authorized draft edition

THE MUELLER-WILSON REPORT
IN TWO PARTS PART ONE THE RIGHT OF SELF DETERMINATION OF PEOPLES AND ITS APPLICATION REGARDING INDIGENOUS PEOPLES IN THE USA BY MR MARK D. COLE &
beginning page 74

PART TWO THE AMERICAN COMPANION REPORT TO THE PROJECT: THE RIGHT OF SELF DETERMINATION OF PEOPLES AND ITS APPLICATION REGARDING INDIGENOUS PEOPLES IN THE USA BY MR RONALD WEST

SPONSORED BY THE MUELLER LAW OFFICES MARK MUELLER & PAULA WILSON AUSTIN, TEXAS

UNDER THE DIRECTION OF PROFESSOR DR DIETER DOERR CHAIR IN INTERNATIONAL LAW JOHANNES GUTENBERG UNIVERSITY MAINZ, GERMANY

Copyright 1999 Dieter Doerr, Mark D. Cole, Ronald West & the Mueller Law Offices This document may be duplicated for non-commercial educational purposes all other rights reserved

Foreword
The following two reports, which are hereby opened for public discussion, are part of the project "The Right of Self-Determination of Peoples and its application to Indigenous Peoples in the USA". The project intends not only to describe the status of Indian Nations and Tribes under special consideration of International Law and the Right of Self-Determination based therein, but also to clarify the historical background and explain the political effects of legal framework conditions. The first part that was written independently and in his own responsibility by my assistant Mark D. Cole, concentrating mainly on the influence of the Right of Self-Determination on the legal status of Indigenous Peoples in general and of Indian Nations and Tribes especially. The report shows that Indian Nations and Tribes are Peoples in the sense of the Right of SelfDetermination and the specific results of this legal right when applied to the mentioned Nations. Furthermore, the mixture is considered between International Law and constitutional law of the United States, which defines the status of Indian Nations and Tribes. The second part was written in his own responsibility by Ron West, Indigenous Project Specialist for the Mueller Law Offices. This second report describes major political problems that are connected to the legal status of Indigenous Peoples in the USA today against the backdrop of the historical development. An annex to this second report contains a suggestion for a concrete solution to the situation: a treaty between the Indian Nations and the United States in order to find a working foundation for living togehter in the future, which respects both the rightful wish of the Indian Nations for self-determination and also the interests of the USA.

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With the two present reports the task areas which were the intention of the project are covered. The whole project is based on scientific legal research that I submitted previously on the status of Indigenous Peoples in general and of Indian Nations in the USA specifically. The research led amoung other things to a study examining the admissibility of oil drilling in the Badger Two Medicine Area which is adjacent to the Blackfeet reservation.1 Following this study and attendance of the authors and sponsors at an international conference on the legal status of Indigenous Peoples that took place in Berlin in 1997, the project was initiated by Mark Mueller and Paula Wilson with a grant. Without the generous and lasting support of the project by the Mueller Law Offices it would never have happened. Being the director of this project I am very grateful not only to Mark Mueller and Paula Wilson but to several other people, too. Special words of thank you goe to my assistant Mark D. Cole and Ron West of the Mueller Law Offices who has given us in-depth views of the actual situation, the historical development and the political circumstances during many conversations both here in Mainz as well as in Montana. He was a wonderful host to me and my assistant when we visited him at his home in Montana, close to Blackfeet country. Additionally I would like to thank Robert Lovely, student at the University of Montana Law School, who supplied us with invaluable information and documents from American Law Reviews and official government papers. Special thank you’s also go to the representatives of the Blackfeet and of other Indian Nations for the many discussions that helped us understand the actual conditions a lot better. As an example for all of these I would like to name Marlene Bear Walter and Warren Matte who additionally granted us their warm hearted hospitality.

1

Cf. Dörr, The Controversy about the Oil drilling in the Badger Two Medicine Area, VRÜ 30 (1997), p. 7 ff.

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At first it may seem curious that a German International Law Scientist works on questions of the Right of Self-Determination of Indigenous Peoples in general and the Indian Nations in the USA especially. One reason why this work is essential today is the frightening disregard of the Right of Self-Determination of Indigenous Peoples by the Nations of the Western Hemisphere in the past. At least for the future some kind of reconciliation needs to be reached here. Additionally, the early decisions of the US Supreme Court had helped significantly to point out the problems and show possible solutions. However, sadly these early viewpoints shaped mainly by Chief Justice Marshall that are very similar to the understanding in modern International Law, were not adhered to consequently. A final reason is me being personally very interested for a long time in the history of the USA in general and of the Indian Nations especially. The nation United States of America and its achievements in reference to freedom, democracy and justice that are closely connected with the US Supreme Court, have a very special fascination to me. Because of all of the above it is necessary to attract more attention to the Right of Self-Determination and the status of Indian Nations in order to allow a future solution in regard to the treatment of Indigenous Peoples in the USA that is just and respects the Right of SelfDetermination. The aim of the two reports and their publication in this form, is to initiate a broad discussion so that a new chapter can be opened in the history of relationship between the USA and its indigenous population. In order to make this possible both reports are made open to public use in their current form as authorised drafts. Possibly at a later point they will also be published in a Law Review or other periodical or book. For means of scientific discussion the reports are now openly accessible and can therefore be photocopied, reprinted or reproduced in other ways. This excludes the right of commercial use; such a use is only permissible with the consent of the authors and the Mueller Law Offices. Ideas, comments and criticism of the contents of the reports - which I would like to

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strongly encourage the reader to submit - can be sent by email or letter to my Chair in Mainz Mainz, April 1999 Comment may be sent to: Professor Dr. Dieter Dörr Chair in Public Law incl. International and European Law, FB 03 Johannes Gutenberg University 55099 Mainz Germany e-mail: doerr@mail.jura.uni-mainz.de Tel.: 0049 6131 39-3044/-2068 Fax: 0049 6131 39-5697 Prof. Dr. Dieter Dörr

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The Right of Self-Determination of Peoples and its application to Indigenous Peoples in the USA
Law Report by Mark D. Cole

under the direction of Prof. Dr. Dieter Dörr Johannes Gutenberg University of Mainz, Germany

on behalf of the Mueller Law Offices Mark Mueller and Paula Wilson Austin, Texas January 1999
6 MUELLER-WILSON REPORT

Foreword
The following report is my main contribution to the project "The Right of SelfDetermination and its application to Indigenous Peoples in the USA". It has gone through several draft steps and in its current version it is the attempt to capture the main points in question in a dense, but at the same time detailed form. The research needed for being able to compile and write this report would never have been possible without the help from the Mueller Law Offices. As their support gave me the opportunity to start scientific research immediately after finishing my examinations, I am very grateful to Paula Wilson and Mark Mueller for sponsoring the project. Additionally, from the very start of research Ron West was a helpful partner to discuss ideas and find arguments that support them. I would like to thank him and also Robert Lovely in helping me by finding and collecting interesting American legal material. Most of all I would like to thank my academic teacher Professor Dieter Dörr for inviting me to assist him at the conference in Berlin only a couple of weeks before my exams, where all of this started. He has been supportive in all matters concerning the project and I hope that my research in this field will be continued under his auspices. Finally, it is my hope that our reports can contribute in a small way to keeping a discussion alive that is very necessary. It has been a great experience to meet representatives of the Indian Nations and Tribes in the USA and maybe this can be a way of giving something back to them.

Mark D. Cole

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Contents

A. INTRODUCTION B. THEORETICAL BASIS: THE RIGHT OF SELF-DETERMINATION IN INTERNATIONAL LAW
I. History 1. Pre WW II-development 2. Development since the founding of the UN II. Legal quality 1. Treaty Law 2. Customary Law 3. Peremptory character III. Elements of the Right of Self-Determination 1. Bearers of the Right of Self-Determination a) General overview b) Especially: ethnic groups as peoples 2. Scope of the Right of Self-Determination a) Offensive Right of Self-Determination aa) General aspects bb) Right to secession b) Defensive Right of Self-Determination c) Conclusion

C. SPECIFIC CASE APPLICATION: APPLICATION OF THE RIGHT OF SELFDETERMINATION TO INDIGENOUS PEOPLES IN THE USA
I. General II. Application to Indigenous Peoples in the USA 1. Indigenous Peoples a) Attempt of a general definition b) Distinction against minorities c) Conclusion as to the term "peoples" 2. "American Indians" as Indigenous Peoples 3. Status of Indigenous Peoples in the USA in view of the Right of Self-Determination III. Legal consequences of the Right of Self-Determination when applied to the Indigenous Peoples in the USA

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A. Introduction
This report shall examine the status of Indigenous Peoples(fn) in the USA as it derives from international law and therein specifically the Right of SelfDetermination. In order to be able to achieve this there are two main parts of analysis. Firstly, in a concentrated form today's validity and meaning of the Right of SelfDetermination in international law will be shown. A general overview of all elements of the Right of Self-Determination belong to this part as does the necessary historical background. Being the usual procedure in law studies, these theoretical definitions and results are then used for the case study of Indigenous Peoples in the USA. The facts of the case are brought under the findings of the first part to see whether the right is applicable and if so which legal consequences this has. The report will deliver its result only in a general application to Indigenous Peoples in the USA. It is not the task of this piece of work to identify each possible or actual bearer within the Indigenous Peoples of the USA. Additionally, it is another matter to find out which procedures exist to enforce a claim to more self-determination if it legitimately exists. Both in international and domestic law there might already be possibilities. If such procedures do not exist, it might be necessary to create them. This aspect has to be analysed in another piece of work, which can also deal with ways of establishing who is a legitimate representative of such existing claims.

(fn)

In the following report the term „peoples“ is also used in its singular form „people“ if a specific people is meant. However, also in its singular form it shall not maintain anything else than it does in its plural form. The distinction does not have a relevance in reference to its content, but is only used to point out the cases in which a people within the world‘s community of many peoples is meant. This distinction is in accordance with treaty language in international law.

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Finally, because this is a legal report the political consequences of the findings will not be drawn. Especially the open concept of autonomy prohibits an analytical work such as this report, to direct future negotiations into certain directions. That would be a limitation of the right before it is even installed. However, a law report can be the solid foundation for the institutions or people who are responsible to decide on these questions.

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B. Theoretical basis: The Right of Self-Determination in International Law

I. History

1. Pre WW II-development In order to understand today’s significance and meaning of the Right of SelfDetermination one needs to consider the historical development at least in a brief overview.2 Without having to analyze the philosophical foundations, the overview can start at the end of the 18th century, when the underlying concept of equality showed its revolutionary outcome. In the American and French Revolutions in the last quarter of the 18th century the sovereignty of the people of a (dawning) State was first formulated and the "international correlate"3 of this idea was a group right to resist external interference. The influence of England in the American colonies was regarded as such an interference, which is why the right of the people to free themselves from a regime that no longer is supported by the "consent of the governed"4 was actually directed against England and can therefore be regarded as the "prototype of the Right of Self-Determination in the sense of secession"5. During the 19th century the concept of a Right of Self-Determination evolved further although in connection with the rise of the nation as politically decisive factor. However, the similarity to today's understanding of the right is astonishing if one takes a close look at the following statement: "No matter how much one may disagree on the special contents of the term democracy... reduced to the
2 3

Similarily stated e.g. by Thürer, in: AVR 1984, p. 114. Thürer, in: AVR 1984, p. 115. 4 American declaration of independence of 1776; cf. on this Decker, p. 76 f. and Thürer, Diss., p. 15. 5 Thürer, Diss., p. 16.

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most common of terms it means nothing else than: autonomy, legislation by the peoples in an internal sense. Where else should this right to autonomy in internal matters come from, how should it even be thought of, if there would not be a previous right to autonomy in external matters, a right to freely design the peoples’ life without interference by foreign countries! The principle of free, independent nationality is the basis and source, the mother and root of the term democracy in itself."6 Finally, in 1865 the First Socialist International is also the first international document to mention the term "Right of Self-Determination" explicitly, without referring to it in its nowadays meaning. When scholar's first published essays on the Right of Self-Determination at the beginning of this century7 they usually focused on the problem of selfdetermination within multiethnic States while another line of discussion centered around Lenin's concept of this right that was to include the right to secession.8 By the end of WW I US president Woodrow Wilson had developed his own doctrine of self-determination as opposed to the socialist concept. Wilson introduced a Right of Self-Determination in the sense of "self-government"9 but added an external factor when he applied it to the foreseeable end of WW I. Already in the Peace Message of 22.1.1917, addressed to the Senate, he described a Right of Self-Determination without mentioning the term.10 Later, on 8.1.1918 in a speech before Congress, he announced 14 Points as symbol of the "moral climax of this final war for human liberty" in which several expressions of the Right of Self-Determination as foundation for the new European order after the end of war can be found.11 Wilson’s idea soon boiled down and in the final
6

Statement made by Lasalle, "The Italian War", 1859, in: Collected Speeches and Lectures, Vol. 1, p. 31 (cited by Leder, p. 6). 7 E.g. the Austrian Karl Renner "The Right of Self-Determination of Nations" (1902, 1918 2nd ed.) or Walter Burckhardt "On the Right of Self-Determination of Peoples" (1919). 8 The latter provision eventually was even included in the Constitution of the Soviet Union of 1936 (Art.17), although never made readily available to the States within the Union. Cf. already the Decree on Peace of 1917 as written by Lenin. The notion of autonomy also appeared in works by Stalin (e.g. his essay "Marxism an the national question" as cited by Thürer, Diss., p. 12; cf. on this also Meissner, in: B/M, p. 91). 9 Cf. Cassese, p. 19. 10 Wilson uses the formula that "each people shall have the freedom to decide on its own political order, its own way of development...", cited by Decker, p. 109. 11 On this Thürer, Diss., p. 28; Decker, p. 110.

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peace treaties12 there was "not much left of it"13 although his concept had some effect especially in the minority protection provision of the League of Nations era.14 Even though the Charter of the League would in the end not include the Right of Self-Determination,15 the legal analysis of the Aland Islands case determined the future path,16 which was then realised after WW II.

2. Development since the founding of the UN With the end of WW II and during the foundation of the UN the Right of SelfDetermination was prominently discussed. Although there was a great diversity in the circles preparing the Charter, finally the Right of Self-Determination was included explicitly several times, especially at the very beginning of the Charter in Art. 1 para. 2:
"The Purposes of the United Nations are: 1. [...] 2. To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace; 3. [...]" 17

However, it needs to be pointed out that the exact meaning of the Right of SelfDetermination was completely unclear irrespective of its inclusion in the Charter. It was little more than a starting point from which the principle had the capability of turning into a legally binding right.
12

Generally critical on applying the Right of self-determination after wars: Fisch, in: Reiter, p. 21: whoever engages in a war must also accept the consequences, which is why a surrendering State cannot regain "lost" territories by plebiscite of the local people. This argument may seem logical at first sight, but it misjudges the effect of any other peace regulations that do not take into consideration the wish of the people. Territorial changes (new borders as advantage for the victorious State) always result in the danger of surpressed opposition that can break through in later times (one example can be the events that followed the end of WW I, in which connection Fisch develops his thesis). 13 Thürer, Diss., p. 31. 14 Generally on the criticism of Wilson's idea: Cassese, p. 22 (esp. fn. 32). 15 Cf. Musgrave, p. 29 ff. 16 In this case a commission of Jurists under the chair of Max Huber wrote a legal opinion in which the Right of Self-Determination was described as a "principle" that needed to be applied to certain situations but which could not lead to real claims because the Charter of the League of Nations had not yet accepted the Right of Self-Determination as a legal institute of international law. The result of this opinion was the autonomy statute for the Aland Islands (cf. on this Brühl-Moser, p. 34). A differentiated analysis of both relevant opinions and the passages in which there is a hint to a possible change of the legal expert's viewpoint in future is delivered by Cassese, p. 27 ff., who finds on p. 33 "that the two bodies of the League of Nations ... clearly perceived and emphasized the political importance of self-determination". 17 UN Charter, for reference: passage reprinted e.g. in Musgrave, p. 63.

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One of the main focuses of the early work of the UN was the process of decolonisation. It was within this context that a whole series of General Assembly Resolutions were passed regarding the Right of Self-Determination, the bestknown being Res. 151418 and Res. 154119. Within the process of decolonisation the Right of Self-Determination was understood in a territorial dimension insofar as the population of certain areas was granted the possibility of nation-building20 within the former colonial borders.21 However, it was only applied to the former European colonial empires22 and this phase has historically come to an end.23 With the adoption of the CCPR, the International Covenant on Civil and Political Rights,24 in 1966 by the UN General Assembly, the Right of Self-Determination was incorporated into an international treaty which upon ratification by each State was to be legally binding for these.25 The text of the "International Covenant on Civil and Political Rights" contains the following Art. 1:
"1. All peoples have the Right of Self-Determination. By virtue of that right they freely determine their political status and freely prusue their economic, social and cultural development. 2. All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations [...]

18

Resolution 1514 (XV), Declaration on the Granting of Independence of Colonial Countries and Peoples of 14.12.1960. Reprinted e.g. in Tomuschat, Annex, p. 283 ff. 19 Annex to Resolution 1541 (XV), Principles which should guide Members in determining whether or not an obligation exists to transmit the information called for in Art. 73e of the Charter of the UN, of 15.12.1960. Reprinted e.g. in Tomuschat, Annex, p. 286 ff. 20 Critical on this term though Anaya, ArizJICL, p. 32, fn 138: "...euphemism for policies breaking down tribal bonds and custom in favour of assimilation". 21 There has been strong criticism on this use of the former colonial borders to limit newly found States due to the principle of uti possidetis (cf. on the validity of this concept ICJ Rep. 1986, 554, 565), cf. Musgrave, p. 235 ff. and Fisch, in: Reiter, p. 23 f. 22 This was due to the salt-water-theory according to which only territories that were geographically seperate from the governing country qualified as colonies in this sense, cf. Brühl-Moser, p. 53 with further references. It should be pointed out that this viewpoint was not generally accepted, Belgium e.g. maintained that alien domination couldn't be reduced to such distinct territories; cf. on this and the subsequent possibility of applying the relevant provisions to Indigenous Peoples, Kronowitz, p. 592. Similar Schneeweiß, p. 69, who seems to share this view, but shows that it has not found any further acceptance. Clinebell/Thomson, p. 710 also argue that differentiation between overseas and "domestic" colonization is at random. 23 Tomuschat, Introduction, in: Tomuschat, p. vii; There he points out that Namibia was the last real case of decolonization. 24 993 UNTS 3, Text reprinted e.g. in Nowak, CCPR and CCPR (engl.). 25 Ratification as at date of submission of this report: 144 Member States, cf. www.unhchr.ch, database.

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3. The States Parties to the present Covenant, including those having responsibility for the administration of Non-Self-Governing and Trust Territories, shall promote 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." 26

Because of the large number of worldwide ratifications of the Covenants it can be concluded that the rights contained therein are universally accepted, even if their exact contents may not be defined or generally clear. To a certain extent such a definition - without yet qualifying this as a valid supplement to the Covenant's open language - was supplied in principle V of the Annex to the so-called "Friendly Relations-Declaration" of 1970.27 Although this resolution was developed during decolonisation it has a meaning beyond that frame28 and being passed by consensus, one can qualify it as being an agreement of the whole represented world in the GA on a definition.29 The English original includes following passages amongst others:
"[...] The principle of equal rights and self-determination of peoples By virtue of the principle of equal rights and self-determination of peoples enshrined in the Charter of the United Nations, all peoples have the right freely to determine without external interference their political status and to pursue their economic, social and cultural development, and every State has the duty to respect this right in accordance with the provisions of the Charter. Every State has the duty to promote, through joint and separate action, realization of the principle of equal rights and self-determination of peoples, in accordance with the provisions of the Charter, and to render assistance to the United Nations in carrying out the responsibilities entrusted to it by the Charter regarding the implementation of the principle [...] The establishment of a sovereign and independent State, the free association or integration with an independent State or the emergence into any other political status freely determined by a people constitute modes of implementing the Right of Self-Determination by that people. Every State has the duty to refrain from any forcible action which deprives peoples referred to above in the elaboration of the present principle of their right to self-determination and freedom and independence. In their actions against, and resistance to, such forcible action in pursuit of the exercise of their right to self-determination, such peoples are entitled to seek and to receive support in accordance with the purposes and principles of the Charter.

26

For text see Nowak, CCPR (engl.); the same wording is used in Art. 1 Covenant on Economical Social and Cultural Rights (CESCR). 27 UN GA Res. 2625 (XXV) of 24.10.1970, Annex, Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations. Reprinted e.g. in Tomuschat, Annex, p. 289 ff. 28 Cf. Kirgis, AJIL 1994, p. 305. 29 Musgrave, p. 74 f.; Brühl-Moser, p. 70 f.

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The territory of a colony... has, under the Charter, a status separate and distinct from the territory of the State administering it, ... shall exist until the peoples of the colony ... have exercised their Right of Self-Determination ... . Nothing in the foregoing paragraphs shall be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples as described above and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour. Every State shall refrain from any action aimed at the partial or total disruption of the national unity and territorial integrity of any other State or country."

The special significance of this declaration is its extensive way of describing the Right of Self-Determination with its different aspects and clearly extending it beyond the process of decolonisation. This is an obvious conclusion from the wording in the above mentioned passage (last but one) which demands States to have forms of government that represent the whole population.30 Even before the Covenant on Civil and Political Rights entered into force in 1976 when a sufficient number of States had ratified it,31 another development in international law had its share in the ever increasing discussion of the Right of Self-Determination. The Final Act of Helsinki was passed in 1975 as part of the process "Conference on Cooperation and Security in Europe" (CSCE) and is very relevant even if it is merely a statement of political intention without any direct legal obligation.32 So-called Basket I ("Questions relating to security in Europe") in the properly titled "Final Act of the Conference on Security and Cooperation in Europe"33 reads:
"[...] VIII. Equal rights and self-determination of peoples The participating States will respect the equal rights of peoples and their right to self-determination, acting at all times in conformity with the purposes and principles of the Charter of the United Nations and with the relevant norms of international law, including those relating to territorial integrity of States. By virtue of the principle of equal rights and self-determination of peoples, all peoples always have the right, in full freedom, to determine, when and as they wish, their internal and external political status, without external interference,
30

This paragraph needs to be analysed more carefully still. This paragraph is seen only as an exception to the otherwise solely as external right understood Right of Self-Determination in the declaration by Cassese, p. 109, fn. 14, who calls it the "saving clause". 31 Cf. Nowak, CCPR, introduction, marg.no. 10 ff. 32 Cf. Bloed, p. 11. 33 Passed in Helsinki on 1.8.1975 by 35 Heads of State; document fully reprinted e.g. in Bloed, p. 43 ff.

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and to pursue as they wish their political, economic, social and cultural development. The participating States reaffirm the universal significance of respect for and effective exercise of equal rights and self-determination of peoples for the development of friendly relations among themselves as among all States; they also recall the importance of the elimination of any form of violation of this principle."

This statement is important because it was signed by States referring to a territory in which clearly colonial entities in a traditional sense did not exist. This shows that these States34 definitely wanted to extend the scope of application of the Right of Self-Determination beyond decolonization.35 In the further process of the Conference on Cooperation and Security in Europe several meetings restated this and after the collapse of the Eastern bloc increasingly underlined the democratic aspect of the right and by doing so shifted the meaning of Right of Self-Determination in a new direction.36 In this context it is interesting to mention that - as will be shown later - many States have been increasingly cautious in using the terms "self-determination" and "Right of Self-Determination" even in discussions concerning exactly that right. This hesitant position could be due to the unclear consequences of a broad application of the Right of Self-Determination. Therefore, many developments in international law concerning new areas of application of the Right of SelfDetermination are only slowly progressing. However, undoubtedly the right gained new importance in the dismembering of States as much as with reunification. For this paper it is neither necessary to analyse these events nor the progress of several regional legal instruments and charters in the context of the Right of Self-Determination. Because of the little actual significance,37 the ILO conventions regarding Indigenous Peoples are of only little relevance in our context and can therefore be neglected, too. However, these developments are
34

There were 33 European States (incl. the socialist States) plus the US and Canada; the initiative to include the Right of Self-Determination in the final document came from the Federal Republic of Germany (with regard to a possible reunification on the basis of this right), cf. Cassese, p. 279. 35 Same analysis also by Klein, p. 33. 36 Even if this aspect cannot be analysed thoroughly in this context some relevant documents shall be pointed out such as the Document of Copenhagen of 29.06.1990 and the Charter of Paris for a new Europe of 21.11.1990, that are both discussed briefly by Musgrave, p. 100. 37 Until 1993 only six States had ratified the convention, cf. Schneeweiß, p. 47.

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mentioned because they show how many different shades the Right of SelfDetermination has shown in very recent years and that also the application to the Indigenous Peoples is a strong point of discussion, a discussion that is in constant flow. This is not only obvious from the growing number of studies within the UN concerning Indigenous Peoples - they also point out a Right of SelfDetermination -,38 but especially because of the activities of the Working Group on Indigenous Populations39 in preparing a Draft United Nations Declaration on the Rights of Indigenous Peoples.40 With this historical overview as a background, in the following the legal quality of the Right of Self-Determination can be discussed, within which it will be necessary to show that the historical development meant a progress towards a broader applicability (and as will be seen also validity) of an actual legally binding Right of Self-Determination.

II. Legal quality
In order to analyse the legal quality of the Right of self-determination of peoples according to treaties of international law or customary law it needs to be clarified initially whether a people in the sense of international law is a possible bearer of a legal right or not.41 This can be doubted because although in some languages the term implies a different understanding,42 international law is not the Law of

38 39

See e.g. study by Gros Espiell, Cristescu, Cobo, Capotorti, Martinez, Daes. This WG was founded as a Subcommission of the Subcommission on the Prevention of Discrimination and Protection of Minorities of the Economic and Social Council in 1982 and has since been meeting regularly. Cf. Schneeweiß, p. 98 f. 40 Text of the most recent draft before being submitted to technical revision, reprinted e.g. in Anaya, Appendix, p. 207 ff. 41 Independently of the question what the term "peoples" constitutes. 42 Cf. only the German term "Völkerrecht" which refers to "Völker"=peoples, and not "Staaten"=States or "Nationen"=nations.

