Saturday, April 18, 2015

North American Indigenous Peoples Caucus Report 2015

Decisions and Recommendations of the North American Indigenous Peoples’ Caucus (NAIPC) to the 14th Session of the United Nations Permanent Forum on Indigenous Issues and to Other Relevant Bodies and Fora


“We are at our desperate hour. Our children are committing suicide. We are desperate for a forum. Our children are dying and they [the dominating society] are taking our water…. The elders and spiritual leaders who led the way into the international arena [Fools Crow, Bad Wound, etc.] wanted the correct words and they wanted to uphold the highest principles [for our Nations]. We will always remember. We will never forget.”
Phyllis Young, NAIPC Meeting Participant 2015

We are the originally and still rightfully free and independent nations of Great Turtle Island. We have our own laws given to us by the Creator, which, through our oral traditions instruct us to live in a spiritual manner with all living things. We have met in a spiritual manner in the territory of the Oceti Sakowin. The NAIPC reaffirms the original intentions of our ancient and continuing international relations as peoples and nations in the international arena. We acknowledge the ancestors that went to the international fora in 1920’s such as Deskaheh and
W.T. Ratana, and onward.  This work continues to be guided by prayers, corn pollen, drums and sacred pipes in support of, for example, the principles expressed in the Declaration of Continuing Independence issued at the first International Indian Treaty Conference at Standing Rock in 1974.  We contend that these principles must continue to inform and guide our decision-­making and the NAIPC positions advanced in the international arena.  It was a result of that original intention of continuing independence that the NAIPC did not support the UN high-­level plenary meeting in September of 2014, and does not agree with or concede to efforts by states to domesticate our fundamental rights, such as the right of self-­determination as nations and our treaty rights.

NAIPC is gravely concerned with the abuses committed against the Oceti Sakowin, which reflect similar abuses against all Indigenous Peoples on Great Turtle Island. Issues such as fracking, mining, violation of treaties, and resource extraction, brings attention to the enormity of the issues that Indigenous Peoples are encountering in the North American region.

Organizational Details

1.     The North American Indigenous Peoples Caucus (NAIPC) met on March 21 and 22, 2015 in territory of the Oceti Sakowin (Rapid City, South Dakota.)  The meeting was hosted by the Defenders of the Black Hills and sponsored by Seventh Generation Fund for Indigenous Development, Rural America Initiatives, and Inter-­Tribal Buffalo Council.

2.        The meeting was opened with a Sunrise Ceremony honoring the Spring Equinox with traditional song and prayer, in accordance with Oceti Sakowin protocol.  The meeting hosts treated the meeting delegates to meals of buffalo, generously donated by the Inter-­Tribal Buffalo Council, a coalition of 56 Indigenous Nations who are revitalizing healthy buffalo herds, and their sacred relationship to their peoples. All unused buffalo meat was freely shared with elders, mothers with families, and others in need.

3.     The meeting was attended by over 39 representatives from 25 Indigenous Nations and Indigenous Peoples organizations including: National Indian Youth Council, Inc., Emerging Indigenous Leaders Institute, TONATIERRA, Seventh Generation Fund, CU-­Denver Fourth World Center for the Study of Indigenous Law and Politics, Defenders of the Black Hills, Kitchenuhmaykoosib Inninuwug, American Indian Movement of Colorado, CHR Program, RST TECRO Program, Indigenous Peoples Council on Biocolonialism, World Rights Group Consulting and Ochopawace Nation-­Treaty 4, Ducon Energy, Poenadu Organic Farms, Okimel O'otham, Indigenous Law Institute, Coastal Band of the Chumash Nation, Oglala Lakota/Bearghost Foundation, Cree/Onion Lake Cree Nation, Anishinaabe/Kitchenuhmaykoosib, Leonard Peltier Grassroots, Hunkpapa Treaty Council, Standing Rock Nation, and the Leonard Peltier Support Group.

