys reference to Irelands extensive regions of underutilized land sounded a novel theme of efficiency, which would be reiterated frequently as English colonizers bounded the vacant forests of the New World in the next century.; The notion the Ireland contained large, underpopulated regions ripe for English settlement reflected a long tradition of negative English perceptions of Irish culture and society. Since the medieval era, Englishmen had criticized Irish tribalisms herding-based subsistence economy as extremely wasteful of land. England, of course, had historically devoted much of its land base to agriculture. The post-Henrican acquisitive impulses contributing to rationalization of landed economic activity throughout the English countryside further intensified a deep-seated historical bias against Irish subsistence and tribal culture. To an Englishman of the Elizabethan era, land was intended to be devoted either to surplus-oriented agricultural production or, as was the case with frequent enclosure of common lands during this period, to productionoriented pasturage. Sidneys letter seems to indicate that although the notion had not yet been elevated to a principle of natural law in English colonial discourse, a savage peoples perceived underutilization of land was sufficient justification for an English colonial enterprise, obviating further discussion of its morality or legality. In Sydneys discourse, the motive for conquest (abundant land) was subsumed into its justification

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of Indigenous and Tribal Peoples to self-determination and culture are couched in terms of right to development that are racist and genocidal and that create tension, aggression, experiences of war, segregation and apartheid. The voice that is segregated out of the UN Organization is that of the Indigenous Peoples who consider themselves to already be developed through their own traditions, including subsistence, with or without the imposed State culture of industrialization. To further exhibit the bias that culturally traditional Indigenous and Tribal Peoples face at the United Nations as marginalized Peoples, one can look to the United Nations criteria establish by the United Nations Department of Social and Economic Affairs (DESA) for the United Nations least developed countries list. The United Nations Office of the High Representative for the Least Developed Countries, Landlocked Developing Countries and the Small Island Developing States (UN-OHRLLS) was established by the United Nations General Assembly through Resolution 56/227 in 2001 with functions recommended by the Secretary-General.171 According to the UN-OHRLLS DESA website The Least Developed Countries represent the poorest and weakest segment of the international community. They comprise more than 880 million people (about 12 per cent of world population), but account for less than 2 percent of world GDP and about 1 percent of global trade in goods.172 Already one can see an anti-indigenist, discriminatory and culturally biased definition of developed, poor and weak in the UN public explanation of Least Developed Countries (LDCs), with measurements consisting of GDP (Gross Domestic Product- market value of all officially recognized final goods and services produced within a country in a given period of time) and global trade. Looking closer at the exact criteria the UN-OHRLLS office utilizes, one can see that the criterion are in fact based on trade, industrialization and agriculture, and culturally biased forms of education. Adult literacy criteria data is, ironically, submitted by the UNESCO Institute for Statistics and according to the DESA website The [adult literacy] indicator provides information on the size of the bases available for enlarging the trained and skilled human resources needed for development and again with the criteria of data concerning gross secondary school enrollment, also submitted by UNESCO, provides information on the share of population with a level skills deemed to be necessary for significant developmental progress.173 Are traditionally oral, self
(the abundant land was underutilized). The historical trajectory of English colonization of other peoples lands can in fact be traced by pimply plotting those points on the globe where this ample motive discovered this ample justification and sublimely conjoined. From Willliams, Jr., Robert A., The American Indian in Western Legal Thought: The Discourses of Conquest, Oxford University Press, New York, 1990, p. 140. 171 United Nations, Report of the Secretary-General, Follow-up mechanism for coordinating, monitoring and reviewing the implementation of the Programme of Action for the Least Developed Countries for the Decade 2001-2010, UN General Assembly, 56th Session, Third United Nations Conference on the Least Developed Countries: Implementation of the Programme of Action for the Least Developed Countries for the Decade 2001-2010, 23 November 2001, para. 17. 172 The United Nations Office of the High Representative for the Least Developed Countries, Landlocked Developing Countries and the Small Island Developing States (UN-OHRLLS), Least Developed Countries: About LDCs, http://www.unohrlls.org/en/ldc/. 173 The following are the criteria used as data by UN-OHRLLS to determine least-developed countries: 1. Adult literacy rate, 2. Gross secondary school enrolment ratio (It provides information on the share of population with a level skills deemed to be necessary for significant developmental progress indicator is regularly reported by the UNESCO Institute for Statistics), 3. Gross national income (GNI) per capita, 4.

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sustaining, subsistence-based Indigenous and Tribal Nations and Peoples maintaining those traditional lifeways weak and undeveloped? Are they not already skilled and trained persons of their own, providing much needed skills for their communities and the world, as traditional healers, hunters and gatherers, planters, creators, and knowledgebearers, and especially as subsistence-based? Is it not a violation of Indigenous and human rights to impose an external culture of development on peoples that eradicates their own cultural and sustainable lifeways? If allowed for clear options and involvement in decolonization, Membership and full self-determination at the United Nations equal to States but embracing diverse political and legal mechanisms, traditional Indigenous and Tribal Peoples can challenge these discriminatory development policies that are causing cultural genocide around the world. General Assembly Resolution 2724 (XXV) Identification of the least developed among the developing countries reaffirms GA Resolution 24 (II) adopted by the United Nations Conference on Trade and Development on 26 March 1968.174 However, what are defined by the United Nations as least developed and development actually have negative effects when applied to traditional Indigenous lifeways/territories when the results of development are considered holistically. For example, Aaron Wernham writes about the disturbance of oil and gas development on Indigenous subsistence living and other human rights in Alaska:
Evident in years of testimony by Inupiat residents of the North Slope is the concern that industrial development is causing health problems, and a growing fear that burgeoning development may ultimately engulf the subsistence way of life, with profound implications for health and wellbeing. This fear has become one of the dominant sources of strain and tension in Inupiat communities, as expressed by this elder: And hearing that this impact is going to be more and more and more each year and each time is telling me I have to try 100% more harder to get food on my table. And I just keep wondering, how am I going to survive if these animals are being impacted? What is it going to take for me to make a supper? What is it going to take to find something to eat? And the animals that I depend on are being impacted and these are things that I depend on daily. And I just want you guys to know that subsistence is a big thing in my life and thats what I depend on each day to survive. Thank you. The feelings of disempowerment that result when developments are approved repeatedly over such objections compound the problem.175

Instability of agricultural production, 5. Instability of exports of goods and services, 6. Merchandise export concentration, 7. Percentage of population undernourished, 8. Population, 9. Remoteness, 10. Share of agriculture, forestry and fisheries in GDP, 11. Share of population in low elevated coastal zones, 12. Under five mortality rate, 13. Victims of natural disasters. Updated May 2012, http://www.un.org/en/development/desa/. 174 United Nations General Assembly, Resolution 2724 (XXV), Identification of the least developed among the developing countries, 15 December 1970. 175 Wernham, Aaron, Inupiat Health and Proposed Alaskan Oil Development: Results of the First Integrated Health Impact Assessment/Environmental Impact Statement for Proposed Oil Development on Alaskas North Slope, EcoHealth Journal, Special Feature: Indigenous Perspectives Original Contribution, Alaska Inter-Tribal Council, Columbia University Institute on Medicine as a Profession, No. 4: 2007, p. 509.

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Indigenous Adivasi activist Gladson Dungdungs article and his discussion of development takes these issues into the analysis of State-sponsored armed conflict in the name of development and security,
since the Indian state seems to believe that all the Adivasis living in the forest regions across the country are Maoists/Naxals, who are biggest threat to the investment climate. The Indias Economist Prime Minister Dr. Manmohan Singh is always worried about the investment climate rather than its constitutional duty to protect the rights of its citizens. In fact, the Indian State is determined to grab the resources of the Adivasi regions at any cost, which will pave the way to India becoming the super power. Therefore, the Security Forces have been deployed in the forests to kill the Adivasis, who oppose to surrender their land, forest, water and other natural resources to the Indian state in the name of growth and development Is it not true that the Security Forces are deployed in the forest to protect the corporate interest rather than protecting the people? the fact is that the hundreds of innocent civilians have been killed in anti-Naxal operations across the country since 2009 but no major investigation was done till the date.176

An international system that is truly based on cultural equality, to promote the healthy, restored psychological and physical development of Indigenous youth based on traditional or modern practices, as chosen, and this development of all youth and Peoples, is one that is based on universal (versus apartheid-based) dignity, life, peace and selfdetermination. The right to development should be replaced with the right to selfdetermination and culture as UN top priority. Development is a term created to push forward the culture of science, mass agriculture for market economy, international trade, industrialization, resource extraction and capitalism for the benefit of few at the cost of many. Indigenous and Tribal Peoples have a right to dignity and life that is dependent on the fundamental right to self-determination and that provides the option to develop in Western terms of trade, labor and economy, while not being forced (see section on redefining aggression) to do so. In other words, Free, Prior and Informed Consent (FPIC) must include, in the definition of consent, the right to say no:
We [Indigenous Peoples] demand that free, prior and informed consent must be the determinant and legally binding principle of approving or rejecting any plan, project or activity affecting our lands, territories and other resources. Without the right of Free Prior and Informed Consent, the colonialist model of the domination of the Earth and its resources will continue with the same impunity.177

A developed State or Nation is also one that maintains peace, even without industrialization (or other UN-State definitions of development), not a State or Nation that is industrialized, wealthy with money, but dependent on the exploitation of peoples, violations of human rights to gain labor and resources, and colonialism.
176

Dungdung, Gladson, The Buck Stops at Your Door Mr. Chidambaram, http://jharkhandmirror.org/, 12 July 2012. 177 Kari-Oca 2 Declaration, Indigenous Peoples Global Conference On Rio+20 And Mother Earth, KariOka Village, at Sacred Kari-Oka Pku, Rio de Janeiro, Brazil, 17 June 2012.

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One of the many cultural biases that often leads to a genocide of sustainable and traditional Indigenous and Tribal cultural, land-based relationships and lifeways is the politically-supported notion that development must occur for peoples and, in that context, that development is industrialization, economy and agricultural. This bias can be seen in Aureliu Cristescus study on self-determination as the Special Rapporteur of the SubCommission on Prevention of Discrimination and Protection of Minorities, a document otherwise progressive in supporting peoples rights: The economic development of peoples poses many problems for the international community, which is seeking a new order that will be more just and more equitable. Industrialization is a prerequisite for economic development and for development in the areas of food and agriculture.178 In unknowing contradiction, in the paragraph prior the author Cristescu states any action aimed at destroying the permanent sovereignty of peoples over their wealth and natural resources is a violation of international law and an attack on the international order.179 If development is forced onto Indigenous and Tribal peoples, by definition assuming their lack of being already developed, self-determining peoples, then their sovereignty over their natural wealth, culture and resources is violated and lost. The assumed cultural racism and superiority against Indigenous and Tribal traditional self-determining cultures and lifeways can again be seen in the UN study by Cristescu, here exhibiting the underlying intentions of the majority of the times towards self-determination and decision-making, along with definitions of development, being based on State development in regards to international trade. Moreover, this paragraph exhibits the majority notion at the time that science and technology (in the form of non-Indigenous cultural values and creations) are to be used to advance peoples, and that these values are tied to civilization, power, well-being and progress and must be supported by natural resources:
The development and establishment of a new international economic order call for measures to stimulate an equitable expansion of international trade and economic co-operation among States that excludes all forms of pressure and interference in the internal affairs of States and makes international an effective instrument for economic development. Science and technology, which are genuine sources of civilization, power, well-being and progress, must be used for the general advancement of peoples, including that of the developing countries. New resources must be mobilized for financing the economic and social development of the developing countries.180

The development scheme quoted above is culturally discriminatory and encourages, perhaps unknowingly to the author, a complete lack of self-determination for traditional
178

Cristescu, Aureliu, UN Special Rapporteur of the Sub-Commission on Prevention of Discrimination and Protection of Minorities, The Right to Self-Determination Historical and Current Development on The Basis Of United Nations Instruments, United Nations, New York, 1981, para. 700. 179 Cristescu, Aureliu, UN Special Rapporteur of the Sub-Commission on Prevention of Discrimination and Protection of Minorities, The Right to Self-Determination Historical and Current Development on The Basis Of United Nations Instruments, United Nations, New York, 1981, para. 699. 180 Cristescu, Aureliu, UN Special Rapporteur of the Sub-Commission on Prevention of Discrimination and Protection of Minorities, The Right to Self-Determination Historical and Current Development on The Basis Of United Nations Instruments, United Nations, New York, 1981, Para. 700.