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Peoples but the Law of Nations or sovereign States.43 Additionally, the reference to peoples in connection with the Right of self-determination is the only technical term in international law that uses this expression. Nonetheless, this does not hinder the concept of Right of self-determination to have a legal quality: although the peoples or groups in question cannot be regarded as unlimited legal subjects of international law,44 they need to be seen as legal subjects to the extent that they are bearers of a particular right.45 However, it is questionable whether the Right of self-determination is only a general political principle or moral guideline or actually a rule of law. Already the UN-Charter opened this - under other prepositions still ongoing - debate with the expressive mention of the right in Art. 1 No. 2. Although the wording of such a treaty cannot be used isolated for interpretation, there is an ambivalent answer to the question, because in the English original text it says "principle of self-determination”, in the French original it is a "droit à disposer d’eux-mêmes”.46 The legal significance of the Right of Self-Determination can be concluded both from customary and treaty law. The present analysis will begin with treaty law because written provisions are more clearly identifiable.

1. Treaty Law The fact that the Right of Self-Determination is mentioned in several international instruments as shown above does not alone allow the conclusion that it has turned into a legal matter.47 Some of these instruments are not legally binding, but the main reason why the qualification as a norm could fail is the missing certainty of the exact contents of the relevant provisions. In such a case it would

43 44

Kimminich, p. 114. Kimminich, p. 114. 45 Frey, p. 37 and p. 74; similarly Graf Vitzthum, in: dito, marg.no. I 18, p. 17. Cf. also Kimminich, in: B/M, p. 39, who shows that it would be a circular conclusion if one would deny the admissibility of being a limited legal subject in regard to the Right of Self-Determination and therefore this viewpoint should be neglected. 46 On the significance of the UN-Charter see infra. 47 Klein, p. 34.

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be "merely subjective arbitrariness"48 to assume a binding force. On the other hand the missing definition of its components is not reason enough to neglect the legal quality of the Right of self-determination in treaties of international law.49 Although in current literature there is a tendency to simply state the legal quality as given with a broad reference to other scholars,50 here it shall be examined more thoroughly. In due course of the report it will be decisive to find out whether the elements can be defined clear enough in the provisions in order to be able to constitute a legally binding rule of law.51 In the early phase after enforcement of the UN Charter the inclusion of the Right of Self-Determination in it, was widely regarded as not constituting a "legal rule but only a political or moral guideline”. Still today this point of view is upheld by pointing out the wording (see above) and the close systematic connection with the principle of sovereignty to which there would be a contradiction if a legal rule was assumed.52 According to this opinion, the formula of self-determination in the Charter should be understood as an "expression of the philosophy of the founders of the U.N. or even better formulated: a political guideline for all bodies”53 but without any legal obligation. This viewpoint is significally enhanced by the preparing sessions.54 Supporters of this view are arguing from the time of the development of the Charter. Rightly, however, when interpreting international instruments not only the understanding of the authors of these instruments are decisive, moreover objective aspects are significant that can be especially seen – as an explanation of current understanding in a way – in later practice of States and of bodies involved.55 Therefore, the analysis can be continued with the far
48 49

Klein, p. 34. Otherwise, as Klein, p. 35 points out, the "normativity of international law altogether" would have to be doubted. 50 E.g. Heintze, p. 21, who claims that "the existence of a norm in international law... is not questioned any longer today" with reference to Tomuschat, in: FS Doehring, p. 996; differently e.g. still Pomerance, p. 70 and extensively on p. 63 ff., where he takes the arguments of the opposite opinion into consideration. 51 Regarding the UN-Charter cf. Thürer, in: AVR 1984, S. 119; generally Harhoff, in: Alfredsson, p. 169. 52 Cf. e.g. Partsch, in: Wolfrum (engl.), marg.no. 11, citation also by him. 53 Thürer, in: AVR 1984, S. 119. 54 Cf. extensively on the travaux préparatoires Cassese, p. 39 ff.; on p. 43 he concludes that "the Charter did not impose direct and immediate legal obligations on Member States in this area". 55 In this sense e.g. Doehring, in: Simma, marg.no. 1 and 12; also Frey, p. 33; for this method of interpretation also Art. 31 III lit a and b Vienna Convention on the Law of Treaties, which is why the

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more relevant provision in the Human Rights Covenants and also the "Friendly Relations"-Declaration.56 Both Human Rights Covenants (International Covenant on Civil and Political Rights, CCPR, and International Covenant on Economic, Social and Cultural Rights, CESCR) were passed by the GA with Resolution 2200 (XXI) on 16th December 1966 and opened for ratification. They confirm what was already evolving generally in the process of decolonization, namely that "no doubt any more about its legal character"57 remained, that the Right of self-determination gained a "new legal status, that of a formally mandatory rule of international law"58.59 This point of view today is undisputed and even then was no matter of great controversy, at least in regard to the ratifying States that bound themselves to the rights contained in the covenants. This is made substantially clear when one takes India's reservation upon ratification into consideration: although it was a very fundamental reservation against the contents of Art. 1 even that country didn’t challenge the provision’s quality as a legal rule.60 It must be noted that "...Art. 1 is undoubtedly a subjective right in the sense of international law",61 but in opposition to the other provisions of the Covenants has a collective character.62
legally not binding resolutions of the GA are also of importance in connection with the legal quality, cf. on this Schmitz, p. 31, who also shows that it is not the resolutions themselves that are a new source for legal rules in international law, but that they further provisions as resulting from the original sources of international law according to Art. 38 para. 1 ICJ Statute. 56 In the context of decolonisation the qualification as a legal rule of the Right of Self-Determination is undisputed, cf. only Partsch, in: Wolfrum (engl.), marg.no. 19, according to whom the following is true: "In this way the former principle of self-determination was transformed into a legal rule of colonial selfdetermination" (emphasis added); he limits the result explicitly to the colonial context. However, the analysis in our context is not advanced significantly by taking this very particular historical phase into consideration. 57 Frey, p. 34 f. 58 Kiss, in: HRLJ, p. 167 and p. 174. 59 In this sense Heintze, p. 23: "By the latest with foundation of the Right of Self-Determination in .... the Human Rights Covenants the legal character ... was documented in treaty language of international law". 60 Cf. on this also Frey, p. 41; India wanted to limit Art. 1 on peoples under foreign domination, but this interpretation of Art. 1 was countered by several countries as not being compatible with the wording of Art. 1. Extensively on this Heintze, p. 24 f. 61 Nowak, CCPR, Art. 1, marg.no. 14; agreeing Schmitz, p. 31. 62 Nowak, CCPR, Art. 1, marg.no. 15 ff; although according to Nowak it is an "exclusively collective right of peoples" it can be applied like the other rights, which means that an individual complaint under the Optional Protocol No. 1 based on Art. 1 is at least imagineable.

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Additional to the fact of legal foundation in a multilateral treaty, with inclusion of Art. 1 the aspect of being able to observe limitations or injuries of the right was introduced. The Human Rights Committee has clearly said that all measures to realize Art. 1 need to be mentioned in the obligatory State report.63 The Covenants were initiated by the UN and also commissioned by the UN to serve as binding codification of the human rights as they were declared in 1948. They were passed by the GA and can therefore be used as method of interpreting the relevant provision of the Charter.64 But they are not only a confirmation and strengthening of the Right of self-determination according to the Charter and by those lines a support in interpreting it, additionally Art. 1 No. 3 contains an obligation for the State parties to the Covenants that reaches even further, namely they have to sponsor the realisation of the Right of selfdetermination and by doing so create a "new, independent legal basis"65 of the Right of self-determination.66 As the exact wording of the definition as in Art. 1 No. 1 CCPR was also used in the "Friendly Relations-Declaration" and the Final Act of Helsinki in terms of the Right of Self-Determination, this formula can be regarded as the "classical legal definition of the Right of Self-Determination".67 The Right of Self-Determination in the sense of the Covenants was far broader than before, as will be shown more extensively below. It evolved into a principle of geographically and politically unlimited validity,68 as Art. 1 No. 3 being a special provision was not only directed at colonial powers. Furthermore, Art. 1 No. 2 included a newly understood economic dimension of the Right of Self-Determination. The main novelty about it was the application of the Right of Self-Determination to internal matters of

63

Cf. Nowak, CCPR, Art. 1, marg.no. 22; see General comment 12/21, no. 3; critical however BrühlMoser, p. 229 by pointing out that the Right of Self-Determination in the reports is usually ignored by the States or only understood in an external sense. As will be shown below, the USA have extensively reported on Art. 1 in their Initial State Party Report and included the subject "Native Americans" therein, see infra. 64 Doehring, in: Simma, marg.no. 19. 65 Doehring, in: Simma, marg.no. 19. 66 This is pointed out rightly by Frey, p. 35 and Nowak, CCPR, Art. 1, marg.no. 20. 67 Thürer, in: AVR 1984, p. 122; the same: Rabl, p. 488, also regarding the "Friendly RelationsDeclaration", p. 489. 68 As Schmitz puts it, p. 50, a "universal Right of Self-Determination".

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States. It was no longer only the prohibition of interference from the outside by other peoples limiting the Right of Self-Determination, it was also the right of the whole population of each signatory State to freely choose their government.69 A further aspect which was controversial was the question of including the Right of Self-Determination in a treaty that contained individual human rights. Partly, this was seen as a contradiction to Art. 55 UN-Charter according to which human rights need to be supported in order to make the Right of Self-Determination possible. In Art. 1 of the Covenants however, the Right of Self-Determination appears as prerequisite to the realisation of human rights.70 Although the Right of Self-Determination is part of the Human Rights Covenants, it rightly should not be regarded as fundamental human right, but as a precondition that cannot be relinquished and is unlimited in order to realise all rights mentioned in the pacts.71 It shall be pointed out once again that the Human Rights Covenants are treaties that only bind the ratifying States. Still, the pacts have "themselves become a crystallising point... that has condensed into customary law since it was passed by the GA".72 Or differently said, Art. 1 is given "a meaning and a weight which extends far beyond those strictly pertaining to a treaty provision".73

2. Customary Law Although the Friendly Relations-Declaration can be used to support the view on the legal quality as it derives from treaty law, it will be dealt with in the context of customary law because the declaration itself cannot create binding law, as has
69

In this sense at least Cassese, p. 53 and 65 f. The contents of the Right of Self-Determination is discussed in detail below. 70 Thürer, Diss., p. 37, fn. 1 and accompanying text. 71 Cf. the unprecise formulation of Chou-Young, p. 256: "...Right of Self-Determination as human right or as prerequisite of the other human rights". Cf. also Thürer, in: AVR 1984, p. 122, according to whom the systematic position at the beginning of the pacts as well as the preamble ("...ideal can be only achieved if....") are clear indication that the ro is a "prerequisite for the realization of human rights". In this sense also e.g. Cassese, p. 54: "permanent link between s-d and civil and political rights". The wording of the Human Rights Committee's General comment 12/21 on the Right of Self-Determination is: "1. ... its realization is an essential condition for the effective guarantee and observance of individual human rights and for the promotion and strenghtening of those rights...". 72 Thürer, in: AVR 1984, p. 123. 73 Cassese, p. 66.

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already been shown above.74 The special significance of Declaration 262575 is not only due to its very general attempt at defining some important factors in order to promote friendly relations between States, but also because of the way it was passed in the General Assembly. In opposition to most Resolutions of that time - 1970 was still marked by the ongoing cold war between the two blocks which often resulted in politically isolated voting behaviour - the Friendly Relations-Declaration was passed by way of consensus76 and none of the Western States opposed it as they did frequently with other resolutions referring to self-determination in the decolonisation context. Although some authors see the missing vote because of the way of passing the declaration by general consent critically as not constituting an explicit support,77 but in the case of the Friendly Relations-Declaration this argument counts little. The declaration was prepared during a very long period and if there is general consent after such a period of time it can be validated as a positive vote,78 especially because the contents of the declaration clearly aims at being binding interpretation of certain aspects of law and the following State practice confirmed this. In regard to the Right of Self-Determination this means that the generally accepted contents of that time was captured and therefore the passage still remains the "so far most representative legal formulation", it is even seen as "attempt on codification of the Right of Self-Determination".79 The latter is claimed especially, because the declaration was passed later than the Human Rights Covenants and therefore can be viewed as a more precise description of what was set out in the covenants in basic terms.80
74 75

Cf. supra fn. 54 and accompanying text. On its exact name and contents, see supra. Schmitz, p. 53, fn. 71, points out that within the UN there is an understanding that resolutions named as "declarations" need to be more strictly followed by all UNMember States. 76 Cf. on this Musgrave, p. 74 f. 77 Partly critical Cassese, in: dito, p. 146; Pomerance, p. 66, he also mentions the accordingly limited evaluation by the UN itself in p. 65. 78 This is shown clearly by Schmitz, p. 53. He also points out there the interpretation of this declaration by the ICJ (Nicaragua-Case, ICJ Rep. 1986, p. 99 ff. and 133) as a source of opinio iuris and relevant provisions of International law. 79 Thürer, in: AVR 1984, p. 124; the same: Brühl-Moser, p. 70: "The status quo of the generally accepted opinions in international law by the State community". 80 Similar Cassese, in: dito, p. 143; Veiter, in: B/M, p. 30: "...authentic interpretation of Art. 1...".

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However, so far only the effects of the Friendly Relations-Declaration in close connection to treaty law (mainly the function expanding the provision of the Covenant on Civil and Political Rights) have been shown. In order to support its relevance for the development of an independent source for a legal right by means of customary law, the necessary elements for such a right need to be established. According to Art. 38 no. 1 b) ICJ Statute there are two elements needed to create valid customary law in International law: general practice and opinio iuris, i.e. that the practice is accepted as law.81 There is a number of possible sources from which such a customary right can evolve, one of which is UN General Assembly resolutions relating to legal questions.82 Universal customary law cannot develop if a significant number of States persistently object the relevant provision.83 Because of this, during the Cold WarPeriod many principles could not evolve into customary law84 which makes the "Friendly Relations"-Declaration even more important, as there was no objection - neither explicit nor implied - by any of the State groups.
85

In terms of order,

customary law does not only grow from State practice which subsequently can be pinned down in treaties. 86 It can also derive from already existing provisions in treaties and as pointed out above, even from legally not binding decisions such as resolutions.87 This is especially possible if during the process of formulating treaty provisions or resolutions member States of the agreement or relevant international organisation have expressed their conviction and by doing so
81

Cf. generally on the requirements for the evolution of customary law Graf Vitzthum, in: dito, marg. no. I 132 ff and Brownlie, p. 4-11. 82 Brownlie, p. 5. 83 Villiger, p. 39. 84 Heintze, p. 21. 85 See supra. 86 Cassese, p. 67 f., referring to the Right of Self-Determination in the UN Charter and the Human Rights Covenants. That the customary law validity of a legal institution need not necessarily be weaker than treaty law provisions can be seen with the Right of Self-Determination, because that has even grown to be ius cogens, according to Graf Vitzthum, in: dito, marg.no. I 137. 87 Cassese, p. 69 f.: "first push.... has been given by the political will of the majority of Member States of the UN, which has then coalesced in the form of General Assembly resolutions..."; cf. also generally Vitzthum, in: dito, marg. no. I 137.

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showed their legal opinion, their opinio iuris.88 The expansion of norm-creating ability of treaty provisions "beyond the circle of member States" is especially possible with "provisions that clearly stipulate general principles of behaviour for States", one example being the Right of Self-Determination in its definition of the Principles Declaration.89 Although it is generally accepted that there needs to be at least a sign of both elements to create customary law90 there is uniform agreement that the extent of the elements can vary. In cases of little State practice this can be counterbalanced by a strongly expressed opinio iuris. Because in view of the territorial integrity of States the Right of Self-Determination is only a remote means of defence, there is obviously only a limited possibility of pointing out practice of States.91 However, it can be shown that the sense of a legal obligation is so widely expressed - apart from the Principles Declaration the above examined Covenant on Civil and Political Rights can be mentioned here - that the relatively limited extent of practice is not a hindrance for the evolution of customary law in this field.92 Therefore, in the case of the Right of SelfDetermination it makes sense to derive the opinio iuris from the Friendly Relations-Declaration and after that show that subsequently States behaved according to this provision.93 Although usually State practice should be proven by examining individual cases that show a broad pattern of consistent behaviour, with the special nature of the Right of Self-Determination as an underlying principle of State behaviour and it only being granted as a last resort in its
88 89

In this sense e.g. Cassese, p. 70. Klein, p. 10, citations are from that page, too. 90 Details are discussed controversially, e.g. the element of duration, cf. Brownlie, p. 5; critical on the method of using treaties to show an opinio iuris without proving the conviction that there is a binding necessity to follow a provision that goes beyond the treaty's power: Kirchner, p. 211. However, this criticism can only be valid in connection with a treaty of limited geographical extent, because otherwise it would be impossible to derive customary law from treaties altogether. 91 That States differed in the evaluation of application of the Right of Self-Determination in certain situations does not mean that there was not a generally accepted view that the right is existent and binding. Cf. Schmitz, p. 57. 92 This is shown rightly and very convincing by Schmitz, p. 42-44. 93 Although - this is due to the diversity of aspects of the Right of Self-Determination (which will be analysed in depth later) - hardly a uniform handling of Right of Self-Determination-claims can be recognized. Therefore, individual cases and the way of them being handled, can be more efficiently used to analyse the extent of the Right of Self-Determination, lesser the general acceptance of it.

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external sense it is a different matter altogether. Rightly, on first view there were cases in which the Right of Self-Determination was not applied even though - as will still have to be analysed in a later part of this work - from today's point of view it should have. This reluctance, however, of some States in granting the rights that follow from the Right of Self-Determination cannot be equated with a general dismissal of the legal quality of the Right of Self-Determination.94 Moreover, as has already been outlined above,95 the process of formulating the Declaration stretched over nearly a decade and therefore also the passing by way of consensus does not limit the validity as expression of a widely acknowledged legal right.96 This nearly universal acceptance of the legal quality - remembering that this is not the same question as its application in a concrete case - has subsequently been confirmed by the vast majority of States that have ratified the Covenant on Civil and Political Rights. From this it can be concluded that the Right of Self-Determination is valid "both by treaty and customary law".97 In order to support this result it can be shown that in all developments of international law relating to the field that contains the Right of Self-Determination, this right was included, implicitly or by mention. As an example that still has effect today, the Final Act of Helsinki shall be mentioned. Although there is no doubt that the relevant passage of the Final Act is only an expression of political will

94

Schmitz, p. 60 f. Mostly it will actually be other States that accept and confirm the admissability of a claim for self-determination and not the State within whose boundaries the claimant resides. The view of these "third" States in relation to claiming and not granting party rights must be the decisive one for international law. 95 See supra, also Schmitz, p. 47. This is correct because the provision referring to the Right of SelfDetermination has a clearly norm-creating character (on this element as necessity also Brownlie, p. 5) and a vast majority of States have accepted and in the following also transformed this notion into practice. 96 The significance of the declaration in this sense is also underlined by the ICJ in the Nicaragua case, ICJ Rep. 1986, 14, 99 f. (no. 188), in which it says: "...opinio juris may, ... be deduced from ... the attitude of States towards certain General Assembly resolutions, and particularly resolution 2625..." and further "...consent to the text of such resolutions ... may be understood as an acceptance of the validity of the rule ...declared by the resolutions themselves". 97 Frey, p. 36 with further reading in fn. 29. This result is true even if there is not a completely consistent practice (not even between the Western States that had insisted on a broad understanding of the Right of Self-Determination when it was included in the Friendly Relations-Declaration), cf. on this the very convincing line of argument by Cassese, p. 140, who extends this result on both elements of the Right of Self-Determination which according to a differentiation by himself is customary law as well as an "overarching standard for international relations" (p. 128; similar Thürer, in: Reiter, p. 49: "legitimacy principle of the order of international law").

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without direct legal obligation,98 to a certain extent it did develop a binding quality because the rights involved in the discussion of the Final Act were already then "...in a process of developing into customary law".99 The conviction expressed in this document can be seen as an expression of opinio iuris of those States involved and although the document refers to a limited geographical area,100 this area is of such a significance101 that the view expressed on the Right of SelfDetermination can be used to support the view of these States on a general Right of Self-Determination.102 The ICJ has expressed this interpreation very clearly in its Nicaragua decision: according to the ICJ the USA has explicitly expressed its opinio iuris103 on the prohibition of the use of force by signing the Helsinki Final Act which contains such a provision and even more so by bringing such a provision about by joint drafting.104 These results can be transferred without limitation to the Right of Self-Determination as well, which is especially significant because in the present report the point of view of the USA on the Right of Self-Determination is the main subject. According to Art. 38 para. 1 d) ICJ Statute, judicial decisions can be used as "subsidiary means for the determination of rules of law". Therefore, to sum up the above, the results shall be counterchecked with the jurisdiction of the International Court of Justice as the body of international law with the competence to decide relevant cases.105 Although for a long period of time the International Court of Justice avoided expressing its opinion on the Right of SelfDetermination and continuously avoids to provide extensive definitions in order to

98 99

On this generally: Schweisfurth, in: ZaöRV, p. 681 ff. and Verdross/Simma, p. 342, § 545. Cf. Bloed, p. 11, who hints at the institute of soft law. 100 Because the African Banjul-Charter contains the Right of Self-Determination explicitly in Art. 20 there is another geographically limited but different area to the one covered by the Helsinki Final Act in which that right claims validity. 101 It should be remembered that the process of CSCE, now OSCE (Organisation ...), has continued and the succesor States to the Soviet Union have become Member States, too. 102 Schmitz, p. 51. 103 ICJ Rep. 1986, 13, 100, no. 189. 104 ICJ Rep. 1986, 133, no. 264. 105 The Court only having limited competence, is a fact that need not be discussed here.

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clarify uncertainties regarding the extent of the right, 106 there have been some significant cases. The first case in which the Right of Self-Determination was explicitly mentioned was the advisory opinion on Namibia of 1971,107 in which the ICJ speaks of the adressees of the Right of Self-Determination: "...the subsequent development of international law ... made the principle of s-d applicable to all of them".108 In 1975 the International Court of Justice delivered its opinion in the Western Sahara Case109 on the mode of using the Right of SelfDetermination by explaining that "...the right of s-d requires a free and genuine expression of the will of the peoples concerned".110 However, the so far most important decision was the Nicaragua Case,111 in which the International Court of Justice clearly was talking about the Right of Self-Determination even if it didn't mention it explicitly by defining the principle of non-intervention as allowing the population to "...decide freely... [on the] political, economic, social and cultural system, and the formation of foreign policy...".112 That passage clearly extended the Right of Self-Determination also in the Court's view to non-colonial contexts as customary law. The most recent relevant case is the East Timor Case113 : therein the International Court of Justice finally declares the Right of SelfDetermination as being "one of the essential principles of contemporary international law"114 with erga omnes-character.

3. Peremptory character

106

Critically because of this e.g. Musgrave, p. 77 f., who lists extensively facts and line of argument of the relevant cases of the ICJ on p. 77 ff. 107 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, ICJ Rep. 1971, p. 16 ff. 108 Namibia-Advisory Opinion, ICJ Rep. 1971, 16, 31 (no. 52). 109 Western Sahara, Order of 22 May 1975, ICJ Rep. 1975, p. 6 ff. 110 Western Sahara, ICJ Rep. 1975, 6, 32 (no. 55). 111 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. USA), Merits, Judgment, ICJ Rep. 1986, p. 14 ff. 112 Nicaragua, ICJ Rep. 1986, 14, 108 (no. 205 f.), cf. also 351, Diss. op. Schwebel: "universally recognized"; also Heintze, p. 22. 113 East Timor (Portugal v. Australia), ICJ Rep. 1995, p. 1 ff. 114 East Timor, ICJ Rep. 1995, 1, 102 (no. 29).

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An even more rigorous point of view on the Right of Self-Determination as not only being a legally binding right, but even being ius cogens and as such a peremptory right that is not subject to disposition of States, is being expressed more frequently nowadays.115 Although it is possible to prove this without much effort for the context of decolonisation,116 on a general basis it is more difficult because, as has been shown above, it is not easy to filter the exact extent to which States feel bound by norms, if there is only limited practice by them.117 But even without a complete and clearly identifiable pattern of behaviour of States as a whole118 the repeated and detailed regulation of the Right of Self-Determination in important documents shows that States are convinced that the Right of SelfDetermination is one of the "...fundamental and universal [principles] in international relations...",119 a ius-cogens norm.120 This does not mean that the Right of Self-Determination is weighed too strongly against other principles of international law with unlimited validity, because ius cogens as a legal institution is diverse.121 However, the question whether the Right of Self-Determination has to be regarded as ius cogens, does not have any consequence for the further

115

E.g. Klein, p. 56; Gros Espiell, in: VN, p. 56 f.; Graf Vitzthum, in: dito, marg. no. I 137; Brownlie, p. 513 and 515, where he points out that this remains disputed as far as the territorial dimension of the Right of Self-Determination is concerned. 116 Cf. Heintze, p. 23; Brühl-Moser, p. 91 f. 117 Cassese, p. 136 ff., he also points out the limited consequences of breaches against ius cogens in connection with treaty breaches, p. 172, i.e. that there is only a right of other member States of the treaty to apply for a measure against the breach. However, he extends this by saying that there is an erga omnesduty, p. 173. So far there has been no decision on an invalidity of a treaty because of a breach against the Right of Self-Determination as ius cogens by it, Cassese, p. 140, but that does not affect the "...revolutionary import...[of ius cogens which] does not have an immediately ascertainable legal impact, it is influential in the moral and psychological sphere; it fosters a new ethos...." (p. 174). 118 Cf. wording of Art. 53 sentence 2 Vienna Declaration on the Right of Treaties. 119 Cassese, p. 140. This is applicable also for States that do not individually see the Right of SelfDetermination as ius cogens but by ratifying or signing treaties have expressed their view on the right itself and by generally accepting the possibility of ius cogens make such a connection possible. This is shown in detail and very convincing also by Cassese, p. 137 ff. 120 This is substantially confirmed by the developments in the ILC, because in Art. 19 para. 3 lit b) of the Draft Convention on the Responsibility of States every violation of the Right of Self-Determination of peoples is classified as international crime. This is pointed out rightly by Kimminich, p. 117 hin. 121 In this clear sense Klein, p. 57, who shows that instead one needs to balance rights but thereby always consider the Right of Self-Determination. By arguing like this he also opposes Pomerance's main reservation, who stronly neglects the ius-cogens character because of the danger of "absolutist theories", p. 71 f.

