Selfdetermination Indigenous Affairs

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INDIGENOUSINDIGENOUS

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AFFAIRS

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SELF-DETERMINATION


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contents

editorial

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Christian Erni and Marianne Jensen

IMPLEMENTATION OF THE RIGHTOF SELF-DETERMINATIONOF INDIGENOUS PEOPLES

John B. Henriksen

FROM SOVEREIGNTY TO FREEDOM:TOWARDS AN INDIGENOUSPOLITICAL DISCOURSE

Taiaiake Alfred

LANDMARK VICTORY FOR INDIANSIN INTERNATIONAL HUMAN RIGHTS

CASE AGAINST NICARAGUA

The Indian Law Resource Center

SELF-GOVERNMENT IN GREENLAND

Jens Dahl

international

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america

arctic


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International secretariatClassensgade 11 E, DK-2100Copenhagen, DenmarkPhone.: (+45) 35 27 05 00Fax: (+45) 35 27 05 07E-mail: [email protected]: www.iwgia.org

Editor:Marianne JensenPrice: Single copies US$ 6.00 + postage - (ISSN 1024-3283)Subscription rate for 2002 (Indigenous Affairs + The Indigenous World)US$ 50.00 (individuals) US$ 80.00 (institutions)

Indigenous Affairsis published 4 times per year

INTERNATIONAL WORK GROUP FOR INDIGENOUS AFFAIRS

Please note that the views in this journal are those of the authors and do notnecessarily reflect those of the Work Group. No reproduction of any part of this

journal may be done without the permission of IWGIA.

Indigenous Affair s 3/01 3

Cover: from the left:Tom LaBlanc, Sisseton-Dakota from North Dakota. Photo: Helena Nyberg

Neil Kunnuk in Iqaluit, Nunavut. Photo: Jack Hicks

Woman from Greenland. Photo: Lisbeth Lyager

NUNAVUT:THE STILL SMALL VOICE OF

INDIGENOUS GOVERNANCE

Peter Jull

A 5-YEAR PLAN TO CREATEA PUBLIC GOVERNMENT IN NUNAVIK

Grard Duhaime

INDIGENOUS PEOPLESSELF-DETERMINATIONIN NORTHEAST INDIA

Christian Erni

asia

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Self-determination is, to indigenous peoples, themost fundamental of the rights they ask the worldand, above all, the State they have been made a

part of, to recognize. For all but very few governments,this demand is problematic. Consequently, article 3 ofthe United Nations Draft Declaration on the Rights ofIndigenous Peoples, which deals with self-determina-tion, has become the major bone of contention in thedrafting process. Many governments want either toreplace the term self-determination or to narrowlydefine it to mean self-government and autonomy.This demand is raised primarily due to the fear that

recognition of self-determination in its widest sensewould have the potential of undermining the integrityand stability of the State.

For indigenous peoples, the recognition of the rightto self-determination is, however, a question of equity,of being treated like all other peoples. Self-determina-tion is one of the fundamental rights of peoples ininternational law. It is enshrined in the Charter of theUnited Nations, the International Covenant on Civiland Political Rights and the International Covenant on

EDITORIAL EDITORIALEconomic, Social and Cultural Rights. Aware of theinherent link between the concept of peoples and theright to self-determination, many governments alsooppose using the term indigenous peoples in theDraft Declaration on the Rights of Indigenous Peoplesand insist on replacing it with indigenous people orindigenous populations.

As John Henriksen writes in the introduction to his

article in this issue of Indigenous Affairs, the UnitedNations itself has so far been reluctant to recognize anyfurther extension of the right to self-determination beyondthe traditional context of decolonization. He howeverbelieves that there are indications in the United Nationsprocess on the rights of indigenous peoples that the under-standing of the scope of the right of self-determinationmay be evolving further. And he points out that theinternational process is influenced by national politicalprocesses, which often tend to be more pragmatic andflexible, and that national experiences of indigenousself-determination directly influence the internationaldebate and thereby move the discourse forward.

In addition to John Henriksens article, which presentsa general discussion of two fundamental questionsrelated to the right of self-determination - the benefici-aries and the scope of this right this issue of Indig-enous Affairs includes four contributions on such na-tional experiences. Peter Jull depicts the Inuits dec-ades-long struggle for self-determination in Canada,which finally led to the creation of Nunavut. He believesthat the case of Nunavut is important for indigenouspeoples throughout the world: Inuit hunter-gatherersliving scattered over a vast, isolated and politicallyundefined region have created a strong modern gov-ernment as a means to strengthen their traditionalculture, solve recent social ills, protect the environmentand vital resources, and decide their own future in theirown language and in their own way.

Grard Duhaimes article deals with the ongoingprocess in the same direction in another region ofCanada: in Nunavik, the homeland of the Inuit inQuebec province. The Nunavik Commission was cre-ated in 1999 with the mandate to make comprehensiverecommendations on design, operation, and imple-mentation of a form of government in Nunavik. InApril this year, the Nunavik Commission presented itsreport. Grard Duhaime summarizes the recommenda-

tions and provides the readers with an overview of thehistorical background.The Greenlandic Home Rule, established in 1979, is

often mentioned as an ideal example of indigenous self-determination. Nevertheless, as Jens Dahl describes inhis article, two years ago the Home Rule Governmentestablished a Commission on Self-Government to lookinto the future relationship between Greenland and Den-mark. The reason is that the current construction isconsidered to be outdated by many Greenlanders andunable to satisfy their image of self-determination. How-

By Christian Erni and Marianne Jensen

4Indigenous Affa irs 3/01 Tangkhul Naga woman. Photo: IWGIA archive


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ever, for a population of only 56,000 people, self-determi-nation is a process filled with many dilemmas not only inrelation to Denmark but also internally in Greenland.

While the three articles referred to above deal withnational experiences in the Arctic region, the article byChristian Erni gives a critical overview of some of theself-government arrangements made by the Indian state.Indias provisions for the protection of the rights of, and

for self-rule among, its indigenous peoples - or Sched-uled Tribes, as they are officially called are consideredto be among the most progressive in the Asian region, oreven the world. Unfortunately, as the article tries to showby focussing on Indias north-eastern region, they pos-sess a number of inherent weaknesses, and the wide gapbetween the laws on paper and their implementation onthe ground leaves many indigenous peoples disillu-sioned. Violent confrontations between the State andindigenous movements are therefore still continuing inwhat has become one of Indias most troubled regions.

In many cases, indigenous peoples are forced tovoice their demands for, and design concrete forms of,

self-determination within a framework of political-le-gal and, ultimately, cultural concepts that are not theirown. Since these concepts, and therefore the politicaldiscourse all over the world, are increasingly domi-nated by western political-legal thinking, Taiaiake Al-freds article will be relevant to most indigenous peo-ples even though he elaborates his arguments withreference to North America. Taiaiake Alfred embarkson a fundamental critique of the western concept ofsovereignty and an analysis of the implications of itsacceptance by indigenous peoples in the United Statesand Canada. The imposition and later promotion ofsovereignty, he argues, has served to undermine thetraditional bases of strength for indigenous communi-ties. The indigenous peoples of North America, heconcludes, can truly free themselves from imposedpower structures only by rejecting the entire discourseof sovereignty, and promoting a traditionalist revivaland a re-formation of imposed colonial structures.

IWGIA considers it important to focus on self-determi-nation in this issue of Indigenous Affairs as it is a keyissue for indigenous peoples the world over, both atnational and international level. The struggle for self-determination is the fundamental pre-requisite for in-

digenous peoples to be able to enhance their rights andimprove their situation. All the major critical problemsthat indigenous peoples are facing, such as politicalmarginalization, repression, deteriorating rights andaccess to land and other natural resources, poverty andeconomic marginalization, social problems, lack of rec-ognition of indigenous cultures etc. have, to variousdegrees, their roots in the lack of self-determination.

That the right to self-determination is the major issuefor indigenous peoples involved in international hu-

man rights processes was reflected in the most recentinternational event: the World Conference against Rac-ism, Racial Discrimination, Xenophobia and RelatedIntolerance (WCAR) held in Durban, South Africa thisyear. The indigenous caucus focussed its energies onhaving the final documents of the conference use lan-guage that genuinely recognizes the right of self-deter-mination, by using the term indigenous peoples with-

out qualification. According to a number of fundamen-tal human rights conventions, all peoples have the rightto self-determination. However, some of the paragraphsof the WCAR Declaration severely limited this right forindigenous peoples in particular, stating that:

The use of the term peoples in the World ConferenceAgainst Racism, Racial Discrimination, Xenophobia, andRelated Intolerance Declaration and Program of Actioncannot be construed as having any implications as torights under international law. Any reference to rightsassociated with the term indigenous peoples is in thecontext of ongoing multilateral negotiations on the texts of

instruments that specifically deal with such rights, and iswithout prejudice to the outcome of those negotiations.