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Indigenous and Tribal Peoples as well as a cultural genocide of their lifeways.181 If Indigenous and Tribal Peoples continue to not have an equal status to States as selfdetermining and negotiating political (and otherwise) entities, and continue to be denied UN Membership, they are forced to counter such violations of their fundamental rights from the sidelines of the International legal and political fora, and their human rights will continue to be violated. The UN Membership criteria procedures contribute to a system of Apartheid, where businesses and States can push for such development projects as mining in traditional Indigenous lands, disrupting and damaging Indigenous food supplies, families, medicines, homes, sustainable living, subsistence work and economy, and traditional culture, self-determination and dignity,
One of the overriding threats facing minorities and indigenous peoples in every region of the world is the risk of being driven from their land and natural resources, which are vital for their livelihoods, their culture and often their identity as a people. Many communities have been closely tied to their territory for centuries. Yet once their land is targeted for development mining, oil and gas, dams, agribusiness, tourism or conservation they are deftly and often violently evicted While todays threats to indigenous peoples and minorities are not new, their scale and severity have reached new proportions. Unprecedented demand for the worlds remaining resources, combined with new technologies to extract previously inaccessible resources in the remotest regions, are putting even the most isolated minorities and indigenous peoples under increasing threat from governments and private companies wanting to profit from the resources found on or under their lands.182

While the United Nations violates the right to free, prior and informed consent of Indigenous Peoples to determine whether or not their lands shall be marked by UNESCO
181

Consider, for example, the following colonial violations ultimately leading to the devastation of and Indigenous community through the biasing of creating market-dependent economy over subsistence-based economy: Indigenous suicide must be understood in its historical or socially temporal and social/political contexts. Significant colonial involvement of the Canadian government in the lives of the Inuit began officially in 1957, which included the presence of the military and large-scale family relocations during the 1950s and 1960s. Inuit were moved from their extended family camps on the land, where they had lived for many centuries, to aggregated settlements run by Qallunaat government officials. Today these settlements are called communities. The government era changed northern life enormously, as did mandatory schooling, which often involved missionary residential schools many aspects of life were radically altered. Communities modified their diets, hunting decreased, and lifestyles changed from extended family groups and semi-nomadic hunting practices to the establishment of new settlements and a modern wage economy. After thousands of years of self-sufficiency, Inuit communities have become embedded in the global economy. The fur trade industry collapsed in the early 1980s, devastating many Inuit communities. Poverty became commonplace. from Kral, Michael J.; Idlout, Lori; Minore, J. Bruce; Dyck, Ronald J.; Kirmayer, Laurence J., Unikkaartuit: Meanings of Well-Being, Unhappiness, Health, and Community Change Among Inuit in Nunavut, Canada, American Journal of Community Psychology, Vol. 48: 2011, p. 427-428, also referencing Lawson-Te Aho, Keri, & Liu, James H., Indigenous suicide and colonization: The legacy of violence and the necessity of self-determination, International Journal of Conflict and Violence, Vol. 4, No. 1: 2010, 125133. And Sewell, William H., Logics of History: Social Theory and Social Transformations, Chicago, IL: University of Chicago Press: 2005. 182 Bambanze, Vital, Foreword - development with identity, State of the Worlds Minorities and Indigenous Peoples 2012, Minority Rights Group International, London: 2012, p. 7.

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as World Heritage sites,183 even if UNESCO sites are protected from directly being effected from industrialization and related development not only can the land and nature suffer indirectly though contamination, but the surrounding, non-World-Heritage-Site Indigenous lands are not protected- all this due to the violation of rights to selfdetermination of traditional Indigenous Peoples, who are fully capable of determining to protect their own lands (and do so anyway). For example, Jokkmokk Mining District in Sapmi/Sweden, claimed by Jokkmokk Iron Mines, reportedly already covers the entire 156.1 km, and this is occurring against the collective will of the local Indigenous Sami communities who use the land traditionally.184 The size of the claimed area for mining is almost 17% of Laponia, a neighboring UNESCO World Heritage site co-managed by Sami and UNESCO (after much struggle to gain supposed Sami rights alongside UNESCO authority a struggle that for some Sami is still ongoing). As one local Sami community member commented concerning a document of the mining company Jokkmokk Iron Mines- feels like a nightmare.185 This nightmare for a local Indigenous person is what many States called development. Violations against the right to self-determination of Indigenous Peoples are deeply intertwined with State development and decision-making over natural resources and result in genocide-inducing conflict. Definitions of development and conflict must be changed to include traditional Indigenous and Tribal perspective, self-determination, and experiences. Moreover, the use of the word and concept of development must be challenged in its entirety. Indigenous and Tribal Peoples and their lands were already developed prior to colonialism and industrialization, should they so choose to see their own traditions as such. In fact, it is the colonial (International, regional, State and local, as well as internalized) laws and politics that must be developed so as to acknowledge this. B. Step Two: Healing Dignity- Peace, Rights to Living Culture, Land and SelfDetermination
Healing is a radical concept...186

183

See Joint statement on the right of indigenous peoples to participate in decision-making in the context of UNESCOs 1972 World Heritage Convention, This is an example where the rights of indigenous peoples to participate in decision-making are violated not only at the national level, but directly by an intergovernmental organization that is part of the United Nations system., from Joint statement of: International Work Group for Indigenous Affairs (IWGIA), Centre for Minority Rights Development Kenya (CEMIRIDE), Minority Rights Group International (MRG) and Endorois Welfare Council (EWC), Submitted to the Human Rights Council Expert Mechanism on the Rights of Indigenous Peoples, Item 4: Study on indigenous peoples and the right to participate in decision-making, 11-15 July 2011. 184 For example, see the grassroots Sami campaign What local people?, http://www.whatlocalpeople.se 185 Public comment on Facebook on the grassroots Indigenous Sami community activist site Inga gruvor i Jokkmokk! (No mines in Jokkmokk!) https://www.facebook.com/groups/ingagruvor/. 186 Firmat, Mariana Ruiz, Misdiagnosis: Reproductive Health and Our Environment, 27 April 2008, http://www.alternet.org/.

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In Trauma and Recovery: The aftermath of violence- from domestic abuse to political terror Judith Lewis Herman, M.D. points to the need for what could be described as selfdetermination in the context of healing:
The first principle of recovery is the empowerment of the survivor. She must be the author and arbiter of her own recovery. Others may offer advice, support, assistance, affection and care, but not cure. Many benevolent and well intentioned attempts to assist the survivor founder because this fundamental principle of empowerment is not observed. No intervention that takes power away from the survivor can possibly foster her recovery, no matter how much it appears to be in her immediate best interest.187

Researcher Jessica Lusk writes, A holistic approach to health and healing in AIAN communities requires a better understanding of the community strengths contributing to resilient processes.188 Many Indigenous communities use traditional cultural and political empowerment as a tool for healing and obtaining peace while working for the right to collective self-determination internationally:
The metaphor of healing traditions has several potential meanings. First, it refers to recovering and applying traditional methods of healing. Aboriginal peoples had a wide range of methods of healing that were embedded in religious, spiritual and subsistence activities and that served to integrate the community and provide individuals with systems of meaning to make sense of suffering. These traditions were displaced and actively suppressed by successive generations of EuroCanadian missionaries, governments and professionals. Recuperating these traditions therefore reconnects contemporary Aboriginal peoples to their historical traditions and mobilizes rituals and practices that may promote community solidarity.189

Violations of the human rights of the individual and the rights of the collective are intricately and intimately linked, and they are linked, as well, to the well-being of the international community.190 That victims of State-sponsored crimes (or would-be crimes)
187

Herman, M.D., Judith Lewis, Trauma and Recovery: The aftermath of violence- from domestic abuse to political terror, Basic Books, New York: 1997, p. 133. 188 Lusk, Jessica, Influence of Historical Trauma on Developmental Pathways for American Indian and Alaska Native Youth, The McNair Scholars Journal of the University of Washington, McNair Program Office of Minority Affairs & Diversity, Volume XI: Spring 2012, p. 161. 189 Kirmayer, L., Simpson, C. and Cargo, M., Healing traditions: culture, community and mental health promotion with Canadian Aboriginal peoples, Australasian Psychiatry, Vol. 11 Supplement: 2003, p. S16. 190 Individual identity and self-esteem, which are central to health and wellbeing, may draw strength and depth from collective identity. Where the collective is devalued, the individual may suffer corresponding wounds to their esteem and to their social capital, power and mobility. Collective identity, however, is not simply intrinsic or internal to a specific ethnocultural group or community. It is created out of interactions with a larger cultural surround, which may impose disvalued identities and marginalized status. The interaction between local and larger cultural systems has taken on a new scope and intensity with the forces of globalisation. The local identity of youth is inscribed in a world culture; indeed, through mass media and Internet exchanges many Aboriginal youth participate in a global culture in which they share more with distant peers than with other generations within their own communities. For most, however, this sort of virtual community cannot replace local relationships in intimacy, material support or practical resources with which to navigate a future. Mental health promotion with Aboriginal peoples must go beyond the

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can heal themselves and their communities does not mean that the crimes should not go unaccounted for or be perpetuated, for that would be a finalization of a system of Apartheid inequality. In fact, if such State crimes are not accounted for, there will not be an end to the conditions that are causing the cultural genocide of Indigenous Peoples, for traditional Indigenous healers and leaders will not be protected and participatory by design. For example, in the section entitled Effects on the cultural identity of the members of the Community of the failure to restore their traditional territory of the Inter-American Court of Human Rights (IACtHR) case of the Xkmok Ksek Indigenous Community v. Paraguay, Judgment of 24 August 2010, witness Villagra Carron is quoted regarding the death of shamans of the shamanic healing practice due to lessening of access to traditional lands, plants, and places.191 Carron describes that initiation (in this case the Huanca) in which traditional healing knowledge is obtained cannot occur where the members of an Indigenous community do not have access to their traditional territories.192 Right to Life, according to the Inter-American Commission, includes the right to conditions that guarantee a decent existence. The Commission added that the States failure to comply with its obligation to guarantee the Communitys right to property has meant the creation of a permanent situation of vulnerability that even threatens the physical survival of the members of the Community.193 The representative of the Xkmok Ksek Indigenous Community stated that,
[t]he State [did] not [] rectify the conditions that exacerbate the difficulties faced by the members of the Community to have access to a decent life, in response to its particular vulnerability failure to restore the ancestral lands and traditional habitat of the Community [] has made it impossible for its members to hunt, fish and gather on the lands and in the habitat claimed, thus affecting their cultural and religious identity, and placing them in a situation of extreme vulnerability.194

focus on individuals to engage and empower communities. Aboriginal identity itself can be a unique resource for mental health promotion and intervention. Knowledge of living on the land, community, connectedness, and historical consciousness all provide sources of resilience. At the same time, the knowledge and values held by Aboriginal peoples can contribute an essential strand to the efforts of other peoples to find their way in a world threatened by environmental depredation, exhaustion and depletion from the ravages of consumer capitalism. From Kirmayer, Laurence; Simpson, Cori and Cargo, Margaret, Healing traditions: culture, community and mental health promotion with Canadian Aboriginal peoples, Australasian Psychiatry, Vol. 11 Supplement: 2003, p. S21. 191 Inter-American Court of Human Rights, Case of the Xkmok Ksek Indigenous Community v. Paraguay, Judgment, Merits, Reparations, and Costs, 24 August 2010, para. 3, footnote 191. 192 Inter-American Court of Human Rights, Case of the Xkmok Ksek Indigenous Community v. Paraguay, Judgment, Merits, Reparations, and Costs, 24 August 2010, para. 3, footnote 191. 193 Inter-American Court of Human Rights, Case of the Xkmok Ksek Indigenous Community v. Paraguay, Judgment, Merits, Reparations, and Costs, 24 August 2010, VII Right to Life (Article 4(1) of the American Convention), para. 183. 194 Inter-American Court of Human Rights, Case of the Xkmok Ksek Indigenous Community v. Paraguay, Judgment, Merits, Reparations, and Costs, 24 August 2010, VII Right to Life (Article 4(1) of the American Convention), para. 184.

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This death of a living culture and healing occurs through loss of land due to State an business land-grabbing, industrial practices that harm the land, and lack of selfdetermination on the part of traditional Indigenous and Tribal Peoples, leaders and healers in having their voices heard to stop these murderous practices. As Carron states, [Consequently], there are not more initiated shamans. [T]he last shamans are dying.195 To support living culture, self-determination, and the true equality of traditional Indigenous and Tribal healing, law and governance is to counter the negative effects of the colonial history and the colonial present in its current manifestations. As writing in Suicide among Indigenous Sami in Arctic Norway, 19701998, suicide rates have been found to be negatively associated with integration of traditional culture in several Native American tribes and degree of self-government among Native Canadian bands.196 I. Peace The United Nations promotes human rights and decolonization, including Peoples and Nations right to permanent sovereignty over their natural resources as a path to peace.197 However, not only the United Nations has developed methods of attaining peace. Indigenous Peoples have complex and developed systems for achieving peace that the world can benefit from should Indigenous Nations and traditional Indigenous leaders be treated as equals in power and leadership to Nation States. For example, the very Iroquois Confederacy whose leader was turned away from the League of Nations has always maintained a Great Law of Peace:
The political philosophy for the Iroquois Confederacy, or the Haudenosaunee, is expressed in the Great Law of Peace, which describes a great tree with roots extending in the four cardinal directions to all peoples of the earth; all are invited to follow the roots to the tree and join in peaceful coexistence and cooperation under its great long leaves. The Great Law of Peace promotes unity among individuals, families, clans, and nations while upholding the integrity of diverse identities and spheres of autonomy. Similar ideals have been expressed by

195

Inter-American Court of Human Rights, Case of the Xkmok Ksek Indigenous Community v. Paraguay, Judgment, Merits, Reparations, and Costs, 24 August 2010, para. 3, footnote 191. 196 Silviken, A., Haldorsen T. and Kvernmo, S., Suicide among Indigenous Sami in Arctic Norway, 1970 1998, European Journal of Epidemiology Vol. 21: 2006, Referencing Lester, D. Native American suicide rates, acculturation stress and traditional integration, Psychological Reports, Vol. 84, No. 2: 1999, p. 398 and Chandler, MJ, Lalonde, C. Cultural continuity as a hedge against suicide in Canadas First Nations, Transcultural Psychiatry, Vol. 35, No. 2: 1998, p. 191219. 197 General Assembly resolution 1803 (XVII) in 1962 that gave the principle momentum under international law in the decolonization process. In this historic resolution the Assembly declared that peoples and nations had a right to permanent sovereignty over their natural wealth and resources and that violation of this right was contrary to the spirit and principles of the Charter and hindered the development of international cooperation and the maintenance of peace. from Daes, Erica-Irene A. Indigenous peoples' permanent sovereignty over natural resources: Final report of the Special Rapporteur, Prevention of Discrimination Prevention of Discrimination and Protection of Indigenous Peoples Commission on Human Rights, United Nations ECOSOC, Sub-Commission on the Promotion and Protection of Human Rights, 13 July 2004, para. 9.