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analysis. This only shows that the existence of such a right and it being part of treaty and customary law, cannot be disputed any longer today.122

III. Elements of the Right of Self-Determination
The legal quality of the Right of Self-Determination is undisputed today as the result of the above shows. However, a problem remains in that the right itself is so diverse and has multiple elements, that a clear definition of "a" Right of SelfDetermination as binding legal provision is difficult. Also elements such as the bearer of the right depend on which part of the right one refers to. There is a widespread distinction between internal and external Right of Self-Determination, the problem of secession is discussed within the latter and today there are attempts at extending the meaning of Right of Self-Determination in an internal sense into demands for autonomy or a federal dimension of State organisation. In order to be able to find a conclusion on what elements of the right are definitely valid, a very broad discussion of the possible aspects is attempted, the focus being on those elements that can be of significance in connection with the application of the Right of Self-Determination to Indigenous Peoples within existing State boundaries such as in the USA.

1. Bearers of the Right of Self-Determination

a) General overview

122

Both legal institutes add to each other and none is stronger or more meaningful than the other, cf. Cassese, p. 162.

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As is already implied in the name only "peoples" can be bearers of the Right of Self-Determination of peoples, according to the formulation in the Covenant on Civil and Political Rights "all peoples". Because there is no binding or accepted definition of "peoples",123 there is little clarity and a lot of discord in international law literature and jurisdiction on the question of possible claimants of the right.124 Not even the practice of the UN has been consistent in developing a universally accepted definition of peoples.125 By giving an overview of different definitions it is possible to find the basic elements of what constitutes the legal concept of "peoples". Although this legal subject is closely connected with the object of the right,126 i.e. the extent of the Right of Self-Determination, in the following passages the report will describe all theoretically relevant bearers127 independently of the consequences if such a right were actually applicable to them and after that this analysis will limit the result to the actually important constellations. Only natural persons128 as a collective can make up a peoples which is then more than its individual components.129 Two methods are suggested to define the legal subject "peoples".130 The objective method relies on certain characteristics such as common history, language, descent, religion etc. There has been justified criticism on this approach because some of these seemingly clearly definable aspects can be decided very differently when applied to a

123

Heintze, p. 41; that the missing legal definition itself is not a problem, because also in other areas of international law undefined concepts needing further specification are known, is pointed out by Murswiek, p. 526; according to Thürer, in: Reiter, p. 40, the fixation of this term is the "key to proper understanding of the Right of Self-Determination". 124 Cf. only Doehring, in: Simma, marg. no. 27, who thinks that an approximate approach is possible; critically however Fisch, in: Reiter, p. 16 ff, who even sees in the otherwise undisputed application of the right to so-called "colonial peoples" a "definition-trick", namely the "tautology definition States = Peoples" (p. 25). On the problem already in 1971: Emerson, in: AJIL, p. 462. 125 Cf. Rumpf, in: B/M, p. 47; the missing consistency of practice cannot be an argument against a juridical fixation, as is pointed out by Murswiek, p. 527. 126 Fundamental analysis by Murswiek, p. 527. 127 Similar approach by Klein, p. 37. 128 On this Schmitz, p.79. 129 In this sense Sieghart, p. 161 f.; Thürer, in: Neuhold/Simma, p. 46; Rumpf, in: B/M, p. 48; it is a different matter who can claim the Right of Self-Determination for this collective from within or even from outside. 130 This distinction can already be found in Decker, p. 60 ff.

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concrete case depending on the analyst's point of view.131 The subjective method on the other hand takes the intention of a group of people as decisive factor.132 The feeling of belonging together is certainly a very important factor,133 because it proves that a group of people is aware of a quality that could make them be a people. 134 On the other hand a solely subjective definition is not only impossible to realise because it would have to rely simply on the wish or intention of the relevant group of people, it would also disregard the necessity to make a category (in this case "peoples") understandable to observers from "outside".135 Because of these different possible approaches there is also a broad variety of possible peoples.136 It is undisputed that "peoples" can mean the population of a State as a whole137 but at the same time this term as used e.g. in the Human Rights Covenants cannot be reduced to such a meaning.138 It must be considered, whether in
131

Fisch, in: Reiter, p. 15, who - especially in reference to languages - points out the example of Croatian, Serb and Serbo-Croatian. 132 Formulated sarcastically according to this method each person can "chose its people", Fisch, in: Reiter, p. 15; similar Badinter Arbitration Commission, Opinion in ILM 31 (1992), p. 1497, 1498. This viewpoint is opposed by Doehring, p. 24, who argues that it is enough to be able to point out evident cases of peoples without having to have an ultimate definition (this is supported by Murswiek, p. 539); differently however, intervention in the discussion of Doehring's report by Delbrück, in: Doehring, p. 74 f. 133 In this sense also Thürer, in: Reiter, p. 41, who points out however, that the subjective connecting feeling is supported by the above mentioned objective factors. 134 Otherwise the strive for self-determination does not turn into an actual claim. 135 Murswiek, p. 530 f., uses a metaphor to show this necessity, he points out that defining a peoples is not a matter of "founding a club". 136 Chadwik, p. 5, suggests the most openly possible definition of peoples by applying it to liberation forces or in the context of international humanitarian law: "...groups which have common political goals, a will to live together, and clear ethnic and/or cultural ties". 137 Cf. only Murswiek, p. 528, fn. 23 with further references; rightly the comment (ibid) that not "the State" as political organisation of the population of the State is meant. Differently Veiter, in: Kloss, p. 135, according to whom the State cannot be bearer of the right whatsoever, as this is directed against States. 138 Like this e.g. Doehring, p. 22; Murswiek, p. 528. The older viewpoint that opposed this relied on the wording of the UN-Charter, because in the preamble it says: "We, the peoples of the United Nations". From that they concluded, "peoples" in the Right of Self-Determination equates all existing States. Cassese, p. 41, comments this part of the preamble as follows: "...starts with the well-known, rather hypocritical and misleading sentence 'We the people.....'". Nonetheless, the proof against the opinion especially promoted by Kelsen (similar also Gusy, in: AVR, p. 391) by pointing out the preparatory meetings and the change of view, by the latest in the clarifying "Friendly Relations-Declaration", cf. only Musgrave, p. 148f. with further references. On this also clearly Rumpf, in: B/M, p. 49: "...Sovereignty of States cannot be equated with the Right of Self-Determination of peoples ... with different subjects that right is in conflict also in a theoreticallysystematic aspect", after which he shows that these rights can be fitted together (if the subject is the same).

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context with a nation's population it can also be seen in the meaning of choosing an own form of government and taking own decisions on a State's resources139 in cases where a State is suddenly under alien domination by another State.140 Another group of peoples that were mentioned in connection with the Right of Self-Determination were the so-called "colonial peoples". This is problematic because in most cases the nations that were lead to independence were not inhabited by a homogenous population.141 Moreover, typically there were ethnically diverse groups of people whose main coherence was to be living in a former colony.142 This way of creating newly independent States within the former colonial borders was due to the practicability of decolonization and therefore generally has to be accepted as historical fact and special matter143 that cannot limit the bearers of the Right of Self-Determination altogether.144

b) Especially: ethnic groups as peoples Apart from the above mentioned possibilities there is widespread agreement that also parts of the population of a State are theoretically capable of being bearers of a self-determination claim.145 This category mainly circumscribes peoples in an ethnic sense which have not had the opportunity to establish an own State for certain reasons; they do not constitute a nation's people. Several different terms
139 140

On this e.g. Doehring, p. 22. Doehring, in: Simma, marg.no. 28; in such a case the mentioning of an intervention against the State's sovereignty is enough so that the Right of Self-Determination is not needed as a first instance. The prohibition of intervention is mentioned by Doehring, ibid, marg.no. 31, himself, but he sees the application to State's populations and with that the defence against intrusions from the outside the most important possibility nowadays. That the Right of Self-Determination is not redundant next to the principle of sovereignty in its aspect of territorial integrity, but actually important in constellations as just mentioned, is shown also by Murswiek, p. 538 and there mainly in fn. 42. 141 Verdross/Simma, § 512 at the end, p. 319. 142 Cf. also the often cited term "nation-building" in this context; similar: Musgrave, p. 150. 143 With this argument also Murswiek, p. 543, fn. 62. On the special matter that is now part of history, see also Schmitz, p. 82. 144 This is shown convincingly and rightly by Klein, p. 38. 145 According to Veiter, p. 265 it is "logically necessary" that self-determination is also available to sub State-population groups. Concerning the CCPR cf. Nowak, CCPR, Art. 1, marg. no. 27 and Frey, p. 37 f., who show that it is only a matter to prove by interpretation that the wording allows such a viewpoint. See also Kimminich, p. 119, fn. 17, according to whom it is undisputed that the Right of Self-Determination is also applicable to "parts of a State's population".

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are used in international law literature to name this category146 but mostly they mean the same, so in the following as a working basis the term "ethnic groups" shall be used.147 These groups can either be living within an existing State in a relatively clearly limited territory,148 but they can also be spread across several States.149 Many of these groups fulfil criteria of both methods as defined above so they could qualify as peoples, in short they can be described as "social units... that have their own clear (ethnic/cultural) identity and character and thereby are distinctive from other units", a "territorial attachment" to an area on which the self-determination act shall be realised is necessary, but this does not mean the integration into an existing organisation of a State.150 Another attempt at a general definition of peoples in this sense was made by Cristescu as a special rapporteur to the UN: peoples are "a social entity possessing a clear identity and its own characteristics, which implies a relationship with a territory, even if the people in question has been wrongfully expelled from it and artificially replaced by another population, and which should not be confused with ethnic, religious or linguistic minorities in the sense of Art. 27 CCPR".151 The comparable elements of ethnic groups and minorities make it difficult to clearly distinguish them, but on the other hand the term peoples in this sense can be concretised against minority definitions.152

146

Terms used are ethnic minority, ethnic group, people-group etc.; cf. also Knight, in Alfredsson, p. 183, who suggests as solution the term "group territorial identity" and speaks of "sub-State regionalism" that can grow into secession. Critically however Fisch, in: Reiter, p. 18, who warns of the dangers of a strict definition of a peoples as "objectively defined component", because the imagination of existence of ethnically pure peoples is "just as senseless and dangerous as the imagination of a pure race". 147 Without prejudicing the result of the analysis on possible bearership of the Right of Self-Determination. 148 On the relevance of the territorial criterion Murswiek, p. 529. 149 One possible case for application is peoples in an ethnically homogenous sense that live in different States (especially Germany before reunification, cf. Veiter, p. 264f.), but in the situation of the world today this is not a very relevant problem (it is more the secessionist movements or dismembering of multiple ethnic States), which is why this shall not be analysed any further. 150 Definition criteria by Klein, p. 37. 151 Cristescu, Self-Determination, p. 41, cited by Nowak, CCPR (engl.), Art. 1, marg.no. 29. 152 Schmitz, p. 79; Art. 1 CCPR shall be interpreted broadly, but on the other hand shall not include minorities. This is shown by Nowak, CCPR (engl.), Art. 1, marg.no. 28, with help of the travaux préparatoires; the same concerning the historical line of proof on "peoples" in Art. 1 that shall not be understood as cumulative to Art. 27 CCPR, Cassese, p. 61 f.; differently Ermacora, The Protection of Minorities before the United Nations, 1983, p. 327, cited by Musgrave, p. 170, fn. 105; similar also Badinter Arbitration Comission in the opinions, ILM 31 (1992), p. 1497, 1498, but one needs to consider that this result has been attacked severely in the literature, cf. e.g. Musgrave, p. 170 f.

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Although there is no generally accepted definition of a minority either, objective elements have been chosen when attempting such a definition: "A minority can be seen as a people, if ... [it] lives on a limited territory, has a number large enough for creating a State, is the only or majority population on this territory and lives on a traditional area of habitation".153 Another very specific description of minorities was made by the Permanent International Court of Justice in the case "Greco-Bulgarian 'Communities' ": "A group of persons living in a given country or locality, having a race, religion, language and tradition in a sentiment of solidarity, with a view to preserving their traditions, maintaining their form of worship, insuring the instruction and upbringing of their children in accordance with the spirit and traditions of their race and rendering mutual assistance to each other."154 At an expert's meeting of the UNESCO in 1989 another catalogue of criteria was established for qualification as a people: "a) a common historical tradition, b) racial or ethnic identity, c) cultural homogeneity, d) linguistic unity, e) religious or ideological affinity, f) territorial connection, g) common economic life".155 In the previous decade the international law Commission had established a very similar catalogue when observing the events in Eastern Pakistan: "...human communities recognised as peoples ... have certain characteristics in common, which act as a bond between them.... historical, racial or ethnic, cultural or linguistic, religious or ideological, geographical or territorial, economic, quantitative.... [a] list which is far from exhaustive" and this added by "one essential and indeed indispensable characteristic...: a people begins to exist only when it becomes conscious of its own identity and asserts its will to exist"156 . This list of possible definitions compared with the ones for minorities show that there is no strict distinction but a transcending move157 with little differences between

153

Hailbronner, in: Vitzthum, marg.no. 97. The question of size of the group is difficult because so called "Microstates" have also been accepted as full member States of the UN. 154 P.C.I.J. [1930], Series B, No. 17, 21; cf. also Doehring, in: Simma, marg.no. 29, who sees a continuing validity of this definition which may seem "superficial, but a better has not been found". 155 Cited by Frey, p. 45. 156 International Commission of Jurists, East Pakistan Staff Study 1972, p. 47 ff., cited by Musgrave, p. 161 f. 157 This is already clear if one considers that by changing the relevant territorial dimension a minority can quickly turn to the majority on a certain area.

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the two.158 Alone the inferiority in number and a non-dominant position within the existing State allow the distinction between a minority and a possible people,159 whereby the actual difference is the question of being able to claim selfdetermination,160 a question which can only be discussed in each case individually.161 Although there is no definite universal description,162 by combining different criteria of the possible approaches in many of these individual cases it will be sufficient to decide on the quality as peoples of an ethnic group.163 The most frequently named criteria are common language, culture (esp. religion) and descent that lead to a certain amount of homogeneity of the population in question, the subjective notion164 of a "group identity"165 and the additional historical tradition.166 If it is not possible to identify a people with absolute clarity
158

Nowak, CCPR (engl.), Art. 1, marg.no. 30; critically because of this also Partsch, in: VN, p. 45, who is convinced that according to the viewpoint of others there must be "groups of people between a nation's population and minorities", but that these groups cannot be defined by those who maintain this view (he refers explicitly to Doehring). Apart from this criticism, however, Partsch does not deliver a convincing argument against such a category. 159 A minority "is defined in terms of numerical inferiority and a non-dominant position" in opposition to "majority peoples" (Nowak, CCPR (engl.), Art. 1, marg.no. 30, fn. 83). 160 Distinction difficulties on the other hand are not between the rights of peoples and States, as is pointed out by Heintze, p. 39, rightly. Moreover in an international law understanding it is not admissible to speak of a Right of Self-Determination of States. In regard to the German unification Heintze points out that this did not result in unification of a State within certain borders, but the unification of a certain people, namely the Germans (ibid, p. 40 f.). 161 Musgrave, p. 167, opposes an application to ethnic groups, but not because of the problem of definition in each individual case (which would mean because of the lacking of a universal and objectively nameable category), instead because as an "ethnic self-determination" it would lose its category as human right and thereby develop a discriminatory character. 162 In this sense also Murswiek, p. 538. 163 Also Frey, p. 43 with further reading in fn. 65; very critical and neglecting Gusy, in: AVR, p. 394 f. and p. 410, who only accepts an application to a State's population, such peoples that are growing to be a State's population and such a former population. Opposing this viewpoint, one can submit the logical argument of Musgrave, p. 152 f., according to which populations do not feel themselves as being peoples because of borders and therefore such a definition (which he calls "representative government definition") is too short-reaching. 164 Murswiek, p. 538, fn. 45 neglects the necessity of such a "will to homogeneity". Differently in the text of Musgrave, p. 154, who shows that representatives of the opposite viewpoint expect a notion and will to be different. 165 The significance of this subjective element (next to the "core of a reasonable certainty" that has to be found mainly in the objective criteria) of "group psychology" is shown by Brownlie, in: Crawford, p. 5, because otherwise the population of the USA could not be seen as a people from an academic point of view disregarding its long national identity. Agreeing on the importance of the subjective element Veiter, in: Kloss, p. 136, speaks of "each ethnic community... that as a whole is under the domination of another people that is felt as alien ... and does not live in the State of its own people, is a people in this sense... ". 166 Murswiek, p. 538 f.

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using these criteria, then one must neglect the quality as a people, because the principle of State sovereignty is of greater impact in such a case.167 If, however, an evaluation as peoples according to these criteria is evident, then such a decision should be taken.168 For practical reasons regarding the consequences it is also important that the ethnic group that is qualified in the mentioned sense has a relatively dense territory on which the habitation is spread.169 This argument cannot result in forced relocation and if such force has been applied, then one has to refer to the original or previous habitation areas of the population.170 Although there is also criticism on the possibility of ethnic groups being claimants due to uncertainty when choosing the criteria,171 one can concede the general possibility of such ethnic groups qualifying as peoples. The individual test for the category of Indigenous Peoples in the USA will follow the analysis of the contents of the Right of Self-Determination in general.

167 168

Murswiek, p. 539, reduces it to the formula: "In dubio pro sovereignty!". In this sense also Harhoff, in: Alfredsson, p. 174, who establishes an own criteria catalogue on "first view" that is convincing in the application to autochtonous populations. He himself has certain doubts because of the lack of a completely objective view. According to his list, "peoples" can be the original inhabitants of a certain area before colonisation or occupation that still have a special relationship to the territory today, still understand themselves as "distinct groups", but due to assimilation pressure or social marginalisation have been barred from the possibility to preserve and develop their ethnic identity and now claim their Right of Self-Determination in own matters. 169 This is shown vehemently by Thürer, in: Reiter. p. 41 f.; the same: Murswiek, p. 531; according to Murswiek, in: AVR, p. 328, this criteria (majority on a certain territory) is at the same time the distinction criteria between minority and self-determination people, especially if the latter lives on a territory that has "a size that enables the founding of a State" (this distinction is similar problematic as the criteria of numbers because again borders have to be established, below which the right cannot be fulfilled, although in the process of decolonisation also micro-States were created. 170 Thürer, in: Reiter, p. 41 f., points out the danger of expulsion or forced habitation that shall be avoided by creating exceptions under such circumstances in connection with the necessity of territoriality. This is a true conclusion, because that criterion existed in the past. Whether during establishment of this criterion really "no doubts on substance, extent and territory of a people and the will of the clear majority of members of the people that are politically educated are allowed if the Right of Self-Determination is to be implemented" as Veiter, in: Kloss, p. 139, says, can be doubted, because to a certain extent also the territorial dimension can be part of a plebiscite. 171 Schmitz, p. 83, who points out that there is no consistent State practice that would define the ethnic approach. He therefore favours an evaluation of proportionality in each case (p. 85), which again is nothing else than the often suggested different stages of the Right of Self-Determination that in the end can also turn into an external defence mechanism, see infra on this.

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2. Scope of the Right of Self-Determination As we have seen above, in certain cases it is possible to name a bearer of the Right of Self-Determination, but now it is essential to show whether the legal consequences of such a result are clear. A similar problem as with possible bearers appears in the analysis of the scope of the right: neither the practice of the UN172 or the States is so consistent and multiple that it allows definite answers. Therefore, once again the attempt will be made to find out by analysing whatever practice there is and the general international law literature, which elements of the right are undisputed today and which are theoretically possible consequences if one agrees on the existence of such a right. Also in this context there is no clarity in the literature on the technical terms - sometimes a distinction between defensive and offensive, other times between internal and external Right of Self-Determination is suggested -,173 but because the Right of SelfDetermination always has a territorial dimension174 the most convincing distinction is between a defensive variation (in which the territorial status quo remains unchanged) and an offensive (in which the territorial order is changed),175 which is why it is used here.

a) Offensive Right of Self-Determination The offensive Right of Self-Determination is able to change the territorial order, it can create new borders and it can dissolve existing ones. aa) General aspects
172

Cf. e.g. on the possibility that the "Friendly Relations-Declaration" could contain the situation of threat or violation of peace with international dimension (and the resulting possibilities of intervention), Kimminich, p. 122, who rightly points out that in the "practice of the U.N. ... so far no decision on this has been taken". 173 This distinction cannot be derived as a must from the relevant UN-documents (slightly different Nowak, CCPR (engl.), Art. 1, marg. no. 34, according to whom the different sentences of para. 1 of this provision are equal to the different variations of the Right of Self-Determination), but it is widely acknowledged in literature and political discussion, Heintze, p. 26. 174 The same: Klein, p. 43; Murswiek, p. 527: "...furthest possible and fundamental right that derives from the Right of Self-Determination [is the] decision on the territorial status". 175 Ground-breaking work on this distinction by Murswiek, p. 532 f.

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The main aspect of the Right of Self-Determination - as can be seen both in Art. 1 of the Human Rights Covenants and the "Friendly Relations"-Declaration (Principle V) - is the right to freely determine one's own political status.176 The main contents177 of this is to determine the international status, i.e. the relationship of one people to another, without influence from outside, which is why this aspect is often named as the "external self-determination". This decision on the external status by a people is logically the first step and it includes not only the new foundation of an independent State,178 but also the integration with existing States or the association with alien States179 as ways of making use of the right to define the status. For the population of the former colonies this was understood and in most cases also concretely realized by founding independent States.180 Also a part of this aspect is the liberation of territories that have come under alien domination by breach of international law.181 As last possible and "most controversely discussed"182 possibility when one applies the Right of SelfDetermination to ethnic groups, the right to secede from the existing State organisation under certain instances is mentioned. Because of its impact this needs to be discussed in more detail.

176

Cristescu, p. 17 (cited by Nowak, see fn. 150 supra), sums up in these words: The Right of SelfDetermination guarantees the people "to be the sole master of its fate". 177 Cf. the overview of Brühl-Moser, p. 108 f. 178 Doehring, in: Simma, marg. no. 44. 179 Doehring, in: Simma, marg. no. 41. 180 Cf. only Klein, p. 44, who shows that the other theoretical possibilities for colonial peoples were not supported, but instead independence was quickly the aim of UN practice. 181 Whether this is limited to conflicting areas similar to colonial territories or whether this possibility has to be understood in a broad sense, can remain open, as the underlying questions are discussed infra when the right of secession is analysed. In so far the question whether the CCPR already must have been valid as a codified Right of Self-Determination when the territory was occupated or whether this is not a necessary consequence, because of the possibly lacking application of the prohibition of retroactive right, must also be put forward. This question is important in connection with the restitution of territories that were occupated in breach of international law back into the original State organisation; Thürer, in: Reiter, p. 47 f., names East Timor and Tibet as possible cases. On the latter cf. the recent study of Schmitz. 182 Doehring, in: Simma, marg. no. 36; this characterisation is directly convincing, as that possibility is a clear contradiction to the territorial integrity and sovereignty of existing States.

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bb) Right to secession Although one could easily derive such an aspect of the right from a logical point of view, one has to be very cautious of accepting a general right to secession,183 because the Right of Self-Determination always needs to be seen in context with other norms of international law. One of those norms, the right to territorial integrity as a result of sovereignty, belongs to the most prominent rights of a State that in case of secessionist activities is restricted strongly. In the Charter of the UN there is no implicit mentioning of such a right to secession, in the opposite because of the close systematic connection with territorial integrity one will have to concede a dissenting opinion on including such a right when the Charter was formulated.184 Examples that seem to support this in the later practice of the UN are the secessionist attempts of Katanga (Kongo) and Biafra (Nigeria).185 However, as has already been pointed out above, the original point of view could later have been altered by opposing practice.
186

As there are only a few

instances in which there was an explicit discussion on the Right of SelfDetermination in application to concrete cases, the changed attitude could be found in documents, one of the obvious being the "Friendly RelationsDeclaration". Although in para. 7 of the part on the Principle of Equality and Selfdetermination of Peoples the use of the Right of Self-Determination is under the restriction of the territorial integrity of States that needs to be protected, in the same paragraphs this is limited because the protection is limited to States that have governments representing the whole people without distinction as to race, creed or colour. The already great significance of this paragraph would have

183 184

Thürer, in: Reiter, p. 48. Doehring, in: Simma, marg. no. 37. 185 Cf. also the statement of the General Secretary U Thant: "... as far as the question of secession ...is concerned, the U.N. attitude is unequivocable. As an international organisation, the U.N. has never accepted and does not accept and I do not believe it will ever accept a principle of secession of a part of a Member State", cited by Klein, p. 48. However, one has to see that he said that before the Friendly Relations-Declaration was adopted, cf. Kirgis, p. 306, fn. 22. 186 On this possibility of interpretation of the Charter by later resolutions of the General Assembly, cf. Doehring, in: Simma, marg. no. 1.

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been even more extensive,187 if it would not have been changed virtually in the last minute from the formulation "representing the whole of their population" to what it is now. 188 But even the more limited formulation allows to derive by way of argumentum e contrario that in a case of discriminating governments (in regard of the mentioned groups) there must be a right to secession for the discriminated groups.189 It is necessary to establish what severity the discrimination must reach, before the right is triggered.190 Because of the principal duty of citizens to be loyal to their mother State, a low level of suppression is not enough to assume that these bonds can be lifted. Only if there is a massive curtailment of a group's rights, their defence mechanism can allow as a last remedy the right to secession. Differently said: the principle of loyalty looses its validity when "a State machinery turns itself into an apparatus of terror which persecutes specific groups of the population"191 . Already here one can see that the Right of Self-Determination obviously needs to be understood as a multiple right with different legal consequences depending on which level of the right one is momentarily speaking of, it is a sort of a hierarchical right. This interpretation (as will be shown below as well) suggests to see the internal right in the sense of a principle of freedom and democracy192 as first instance (which always respects territorial integrity of States)193 - and secession as a "remedy of last resort".194 It should be pointed out at least shortly that State practice in recent years does not ignore this fact, because if newly developing States are

187

In such a case the internal Right of Self-Determination would have been applicable to "any national, linguistic, ethnic, racial, or religious group not ‘represented’ in the government", cf. Cassese, p. 117 f. 188 This is pointed out already by Rabl, p. 494 and also later by Cassese, p. 117 f. 189 These reasons are given by Doehring, in: Simma, marg.no. 37, who uses them convincingly with them. 190 Criteria for this can be found in Doehring, in: Simma, marg.no. 38 ff. 191 Tomuschat, in: dito, p. 9. 192 Nowak, in: Reiter, p. 246 193 On this matter Nowak, ibid, points out the Final Act that has a reservation of this kind and that in his interpretation Art. 1 CCPR does not entail a right to an own State. He therefore pleas for multiethnic States as solution today, p. 247. 194 Tomuschat, in: dito, p. 16, cf. also p. 12; also Schmitz, p. 85: full Right of Self-Determination or none. Different evaluation by Thürer, in: EPIL, p. 474.