The indigenous delegates wanted the paragraph to bedeleted completely. As this turned out to be impossible,indigenous delegates succeeded, after heavy lobbying,to have the paragraph re-drafted to read as follows:

The use of the term indigenous peoples in the Declara-tion and Programme of Action of the World Conferenceagainst Racism, Racial Discrimination, Xenophobia andRelated Intolerance is in the context of, and without

prejudice to the outcome of ongoing international nego-tiations on texts that specifically deal with this issue andcannot be construed as having any implications as torights under international law.

Although many indigenous delegates (having hopedthe paragraph would be scrapped completely) left theconference disappointed, many others agreed that theyhad made some positive headway a few tiny steps inthis laborious field of international law. The majorargument that the indigenous peoples used throughoutthe process was that denying indigenous peoples theright to self-determination represented a blatant act of

racism and discrimination in international human rightslaw. This proved to be a very convincing argument, andthe WCAR can in this way be seen to have opened up animportant argumentative avenue for indigenous peo-ples to make their point from now on. It is thus hopedthat the intense lobbying efforts made by indigenousdelegates at the WCAR will significantly influence fu-ture discussions on the Draft Declaration on the Rightson Indigenous Peoples in Geneva and the crucial issueof the right to self-determination.




By

John

B.

Hen

riksen

Implementation

of the Right ofSelf-Determination

of IndigenousPeoples

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The principle of self-determi-

nation for peoples has beenrecognized since 1919, when

the League of Nations, precursorto the United Nations, was estab-lished. At the time of the League

of Nations, the focus was on a principle of self-determination and not a right of self-determination.Following the creation of the United Nations in 1945, theprinciple of peoples self-determination evolved intoa right under international law and evenjus cogensa peremptory norm.

Although the right of self-determination has been acardinal principle of the United Nations from the very

beginning, the United Nations has so far been reluctantto recognize any further extension of this right beyondthe traditional de-colonization context (overseas colo-nization). The question of whether the right of self-determination has been recognized under internationallaw outside the context of traditional de-colonization isstill a very controversial matter. However, the UnitedNations process on the rights of indigenous peoplesindicates that understanding of the scope of the right ofself-determination may be evolving further.

The international process is influenced by nationalpolitical processes, which often tend to be more prag-matic and flexible than the international process. Na-

tional experiences of indigenous self-determination, orself-government as some would call it, directly influ-ence the international debate and thereby move thediscourse forward.

The international community needs to continue totake into account the national processes in its search foreffective and non-discriminatory implementation ofthe right of self-determination, in order to ensure thatthe concept of self-determination is in line with therightful aspirations of the worlds indigenous peoples,and not only those living under traditional coloniza-tion.

This article considers two fundamental questions

related to the right of self-determination: (1) the benefi-ciaries of the right of self-determination; and (2) thescope of this right.

The right of self-determinationunder international law

The right of self-determination is a fundamental princi-ple and right under international law. The international

legal instruments on self-determination refer to the

right of self-determination as belonging to all peo-ples. It is embodied in the Charter of the UnitedNations plus the International Covenant on Civil andPolitical Rights and the International Covenant on Eco-nomic, Social and Cultural Rights. Common Article 1ofthese Covenants provides that:

1. All peoples have the right of self-determination. Byvirtue of that right they freely determine their politicalstatus and freely pursue their economic, social andcultural development.

2. All peoples may, for their own ends, freely dispose of

their natural wealth and resources without prejudice toany obligations arising out of international economicco-operation, based upon the principle of mutual ben-efits, and international law. In no case may a people bedeprived of its own means of subsistence.

3. The States Parties to the present Covenant, includingthose having responsibility for the administration ofNon-Self-Governing and Trust Territories, shall pro-mote the realization of the right of self-determination,and shall respect that right, in conformity with the

provisions of the Charter of the United Nations.

The right of self-determination has also been recog-nized in many other international and regional humanrights instruments, such as Part VII of the Helsinki FinalAct 1975 and Article 20 of the African Charter of Humanand Peoples Rights as well as the Declaration on theGranting of Independence to Colonial Territories andPeoples1. It has been endorsed by the InternationalCourt of Justice2. Furthermore, the scope and content ofthe right of self- determination has been elaboratedupon by the United Nations Human Rights Committee3

and the United Nations Committee on the Eliminationof Racial Discrimination4.

In addition to being a right under international law,peoples right of self-determination should also be re-garded as Jus cogens - a peremptory norm of generalinternational law. Article 53 of the Vienna Conventionon the Law of Treaties provides that a peremptory normof general international law is accepted and recognizedby the international community as a norm from whichno derogation is permitted and which can be modifiedonly by a subsequent norm of general international lawof the same nature. Moreover, it provides that a treaty

Indigenous Affa irs 3/01 7Kuna man, Panama. Photo: Andrew Young



is void if, at the time of its conclusion, it conflicts witha peremptory norm of general international law.

The principle and fundamental right to self-determi-nation of all peoples is firmly established in interna-tional law, including human rights law, and it musttherefore be applied equally and universally.

The term peoples

The term peoples is not defined in international law.The lack of definition is not due to intellectual failure todefine the term but reflects the fact that the meaning ofthe term is closely linked to sensitive political and legalissues, in particular peoples right of self-determina-tion.

However, peoples are often described as a group ofindividual human beings who enjoy some or all of thefollowing common features: (1) a common historicaltradition; (2) ethnic identity; (3) cultural homogeneity;(4) linguistic unity; (5) religious or ideological affinity;

(5) territorial connection; and (6) common economiclife. Moreover, the group should possess the will orconsciousness to be a people, and institutions to expressthe identity of the people. This is widely regarded asbeing the ordinary meaning of the term peoples. Thisshould therefore be the starting point for determiningwho are the title holders to the right of self-determina-tion. It is a well-established international legal princi-ple, contained in the Vienna Convention on the Law ofTreaties, that terms in international legal instrumentsare to be interpreted according to their ordinary mean-ing. This maxim of international law has also beenaffirmed by the International Court of Justice: If thewords in their natural and ordinary meaning makesense in their context, thats the end of the matter. 5

The concept of indigenous peoples

There is no international agreement on the definition ofindigenous peoples. In the Draft United Nations Decla-ration on the Rights of Indigenous Peoples, the termindigenous peoples is used, although some govern-ments oppose the usage of the term peoples in theindigenous context 6. Most countries currently seeking

to address indigenous issues tend to view such a defi-nition as falling within the context of their nationalconstitutional and historical framework rather than asan issue of universal character. The international dis-course related to the concept of indigenous peopleshas been addressing the two main questions: (1) whoshould be identified as indigenous, and (2) the termpeoples.

Although, there is no general agreement on thedefinition, or indeed the need for a definition of indig-enous peoples at international level, there have been

several attempts to define or describe indigenous peo-ples.

The Special Rapporteur of the Sub-Commission,Jos Martinez Cobo, formulated a working definitionin his Study of the Problem of Discrimination againstIndigenous Populations, which states that:

Indigenous communities, peoples and nations are those

which, having a historical continuity with pre-invasionand pre-colonial societies that developed on their terri-tories, consider themselves distinct from other sectors ofthe societies now prevailing in those territories, or partsof them. They form at present non-dominant sectors ofsociety and are determined to preserve, develop andtransmit to future generations their ancestral territo-ries, and their ethnic identity, as the basis of theircontinued existence as peoples, in accordance with theirown cultural patterns, social institutions and legalsystems.7

Furthermore, the Special Rapporteur outlines a list of

factors that may be relevant in defining indigenouspeoples and identifying their historical continuity. Heexpresses the view that such historical continuity mayconsist of the continuation, for an extended periodreaching into the present, of one or more of the follow-ing factors: (1) occupation of ancestral lands, or at leastof part of them; (2) common ancestry with the originaloccupants of these lands; (3) culture in general, or inspecific manifestations, (4) language; (5) residence incertain parts of the country, or in certain regions of theworld; (6) other relevant factors8.

The Special Rapporteur also includes self-identifica-tion as indigenous as a fundamental element in hisworking definition: on an individual basis, an indig-enous person is one who belongs to these indigenouspeoples through self-identification as indigenous (groupconsciousness) and is recognized and accepted by thegroup as one of its members (acceptance by the group).This preserves for these communities the sovereignright and power to decide who belongs to them, withoutexternal interference.