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leaders of other indigenous groups in contemporary appeals to international bodies.198

The Indigenous organization Owe Aku International Justice Project, formed by Lakota persons who received direct from traditional leaders,199 recently submitted the document Recommendations for Action-Oriented Mechanisms for Treaty Implementation, Enforcement, and Dispute Resolution & Existing and Proposed Mechanisms for Treaty Implementation, Enforcement, and Dispute Resolution, to the Office of the High Commissioner on Human Rights during a 3rd Seminar on Treaties, July 2012. An excerpt from the document suggests that the world will not know peace until the sufferings of Indigenous Peoples are brought to resolution and the conflict that results from their oppression is addressed by the United Nations:
Until appropriate measures are taken by the international community to rectify the catastrophic damage suffered by Indigenous peoples as a result of colonization, treaty abrogation, treaty violation, genocide, ecocide and ongoing human rights violations, the world will not know peace. To allow the continued conflict that arises from the subjugation of Indigenous peoples is a failure of the United Nations, resting on the conscience of the international community as a whole, and every global citizen individually.200

One of the themes of the May 2012 annual UN Permanent Forum on Indigenous Issues, as mandated by Indigenous NGOS and representatives, was the Doctrine of Discovery and reconciliation. During this session it was suggested that redefining the relationship between Indigenous Peoples and the State can develop a future of reconciliation, peace and justice.201 The Indigenous participants at the UNPFII have suggested that the UNDRIP function as a means to redress and reconciliation. While the UNDRIP is not a binding document, General Assembly Resolutions are a part of customary law, including
198

James Anaya, Indigenous Peoples in International Law, Oxford University Press, 23 September 2004, p. 102. 199 For more information visit the Owe Aku website, http://www.oweakuinternational.org/. 200 Owe Aku International Justice Project, Presentation to the Department of Economic and Social Affairs, Office of the High Commissioner for Human Rights, Recommendations for Action-Oriented Mechanisms for Treaty Implementation, Enforcement, and Dispute Resolution & Existing and Proposed Mechanisms for Treaty Implementation, Enforcement, and Dispute Resolution, 3rd Seminar on Treaties: Strengthening Partnership Between Indigenous Peoples and States: Treaties, Agreements and Other Constructive Arrangements, Geneva, 16-17 July 2012. 201 articles 27 and 28 of the United Nations Declaration: During its tenth session, the Permanent Forum emphasized that redefining the relationship between indigenous peoples and the State as an important way to understand the doctrine of discovery and a way to develop a vision of the future for reconciliation, peace and justice. To that end, the United Nations Declaration on the Rights of Indigenous Peoples provides a strong human rights framework and standards for the redress of such false doctrines, notably in articles 3, 28 and 37. The Permanent Forum encourages the conduct of the processes of reconciliation in accordance with the principles of justice, democracy, and respect for human rights, equality, non-discrimination, good governance and good faith., from United Nations, Permanent Forum on Indigenous Issues, Economic and Social Council, 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), Eleventh session, New York, 7-18 May 2012, para. 5.

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GA Resolutions and declarations concerning self-determination.202 Thus, if conducted sans uti possidetis, UN decolonization is a direct means by which to resolve inequalities in leadership between States and Indigenous Peoples. A violation of the norm principle of peoples equal rights and right to self-determination allows for UN decolonization, according to the Declaration on Friendly Relations. General Assembly Resolution 33/73, Declaration on the Preparation of Societies for Life in Peace, 1978, states that a war of aggression is a violation of the Declaration on Friendly Relations and a crime against peace:
Reaffirming that, in accordance with General Assembly resolution 95 (I) of 11 December 1946, planning, preparation, initiation or waging of a war of aggression are crimes against peace and that, pursuant to the Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, of 24 October 1970, and the Definition of Aggression of 14 December 1974, a war of aggression constitutes a crime against peace 203

The Declaration for Life in Peace states the above again in Section 1, Article 2 including that such actions are prohibited by international law. The resolution reaffirms the principles contained in the Declaration of Independence to Colonial Countries and Peoples of 14 December 1960, and that Every State has the duty to discourage all manifestations and practices of colonialism, as well as racism, racial discrimination and apartheid, as contrary to the right of peoples to self-determination and to other human rights and fundamental freedoms.204 Section I Article 1 states the principle that
Every nation and every human being, regardless of race, conscience, language or sex, has the inherent right to life in peace. Respect for that right, as well as for the other human rights, is in the common interest of all mankind and an indispensible condition of advancement of all nations, large and small, in all fields.205

202

The legal nature of General Assembly resolutions has been debated at length in various United Nations organs, and the idea that these resolutions, like treaties, are made binding by the mere fact of their adoption has been challenged by one school of thought. But what is beyond challenge, is the fact that resolutions may be considered to lay down rules which are binding upon States. They become part of customary law in general, that is to say, of the whole body of rules and principles established by general usage and recognized as having the force of law. This clearly applies to the resolutions and declarations of the United Nations concerning self-determination. They have contributed not only to the formation of the law on decolonization, but also to the interpretation and practical application of the rules of law relating to selfdetermination., from Cristescu, Aureliu, UN Special Rapporteur of the Sub-Commission on Prevention of Discrimination and Protection of Minorities, The Right to Self-Determination Historical and Current Development on The Basis Of United Nations Instruments, United Nations, New York, 1981, para. 151. 203 United Nations General Assembly, Resolution 33/73, Declaration on the Preparation of Societies for Life in Peace, 14 December 1978. 204 United Nations General Assembly, Resolution 33/73, Declaration on the Preparation of Societies for Life in Peace, 14 December 1978, Articles 5 and 7. 205 United Nations General Assembly, Resolution 33/73, Declaration on the Preparation of Societies for Life in Peace, 14 December 1978, Section I, Article 1.

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Lastly, Resolution 33/73 Declaration on the Preparation of Societies for Life in Peace states that Governments, the United Nations and the specialized agencies (such as UNESCO), along with other international and national organizations both governmental and non-governmental, are called to concerted action and full implementation of the UN General Assembly Resolution 33/73. This means that the United Nations itself is accountable for decolonizing within its own institution, and that UNESCO and the United Nations can be held accountable for partaking in war-like acts of aggression as experienced by Indigenous Peoples. By resolving to amend the United Nations Charter to allow for transparent and formal UN Membership to Indigenous Peoples in a political form freely determined by Indigenous Peoples, and by recognizing the territorial integrity of the lands of Indigenous Tribes and Peoples pre-colonization and thus during decolonization, the United Nations will be closer to achieving its fundamental human rights goals and peace. Under the request of the Declaration on the Preparation of Societies for Life in Peace, it is the responsibility of the Secretary-General to follow and report upon the progress of the implementation of the Declaration, and thus, in accordance with this thesis, the implementation of the amendment of the UN Charter to grant Membership to, through the fundamental human right to self-determination, Indigenous Peoples. Article 3(n) UN General Assembly Resolution 53/243, Declaration and Programme of Action on a Culture of Peace of 1999, states confirmation of those peoples living under alien domination or foreign occupation the right to self-determination along with Resolution 1514:
Realizing fully the right of all peoples, including those living under colonial or other forms of alien domination or foreign occupation, to self-determination enshrined in the Charter of the United Nations and embodied in the International Covenants on Human Rights, as well as in the Declaration on the Granting of Independence to Colonial Countries and Peoples contained in General Assembly resolution 1514 (XV) of 14 December 1960.206

Therefore the UN General Assembly has made a clear statement that to create peace and achieve human rights and dignity is to end alien, colonial and foreign domination and to promote peoples self-determination. If relationships such as the US/Native American Trust relationship (where the US Government maintains control over Native American trusts/monies, programs and resources), the Sami Parliament/Swedish Government relationship (where the Sami Parliament functions as an administrative branch of the Swedish Government and, for example, cannot legislate), or the State-dominantUN/sidelined Indigenous and Tribal leadership continue, these goals of peace will not be met. Moreover, According to UN General Assembly Resolution 53/243 Declaration and Programme of Action on a Culture of Peace, The United Nations should continue to play a critical role in the promotion and strengthening of a culture of peace
206

UN General Assembly, Resolution 53/243, Declaration and Programme of Action on a Culture of Peace, 6 October 1999, Article 3(n), adopted 107th plenary meeting 13 September 1999.

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worldwide.207 Further stated in the same Resolution is a phase supporting conflict resolution that would seem, in turn, to support equality between rights of States and the rights of Indigenous Peoples and Nations: Recognizing that peace not only is the absence of conflict, but also requires a positive, dynamic participatory process where dialogue is encouraged and conflicts are solved in a spirit of mutual understanding and cooperation.208 In fact, even further into the same Resolution, a suggestion is made to Study further the local or indigenous practices and traditions of dispute settlement and promotion of tolerance with the objective of learning from them.209 Such a study can be replaced with Indigenous Membership and equal representation and the ending of the segregation of the United Nations, so as to directly and equally include traditional and innovative Indigenous and Tribal Peoples and their organizational and procedural mechanisms. As architect of the League of Nations and Nobel Peace Prize winner Robert Cecil stated, a statement that is said to have summed up the feeling of the gathering during a speech to the final assembly of the League of Nations:
Let us boldly state that aggression wherever it occurs and however it may be defended, is an international crime, that it is the duty of every peace-loving state to resent it and employ whatever force is necessary to crush it, that the machinery of the Charter, no less than the machinery of the Covenant, is sufficient for this purpose if properly used, and that every well-disposed citizen of every state should be ready to undergo any sacrifice in order to maintain peace ... I venture to impress upon my hearers that the great work of peace is resting not only on the narrow interests of our own nations, but even more on those great principles of right and wrong which nations, like individuals, depend. The League is dead. Long live the United Nations.210

To utilize the UN Charter for ends of peace and dignity, States and their citizens must be open to the decolonization of Indigenous and Tribal Peoples and States, and the right of Indigenous and Tribal Peoples to political equality to States as peoples and nations. Until then, cultural genocide will continue through the perpetuating and internalizing of a segregationist international system. II. Dignity To exist in a constant state of having and needing to defend ones or the collectives fundamental rights against the State, businesses and the international community while being segregated from equal political voice for reasons of discrimination amounting to
207

UN General Assembly, Resolution 53/243, Declaration and Programme of Action on a Culture of Peace, 6 October 1999, Article 3(n), adopted 107th plenary meeting 13 September 1999. 208 UN General Assembly, Resolution 53/243, Declaration and Programme of Action on a Culture of Peace, 6 October 1999, Article 3(n), adopted 107th plenary meeting 13 September 1999. 209 UN General Assembly, Resolution 53/243, Declaration and Programme of Action on a Culture of Peace, 6 October 1999, Article 3(n), adopted 107th plenary meeting 13 September 1999. 210 "League of Nations Ends, Gives Way to New U.N.", Syracuse Herald-American, 20 April 1946, p. 12.

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apartheid is a violation of human dignity. In an isolated context this can be seen in the situations of human rights defenders addressing Indigenous rights who are criminalized or belittled by the State or the international criminal law regime due to being labeled terrorists to the State or some other menace to civilized colonial societies. The InterAmerican Commission on Human Rights addressed the violation of the right to dignity of human rights defenders in a chapter entitled Stigmatization and disparagement of human rights defenders as a result of criminalization of a 2011 report on the situation of human rights defenders in the Americas:
As to defenders right to honor and dignity, protected by Article V of the Declaration and Article 11 of the American Convention, the Commission has stated that sometimes criminal complaints made against human rights defenders and their organizations are accompanied by smear campaigns against them personally and against their work, which undermine the credibility and integrity of human rights work in the public eye. The United Nations Special Rapporteur on the situation of human rights defenders has expressed her concern in this regard and has stated that [t]he multitude of arrests and detentions of defenders also contributes to their stigmatization, since they are depicted and perceived as troublemakers by the population.211

The IACHR Report also states:

The phenomenon of criminalization affects defenders both individually and collectively. For a human rights defender personally, it can cause anguish, insecurity, frustration, and a feeling of powerlessness before State authorities; deprivation of liberty; unexpected economic burdens; and damage to the defender's reputation and credibility. In addition, criminalization stigmatizes human rights defenders collectively and sends an intimidating message to anyone who intended to denounce or had already denounced human rights violations. In this regard, the Commission observes that the initiation of baseless criminal actions may violate the rights to personal integrity, judicial protection, and judicial guarantees, as well as the honor and dignity of human rights defenders212

211

Inter-American Commission on Human Rights, Second Report on the Situation of Human Rights Defenders in the Americas, 31 December 2011, OEA/Ser.L/V/II., Doc. 66, p. 45, para. 122. Referenced in the footnotes of the original text: Article 5 of the American Declaration; Article 11 of the American Convention; UN Human Rights Commission, Report presented by the Special Representative of the UN Secretary General on Human Rights Defenders, Hina Jilani, Annual Report 2004, Doc. E/CN.4/2005/101, para. 55; Cfr. IACHR, Report on the Situation of Human Rights Defenders in the Americas, para. 95; UN General Assembly, Report of the Special Rapporteur Margaret Sekaggya on the situation of human Rights defenders, Human Rights Council, 13th Session, Promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development, A/HRC/13/22, December 30, 2009, paras. 32-33. 212 Inter-American Commission on Human Rights, Second Report on the Situation of Human Rights Defenders in the Americas, 31 December 2011, OEA/Ser.L/V/II., Doc. 66, p. 29, paras. 79 and 81, Referenced in text: On this matter see IACHR Hearing on criminalization of human Rights defenders, 140th Session, October 26, 2010 and All of these are respectively protected by Articles I, XVIII, XXVI and V of the American Declaration, as well as Articles 5, 8, 25 and 11 of the American Convention.