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recognised at an early stage, the recognising States also accept a (former) right to secession.195 As a result one can conclude that the Right of Self-Determination always entails a right to secession as last resort196 but this measure can only be a possible alternative in extreme situations.

b) Defensive Right of Self-Determination The defensive Right of Self-Determination in the understanding as it is upheld here, does not have any effect on the territorial status quo, but only affects the inner State dimension. If the offensive right as the opposing end is a means for political independence, the defensive variation (or "inner" variation due to its limited scope as shown before) allows the "maintenance and securing of the full political, economical, social and cultural sovereignty"197 , which means that the free determination of the political and economical system without influence from a third party198 is the main content. The "Friendly Relations"-Declaration was the turning point from which the Right of Self-Determination was not only lead beyond the context of decolonization,199 the Declaration also expanded the right by including in paragraph 4 a choice of "any other political status" as fulfilment of the Right of Self-Determination.200 Additionally, the Western States – after accepting the inclusion of the right –

195

Nowak, in: Reiter, p. 249, where he refers to Bosnia-Hercegovina; cf. also e.g. Croatia. On the other hand there seems to be a more hesitant development in connection with the events in Kosovo at the moment. 196 From a different systematic approach agreeing: Makinson, in: Crawford, p. 75 ff. 197 Gros Espiell, in: VN, p. 55. 198 On the logic of the Breshnev-doctrine according to which States of the Warsaw Pact lost the right of leaving the Pact once they had entered it (see e.g. attempted revolution in Hungary, the development in Prague etc.) cf. Doehring, in: Simma, marg.no. 33. 199 Brühl-Moser, p. 71. Regarding the area of decolonization the validity as legal right is undisputed, cf. only Cassese, S. 72, who undertakes a detailed study on the following pages where he also shows in which cases the Right of Self-Determination was not respected in this context (p. 79 ff.). The same result by Musgrave, p. 96. 200 Indicated by Musgrave, p. 76, who speaks of an "innovation".

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wanted to make the right "universal in application"201 which was a more extensive understanding than the Eastern Bloc States had. There is a more precise definition of the external Right of Self-Determination in the declaration and the necessity to apply the right in view of the other named principles, but the sometimes claimed inclusion of a democratic form of government as only legitimate political system cannot be read from the declaration directly.202 Nonetheless the earlier mentioned paragraph 7 did clearly hint at an application of the right to internal matters,203 even if only in certain exceptional cases, and by doing so opened the road to a modern understanding in which the democratic aspect of the right gains more attention and weight.204 The line of argument can be that the bearer of such a dimension of the right is the nation’s people (people equating the state’s population) 205 and the right describes the sovereignty of this people; that could be seen as a peoples‘ sovereignty in the sense of "all political State authority emanates from the peoples".206 It is too early to concede such a right as only possible explanation of this passage,207 therefore it has to be reduced to a definition that the use of State authority must happen "in the best interest of the peoples".208 More interesting in our context is the application of the defensive Right of SelfDetermination to ethnic groups if one accepts - with the above reasons - that they

201

Musgrave, p. 75; this is also conceded by Cassese, p. 139, who neglects the validity of this extension. In opposition to that Musgrave, p. 75 f. seems to accept this extension. 202 Thürer, AVR, p. 124; the same: Cassese, p. 109 f., fn 14, 15 and p. 115 ff. - against this universal importance but he then concentrates his conclusions on the "exception" of application to internal matters according to paragraph 7 of the principle. Differently Brühl-Moser, p. 75, who claims that the inner Statedemocratic aspect was in the centre of attention. 203 On this very detailed the arguments of Cassese, p. 109-121. 204 Fundamental work in this area by Brühl-Moser, p. 219 ff., p. 283. 205 Klein, p. 45. 206 On this Brühl-Moser, p. 284 ff.; cf. also Thürer, in: Reiter, p. 45 f., who says that this would be nothing but a support of the principle of sovereignty and equality of States, which can be understood again in a way that only that sovereignty is legitimate that is based on peoples' sovereignty (that would again be the direction of the American Declaration of Independence and the provision on the "consent of the governed", see above). 207 Although it is possible and the development within Europe in the OSCE-process seems to point strongly in that direction, cf. on this Brühl-Moser, p. 232 ff. Different integration into concept of offensive and defensive Right of Self-Determination than here by Doehring, in: Simma, marg.no. 49 ff. 208 In this sense Thürer, AVR, p. 127; that the formulation is not much more than an empty statement can be seen with all the State systems that have suppressive systems, but a provision in their constitution that the government is intended for the benefit of the people.

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are plausible bearers of the right. The extent of inner sovereignty of these entities that are recognised as possible bearers of the Right of Self-Determination, maintains an understanding as a right to claim from the majority peoples respect of the own specific group characteristics and the possibility to keep up and live these individual characteristics.209 This understanding grants ethnic groups a wide range of rights below the level of the right of secession,210 especially a substantial amount of autonomy in the sense of granting the relevant groups a right to determine a great amount of their fate within the State organisation in which they live.211 Once again there is a certain tension between the principal loyalty of each citizen to its State and the possibility of being able to regulate a great amount of affairs concerning a sub-entity (i.e. the ethnic group that the citizen belongs to) independently.212 In opposition to the solution of seceding from a State, with this form of autonomy the band of loyalty remains intact, all the State does is to grant a certain amount of space to the relevant groups in which they can live their specific ways. Autonomy as it is understood here gives a certain "degree of actual as well as formal independence enjoyed by the autonomous entity", which will mainly relate to internal matters but can even "occasionally [grant the] power to conclude international agreements concerning cultural or economic matters".213 Autonomy is the shifting of rights214 - which includes legislative rights - from the greater entity "State" to specific parts of the State's population that differs from the majority by its features or living habits,215 without qualifying the areas where these groups live as a "(sub-)State".216 Although the general legal institute of autonomy is accepted in today's
209

E.g. Doehring, in: Simma, marg.no. 32; similar Verdross/Simma, § 513, p. 320, that want to grant all groups of people a right to "development without discrimination within a State". 210 Nowak, CCPR (engl.), Art. 1, marg.no. 34: "broad autonomy" or "participation in ...political decisionmaking process". 211 See Thomas Würtenberger's general definition of Autonomy in "Lexikon des Rechts", 2/40: "A. means self-legislation and self-determination. ... In collective perspective autonomous social entities can plan in own responsibility the life of the entity by legislation". 212 Part of this is also the question of a federal Right of Self-Determination, according to the territorial spreading of the peoples and groups, cf. on this e.g. Kimminich, in: Tomuschat, p. 83 ff. 213 Hannum/Lillich, AJIL 1980, p. 860. 214 According to Heintze, Autonomy, p. 14, the amount of power that is shifted is the indicator for the extent of autonomy. 215 Heintze, in: Reiter, p. 73.

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international law217 an overall definition cannot be given, because one of the main aspects of autonomy is that it is filled with contents depending on each situation specifically, the exact meaning depends on a wide range of criteria of the group for which autonomy regulations shall be formulated.218 Free determination of political status in this sense means "primarily the independent participation of the relevant peoples in the political process of the whole State and the granting of autonomy within this State that is more than the limited rights to protect minorities."219 The principle of subsidiarity as much as the idea of federalist State structures220 depends on the conviction that it makes sense to leave tasks and affairs to the lowest or smallest unity in the hierarchy of a State structure. The higher entities or political units only step into action if the smaller units cannot produce workable results, which also means that the larger unit has a duty to protect and support the smaller units because that is a priority task that can be fulfilled by the larger unit, only in order to continuously uphold the functioning of the system as a whole.221 The reason why often autonomy is not seen as a positive institution is the fear that concealed by such demands there is always also a demand for secession. However, autonomy can, but must not necessarily be a step towards separation from an existing State, it is more likely to be the final step chosen by the group demanding more freedom in own matters.222 Actually autonomous units often
216 217

Heintze, Autonomy, p. 8 with reference to Creifeld's Encyclopedia. This acceptance only entails the existence of such a construction, not its meaning in connection with the Right of Self-Determination or its binding form for all the States in international law; cf. e.g. Musgrave, p. 208 f., where he shows that probably the opposite is the case. 218 Heintze, in: Reiter, p. 74 with further reading; dito, Autonomy, p.14. 219 Nowak, in: Reiter, p. 274. 220 On this institution and its connection with the Right of Self-Determination cf. e.g. Kimminich, in: Tomuschat, p. 83 ff.; cf. also Tomuschat, in: dito, p. 14 f., where he also shows that such federalist structures would cease the necessity of a rigid division between peoples and minorities. 221 On these ideas cf. also Heintze, in: Reiter, p. 74. This idea refers e.g. to the Federal States in Germany or in the USA, there possibly one could see the Indian reservations as a sort of area in between a Federal State and a region. On the latter idea one can consult the development within the European Union where in the process of further integration the regions have a growing importance and are referred to a lot more often. 222 Heintze, Autonomy, p. 22, shows that the Right of Self-Determination continuously exists (no consumtion) and therefore autonomy regulations cannot extinguish it, which also means that in some cases autonomy will be a step previous to State-founding, but nonetheless this possible development is

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cooperate more willingly in a constructive manner in the State which can be positive for the overall development.223 This is why the creation of such units is positive not only in connection with the Right of Self-Determination, but also for minority protection and support of human rights.224 Differently said: to prevent what is feared - a dismemberment of States on a large scale ("balkanization") one needs to "accommodate the legitimate claims of peoples - or even of minorities - by creating adequate political structures, giving them a say over what are essentially their own matters, without destroying the overarching institution of government".225 The establishment of such regulations should be pinned down in treaties or compacts and also supervised by international bodies (including the possibility of sanctions).226 In doing so, the idea of a "federal Right of SelfDetermination" can serve as a "general guideline".227

c) Conclusion It can be concluded that if the Right of Self-Determination in its defensive variation is respected and granted to its bearers, then there is no road to offensive self-determination. Only in State organisations that systematically work against the principle of self-determination and by doing so endanger a specific group in its existence, an extreme reaction in form of secession is possible. Therefore "autonomy is the best prevention against secession demands, if only granted in time."228

neither a must or even a likely solution. Actually on page 36, his tenth thesis explains that the extent of autonomy regulations determines the likeability of secessionist demands. The situation of the Palestinian area is different because there is a long demand for self-determination in the sense of establishing an own State and these demands have been met by many States in the world as legitimate, see ibid. 223 Heintze, in: Reiter, p. 75; his conclusion that this leads to an assimilation as a free choice is strange and must be strongly criticized, because assimilation is exactly the opposite of what one tries to reach in today's world by granting autonomy or self-determination to distinct groups. 224 Heintze, in: Reiter, p. 74. 225 Tomuschat, in: dito, p. 17. 226 Heintze, Autonomy, p. 35, thesis 8. 227 Tomuschat, in: dito, p. 17. 228 Murswiek, in: Tomuschat, p. 39. That there is a very urgent problematic in the region of Kosovo that would need a "solution according to the Right of Self-Determination" was clearly expressed by Hasani,

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The argument of a conflict of aims as set out in the Charter of the UN between self-determination in this understanding and the peaceful coexistence of peoples (meaning the sovereignty and equality of States) can be resolved. If human rights are so clearly violated that the minimum guarantee of existence within a State can no longer be upheld, then a "peaceful" coexistence is not possible and the UN cannot be interested in perpetuating such a situation.229 The above described idea of a hierarchical right must be today's understanding of the Right of Self-Determination. There has been an evolution that has not changed the norm of self-determination itself, but the framework within which it exists. The human rights and minority protection methods in international law are developing into a workable regime so that peoples within a multiethnic State organisation have ways of demanding their rights also on an international level and thereby feel self-determined.230

C. Specific case application: Application of the Right of Self-Determination to Indigenous Peoples in the USA

I. General

in: Reiter, p. 228 ff., in 1996 - however, his warning and many others were not reacted to soon enough as the recent developments in Kosovo show. 229 This is a similar approach as to the exceptional use of force in a humanitarian intervention which is strongly disputed, cf. e.g. Hailbronner, in: Vitzthum, marg.no. III 197 ff. However, the important question is only, who can decide on such a measure (e.g. Security Council). This discussion will now probably regain a prominent status. 230 This is obviously an optimistic conclusion and only a general observation to show the differences to the times of decolonization when independence seemed the only solution, cf. also Heintze, Autonomy, p. 35. This result does not mean that everything in the world is in order, it actually demands a lot more efforts in direction of an extensive system of autonomy rights so that also in future secessionist demands can be neglected legitimately.

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After setting out to define all relevant aspects of the Right of Self-Determination in international law in the first part of this report, we can now use the above findings to see whether the right can be applied to Indigenous Peoples in the USA and if so, what consequences this has. The Right of Self-Determination has an unlimited validity in the world today.231 Nonetheless, the exact contents and legal consequences depend not only on the general application of the right, but also on the situation - e.g. in relation to treaties - of each country individually. Consequently, when examining whether the right as described above is applicable to Indigenous Peoples in general and the indigenous population in the USA especially, it will also be necessary to consider the status of America in regard to relevant treaties and fora of international law.

II. Application to Indigenous Peoples in the USA
First of all, it needs to be analysed whether Indigenous Peoples are possible bearers of the Right of Self-Determination as outlined above. In order to be able to do this, the category of Indigenous Peoples must be defined.

1. Indigenous Peoples

a) Attempt of a general definition There is broad use of terms such as "indigenous", "aboriginal" or "native" when trying to speak about original inhabitants of today’s States that in the course of history have been marginalised in their influence within a State. However, the term "indigenous" seems to best capture the majority of groups which are meant with those description attempts. Nonetheless, many closely attached scholars
231

See above and as clear as here: Heintze, in: Reiter, p. 35, thesis 1. 49 MUELLER-WILSON REPORT

and especially practically working units such as the Working Group for Indigenous Populations of the UN do not use a certain definition of relevant groups under such a term nor do they believe one is needed.232 This view is shared by most "Indigenous Peoples" (for lack of another term at this stage) themselves, because of the emphasis on the right to define themselves who is indigenous.233 However, it is generally felt that a certain "guidance"234 is needed in order to be able to continuously establish whether a group can be regarded as being an indigenous peoples.235 Therefore, in the following a presentation of the main attempts at defining "indigenous" in recent times236 will be supplemented by a short analysis of relevance. One can find several definitions of indigenous, most of which have emerged within the UN. As a first overview Anaya’s description can be used, according to which "indigenous refers broadly to the living descendants of pre-invasion inhabitants of lands now dominated by others. Indigenous peoples, nations or communities are culturally distinctive groups that find themselves engulfed by settler societies born of the forces of empire and conquest".237 More extensive definition attempts were also made, one by Cobo in his Special Report: "Indigenous communities, peoples and nations are those which, having a historical continuity with pre-invasion and pre-colonial societies that developed on their territories, consider themselves distinct from other sectors of the societies now prevailing in those territories, or parts of them. They form at present non-dominant sectors of society and are determined to preserve,
232

Cf. e.g. statement of Daes, Chairperson-Rapporteur of the Working Group in her Working Paper on "Standard-Setting Activities: Evolution of Standards concerning the Rights of Indigenous People", 1996, UN Doc. E/CN.4/Sub 2/AC.4/1996/2, para. 6; critical, however, on the open approach by the Working Group Martinez, Second Progress Report, para. 121; on the importance of finding a definition also Barsh, HHRJ 1994, p. 82. 233 Similar and rightly Heintze, ZaöRVR 1990, p. 43; also see Daes, Note 1995, para.6 where she points out that in previous times indigenous peoples suffered because of the "definitions imposed by others". See finally Daes, Report 1996, para. 35 f. 234 Daes, Note 1995, para. 7. 235 Especially in some Asian countries the problem exists that States completely deny the existence of indigenous peoples on their territory because of a different approach to this concept; cf. Daes, Report 1996, para. 38. 236 As Daes shows in her Report 1996, para. 10 ff. no clearer definition can be gained in going back in history or even tracing the semantic roots of the term. 237 Anaya, p. 3.

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develop and transmit to future generations their ancestral territories, and their ethnic identity, as the basis of their continued existence as peoples, in accordance with their own cultural patterns, social institutions and legal systems."238 He then adds a list of possible features of continuation, which include the occupation of a certain territory, ancestral roots, cultural distinctiveness (including language) etc.239 The emphasis on a distinct cultural appearance also contains the aspect of not having been assimilated by the dominant population.240 When examining the attempts of the International Labour Organization, which was the first institution after WW II that explicitly addressed problems of indigenous peoples in International Labour Organisation (ILO) Convention 107, one can spot a difference that doesn’t clarify the uncertainties either. Currently still, as in the revised Convention No. 169, the organisation uses two different terms:
"Article 1: 1. This Convention applies to: (a) tribal peoples in independent countries whose social, cultural and economic conditions distinguish them from other sections of the national community, and whose status is regulated wholly or partially by their own customs or traditions or by special laws or regulations; (b) peoples in independent countries who are regarded as indigenous on account of their descent from the populations which inhabited the country, or a geographical region to which the country belongs, at the time of conquest or colonization or the establishment of present State boundaries and who, irrespective of their legal status, retain some or all of their own social, economic, cultural and political institutions. 2. Self-identification as indigenous or tribal shall be regarded as a fundamental criterion for determining the groups to which the provisions of this Convention apply. 3. The use of the term "peoples" in this Convention shall not be construed as having any implications as regards the rights which may attach to the term 241 under international law."

As both groups are given the same rights and a distinction is merely possible because it is reduced to the question of having preserved own institutions and an
238 239

Cobo, Add. 4, para. 379. See Cobo, Add. 4, para. 380. Already Cobo realized in para. 382 the "sovereign right and power to decide who belongs to them, without external interference". 240 Heinz, p. 7; he names as examples for distinct cultural appearance: different way of life, different religion, language and origin (anthropological). 241 International Labour Organization, Convention concerning Indigenous and Tribal Peoples in Independent Countries, 1989 (No. 169); reprinted e.g. in Tomuschat, Annex, p. 305 ff.

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own identity as points of recognition for being indigenous - it is unnecessary to maintain these two terms.242 The draft Inter-American Declaration on the Rights of Indigenous Peoples by the Organisation of American States (OAS) is similar to ILO Convention No. 169, as it refers in Art. I to both "indigenous peoples" as well as "tribal peoples", although it must be noted that there has been no decision on exact wording and as it seems now "indigenous" is the overall term that includes the ILO’s approach to "tribal groups".243 It is also interesting to take into consideration documents by the World Bank that include definitions, because this institution needs to be prepared in everyday practice to decide on the legitimacy of a group of people to qualify as indigenous or not. In an early study it gave the following short explanations to different relevant terms:
"1. Ethnic minority: broadly encompasses all those races or groups not identifying with the dominant race, ... 2. Native: implies birth or origin in the region, and thus includes national peasants and all others born in the area.244 3. Indigenous: adds to native the implication of not having been introduced from another region of the country. 4. Aboriginal: implies having no known race preceding in the occupancy of the region, hence also includes national peasants albeit those with a traditional way of life. 5. Autochthonous: implies creation in that site...."245.

Later in 1991 the World Bank included in its operational manual the following descriptions:
"[...] 3. The terms "indigenous peoples," "indigenous ethnic minorities," "tribal groups," and "scheduled tribes" describe social groups with a social and cultural identity distinct from the dominant society that makes them vulnerable to being disadvantaged in the development process. For the purposes of this directive, "indigenous peoples" is the term that will be used to refer to these groups. [...]
242

Similarly Daes, Report 1996, para. 31 and 72. See also, however, Note by the International Labour Office 1995, para. 12, asking the Commission to "consider whether the use of "indigenous" alone might in fact convert the draft declaration from a universal instrument to one of only regional application" (emphasis added). 243 See for the Text: Anaya, Appendix, p. 218 ff. 244 See on this Daes, who wants to solve the problem that nowadays one can call all the State’s population native to the country (because a couple of generations already exist) by identifying who "are native to their own specific ancestral territories within the borders of the existing State, rather than persons that are native generally to the region in which the State is located", Report 1996, para. 64. 245 World Bank, Economic Development and Tribal Peoples. Human Ecologic Considerations, Washington, July 1981 - cited by Heinz, p. 9.

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5. Because of the varied and changing contexts in which indigenous peoples are found, no single definition can capture their diversity. Indigenous people are commonly among the poorest segments of a population. They engage in economic activities that range from shifting agriculture in or near forests to wage labour or even small-scale market-oriented activities. Indigenous peoples can be identified in particular geographical areas by the presence in varying degrees of the following characteristics: (a) a close attachment to ancestral territories and to the natural resources in these areas; (b) self-identification and identification by others as members of a distinct cultural group; (c) an indigenous language, often different from the national language; (d) presence of customary social and political institutions; and (e) primarily subsistence-oriented production."246

However, because "no single definition can capture their diversity" it is left to the "Task managers [to] exercise judgement in determining the populations to which this directive applies" whereby they shall seek assistance by "specialized anthropological and sociological experts"247 . As can be seen with the above attempts there are certain criteria which are applicable when trying to decide on the quality of a group. Mostly, the criteria in the different definitions are similar. But as they are also similar with the attempts to describe minorities, one first needs to draw a clear distinction between these two institutions if it is possible at all, before finding a conclusion on the connection between indigenous and peoples.

b) Distinction against minorities First of all it should be pointed out that in international legal understanding the terms - and the underlying concepts - of minorities and indigenous peoples in actual fact are different.248 This is obvious when one remembers that in the UN

246 247

World Bank Operational Manual, Operational Directive 4.20, Sept.1991 (emphasis added). ibid. 248 Extensively on this division Martinez, Second Progress Report, para. 48-129, esp. para. 116; cf. also Barsh, HHRJ 1994, p. 81; also Daes, Report 1996, para. 47: "A strict distinction must be made...".

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there are two different Working Groups249 on Minorities and Indigenous Populations.250 This is underlined by the UN Special Rapporteur on Minorities' statement in an article: indigenous peoples "...on the one hand have to be subsumed under the category of minorities... [on the other hand] may necessitate special regulations".251 Finding a definition for a minority is a similarly impossible task like the above for peoples, therefore international organisations have "...for many years tried unsuccessfully to arrive at a definition of minorities",252 because whatever attempt is chosen, some groups would be excluded while others would be included that are already "protected by other instruments"253 , such as indigenous peoples. As a starting point the earlier mentioned definition attempt by the Permanent Court of International Justice (which we used to distinguish peoples from minorities in general) can be chosen with its four main elements:254 biological and cultural distinctiveness, the choice or desire to remain distinct and a certain social cohesiveness. Additionaly to these, the features non-dominant and numerically inferior from the famous Capotorti-Definition of 1979255 should be added. Although in legal terms two different categories, Indigenous Peoples can be minorities, in most cases actually are ethnic minorities,256 but it is possible and in some exceptions it is the case that they are the majority of population in a State.257 At the same time there are minorities that are not indigenous, as in most
249

The Working Group on Indigenous Populations was established in 1982, the Working Group on Minorities in 1995. 250 However, it should be pointed out here already that in the understanding of the Human Rights Committee indigenous peoples qualify as minorities and as such are under the protection of Art. 27 CCPR; see General Comment No. 23 (50) on Art. 27 of the HRC: "culture manifests itself in many forms, including a particular way of life associated with the use of land resources, specially in the case of indigenous peoples", reprinted e.g. in Daes, Report 1996, para. 57 or Heintze, Autonomy, Appendix. See also Case Sandra Lovelace vs. Canada, UN Doc. CCPR/C/DR[XII]/R6/24 (1983), cf. on this e.g. Musgrave, p. 138 and 172 with further cases. 251 Capotorti, VN 1980, p. 113, 117. 252 Eide, Report 1996, para. 155. 253 ibid. 254 According to Daes, Report 1996, para. 49. 255 Cited e.g. in Musgrave, p. 169. 256 Martinez, Second Progress Report, para. 116; see however Daes, Report 1996, para. 47 in which she denies indigenous peoples being "ethnic groups". 257 Take as examples South Africa during the Apartheid, Bolivia etc.

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parts of the world the immigrants.258 But the main aspect is the substantial difference in the concept of the two categories: Minorities are inferior in numbers and comprise of people having the same "race",259 religion or language as well as nationality, which includes the possibility of being spread all over a country. It is necessary to make clear here that only due to numerical inferiority Indigenous Peoples cannot be summed up as minorities, because this development to inferiority in numbers mostly owes to historical extinction or attempted genocide by invading powers.260 But the reason why Indigenous Peoples are more than just a sub-division261 of minorities is a historical and geographical aspect.262 Usually Indigenous Peoples have lived throughout history on a certain geographical territory, even if this may have shifted in time.263 They usually still have a close connection to these lands, so that the "more" of indigenous in regard to minorities is "priority in time and attachment to a particular territory".264 This attachment has a geographical and a spiritual aspect.265 As in a report from the Working Group on Minorities: it is "clear that the rights of indigenous people" are stronger, on the other hand they can only apply to groups living "compactly in a certain region of a territory".266

258

Esp. in America there are numerous groups with large numbers such as Afro-Americans, Chinese, etc. The category of immigrants is often not accepted as a "minority" in this sense. 259 On this term cf. Daes 1996, para. 49: "The racial factor is, of course, no longer admissible as a matter of law or science". 260 Similar Heinz, p. 5. 261 Heinz, p. 4 refers to a "sub-term". 262 Heinz, p. 5, speaks of the minorities-definitions being a "good starting point" to define Indigenous Peoples. 263 That fact in many cases is due to a forceful depriviation from the originally inhabited lands by the militarily superior force. 264 Daes, Report 1996, para. 60. 265 Brölmann/Zieck, in: Brölmann et al, p. 193. It is soon obvious that along these terms the prerequisites for existing Indigenous Peoples are clearly given with Indian Nations on reservations within the USA today, although one could oppose by saying that the reservations are not the original lands of those peoples. This does not alter the observation that most Indian tribes have established a special relationship to the lands they live on now or that are close to them, mainly for religious purposes. Take as an example the holy grounds of the Badger Two-Medicine Area for the Blackfeet Indians, cf. on this Dörr, VRÜ 1997, p. 7 ff. 266 Eide, Report 1996, para. 157; in his view by migrating to urban areas the indigenous people can turn into minorities. His concept means that being a people needs a territorial component whilst a minority is only a personal matter.