4.     The NAIPC noted their extreme disappointment in the absence of Ed John and Sonia Smallcombe at the meeting, leaving this regional caucus meeting without any official representation from the UNPFII. The participants are requesting an official explanation for this lack of attendance. The participants decided to issue a communiqué to Ed John to inquire whether he will maintain his obligation to NAIPC, or if he is prioritizing other entities within his designated region over this body. NAIPC also reminds this forum that this entity is the official regional body recognized by ECOSOC for recommendations to be taken to the UNPFII and other relevant bodies. NAIPC has decided to write to the Secretary General and the High Commissioner regarding this matter.

5.    Participants selected Debra Harry, Ph.D., Numu-­Kooyooe Dukaddo, and Janice Makokis, BA, MA, LLB, Onihcikiskowapowin (Saddle Lake Cree Nation), Treaty No. 6 to serve as co-­chairs for this meeting.

6.   Participants selected Steven Newcomb (Shawnee/Lenape), Cody Harry (Numu/Diné) and Rubina Dann (Western Shoshone) to serve as Rapporteurs for this meeting

7.    The participants reviewed 14th session of UNPFII schedule and information sent by Ms. Smallcombe.

8.     UNPFII Agenda Item 3: Follow-­up on the recommendations of the Permanent Forum Agenda Item 3 (a) Outcome of the high-level plenary meeting also known as the World Conference on Indigenous Peoples.

The NAIPC notes that the Permanent Forum’s recommendations in relation to the high-­level plenary meeting known as the World Conference on Indigenous Peoples (HLPM/WCIP) were blatantly ignored in the process to develop the outcome document.  The Permanent Forum strongly urged:
“...that the Declaration on the Rights of Indigenous Peoples become the conceptual and normative framework for the outcome document” and “...that [I]ndigenous [P]eoples must have equal participation in the drafting of all documents of the World Conference, including the outcome document” (E/C.19/2015/3).   
Retrospect shows that these recommendations were disregarded.

On the first point, the UNDRIP was far from the “conceptual and normative framework” for the outcome document.  The foundation of the UNDRIP is the international legal right of self-determination.  This right, upon which all other rights are anchored, and from which they flow, goes unacknowledged in the outcome document.  And on the second point, the outcome document was solely drafted by states, without equal participation of Indigenous Peoples, further disrespecting the Permanent Forum’s recommendation of “equal participation in the drafting of the...outcome document.”

NAIPC notes that any affirmation of the international character of Indigenous Peoples and their treaties is absent from the outcome document. Former UN High Commissioner for Human Rights, Ms. Navi Pillay reminded us on August 7, 2013 that “...treaties remain the cornerstone for the protection of the identity, land and customs of [I]ndigenous [P]eoples, determining the relationship they have with the State.”1 The lack of affirmation of the international character of Indigenous Peoples and their treaties, further departs from the UNDRIP and its attention to treaties in Article 37.

The NAIPC also noted that there is not an adequate expression of free, prior and informed consent (FPIC) in the outcome document. Article 20 of the outcome document simply conflates FPIC with commitments of States to “...consult and cooperate in good faith.” The NAIPC noted how the use of “consultation” and “cooperation” in “good faith” are often used in domestic legal regimes to circumvent FPIC.

Finally, the NAIPC further noted that the political and legal foundation (the doctrine of discovery) that settler-­states use to rationalize their domination, invasion and territory theft in relation to Indigenous Peoples went entirely unchallenged in the outcome document.  The NAIPC noted that the doctrine of discovery and domination violates international law and stands in contravention to the United Nations Charter, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, and the Convention on the Elimination of All Forms of Racial Discrimination.

The NAIPC takes pride in and stands by its decision to call for a cancellation of a process that is deleterious to the international Indigenous Peoples movement.  We would like to remind the Permanent Forum that the outcome document is not the NAIPC’s document, and in fact is not an Indigenous Peoples’ document, as it was entirely state-­drafted and state-­voted within the General Assembly.  The NAIPC reiterates that it did not participate, or lend its free, prior and informed consent to a process that serves to domesticate the UNDRIP within settler-­state political, legal and policy frameworks.  Given this context, the NAIPC will not be bound by the outcome document’s limitations and fatal flaws.