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The criminalizing of peoples and persons who are self-determining or fighting for selfdetermination, especially in regards to land and natural resources, is not a new phenomenon. British colonial rule in India codified, for example, the Criminal Tribes Act of 1871 which criminalized nomadic tribes, a law that has only appeared in a different form after independence of the State of India, as the Equations research and editing team explains in The Usual Suspects? The nomadic and de-notified tribes of Gujarat and Rajasthan from This is Our Homeland: A Collection of on the Betrayal of Adivasi Rights in India:
The dishonour which many nomadic and DNTs (de-notified tribes) face today is deeply rooted in the historical processes. The story of their exploitation and marginalisation can be traced back to the colonial period. The Criminal Tribes Act of 1871 was a measure to check possible criminal activities and was applied to hundreds of ethnic groups who were seen as potential threats to the British empire and society at large. This legal frame branded a number of marginalized groups, which were mainly nomadic and adivasis as innately criminal and made elaborate arrangements for their surveillance. provisions of the Act were meant to subjugate very basic rights of wandering people. For instance the Act had provision of reformatory settlement, to which any such notified tribe could be brought based on recommendation of local government intended to rehabilitate and civilise nomadic people. In 1947 when the entire country was celebrating the joy of independence, there were thousands of these communities who remained locked inside the reformatory settlements as they were born as criminals. Their 80 years of mass imprisonment ended only in August 1952, five years after the country got freedom and two years after India had its own written constitution, when the Criminal Tribes Act was repealed. With slight modifications and concessions, the Habitual Offenders Act is no different from its earlier avataar, which aims to subjugate people and violate their basic human rights.213

Along these lines and supporting liberation movements, at its seventeenth session, on 14 December 1962, the General Assembly adopted resolution 1803 (XVII), on Permanent sovereignty over natural resources, stating that violation of the rights of peoples and nations to sovereignty over their natural wealth and resources is contrary to the spirit and principles of the Charter of the United Nations and hinders the development of international co-operation and the maintenance of peace, acknowledging in the same Resolution that liberation movements are legally legitimate and youth shall be raised with a knowledge of dignity and equality in respect for the right of peoples to selfdetermination.214 In fact, representatives of liberation movements are to be seen as
213

Equations, The Usual Suspects? The nomadic and denotifed tribes of Gujarat and Rajasthan, (Editorial and research team) Aditi Chanchani, Kavita Kanan, Mamata Dash, Rosemary Viswanath, Sinduja Ananthkrishnan, and Vidya Rangan, This is Our Homeland: A Collection of on the Betrayal of Adivasi Rights in India, Equations, Bangalore: 2007, Chapter IV, p. 129-130. 214 At its twentieth session, the General Assembly, in resolution 2105 (XX) of 20 December 1965, entitled Implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples, recognized the legitimacy of the struggle of peoples under colonial rule to exercise their right to self-

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potential participants at the United Nations and are protected by the Geneva Convention relative to the Treatment of Prisoners of War through UN General Assembly Resolution 2621, Programme of action for the full implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples:
All freedom fighters under detention shall be treated in accordance with the relevant provisions of the Geneva Convention relative to the Treatment of Prisoners of War, of 12 August 1949; Representatives of liberation movements shall be invited, whenever necessary, by the United Nations and other international organizations within the United Nations system to participate in an appropriate capacity in the proceedings of those organs relating to their countries.215

Moreover, in regards to violations of dignity and resulting internalized violence, in a recent visit as Special Rapporteur on the Rights of Indigenous Peoples, James Anaya concluded a sense of loss, alienation and indignity throughout Indian (Native American) country in the United States, with an emphasis on a need for reconciliation due to legacies of the history of oppression.216 As mentioned previously, Indigenous male youth in the United States and Canada, amongst other developed States, exhibit the highest suicide rates in those States. Movements to counter the suicides within Indigenous communities in the United States and Canada include restoration of peace and dignity through the rebuilding and reinforcing of traditional Indigenous culture as well as political action.217

determination and independence and invited all States to provide material and moral assistance to the national liberation movements in colonial territories. The same principles were reaffirmed in resolution 2189 (XXI) of 13 December 1966, which also dealt with the implementation of the Declaration. At its twentieth session, the General Assembly included the following principle in the Declaration on the Promotion among Youth of the Ideals of Peace, Mutual Respect and Understanding between Peoples (resolution 2037 (XX) of 7 December 1965): Principle III: Young people shall be brought up in the knowledge of the dignity and equality of all men, without distinction as to race, colour, ethnic origins or beliefs, and in respect for fundamental human rights and for the right of peoples to self-determination. From Cristescu, Aureliu, UN Special Rapporteur of the Sub-Commission on Prevention of Discrimination and Protection of Minorities, The Right to Self-Determination Historical and Current Development on The Basis Of United Nations Instruments, United Nations, New York, 1981, Para. 43. 215 UN General Assembly, Resolution 2621 (XXV), Programme of action for the full implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples, 1863rd plenary meeting, 13 October 1970, Articles 6(a) and 6(c). 216 Mr. Anayas exact words were: In all my consultations with indigenous peoples in the places I visited it was impressed upon me that the sense of loss, alienation and indignity is pervasive throughout Indian country. It is evident that there have still not been adequate measures of reconciliation to overcome the persistent legacies of the history of oppression, and that there is still much healing that needs to be done. [emphasis added], from United Nations, Statement of the United Nations Special Rapporteur on the Rights of Indigenous Peoples, James Anaya, upon conclusion of his visit to the United States, OHCHR (Office of the High Commissioner for Human Rights) News, 4 May 2012. 217 For example, see the Indigenous Peace & Dignity Run, as described in this article: 2012 Peace and Dignity Journey Unites the Eagle and the Condor by Phyllis Kennemer, http://bellaspark.com/articles/entry/2012-peace-and-dignity-journey-unites-the-eagle-and-the-condor/

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The following excerpt from the Inter-American Court must be read in terms of States duty to desegregate UN Membership to include Indigenous Peoples, as an international organization:
One of the obligations that the State must inescapably undertake as guarantor, to protect and ensure the right to life, is that of generating minimum living conditions that are compatible with the dignity of the human person and of not creating conditions that hinder or impede it. In this regard, the State has the duty to take positive, concrete measures geared toward fulfillment of the right to a decent life, especially in the case of persons who are vulnerable and at risk, whose care becomes a high priority.218

Political equality and inclusion and equality of traditional Indigenous and Tribal cultures and leadership promotes and protects, as well as supports and encourages, dignity through peaceful process. III. Cultural Integrity Cultural integrity is the living link between dignity and the prevention of cultural genocide. As the Inter-American Commission on Human Rights (IACHR) has stated:
To that extent, the States lack of guarantee of indigenous and tribal peoples right to live in their ancestral territory may imply subjecting them to situations of extreme unprotectedness, which entail violations of their rights to life, to personal integrity, to a dignified existence, to food, to water, to health, to education and childrens rights, among others. In addition, disregard for the rights of the members of indigenous communities over their ancestral territories can affect, for the same causes, other basic rights, such as the right to cultural identity, the collective right to cultural integrity, or the right to collective survival of communities and their members. The extreme living conditions borne by the members of indigenous communities that lack access to their ancestral territory cause them to suffer, and undermine the preservation of their way of life, customs and language.219 (emphasis added)

The Inter-American Court in 2007 stated in the Matter of the Indigenous Community of Kankuamo that, regarding the adoption of measures necessary to protect the life and the personal integrity of all members that compose the indigenous community of Kankuamo, the Indigenous communitys autonomy, own governance, cultural integrity and identity and its special relationship to its territory must be protected by the State as fundamental elements of a dignified life at both the material and spiritual level.220 In fact, in this
218

Inter-American Court of Human Rights, Case of the Yakye Axa Indigenous Community v. Paraguay, Merits, Reparations and Costs, Judgment, 17 June 2005, Series C No. 125, para. 162. 219 Organization of American States, Inter-American Commission on Human Rights, Indigenous and Tribal Peoples Rights Over their Ancestral Lands and Natural Resources: Norms and Jurisprudence of the Inter-American Human Rights System, 30 December 2009, Oea/Ser.L/V/II. Doc. 56/09, p. 22. 220 Inter-American Court Of Human Rights, Provisional Measures with regard to The Republic of Colombia, Matter Of The Indigenous Community of Kankuamo, Order, 30 January 2007, para. 8(a)(v).

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regard as to the Indigenous communitys rights, the Inter-American Court of Human Rights (IACtHR) declared that the State must implement public, holistic and adequate policies that guarantee the respect, recognition, strengthening and protection.221 The same can be said for the responsibilities States have as Members of the United Nations, and that the United Nations has itself as an international governing body: these same expectations applied to States in regards to Indigenous Peoples and self-governing must be applied at the international level, with rights to Membership and true UN decolonizing as determined by the communities. While UNESCO could be seen to provide a buffer for the existence of cultural genocide, in fact UNESCO does not stop cultural genocide, nor does it offer judicial remedy or those experiencing cultural genocide. Not only has UNESCO declared World Heritage Sites without the free, prior and informed consent of Indigenous Peoples as discussed earlier, thereby undermining Indigenous peoples right to self-determination and decision-making in regards to their traditional lands, but also UNESCO in turn commits a violation of Indigenous Peoples collective cultural integrity. A UNESCO-based argument for the survival of cultures via designation of World Heritage Sites is faulty in that while some Indigenous lands are protected by UNESCO as a result in theory, the system of designation does not cover all Indigenous Peoples lands or correct the fundamental issue of UN political and legal segregation (Membership and benefits therein) and State apartheid which cause threat to Indigenous lands to begin with through violation of self-determination. For example, while the World Heritage Site of Laponia in Sweden/Sapmi may be initially be considered as an example of good practice in regards to co-management by Indigenous and non-Indigenous peoples, when in reality the World Heritage designation neither grants full self-determination over those lands to the Indigenous Sami nor land rights over all of Sapmi as a whole to Sami communities. Rather, the designation serves the UN. Indigenous culture is a way of life, a reality violated by the dividing of UNESCO between Indigenous territories and the favoring of only some peoples and territories as Heritage, while States, in the meantime, enjoy full protection and enhanced privileges via UN Membership. The further segregation and discrimination against some Sami experienced via the UNESCO system in this way must be considered in the context of a study concerning high Sami suicide rates as well as positive elements in Sami life:
young people see Sami culture as a way of life, and entirety, a lifestyle, a special way of feeling, thinking, learning and perceiving throughout life. Here is an example: To me its a special and fundamental relationship to everything else, to nature and people. Sami culture influences my values and perception in every way and unfortunately in contrast to Swedish society. The yoik, the Sami way of singing, is very important for me but I dont want to prioritize anything above anything else, because the culture is a whole, a way of thinking, feeling and perceiving throughout your life. Two questions focused on whether the respondents had felt forced to defend or explain Sami culture and the Sami way

221

Inter-American Court Of Human Rights, Provisional Measures with regard to The Republic of Colombia, Matter Of The Indigenous Community of Kankuamo, Order, 30 January 2007, para. 8(a)(v).

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of life. Here, 82% had often or sometimes felt forced to do so, and 90% had often or sometimes been asked to do so.222

In fact, Vital Bambanze, chair of the UN Expert Mechanism on the Rights of Indigenous Peoples (EMRIP) 2012, discusses the struggle for Indigenous cultural integrity around the world:
Speaking to indigenous communities and experts, I see the plight of my own community, the Batwa of the Great Lakes region in Central Africa, reflected in the struggles facing communities around the world. This MRG [Minority Rights Group International] volume shows how Endorois and Ogiek in Kenya, hill tribes in northern Thailand, San in Botswana and many more are locked in ongoing disputes with governments and private companies to secure their rights to their ancestral lands and access to natural resources. Similarly, Bedouin in the Middle East and Uighurs in Chinas Xinjiang province struggle to maintain their cultural integrity against their respective governments desire to put national development first.223

Moreover, James Anayas statement in May 2012 upon conclusion of his visit to the United States as UN Special Rapporteur on the Rights of Indigenous Peoples reiterates the importance of conformity to the UNDRIP, a document that essentially describes in detail how State/UN-mandated human rights can be translated into the rights of Indigenous Peoples, as a means to achieving Indigenous Rights as well as maintaining cultural integrity and self-determination:
Continued and concerted measures are needed to develop new initiatives and reform existing ones, in consultation and in real partnership with indigenous peoples, to conform to the Declaration, with a goal towards strengthening indigenous peoples own self-determination and decision-making over their affairs at all levels. The Declaration provides a new grounding for understanding the status and rights of indigenous peoples, upon which the legal doctrines of conquest and discovery must be discarded as a basis for decision-making by judicial and other authorities It is important to note, in this regard, that securing the rights of indigenous peoples to their lands is of central importance to indigenous peoples socio-economic development, self-determination, and cultural integrity. Continued efforts to resolve, clarify, and strengthen the protection of indigenous lands, resources, and sacred sites should be made224

IV. Decolonizing Friendly Relations: Redefining Colonialism

222

Omma, Lotta M., Holmgren Lars E., Jacobsson, Lars H., Being a Young Sami in Sweden: Living Conditions, Identity and Life Satisfaction, Journal of Northern Studies, Umea University and The Royal Skyttean Society, No. 1: 2011, p. 19. 223 Bambanze, Vital, Foreword - development with identity, State of the Worlds Minorities and Indigenous Peoples 2012, Minority Rights Group International, London: 2012, p. 7. 224 Statement of the United Nations Special Rapporteur on the Rights of Indigenous Peoples, James Anaya, upon conclusion of his visit to the United States, OHCHR News, 4 May 2012.

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UN Charter Article 1(2) states that one of the purposes of the United Nations is To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace.225 Article 1(4) states another purpose of the UN: To be a centre for harmonizing the actions of nations in the attainment of these common ends.226 Without providing self-determination for Indigenous Peoples within the United Nations itself, equal to that of States, the United Nations is not fulfilling the demands of either of these primary purposes. United Nations General Assembly Resolution 2625 of 1970, Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, states the rights to equality and selfdetermination of peoples, including the right to freely determine their political status without external interference:
By virtue of the principle of equal rights and self-determination of peoples enshrined in the Charter of the United Nations, all peoples have the right freely to determine, without external interference, their political status and to pursue their economic, social and cultural development, and every State has the duty to respect this right in accordance with the provisions of the Charter.227

In addition, Resolution 2625 explains that every State has certain duties to take actions to uphold the rights of peoples, including equal rights and self-determination, for the purposes of friendly relations and a speedy end to colonialism having due regard to the freely expressed will of the peoples concerned; and bearing in mind that subjection of peoples to alien subjugation, domination and exploitation constitutes a violation of the principle, as well as a denial of fundamental human rights, and is contrary to the Charter.228 The Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations also states that "No territorial acquisition resulting from the threat or use of force shall be recognized as legal".229 Similarly, non-recognition of territorial conquests is a general principle of law contained within Article 38 of the Statute of the International Court of

225 226

UN Charter, Article 1(2). UN Charter, Article 1(4). 227 United Nations General Assembly, Resolution Concerning Friendly Relations and Co-operation United Nations, 1970. 228 United Nations General Assembly, Resolution Concerning Friendly Relations and Co-operation United Nations, 1970. 229 United Nations General Assembly, Resolution Concerning Friendly Relations and Co-operation United Nations, 1970.