ILO Convention No. 169 article 1.1 (b) describes indig-enous peoples as follows:

... peoples in independent countries who are regarded asindigenous on account of their descent from the popula-tions which inhabited the country, or a geographicalregion to which the country belongs, at the time ofconquest or colonisation or the establishment of presentstate boundaries and who, irrespective of their legalstatus, retain some or all of their own social, economic,cultural and political institutions.

Article 1.3 specifies that the use of the term peoples inthis Convention shall not be construed as having any

Saami community is re-located due to dam construction. Photo: IWGIA archive


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implications as regards the rights which may attach tothe term under international law.

However, the qualification in article 1.3 does notplace any limitations on indigenous peoples right toself-determination under international law, due to thefact that it is only a statement of coverage for thisparticular convention. It merely reflects the fact that theILOs mandate is social and economic rights and that it

falls outside of its competence to interpret the conceptof self-determination9.

Indigenous peoples satisfy the criteria generally ac-cepted for determining the existence of a people. Theplain meaning of the term all peoples thus includesindigenous peoples. There is no doubt that indigenouspeoples are peoples in all senses of the term, includ-ing for the purpose of the international law of self-determination of peoples.

The scope of the right of self-determination

The Declaration on Principles of International Lawconcerning Friendly Relations and Cooperation amongStates, in accordance with the Charter of the UnitedNations, recognizes the principle of the equal rights andself-determination of all peoples and provides that everyState has the duty to promote this principle10. It alsorecognizes that, in implementing the right to self-deter-mination, there are various modesof self-determinationwhich extend beyond the right of secession and which do

not conflict with territorial sovereignty or the politicalunity of a State. The Declaration provides that, inter alia:

The establishment of a sovereign and independent State,the free association or integration with an independentState or emergence into any other political status freelydetermined by a people constitute modes of implementingthe right to self-determination by that peoples.... Nothing

in the foregoing paragraphs shall be construed as author-izing or encouraging any action which would dismemberor impair, totally or in part, the territorial integrity or

political unity of sovereign and independent States.

External aspects of the rightof self-determination

A Non-Self-Governing Territory, listed under ChapterXI of the UN Charter, can exercise the right of self-determination through the creation of an independentstate, or through the establishment of an association

with an independent state, or integration with an inde-pendent state11. Furthermore, the right of self-determi-nation must also be regarded as establishing the right toseparate from the existing state of which the groupconcerned is a part, and to set up a new independentstate, if the state concerned gravely violates its obliga-tions towards a distinct people12.

A State that gravely violates its obligations towardsa distinct people or community within its boundaries




loses the legitimacy to rule over that people. Thus, if theState and its successive governments have repeatedlyoppressed a people over a long period, violated theirhuman rights and fundamental freedoms, and if othermeans of achieving a sufficient degree of self-govern-ment have been tried and have failed, then the questionof secession can arise as a means for the restoration offundamental rights and freedoms and the promotion of

the well-being of the people13.Secession is seen by some as the ultimate realization

of the external aspects of the right to self-determination,as the ultimate implementation of a peoples right tofreely determine their political status. However, se-cession is not an absolute right and it cannot be invokedunilaterally unless there exists continuing and graveoppression of the people concerned.

The upholding of the territorial integrity of states isone of the most fundamental principles under interna-tional law. Acknowledging a peoples right to self-determination can thus not be construed as authorizingor encouraging any action that would dismember or

impair, either totally or in part, the territorial integrityand political unity of sovereign and independent Statesconducting themselves in compliance with the princi-ple of equal rights and self-determination of peoples14.

Nobel Laureate Jos Ramos Horta is of the view thatmaintaining territorial integrity lies in the hands of thegovernment in power: By accepting its obligations, in-cluding full respect for the right to self-determination with allits consequences, and engaging in dialogue with all sectors ofsociety, a government can maintain the territorial integrityof the state or ensure that peaceful change occurs in a mannerbeneficial to the state.15

Finally, it should be noted that there are externalaspects of the right of self-determination that do notentail the creation of an independent state. For exam-ple, indigenous peoples participation in political proc-esses relating to issues that transcend state boundariescan be seen as a dimension of the external aspects oftheir right to self-determination.

Internal aspects of the right ofself-determination

The internal aspects of the right of self-determination

include the right of the people to freely pursue itseconomic, social and cultural development. It is oftentaken to mean participatory democracy. However, itcan also mean the right to exercise cultural, linguistic,religious, territorial or political autonomy within theboundaries of the existing state16.

Economic or natural resources dimensionThe economic or resource dimension of self-determina-tion, the right to freely dispose of its own natural wealth

and resources, is of crucial importance to indigenouspeoples. The issue of land and resource rights is themost important question for the majority of the worldsindigenous peoples. They regard their land and re-sources rights as being an integral part of their right ofself-determination.

It is clear that many governments often opposeinternational recognition of indigenous peoples right

to self-determination more through fear of losing con-trol over indigenous lands and natural resources thanfear of losing some of their overall political power.

The economic or resource dimension of the right ofself-determination is emphasized in common paragraph2 of Article 1 of the Covenants:

All peoples may, for their own ends, freely dispose oftheir natural wealth and resources without prejudice toany obligations arising out of international economic co-operation, based upon the principle of mutual benefits,and international law. In no case may a people bedeprived of its own means of subsistence.

The Human Rights Committee, which is mandated tomonitor the implementation of the Covenant on Civiland Political Rights, has now started to address theright of self-determination in the context of indigenouspeoples, with particular focus on the economic or re-source dimension of the right of self-determination. In1999, the Committee requested the governments ofCanada and Norway to report on the implementation ofindigenous peoples right to self-determination, includ-ing in relation to paragraph 2 of Article 117. Land andresource rights thus cannot be excluded from indig-enous peoples right to self-determination.

Cultural dimensionsThe cultural dimensions of a peoples right to self-deter-mination can be seen as its right to determine andestablish the cultural regime or system under which it isto live. This implies recognition of its right to regain,enjoy and enrich its cultural heritage, and affirm the rightof all its members to education and culture. The Declara-tion of the Principles of International Cultural Co-opera-tion, adopted by the General Conference of UNESCO,recognizes that every people has the right and duty to

develop its culture, and mentions in its preamble themost important United Nations resolutions relating torecognition of the right of peoples to self-determination.

The cultural dimensions, in the broadest sense of theterm, of the right of self-determination are identified byindigenous peoples as fundamental to the survival ofindigenous peoples. Indigenous peoples attempt to pre-vent their heritage, values, cultural identity and way oflife from being destroyed by external forces.

Moreover, indigenous peoples relationships to theirlands, territories and natural resources are such that


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they also cover important cultural aspects. It is notpossible to study indigenous peoples relationships totheir ancestral lands without taking into account thecultural aspects of this relationship.

Professor Erica-Irene Daes, in her capacity as Spe-cial-Rapporteur on indigenous peoples and their rela-tionship to land, expressed the view that there was anurgent need for developing an understanding, on the

part of non-indigenous societies, of the spiritual, social,cultural, economic and political significance of land andresources to the continued survival and vitality ofindigenous societies. She stated that, indigenous peopleshave illustrated the need for a different conceptual frameworkand the need for recognition of the cultural differences thatexist because of the profound relationship that indigenous

peoples have to their lands, territories and resources.18

Indigenous peoples often emphasise that it is essen-tial to the dialogue between governments and indig-enous peoples that the authorities understand that thedeeply spiritual and special relationship between indig-enous peoples and their lands is fundamental to their

existence as such and to all their beliefs, customs,traditions and culture. These concerns are taken intoaccount in Article 25 of the draft United Nations Decla-ration on the Rights of Indigenous Peoples:19

Indigenous peoples have the right to maintain andstrengthen their distinctive spiritual and material rela-tionship with the lands, territories, waters and coastal seasand other resources which they have traditionally owned orotherwise occupied or used, and to uphold their responsi-bilities to future generations in this regard.

Social dimensionsArticle 21 of the draft United Nations Declaration on theRights of Indigenous Peoples addresses the social andeconomic aspects of their right of self-determination:

Indigenous peoples have the right to maintain and devel-op their political, economic and social systems, to be securein the enjoyment of their own means of subsistenceand development, and to engage freely in all their traditionaland other economicactivities. Indigenous peoples who havebeen deprived of their means of subsistence and developmentare entitled to just and fair compensation.

The World Summit for Social Development, held inCopenhagen in 1995, expressed the view that socialdevelopment and social justice are indispensable for theachievement and maintenance of peace and security withinand among our nations. In turn, social development andsocial justice cannot be attained in the absence of peace andsecurity or in the absence of respect for all human rights and

fundamental freedoms.20The Social Summit also statedthat it recognizes and supports indigenous people in their

pursuit of economic and social development, with full respect

for their identity, traditions, forms of social organization andcultural values.21

Human security dimensionsThe aim of exercising the right to self-determination canalso be formulated in terms of human needs and secu-rity. Peoples and communities strive to gain control

over the means to satisfy their human needs. From thisperspective, security includes cultural integrity andrespect for human rights and freedoms for example, interms of freedom of the people and its members fromphysical violence. It furthermore encompasses elementssuch as spiritual, health, religious, cultural, economic,environmental, social and political aspects.