Agenda Item 3(b) Post-­2015 development agenda

We carry the right and responsibility to protect the holistic and ecological integrity of Great Turtle Island and Mother Earth.  We stress that the concept “territorial integrity of states” is a worldwide undermining of Indigenous Peoples and nations through processes of state domination. We remind the UN system that it has the obligation to uphold the UN Charter and, pursuant to it, to promote and respect the self-­determination of nations and peoples. Such obligations are violated through a state oriented perspective of “action plans” and “development.”

Agenda Item 3(c) Youth, self-­harm and suicide

The youth of the NAIPC are acutely aware of the rampant incidences of suicide and self-­harm among Indigenous youth.  In fact, our meeting was convened in the territories of the Oceti Sakowin, where the suicide rate is among the highest of any peoples.  Considering our intimacy with this issue, we remind the UNPFII that these ills are symptomatic of a deeper, more foundational problem – colonization and its ongoing effects.  The youth of the NAIPC contend that colonization has set up a framework of domination and subordination between Indigenous Peoples and settler-­states, resulting in the denial of many basic human rights belonging to our nations and peoples such as the right to live free from domination and dehumanization.  It is out of this denial of basic human rights that health and social ills manifest.  Most notable of the basic human rights that are being denied to Indigenous Peoples are:  the right to own, use and develop lands, territories and resources which were traditionally owned; the right to self-­determination as defined in international law; and the right to live and be free from discrimination of any kind, which includes racist doctrines, inter alia, the doctrine of discovery.  The foundational issue of colonization (domination) and its legacy that manifests as poor health and social ills for Indigenous Peoples and nations.

When the human rights of Indigenous Peoples are realized, improvements in their health indicators will follow.  For example, because Indigenous Peoples are land-­based peoples where land and geographic space are vital to our physical and cultural well-­being, the realization of land rights would address the said social ills on a foundational level.

Further, the youth of the NAIPC reject superficial attempts to address Indigenous youth self-­ harm and suicide, such as the initiatives touted by the United States in their response to the UNPFII questionnaire (E/C.19/2015/5).  These deceptive attempts only serve to perpetuate the ongoing colonial relationship between Indigenous Peoples and settler-­states, while maintaining the domination and subjugation of our nations.  A genuine effort to resolve Indigenous youth self-­harm and suicide would include the dismantling of the systemic and power structures that catalyze these social ills.

The NAIPC insists settler states restore the Indigenous Nations to their lands. The Elders say that by restoring the people to the land, and by focusing the life-­force and attention of the young people on the gift of life in relation to the land, will result in a desire to affirm rather than end life. Generations of domination and dehumanization, which have cut the people off the land, have resulted in patterns of self-­destruction in an effort to end the pain of depression and despair.  What is being called “suicide” is a direct consequence of colonization,  domination, and dehumanization. The solutions must address the love of life in connection with the love of the land so that we are dealing with root causes and not merely the symptoms.

For the above reasons, the NAIPC insist settler states support Indigenous-­based education programs to restore traditional livelihood and reaffirm self-­determination of Indigenous nations. NAIPC recommends that the states and the churches put as much time, effort, energy and monies into assisting with the restoration of Indigenous peoples to the land, and with the revitalization of Indigenous languages cultures and spiritual traditions as they put into cutting the people off from their lands and attempting to destroy our languages, cultures, and spiritual traditions.

The NAIPC recommends that the UNPFII analyze the direct impacts of colonization on Indigenous Youth.

9.        UNPFII Agenda Item 5. Half-­day discussion on the expert group meeting on the theme “Dialogue on an optional protocol to the United Nations Declaration on the Rights of Indigenous People”

The NAIPC rejects the proposal for an optional protocol to the United Nations Declaration on the Right of Indigenous Peoples.  This decision was made because optional protocols are irrelevant to declarations.  We fail to see the benefit of an optional (read voluntary) protocol for a non-­legally binding declaration that would address the most critical issues of our peoples such as rights to lands, territories and resources, at the domestic level.  This is a non-­sequitur and non-­sensical proposal.  The development of an optional protocol to the UNDRIP with its suggested focus on “implementation gaps” may also serve as a distraction to the larger goal of the adoption of a convention.