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As can be seen from the above the areas of the Right of Self-Determination and protection of minorities overlap extensively.267 Especially the viewpoint that internal self-determination is equal to effective minority protection regulations could see both subjects as identical, however the above mentioned differences in dogmatic and practical sense forbid this understanding.268 One of the main differences is also that minority rights in international law are formulated as individual rights,269 whereas the Right of Self-Determination has a collective direction.270

c) Conclusion as to the term "peoples" Although it is difficult to find generally applicable definitions in this materia, we have found that Indigenous Peoples qualify as peoples in the sense of the Right of Self-Determination. There is also a difficulty in finding a clear distinction as to the concept of minorities but also in that context we managed to find a workable line of argument. A very specific catalogue of criteria "on first view" has been set up, according to which peoples in our sense can be the original inhabitants of an area before colonisation or conquest that today still have a special relationship to this territory, understand themselves as "distinct groups", but because of attempts at assimilating them or because of social marginalisation have not been able to protect and develop their ethnic identity271 and that finally now claim their

267 268

Cf. only Heintze, in: Reiter, p. 61 Heintze, in: Reiter, p. 61; the same Schmitz, p. 80, who points out that an overlapping is not impossible right away, but the solution is to be seen in a development in which minorities - under certain circumstances (this again is connected to the Right of Self-Determination as a hierarchical right, see infra) - can become bearers of the Right of Self-Determination. But as long as they are minorities they do not have a right to secede, cf. Paech, APuZ, p. 22. 269 Art. 27 CCPR can serve as an example here. 270 In this report a detailed analysis of minority protection cannot be given, cf. special literature such as Oxenknecht, and in an overview Heintze, in: Reiter, S. 62 ff. 271 Sanders, in: Tomuschat, p. 74 f. expresses an important point: minorities are without territory, and numerically spoken Indigenous Peoples became minorities as a result of a history of colonialism or State expansion. To be able to preserve the origins previous to the times that made them a minority, they still need protection by way of being qualified as "peoples". The line of argument that wants to neglect Indigenous Peoples their rights if they have assimilated too much to the surrounding country (some say that American Indians are no longer distinct, because they drink coke and eat pizza), can be countered

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right to determine themselves what happens in regard to own matters.272 In a similar conclusion Anaya finds that "whether or not by express reference to the term, an international consensus supports a norm concerning indigenous peoples which extends from self-determination’s jurisprudential core".273 In the Working Group on Indigenous Populations there is a conviction that the question of qualification as Indigenous Peoples must be characterised by "flexibility",274 which is why in the Draft Declaration there is no definition attempt.275 Some go even further in perpetuating that it cannot be a matter of international law or scholars to decide who belongs to peoples or groups, instead the law has to find "instruments that prohibit the discrimination of these groups to the largest extent possible".276 And although there has been a "rhetorical sensitivity ... [to use the term Right of Self-Determination, this] does not entail an aversion to extending selfdetermination’s conceptual core in favor of indigenous peoples".277 Therefore there is no difference between peoples in general and indigenous peoples, except for the political language that has wanted to restrict them from selfdetermination.278

2. "American Indians" as Indigenous Peoples

that no society remains unchanged and sovereign States are not neglected their sovereignty if they are copies of existing other States. 272 This list by Harhoff, in: Alfredsson, p. 174, who is not completely convinced of it, because he has doubts as to the not strictly objective viewpoint. The list however is convincing when used to establish autochtonous populations. 273 Anaya, ArizJICL, p. 38. 274 Conclusion by Daes, Report 1996, para. 68. 275 For the text of the Draft Declaration see e.g. Anaya, Appendix, p. 207 ff. 276 Heintze, ZaöRV 1990, p. 42; he refers to freedom of religion which can only be substantial if it does not define religion. 277 Anaya, ArizJICL, p. 34. 278 In the same terms: Daes, Report 1996, para. 72, exept for the fact that „gropus typically identified as "indigenous" have been unable to exercise the Right of Self-Determination by participating in the construction of a contemporary Nation-State. Similar conclusion Heintze, ZaöRV 1990, p. 46, who relies on the usually strongly developed feeling of belonging together within groups of native inhabitants.

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It is not an aim of this report to convert this general result to each possible bearer of the Right of Self-Determination in the group of indigenous peoples. Firstly, that must be the task of analysis work by ethnologists that are supported by jurists while collecting relevant data, secondly there are already a myriad of books on the still existing relevance of today's Indian tribes in the USA. In our report we can only show whether the Indians in the USA in general, because of tradition going back for centuries and the practice of the American system in dealing with them, can still be seen as entities that are plausible bearers of such a right. All we can conclude is that they have a legitimate claim for extensive selfdetermination if due to their status as relatively sovereign partner (even under consideration of a possible attempted termination for certain periods of time) they are Indigenous Peoples in the mentioned sense. Which tribes or nations exactly can claim the right and to what extent, remains a question of each individual case as is the one how much sense it makes claiming the right extensively. In order to find a result for the American Indians, the definition by Daes is a good starting point, because her attempt concludes a variety of other approaches: Indigenous Peoples are characterised by
"(a) priority in time, with respect to the occupation and use of a specific territory; (b) the voluntary perpetuation of cultural distinctiveness, which may include the aspects of language, social organization, religion and spiritual values, modes of production, laws and institutions; (c) self-identification, as well as recognition by other groups, or by State authorities, as a distinct collectivity; and (d) an experience of subjugation, marginalization, dispossession, exclusion or discrimination, whether or not these conditions persist."279

When one applies these criteria to Indians in America one finds that it is "undoubtedly true"280 that they are Indigenous Peoples. Some support this by

279 280

Daes, Report 1996, para. 69. Schneeweiß, p. 27: „... also the stricter criteria of peoples in a narrow sense are given with Indigenous Peoples"; however, he suggests a qualification as a „group sui generis", because they are in need of special protection mechanisms. Until these special mechanisms are established they can refer to the rights of both minorities and peoples, dito, p. 28. But Schneeweiß overlooks the question whether Indigenous Peoples are peoples anyway irrespective of special needs.

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pointing out that the development in the USA was no different to colonisation elsewhere in the world. 281 Although there is no precise, inclusive definition which can be applied in the same manner to all regions of the world282 and the conclusion will always be an individual question, there is no problem in conceding the result as being an Indigenous Peoples if there is a self-identification and acceptance by the group surrounding the Indigenous Peoples.283 According to this criteria, too, American Indians are clearly Indigenous Peoples.284 Therefore Decker's analysis of 1955 in his major book on the Right of SelfDetermination referring to Northern America ("Real national Self-determination problems are unknown in Northern America, in the USA there are not even nationality problems in the European sense... The wars of extinction against the American Indians have been substituted by a policy of preserving the remains of tribes and locking them in reservations.")285 is invalid today, instead "native Indians in... the United States" are one reference point for Western States regarding the application of the Right of Self-Determination in a "broader sense".286

3. Status of Indigenous Peoples in the USA in view of the Right of SelfDetermination It has been shown above that Indigenous Peoples exist in the USA that are possible bearers of the Right of Self-Determination. In the first part of this report the necessity has been found to examine the contents of the right depending on its bearer and the situation the claimant is in. Therefore, in this part it will be
281

Morris, GYIL, p. 298 ff. Even stricter Lâm, p. 118: "A settler State in the Americas is, after all, nothing other than a colonial State that suceeded so well that it did not have to go home". 282 Daes, Report 1996, para. 9. 283 Heintze, ZaöRV 1990, p. 43. 284 Heinz, p. 15. On p. 18 he also points out that the term cannot be used everywhere in the same manner, but that within the USA "this term could perform quite a helpful role in identifying communities". Also clearly accepting the Right of Self-Determination as a right possibly to be claimed by American Indians Dörr, in: VRÜ 1997, p. 23, for a specific Indian nation. 285 Decker, p. 54 f. 286 Cassese, p. 279.

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analysed what status the Indian Nations have in view of the applicable Right of Self-Determination. The history of the Indian Nations need not be presented in detail here, 287 but it is enough to point out that there is a long tradition stemming from the time previous to the founding of the USA and still continuing until present, to treat Indigenous Peoples as partly sovereign entities.288 This development begins with the treatment of the Indian Nations before independence of the USA as sovereign entities with whom one could conclude treaties.289 Although this practice continued well into the 19th century, the legal status of the Indian tribes was subsequently limited to only partly sovereign entities, whose sovereign status was inherent,290 but whose members lived in a ward-guardian relationship to the US government. Although after termination of treaty-making policy, the treaties already concluded are arguably still valid291 and from them a strong position derives; however, these Indian Nations cannot claim independence, because since those days the institutions of the US have established and performed an effective form of control which has turned the originally invalid historical title of power into a valid form of domination.292 The matter of original treaty relations and historical titles is only of limited interest in our context, because if one can actually argue according to that line that the

287 288

Extensively on this matter the works by Dörr; cf. also Fisch, p. 337-345; also Anaya, p. 9 - 26. "In essence, Indian Nations are no different from any other sovereign government", Halbritter, p. 197. 289 Doerr, Savages, p. 14, 22; Cohen, ch. 4, sec. a 1, p. 232 ff. That the lands inhabited by the Indigenous Peoples were not "terra nullius" (which was then argued, because those tribes were regarded as being uncivilized) has been shown convincingly by Fisch, p. 374 ff. and is now affirmed in Martinez, Third progress report, marg.no. 292. Cf. also ICJ Rep. 1975, Western Sahara Advisory Opinion, p. 12, 39 (no. 80). See finally Schmitz, p. 201. 290 The famous US Supreme Court decisions under Justice Marshall were an attempt at defining the status eternally, cf. the so-called trilogy: Johnson v. M'Intosh, 21 U.S. (8 Wheat.) 543 (1823), Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831) and Worcester v. Georgia 31 U.S. (6 Pet.) 515 (1832). 291 Martinez, Third Progress Report, marg.no. 276 ff. 292 Schmitz, p. 202, who sees this as "effective integration into territory". This viewpoint refers to the Right of Self-Determination as not being a means to return to the status quo ante, p. 202 bottom, cf. on this also Anaya, p. 83. One can see this differently, however, as e.g. Morris, in: www, who sees in the use of the Right of Self-Determination (including the possibility of secession) nothing else than the "exercise of inherent sovereign powers that have never been relinquished". Tomuschat, in: dito, p. 6, points out that maybe one day we will not know the USA any longer in the form of today, similarly as we had to give up our overcome conception of the Soviet Union.

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rights still exist for Indigenous Peoples293 , these claims would have an own standing next to the Right of Self-Determination. In our context this notion of possible remedy going as far as e.g. receiving returned lands or possibly even aiming at independence, is useful to underline294 the extensive legal status as peoples which can claim a very broad autonomy from the overall State USA. This result is confirmed by State practice, which will be shown for the USA specifically. Apart from the traditional jurisprudential line,295 also politically there have been clear commitments in the past decades to some form of Indian sovereignty: Already President Nixon declared in 1972 "self-determination as the key concept that would govern relations beween Indian tribes and the government of the U.S."296 in order to terminate termination policy. Later President Reagan announced in 1983 that "...the government-to-government relationship between the U.S. and Indian tribes had endured. ...consistently recognized a unique political relationship between Indian Tribes and the U.S. which this Administration pledges to uphold".297 When President Clinton invited Indian leaders to the White House his speech began with the words: "This is our first principle: respecting your values, your religions, your identity, and your sovereignty.... [We want to]... become full partners with the tribal nations".298 This viewpoint was made even more clear in a memorandum of the US Dept. of Justice: Clinton's position "builds on the firmly established federal policy of selfdetermination for Indian tribes".299 Although there is a certain amount of reservation by the American observer delegation at the Working Group for Indigenous Populations during discussion of the Draft Declaration referring to Article 3 (on self-determination),300 this is limited to the express use of the term

293 294

Which as has been said, is very likely. As Schmitz, p. 198, points out, the Right of Self-Determination is able to have an effect on determining the validity of historical titles on territories. 295 See supra. 296 Cited by Sanders, in: Tomuschat, p. 56. 297 Cited by Sanders, in: Tomuschat, p. 56 f. 298 Clinton, "Remarks to American Indian and Alaska Native Tribal Leaders", Apr. 29, 1994, 30 Weekly Compilation of Presidential Documents, No. 18, 941, 942. 299 Cited by Anaya, p. 144, fn. 29. 300 Cf. e.g. Report by Urrutia on discussion of certain paragraphs, no. 325: The representative of the US government said that it was a "...difficult question. [but the] ...Government (of the USA) ...recognized the

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"Right of Self-Determination", whereas the underlying rights as we have defined them here are not challenged. This means that although the USA have problems in using the term,301 they have granted - and still do so - the Indian tribes a position at which they treat them as governmental partners because it is their legal conviction that this is necessary.302 Two more aspects shall be mentioned to confirm this governmental position and opinio iuris of the USA: the commitment to the Helsinki Final Act303 and the participation in the Covenant on Civil and Political Rights procedure. When the USA first reported on their performance in securing the rights that derive from the Helsinki Final Act, they addressed the issue of "American Indians" under point 21 and stated previous to that: "This nationhood status and trust relationship has led American Indian tribes and organizations, and the U.S. Government to conclude that Indian rights issues fall under both Principle VII... and under Principle VIII... which addresses equal rights and the selfdetermination of peoples. [...] 21. The U.S. commitment to Indian selfdetermination is articulated .... designed to put Indians ... into a decision-making position with respect to their own lives."304 Later, the USA presented the subject "Native Americans" in its Initial State Report on commitments under the Covenant on Civil and Political Rights in the passage on Art. 1.305 Although the USA has declared Art. 1 through 27 CCPR as non self-executing - against strong criticism306 - the norm is still applicable and by including the Indigenous Peoples in the report under the provision of self-determination the USA have accepted the
right of tribal self-determination as a matter of law domestically,.... certain difficulties with its use internationally in this context" because of its open interpretation. 301 Cf. in this context also Barsh, HHRJ 1994, p. 77: "...the U.S. - a country that has always been indifferent or hostile to U.N. action on indigenous rights". 302 Barsh, ibid, also points out in fn. 208 that "U.S. positions have depended greatly on which Cabinet department was involved". The Labour Departement and Environmental Protection Agency backed the strongest pro-indigenous initiatives, "at U.N. human rights conferences, a State Dept. fiefdom, the U.S. continues to be defensive and negative". 303 As has been shown above, the ICJ used the US position in connection with the CSCE to find out their opinio iuris on the prohibition of force in the Nicaragua-case. Here the same will be done with the Right of Self-Determination. 304 "Fulfilling our Promises: The United States and the Helsinki Final Act" by the Commission on Security & Cooperation in the US, 1979. 305 UN Doc. CCPR/C/81/Add.4. 306 E.g. Paust, p. 1257 ff.; generally on this reservation see also Stewart, p. 77 ff.

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validity of this right for this group.307 It will be interesting to see, how the USA continues its participation in the Working Group on Indigenous Populations and also analyse the first follow-up report to the Human Rights Committee established according to the Covenant on Civil and Political Rights which was due last year. Another strong indication of the conviction of the US government can be found in relevant statements on the so-called Self-Governance Project308 which is being run as a model since a couple of years. Because it has not finally been evaluated, it will not be discussed here any further.309 Concluding this part, it has become evident that the USA is not trying to avoid the Right of Self-Determination for Indigenous Peoples as far as its contents is concerned, but the term because of its possible implications. However, in a final passage it must now be analysed whether the general acceptance of the right also brings a fulfilment that is sufficient for the demands of international law.

III. Legal consequences of the Right of Self-Determination when applied to the Indigenous Peoples in the USA

307

The idea of declaring the provisions as non self-executing means that there is no way of claiming a violation of the rights directly before American Courts. However, these can take the provisions of the CCPR into consideration when deciding on domestic cases, cf. on this HRC Observation Report on the USA-Report, para. 276. 308 Public Law 100-472, Title III. 309 Cf. instead Schneeweiß, p. 158-168. As an example the compact of self-governance between the "Duckwater Shoshone Tribe and the United States of America" includes in Article 1, sec. 2 c, the following words: "This Compact is to enable... the Duckwater Shoshone Tribe ....to.. take its rightful place in the family of governments in the federal constitutional system ... In fulfilling its resposibilities under the Compact, the ... Department will conduct all relations with the Duckwater Shoshone Tribe on a government-to-government basis."

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As has been shown in several contexts above, "territoriality is a crucial factor for self-government".310 Because the Indigenous Peoples in the USA live on territorial clearly set out areas (i.e. the reservations) to a great extent, they easily fulfil this necessary demand. Also, Indigenous Peoples usually have a stronger affiliation with the land on which they live than the State within which they live,311 chances are good that self-determination will be longed for within the existing State borders, as long as furthest possible autonomy on their own grounds is granted. There are three different positions upheld to establish into what category Indigenous Peoples must be included, from which also derives what legal consequence is opened. The first position sees the areas inhabited by Indigenous Peoples such as in the USA as a colonized territory within State boundaries. Therefore there has to be a balancing between the rights of the Indigenous Peoples and the State that has been established on the territory, which means the extent of autonomy is to be chosen individually within the particular State.312 Only "a denial of ... selfgovernment would give the peoples an option for independence".313 The Indigenous Peoples according to this viewpoint have some right to decolonization, but this is limited by the de-facto existence of the State. The degree of autonomy must reflect the concrete situation of the relevant People considering factors such
314

as

numbers,

territoriality,

extent

of

cultural

distinctiveness and so on.

According to position two, Indigenous Peoples have a right to internal selfdetermination in the same way as all other individuals or groups within the State. By granting this right, the State must recognise their distinctiveness and find decentralised solutions which are similar to autonomy regulations as described above. A complete denial of such a right could possibly justify secession.315
310 311

Sanders, in: Tomuschat, p. 70. Similar Heintze, ZaöRV 1990, p. 50 f. with reference to the Dene-Declaration regarding their struggle for self-determination within Canada. 312 Sanders, in: Tomuschat, p. 79. 313 ibid. 314 This position seems to be the majority view in the Working Group on Indigenous Populations. 315 This viewpoint is upheld by the Human Rights Committee under the CCPR that is generally a bit more cautious in assuming rights of groups.

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A third position finally wants to reduce Indigenous Peoples to cultural minorities and therefore also limit their claims to Art. 27 CCPR.316 The common ground is that all these positions rule out a general right of secession,317 while recognising such a right in particular circumstances. The proceedings in the Working Group on Indigenous Populations318 "make it very clear that if 'self-determination' survives in a declaration ...., it will have a particular meaning",319 which will be self-government or autonomy for territorially based Indigenous Peoples. External self-determination will then mean a "relationship of the Indigenous Peoples to the dominant society within which the indigenous entity forms a special unity standing by itself in independent existence of the accomodating State".320 With all of this, "autonomy [is the] appropriate structural response to the realities of continuing communities of Indigenous Peoples",321 it is the "best solution for the historically complicated relationship",322 which is especially true in the USA. This autonomy must be more than what is granted to minorities.323 The Draft Declaration on the Rights of Indigenous Peoples includes following paragraph 31:
"Indigenous peoples, as a specific form of exercising their right to selfdetermination, have the right to autonomy or self-government in matters relating to their internal and local affairs, including culture, religion, education,
316

However, according to Sanders, in: Tomuschat, p. 74, Indigenous Peoples should also have the protection as cultural minority as it can be derived from Art. 27 CCPR. 317 An interesting aspect is mentioned by Morris, in: www, where he claims, "secession" is only the true term if a "nation has been legitimately integrated into a State", otherwise it "can hardly be argued that the State has a lawful right to maintain that nation in bondage". 318 Although Alfredsson, in: Tomuschat, p. 53, supports political rights and autonomy for Indigenous Peoples as a good solution, he pleads instead of calling them forms of "internal self-determination" to keep them at their "proper names". He criticises that the Right of Self-Determination is "like a large umbrella which can give shelter to everybody’s claims" and the addition of the 's' to People in the Working Group is "intended to serve as a mere pacifier and as a way of avoiding external selfdetermination", which is why he fears this is misleading and wakes false expectations. He therefore demands a simple aim for autonomy and nothing more (which he sees as also being in the interest of States, because of "a likely increase in stability and prosperity"). The opposite however comes from Kiss, HRLJ 1986, p. 175, who supports a clear-cut approach and defines all peoples in every sense as bearers of a Right of Self-Determination. 319 Sanders, in: Tomuschat, p. 81. 320 Schneeweiß, p. 33. 321 Sanders, in: Tomuschat, p. 80. 322 Heintze, p. 53. Similar Kiss, HRLJ 1986, p. 173: "conciliation" between the two positions. 323 Critically on the concept of autonomy Lâm, p. 94 ff., because autonomy is only "granted", whilst a right comes from within a sovereign entity.

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information, media, health, housing, employment, social welfare, economic activities, land and resources management, environment and entry by nonmembers, as well as ways and means for financing these autonomous functions."

The Declaration, too, seeks a solution within the framework of existing States by creation of autonomous units.324 But this autonomy extends to a very broad field of subjects. Specifically, in the USA this means that overcome structures as they were set up by the government in the past - basically the Bureau of Indian Affairs (BIA)325 and the large number of Tribal governments created by the Indian Reorganization Act (IRA) in close cooperation with the BIA - do no longer have a right to exist. It must be up to the bearer of the right to extensive autonomy, which means each Tribe or Nation that actually qualifies as Peoples (a result that will be given with most American Indian Nations), to decide in bilateral or multilateral negotiations how the autonomy is arranged. This includes the possibility to maintain the structures as they are now, but it also allows the opposite. At this point the USA has been going wrong, even within the SelfGovernance Project, because it did not allow certain aspects of the relationship to be re-negotiated. Although in the USA the Indigenous Peoples’ "status as relatively autonomous groups with distinct collective rights seems secure",326 the rights need to be captured by writing them into treaties between the negotiating parties.327 Ideally there would not only be the international law demand of this autonomy right, but the USA would also agree on a certain procedure of monitoring of rights328 and also accept an international law jurisdiction on this matter. In such a case the USA would completely fulfil their obligations as they derive from international law and would thereby support the growing notion of human rights as binding rights.329
324 325

Musgrave, p. 177. The BIA is according to Morris, GYIL 1986, p. 303, a form of political colonisation. 326 Barsh, HHRJ 1994, p. 85, who assumes that the extent of this right will be the next issue. 327 Such compacts are already in use in the Self-Governance Project. 328 This monitoring process could be set up in the Working Group and include conciliation measures. Some suggestions along these terms have been brought forward. 329 Similar Heintze, Autonomy, p. 12, who shows that the rights of the Indigenous Peoples are important today, because in this area the evolution of the international law protection of human rights is happening.

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Das Selbstbestimmungsrecht der Völker, Köln/Wien, 1973, 2. ed. Grenzen des Selbstbestimmungsrecht: die Neuordnung Europas und das Selbstbestimmungsrecht der Völker, Graz/Wien/Köln, 1996 Native American Rights, San Diego, 1998 Das Subjekt des Selbstbestimmungsrecht, Blumenwitz/Meissner, p. 47 ff. in:

Roleff, Tamara L. (ed.) Rumpf, Helmut, Sanders, Douglas Schmitz, Gerald, Schneeweiß, Wolfram, Schweisfurth, Theodor Sieghart, Paul, Simma, Bruno (ed, Stewart, David P.

Self-Determination and Indigenous Peoples, in: Tomuschat 1993, p. 55 ff. Tibet und das Selbstbestimmungsrecht der Völker, Berlin 1998 Die rechtliche Stellung der Indianerstämme innerhalb der Vereinigten Staaten von Amerika, Frankfurt a.M., 1995 Zur Frage der Rechtsnatur, Verbindlichkeit und völkerrechtlichen Relevanz der KSZE-Schlußakte, in: ZaöRV 1976, p. 681 ff. The Lawful Rights of Mankind, Oxford/New York, 1985 Charta der Vereinten Nationen, Kommentar, München, 1991 U.S. Ratification of the Covenant on Civil and Political Rights: The Significance of the Reservations, Understandings and Delcarations, in: HRLJ 1993, p. 77 ff. Das Selbstbestimmungsrecht der Völker - Ein Überblick, in: AVR 1984, p 113 ff. Das Selbstbestimmungsrecht der Völker - mit einem Exkurs zur Jurafrage, Bern, 1976 (at the same time Diss. Zürich 1974) Das Selbstbestimmungsrecht der Völker und die Anerkennung neuer Staaten, in: Neuhold/Simma, p. 43 ff. Entwicklung, Inhalt und Träger des Selbstbestimmungsrecht, in: Reiter, p. 34 ff. Self-Determination, in: EPIL, p. 470 ff. Modern Law of Self-Determination, Dordrecht/Boston/London, 1993 (cited as: Tomuschat) Foreword, in: Tomuschat 1993, p. vii ff. Self-Determination in a Post-Colonial World, in: Tomuschat 1993, p. 1 ff. Staatsvolk ohne Staat?, in: Staat und Völkerrechtsordnung - FS für Karl Doehring 1989, p. 985 ff.