A desirable human security situation exists whenthe people concerned and its individual members haveboth verifiable legal and political guarantees for theimplementation of their fundamental rights and freedoms,and also feel secure. The need for security is often theprime objective in the struggle for self-determination,

when peoples have been facing oppression, deportations,forced assimilation, religious persecutions, etc.

The discourse on the right of self-determinationin the context of the Draft United Nations Decla-ration on the Rights of Indigenous Peoples

Since 1984, the United Nations has been formulating aDraft Declaration on the Rights of Indigenous Peoples.The Draft Declaration was adopted by the WorkingGroup on Indigenous Populations in 1994 and endorsedby its parent body, the Sub-Commission on Prevention ofDiscrimination and Protection of Minorities the sameyear. Since 1995, a special Working Group of the Com-mission on Human Rights has been working on the draftdeclaration.

17 years on, the Member States of the United Nationsare still far from reaching a consensus with regard to thesubstantive content of the draft. As of August 2001,only two of 45 Draft articles had been adopted by theCommission on Human Rights Working Group on thedraft declaration: one on the right to nationality forindigenous peoples and the other on gender equality -principles which are already enshrined in international

human rights treaties.Although 17 years may not seem a very long timewhen dealing with such complex issues, one shouldbear in mind that the Universal Declaration of HumanRights, in comparison, was drafted and adopted withinthree years of establishment of the United Nations.

The Draft Declaration has already had considerableimpact on the lives of indigenous peoples world-wide,even though it is as yet only a draft. The widespreadresponse, including the reaction of indigenous peoplesthemselves, to the draft declaration is that the principles



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Tukak Theatre, Greenland. Photo: Claus Oreskov Buhid girl, the Philippines. Photo: Christian Erni


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Tukak Theatre, Greenland. Photo: Claus OreskovKuna man, Panama. Photo: Andrew Young



it embodies constitute minimum international stand-ards for the rights of indigenous peoples.

One may ask why it is taking so long to achieveconsensus on a declaration on the rights of indigenouspeoples. It is clear that it is the concept of collectiveindigenous rights, in particular the right of self-deter-mination, which is the biggest challenge to this process.

Article 3 of the Draft Declaration, without doubt the

most controversial article, addresses the right of self-determination for indigenous peoples. The wording ofdraft Article 3 is almost identical to common Article 1,Paragraph 1 of the two International Covenants on (1)Civil and Political Rights and (2) Economic, Social andCultural Rights. The only difference can be found in thefirst sentence of draft Article 3, in which the group ofbeneficiaries All peoples - as stated in the two Cov-enants - has been replaced by the term Indigenouspeoples - an emphasis stating that indigenous peoplesare included in the term all peoples. Article 3 of thedraft declaration reads as follows:22

Indigenous peoples have the right of self-determination.By virtue of that right they freely determine their politicalstatus and freely pursue their economic, social and cul-tural development.

Many governments are of the opinion that Article 3should be redrafted in order to strictly qualify indig-enous self-determination as meaning arrangements suchas self-government and autonomy. The arguments pre-sented against the adoption of Article 3 are foundedmainly on the doctrine of sovereignty and the principleof the territorial integrity of States. It is often said thatan explicit recognition of the right of self-determinationof indigenous peoples could potentially threaten de-mocracy, stability, peace and the political and territorialunity of existing States.

However, a number of governments have expressedsupport for the underlying principles of this articlewhile some governments, such as Denmark and Fiji,have even publicly expressed their unqualified supportfor Article 3 as it stands, and urged the Working Groupto adopt it without any changes or amendments.

Indigenous peoples argue that their right of self-determination cannot be qualified. Under internationallaw the right of self-determination is a right of all

peoples, therefore indigenous peoples alone cannot bedenied this right. Indigenous peoples strongly believethat it would be a discriminatory application of thisfundamental principle of international law if it were to beapplicable to all peoples other than indigenous peoples.

Indigenous peoples consider the right of self-deter-mination to be a collective human right, and one whichis a fundamental condition for the enjoyment of all theindividual human rights of indigenous peoples, be theycivil, political, economic, social or cultural. As such, theright of self-determination is included in core interna-

tional human rights treaties, which have universal ap-plicability, a fact strongly favoring the position held byindigenous peoples.

A major reason for the impasse on the question of theright of self-determination for indigenous peoples ap-pears to be that many governments view the issuewithin the traditional de-colonization context, whilemost indigenous peoples approach this question from

an angle that does not correspond to this traditionalapproach. Indigenous peoples view this matter from apolitical and philosophical angle founded on the princi-ple of equality and non-discrimination: calling for equal-ity with regard to the right of self-determination -without necessarily wishing to establish their own State.One should bear in mind that the western nation stateconcept is not the most natural way of implementing orexercising the right of self-determination for the vastmajority of indigenous peoples.

Indigenous peoples often emphasize that theirunderstanding of the right of self-determination isthat it gives them the right to be in control of their

lives and their own destiny. This enables them toremain who they are and to live the way they want tolive. The vast majority of indigenous peoples takingpart in the United Nations work on the draft declara-tion emphasise that their goal and motivation foradvocating their equal right to self-determination isto gain greater control over their lives and theirdestiny, not secession and independence through theestablishment of independent nation states. On theother hand, it would be misleading to suggest thatthere are no indigenous peoples seeking independ-ence through sovereign nation statehood, but thereare few who aim for this.

The right of self-determination should be regardedas a process right rather then a right to a pre-definedoutcome. In other words, the outcome of any exercise ofthe right of self-determination must be individuallydefined, through a process of dialogue in which thepeoples concerned are participating on equal terms.James Anaya approaches this issue by distinguishingthe substance of the norm from the remedial prescrip-tions that may follow a violation of the norm. Heexemplifies this by comparing the African de-coloniza-tion process with contemporary situations:

In the de-colonization context, procedures that resultedin independent statehood were means of discarding alienrule that had been contrary to the enjoyment of self-determination. Remedial prescriptions in other contextswill vary according to the relevant circumstances andneed not inevitably result in the formation of new states.23

It would be helpful for the future process at interna-tional level if some of the above-mentioned fundamen-tal miscommunications could be addressed with theaim of achieving a greater understanding of the aspira-


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tions and fears of indigenous peoples and governmentsrespectively, in order to banish any unnecessary fears ormisunderstandings these questions may cause.

The relationship between autonomy andself-government and the concept ofself-determination

In the Declaration on Friendly Relations, the alterna-tives for the exercise of the right of self-determinationare expanded beyond secession to also include anyotherpolitical status freely determined by the people.It would thus be natural to include autonomy and self-government arrangements under the category of anyother political status determined by the people.

As mentioned earlier in this article, the right of self-determination is incorporated in Article 3 of the DraftUnited Nations Declaration on the Rights of IndigenousPeoples. However, the Draft Declaration also providesfor the right to autonomy or self-government in Article

31, which states that:

Indigenous peoples, as a specific form of exercising theirright to self-determination, have the right to autonomy orself-government in matters relating to their internal andlocal affairs, including culture, religion, education, in-

formation, media, health, housing, employment, socialwelfare, economic activities, land and resource manage-ment, environment and entry by non-members, as well asways and means for financing these autonomous func-tions.

The right of self-determination embodies inter alia, theright of all peoples to determine their own economic,social and cultural development. The International Courtof Justice in the Western Saharacase defined the princi-ple of self-determination as the need to pay regard tothe freely expressed will of peoples.24

Professors Hurst Hannum and Richard Lillich de-scribe governmental autonomy in the following way:

Autonomy and self-government are determined prima-rily by the degree of actual as well as formal independenceenjoyed by the autonomous entity in its political deci-sion-making process. Generally, it is understood to refer

to independence of action on the internal or domesticlevel, as foreign affairs and defence normally are in thehands of the central or national government, but occa-sionally power to conclude international agreementsconcerning cultural or economic matters also may residewith the autonomous entity.25

On the basis of the proceedings of the Meeting of Expertsin September 1991 at Nuuk, Greenland, a number ofgeneral requirements associated with indigenous self-government can be identified26. These include:

a. the exercise of adequate powers and self-govern-ment within the traditional territories of indigenouspeoples as a prerequisite for the development andmaintenance of traditional indigenous cultures andfor the survival of indigenous peoples;

b. a redefinition of the relationship between indig-enous peoples and the States in which they now live,in particular through the negotiation process;

c. self-government as a means of promoting betterknowledge about indigenous peoples vis--vis thewider society;

d. the assumption that the exercise of self-governmentpresupposes indigenous jurisdiction, that is, theright of indigenous peoples to establish their owninstitutions and determine their functions in fieldssuch as lands, resources, economic, cultural andspiritual affairs;

e. the possibility to establish relations with otherethnically similar peoples living in a different regionor State;

f. the establishment of mechanisms for joint control by

an indigenous autonomous institution and thecentral government;

g. the necessity to delimit clearly areas of competencein order to avoid conflict; and

h. the establishment of conflict resolution mechanisms.