The NAIPC endorses The American Indian Law Alliance (AILA) Statement to the UNPFII Expert Group Meeting: Dialogue on an optional protocol to the United Nations Declaration on the Rights of Indigenous Peoples given January 29, 2015.The NAIPC especially shares the concern that an optional protocol could allow for states to move disputes regarding our rights to our lands, territories and resources from international processes to domestic judicial and political forums.  The NAIPC also has grave concerns regarding the proposal by Mattias Åhrén in regards to a possible new role of EMRIP in which it is suggested that only Indigenous Peoples recognized by states would be eligible to submit complaints to a new optional protocol body, which is in direct violation of the UNDRIP, our right to full, effective and equal participation, and violates the right to self-­determination.

The NAIPC recommends that the Permanent Forum direct its attention to advancing the study on treaties through the UN Treaty Bodies.

In relation to the PF addressing the implementation gap via the United Nations system, the NAIPC notes the PF recommendation No. 55 of E/C.19/2015/8, that “the Human Rights Council conduct a comprehensive review of how Indigenous Peoples utilize the existing United Nations treaty bodies and the universal periodic review system”, but we recommend the addition that this review is done with a view to create equality and justice for Indigenous Peoples’ issues and rights. The PF can implement and follow up on its recommendations, and include an ongoing agenda at annual sessions on the reform of Treaty bodies to include Indigenous Peoples equals participation in these fora.

NAIPC further notes the PF recommendation No. 56 that the Human Rights Council should conduct a study on lands, territories and resources of Indigenous Peoples3.

10.       UNPFII Agenda Item 6. Comprehensive dialogue with United Nations agencies and funds on the post-­2015 development agenda

Report of the Inter-­Agency Support Group on Indigenous Peoples’ Issues annual meeting for 2014

NAIPC notes that the Inter-­Agency Support Group Report, in the accustomed manner of the UN, applies the terms “nation,” “nations,” and “national” to states, while never applying those terms to Indigenous nations and peoples. This creates the impression that, for instance, the term “national” only applies to states, and that there is no distinctive nationhood and national identity for Indigenous nations and peoples. To the extent that the word “nation” is ever applied to Indigenous peoples in the context of the UN, especially in relation to Canada and the United States, the term “tribal” is added to “nation,” thereby making it seem as if Indigenous nations are being categorized in a subordinated and domesticated political position in relation to states. This is but a continuation of the pattern of what were once termed colonial and colonized nations and peoples, only now there is the guise of a different terminology in the inter-­national order. The unquestioned and uncritical use of such terminology is part of the problem that goes unaddressed in such Reports for nations and peoples called “Indigenous.” The continued use of such terminology is not the path to resolving the problems faced by our nations and peoples.

11.       UNPFII Agenda Item 7. Human rights

(a)       Implementation of the United Nations Declaration on the Rights of Indigenous Peoples (with specific focus on economic, social and cultural rights)

IP have rights including but not limited to human rights, obligations to the land and right to self-­determination.

The NAIPC recommends to the UNPFII that any further discussion on self-­determination take into consideration existing and concurrent work being done in other UN bodies.  In August 2014, the Independent Expert to the Human Rights Council, Alfred-­Maurice de Zayas released the report to the General Assembly entitled "Interim report of the Independent Expert on the promotion of a democratic and equitable international order” (A/69/272).   This report “…focuses on the implementation of the right of self-­determination as key to the international order envisaged by the Charter of the United Nations...”  The NAIPC specifically supports the following excerpts and recommends that these excerpts inform the UNPFII’s work in relation to the right of self-­determination:
3 E/C.19/2015/8

54.  The process of self-­determination did not end with decolonization and the independence of trust territories. Even today there are many unrepresented peoples and nations, peoples living under occupation and a majority of indigenous peoples in several continents who aspire to exercise self-­determination, whether in the form of autonomy within existing States or independence. It is therefore necessary to devote attention to their situation, consult with the peoples concerned and ensure their right to participate in decision-­making, in particular on all matters that directly concern them, their lands, their natural resources and their culture.

56.  Even today, indigenous peoples and colonized and occupied peoples are not vested with their proper status at the national or international level. The United Nations could grant them such status as a corollary to the right of self-­determination in a manner that allows for their equal participation and their free, prior and informed consent on all matters that affect them and at all levels within the United Nations system. Part of the problem with the delayed discussion on the self-­determination of indigenous peoples was the fact that Governments essentially marginalized them.