Thürer, Daniel, Thürer, Daniel, Thürer, Daniel, Thürer, Daniel, Thürer, Daniel, Tomuschat, Christian (ed.), Tomuschat, Christian, Tomuschat, Christian, Tomuschat, Christian,

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Urrutia, José

Indigenous Issues, Report of the Working Group established in accordance with Commission on Human Rights resolution 1995/32, 1997, UN Doc. E/CN.4/1997/102 Die Entwicklung des Blumenwitz/Meissner, p. 9 ff. Selbstbestimmungsrecht, nach in:

Veiter, Theodor, Veiter, Theodor, Veiter, Theodor, Verdross, Alfred/ Simma, Bruno, Villiger, Mark E. Wolfrum, Rüdiger, World Bank, Würtenberger, Thomas

Die Träger des Selbstbestimmungsrecht Auffassung, in: Kloss, p. 132 ff.

westlicher

Nationalitätenkonflikt und Volksgruppenrecht im ausgehenden 20. Jahrhundert, Bd. I, München, 1984 Universelles Völkerrecht, Berlin, 1984, 3. ed. Customary International Law Dordrecht/Boston/Lancaster, 1985 and Treaties,

United Nations: Law, Policies and Practice, Vol. 2, München, 1995, 2. ed. Economic Development and Tribal Peoples. Human Ecologic Considerations, Washington, July 1981 Stichwort "Autonomie", in: Achterberg, Norbert (ed.), Lexikon des Rechts, Rechtsphilosophie, 2/40, 1988

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The American Companion Report on the project

"The Right of Self-Determination of Peoples and its application regarding Indigenous Peoples in the USA" companion report to the project directed by Professor Dr Dieter Doerr at Mainz, Germany on behalf of the Mueller Law Offices Mark Mueller and Paula Wilson Austin, Texas

by Mr Ronald West Indigenous project specialist for the Mueller Law Offices

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Foreword This ‘Companion Report’ to the Project “The Right of Self-Determination of Peoples and its application regarding Indigenous Peoples in the USA” is an independent study in tandum with the project and report on The Right of SelfDetermination of Peoples and its application regarding Indigenous Peoples in the USA directed by Professor Dr Dieter Doerr at Mainz, Germany. It is with real graditude that the author of the ‘American Companion Report’ thanks the execellent abilites of Dr Doerr and his superb staff at Mainz for their assistance and wonderful hospitality at every turn, enabling myself to prepare this companion report in close consultation with their project on behalf of Mark Mueller and Paula Wilson. I would like to take this opportunity to also thank Marten Briese of the Association for the Support of the North American Indians at Berlin for the full week of time he generously provided me in consultation on the issues. I am particularly indebted to Marten for being my sounding board of the thorny issue of the both potential and actual problematic Human, Civil and Political rights violations of the present day Indian governments in relation to their own people. Having said that, I must further say that the contents of the American Companion Report is solely my responsibility and any failings contained in the pages that follow are my failings, not the failings of all the wonderful people, those noted here and many more besides, who have helped and encouraged me during the time leading up to the preparation of this report. And most of all, thank you to Mark Mueller and Paula Wilson and the Mueller Law Offices for the generous sponsorship enabling this work in tandum with the project at Mainz. This particular report is the result, ultimately, of coincidental circumstances spanning a period of some twentytwo years. As hard as I am on the Blackfeet government in the ensuing pages is largely the result of the kindness shown me by the Blackfeet traditional community when as a socially displaced Vietnam Veteran I ultimately found a refuge with with one of these families in 1977. These two old people who put me to work driving for them when they felt it necessary to pursue their healing practice, asked me to dicker for them to aquire hay from the white ranchers to feed their few cows, sometimes having me cut the ice from the lake behind their house so those cows could drink, put me on the road to social reintegration. Patiently and always with great consideration for who I was, they explained their world and history to me, always in the kindest terms they showed me who they had been and what they had become. They were not at all friendly, but even bitter, in the terms with which they described modern Tribal government, essentially seeing Tribal government as the usurpers of everything Indian, the worst offence being that it was Tribal government which

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set Indian people against one another and prevented all progress. These old people saw the world in old Indian forms, however fate had placed them in the new forms. They truly lived on the cusp of two Ages. Both are now long dead. In the following two decades I never let go of these initial few years with these very wonderful people and it influenced my life nearly completely. I learned to direct play of the Stick Game with success. Ten subsequent years were spent in close association with a traditional healer from another area of the same reservation, and I’ve lived in four different Blackfeet communities at different periods in the seventies and eighties. For most of the 1990’s I had been working part time on Pro Bono cases relating to either Blackfeet clients or Blackfeet issues in association with the Mueller Law Offices of Austin, Texas. Throughout these times in my life one thing has been readily apparent and that is the current situation of the tribes of the North American Indigenous Peoples is untenable. In recent years I have come to the conclusion that it is just as much my responsibility and business as a United States citizen as it is the responsibility or business of any Indigenous person to address the problems that follow in this report. My interest is legitimate in so far as it concerns me to resolve certain Human Rights issues relating to the United States and its Indigenous Peoples. I am a citizen of the United States and the record of rights abuses that can be laid at my door in that citizenship capacity is a record that I do not approve of. There will undoubetedly be parties on both sides of the issues who will take umbrage at the contents of the pages that follow and to them I say ‘welcome to the dialogue.’ Because that would be the object of this report. In as much as I may be faulted for my conclusions, I did not merely put down what is wrong, but seriously propose ideas to put it right. Beyond this I make no apologies for the format of this paper, I am a layman and self -educated. I can only hope there is something positive to be said for having tried to do something right. Ronald West December, 1998 At West Glacier, Montana Select appended documents exemplary of Plenary Powers 1 Keeping our word to the Indians – Campbell & McCain 2 Statement of Pearl Caapoeman-Baller

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Introduction The following report is based on the experience and observation of the status quo in US Indian country today and the findings of a legal research into the application of the Right of Self-Determination in International Law on Indigenous Peoples, especially in the United States. However, this is not merely a legal report to demonstrate certain requirements that need to be fulfilled. It is also a reminder of political situation that has to be attended to, and brought to a solution taking into consideration both the interests of the American people as a whole and the specific needs of the Indians as both individual persons and indigenous nations. There is certainly no doubt - and recent changes in American policy on this issue are a clear sign for it - that the situation cannot remain unchanged because the view of such an extensive historical and actual situation concerning the Human Rights legacy in the negative aspect is too much of a burden even for the world power of the United States in the next millenium. These policy changes need to be more than merely cosmetic. Equal to the interests of the Native American Indian Nations, it is in the interests of the United States of America to resolve equitably the Human, Civil and Political Rights issues which govern their reputation, the United States claiming to be a moral tour de force in todays community of nations. The report will address problems of the American Indian policy. The conclusion is unique in modern times because it is presented as a proposed solution in the form of a binding instrument of International Law. The report overall is unique in that it addresses not only the problems of compliance to international standards by the United States, but also details the problems of compliance concerning the indigenous nations themselves. The Blackfeet nation is especially used as an example primarily because of access over a number of years by the offices preparing this report. However, reliable informants in adjacent indigenous nations substantiate the proposal that the abuses of Human, Civil and Political rights by tribal governments are more than incidental to the Blackfeet330 and this is established
330

Interviews with Duncan Standing Rock, Indian legal advocate for many years, presently a tribal councilman at Rocky Boys Indian reservation south of Havre, Montana & Warren Matte, Gros Ventre Indian, Harvard graduate, former councilman on the Fort Belknap Indian Reservation, Montana.

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in the Congressional Record and American caselaw as well. But it cannot be overlooked that this situation is, however unfortunate, secondary to the problem of United States compliance with rights issues not least because the tribal problems in fact largely stem in their origins from the enforced Indian policy of the United States and the detritus of the vagaries of that policy which constitute Indian governments today. In that this latter event is demonstrably factual as put forward in this report, it must pre-emptively devastate any subsequent argument by the United States that its indigenous nations cannot in fact emancipate because it has been the United States which has prevented any positive political evolution of these nations.

The American Companion Report The historical development between about 1600 and the dawn of the twentieth century are common knowledge today presented in a veritable plethora of detailed books and reports, with the notable exception of the largely absent address of the legitimacy of treaties made by the western powers with indigenous nations in the body of international law.331 Also sparse in the literature is the detail of the multiple ways of discouraging Indian self-determination as a Peoples in the post Indian Wars period in the United States. In the case of the little attention given the the treaties by International Law, This can be easily attributed to the most interested parties, the indigenous nations, lacking a sophisticated capacity for study and pursuit of International Law and little motivation by the United States to provide the avenues of international law to these peoples. In the modern period, the lack of detail surrounding the multiple impediments to self determination is also likely attributable to the Indian nations own modern record of rights abuses which will not hold up well to scrutiny by the international community. This is not least because there appears to be an illegitimate vested

331

Cf. e.g. Dörr, The Controversy about the Oil Drilling in the Badger-Two Medicine Area, in: VRÜ 1997, p. 7 ff., p. 11.

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interest in certain contemporary native institutions which will end the enrichment of the few at the expense of the many were those illegitimate interests terminated. This is a source of shame to both tribal governments and the Bureau of Indian Affairs of the United States. The most damaging aspect of this particular is that the extent of the impediments to self determination goes unrevealed, effectively braking progess. The story of military conquest and occupation and subsequent poverty is then the front page, as is the making and breaking of treaties. The oppression by law and court rulings and the United States undermining self determination by creation of tribal governments subservient to the United States systems, and the abuses by those tribal governments, make up the substantive part of this paper. That the military victory of the white settlers over the original Indigenous Peoples of the continent has created the distribution of society as we know it today, cannot cover up that the dominant culture were conquerors of a land that was already in a civil state from the indigenous inhabitants understanding. From today's point of view of International Law, and widely regarded as unjust even then,332 the theory of terra nullius is invalid333 as is the idea of "savages" being uncivilized and therefore not human beings whose territory could be gained simply by occupation.334 Indian Tribes were asked to enter into Treaties such as peace or alliance treaties with the colonies or states. These are initial proof of

332

Cf. e.g Kant, Metaphysik der Sitten, Rechtslehre § 15, in: Weischedel (ed.), Gesammelte Werke, Vol. VII; esp. Vitoria, De Indis recenter inventis et de jure belli Hispanoram in Barbaros relectiones, Original Text ed. by Schätzel, Tübingen 1952; also Suárez, Tractatus tertius de charitate, Opera omnia, Vol. 23, Paris, 1858, p. 747 f.; comments on all of these: Dörr, „Savages“ and International Law, in: Law and State, Vol. 47, p. 7 ff., p. 8-9. 333 Cf. on criticism referring to this theory Fisch, Die europäische Expansion und das Völkerrecht, Stuttgart, 1984, p. 362-377, esp. p. 374-377 with further reading; cf. also ICJ Rep. 1975, Advisory Opinion on Western Sahara, p. 12 ff., p. 39 (no. 80); cf. in recent times High Court of Australia, Mabo vs. Queensland, 175 C.L.R. p. 1ff (1992) and its discussion in Anaya, Indigenous Peoples in International Law, New York/Oxford 1996, p. 138-140. Confirming this position: Martinez, Special Rapporteur to the U.N., Study on treaties, agreements and other constructive arrangements between States and indigenous populations, Final Report (Unedited Version 1998), no. 292. 334 This is already clear from the practice of States as far as treaty-making is concerned, cf. on this Dörr, p. 13 ff.; cf. also Cohen, Handbook of Federal Indian Law (1982 ed.), ed. by Strickland et al., ch. 2, sec. A 1, p. 55.

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their capacity as subjects of International Law.335 However, later it happenned that the Indian Nations only were reserved a certain amount of inherent sovereignty by the United States.336 This is one of the findings of US Supreme Court rulings337 in which the legal fiction was made to define the status of Indian Nations in the first part of the nineteenth century. This perspective of a wardguardian-relationship between Indian Nations and the US government pertained in actuality,338 if not in a 'de jure' sense and was the justification for extensive regulations through Congress, and eventually the policy of treaty-making was terminated.339 The newly so-defined domestic dependent nations were now subject to the decisions of general federal Indian policy which vacillated over the 150 years after these so called 'Cherokee Nation Decisions’.340 But the treaties made resulted in a position from which the Indian Nations today can claim an extensive amount of sovereignty.341 The perspective of conquest and the following centuries of oppression can not be regarded solely as a matter of domestic law, but must take into account the United States domestic law as evolved in the nineteenth century deviates from International law standards.342 A
335

Dörr p. 14, p. 22; the same, Die „Indian Nations and Tribes“ in Nordamerika und das Völkerrecht, in: JöR 1987, p. 489 ff., p. 503; Cohen , ch. 4, sec. A 1, p. 232-234, on similarity of the treaties with those beween foreign nations cf. also ch. 2, sec. B 1 a, p. 63; interesting also Anaya, p. 18 f. and on today’s significance of International Law p. 42. 336 Let it not be overlooked that this resignation of rights was largely made under extreme duress due to the technological superiority of the conquoring power to whom the rights were resigned or were a 'presumed' resignation by one side only- the United States. Similarly Martinez, no. 271; also see following footnote. 337 See 'Cherokee Nations' cases, opinions delivered by John Marshall: Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831) and Worcester v. Georgia 31 U.S. (6 Pet.) 515 (1832) [esp. p. 559], earlier relevant case Johnson v. M’Intosh, 21 U.S. (8 Wheat.) 543 (1823). More recently confirming Merrion and Bayless v. Jicarilla Apache Tribe, 455 U.S. 130 (1982), p. 147, 149. 338 As will be seen, the United States is a very bad Guardian; see on the mentioned concept also US v. Kagama, 118 U.S. 375 (1886), p. 383 f. More recently US v. Mitchell 463 U.S. 206 (1983, Mitchell II), p. 225 with reference to several other cases. 339 Indian Appropriation Act of March 3, 1871, 16 Stat. 544, 566; however the courts found subsequent "Agreements" subject to the same legal interpretation in United States courts as the former "Treaties", cf. e.g. Cohen, ch. 2, sec. B 1i, p. 107, text at fn. 373. But this is of little positive consequence when one considers the full offense against the treaties in law via the 'plenary powers' & 'political question' doctrines stemming from the Marshall decisions, cf. on these questions Lone Wolf v. Hitchcock, 187 U.S. 553 (1903), p. 565 f., according to which even the abrogation of treaties is possible.
341

Cf. Martinez, no. 270, 276 ff. (in which he shows that the Treaties in general are still valid) and 293 in which therefore the validity of „nation“-status still continues. He even extends these findings to Indigenous Peoples that didn’t enter into Treaties, no. 290. Cf. also Dörr, p. 19 f. 342 Possibly because of the stature of Marshall as an icon in the annals of law, either few have dared or no one has noticed those who would challenge his premise in the case of the Cherokee Nations (see, however,

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further view would be that the United States implicitly renounced the greater policy of control over the indigenous nations which stemmed from the Marshall decisions when it declared for the Right of Self Determination of Peoples at the Helsinki Final Act.343 It is a remarkable fact that little more than a century ago, though in the vast majority militarily defeated already, there were still Indians living a free life on American land with their own forms of government, behavior and laws. These times that predate attempts at asassimilation as we know the term today are still very close. As of this writing one can actually find living Indians who as young children sat on the laps of native individuals formerly free and listened to the stories of the old days when the buffalo herds were still the main habitants of the plains, when Sundances were still the major national event of the plains Indians and happened undisturbed, when Indians lived their own way of life. A life different to their life today, very different to the life of the conquering white man, different already in the sense of their understanding of nature and their surroundings. Though surprising in the first instance that it is not only a reflection of myth and legends in books and films, on second sight one has to concede that nothing remained the same after the white man had entered this domain of the indigenous nations. In the beginnings Indian Nations and Tribes were treated as sovereign nations who were capable of signing treaties on a level of equality, reflecting the western civilasations geopolitic of the era and the need to make military alliances pertinent to the situation of the warring European powers. After,
Wilkins, American Indian Soverignty and the U.S. Supreme Court, Austin, 1997, p. 21-38). But his decisions are at odds with the facts developed by Martinez in his report, see previous footnote, esp. no. 274 where he shows that Art. 27 of Vienna Convention on the Law of Treaties reflects law that was already valid in the days of conquest. 343 Point VIII of so-called Basket I of the „Final Act of the Conference on Security and Cooperation in Europe („Helsinki Final Act“, 1975) addresses the „Equal rights and self-determination of Peoples“. In reporting on „Fulfilling our Promises: The United States and the Helsinki Final Act“ the Commission on Security & Cooperation in the US clearly states previous to point 21: „This nationhood status and trust relationship has led American Indian tribes and organizations, and the U.S. Government to conclude that Indian rights issues fall under both Priciple VII.... and under Principle VIII...“. Cf. in this context further Then-President Nixon’s address in which he qualified „Self-Determination as the key concept that would govern relations between Indian tribes and the government of the U.S.“ (as cited by Sanders, in: Tomuschat (ed.), Modern Law of Self-Determination, Dordrecht, 1993, p. 56).

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reflecting the emancipation of the English colonies and the creation of the USA, treaties were ratified to oppress Indians and the military was chosen as the means of pursuing the United States policy of Manifest Destiny. The defeat of the native nations was inevitable and the treatment of the Indians became genocidal comparing well to contemporary definitions of the term.344 After driving these nations into remote and largely unwanted geographic regions (and in some cases into extinction) and restricting their right of movement to these "reservations", the American government began deleting rights of the individual Indian.345 Communal lands were divided, assigned to individuals and subsequently 'managed' by the agents of the United States . Soon after having been defeated the Indians had to learn another lesson: in many cases only the Indians willing to assimilate survived the ongoing process of oppression.346 The rebels in the lines of the tribes would relentlessly be oppressed so as to be extinguished as culturally identifiable. But also the tribesmen and women that would have to accept a growing amount of assimilation only survived as prisoners in the country that was now white man's territory through the United States policy of enforced anglo centric education, resorting to kidnapping of Native children into government approved or sponsored 'boarding schools'.347 American Indian policy has been changing flags over the past 150 years from the dispossesion of land to forced assimilation, then with the introduction of the Indian Reorganization Act, later assimilation by termination and finally self344

E.g. Sand Creek massacre of Black Kettles Cheynnes, the Heavy Runner massacre on the Marias, the two 'trails of tears' Jacksons forced relocation of the so called 'civilized nations' & Carsons ''escort' of the Navajos, ect,ect,ect., are not much, if different at all, from recent events in Bosnia and Kosovo; cf. also title of book by Thornton, American Indian Holocaust and Survival, Norman/London, 1987. 345 In as much as the ward /guardian relationship extends to individual indians and their real property in trust, not only to tribes. 346 E.g. United States Indian Claims Commission: report of Michael Foley, narrative, remarks regarding the additude towards the followers of the "pagan" Blackfeet chief Three Suns vs followers of the Christian chief White Calf. 347 E.g. Rocky Boys band of Indians fleeing the Blackfeet reservation into the night, leaving fires burning in their abandoned lodges to decoy the cavalry regiment guarding them, on account of orders for the Indian police to forcibly detain their children to be sent to these government schools, Oral History of the Rocky Boys- Duncan Standing Rock. "A Cavalry regiment was Stationed at Starr School", Montana, on the Blackfeet reservation "into the 1930s", statement of Judge Arrowtop, retired tribal judge. A continuing pattern of forced assimilation is modern individual state educational requirements seemingly inextricably bound to the tribes in many cases through the hopeless tangle of cross jurisdiction, largely a legacy arising

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determination without termination, but with subservient tribal governments continued subjugation to the ongoing 'plenary powers' of Congress over Indian affairs. This last is perhaps the greatest stumbling block to the United States conforming to contemporary standards of international law on the greater question of the "self determination of Peoples" and the USA commitment at Helsinki (CSCE.) In this context it should also be pointed out that the Native perspective of history is still largely unrepresented, even if several authors have attempted at reconstructing authentic documents that could show the other side's perspective. The lack of knowledge is due to the fact that pen and paper as much as bookprint were a reserved domain of the white man and originally Indians did not share this habit. Oral ways of passing on history meant the danger of certain stories dying with the circumstance of modern time. And those early documents that exist often are an improper account of the real beliefs because the narrators were either fearing consequences of what they were saying having been persecuted with the American Indian Religeous Crimes Codes of the USA or otherwise gave an inadequate version of their thoughts, often also wrongly translated.348 Sovereignty according to International Law versus the United States model349 Treaty-making was the early sign of recognition of the Indian Tribes being possesed of full national soveriegnity although this was subsequently limited in
from the homestead acts and land distribution policies relating to congressional acts whereby Indian trust lands are subject to 'fee patents' and come into individual state jurisdictions. 348 As must be presumed concerning the Blackfeet land cession agreement of 1895-96, see previous reference to report of Michael Foley, and also Amicus Curiae of Floyd Heavy Runner in the cause of 'The United States v Desrosier' in the Federal District Court at Great Falls, Montana, cause remanded by the ninth circuit, original action of the United States subsequently expunged, a smooth avoidance of the United States facing a serious treaty question, refund of fines paid by Blackfeet Indian Desrosier to the Federal government occurred. 349 Interested parties on this point may refer to Santa Clara Pueblo v Martinez, 436 U.S. 49 (1978), which traces a juris prudence history of the sovereign status of tribes from the United States point of view, including reference cases (p. 55 ff.). Interestingly, this case appears on its face to underscore the establishment in United States law of the American tribes as the greater 'Peoples' in the context of

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its exercise. In the three Marshall-decisions the status of the Indian Nations was defined by the US Supreme Court as domestic dependent nations, which is taken to mean to the United States that Indian Nations are not foreign Nations in relation to the US because they reside on its territory, but are distinct from a federal state. In the ward-guardian-relationship the Indians are essentially children to the whites350 and Congress was meant to pass laws only if they were in the best interest of the Indians (an oxymoron in actuality).351 As these laws were able to change the contents of Treaties without consent of the other signatory, it must be nearly more than questionable under todays standard whether this relationship between these two sides is permissible. The contents of such laws were generally not interdicted by courts because the US Supreme Court has often applied the political question & plenary powers doctrines in these cases when it has been asked to decide about the validity of such laws. Especially as in the cases where the laws violated the terms of treaties and ominously, federal courts have declined to intervene where individual Indians have claimed civil rights violations by the United States created tribal councils.352 In modern litigation the courts have shown small signs of a changing viewpoint in these matters and has concluded several times that recognized Indian Tribes still posess an inherent sovereignty that extends not only to a personal sovereignty over the members of the Tribe, but also a territorial one over the area allocated to the Tribe by the US,353 but the issues of individual Indians access to democratic norms and access to justice remains problematic.354
international law, as opposed to the 'people' of a minority. Although the court in its language uses the term 'people', throughout, the context is that of 'People(s)', in which case, of course, 'Peoples' prevails. 350 Reflected very literally in the minutes of any of the several treaties with the tribes, witness the baby talk of the agents of the United States invariably addressing the "Red Children of the Great White Father", which coincidentally seems to reflect the idea that any 'God' could not be possesed of native philosphies. 351 Dörr, p. 14; cf. also Lone Wolf v Hitchcock, esp. p. 566. 352 These Indian Reorganisation Act constituted tribal governments are of questionable ligitamacy (cf. also Cohen, ch. 4, sec. C1, p. 247). With histories of human rights violations and having been foisted upon these nations, largely, they do not represent any form of native government that would be recognizable as having been involved in the antecedent treaty making process. The Oral Constitutional governments of the treaty making tribes in most cases have been in modern times, repressed, sidelined and in many cases through forced anglo educations, these oral histories are in fact extinquished. 353 See above and Dörr, p. 502. 354 Floyd Heavy Runner v The Blackfeet Tribal Business Council, 1990, this traditional Indian sued in tribal court to prevent the tribal council appointing 'cultural negotiators' on his behalf, relating to the

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The forms of sovereignty supported by International Law (not least because the US government in reporting on the Final Act of Helsinki (CSCE) confirmed its understanding of the Indian Nations as possesed of certain sovereign powers, e.g. the right of self determination as Peoples),355 are at odds with the given facts of the several Indian tribes in todays USA. This must be understood as an extensive sovereignty from which a genuine right to self-determination derives,356 not the defacto pretenses presently entertained by the United States policies and domestic legal theorems. This sovereignty is only limited by the fact that these Indian nations live on territory that is controlled in total by the United States, an extra legal event. Individual Indians are denied their rights by tribal councils foisted upon them by the USA, Indian Peoples as well.357 determine for the tribes how the tribes evolve. The often cited 'sovereignty' of Indian Nations on their reservations, as so often stated by the United States, is factually demonstrated a mock sovereignty of design by the United States bearing little resemblence to the soveriegnity entitled to 'Peoples'. Although originally the Tribes were regarded and treated as sovereign entities when they were invited to sign treaties, they were
proposed oil and gas development on an extraterritorial area adjacent to the present Blackfeet tribal boundaries, where the tribe retained rights and historical Blackfeet religious ceremonies are performed. Heavy Runner maintained the appointments were the eqivalent of the President of the United States appointing the membership of the board of the National Council of Churches, unthinkable under American doctrines of law. The appointments also violated tennants of the Blackfeet historic oral constitution. Heavy Runner, through the tribal court, attempted to convene the oral constitution of the tribe for the first time since the United States mandated Indian Reorganization Act Blackfeet constitution of 1936. Initially the tribal judge was sympathetic to the arguments of Heavy Runner, but suddenly ruled against him before trial, then resigned her job and left town. Heavy Runner appealed the dismissil of his cause and the case has been, as far as the author is aware, left unruled on nine years as of this writing, consigned by the Blackfeet appellate court to the ash bin of history. Because of the United States Federal ruling in Santa Clara Pueblo, there is no avenue of remedy as the writ of Mandamus is forbidden to Heavy Runner in the federal court. It should be noted here that tribal judges serve at the pleasue of the tribal council and the tribal council may overturn the tribal courts decisions. This renders the Indian Civil Rights Act of 1968 meaningless. This system is set up under the Indian Reorganization Act of Congress, allowed for by the plenary powers doctrine. 355 Dörr, p. 23. 356 On the significance of the Right of Self-Determination in today’s International Law: Thürer, SelfDetermination, in: EPIL, p. 470 ff.; cf. also supporting a universal approach to its application Martinez, no. 260. It is a different question to be discussed, to what extent this right will reach. 357 On incompatibility of this with International Law provisions see Anaya, p. 112.