The question as to whether indigenous autonomy ar-rangements should be regarded as one way of imple-menting the right to self-determination is one of thedifficult issues in the debate pertaining to the relation-ship between autonomy and self-government and theconcept of self-determination. There is no internationalconsensus on this matter.

Professor Miguel Alfonso Martnez, UN Special-Rapporteur on treaties, agreements and other construc-tive arrangements between States and indigenouspopulations, elaborates on the relationship betweenindigenous autonomy and the right to self-determina-tion in a recent report27. He is of the opinion:

that the type of autonomy regime provided for underthe [Greenland] Home Rule does not amount to theexercise of the right to self-determination by the popula-tion of Greenland. In other countries, discussions arecurrently taking place with the view to establishing (or

implementing) autonomy regimes, or adopting measuresto recognize a distinct legal status for indigenous peo-ples... These autonomy regimes have brought (or maybring) certain advantages to indigenous peoples... TheSpecial-Rapporteur notes, however, that recognition ofautonomy for indigenous peoples within the State (what-ever powers or restrictions thereto are established), most

probably will not automatically end State aspirations toeventually exert the fullest authority possible (includingintegrating and assimilating those peoples), nor, in thatcase, nullify whatever inalienable rights these people may




have as such. Moreover, the mechanisms through whichautonomy regimes for indigenous peoples are being

formulated and implemented must be assessed, on a case-by-case basis, for proof of free and informed consent of all

parties concerned, especially indigenous peoples.

However, the author of this article is of the opinion thatthe right to autonomy and the right to self-government

must be regarded as emerging principles of customaryinternational law and as falling within the wider frame-work of the right to self-determination.

Various forms of indigenous autonomy and self-gov-ernment have been recognized and adopted by differentgovernments, which indicates support for these rights.However, concepts and degrees of indigenous self-gov-ernment may vary considerably, depending on the actualcircumstances and specific aspirations of indigenous peo-ples. The State practice in these cases could therefore beseen as an expression of an emerging acknowledgement ofindigenous peoples right to self-determination and ac-ceptance of their obligation to secure this fundamental

right, as international customary law in the making.In this context, one should also bear in mind that the

United Nations Working Group on Indigenous Pop-ulations, and its parent body the Sub-Commission onPrevention of Discrimination and Protection of Minori-ties, have adopted the principle contained in Article 31of the Draft United Nations Declaration on the Rights ofIndigenous Peoples. This states that indigenous peo-ples, as a specific form of exercising their right to self-determination, have the right to autonomy or self-government... Very few governments have expressedopposition with regard to the current wording of Arti-cle 31. Furthermore, indigenous peoples themselves,from around the world, have called for speedy adop-tion of the draft declaration without any changes oramendments, including Article 31.

Although autonomy and self-government may bethe principal means through which the right of self-determination may be exercised by indigenous peoples,these should not be interpreted as the only way in whichindigenous peoples can exercise their right of self-determination. However, in some cases, indigenouspeoples may not be able to accept anything short of fullindependence and, in these cases, autonomy and self-government will not be an option.

Observations of the UN Human RightsCommittee in relation to Indigenous Peoplesright of self-determination

The Human Rights Committee of the United Nations,which is mandated to monitor the implementation ofthe Covenant on Civil and Political Rights, has recentlymade some very important observations with regard toindigenous peoples right of self-determination.

Photos to the right:No 1: Youth from the Cordillera, the Philippines. Photo: Christian ErniNo 2: Legislative Chamber in Nunavut. Photo: Claudette A. MoseNo 3: Legislative Chamber in Nunavut. Photo: Claudette A. MoseNo 4: Saami with reindeer herd. Photo: IWGIA archiveNo 5: Landscape around Clyde River, Nunavut. Photo: Sandra Inutiq

Buhid woman, the Philippines. Photo: Christian Erni


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In April 1999, the Human Rights Committee consideredthe fourth periodic report of Canada on implementa-tion of the Covenant. In its concluding observations, theCommittee addresses the right of self-determination inthe indigenous context, with emphasis on the economicor resource dimension of self-determination (paragraph2 of Article 1). The Committees request to Canada toreport on the implementation of article 1 as far as

indigenous peoples are concerned indicates that theCommittee is of the view that article 1 also applies toindigenous peoples.28

In October 1999, the Committee followed a similarapproach when considering the fourth periodic reportof Norway. The Committee stated that it expects Nor-way to report on the Sami peoples right to self-determi-nation under article 1 of the Covenant, including para-graph 2 of that article [natural wealth and resources].

These observations are an acknowledgement of thefact that the right of self-determination, as stated inArticle 1 of the Covenant, also applies to indigenouspeoples. The Committee requests the governments con-

cerned to report on the implementation of indigenouspeoples right of self-determination as part of theirinternational legal obligations. This sets a very impor-tant legal precedent, for in this way indigenous peoplesright of self-determination is clearly included withinthe framework of core international human rights law.

Case studies

The case studies aim to provide examples of indigenousautonomy and self-government arrangements in variousparts of the world. Four main ways of arranging indig-enous autonomy and self-government can be identified:(1) indigenous autonomy through contemporary indig-enous political institutions, such as the Sami Parliamentsin the Nordic countries; (2) indigenous autonomy basedon the concept of an indigenous territorial base, such asthe Comarca arrangement in Panama; (3) regional au-tonomy within the State, such as the Nunavut territory inCanada and the indigenous autonomous regions in thePhilippines; and (4) indigenous overseas autonomy, suchas the Greenland Home Rule arrangement.

Five case studies have been selected with the aim ofproviding an introduction to and examples of these four

main ways of organizing indigenous autonomy and self-government. The author has not, however, examinedwhether these arrangements are founded on the free andinformed consent of the peoples concerned. The aim issimply to provide examples of existing arrangementswithout taking a position as to whether the criteria pertain-ing to free and informed consent are met. It should thusalso be noted that the author does not suggest that thesearrangements are adequate solutions, because such ajudgement can only be made by the peoples concerned.Case study 1: Indigenous autonomy in the Philippines

In 1997, the Indigenous Peoples Rights Act wasadopted by the legislative authorities in the Philip-pines29. The provisions of the Act, and in particularits slow implementation, have been criticized by in-digenous representatives from the Philippines. How-ever, one has to recognize that this new Act repre-sents an important development with regard to in-digenous self-determination. In Section 13 of the Act,

it is stated that:30

The State recognizes the inherent right of IndigenousCultural Communities/Indigenous Peoples (ICCs/IPs)to self-governance and self-determination and respectsthe integrity of their values, practices and institutions.Consequently, the State shall guarantee the right ofICCs/IPs to freely pursue their economic, social andcultural development.

There are many other important provisions of relevanceto self-determination, including indigenous peoplesright to use their own commonly accepted justice

system, conflict resolution institutions, peace-buildingprocesses or mechanisms and other customary lawsand practices within their respective communities.

In Section 16, it is stated, inter alia, that indigenouspeoples have the right to participate fully, if they sochoose, at all levels of decision-making in matters whichmay affect their rights, lives and destinies throughprocedures determined by them as well as maintain anddevelop their own indigenous political structures.

Section 17 of the Act deals with indigenous peoplesright to determine and decide priorities for their owndevelopment. It is stated that indigenous peoples shallhave the right to determine and decide their own priori-ties for development affecting their lives, beliefs, insti-tutions, spiritual well-being, and the lands they own,occupy or use. Furthermore, that indigenous peoplesshall participate in the formulation, implementationand evaluation of policies, plans, and programs fornational, regional and local development which maydirectly affect them.

The Act contains far-reaching provisions pertainingto indigenous land and natural resource rights. InSection 5, it is stated that the indigenous concept ofownership sustains the view that ancestral domainsand all resources therein shall serve as the material

bases of their cultural integrity. Section 8 states thatthe right to ownership and possession of the indig-enous peoples to their ancestral lands shall be recog-nized and protected.