2625, Declaration on Principles of International Law among States in accordance with the Charter of the 2625, Declaration on Principles of International Law among States in accordance with the Charter of the 2625, Declaration on Principles of International Law among States in accordance with the Charter of the

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Justice as well as a main component of the Declaration on the Strengthening of International Security (General Assembly resolution 2734 (XXV)).230 While not currently a reality practiced due to externally(State)-controlled Indigenous and Tribal self-determination, in fact Indigenous and Tribal lands claimed through conquest to be constituting States territories do not qualify as State territory by international law. Therefore, Indigenous Peoples human and collective rights to self-determination and thus decolonization override State claims to territorial integrity or State borders as containing traditional Indigenous lands unless the State is governed fully by said Indigenous Peoples.231 As Douglas Sanders so directly states it in his article Indigenous Peoples at the United Nations, Colonialism denied the equality and independence of indigenous peoples.232 He continues on to explain,
Two related developments subverted the early recognition of indigenous peoples as subjects of international law. First, with the success of colonialism, the new States established by the colonial process asserted full domestic jurisdiction over the indigenous peoples. International relations became internal relations. Treaties became subject to domestic law. The second development was the creation of an international system which recognized only a limited number of entities as sovereign States, eliminating other categories involving limited sovereignty. By the end of the 19th century, international law had a closed and very short list of States.233

230

Cristescu, Aureliu, UN Special Rapporteur of the Sub-Commission on Prevention of Discrimination and Protection of Minorities, The Right to Self-Determination Historical and Current Development on The Basis Of United Nations Instruments, United Nations, New York, 1981, para. 200. 231 Territorial acquisitions or other advantages gained through the threat or wrongful use of force cannot have legal effect, because international law cannot confer legality upon the consequences of wrongful acts incompatible with the Charter. In such cases, there should be full restitution. The traditional doctrine of acquisition of legal title by conquest has been rejected as anachronistic and contrary to the Charter of the United Nations. Colonial domination and oppression, whatever their origin, clearly constitute aggression against the peoples concerned. Consequently, it is not legitimate to claim that the territory of a colony, or territory conquered or acquired by force or by the threat of force, forms an integral part of the territory of the State which administers it, and on that ground to deny independence to the people of such territory., from Cristescu, Aureliu, UN Special Rapporteur of the Sub-Commission on Prevention of Discrimination and Protection of Minorities, The Right to Self-Determination Historical and Current Development on The Basis Of United Nations Instruments, United Nations, New York, 1981, para. 202-203. 232 Sanders, Douglas, Indigenous Peoples at the United Nations, in Eds. Theo C. van Boven, Cees Flinterman, Fred Grnfeld, Rita Hut, The Legitimacy of the United Nations: Towards an Enhanced Legal Status of Non-State Actors: Proceedings of the Symposium of Experts organized by The European Centre for Development Policy Management (ECDPM, Maastricht) and the Centre for Human Rights of the University of Maastricht October 1995, SIM Special No. 19, Utrecht: 1997, p. 93. 233 Sanders, Douglas, Indigenous Peoples at the United Nations, in Eds. Theo C. van Boven, Cees Flinterman, Fred Grnfeld, Rita Hut, The Legitimacy of the United Nations: Towards an Enhanced Legal Status of Non-State Actors: Proceedings of the Symposium of Experts organized by The European Centre for Development Policy Management (ECDPM, Maastricht) and the Centre for Human Rights of the University of Maastricht October 1995, SIM Special No. 19, Utrecht: 1997, p. 93-94.

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However, as early as 1970 the UN General Assembly has clearly stated to the UN Decolonization Special Committee to assist it in the Best ways and means to end colonialism in the Programme of action for the full implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples:
The Special Committee is hereby directed: (a) To continue to assist the General Assembly in finding the best ways and means for the final liquidation of colonialism234

Thus, in order to decolonize friendly relations and achieve equality and selfdetermination, and a fulfilling of the rights of Indigenous Peoples, a new definition of colonialism must be adopted by the UN. The new and truer definition of colonialism must include land bases and territories that did not before pass the UN-segregating salt water test235 or blue water theory- those Indigenous and Tribal Peoples traditional territories that are not separated by salt water from their colonizing State powers, such as the tribes and Indigenous Peoples within what are currently the United States, Canada, Australia and New Zealand, Sapmi (Sweden, Russia, Finland, and Norway), and of territories handed to new States under uti possidetis that are traditional Tribal and Indigenous lands. Jesse Gutman writes in the article Winds of Change or Hot Air? Decolonization and the Salt Water Test,
The importance of these [GA 1514 and 1541] resolutions must be considered in a nuanced way not as a simply effervescent response of the international community to the liberation struggles of the global south, but instead as geopolitical posturing of Western powers using international legal instruments. Remnants of colonial discourse remains within United Nations institutions art. 38 of the statute of the International Court of Justice, in listing the sources of international law, mentions the laws of civilized nations, thereby implicitly recognizing an uncivilized Other. In evaluating the development of international law and its norms, we must be wary of taking an approach which ignores the socio-political factors of the context. Resolutions 1514 and 1541 helped usher an important shift in the dialogue of international law but was a hesitant response to global events, not prosaic law-making on the part of the United Nations.236

234

UN General Assembly, Resolution 2621 (XXV), Programme of action for the full implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples, 1863rd plenary meeting, 13 October 1970, Article 9(a). 235 One day after Resolution 1514, Resolution 1541 (XV) was passed a more substantive document specifically requiring the transfer of all information (with regard to art. 73(e), UN Charter) about states to the peoples of those territories. However, in defining a colonial situation, Resolution 1541 introduced what has become known as the salt water test or salt-water thesis. A colonial situation is a territory which is geographically separate and is distinct ethnically and/or culturally from the country administering it (Principle IV). Any subjugated entity geographically separate, by ocean or sea, qualifies as a colonial entity hence the title, salt-water. Any internal domination or adjacent colonization not geographically separated did not count as colonial., from Gutman, Jesse, Winds of Change or Hot Air? Decolonization and the Salt Water Test, Legal Frontiers: McGills Blog on International Law: 11 November 2010. 236 Gutman, Jesse, Winds of Change or Hot Air? Decolonization and the Salt Water Test, Legal Frontiers: McGills Blog on International Law: 11 November 2010.

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The General Assembly has made it clear that violations by colonial powers of the principles contained within the UN Charter of self-determination and enjoyment of peoples of their resources give reason for the full and rapid implementation of the Declaration [on the granting of independence to colonial countries and peoples] in those territories.237 As per the Security Council, General Assembly Resolutions, as adopted by the majority, should be considered a source of law, and this in the context of the principle of self-determination and Resolution 1514, amongst others, and the International Covenants on Human Rights apply. Moreover, the Security Council mandates that States should develop friendly relations with other States based on the principle of selfdetermination of Peoples.238 Thus States should enable UN Membership to allow for true Indigenous self-determination and UN desegregation. UN Special Rapporteur of the Sub-Commission on Prevention of Discrimination and Protection of Minorities, Aureliu Cristescu, wrote in the 1981 report The Right to SelfDetermination that, considering the fact that the UN Charter addresses the right to selfdetermination in both Article 1(2) (Chapter I: "Purposes and Principles") and Article 55 (Chapter IX: "International Economic and Social Co-operation"), and that equal rights and self-determination of peoples create one principle norm that is a provision of the UN Charter, where the respect for this norm is the basis for a development of friendly relations and universal peace, and that

237

For example as supported in General Assembly Resolutions 2288 (XXII)(1622nd Plenary meeting, 7 December 1967), 3117 (XXVIII)(2198th plenary meeting, 12 December 1973) and 3299 (XXIX)(2318th plenary meeting, 13 December 1974), (a) colonial Powers which deprive colonial peoples of the exercise and full enjoyment of these rights, or which put the economic or financial interests of their own nationals or of nationals of other countries before those of the indigenous population, are violating their obligations under the United Nations Charter; and (b) any practice which leads to the exploitation of the natural resources of territories under colonial domination contrary to the interests of the indigenous population, or which results in the violation of its economic and social rights and the perpetuation of colonial rgimes, runs counter to the principles of the Charter and impedes the full and rapid implementation of the Declaration in those territories. As stated by Cristescu, Aureliu, UN Special Rapporteur of the SubCommission on Prevention of Discrimination and Protection of Minorities, The Right to SelfDetermination Historical and Current Development on The Basis Of United Nations Instruments, United Nations, New York, 1981, p. 10, para. 52. 238 It was observed that the principle [of self-determination] had been accepted since the end of the nineteenth century as one of the basic elements of modern democracy. Many quite recent international instruments had confirmed the principle, in particular, the Charter of the United Nations (Article 1, paragraph 2, and Articles 55, 73 and 76), the International Covenants on Human Rights and various General Assembly resolutions, including resolution 1514(XV) containing the Declaration on the granting of independence to colonial countries and peoples, and resolutions 1702(XVI), 1807(XVII), 1810(XVII), 2105(XX), 2131(XX), 2160(XXI), 2403(XXIII) and 2465(XXIII), adopted between 1961 and 1968. The principle was also confirmed in Security Council resolutions, in particular resolution 246(1968) of 14 March 1968. The view was expressed that the above General Assembly resolutions should be considered as a source of law, since they had been adopted by an overwhelming majority. It was pointed out that the principle of equal rights and self-determination of peoples was a cardinal element of the Charter, being the basis on which friendly relations between States should develop, from Cristescu, Aureliu, UN Special Rapporteur of the Sub-Commission on Prevention of Discrimination and Protection of Minorities, The Right to Self-Determination Historical and Current Development on The Basis Of United Nations Instruments, United Nations, New York, 1981, paras. 59 and 60.

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an essential element of the principle [the singular norm of equal rights and selfdetermination] in question, is a free and genuine expression of the will of the peoples; and thus to avoid cases like those alleged by Germany and Italy. That the principle as one whole extends as a general basic conception to a possible amalgamation of nationalities if they so freely choose.239

Through a lack of clear, transparent, negotiated and rights-based decolonization, with applications of new visions of Membership, government, tradition and alternatives to Statehood Indigenous Peoples and States have become enmeshed in internal and friendly relations conflict over governing mechanisms, decision-making, and what selfdetermination constitutes. The proposal of this thesis is that States have an obligation under General Assembly Resolution 2625, Declaration on Friendly Relations, amongst other mandates and duties, to promote the amending of the UN Charter to include Membership to Indigenous Peoples through UN Decolonization:
All States shall comply in good faith with their obligations under the generally recognized principles and rules of international law with respect to the maintenance of international peace and security, and shall endeavour to make the United Nations security system based on the Charter more effective To this end: (b) States shall co-operate in the promotion of universal respect for, and observance of, human rights and fundamental freedoms for all, and in the elimination of all forms of racial discrimination and all forms of religious intolerance;240

Along these lines, this Membership shall be obtained or legally supported through political self-determination by Indigenous Peoples via UN Decolonization as provided by friendly relations including the emergence into any other political status freely determined by a people:
The establishment of a sovereign and independent State, the free association or integration with an independent State or the emergence into any other political status freely determined by a people constitute modes of implementing the right of self-determination by that people.241

Moreover, in the spirit of friendly relations Indigenous self-determination and decolonization therein do not disrupt the legal territorial integrity (under international
239

Leading up to this thesis authors paraphrased text and quoted excerpt, Cristescu stated in his report, The debates of the Sub-Committee of Committee 1 of Commission I included an exchange of views on the meaning of the principle of equal rights and self-determination of peoples. This discussion was summarized as follows in the report of the Rapporteur of this Sub-Committee (I/l/A) to Committee I/I (1 June 1945), from Cristescu, Aureliu, UN Special Rapporteur of the Sub-Commission on Prevention of Discrimination and Protection of Minorities, The Right to Self-Determination Historical and Current Development on The Basis Of United Nations Instruments, United Nations, New York, 1981, para. 19. 240 United Nations General Assembly, Resolution 2625, Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, 1970. 241 United Nations General Assembly, Resolution 2625, Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, 1970.

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law) of States, because Colonial States cannot claim territorial integrity containing the territories of colonized Indigenous Peoples. As stated in Resolution 2625, under the UN Charter the territory of a colony or non-self-governing territory has a status separate and distinct from the territory of the State administering it,242 existing until the people of the colony or Non-Self-Governing Territory have exercised their right of selfdetermination in accordance with the Charter, and particularly its purposes and principles.243 Therefore, Indigenous Peoples right to UN Decolonization includes selfdetermination not only by the political option of UN Membership, but also though cultural integrity and the ending of cultural genocide through the recognition of Indigenous Peoples rights over the rights of States to colonized land. 6. DISCUSSION In examining from a retroactive, self-determination-based perspective the approach of the League of Nations towards Indigenous Peoples perpetuated an unequal treatment of Indigenous Peoples in claiming them unable to stand by themselves, and therefore Indigenous Peoples were not seen to have legal status under international law. As a result, territorial borders recognized were those of dominant colonial forces. However, the legal human rights issue at hand that can be seen in the Covenant of the League of Nations, the Charter of the United Nations, and contradictions between the human rights mechanisms of today and the structure of the international organizations of the United Nations is one that must be addressed. In fact, Many States acting as members of the United Nations, including the United States, have been formed and reformed according to principles of freedom of speech and inclusion of difference. For example, as Justice Bandeis warned in his addressing of United States Supreme Court case Whitney v. California, 1927,244 the founding fathers of the United States knew that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies Those who won our independence by revolution were not cowards. They did not fear political change. They did not exalt order at the cost of liberty If there be time to expose through discussion the falsehood and fallacies the remedy to be applied is more speech, not enforced silence.245

242

United Nations General Assembly, Resolution 2625, Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, 1970. 243 United Nations General Assembly, Resolution 2625, Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, 1970. 244 Miss Whitney was convicted of the felony of assisting in organizing, in the year 1919, the Communist Labor Party of California, of being a member of it, and of assembling with it. These acts are held to constitute a crime because the party was formed to teach criminal syndicalism. The statute which made these acts a crime restricted the right of free speech and of assembly theretofore existing. Supreme Court of the United States, Whitney v. California, 274 U.S. 357 (1927). 245 Supreme Court of the United States, Whitney v. California, 274 U.S. 357 (1927), referenced in Speyer, Katherine E., New York State Club Association v. City of New York: The Demise of the All-Male Club, Pace Law Review, Vol. 10, Issue 1: Winter 1990, Article 7, p. 288, footnote 68.