If in fact self

determination were actualized, the Congress would not with ‘plenary powers’

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subsequently, with military defeat, stripped of those rights unilaterally, and in that it cannot be argued that the United States was not persistently the agressor, it stands to form that the United States being patently in the wrong of the law, must devise a legal fiction to protect its ill gotten gains. This is in respect to the native nations as occupied and conquered peoples who lost the possibility of keeping up their traditional forms of politics and exercising soveriegn powers in the ensuing period, but this fact has not crushed their legal title as nations, ironically, because the United States through its vaccillations failed to destroy their identity altogether. True, they had to concede to the White Man's domination and therefore the general attitude in Indian country was forced towards „mainstream", but they were in the end preserved intact in community and nearly coincidentally, not much thanks to the United States, these indigenous nations survived. True, the former theocratic republican forms of government that had existed for centuries based on oral constitutions that were passed on from generation to generation could but with difficulty survive this development,358 but in several cases they have, in one form or another, covertly or overtly. And in those cases where they did not, they have none the less preserved a tribal identity as Peoples, distinct from those of the people of the United States, as evidenced by the existence of the Bureau of Indian Affairs and all of its purported duties and

358

In the tradition of the oral constitution always certain people were in charge of knowing the laws of the indigenous nations, and were the source of the rules for communal behaviour. The collective body of these learned people who constituted the oral constitution included all the necessary knowledge on indigenous governmental proceedings. After the final victory of the conquerors it became more and more difficult to live within these traditional boundaries. With the advent of the American Indian Religious Crimes Codes, one more congressional act under plenary powers, large parts of the originnal governmental practice of Indians were prohibited. Because of the nature of the theocratic republican forms within the Indigenous Peoples' Communities this oppression at the same time meant the loss of traditional schemes of government as practised by the Indians and also the loss of the treaty concluding body on the native side. Instead of being able to decide themselves what was to happen on their land they increasingly became dependent on the Indian Agent that was in charge of their respective territory. Originally Indian Affairs were managed by the Department of War, later by the Department of the Interior which created the still existing Bureau of Indian Affairs. Those Indian Agents had and have extensive power with which they could and can influence what happens on a reservation. Already this fact shows how little real sovereignty Indian Nations actually exercise. Under the new Indian 'self governance' proposition, strongly detested by more traditional Indian leaders as a new step in the direction of loss of actual soveriegnity (position of Duncan Standing Rock, tribal councilman, Rocky Boys Reservation, Montana) where the superficial forms of the relationship are changed, but no substantive event in relationship to the plenary powers and political question doctrines. On the Self-Governance Project Schneeweiß, Die rechtliche Stellung der Indianerstämme innerhalb der Vereinigten Staaten von Amerika, Frankfurt, 1995, p. 158-168.

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responsibilities. It would be a lot more precise to describe the treatment of the Indian Nations and Tribes as sub-sovereign peoples; formally they were granted a significant extent of sovereignty but in actual fact they could not efficiently live these rights because according to the plenary powers doctrine the American Congress has the power to decide their fate. In other words, according to this doctrine (as interpreted by the Supreme Court) it was alone in the hands of the Congress to decide on anything connected with Indian Affairs as long as this was done in best interest of the ward in the ward-guardian-relationship. The problem is that this „care" could have gone so far as to extinguish the cultural distinctiveness of Indian Nations by completely and forcefully assimilating them and if it was deemed in the best intrests of the Indians, their title as nations could be extinguished. This tendency didn't yet prevail but the result of more than 150 years of Congressional care is still one of a very dominated object of care pursuant to the political wishes and economic constraints put forward by certain parties who more properly should be excluded from the equation.359 The situation is comparable to a foster child that has to be looked after by the state and that should be looked after in a way that leads into growing up to become selfdependent. Well, with the Indians, this process has never taken place. The US government never wanted the Indian Nations to grow up and the actuality is more of the regent who persistently loots the minor kings estate and moreover, the child never comes into his own.360 In the 1930's the ward/guardian relationship was refined by the Indian Reorganization Act: for federally recognised tribes small governmental units were created and only few of the Tribes were able to resist the introduction of this new
359

E.g. in 1998 United States Federal Senators Slade Gorton and Conrad Burns (Washington State and Montana State respectively) put forward legislative proposals which under plenary powers doctrine would have stripped tribes of civil jurisdiction over resident non tribal members within reservation boundaries. Additionally, these states have long histories of exausting tribal resources through protracted litagations which are expensive and treasury draining. 360 As of 1998, some 2.5 billions of $US is unaccounted for at the Bureau of Indian Affairs despite a years old mandate of the Congress demanding an accounting.. the government idea that the monies were properly applied but the records are lost is simply ludicrous. That the Indian treasury was looted is the most probable explanation, one only has to review the habits of Indian administration from the records and reports of the United States Indian Claims Commission to draw this conclusion.

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system.361 The new governmental units - the so-called Tribal Councils- are a toy parliament that do not reflect the special historical aspects of different Tribes, do not in many cases honor tribal law and or for that matter, do not honor any form of reasonable, honorable, representative or democratic norms.362 In future they were to be „in charge" of the Tribe's affairs in cooperation with the Indian agent. Although these Tribal constitutions were purportedly given consent by the people, the mode of voting in many cases causes an unrepresentative result.363 On the one hand, initially, only the assimilated tribal members were chosen as candidates and apart from that, many if not most traditional Indians - the ones that had kept up their cultural integrity by going underground - didn't accept this system of governmental representation and therefore didn't take part in the alien elections system for many years, a traditional means of discounting the legitimacy of these events. This dilemma still exists in some respect today in the tribes where Tribal councils have proven to be corrupt and inefficient
361 362

On this matter see Cohen, ch. 2, sec. D2. The Blackfeet tribal business council is a case in point ad naseum. Beginning with the IRA constitution of 1936, 'Christianized' Indians who had the support of the resident Indian Agent of the United States held an election coincidentally timed to the absence of the majority tribal membership who had trekked to Canada to attend native religious ceremonies (Old Person, Bear Walter, Heavy Runner, Oral History) for which they could have been prosecuted under the religious crimes codes had the rites been held in the United States. Presuming Joe Brown, the president of the election board supervising the election, was honest when he certified himself first tribal chairman of the first ever IRA Blackfeet tribal council, then under the rules mandated by the plenary powers of the United States, Mr Brown elected himself by a simple majority of 50% + 1 of the necessary 1/3 tribal membership participating. In other words, with that Blackfeet population most opposed to the result absent, 17 percent of the elgible tribal voters brought in the present system and the result was mandated by the United States. The constitution thus mandated replaced the Oral Constitution in practice although the Oral Constitution was theoretically preserved under the short clause 'reserved powers ..' But this was never clarified or enabled subsequently. In practice, under the written constitution, there are no working checks and balances, no independent judiciary, election laws patently violate one man, one vote (candidates for districts are elected by a general population vote- the equivalent of statewide voting for membership representation irrespective of a Congressional District.In fact this allows families or corrupt associations from the center to control who will represent the districts regardless of that districts peoples preference), and it would certainly appear on its face that a cabal (countenanced by the USA) of tribal government against its own people has resulted. Not least in supporting this view is the fact that federal prosecutors had been provided hard documentation relating to financial corruption, apparently contenanced by the US in tribal government (tribal credit audit provided with cover letter to US Attorney for Montana by Floyd Heavy Runner, receipt acknowledged) because charges were not pursued, but not so very long after, avowed Blackfeet nationalist Councilwoman Marlene Bear Walter, a supporter of traditional leader Heavy Runner who is also a nationalist, was brought up on a flimsy corruption charge by the US Attorney and turned out of office before a Jury could find her innocent in a subsequent trial in federal court (United States v Marlene Bear Walter et al, 1998. These events deserve further investigation, but asking the United States Attorney whose provence it is to investigate is a case of the fox caring for the chickens). 363 See previous footnote.

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administrators of tribal monies and are largely consumed with protectiong the status quo. Taking into consideration how closely leadership and Native religious practice is connected for many traditionals, and the aforementioned problems of administration, it cannot come as a surprise that political leaders in the sense of a modern democratic system do not command the respect of the traditional community leaders in Indian country. And speaking of democratic forms of representation is problematic, because of the nature of the introduction of this system. And it is the tribes like that of the Blackfeet which are presently operating under the problematic United States manufactured constitutions that present very poorly. In the case of the Blackfeet, they have an amazingly rich natural resource (compared to many tribes) co-managed with the oversight of the Bureau of Indian Affairs. Most Blackfeet live in poverty. Today a huge amount of Indian owned funds is missing from the books of the Bureau of Indian Affairs whose closely wedded relationship to the corrupt tribal councils is profoundly disturbing. It is evident that the so-called sovereignty of the tribes, lately referred to in the self-governance project, is relative, as it is still in the hands of Congress to decide on their fate. Moreover, power today in many instances rests in the hands of corrupt individuals, families or cabals that form Tribal Councils and reach reelection again and again through suspect process. This de-facto-situation in many regions of the US is one of the real reasons why United States promise at Helsinki remains unfulfilled. Instead of real management of their own resources the Tribes are dependent on their suspect representatives and the corrupt or incompetent BIA to hope for an efficient distribution of governmental monies and management of these resources. The problem is that it is very difficult for individual Tribal members to find a legal way of fighting this situation as they are not allowed as individuals to proceed to regular American Courts with affairs that concern their reservation. On the other hand the Tribal Council is often the highest inner-reservation appeal court and therefore problems remain unresolved. This situation also shows that the romantic ideal of Indian heroes is a complete distortion and „power corrupts, absolute power corrupts absolutely” has

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its truths for these peoples as well, largely in the present circumstance due to the administrations of the United States.

As has been noted, Indian Nations entered Treaty obligations with the predecessors of the US, the former colonial powers, but also with the United States themselves. These Treaties in their major part were ratified as agreements between two sovereign entities in International Law. However, there is no reason to believe that the obligations from these Treaties ceased after the Congress decided that it had the right to change them by Act whenever it wanted to. It actually needs to be validated in each and every case, whether Congress, when ending the contents of a Treaty had the real consent of the Indians.364 In most cases this would be a difficult cause for the United States. As justified legal representatives of the original signatory party, under contemporary standards of International Law, today's members of the Indian Tribes can and should be able to claim their rights as manifested in these Treaties. Of course reality dictates that the tribes also realize they cannot expect to revert to the status quo of centuries past.365 However the federal land resource is significant enough that land repatriation is a viable means of the United States doing some justice to the indigenous nations in the event of honoring solemn treaties and international law and the rights of self determination of Peoples. Only recently a study on the validity of the treaties has been completed within the UN by Special Rapporteur Mr Miguel Alfonso Martinez. It deals with the question of validity of Treaties between Indigenous Peoples in general and States. One of its conclusions is that the original Treaties are still valid and in force unless it was decided differently by all contracting parties.366 But to arrive at this as a factual event is not a question only of the superior power allowing its legal obligations to come to rights, but it is also a question of the tribes willingness and ability to perform the considerable
364 365

Cf. also Martinez, no. 277. That the status quo ante cannot be aimed at is also Anaya’s conclusion, p. 83 f.

.

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work of putting their respective houses in order. The author would not presume to suggest the considerable resource to which the tribes are historically/legally entitled be gifted to some of the mock entities doing business in the several tribes names today. But equitable remedies are attainable, as is suggested in the concluding portion of this document. As the US is a signatory state to several Human Rights compacts,367 and furthermore, it has a list of Rights, enumerated and unenumerated, which must respected for each and every citizen of the USA per its constitution, particular care should be exercised in the address of the problems developed in this paper. And because of the extra-constitutional nature of its relationship with the several tribes, and the fine mess the United States has created demonstrating its control of the affairs of those same tribes with the political question and plenary powers doctrines, it is a natural consequential event that these questions would come to the attention of those bodies concerned with the proper application of norms in International Law, not in the least because nations are held captive in a quasi legal apartheid368 which must be demonstrated to be the case upon close scrutiny of the indigenous cause in fact as it exists in the United States. Simply put, The United States of America is in patent violation of the Helsinki Final Act and as severely, the International Covenant on Civil and Political Rights, an ultimate irony as the International Covenant in particular was inspired by the fundamental freedoms garranteed any American citizen (who is not perchance a resident of one of the reservations held aside for the indigenous population.)

367

In this context the International Covenant on Civil and Political Rights should be mentioned explicitly. On the problem that the US declared Art. 1 through 27 to be non self-executing see Paust, Avoiding „fraudulent“ executive policy, in: DePaul LR Vol. 42, p. 1257 ff.; it is also worth pointing out that the US refers to the subject of „Native Americans“ in its initial state party report (UN Doc. CCPR/C/81/Ad..4) under Art. 1 which entails the right of self-determination. On the fact that non self-executing means no direct claim before courts, see also explaining report of the U.S. (UN Doc. A/50/40, para. 276), where it is pointed out, however, that the courts can take the CCPR into consideration in litigation. 368 Similar Savage, The great secret about federal indian law, in: NYURLSC, Vol. 20, p. 343 ff., 343f.

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To put forward the question why the situation as described previously remains unresolved in light of the knowledge of the real circumstance in detail and those circumstances incompatibility with the constitutional expectations of the United States for its own citizens is a gordian knot and perhaps requires a mythic solution. It is manifold reason superficially. But the major reason for the unchanged structures is the fact that treaties exist. There is strong evidence in International Law that these Treaties, entered into between equally sovereign entities, are still law that needs to be respected. Should this point of view prevail the economic consequences would be no less than a massive blow. For the US the financial impact could be staggering. These treaties refer to land rights as much as the right of exploitation of resources. In numerous cases it is evident, sometimes ruled on by the Supreme Court, that the treaties were broken or neglected. If the US Government started to return rights because of breach of treaties and pay remedies it could be a Pandora's box. Investors would be frightened away, property rights unclarified. In other places one would have to make new accomodations with existing titles properly reinvested in indigenous nations. However, not respecting the contents of treaties and not admitting the oppression of the Native peoples in the past continuing into today means adding to a negative Human Rights record. The international community is showing a growing interest in such matters and therefore it can only be negative if a leading State like the USA presents a bad example. Observing everyday life on Indian reservations, it is a fact that apart from the lucky ones that have gained a certain wealth with the income from gaming, poverty is very widespread. Although Indians are formally American citizens when they leave their reservations, they are not a representative minority of the American society, have little political clout and are going nowhere without some greater institution of justice by the United States. Unemployment, poverty down to starvation, suicide and drug abuse rates etc. are worse than in other American disadvantaged areas or groups. The perpetuity of this situation means a constant breach of Human Rights obligations as they stem from international accords in this field. The concurrent problem is that in many cases the elected Tribal Council members nowadays may be the

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worst abusers of Human Rights on reservations and that they keep the fulfilment of these rights efficiently away from individual Tribal Members by all means, protecting a quid pro quo relationship that is enriching for the few at the dire expense of the many. Especially vicious cases of this have cropped up in the past quarter century and caused tremendous legitimacy problems for the United States in the areas of Human and Political rights.369 As Human Rights and their respect in every country are a growing factor in the geo-politic of the world today, it is necessary to resolve national problems despite the possible economic consequences in order to have a legitimate right to claim the respect of basic Human Rights. Should the US consistently refrain from tackling this dilemma, there will be a day when it must rebound. This could result in more severe problems than actually trying to find new solutions for the problems of today. The policy of self-governance may be the right term, however superimposing or juxtaposing it to the existing institutions is a false implementation. And without genuine remedy and redress, it is fairly meaningless in relation to the treaties. In the example of Helsinki, the United States reconition of the right of self determination of Peoples coupled with the the principle of ‘no nation can go against its own acts,’370 should be seen as a total abandoning of Plenary Powers of Congress over the affairs of Native American indigenous institutions of government. It can further be shown that most distinctive Tribal communities within the US are plausable bearers of the right of self-determination because they form an Indigenous Peoples371 and have legal, political relationships demonstrated in the caselaw of the United States as is briefly examined by the court in the case of Santa Clara Pueblo v Martinez.372 The open question is to

369

The biography of Leonard Peltier, 'In the Spirit of Crazy Horse' by the acclaimed author Peter Matthiessen leaves little reason to disallow Peltier is a political prisoner directly resulting from the USA supporting a murderous man controlling a tribal council. Any controversy subsequent to this, such as the FBI agents death, simply stems from this primary fact. Seperately, in the 1980s, the Chippewas at Red Lakes, Minnesota, burned their tribal headquarters to the ground. Given the history of tribal councils, one could reasonably accept the meaning of that action on its face. 370 Cf. also Martinez, no. 272. 371 Cf. definition attempt by Daes, Working Paper on „Standard-Setting Activities: Evolution of Standards concerning the Rights of Indigenous People“, 1996 (UN Doc. E/CN.4/Sub 2/AC.4/1996/2), para. 69; same result Schneeweiß, p. 27.

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what extent this right can be practicably applied. It will not give the American Indian Nations the right to a present day foreign alliance and war powers strictly from a point of practicability, but yet it also does not give the USA the right to tightly control the affairs of the native nations. Self-determination of peoples in this sense means that the bearers have the right not only within existing frameworks to decide freely on their status, but moreover that the Indian Nations can even question the framework itself.373 Real self-detemination374 means that the question of how they want to be represented needs to be answered by each Tribe individually. It can result in a discarding of the American implemented system of governmental representation375 through Tribal Councils in favour of traditional political structures. Certainly the validity of the native nations claims are bolstered where they have struggled to retain cultural identity against all odds. Cultural self-determination is of little difference to the right of self determination of Peoples and is essential if the Tribes want to save what makes them different to the majority of the US population and insure their continuing legal justification to exist as separate entities. Political autonomy on all matters that are of interest for the reservation is another important aspect of the right of self-determination as applicable for Indian Nations. It can include a redefinition of juridical applications on reservations and alternative ways of conflict-resolving. For a genuine politically autonomous group there must also be a real means to safeguard the rightfulness of political behaviour within the historic forms of that people. But at the present time, in certainly documentable cases, it is a reach to presume things could be much worse for the native individual who wishes to retain his or her national identity within the parameters of the present day relationship and its quasi legal aspects. It is the US government's undeniable duty to respect the described right of self-determination and where it is favoured by the Indians, to try and find new solutions and agreements with the respective
373 374

On the aspect of self-government where this is especially the case Anaya, p. 109-112. On the question of extent cf. Lâm, The legal value of Self-Determination: Vision or Inconvenience?, in: People or Peoples; Equality, Autonomy and Self-Determination, International Centre for Human Rights and Democratic Development (ed.), Montreal, 1996, p. 79 ff., p. 109, 111 with reference to Daes’ conclusions. 375 Cf. Savage, p. 346.

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tribes to fulfil International Law obligations. It is possible that as a result of additionally granted de jure self-determination, the diversity and cultural life of the Tribes will increase again into shapes more resembling the past, potentially a very positive development as applicable to the reordering of tribal governments. This would be a logical consequence of their capacity as Peoples. The right of self-determination is to be regarded as the proper mechanism which enables Indigenous Peoples to secure their survival as distinct entities. States such as the USA have a special obligation to carefully examine what rights specifically derive from the general right of self-determination and then allow for Tribes to realize these rights. As has already been described in long terms the main instance for political and legal representation of individuals of Indian Tribes is the Tribal government, i.e. today the Tribal Councils. The problem however is that these government representatives are often no real representation of the Indian community and therefore are questionably legitimate. Often the more respected leaders are the religious traditional people and elders that used to work underground, during the period of the American Indian Religious Crimes Codes. So the question remains both from the point of legitimacy as well as legally who is the real spokesperson of the Indigenous peoples in their diverse Tribal units. Under consideration of the elements listed in this statement it is clear that the cultural leaders, where they still exist and where there is a real chance of reintroducing the oral constitutions, need to be considered more in the future. Many Tribal Councils have been incapable in the past to work for the benefit of their Tribe. Many if not most of the Tribes' development has not evolved under the present system and many places in Indian reservations are real ghettos. The reservations are often the final remains of land on the American continent that the moving frontier didn't want. Therefore, events in these remote areas are of only minor political interest except in those cases where extractable resources are discovered, previously unknown. Otherwise these peoples only come into sight if there is a rebellion as e.g. during Wounded Knee. In opposition to the mismanagement by many Tribal Councils there is a real chance that under traditional forms of government things could improve for the Tribes. Cultural

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leaders that follow the laws of the old theocratic republican forms, without personal interest, are perhaps not likely to be so pervasively corrupt. Reincorporated as a check on the abuse of power, the traditional element would also invigorate the ligitmacy of the treaties from the native communal point of view. No Indian nation in history began its relationship with the United States with a stated intent of being stripped naked of its resources and laden in chains with the present curtails on their freedoms imposed by the United States through the various legal fictions and theorems as constituted in plenary powers and the dodge of judicial responsibility through the political question doctrine. Where today school books still educate Indian pupils in history on the proposed fact that Columbus first discovered America, an abuse when mandated in Indian country, it is necessary to shift emphasis to the cultural specifics of the alternative Indian philosphy of life where it is still diverse from mainstream American life, and it must be entertained that the western norms of education may not be appropriate for these people. There is a lot of letting go necessary for the USA to meet the international standard of the right of self determination of Peoples. Many tribes in the US have only survived as distinct cultural entities because they upheld their oral constitution, their cultural diversity against every offense. This source could be relieved if the Tribal Councils as they work today would be restricted in their scope of power or be more observed as to abuse of power and violation of Human Rights, constant patterns of behaviours malevolent to the individual, too long countenanced by the United States. It has been a long fight to stay Indian, but if one observes with open eyes he or she becomes very aware that the diversity is still significant and therefore these tribes have a right to determine themselves by whom and how they are lead politically, within certain ethical constraints that are due to the modern basic standard, or for that matter, the world community, but most of all, due to their own Peoples. And so long as the Congress presumes to continue its dictatorial ‘plenary powers’, not only is the right of self determination concerning these tribes a political lie as put forward by the United States, but the abuses of the Indian peoples by modern tribal governments must also be laid squarely at the United States door.

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CONCLUSION the healing treaty.376

PREAMBLE For reasons diverse as they are longstanding, We the Peoples of the

undersigned Native Indigenous Nations and we the undersigned People of the United States of America do solemnly enter into a self executing treaty bound by the sacred cause of Nations, valid as to the evolving contemporary norms of International Law, binding on the Native Nations pursuant to their historical laws and binding on the United States of America per the Supremacy Clause of the Constitution of the same.

Article one Be it recognized that this treaty is effected to promote the cause of healing between the United States and its indigenous nations. Its instruments are construed to be the equitable address of the problems of conquest and the subsequent disentanglement of affairs between the United States and those nations formerly conquored. In that the United States incurred an international law obligation respecting the right of self determination of Peoples at the time of its signing the Helsinki Final Act, the Organization on Security and Cooperation in Europe will be the primary vehicle utilized to implement these instruments.

376

Immanual Kant published his treatise on International Law 'Schrift zum ewigen Frieden' in the form of a treaty of Peace.

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Article two Citizenship. Within the boundaries of the Greater United States It will be recognized that the indigenous peoples are independently citizens of those nations they have residence within, pursuant and subject to the laws of the same, and are garranteed47 fundamental human freedoms within the context of those nations, undiminished as to residence. Those indigenous persons who as individuals choose residence in the United States exterior to the boundaries of indigenous nations shall freely enjoy all rights and responsibilities of citizenship of the same United States, however in the recognition of precendence and first occupation of this land, excepting the limited case of individuals referred to in article twenty of this treaty, the indigenous nations are reserved the right to determine their own membership for purposes of citizenship and the attending rights and responsibilities pursuant to the historic character of those nations. Article three United States citizens as resident aliens within indigenous nations. The indigenous nations will respect the life, liberties and property of resident persons which are citizens of the USA and not citizens of indigenous nations, within the context of civil law according to traditions and culture of those nations and according to the norms of international law. No alien or other person deemed to be of alien character will be subject to unlawful incarceration or torture, but may be expelled for acts of reckless disregard concerning the laws and customs of that country. No person so expelled shall retain any residual rights within that nation.

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Article four The United States will pursue and punish citizens of the United States who commit crimes against the indigenous nations and its resident citizens and/or will pay or compel to be paid traditional reparations for injury in a measure equitable for the injury done.

Article five The indigenous nations shall not harbor fugitives from justice who have transgressed the criminal statutes constituting felonies in the United States irrespective of citizenship, and intentional harboring by private individuals who are resident indigenous citizens shall be extraditable crimes, subject to the statutory laws of the United States. This shall be the sole extriditable crime for acts not commited on the territory of the United States exterior to the boundaries of the indigenous nations, excluding joint tennancy lands to be defined. Article six By means of per capita percentages pertaining to resident indigenous nationals of the respective indigenous nations, by a formula of each nations resident enrollment as of 1998 compared against the whole of the resident enrolled indigenous people of the United States, as this treaty is by each indigenous nation adopted, the total budget and staff of the Bureau of Indian Affairs of the United States set at the 1998 fiscal year shall be reduced accordingly, and 50% each of such segment of the previous budget now deleted shall be passed on to those signatory indigenous nations in the form of direct aid constituting reparations for a clearly constituted but now past oppression against the

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indigenous nations of the United States of America. This reparation responsibility of the United States shall continue to the year 2050, or for 50 years following the the depositing of the accords and implementation of these instruments by the United States, the intent being to fiscally penalize any party which delays adoption, the late signing indigenous nations not being entitled to retroactive monies and the United States 50 year obligation initializing with the first indigenous nations entering into this treaty with the United States. The said payments of reparations to the indigenous nations shall be adjusted for inflation per annum. Where the aforementioned formula is demonstrably unfair to smaller or poorer indigenous nations, it may be modified by the OSCE personel assigned to the project of this treaties implementation, however any such modification may not substantially alter the intent of this article, nor spare the extinction of those portions of the budget and staff of the Bureau of Indian Affairs administering the indigenous nation coming into this treaty. Additionally, there is no appeal of any such modification, however modifications may not bring the sum total of the per annum reparations of the United States to exceed 60% of the BIA budget at the 1998 level presuming a total indigenous population entering into this treaty. As well, modifications may take into account richer indigenous nations vis a vis the poorer. However in recognition of principle and factual history, no indigenous nations undersigned will be excluded from payment of reparations. It is the presumption of this article that the deleted administrative costs through the reduction and eventual extinction of the Bureau of Indian affairs will actually increase the direct monetary amounts directed to the tribes. To this end, It shall be the separate responsibility of the United States to reassign, buy out or otherwise recompense the civil servants whose jobs shall be terminated. Article seven The Helsinki Commission of the United States shall monitor and foster, but may not impede or delay the implementation of this treaty in good faith. Further, following the signatories to the treaty, and the preceding articles implementation,

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each nation represented herin will submit to binding international arbitration through the international body constituting the Organization on Security and Cooperation in Europe subject to the following articles reservations. Article eight Each party to treaty claims between the indigenous nations and the United States shall shall be entitled to exercise one veto of member OSCE nations at arbitration. This shall be construed to be one indigenous nation may exercise one veto only for purposes of disqualifying any OSCE member nation from participating in arbitration over its claims in total against the United States, and the United States shall exercise a single veto disqualifying any OSCE member nation participating in the cause of each indigenous nations claim in total.