Likewise, the Act contains well elaborated provisionson indigenous cultural rights, starting with Section 29, inwhich is stated that the State shall respect, recognizeand protect the right of indigenous peoples to preserveand protect their culture, traditions and institutions.


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Case study 2: Cultural autonomy for the indigenousSami people in Finland

As a result of legal amendments that came into force on1 January 1996, the Finnish Constitution and the SamiAct establish the legal framework for the cultural

autonomy of the indigenous Sami people within adefined Sami Homeland31. In Article 51 (a) of theConstitution, it is stated that the Sami as an indigenouspeople shall be guaranteed cultural autonomy in re-spect to their language and culture. Through the SamiAct, the publicly elected Sami Parliament (Sametinget)is recognized as being the representative Sami body,with a mandate to implement the above-mentionedautonomy.

In accordance with Article 9 of the Sami Act, theState authorities are obliged to negotiate with the SamiParliament on all far-reaching and important meas-ures that may directly affect the Sami people, or thatrelate to any of the following matters: (1) communityplanning; (2) the management, use, leasing and assign-ment of State land, conservation areas and wildernessareas; (3) applications for mining licences; (4) legisla-tive or administrative changes pertaining to tradi-tional Sami occupations and livelihoods; (5) the devel-opment and teaching of and in the Sami language inschools, and in the social and health service; and (6)any other matters affecting the Sami language or cul-ture.

The negotiation clause is an important element ofthe autonomy arrangement since it obliges the State

authorities to enter into negotiations aimed at findingsolutions to any issue that does not have the fullagreement of the Sami Parliament.

Another interesting and important element of thisautonomy arrangement is the role of the Sami Parlia-ment as the representative Sami body. In Article 6 ofthe Sami Act, it is stated that the Sami Parliament shallrepresent the Sami people, not only at national level butalso at international level. This is an arrangement thatincludes internal, as well as some of the external, as-pects of the right of self-determination32.

Case study 3: Greenland Home Rule

The case of Greenland Home Rule may be the bestexample of a progressive and far-reaching indigenousself-government arrangement, including both internal aswell as external aspects of the right of self-determination.

In the past, Denmark listed Greenland as a non-self-governing territory under Chapter XI of the Charter ofthe United Nations, and submitted annual reports to theTrusteeship Council as required under the Charter. In1954, Greenland was declared an integral part of theDanish Kingdom, and thereby removed from the UnitedNations list of non-self-governing territories. Today,full independence does not seem to be the desiredoption for most Greenlanders.

In 1979, the Greenland Home Rule Act entered intoforce. It establishes the political and legal frameworkfor self-government through the Greenland Home RuleAuthorities. The Greenland Home Rule Authorities arecomposed of a publicly elected Assembly (Landsting)and an Executive body (Landsstyre).

There has been a gradual transfer of power to theGreenland Home Rule Authorities, which gives theHome Rule Authorities extensive power and controlover domestic affairs. Although, the Greenland HomeRule Authorities do not have absolute control over landand natural resources, its veto power prevents theDanish Government from carrying out activities againstthe wish of the Home Rule Authorities. The mandate toconduct foreign affairs is a Constitutional Prerogativeof the Danish Government.

However, the Greenland Home Rule Governmenthas been able to reach an agreement with the DanishGovernment that gives the Home Rule Authorities aspecial position in relation to the European Union. In1972, Denmark joined the European Economic Com-munity (EEC), with the consequence that Greenlandhad to accept the overall Danish positive vote concern-ing Danish EEC Membership. In 1982, a new advisoryreferendum was held in Greenland, through which themajority of Greenlanders expressed their opposition toGreenland being part of the European Union (EU). The


Summer at the lake in Pangnirtung, Nunavut. Photo: Jack Hicks



Greenland Home Rule Authorities expressed their de-sire to carry out the wish of the people by seekingwithdrawal of Greenland from EU Membership. There-fore, although Greenland is part of the Danish Realm,both the Danish Government and the EU accepted aGreenlandic withdrawal from the EU. The withdrawaltook effect on 1 February 1985. Greenland was grantedthe status of Overseas Countries and Territories.

As a consequence, the Greenland Home Rule Au-thorities gained control over their main natural re-source - the fisheries. However, despite the with-drawal, the Greenland Home Rule Authorities wereable to negotiate free access to the EU market for theirsea products, which is crucial for the Greenlandiceconomy.

Case study 4: The Nunavut arrangement in Canada

In 1991, the Canadian Government signed a self-gov-ernment agreement with the Indigenous Inuit people

of Nunavut. The agreement provides for self-govern-ment extending over a territory of around two millionsquare kilometres.

The agreement provides that the Nunavut Terri-tory and Authorities shall be established as of 1 April199933. The Federal Nunavut Act establishes the terri-tory and provides for its government34. The NunavutAuthorities are composed of a publicly elected Assem-bly, a Cabinet and a territorial court. Moreover, aNunavut civil service will form an important elementof the self-government arrangement.

The Legislative Assembly can make laws in relationto a number of subjects, inter alia, including: (1) theelection of members to the Assembly; (2) the establish-ment of territorial offices; (3) the administration ofjustice in Nunavut; (4) municipal and local institutionsin Nunavut; (5) hospitals; (6) the management of salesof lands; (7) taxation; (8) property and civil rights inNunavut; (9) education; (10) preservation, use andpromotion of the Inuktitut language; (11) agriculture;and (12) entering into inter-governmental agreements.

The Nunavut Act identifies the Supreme Court andthe Court of Appeal of Nunavut as the superior courts inNunavut. The judges are appointed by the NunavutAuthorities.

The Nunavut Act establishes the Nunavut Imple-mentation Commission, with a mandate to monitor andensure implementation of the agreement.

Case study 5: The Comarca: Kuna Yala in Panama

Some indigenous communities in Panama enjoy a degreeof self-government. The most prominent among these isthe Comarca of San Blas (Kuna Yala) arrangement, whichencompasses around forty small islands along the Carib-

bean coast as well as a part of the mainland, around 200km along the Caribbean coast of Panama.

In 1939, the Comarca of San Blas arrangement re-placed the indigenous reserve system, which had beencreated nine years earlier by the authorities in Panama35.In 1953, a legal amendment represented by Law No. 16of 19 February 1953 redefined the legal status of KunaYala. It provides for a form of political organization

based on traditional Kuna ways of organizing society,including traditional Kuna jurisdiction.

The main indigenous political institution in KunaYala - the Kuna General Congress - is mandated toapprove or reject development projects in Kuna Yala.Article 12 of Law No. 16 states that lands within theindigenous area cannot be granted to persons who arenot part of the indigenous communities unless theapplication for the allocation has been approved bytwo different Kuna Congresses.

In Law No. 16, the Republic of Panama acknowl-edges the existence and the jurisdiction of the GeneralKuna Congress, other congresses of indigenous peo-ples and tribes, other traditional indigenous authori-ties, and the organic charter of the indigenous commu-nity of San Blas. Article 13 of the Law states that theState recognizes the existence of the Kuna GeneralCongress and other indigenous authorities as long asthey are compatible with the Constitution of the Re-public.

The traditional Kuna institutions are based on astructure of village communities and village leaders.The local Kuna assembly is in charge of the economicand administrative affairs of the community.

The Kuna communities are structured into two

institutions: (1) the General Congress of Kuna Culture,which has as its main objective the preservation andtransmission of the cultural and historical heritage ofthe Kuna people; and (2) the Kuna General Congress,which deals with economic, political, administrativeand judicial matters.

The Kuna General Congress, which is the centralgoverning institution, is presided over by three grandchiefs from different regions of the Kuna territory. TheCongress is made up of representatives of each localcommunity, including youth, workers organizationsand urban Kuna communities.

The national government is represented by an ap-

pointed government official with the power to ap-prove or veto decisions made by the Kuna GeneralCongress. The government official is normally a Kuna.The government-appointed official is chosen from alist of three candidates nominated by the Kuna Gen-eral Congress.

At present, the Kuna authorities are seeking a revi-sion of Law No. 16, geared towards a strengthening ofKuna political autonomy in relation to the Constitutionof the Republic.


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Conclusions

It is clear that the principle and fundamental right ofself-determination for all peoples is firmly establishedin international law, including human rights law, andthat it must therefore be applied equally and univer-sally. Indigenous peoples can thus not be denied thisfundamental right.

Although autonomy and self-government may bethe principal means through which the right of self-determination will be exercised by indigenous peoples,their right of self-determination cannot be qualified assomething less than that of other peoples right of self-determination. This would be tantamount to sayingthat there are different classes of peoples.