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In order to treat all nations as equals, including Indigenous Peoples Nations, the United Nations must allow for Indigenous and Tribal Peoples to stand on their own and represent themselves equal toe States at all levels of the UN Organization. Cayuga Chief Deskaheh and countless other Indigenous leaders and representatives have attempted time and time again to reach equality at the UN table with States, only to be met by closed doors and segregation into the sidelines of forums and conferences. The lack of rights to selfdetermination in the UN itself equal to that of States has lead to parallel Indigenous forums, protests and conferences literally pitched in tents and meeting spaces outside of major UN conferences, such as Rio +20 June 2012 as mentioned, and the UNPFII which is not unlike a parallel General Assembly with little Indigenous powers and heavy State presence246 - all of which are felt to be only partial inclusion to Indigenous leaders and representatives. As a result, Indigenous Peoples turn to creating declarations of their own on the sidelines at each UN conference, and may or may not be allowed to submit their declarations as recommendations or information transmittal to the UN, but they are not permitted to participate as Members. For true peace, dignity and equality to exist in the world as claimed to be mandated by the UN human rights legal regime, Indigenous Peoples must not be made to continue to struggle, literally, outside of the doors of the United Nations for legal and political status equal to States. The United Nations must recognize that contiguous-land-based colonized peoples are and have been self-governing nations and tribes who have their own representation. Despite being capable of signing treaties, making speeches, organizing their own communities and being self-determining nations and tribes amongst themselves, Indigenous Peoples have been repeatedly treated by colonial and policy lawmakers as unable to participate as equals in effecting the colonial and post-colonial mechanisms alongside States due to their lack of development. For example, at the Eighth International Conference of Americas States, for example, Resolution XI of 21 December 1938 was created, which declared that "the indigenous populations, as descendants of the first inhabitants of the lands which today form America, and in order to offset the deficiency in their physical and intellectual development, have a preferential right to the protection of the public authorities."247 This unequal treatment after Indigenous leaders time and time again have represented their own peoples and demanded fair treatment, including Chief Deskaheh. Meanwhile, States such as the United States continue to break the treaties they have made with Indigenous Peoples and tribes, while simultaneously being granted the regional and international right and status of protecting them. To this day Indigenous Peoples continue to feel attacked by the very State and international mechanisms that are claiming the rights to protect and thus speak for and determine the future for them. Alberto Saldamando, legal council for Indigenous Environmental Network (IEN), stated at the Indigenous parallel summit encampment,

246

The UNPFII members consist of sixteen experts eight Indigenous persons nominated by Indigenous organizations and appointed by the President of ECOSOC, and eight State Member representatives elected by ECOSOC. 247 Eighth International Conference of Americas States brought, for example, Resolution XI of 21 December 1938.

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What they are doing here in the UN is to create more markets, and the fact is, the only resources that remain on this planet are on Indigenous Peoples lands. This is not a matter of words, its a matter of survival. What you see before you is a gathering of people who are under attack.248

The author of the article quoting Saldamando further narrates,

At Rio Centro, the vast conference center where Rio+20 took place last week, the food court was adorned with artful photos of Amazonian natives with bare chests and ceremonial paint and feathers scenically situated in their natural habitats. But nowhere in the conference were such people visible in flesh and blood. Indeed, when 400 Indigenous representatives arrived en masse from the nearby Kari-Oca encampment to deliver a declaration to UN officials, they were rebuffed by Brazilian military police and prevented entrance by UN security.249

Article 1(2) of the UN Charter states another purpose of the United Nations to be: to develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace. However, the United Nations has failed to permit for equality and selfdetermination of Indigenous and Tribal nations and peoples, large or small in numbers, by maintaining a salt water theory definition of colonialism, thus creating a discrimination and segregation effect in its decolonization policies, and in permitting only States to join as members of the UN, and thus creating an effect of political apartheid via cultural-political segregation and discrimination. Apartheid is illegal under international law as is discriminatory and in violation of Indigenous Peoples right to selfdetermination, and while most major State powers of the United Nations have not ratified the Apartheid Convention, the Apartheid Convention can be considered customary law within the operations of the United Nations itself. Chapter II of the United Nations Charter concerns Membership to the United Nations. Articles 3 and 4 of the UN Charter mandate that Membership to the UN is open to peace-loving States. However, the General Assembly has declared in UN Decolonization Resolution 1514, Declaration on the granting of independence to colonial countries and peoples:
All States shall observe faithfully and strictly the provisions of the Charter of the United Nations, the Universal Declaration of Human Rights and the present Declaration on the basis of equality, non-interference in the internal affairs of all States, and respect for the sovereign rights of all peoples and their territorial integrity.250

248

Conant, Jeff, Native peoples left out in the cold at Rio+20, Global Justice Ecology Project, Climate Connections, 26 June 2012, http://climate-connections.org/2012/06/26/native-peoples-left-out-in-the-coldat-rio20/. 249 Conant, Jeff, Native peoples left out in the cold at Rio+20, Global Justice Ecology Project, Climate Connections, 26 June 2012, http://climate-connections.org/2012/06/26/native-peoples-left-out-in-the-coldat-rio20/. 250 United Nations General Assembly, Resolution 1514 (XV), Declaration on the granting of independence to colonial countries and people, 947th plenary meeting, 14 December 1960, para. 7.

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Equality, sovereign rights of all peoples and their territorial integrity must be achieved through adapting and updating the United Nations Charter to the international human rights standards of today in regards to the rights of Indigenous Peoples, decolonization, and self-determination. UN Human Rights encompass, first and foremost, peace, dignity, and self-determination. From the foundation of those rights the International Covenants of Civil and Political and Social, Economic and Cultural Rights have been constructed as have many other United Nations treaties concerning human rights. UN Charter Chapter I (Purposes and Principles) Article 1 states:
(3) To achieve international cooperation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion; and (4) To be a center for harmonizing the actions of nations in the attainment of these common ends.251

Article 8 of the UN Charter mandates The United Nations shall place no restrictions on the eligibility of men and women to participate in any capacity and under conditions of equality in its principal and subsidiary organs.252 These Articles support the inclusion of Indigenous Peoples who are not formed as States due to their own non-State cultural leadership traditions to have access to Membership and equal status in the principle organs of the United Nations, including the General Assembly and Security Council. The UN and State-mandated relationship of non-Indigenous State Protection of Indigenous Peoples and Tribes considered to be within the State colonial territory(/ies), and ultimate decision-making powers over their affairs and lands at the expense of the sovereignty, self-determination and UN decolonization of Indigenous Peoples and Tribes is a consistent historical and current occurance around the world, however this relationship must be decolonized and equalized. In situations of segregation and discrimination it has not only been the exclusive members of an organization who have been discriminating against non-members in regards to access, but also courts, policy or legislation that has acted to determine the legality of segregation or discrimination. Placing the power of the Members of the organization of the United Nations to determine who and what constitutes UN Membership only perpetuates the unequal power balance between self-determining Indigenous Peoples with their own organization structures and the organization of States. The United Nations is currently a system that has created an invisible wall between States and Peoples, namely Indigenous and Tribal Peoples. The wall is maintained by the structure and power balance of the UN mechanisms.253 In particular this effect can be seen in the fact that, in accordance with Article 18(2) and 18(3), Members are by a voting system the decision-makers in regards to who may be granted Membership. Thus, with an interest in maintaining ultimate State control of the
251 252

UN Charter, Chapter I (Purposes and Principles), Article 1. UN Charter, Chapter III (Organs). 253 For further elaboration on this issue consider UN Charter Article 9(1) (section: Composition) and Article 10 (section: Functions and Powers) of Chapter IV: The General Assembly.

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territories of Indigenous Peoples and thus resources, legal status as State powers, and materials for business and trade, States have designated themselves with the exclusion power at the United Nations to vote against matters that would allow for full and lawful self-determination of Indigenous Peoples, such as in UN Membership and peace and security issues. This apartheid-like system against Indigenous Peoples must be reviewed in the spirit of self-determination by the International Court of Justice. The Preamble of the United Nations Charter states a primary goal of the establishment of the international organization to be to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small254 with Article 1(1) in Chapter 1: Purposes and Principles, reading:
The Purposes of the United Nations are: To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace255

Acts of aggression to be removed must include segregation and discrimination in regards to self-determination. Peace must include psychological and spiritual peace and collective harmony. High rates of suicides in Indigenous communities in the most developed States of the world and the United Nations speak to a lack of peace. Indigenous Peoples themselves feel that, despite the salt water theory of international law and thus currently discriminatory UN Decolonization procedures, policies and processes, they did and still do experience colonialism and colonization by the States and businesses who have occupied and seek to use Indigenous and Tribal lands without Indigenous and Tribal consent. In 1975 the ICJ sent a mission to the territory of the Western Sahara, visiting also Morocco, Mauritania and Algeria. Sidi Omar states in his article The right to selfdetermination and the indigenous people of Western Sahara:
The UN decision marked the beginning of what would be a major turning point in the process of decolonization of Western Sahara... In its report, the mission stated that a huge majority of Sahrawis wanted independence and were against the territorial claims of both Morocco and Mauritania.256

If the UN can send a mission to the territory of a peoples to learn about their desires for self-determination in the context of decolonization initiated by State(s), then the UN will only accomplish its human rights goal of self-determination and equality for peoples in
254 255

UN Charter, Preamble. UN Charter, Article 1(1). 256 Omar, Sidi M., The right to self-determination and the indigenous people of Western Sahara, Cambridge Review of International Affaris, Vol. 21, Issue 1: March 2008, p. 41-57.

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the world if missions are sent to realize the extent to which all Indigenous Peoples desire self-determination and decolonization in its many forms and options, and if, in turn, those Peoples are allowed access to represent themselves and their matters to the Court (ICJ or otherwise) on issues relating to their territories, regardless of their lack of legal status concerning statehood and in light of their legal status as self-determining, decolonizing Indigenous and Tribal Peoples and Nations. To begin a UN decolonization and self-determination process by naming the administering power to the colonizing State is to undermine self-determination itself. Indigenous Peoples must have self-determining rights from the beginning of the process, including the right to submit directly to the United Nations that they are a non-selfgoverning territory and desire to decolonize, even if the State claims the Indigenous Peoples are self-governing. The failure of the United Nations to uphold its own selfdetermination, dignity and equality mandates, even after documentation of Indigenous and Tribal peoples desires to be self-determining, has led to even greater human rights violations and humanitarian crises of Indigenous and Tribal peoples in developed States, as discussed in the section on cultural genocide in this thesis. Resulting violations have also occurred to all Indigenous and Tribal Peoples under international colonial domination, including the Sahrawis in the Western Sahara. Sidi Omar explains:
In a situation where the logic of realpolitik was clearly allowed to displace international law, the international community did not intervene to forestall the consequences of the agreement which eventually led to the forcible and illegal annexation of Western Sahara by Morocco and Mauritania in 1975. The immediate result was the forced exile of a large number of the Sahrawi population and their eventual settlement in southwest Algeria. There are roughly 150,000 Sahrawis who have been living in refugee camps for the past three decades. In the territories under Moroccan occupation, the Sahrawi population has been systematically subjected to gross abuses of human rights. In addition, Morocco has been engaged in massive resettlement campaigns whereby Moroccans are given incentives to settle in Western Sahara to the detriment of its local population.257

The Sahrawi Arab Democratic Republic (SADR) of the Western Sahara, representing the Indigenous Sahrawi of the territory that was concerned in the ICJ Western Sahara case, is a full member of the African Union (since 1984) and is recognized by more than 80 countries. If the African Union can take such a progressive step towards the recognition of the equality of Indigenous and Tribal Peoples in regards to political and legal Membership in an organization, despite uti possidetis and even if the Peoples are not recognized as a State, the United Nations also can do so. A peoples should not have to undergo armed rebellion, coercion by rebels, mass genocide or other forms of violence and terror, or exist in a constant state of having to fight legally, spiritually or otherwise for their rights, so to defend themselves against UN Member State aggression, for the United Nations to take notice of the violations of their rights to self-determination and their right to decolonization and self-representation at the UN. Acts of aggression
257

Omar, Sidi M., The right to self-determination and the indigenous people of Western Sahara, Cambridge Review of International Affaris, Vol. 21, Issue 1: March 2008, p. 41-57.