Article nine The United States will not foreclose on the repatriation of lands to the indigenous nations However, the indigenous nations will not seek enforcement of the historic treaties to a degree that is grevious in injury to the econmy of the people of the United States. Wherever possible, a joint tennancy shall be determined according to the principles that the United States shall preserve and protect the natural state of the joint tennancy lands consistent with the philosphies of the indigenous nations at the times the treaties were made, subject to subsistence living habits by the indigenous nations that are not greviously ecologically injurious and consistent with the technologies availiable to the indigenous nations at the times those treaties were made. Within these parameters, each nations citizens shall be subject to their own national regulations upon the joint tennancy lands, and further, each nations citizens shall be construed to be within their own

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national jurisdictions in joint tennancy. All parties pledge to honor and cooperate in the protection of the joint tennancy, respecting each others rights and responsibilities and refraining from interfering in the lawful activites of the other, and each nation will be diligent in curtailing provocations of the other nation by their respective citizens. Persistent or blatant and serious offenders shall as individuals be expelled for life from joint tennancy lands and in this case only, subsequently, forfeit their respective national jurisdiction claims and after notice to the civil authority of the other nation, may be apprehended and subject to the rule of law by the authorities from either jurisdiction if trespassing on the joint tennancy at any time after life expulsion. Life expulsion may solely originate from either jurisdiction to include any person, upon showing good cause. Nothing in this article shall be construed to prohibit or limit the establishment of separate joint jurisdictional agreements between the parties mutually consensual. in relationship to the management of the joint tennancies, so long as the separate agreement is

Article ten The United States shall in fact repatriate to each indigenous nation one portion of federal land that is demonstrated to be of religious or cultural significance in those cases necessary to preserve the historical integrity of the culture and politic of that indigenous nation, including those nations presently landless or without treaties. This land will revert to sole indigenous title not subject to joint tennancy. These portions, upon the request of a signatory nation, will be subject to the OSCE arbitration.

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Article eleven The indigenous nations abiding in the United States of America are subject to a limited international law capacity, forsaking foriegn political alliances and a war powers capacity. However they are not prohibited from economic alliance consumated amoung themselves or with nations historically and presently friendly to the United States. A forsaking of the war powers shall not be construed to prohibit the traditional roles of the historic warrior societies in the fulfilling of their duties in the police capacity. Article twelve Within the context of their traditions conformed to modern standards of international law, the indigenous nations shall abide by the intent of the International Covenant on Civil and Political Rights and Declaration on Human Rights. Article thirteen In the event that there are satisfactory documentations of pattern abuses of Human, Civil or Political Rights within the indigenous nations, or control of those nations or their affairs or economies by recognizable Racketeering Influenced Corrupt Organizations, the United States shall invite the OSCE body concerned with civil rights to monitor the United States concurrent taking of supervisory control over that indigenous nation, utilizing the Federal Judiciary via the legal mechanism of the Consent Decree, consent here implied. All other mechanisms previously used to control the affairs of the indigenous nations by the United States are nullified, explicitly plenary powers. The United States may not control the Indigenous nations political life or affairs under any other parameters. the Universal

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Article fourteen The indigenous nations may utilize the OSCE expertise in becoming expert at managing their affairs both in relation to internal civil and economic affairs as well as external economic affairs and international economic relations in full freedom as emancipated nations subject only to the limitations enumerated in this treaty. Article fifteen The indigenous nations shall not be impeded by the United States from using any applicable international legal mechanisms seeking advisory opinions relevent to the full and fair implementation of these enumerated articles and the rights retained therin pursuant to the established and accepted norms of international law. Nor shall the United States deny access to the judiciary of the USA by the indigenous nations for the purpose of binding the USA to its responsibilities under this covenant. The indigenous nations may exercise the option of vesting the Supreme Court of the United States with original jurisdiction, however, the Supreme Court of the United States may then relegate the cause to the care of an equal numbered body constituting a special master. Such a body shall comprise emminently qualified jurists who are declared under oath apolitical as regards the cause at hand proceeding under the rules of original jurisdiction as govern the Supreme Court. The opinion delivered is the same as that had the Supreme Court delivered itsself under original jurisdiction. In the event the Supreme Court declines the result of the body acting as special master, then the Original Jurisdiction may not be again relegated to a body constituting a special master but must reside in the Supreme Court of the United States. A cause not brought in the original jurisdiction of the Supreme Court at its inception shall be compelled to the rules of procedure originating in the Federal District Courts.

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Article sixteen The indigenous nations will not subsequently seek status greater than that

granted within the instruments of this treaty at the level of the United Nations. Article seventeen The form of adoption of this treaty by the indigenous nations shall be by plebicite. Upon any first majority vote within any indigenous nation, that indigenous nation shall be irrevocably bound to this treaty as will be the United States in relation to that indigenous nation. The indigenous nations shall be required to debate within their respective communities the implications of adopting this treaty for a period of not less than one year previous to the first plebicite vote. This debate shall be opened to all community organizations at the grassroots level and may not be strictly controlled by any civil authority, tribal or otherwise. No United States civil service employee may participate in or influence this debate from within the function of their offices. The debate may be monitored by the OSCE upon a general community request. The plebicite itsself shall in fact be supervised by the OSCE. Article eighteen Those indigenous nations presently primarily governed by Indian

Reorganization Act constitutions shall also at the time of the primary treaty plebicite be entitled to vote on replacing those IRA constitutions in total, also by plebicite. Article nineteen Upon adoption by plebicite of the treaty, contrary language within the current indigenous working constitutions not with standing, any indigenous nation party

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to this treaty will become possessed of an independent judiciary. This judiciary may be in the traditional western form, or according to the customary cultural norms of that nation. In those nations where the indigenous oral constitution has survived into the present times, that constituted body shall be entitled to sit in a senate capacity with yea or nay powers over acts of the tribal councils introduced in previous times by the United States so long as the IRA councils continue to be employed by these nations or until the nations revert to the customary form of government which had entered into the original treaties with the United States. This shall not preclude the indigenous nations evolving new forms of representative government within the general context of the original philosphies of those nations conformed to the general principles of the International Covenant on Civil and Political Rights. Article twenty In the interests of civil peace, correction of the greater injustice and in the interests of a smooth transition concerning this emancipation of the indigenous nations, and in the interests of closure both for the indigenous nations and the United States, all those residents of indigenous nations, whether citizens therein or no, who forswear this treaty may, within five years of its adpotion by both parties, by application to the United States be entitled to quit claim their real property within the boundaries of that indigenous nation and be granted real property of similar value exterior to the boundaries of that indigenous nation at as reasonable a proximity as possible in interest of continuing relationship of community and family unless such proximity be waived. Indigenous citizens who exercise this option are solely citizens of the United States thereafter, and reapplication for citizenship to that indigenous nation shall not be recognized. All non indigenous citizens who fail to exercise this option become in fact propertied resident aliens of the nation which they reside, subject to its civil authority, previous fee patent or homestead grandfathered, but subject to the tax and laws

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of that nation solely. The indigenous nations are free to grant or refuse subsequent citizenship to these persons as their laws may allow.

Article twentyone Concerning the relocation of individuals per application, as determined in the preceding article twenty, and recognizing difficulties concerning the varied interest in the public lands subject to surrender to meet this undertaking, The federal courts of the United States are entitled to cautiously suspend application of any public land law impeding this transition restricted to the sole purpose of enabling article twenty of this treaty. tennancy. Article twentytwo Upon the first adoption of these instruments by any native indigenous nation of the United States, The United States shall deposit these accords with the Organization on Security and Cooperation in Europe declaring this treaty to be appended to the United States adoption of the Helsinki Final Act. The United States will provide the necessary funding for the OSCE to necessary assistance as detailed in the instruments preceeding. actualize the For purposes of the entitled proximity relocation pursuant to article twenty, these relocations shall not be located in joint

Finis

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Appended documents Notes on appended documents
1 Keeping out word to the Indians, a Washington Post editorial by United States Republican Senators Ben Nighthorse Campbell and John McCain, is not entirely accurate in its referral to the Indian Civil Rights Act of 1968. The much referred to Santa Clara Pueblo case in this report is dated 1978, so it should be clear that the Indian Civil Rights Act of 1968 could only pertain in Tribal courts, i.e. Tribal councils which would not necessarily enforce it and is a subsequently feel good law of the paternalistic Congress with no real effect.

KEEPING OUR WORD TO THE INDIANS By Ben Nighthorse Campbell and John McCain Wednesday, September 10, 1997; Page A21 The Washington Post Throughout our tenure as chairmen of the Senate Committee on Indian Affairs, we have worked to eliminate the outdated, paternalistic federal relationship with Indian tribes and replace it with a new one emphasizing tribal self-determination. This policy, first articulated by President Nixon in 1970, provides Native Americans with greater control over their lives by replacing decisions made by bureaucrats in Washington with decisions made by the elected representatives of each tribe. Section 120 of the Fiscal Year 1998 Senate Interior Appropriations Bill undermines a 25-year policy of self-determination by requiring tribes to waive their sovereign immunity from suit before they can receive federal funds. Without this immunity, which is held by both the federal and state governments, tribes will cease to exist as independent self-governing people. Every decision made by every tribal government could be challenged in federal court. But Indian tribes did not sign treaties with federal judges. The Constitution vests Congress with responsibility for the nation's dealing with Indian tribes and the president with the authority to negotiate treaties with tribes. Nowhere does the Constitution indicate that unelected judges should exercise such unprecedented authority over Indian tribes. Along with four former chairmen of the Indian Affairs Committee, we object to this drastic change in policy. Not only would this proposal take from Indian people their ability to govern themselves, it violates both the treaties with the tribes and the Constitution, which recognizes tribes as sovereign entities like states. In addition, since this proposal comes to the Senate floor attached to a spending bill, without the benefit of legislative hearings, it also creates a number of practical problems no one has begun to consider.

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When the United States negotiated treaties with the Indian nations in exchange for millions of acres of land, the federal government promised to act as a trustee for Indian lands and resources and to allow tribes to manage their own affairs. This proposal does the opposite. Although Congress may amend or modify the sovereign rights retained by tribes, it must, by law, do so in a manner that serves the best interests of tribes. Requiring tribes to forfeit their immunity from suit comes nowhere close to meeting that test. The effect of this proposal cannot be overstated. Funds that are now used by tribal governments to provide basic governmental services -- health care, education, housing, law enforcement and fire protection -- will have to be redirected to addressing the demands of increased litigation. Often those suits will involve purely internal matters, such as challenges to tribal membership determinations. At a time when the federal policy of tribal self-determination and self-governance seeks to relieve tribal governments of their dependency on federal funding, this measure will make it necessary for tribes to seek new federal assistance to address the staggering costs associated with protracted and expensive litigation. As one federal court of appeals observed in 1895: "As rich as the Choctaw Nation is said to be in lands and money, it would soon be impoverished if it was subject to the jurisdiction of courts, and required to respond to all demands which private parties chose to [bring] against it. The intention of Congress to confer such a jurisdiction upon any court would have to be expressed in plain and unambiguous terms." Because the federal government holds legal title to Indian lands, it will be a necessary party to many of the ensuing lawsuits, generating huge legal bills of its own. No one has assessed the impact of Section 120 on the American taxpayer, which is especially important in the wake of our recently enacted budgetary objectives. Nor has any analysis been undertaken of the effect this section would have on our already overburdened federal court system. This proposal also preys on the neediest of tribes by attaching the waiver to federal funds targeted at addressing the most critical areas of need in Indian country. Tribes with the most limited tribal resources, the highest unemployment and the weakest economies will lose their ability to govern themselves. Those who survive by cutting basicgovernmental services will retain their immunity. The section also discriminates by singling out tribes. Every state receives federal funds for a variety of uses, yet none is being asked to give up its sovereignty.

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Some have argued that this section is necessary because Indian tribes and their members are "completely immune" from lawsuits. This simply is not true. Indians can be sued just like any other citizen. Anyone subject to tribal taxation or regulation of any kind may bring suit in federal court to challenge a tribe's authority. Tribes, like states, are not immune from suits by the federal government. Also like states, tribes frequently waive their immunity in business transactions, or in order to allow their insurance carriers to pay claims. Tribes can be sued for civil rights violations under a law enacted by Congress in 1968. The status of the indigenous people in American society is a national embarrassment, attributable in large part to our nation's shameful history of violating treaties with the Indians. At a time when some tribes are beginning to break the cycle of poverty and hopelessness that has traditionally characterized life on most Indian reservations, Section 120 threatens tribal governments with litigation and liability that even the federal government with its immense resources does not allow. It is easy to treat Indians this way. They don't form large voting blocs and most cannot afford the kind of access in Washington other Americans have. They are truly the "silent minority." We call on the Senate to join us in standing up for Indian people and preserving their right to govern themselves. We made promises to the Indians; let's keep our word. Ben Nighthorse Campbell, a Republican senator from Colorado, is chairman of the Senate Committee on Indian Affairs. John McCain, a Republican senator from Arizona, was chairman of the committee in the 104th Congress.

STATEMENT OF PEARL CAPOEMAN-BALLER, PRESIDENT QUINAULT INDIAN NATION FOR THE OVERSIGHT HEARING ON THE SPECIAL TRUSTEE'S STRATEGIC PLAN FOR THE MANAGEMENT OF INDIAN TRUST FUNDS BEFORE THE COMMITTEE ON INDIAN AFFAIRS UNITED STATES SENATE JULY 30, 1997 Mr. Chairman and Members of the Committee:

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My name is Pearl Capoeman-Baller; I am the President of the Quinault Indian Nation. On behalf of the Nation, I want to thank Chairman Campbell and the members of this Committee for holding this hearing today and for the leadership which the Committee has provided on the issue of trust fund management over the last twelve years. As a result of your leadership and concern, we have seen some promising changes in the management of Tribal and individual Indian trust funds. We are here today to discuss the Special Trustee's Strategic Plan which would completely revise the way in which the United States carries out its responsibilities for managing Indian trust funds and resources. Although we appreciate the fact that significant effort has gone into developing the Plan, the Quinault Nation must go on record as opposing major portions of the Plan: we are opposed to the creation of the American Indian Trust and Development Administration as proposed; we are opposed to the creation of the American Indian Trust Development Bank as proposed; and we are opposed to the transfer of trust resources management out of the Bureau of Indian Affairs in the manner proposed. Events Leading to the Development of the Strategic Plan In 1994, the Congress enacted Pub. L. 103-412, the American Indian Trust Fund Management Reform Act. The Act established the Office of Special Trustee within the Department of Interior. After Mr. Homan was selected as the Special Trustee, Secretary Babbitt transferred the Office of Trust Fund Management (OTFM) out of the BIA and placed it directly under the supervision of the Special Trustee. Once the transfer was complete, trust fund account holders began to see signs of positive change, including: the recruitment and employment of a more qualified staff for OTFM; the development of the OMNI system to provide trust fund account holders with accurate and reliable account information; and improved management of the trust fund investment portfolio through a contract with Banker's Trust in New York. In addition, final regulations allowing Tribes the opportunity to manage their own trust funds were issued. A few Tribes have taken the steps necessary to remove their funds from OTFM. Despite this progress, many important issues have not been addressed. OTFM still does not have an effective accounts receivable ledger - account holders still do not know whether the amounts paid into their accounts are the amounts actually due or whether payments are being posted to the proper accounts. From the perspective of the Quinault Indian Nation, some of the most damaged aspects of the trust system - probate, appraisals and land status records - have been all but ignored. Backlogs in the Department's handling of the probate of the estates of individual allottees, appraisals of trust lands and the recording of land

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status records for allottees and Tribes have increased appreciably over the past 3 years and, consequently, it will become nearly impossible to repair whole parts of the trust fund system as the damage increases. Elements of the Special Trustee's Strategic Plan In order to address the continuing deficiencies in the management of trust funds, the Special Trustee developed his Strategic Plan. As we understand the Plan, it calls for the complete transfer of the "duties, responsibilities, budgets and activities" for trust resource management, trust funds management and land and title records management from the Department of the Interior to the American Indian Trust and Development Administration (AITDA). Phase One of the Plan is estimated to cost $154.4 million over two years. Phase I - Creation of the AITDA Proposed Staffing - Contractual Requirements The Plan provides that some staff of the Department of the Interior will be transferred to AITDA while other staff engaged in the management of Indian land and natural resources at the Bureau of Indian Affairs, the Minerals Management Service, the Bureau of Land Management and with the Self-Governance tribes will remain in place. The Plan calls for AITDA to contract with the Department and the Self-Governance Tribes to perform some of the trust services and activities. In the contract with AITDA, the Department and the Self-Governance Tribes would be required to agree: (1) to be financially liable for their management activities; (2) to submit to the jurisdiction of the Federal courts for purposes of claims arising out of their management activities; and (3) "to operate under the regulations, standards, policies and procedures . . . established and maintained by AITDA." Governance AITDA would be governed by a five member Board of Directors, appointed by the President and confirmed by the Senate. Three of the Board members would be members of federally-recognized Indian Tribes. Two of the Board members would be required to have substantial skill and experience in finance, trust asset management and accounting. Operation AITDA would be a Government Sponsored Enterprise (GSE) similar to the Farm Credit System. It would be operated on terms which are commonly applied to private sector trust departments and would be held to the "prudent investor"

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standard. AITDA would acquire and implement a trust asset and accounting management system which will: (1) provide a new management information system for land and natural resource management; (2) provide an accounts receivable and collection system; (3) provide accurate and timely account status information; and (4) provide a general ledger and general accounting system. AITDA would also acquire a land records and title recordation and certification system. Land Consolidation The Strategic Plan calls for the Congress to enact legislation to provide for the consolidation of fractionated ownership interests in allotments and to prevent further fractionation. This would be combined with efforts to eliminate the probate backlog, the appraisal backlog and the defects in land and trust account records. Phase II - Creation of the American Indian Trust Development Bank Phase II of the final Plan calls for the establishment of the American Indian Trust Development Bank as a subsidiary of AITDA. The Bank would be governed by the AITDA Board. It would offer banking, trust and financial services exclusively for Tribes and individual Indians at fees which are "commensurate" with the private sector. The Bank would be capitalized with $500 million from the federal government and would be eligible to borrow an additional $3 billion from the federal government. The Plan calls for the Bank to be "cooperatively" owned by Tribes and Indians residing on or near reservations. Quinault Indian Nation's Concerns about the Plan as Proposed Mr. Chairman, we are concerned that the solutions to the trust fund management problems which are proposed in the Strategic Plan will not lead to the necessary improvements in management. More significantly, we are concerned that the Plan ignores the very foundation of the federal/tribal relationship: we do not understand how a five member board of directors can be vested with the authority to impose management standards on Self-Governance Tribes, much less why such a Board should be authorized to initiate legal proceedings against the Tribes. We do not understand why our Trustee demands that we waive our sovereign immunity as a precondition for contracting to manage our own assets. Fiscal Reality. To implement the Plan, Congress must appropriate $154.4 million

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during two fiscal years. We all know that the Appropriations Subcommittee on Interior and Related Agencies has a fixed amount of money that it can appropriate in any year. Requests for new funds, particularly large amounts of new funds, can only be granted if some activities which are currently funded are eliminated or severely cut back. Where will the money for the Strategic Plan be found? Which Indian programs will be reduced or eliminated to pay for the Strategic Plan? It is notable that there is absolutely no discussion of this in the Strategic Plan. Accountability and Liability. While the Strategic Plan would subject other federal agencies and Self-Governance tribes to suits in the federal courts, we note that nowhere in the Strategic Plan are there provisions for suits by trust fund account holders against AITDA for any purpose. It appears to us that the Plan assumes that the Board of AITDA will always exercise perfect judgment and that the staff of AITDA will never make an error in the management of our funds and trust resources. Equally troubling is the fact that the Strategic Plan appears to assume that the records transferred to other federal agencies and Self-Governance tribes will be of sufficient quality and reliability to allow for the proper administration of the trust assets. This assumption simply ignores the known facts about the inadequacy of the existing records. It seems clear that the Strategic Plan needs to be revised to incorporate provisions to hold the federal agencies and the Self-Governance tribes harmless from liability arising out of the transfer of inadequate records from AITDA if this aspect of the Special Trustee's proposal is to receive any serious consideration. Of course, providing the necessary immunity from liability probably would also require the establishment of a federal fund to pay claims arising from the inadequacy of any records received from AITDA. Capability of the Board. Although the Strategic Plan calls for the Board to assume all responsibility for the management of Indian trust resources, it does not make any provision to ensure that the members of the Board will possess the broad range of education and experience which would be required for the proper discharge of this responsibility. Indian trust resources are diverse in nature and spread over a vast geographic area. The Plan only calls for expertise in the management of trust funds but ignores the capabilities required to adequately manage trust resources. The Development Bank. It is not clear to us whether the Special Trustee intends the $500 million to capitalize the Bank as a settlement for the past and continuing

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mismanagement of the trust funds and trust resources. It is difficult for us to imagine that the Congress would provide the capital for the Bank unless it does so as part of a comprehensive settlement of claims against the United States for the past mismanagement of our trust funds and trust assets. We strongly oppose any such settlement at this time. There is little understanding of this aspect of the Strategic Plan among the tribes and the IIM account holders. In addition, any comprehensive settlement would have to be carefully evaluated in light of the unique facts and circumstances of each tribal and IIM account holder. Clearly, no tribe or individual should be compelled to participate in a settlement. Unanswered Questions. During a briefing on a draft of the Strategic Plan which was held in Seattle by the Special Trustee earlier this year, I posed several questions about the draft Plan. The Plan is now final and many of my questions remain unanswered. Why doesn't the Plan contain any provision for financial and technical assistance for Tribal account holders to assume the direct responsibility for the administration and management of their own trust funds pursuant to Title II of the Trust Fund Reform Act? The Plan states that Indian tribes and individual Indians residing on and near reservations would be eligible to own the Bank and/or to use its services. How would this ownership be structured? Would the Indian people who do not reside on or near reservations ever have an opportunity to become owners? Which committees of the Congress will have the oversight responsibility for the Authority and the Bank? The House Committee on Resources? The Senate Committee on Indian Affairs? The Banking committees? If the Plan were to go forward and become a reality, exactly what functions, responsibilities, programs and services would be retained by the BIA? Will AITDA and the proposed Development Bank comply with Indian preference in employment? Which Federal banking laws will apply to the Bank? What is the justification for the proposal to charge account holders a fee of some unknown amount for "services"?

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What is the responsibility of AITDA with regard to unresolved claims against the United States for past mismanagement of the trust funds? What is the responsibility of AITDA with regard to unresolved claims against the United States for past mismanagement of Indian trust resources? Will AITDA be liable for future mismanagement of trust funds and trust resources? Would AITDA and the Bank have the legal authority to correct their errors or would the Anti-Deficiency Act apply to them? Are employees of AITDA and the Bank federal employees? If not, what laws govern them in the performance of their duties? How do Tribes and individual Indians who do not have trust funds participate in the Authority and the Bank? Which laws, including regulations, would be amended or repealed in order to enact the legislation necessary to create AITDA and the Development Bank? For example, exactly how would the Trust Fund Reform Act and Pub. L. 93-638 be amended? Would the Indian Forest Resources Management Act and the Indian Agricultural Resource Management Act be amended and, if so, how? These, and a host of other questions, underscore our concern that the Strategic Plan has not been carefully developed in the context of Federal Indian law and policy. We believe that such a far reaching plan needs significantly more analysis and review before it should become the subject of legislation here in the Congress. Conclusion The Quinault Indian Nation believes that the Plan, as proposed, is contrary to the federal trust responsibility and the government-to-government relationships that the tribes and this Committee have labored so hard to promote and strengthen. If implemented, the proposals could take us back to the time when Tribes were governed from Washington, D.C.. by a handful of people who knew very little about us, but believed that they knew what was best for us.

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Instead of undertaking expensive and unilateral revisions to the federal-tribal relationship, Congress, the Special Trustee and the Secretary should concentrate the meager resources which are available for improving the management of trust funds on the real problems - continued improvements to the management of trust funds could be achieved by developing an accounts receivable ledger; Tribes that want to manage their own trust funds should be able to get assistance from the Special Trustee for that purpose. We do not think that it is necessary to create new agencies and rewrite much of federal Indian law and policy to resolve the underlying problems. Let's get to work on the backlogs in probate, appraisal and land records. Let's seriously address the problems presented by land fractionation. The Quinault Indian Nation strongly supports any responsible initiative which would result in the consolidation of the lands on our reservation and the elimination of the probate and appraisal backlogs. Quinault lands were among those that bore the brunt of the fallout from the allotment policy. One of the tragic results of that policy is that our land and forest resources have been plundered. The Nation has embarked on a long term policy to acquire the lands within our reservation and restore them to tribal ownership and management. We have a long waiting list of individual citizens of the Nation who want to sell their land to the Nation to assist in our consolidation efforts. The continued fractionation of the allotments, along with the probate and appraisal backlogs, are real roadblocks in our efforts to restore sound management policies to our reservation lands and resources. We need to focus on managing trust funds and resources to the standards demanded by the fiduciary obligations of the United States. We need to embrace and support the policies of Self-Determination and Self-Governance by developing tribal management expertise. We need to work together on a government-to-government basis to improve accountability for trust fund and trust resource management. These are the areas where the Quinault Indian Nation believes that the Department, the Congress and the trust fund account holders can work together to make immediate, cost effective and lasting improvements in the management of the trust funds and trust resources. End.

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