The right of self-determination can be implementedthrough various mechanisms and arrangements withinthe framework of a nation state. However, in caseswhere the right of self-determination of indigenouspeoples is exercised through autonomy and self-gov-ernment arrangements, it is crucial that adequate mecha-

nisms are developed at national as well as internationallevel, in order to ensure that these arrangements fulfilthe criteria of the free and informed consent of thepeople concerned.

Notes

1 UN General Assembly Resolution 1514 (XV) of 14 December 1960.2 Seethe Namibia case(1971) ICJ 16 and the Western Saharacase (1975)

ICJ 12.3 General Comment No. 12 of the Human Rights Committee, made

at its twenty-first session, 1984. UN document: HRI/GEN/1/Rev.3.

4 UN document: CERD/C/49/CRP.2/Add.7 of 5 July 1996.5 Advisory Opinion, 1950 ICJ 4,8.6 The Draft United Nations Declaration on the Rights of Indigenous

Peoples, as agreed upon by the members of the Working Group onIndigenous Populations at its eleventh session in 1994, is con-tained in United Nations document: E/CN.4/Sub.2/1994/2/Add.1 of 20 April 1994.

7 Jos Martnez Cobo, Study of the Problem of Discrimination AgainstIndigenous Populations, E/CN.4/Sub.2/1986/7/Add.4, para 379.

8 Ibid, para 380.9 International Labour Office (2000), ILO Convention on Indig-

enous and Tribal Peoples, 1989 (No. 169) A Manual.10 UN General Assembly Resolution 2625 (XXV) of 24 October 1970.11 See General Assembly Resolution No. 1541 (XV).12 UNESCO Division of Human Rights (1999), Report of the Inter-

national Conference of Experts on the Implementation of the Right

to Self-determination as a Contribution to Conflict Prevention.1 3 Ibid.14 The Declaration on Friendly Relations (1970), UN GA resolution

2625 (XXV), 24.10.1970.1 5 Ibid.16 UNESCO Division of Human Rights (1999), Report of the Inter-

national Conference of Experts on the Implementation of theRight to Self-determination as a Contribution to Conflict Preven-tion.

17 UN Doc: CCPR/C/79/Add.105, April 1999 (Concluding observa-tions related to the Canadian periodic report) and UN Doc CCPR/C/79/Add.109, October 1999 (Concluding observations related tothe Norwegian periodic report).


18 Erica-Irene Daes, Preliminary Working paper on indigenous peoplesand their relationship to land, contained in UN document: E/CN.4/Sub.2/1997/17.

19 UN document: E/CN.4/Sub.2/1994/2/Add.1.20 The Copenhagen Declaration and Programme of Action, from the

World Summit for Social Development, contained in UN docu-ment: A/CONF. 166/9.

21 See the Copenhagen Declaration on Social Development, SectionB - Principles and goals, (m).

22 Draft Declaration on the Rights of Indigenous Peoples as agreed

upon by the members of the Working Group on Indigenous Po-pulations at its eleventh session, contained in UN document E/CN.4/Sub.2/1994/2/Add.1.

23 S. James Anaya (1996), Indigenous Peoples in International Law,Oxford University Press.

24 Western Sahara, Advisory Opinion, (1975) ICJ Reports 12 at 33.25 Hurst Hannum & Richard B. Lillich, The Concept of Autonomy in

International Law, p. 218.26 UN Expert meeting on Indigenous Self-Government.27 Miguel Alfonso Martinez, Special-Rapporteur of the Sub-Commis-

sion on Prevention of Discrimination and Protection of Minoritieson treaties, agreements and other constructive arrangements be-tween States and indigenous peoples (1998) - unedited final report,distributed by the Special-Rapporteur at the sixteenth session ofthe Working Group on Indigenous Populations in July 1998.

28 UN Doc: CCPR/C/79/Add. 105, para. 7.

29 Republic Act No. 8371. In Section 1 of the Act, it is stated that itshall be known as The Indigenous Peoples Rights Act of 1997.

30 Official Gazette of the Philippines, Vol. 94, No 13, March 30, 1998.31 The Sami Act of 17 July 1995 (Finnish Act No. 974).32 John B. Henriksen,Betenkning om samisk parlamentarisk samarbeid

- DIEDUT, No. 2, 1998, Nordisk Samisk Institutt.33 The Nunavut Land Claims Agreement Act. Bill C-133 of 4 June

1993 reaffirms the agreement between the indigenous Inuit of theNunavut Settlement Area and the Government of Canada.

34 Bill C-132, adopted by the House of Commons on 4 June 1993.35 Law No. 59 of 12 December 1930, of the Republic of Panama,

created the reserve system (reserva indigena). Law No. 2 of 16September 1939 created the Comarca de San Blas arrangement,which replaced the reserve system. Law No.16 of 19 February1953, which strengthened the legal status of Kuna Yala. Anotherrelevant law is Law No. 20 of 31 January 1957.

John B. Henr iksen is an indigenous Saami fromGouvdageaidnu, which is situated in the Norwegian part ofthe traditional Saami territory. He is a lawyer by professionand has been working on indigenous issues for many years.

He was formerly a member of the Legal Committee of theSaami Council, and was for many years the legal advisor andrepresentative of the Saami Council within the United Na-tions system. He later worked as an advisor to the indigenousSaami Parliament in Norway, with special emphasis on legaland international issues. In 1995, he undertook a study thatconstitutes the foundations for the establishment of the SaamiParliamentary Assembly - covering Finland, Norway, Rus-sia and Sweden. He later worked for three years as a staffmember with the United Nations Secretariat in Geneva, inthe Office of the UN High Commissioner for Human Rights,dealing with the rights of indigenous peoples. For the timebeing he works as Attorney at Law in Oslo. He also serves theSaami Council as its Human Rights Coordinator.



From Sovereigntyto Freedom:Towards an

IndigenousPolitical

Discourse

By Taiaiake Alfred

22Indigenous Affa irs 3/01


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Sovereignty. The word, so commonly used, refersto supreme political authority, independent andunlimited by any other power. Discussion of the

term sovereignty in relation to indigenous peoples,however, must be framed differently, within an intellec-tual framework of internal colonisation. Internal coloni-

sation is the historical process and political reality de-fined in the structures and techniques of governmentthat consolidate the domination of indigenous peoplesby a foreign yet sovereign settler state. While internalcolonisation describes the political reality of most indig-enous peoples, one should also note that the discourseof state sovereignty is and has been contested in real andtheoretical ways since its imposition. The inter/counterplay of state sovereignty doctrines - rooted innotions of dominion - with and against indigenousconcepts of political relations - rooted in notions offreedom, respect and autonomy - frames the discourseon indigenous sovereignty at its broadest level.

The practice of history cannot help but be implicatedin colonisation. Indeed, most discussions of indigenoussovereignty are founded on a particular and instrumen-tal reading of history that serves to undergird internalcolonisation. Fair and just instances of interaction be-tween indigenous and non-indigenous peoples are le-gion; yet mythic narratives and legal understandings ofstate sovereignty in North America have consciouslyobscured justice in the service of the colonial project.From the earliest times, relations between indigenouspeoples and European newcomers vacillated within thenormal parameters that characterise any relation be-

tween autonomous political groups. Familiar relations -war, peace, cooperation, antagonism and shifting domi-nance and subservience - are all to be found in ourshared history. Yet the actual history of our pluralexistence has been erased by the narrow fictions of asingle sovereignty. Controlling, universalising and as-similating, these fictions have been imposed in the formof law on weakened but resistant and rememberingpeoples.

European sovereignties in North America first legiti-mated themselves through treaty relationships entered

into by Europeans and indigenous nations. North Ameri-can settler states (Canada and the United States, withtheir predecessor states Holland, Spain, France, andEngland) gained legitimacy as legal entities only by theexpressed consent through treaty of the original occupi-ers and governors of North America. The foundingdocuments of state sovereignty recognise this fact: allDutch and French treaties with indigenous peoples, the

Treaty of Utrecht, the Articles of Capitulation and theRoyal Proclamation (made in a context of military inter-dependency between the British and indigenous na-tions) all contain explicit reference to the independentnationhood of indigenous peoples. As the era of Euro-pean exploration and discovery gave way to settlement,with its concomitant need for balanced peaceful rela-tions with indigenous nations, the states charter docu-ments made clear reference to the separate politicalexistence and territorial independence of indigenouspeoples.

None of this historical diversity is reflected in theofficial history and doctrinal bases of settler state sover-

eignty today. Rather, Canada and the United Stateshave written self-serving histories of discovery, con-quest and settlement that wipe out any reference to theoriginal relations between indigenous peoples and Eu-ropeans. Thispost-facto claim of European sovereigntyis limited by two main caveats. The first is factual: themere documentation of European assertions ofhegemonic sovereignty does not necessarily indicateproof of its achievement. European control over actualterritory was tenuous at best; and the political existenceof European settler states was a negotiatedreality untilwell into the nineteenth century (and not completelyachieved, even in colonial mythology, until the end ofthe nineteenth century in the United States and to thisday in Canada).