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committed by States worthy of permitting for enactment of the UN Decolonization process due to violations of the Declaration on Friendly Relations must also include in codification policies that cause psychological, cultural and the suffering of traditional healers and livelihoods. While the United Nations currently fails to allow Indigenous and Tribal Peoples Membership into the UN so that Indigenous and Tribal Peoples may have a seat at the table to directly influence international law and politics, the Organization is allowing for continual violation of self-determination equality and dignity, but also cultural genocide. Cultural genocide is occurring when the Indigenous and Tribal peoples are so disempowered by continued colonialism that they are either being annihilated by State forces for taking up (or being stereotyped as having taken up) arms in self-defense, losing their lands due to lack of legal remedies where their cultures that are living and intricately tied to the lands are themselves experiencing death, or self-annihilating through internalized battles through suicides, crime, and addictions. Article I of the Convention on the Prevention and Punishment of the Crime of Genocide states that genocide may occur in times of peace or war: The Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish.258 While the Genocide Convention does not include cultural genocide, many Indigenous Peoples feel that cultural genocide does exist, and so much so that cultural genocide is readily discussed and challenged in Indigenous and Tribal rights movements and organizations as well as Indigenous and Tribal communities and Indigenous suicide prevention movements. Article III(e) of the Genocide Convention states that the act of complicity in genocide is punishable. When the United Nations Member States and functioning bodies do not permit for equal treatment of and opportunities of participation for Indigenous and Tribal Nations to States, they are acting in complicity in genocide, segregation and apartheid treatment experienced by Indigenous Peoples. In continuing segregation at the UN in regards to Membership and thus voice of Indigenous Peoples equal to States, Indigenous Peoples are unable to speak out as voting and fully-contributing Members or propose decisions concerning their nations realities. In denying Indigenous Peoples the right to decolonize according to transparent UN standards regarding options in the decolonization process, Member States and the UN bodies are remaining complicit in mass violations of human rights to liberty, peace, dignity and self-determination. For example, Asia Indigenous Peoples Pact writes:
Indigenous peoples in Asia have historically been dominated through colonization and/or through nation-state building and the subsequent globalization. They are currently marginalized and subordinated economically, politically, and culturally Many face discrimination and racism on a daily basis. All too often, their territories are sacrificed for state-sponsored development and corporate projects that lead to gross and wide-scale violations of their collective rights, especially to their lands, territories, and resources.

258

United Nations, Convention on the Prevention and Punishment of the Crime of Genocide, approved and proposed for signature and ratification or accession by General Assembly resolution 260 A (III) of 9 December 1948, Entry into force: 12 January 1951.

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Militarization, plunder of resources, forced relocation, cultural genocide, and discrimination in everyday life are common experiences The wellbeing and development of indigenous peoples is directly related to the respect, recognition, protection and enjoyment of their individual and collective rights. The interrelated rights of indigenous peoples to lands, territories and resources and to self-determination are fundamental to the collective survival and development of indigenous peoples based on their distinct identities, cultures, spirituality and socio-political institutions.259

Article IV of the Genocide Convention states: Persons committing genocide or any of the other acts enumerated in article III shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals. Article VIII states: Any Contracting Party may call upon the competent organs of the United Nations to take such action under the Charter of the United Nations as they consider appropriate for the prevention and suppression of acts of genocide or any of the other acts enumerated in article III. Under Article IX of the Genocide Convention contracting parties may take a dispute relating to the interpretation, application or fulfillment of the present Convention, including those relating to the responsibility of a State for genocide or for any of the other acts enumerated in article III to the ICJ, however if Indigenous Peoples are not permitted Membership at the United Nations, they continue to not have access to being contracting parties to the Genocide Convention or to having effective remedy via the ICJ. Without and equal voice at the international political and organizational UN table alongside States, Indigenous Peoples are forced to continue to live in a state that allows for violations of their dignity and self-determination, and thus violates international human rights law that the United Nations claims to uphold. Moreover, Martinez-Cobo explains in his study that genuine and not symbolic political self-representation is necessary, and points to the fact that Indigenous Peoples have there own cultural, national and legal heritage(s).260 The same standards, or criteria, of equality and respect for culture Martinez-Cobo is suggesting be held to States in regards to Indigenous Peoples should in fact be held to the
259 260

Asia Indigenous Peoples Pact, Development Aggression as Economic Growth, Chiang Mai: 2012, p.

7.

the representation of indigenous peoples remains inadequate and is sometimes purely symbolic. The necessary measures must be taken to ensure that their representation in public office is genuine and just Another aspect which must be considered, albeit in a preliminary manner, is the self-determination and autonomy demanded by indigenous peoples and nations It has been stressed that indigenous peoples, by their very existence, have the natural and original right to live freely on their own territories It is beginning to be acknowledged that indigenous peoples have their own national identity based on historical realities that transcend mere solidarity vis--vis discrimination and exploitation respect for the forms of autonomy called for by indigenous peoples is the necessary condition for guaranteeing and ensuring these rights The specific forms of internal organization of these peoples are an inherent part of their cultural and legal heritage, which has contributed to their cohesion and to the maintenance of their social and cultural tradition., from United Nations ECOSOC, UN Commission on Human Rights, Final Report (last part) submitted by the Special Rapporteur, Mr. Jose R. Martinez Cobo Sub-commission on prevention of discrimination and protection of minorities, Item II of the provisional agenda, Study of the Problem of Discrimination Against Indigenous Populations, 30 September 1983, paras. 261 and 263-267.

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United Nations. Many States are colonial entities built upon lands illegally taken from Indigenous Peoples while enacting the cultural and actual genocide of those Indigenous Peoples. Indigenous Peoples have the right, through the United Nations human rights regime, to UN Decolonization by their method of choice, including how they would like to or not like to be tied politically and territorially to the governing colonial State. The United Nations must hold itself, first and foremost, accountable to its own standards and ideals it promotes. Without permitting Indigenous Peoples Membership as selfrepresenting, self-determining peoples equal to States and with the requirement of having to politically form a State for Membership, the international organization is creating a cultural and political system of apartheid in its own mechanisms. Both physical and psychological violence is experienced by Indigenous Peoples as a result of the unequal rights States maintain as the sole UN Members, segregating and disharmonizing between Indigenous nations and non-Indigenous States the channels of access and power to international decision-making, justice mechanisms, negotiating, initiating, voting and over-all representation. The criminal physical violence Indigenous Peoples suffer as a result of this apartheid is manifested at the State level in racist policies, language, jurisprudence, legislation and Trust relationships leading to land loss, forced rebellion and criminalization. The psychological violence Indigenous Peoples experience as a result of the international apartheid system includes attacks to dignity, self-worth, control over identity, and the experience of being forced to exist in a constant condition of fighting for the collective rights deserved. As previously discussed, these psychological forms of violence experienced by the international and State regimes further lead to the internalization of violence and lead to suicides, domestic abuse, addictions, crime and furthered dependency or assimilation and loss of culture. As explained in Unikkaartuit: Meanings of Well-Being, Unhappiness, Health, and Community Change Among Inuit in Nunavut, Canada, Inuit community action toward suicide prevention and community wellness is part of a larger movement of Indigenous self-determination.261 With the inclusion of Indigenous and Tribal Peoples in UN Membership and thus UN desegregation, development of the international legal system(s) must end any discrimination against equal negotiations by Indigenous Peoples concerning the inclusion of traditional Indigenous customary laws in the international legal systems,
A basic reference should be made here to the fact that administration of justice takes very little account, or none at all, or traditional customary indigenous law and applies the law which corresponds to the predominant sectors of the population. This means that the indigenous population has imposed on it an alien legal system which it has never voluntarily accepted since it has preserved in practice its own customary legal system which has developed in the course of history.262

261

Michael J. Kral, Lori Idlout, J. Bruce Minore, Ronald J. Dyck, Laurence J. Kirmayer, Unikkaartuit: Meanings of Well-Being, Unhappiness, Health, and Community Change Among Inuit in Nunavut, Canada, American Journal of Community Psychology, Vol. 48: 2011, p. 426. 262 United Nations ECOSOC, UN Commission on Human Rights, Final Report (last part) submitted by the Special Rapporteur, Mr. Jose R. Martinez Cobo Sub-commission on prevention of discrimination and protection of minorities, Item II of the provisional agenda, Study of the Problem of Discrimination Against Indigenous Populations, 30 September 1983, para. 290.

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Martinez-Cobo explains,
indigenous peoples have the right to self-determination which will enable the to continue to exist in dignity, in keeping with their historic rights as free peoples The right to self-determination exists at various levels, and includes economic, social and cultural, as well as political factors, which must be studied in each case so that the level and type required can be determined In so far as it applies to indigenous nations and peoples, the essence of this right [of selfdetermination] is the right to free choice, and therefore the indigenous peoples themselves must to a large extent create the specific content of the principle Despite the increasingly marked endorsement of provisions relating to equality before the law and the equal protection of laws and stipulations concerning the equal administration of justice for all, the principle of equality in the administration of justice is not at present actually applied to indigenous people.263

7. CONCLUSION: THE SOLUTION A. United Nations Charter Amendment The United Nations has the duty to apply its own promoted human rights laws held to the actions of States to itself as a public or private organization or club. The United Nations cannot commit apartheid by Membership exclusion of Indigenous Peoples who are and always have been their own organized societies. While until now Membership in the United Nations has been limited to States, such a construction of the functioning of an institution must be flexible to change with the progress of the very human rights it was created to codify, protect and promote in the world.264 As the ICJ itself stated in the Western Sahara case, No rule of international
263

United Nations ECOSOC, UN Commission on Human Rights, Final Report (last part) submitted by the Special Rapporteur, Mr. Jose R. Martinez Cobo Sub-commission on prevention of discrimination and protection of minorities, Item II of the provisional agenda, Study of the Problem of Discrimination Against Indigenous Populations, 30 September 1983, paras. 270, 271, 278 and 282 respectively. 264 Here Professor of Law James Anayas analysis contributes to this argument: Decolonization demonstrates that self-determinations remedial aspect may trump or alter otherwise applicable legal doctrine. In particular, the doctrine of effectiveness ordinarily confirms de jure sovereignty over territory once it is exercised de facto, independently of the legitimacy of events leading to the effective control. Further, under the doctrine of intertemporality, events ordinarily are to be judged in accordance with contemporaneous law. Historical patterns of colonization appear to be consistent with or confirmed by international law prior to the modern era of human rights. Around the turn of the century international law doctrine upheld imperial spheres of influence asserted by Western powers and deferred to their effective exercise of authority over lands inhabited by backward, uncivilized, or semi-civilized people; The modern international law of self-determination, however, forges exceptions to or alters the doctrines of effectiveness and intertemporal law. Pursuant to the principle of self-determination, the international community has deemed illegitimate historical patterns giving rise to colonial rule and has promoted corresponding remedial measures, irrespective of the effective control exercised by the colonial power and notwithstanding the law contemporaneous with the historical colonial patterns. Decolonization demonstrates that constitutional processes may be judged retroactively in light of self-determination values

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law, in the view of the Court, requires the structure of a State to follow any particular pattern, as is evident from the diversity of the forms of State found in the world today.265 The same must said for United Nations Membership and the inclusion of Indigenous Peoples- Indigenous Peoples need not become States to acquire rights to Membership. In fact, to require that peoples become States for Membership goes against the very principles of dignity, self-determination, equality based on diversity, and decolonization that the United Nations has prescribed for a peaceful world. So as to remedy in part the human rights violation of the right to self-determination of Indigenous Peoples and, similarly, the right of Indigenous Peoples to self-determined decolonization, the UN Charter can amend its articles pertaining to Membership to include Indigenous Peoples. Namely, Article 4 must be amended to include selfgoverning Peoples who have chosen to not be States, or who choose to remain a part of or associated with a State to their own political and legal design, and desire there own UN Membership for self-representation. Chapter XVIII of the UN Charter is devoted to Amendments of the Charter. Under Article 108 the General Assembly has the power to adopt amendments to the UN Charter according to Article 108 of the Charter,266 and has done so to Articles 23, 27, and 61 (coming into force in 1965), Article 61 again (coming into force in 1973), and Article 109 (into force in 1968). The amendments to Articles 23 and 61 enlarged the membership of the Security Council and of the Economic and Social Council (ECOSOC). The amendment to Article 27 altered the decision making process by the Security Council on procedural matters. The amendment to Article 109(1) provides that a General Conference of Member States for the purpose of reviewing the Charter may be held at a date and place to be fixed by a two-thirds vote of the members of the General Assembly and by a vote of any nine members of the Security Council.267 Dissenting Opinion of M. Alvarez in the ICJ Advisory Opinion of 3 March 1950, Competence of the General Assembly for the Admission of a State to the United Nations, expresses the necessary mutability of the UN Charter and the rights of States:
The interpretation of treaties must not remain immutable; it will have to be modified if important changes take place in the matter to which it relates. It results from the foregoing considerations, that it is possible, by way of interpretation, to effect more or less important changes in treaties, including the Charter of the United Nations. That causes surprise to those who believe that this document is unchangeable, but such modifications are the natural consequence of

notwithstanding effective control or contemporaneous legal doctrine where such processes remain relevant to the legitimacy of governmental authority or otherwise manifest themselves in contemporary inequities; By the same token, remedies to redress historical violations of self-determination do not necessarily entail a reversion to the status quo ante but, rather, are to be developed with the present-day aspirations of the aggrieved groups from James Anaya, Indigenous Peoples in International Law, Oxford University Press, 23 September 2004, p. 107. 265 International Court of Justice, Western Sahara, Advisory Opinion, 16 October 1975, p. 12; para. 94. 266 Article 108 of the UN Charter reads, Amendments to the present Charter shall come into force for all Members of the United Nations when they have been adopted by a vote of two thirds of the members of the General Assembly and ratified in accordance with their respective constitutional processes by two thirds of the Members of the United Nations, including all the permanent members of the Security Council. 267 UN Charter, Article 109(1).