58.  There are many open accounts worldwide that should be settled—peacefully—through good-­faith negotiation with indigenous peoples, whose inalienable rights have not been extinguished through lapse of time or through the racist and factually inapplicable doctrine of discovery (see E/C.19/2014/3).

64.  To address the multiple and complex issues involved in achieving self-­determination, a number of factors have to be evaluated on a case-­by-­case basis. In this context, it would be useful if the General Assembly were to request the International Court of Justice to issue advisory opinions on the following questions: What are the criteria that would determine the exercise of self-­determination by way of greater autonomy or independence? What role should the United Nations play in facilitating the peaceful transition from one State entity to multiple State entities, or from multiple State entities to a single entity?

66.       Self-­determination has emerged as a jus cogens norm and is enshrined in Article 1 of the Charter as one of the purposes of the Organization. The right is not extinguished with lapse of time because, just as the rights to life, freedom and identity, it is too important to be waived. All manifestations of self-­determination are on the table: from a full guarantee of cultural, linguistic and religious rights, to various models of autonomy, to special status in a federal State, to secession and full independence, to unification of two State entities, to cross-­border and regional cooperation.

67.       The implementation of self-­determination is not exclusively within the domestic jurisdiction of the State concerned, but is a legitimate concern of the international community.

72.  The aspiration of peoples to fully exercise the right of self-­determination did not end with decolonization. There are many indigenous peoples, non-­self-­governing peoples and populations living under occupation who still strive for self-­determination. Their aspirations must be taken seriously for the sake of conflict prevention. The post-­colonial world left a legacy of frontiers that do not correspond to ethnic, cultural, religious or linguistic criteria. This is a continuing source of tension that may require adjustment in keeping with Article 2 (3) of the Charter. The doctrine of uti possidetisis obsolete and its maintenance in the twenty-­first century without possibility of peaceful adjustments may perpetuate human rights violations.

82.  Meanwhile, the principle of territorial integrity no longer possesses a higher status in international law than the right of self-­determination, which is anchored in the Charter of the United Nations and in the International Covenants on Human Rights. A balancing of rights and interests must be carried out, always with a view to achieving greater respect for human rights and widening the democratic space.

85.  Bearing in mind that international law is universal, the criteria for exercising and recognizing the right of self-­determination must be applied uniformly. Otherwise, the credibility and predictability of international law would be seriously compromised. The modern perspective on self-­determination focuses on its function as a means to promote peace. In short: States have the sacred duty to ensure peace, while individuals and peoples have the right to peace.

87.  He also recommends that the General Assembly:

(e) Consider activating the special status of indigenous peoples and granting them, along with colonized and occupied populations, standing to participate in the General Assembly and its subsidiary bodies;

(b)      Dialogue with the Special Rapporteur on the rights of Indigenous Peoples (with specific focus on economic, social and cultural rights) and the Chair of the Expert Mechanism on the Rights of Indigenous Peoples.

The NAIPC recommends that the High Commissioner’s office request that the Special Rapporteur continue the work of James Anaya especially in regards to his inquiry into Canada.

The NAIPC reminds the Special Rapporteur that NAIPC is the bona fide North American regional representative body for the UN Permanent Forum on Indigenous Issues, in accordance with HRC resolution 15/14, 1.a and b (A/HRC/RES/15/14).

12.       UNPFII Agenda Item 8. Future work of the Permanent Forum, including issues of the Economic and Social Council and emerging issues

Item 8: Future Work-­Discussion on methods of work

NAIPC is mindful that free and independent Indigenous Peoples' voices are crucial to the accurate representation of our positions. We, therefore, remind the UNPFII that Indigenous Peoples have the right to maximum participation at the UNPFII, and in the entire United Nations system, without censorship, and without the application of any ideological or philosophical litmus tests, in deciding who can and cannot participate, and about who is eligible for funding support in order to participate in UN processes.