The second limitation is theoretical: the discourse ofsovereignty upon which the currentpost facto justifica-tion rests is an exclusively European discourse. That is,European assertions in both a legal and political sensewere made strictly vis--vis other European powers,and did not impinge upon or necessarily even affect inlaw or politics the rights and status of indigenousnations. It is only from our distant historical vantagepoint, and standing upon a counterfactual rock, that weare able to see European usurpation of indigenous

sovereignty as justified.If sovereignty has been neither legitimized nor justi-fied, it has nevertheless limited the ways in which weare able to think, suggesting always a conceptual anddefinitional problem centred on the accommodation ofindigenous peoples within a legitimate framework ofsettler state governance. When we step outside thisdiscourse, we confront a different problematic, that ofthe states sovereignty itself, and its actual meaning incontrast to the facts and the potential that exists for anation-to-nation relationship.

Living in two worlds. Tom LaBlanc, Sisseton-Dakota from North Dakota,

anti-uranium activist, traditional dancer and poet. Photo: Helena Nyberg

Typical home of a self-sufficient Lilwat family denying to accept welfare money. Photo: Helena Nyberg



The critique from within

Indigenous scholars have focused on this problematic toprofound effect. Russel Barsh and James Henderson, forexample, explored the process of intellectual obscurant-ism in close detail in The Road: Indian Tribes and PoliticalLiberty. Barsh and Henderson concentrated on the UnitedStates and the creation of an historical narrative that

completely ignored basic principles of natural law andthe philosophical underpinnings of American notions ofliberty and equality. They trace the evolution of thedoctrine of tribal sovereignty in United States law throughjudicial decisions, and demonstrate the ways in which theprocess misrepresented the true potential of liberal prin-ciples - and even the United States Constitution - toaccommodate notions of indigenous nationhood.

The Road is a landmark work. It embarked on acritique from within, arguing for recognition of indig-enous peoples rights within the historic and legal frameof state sovereignty. Ultimately, Barsh and Hendersonsubjected the rationale for indigenous or tribal liberty

to criteria defined by the framers of the United StatesConstitution. The problem, they argued, was the subjec-tion of principle to politics, and unprincipled decisionsby the state judiciaries. Barsh and Henderson designeda theory of the tribe in the American nation (205), and,in so doing, advanced the theoretical notion of a coexist-ence of indigenous and state sovereignty that was ham-strung as a conceptual tool by the weight of skewed legalprecedent and the reality of the political context. In thissense, The Road follows the trajectory - native sover-eignty within and in relation to state sovereignty - firstset forth in the 1830s in the Cherokee decisions, whichsuggested that tribes were domestic dependent na-tions.

The entanglement of indigenous peoples within theinstitutional frame of the colonial state of course wentbeyond legal doctrines. The practice of sovereignty inthe structures of government and the building of insti-tutional relationships between indigenous governmentsand state agencies offered another forum for the subor-dination of principle. In two volumes, American Indians,

American Justice and The Nations Within, Vine Deloria Jr.and Clifford Lytle first outlined how the legal denial ofindigenous rights in the courts was mirrored in govern-ing structures that embedded the false notion of Euro-

pean superiority in indigenous community life. The ex-ample of the United States usurpation of indigenousnationhood clarified how the state generally uses not onlypolitical and economic but also certain intellectual strat-egies to impose and maintain its dominance. Such linkingof the intellectual and structural forms of colonialismhave produced some of the deepest analyses of the issue.

In considering the question of the sovereignty ofindigenous peoples within its territorial borders, thestate takes various positions: the classic strategies in-clude outright denial of indigenous rights; a theoretical

acceptance of indigenous rights combined with an as-sertion that these have been extinguished historically;and legal doctrines that transform indigenous rightsfrom their autonomous nature to contingent rights,existing only within the framework of colonial law.Scholars have fully documented the manifestation ofthese strategies in the various policies implemented bysettler states in the modern era: domestication, termina-

tion, assimilation.With the minor concession that in both Canada and

the United States the federal government itself hasmaintained and defended its powers over indigenouspeoples vis--vis states and provinces, the potential forrecognition of indigenous nationhood has goneunrealized. There has been a total theoretical exclusionand extinguishment of indigenous nationhood, leadingto what a recent United Nations Human Rights Com-mission study labelled the unjust domestication ofindigenous nationhood.

Indigenous peoples nonetheless struggled to achievea degree of freedom and power within the intellectual

and political environment created out of the colonialdomestication project and settler state sovereignty. Forgenerations, indigenous peoples fought to preserve theintegrity of their nations and the independent bases oftheir existence. They were successful in countering thecolonial project to the extent that they survived (amonumental human achievement given the intensiveefforts of two modern industrial states to eradicatethem). Yet by the late 1980s, the increasing erosion oftribal governing powers in the United States and failedattempts to enshrine a recognition of indigenous na-tionhood in the Canadian constitution made it clear thatthe governments of Canada and the United States wereincapable of liberalizing their relationships with thenations within.

The new approach: deconstructing the archi-tecture of colonial domination

As they regained their capacity to govern themselvesand began to re-assert the earlier principles of thenation-to-nation relationship between indigenous peo-ples and states, indigenous people began to questionseriously the viability of working within the system, of

considering themselves nations within. The ques-tioning often came out of models - tribal and bandcouncils dependent upon and administering federalfunds, for example - that recognized indigenous sover-eignty yet always subsumed it to that of the state. A newintellectual approach began to emerge in the critique ofthe fundamental pillars by which the United States andCanada claimed legal authority over indigenous peo-ples and lands. Reflecting critical trends in other aca-demic disciplines, legal scholarship began the project ofdeconstructing the architecture of colonial domination.

Lilwat spiritual leader checking on the destruction of their sacred valley. Photo: Helena Nyberg


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Perhaps the two most important strategies to re-achievea political plurality in the face of the dominance of statesovereignty have been woven together: On the onehand, the assertion of a prior and coexisting sovereigntyand, on the other, the assertion of a right of self-determi-nation for indigenous peoples in international law.

The most thorough and illuminating of the criticallegal studies of the indigenous-state relationship is Robert

Williams The American Indian in Western Legal Thought.Its description of how law - embodying all of the racistassumptions of medieval Europe - has served as theEuropean colonisers most effective instrument of geno-cide destroys the arguments of those who would defendthe justice of the colonial state. Williams shows how thedeep roots of European belief in their own cultural andracial superiority underlie all discussions of the interac-tion between whites and indigenous peoples on theissue of sovereignty. After Williams critique, any his-tory of the concept of sovereignty in North Americamust trace the manipulation of the concept as it evolvedto justify the elimination of indigenous peoples. Byexamining the deep history of European thought onindigenous peoples - what he calls the discourse ofconquest - Williams showed how the entire discussionof sovereignty in North America represents the calcu-lated triumph of illogic and interest over truth andjustice.

After the end of the imperial era and the foundation ofthe North American states, in no instance did principlesof law preclude the perpetration of injustice againstindigenous peoples. In Canada, the rights of indigenouspeoples were completely denied in the creation of thelegal framework for the relationship. And the UnitedStates Supreme Courts definition of tribal sovereignty -made by Chief Justice John Marshall in a series of nine-

teenth-century decisions centered onJohnson v. McIntosh- merely gave legal sanction to the unilateral abrogationof treaties by the United States and denial of the naturallaw rights of indigenous peoples. As Williams argues:

Johnsons acceptance of the Doctrine of Discovery intoUnited States law preserved the legacy of 1000 years ofEuropean racism and colonialism directed against non-Western peoples (317).

Recent assertions of prior and persistent indigenouspower have come from two places: first, the intellectualand historical critiques of state legitimacy and, second,

the revitalisation of indigenous communities. Usingremnant recognitions in colonial law, Indian criticshave sought to deconstruct the skewed legal and insti-tutional frame and to focus directly on the relationshipbetween indigenous peoples and state sovereignty.




Core to this effort is the theoretical attention given to theentire notion of sovereignty as the guiding principle ofgovernment in states. What the Canadian philosopherJames Tully calls the empire of uniformity is a fact-obliterating mythology of European conquest and nor-mality. Tully recognises the ways in which injusticetoward indigenous peoples is deeply rooted in the basicinjustice of normalised power relations within the state

itself. In his Strange Multiplicity, Tully considers theintellectual bases of dominance inherent in state struc-tures, and h

Selfdetermination Indigenous Affairs

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