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the dynamism of international life. We have to choose between the maintenance of texts as immutable, even if they lead to unreasonable consequences, and the modification of these texts if that becomes necessary. There cannot be any doubt as to the choice. If the International Court of Justice were able by its judgments and advisory opinions to establish a doctrine of the limitation of the rights of States and a doctrine of the misuse of rights, and in addition a new doctrine concerning the interpretation of treaties, it would be rendering important services to international law and to the cause of peace.268

B. Equality in Leadership For their cultures to remain living, Indigenous and Tribal Peoples must be permitted to practice true self-determination and self-representation internationally as equal leaders alongside States. Repeating historical trauma by continuing segregation at the highest international level in organizations meant to protect, respect and promote human rights and remedy violations of those rights only internalizes further future trauma.269 In 1991 The League of Indigenous Sovereign Nations of the Western Hemisphere stated these goals amongst others as a declaration of self-determination:
Represent our people to the international community Ratify our resolute political project of self-determination and our autonomy in the framework of nation states, under a new popular order with respect for whatever forms of organization each nation determines appropriate for their situation. Defend and conserve our land and natural resources, which now are being attacked. Environmental damage inflicted upon any land of the Western Hemisphere may affect the livelihood and personal integrity of indigenous peoples... Oppose national judicial structures which are the result of the process of colonization and neo-colonization. We seek a new social order that embraces our traditional exercise of common law and expression of our culture and forms of organization.270

Were the United Nations to be desegregated and Indigenous and Tribal Peoples permitted to be Members of the Organization, words such as those above from the League of Indigenous Sovereign Nations of the Western Hemisphere and those below from the
268

From Competence of the General Assembly for the Admission of a State to the United Nations, Advisory Opinion of 3 March 1950- Dissenting Opinion of M. Alvarez, p. 18-19. 269 Historical trauma response has similarities to post-traumatic stress disorder, however, given that the events associated with HTR impacted entire communities and occurred over a period of several hundred years, there are significant differences between the two constructs. Whereas, PTSD is a response to negative reactions to traumatic events occurring in an individuals lifetime, HTR refers to an individuals response to multiple traumas occurring over several generations (e.g. community wide massacres, forced boarding school attendance, destructive of tribal lands). Unlike PTSD, HTR addresses how a traumatic history becomes part of a present day shared common experience, leading to both an individual and collective perception of a single traumatic trajectory for the entire group., from Lusk, Jessica, Influence of Historical Trauma on Developmental Pathways for American Indian and Alaska Native Youth, The McNair Scholars Journal of the University of Washington, McNair Program Office of Minority Affairs & Diversity, Volume XI: Spring 2012, p. 144. 270 League of Indigenous Sovereign Nations of the Western Hemisphere, Draft Declaration of Principles, 24 -27 May 1991.

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Kari-Oca 2 Declaration would be on the political table as internal UN negotiations in regards to decision-making between UN Members, and not relegated to declarations made at times literally outside UN conferences by non-State Indigenous leaders not permitted equal participation:
We demand that the United Nations, governments and corporations abandon false solutions to climate change, like large hydroelectric dams, genetically modified organisms including GMO trees, plantations, agrofuels, clean coal, nuclear power, natural gas, hydraulic fracturing, nanotechnology, synthetic biology, bioenergy, biomass, biochar, geo-engineering, carbon markets, Clean Development Mechanism and REDD+ that endanger the future and life as we know it. Instead of helping to reduce global warming, they poison and destroy the environment and let the climate crisis spiral exponentially, which may render the planet almost uninhabitable. We cannot allow false solutions to destroy the Earths balance, assassinate the seasons, unleash severe weather havoc, privatize life and threaten the very survival of humanity. The Green Economy is a crime against humanity and the Earth; In order to achieve sustainable development, states must recognize the traditional systems of resource management of the Indigenous Peoples that have existed for the millennia, sustaining us even in the face of colonialism. Assuring Indigenous Peoples active participation in decision making processes affecting them, and their right of Free Prior and Informed Consent is fundamental. States should likewise provide support for Indigenous Peoples appropriate to their sustainability and self determined priorities without restrictions and constricting guidelines.271

The 2012 EMRIP paper Contribution to the study on indigenous peoples and the right to participate in decision-making details General Comments made by various UN treaty bodies regarding Indigenous Peoples right to participate in decision-making,272 and, for
271

Kari-Oca 2 Declaration, Indigenous Peoples Global Conference On Rio+20 And Mother Earth, KariOka Village, at Sacred Kari-Oka Pku, Rio de Janeiro, Brazil, 17 June 2012. 272 A number of general comments and general recommendations adopted by treaty bodies are relevant to the right of indigenous peoples to participate in decision-making. In 1997, in its general comment No. 23 on the rights of minorities (CCPR/C/21/Rev.1/Add.5), the Human Rights Committee noted the need to ensure effective participation of indigenous peoples in decisions that affect them in order for them to enjoy their cultural rights protected under the International Covenant of Civil and Political Rights. In the same year, the Committee on the Elimination of Racial Discrimination, in its general recommendation No. 231 on indigenous peoples, called upon State parties to ensure their effective participation in public life and that no decisions directly relating to their rights and interests were taken without their informed consent. The Committee on Economic, Social and Cultural Rights has, in a number of its general comments (E/C.12/1999/5; E/C.12/2000/4 and E/C.12/2002/11), made reference to the requirement of participation by indigenous peoples in decision-making processes that affect their enjoyment of specific rights. In 2009, in its general comment No. 20 on non-discrimination (E/C.12/GC/20), the Committee called for the ensuring of the right to participate in decision-making of individuals and groups of individuals. More recently, in its general comment No. 21 on the right to participate in cultural life (E/C.12/GC/21), the Committee asked State parties to respect the principle of free, prior and informed consent of indigenous peoples in all matters covered by their specific rights. Finally, also in 2009, the Committee on the Rights of the Child, in its general comment No. 11 on indigenous children and their rights under the Convention (CRC/C/GC/2001/1), called for the participation of and consultation with indigenous peoples, including meaningful participation of indigenous children, in decision-making concerning their rights and interests., from United Nations General Assembly, Human Rights Council, Expert Mechanism on the Rights of Indigenous Peoples, Item 3 of the provisional agenda: Contribution to the study on indigenous peoples and

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example, in the case Yatama v. Nicaragua the Inter-American Court held that States that are party to the American Convention have an obligation to adopt measures ensuring that Indigenous Peoples "can participate, in conditions of equality, in decision-making on matters that affect or could affect their rights and the development of their communities, and that they are able to do so through their own institutions and in accordance with their values, uses, customs and forms of organization."273 Indigenous Peoples must be included at a legal status equal to States at the UN Membership level via their own political systems, in decision-making and adaptation of judicial systems and development definitions.274 The excerpt below, for example, can be decolonized theoretically in that the same suggestions can be made for the United Nations in regards to Indigenous Peoples representation rather than the State, and, in turn, Indigenous Peoples can self-determine completely at the regional and local levels instead of being required to operate via State colonial power regimes in Trust and other non-self-governing Indigenous-State relationships:
Political participation of indigenous peoples: The Special Rapporteur has pointed out that, to be effective, participation in public affairs has to be enhanced horizontally, including in legislative, executive and judicial branches, and vertically, at the local, State and federal levels. In this respect, systems of quotas reserved for indigenous representatives in local, State and federal institutions are recommended and welcomed as examples of good practices During his visit to Kenya the Special Rapporteur observed that the fact that the political system divided indigenous communities into different administrative and electoral units seriously hindered the full enjoyment of the right to political participation, diminishing the effective power of representation of indigenous peoples.275

In this way, through access to genuine political and legal participation at the UN organization, the human rights of Indigenous Peoples will be met, and the UN will be furthering a peace and dignity-based process. Only through promoting dialogue within the United Nations on an equal playing field as Members (or through eliminating
the right to participate in decision-making: Report of the Secretariat 7 May 2010, Third session, 1216 July 2010. 273 Inter-American Court of Human Rights, Yatama v. Nicaragua, 23 June 2005, para. 225. 274 In his subsequent thematic report (E/CN.4/2004/80), the Special Rapporteur took up the issue of administration of justice. While dealing with the pervasive violations of indigenous peoples rights by justice systems, he recommended that the basic principle of consultation with and participation of indigenous peoples should be respected while considering any changes to these systems that might affect them. In his thematic report on education and indigenous peoples (E/CN.4/2005/88), while stressing that there was, in many cases, a need for reform of education systems, the Special Rapporteur specifically mentioned the requirement of free participation of indigenous peoples in all phases of such reforms., from United Nations General Assembly, Human Rights Council, Expert Mechanism on the Rights of Indigenous Peoples, Item 3 of the provisional agenda: Contribution to the study on indigenous peoples and the right to participate in decision-making: Report of the Secretariat 7 May 2010, Third session, 1216 July 2010, para. 16. 275 United Nations Expert Mechanism on the Rights of Indigenous Peoples (EMRIP), Item 3 of the provisional agenda: Contribution to the study on indigenous peoples and the right to participate in decision-making: Report of the Secretariat 7 May 2010, Third session, 1216 July 2010, paras. 26 and 29.

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Membership entirely, which is not a topic covered within this thesis), will the UN truly be creating a dialogue among civilizations between States and Peoples as it claims to aspire to do in General Assembly Resolution Global Agenda for Dialogue among Civilizations of 2001:
Pursuit of the above-mentioned objectives will be enhanced by collective commitment to the following principles: Faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small; Fulfillment in good faith of the obligations under the Charter of the United Nations and the Universal Declaration of Human Rights; Recognition of diversified sources of knowledge and cultural diversity as fundamental features of human society and as indispensable and cherished assets for the advancement and material and spiritual welfare of humanity at large; Recognition of the right of members of all civilizations to preserve and develop their cultural heritage within their own societies; Commitment to inclusion, cooperation and the search for understanding as the mechanisms for the promotion of common values; Enhancement of participation by all individuals, peoples and nations in local, national and international decisionmaking processes.276

The General Assembly itself stated in the Declaration on the Occasion of the Fiftieth Anniversary of the United Nations in 1995, In order to be able to respond effectively to the challenges of the future and the expectations of the United Nations held by peoples around the world, it is essential that the United Nations itself be reformed and modernized.277 This statement supports that the United Nations be reformed and modernized by adapted UN Membership criteria to treat human rights justly. Moreover, the quote below by Per Fokstad from 1951 concerning the Indigenous Sami shows that indeed, things once barely imagined to be possible can and do happen:
Should the Sami ever experience having books written in their own language, having literature and art based on their national heritage, and cultural institutions that nurtured their folk art, fairy tales and language, it would be the beginning of a process cultural, social, and economic the extent of which cannot be perceived today.278

Taking into consideration the arguments and facts presented in this thesis, and taking into consideration the words of scholar Douglas Sanders in a publication by SIM and Utrecht University (institutions, by chance through which this author is completing this thesis), it
276

United Nations General Assembly, Resolution 56/6, Global Agenda for Dialogue among Civilizations, 21 November 2001: A. Objectives, principles and participants, Article 3. Articles 1 and 2 read: Art. 1: Dialogue among civilizations is a process between and within civilizations, founded on inclusion, and a collective desire to learn, uncover and examine assumptions, unfold shared meaning and core values and integrate multiple perspectives through dialogue; Art. 2: Dialogue among civilizations constitutes a process to attain, inter alia, the following objectives: Promotion of inclusion, equity, equality, justice and tolerance in human interactions; Enhancement of mutual understanding and respect through interaction among civilizations Enhancement of respect for cultural diversity and cultural heritage. 277 United Nations General Assembly, Resolution 50/6, Declaration on the Occasion of the Fiftieth Anniversary of the United Nations, 9 November 1995, para. 14. 278 Per Fokstad, from http://sapmi.uit.no/sapmi/ExhibitionContainer.do?type=about, 1951.

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is the ending of paternalism and racism that will bring recognition of Indigenous Peoples as subjects of international law and bring, at the same time, a halt to the State-biased notion that Indigenous Peoples must be developed:
Reasonable Outcomes for Indigenous Peoples: In order to come to any conclusion on a place for indigenous peoples within the UN system, it is necessary to consider some principles and the goals of any proposal We must end remaining paternalism and racism in the recognition of indigenous peoples. Any resolution of the issue of indigenous representation at the UN should be based on the idea that indigenous peoples are to be treated as subjects of international law. This eliminates any idea that indigenous representatives should be selected by States. It also eliminates any focus on developmental work, which sees indigenous peoples solely in terms of poverty and vulnerability.279

And so is borne UN Membership criteria amendment and Indigenous leadership equal to the Membership of States. Process for addressing membership questions can include, for example, the seeking of an ICJ Advisory Opinion on the matter by ECOSOC via request of the UNPFII, a process suggested by one expert in 2010 during an EMRIP meeting in relation to the issue of Indigenous-State treaties and agreements.280 As suggested by mental health experts researching Aboriginal injury and trauma resulting in high suicide rates in the State of Canada, the true issue of Indigenous collective victims is one that is ultimately social and political.281 As submitted by Ambassador Ronald Barnes for the Indigenous Peoples and Nations Coalition, Union Nationale du People Kanak, Indian Council of South America (CISA), and International Council for Human Rights to the 3rd Session of EMRIP, 12 July 2012, concerning the EMRIP study on decision-making, Decisions obtained through manufacture consent are not legitimate under international law and must be obtained by equal parties.282
279

Sanders, Douglas, Indigenous Peoples at the United Nations, in Eds. Theo C. van Boven, Cees Flinterman, Fred Grnfeld, Rita Hut, The Legitimacy of the United Nations: Towards an Enhanced Legal Status of Non-State Actors: Proceedings of the Symposium of Experts organized by The European Centre for Development Policy Management (ECDPM, Maastricht) and the Centre for Human Rights of the University of Maastricht October 1995, SIM Special No. 19, Utrecht: 1997, p. 114. 280 United Nations Expert Mechanism on the Rights of Indigenous Peoples (EMRIP), Report of the United Nations seminar on treaties, agreements and other constructive arrangements between States and indigenous peoples: Hobbema, Canada, 1417 November 2006, Chairperson: Sharon Venne, CoRapporteurs: Chief Wilton Littlechild and Andrea Carmen, Third session, 1216 July 2010, Item 4 of the provisional agenda, United Nations Declaration on the Rights of Indigenous Peoples, 17 May 2010, para. 41. 281 The metaphor of trauma draws attention to the severity, shock and violence of the physical and psychological injuries inflicted on Aboriginal peoples. It locates the origins of problems in a shared past and so motivates the reconstruction of historical memory and collective identity. Ideally, this history would insist on the importance of social and political events and so would avoid psychologising what are fundamentally political issues. From Kirmayer, Laurence; Simpson, Cori and Cargo, Margaret, Healing traditions: culture, community and mental health promotion with Canadian Aboriginal peoples, Australasian Psychiatry, Vol. 11 Supplement: 2003, p. S20. 282 Indigenous Peoples and Nations Coalition, Union Nationale du People Kanak, Indian Council of South America (CISA), International Council for Human Rights, represented by Ambassador Ronald Barnes, Submission to 3rd Session of EMRIP, EMRIP study on Decision-making, , 12 July 2010.

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Now is the time for political and legal equality at the United Nations.

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