Item 8: Future Work-­Discussion on Indigenous Human development/human rights indicators

The NAIPC calls upon the PF to clearly reject Western standards and definitions of development. The NAIPC is wary of such standards being imposed upon Indigenous Peoples, noting “development” is often a synonym and guise for colonization.  There is a need to ask, “Who defines indicators and by what cultural standards are they based?” We also note that these imposed Western frameworks have been and continue to be used to pathologize our peoples, and such indices could be used to normalize Western frameworks that have already been imposed in a dominating manner on Indigenous Peoples.

Item 8: Future Work-­Study into cross-­border issues, including recognition of the right of indigenous peoples to trade in goods and services across borders and militarized areas

That the UNPFII should further examine the cross border issues, and the recommended title of the study should be:  Border Crossing and Portability of Indigenous Peoples Rights.

The NAIPC is gravely concerned that Indigenous Peoples are being forced to accept and utilize colonial standards of identification when crossing borders (e.g. tribal enhancement cards).

Further, Indigenous Peoples lands and territories are being heavily militarized. Indigenous Nations and their peoples are continually being harassed and detained at "border crossings" which are located on their traditional territories, in violation of Article 36 (1&2) of the UNDRIP. Indigenous Peoples have the highest numbers of people who cross the borders, for economic and cultural purposes, and when doing so are detained at high levels which violates their human rights, and cultural rights.

NAIPC recommends that the UNPFII oppose Canada’s Bill C-­51 and oppose Canada or any state criminalizing Indigenous Nations and Peoples by calling them “terrorists” for advocating on behalf of their nations, on behalf of their national territories, and for opposing the desecration and destruction of the territories of their nations and the delicate ecosystems and waterways and aquifers in their territories. Labeling Indigenous Peoples’ advocates as “terrorists” is the modern day version of the way our ancestors were labeled, in the nineteenth and earlier centuries, as “hostiles,” “barbarians,” and “heathen savages,” for opposing the imperial colonization of our lands and territories by the Christian monarchies and empires of that time.

Item 8: Future Work-­Study on traditional knowledge in the framework of the post-­2015 development agenda

The NAIPC supports the work being done by Indigenous Peoples to ensure the right of self-­determination be incorporated into the convention on climate change.  In affirmation of the territorial integrity of Mother Earth.

Item 8:  Future Work

NAIPC reiterates its position in 2014 in relation to hydrofracking.  State claims of power to grant permits for unilateral mineral exploitation—e.g., tar sands oil exploitation, uranium mining, coal bed methane exploitation, and hydrofracking—on traditional territories of Indigenous nations is premised on the claim that Christian discovery gave the “discoverers” the right to “assert sovereignty” relative to the traditional lands and territories of Indigenous nations. The NAIPC calls for a complete ban on the method of natural gas drilling known as “hydraulic fracturing,” or “hydrofracking,” within the territories of IP, and everywhere hydrofracking will contaminate land, air, and water. They also call for a complete ban on tar sands oil exploitation, coal bed methane exploitation, and the construction of the Keystone XL pipeline. We call for the UNPFII to convene an Expert Group Meeting on the issue of how to move off the current fossil fuel habit and how to move as expeditiously as possible to a global energy program that is based entirely on truly renewable, non-­polluting energy sources. We call upon the UNPFII to convene an Expert Group Meeting on the issue of hydraulic fracturing, otherwise known as "hydrofracking," tar sands, coal bed methane and the Keystone XL pipeline to examine the ways that Indigenous Peoples are being impacted or potentially impacted by these extraction methods, and report to UNDP, UNEP, and other appropriate UN agencies with a responsibility for environmental and human rights protections.

Item 8: Future Work

The NAIPC recommends a study on the ongoing genocide of Indigenous Peoples.

12.  NAIPC Organizational Details

In future meetings, NAIPC is committed to dedicating time in our agenda to discuss the ongoing struggles within our home territories.

NAIPC reappoints Janice Makokis, BA, MA, LLB, Onihcikiskowapowin (Saddle Lake Cree Nation), Treaty No. 6, and Debra Harry, Ph.D., Numu-­Kooyooe Dukaddo, to serve as Co-Chairs of NAIPC until the next meeting of the NAIPC in 2016.

Wes George/ Louie Kenney generously extended an invitation on behalf of the Ochopawace Nation-­Treaty 4 to host the NAIPC meeting in 2016.