Vol. XVII, No. 1_______ Spring, 2006

ARTICLES

Tim Giago, “Twenty years of change in race and political relations in South Dakota: Notes from Indian Country.”
Stephen M. Sachs, “Returning the World to Harmony: Getting to Peace in American Indian Tradition.”
First Peoples Human Rights Coalition, “Essential Values of an Indigenous Rights Declaration.”
Stephen M. Sachs, “The Self-Contradiction in Some States’ Objection to Indigenous Rights.”

TWENTY YEARS OF CHANGE IN RACE AND POLITICAL RELATIONS IN SOUTH DAKOTA: NOTES FROM INDIAN COUNTRY

Tim Giago (Nanwica Kciji), http://www.nativetimes.com, 10/3/2005

Twenty years ago South Dakota had the national reputation among American Indians as the "Mississippi of the North." Having grown up in this state I know that this assessment rang true.

But in the ensuing 20 years a dramatic change has taken place. Doors that were once closed to Indians have opened. Political seats once held by "whites only" have become a forum for Indian politicians.

Theresa "Huck" Two Bulls is a state senator from the Pine Ridge Reservation. Tough politicians like Representative Paul Valandra of the Rosebud Sioux Tribe and Senator Tom Van Norman of the Cheyenne River Sioux Tribe, are bringing a different perspective to the House and Senate in Pierre. They are causing the die-hard politics of the white conservatives to look at and analyze a point of view that was totally foreign to them 20 years ago. In other words, they are causing heretofore-closed minds to open by presenting logical political arguments from an Indian approach. They are intelligently representing a minority that 20 years ago, had no representation to speak of.

When Tom Short Bull stepped into the South Dakota political arena 20 years ago he had to fight a system that included the outright gerrymandering of his home district. It took a federal law to bring about the redistricting that allowed him to run for the state senate seat and win. Short Bull led that fight.

He even had to fight the politicians of the Pine Ridge Reservation to bring about change. Back then if one was not born on the Pine Ridge Reservation they were listed as NE or non-enrolled. Short Bull took on this challenge because he wanted to run for the office of president of the Oglala Sioux Tribe but was denied that right because he was born off of the reservation. Although he was a direct descendent of the Lakota Chief Short Bull, he was still listed on the tribal rolls as "NE." He won the battle and was reconfigured as "Enrolled." He lost the election for tribal president, but opened the doors for tribal members who had been denied their rightful citizenship.

Short Bull now serves as the president of the Oglala Lakota College, a tribal college that is educating teachers, nurses, business majors and craftsmen and women in college centers located in every district on the reservation. His story strongly represents the changes that have taken
place in South Dakota in the past two decades. Oglala Lakota College has been a leader in bringing about those changes.

Twenty years ago there was no independent Indian media in South Dakota. Shirley Sneve, a member of the Rosebud Sioux Tribe, was doing radio and television for South Dakota Public Radio and Television. She was not afraid to use her position to bring about change.

I was publishing the independent Lakota Times on the Pine Ridge Reservation and the newspaper was pointing out the inadequacies in race relations in the state. We challenged the banks, restaurants, and tourist attractions to change, and to hire more Indians. We even had the audacity to suggest to Ruth Ziolkowski of the Crazy Horse Memorial near Custer, S. D. to open her employment doors to more Indians. She did that and more over the years. Perhaps I offended her and her family in those days by being critical of them, but it was always intended as constructive criticism.

I was reminded of these steps forward in race relations in South Dakota while shopping at Wal-Mart on Saturday. Wal-Mart is fighting some in Rapid City in its efforts to build another store along Highway 16, the Gateway to the Black Hills. Those for and those against are about
equally divided, according to letters in the Rapid City Journal.

But as I shopped in Wal-Mart, I could not help but notice the many Native Americans working there. They were ringing up sales at the cash registers, stocking shelves and even acting as greeters at the door. If I had been a fence-sitter on this issue, my mind was certainly changed
that day. If Wal-Mart can provide jobs and promotions to Native Americans, I welcome them with open arms.

I had lunch at TGIF a couple of weeks ago and my waiter was the Lakota grandson of "Poker Joe" Merrival, a friend and classmate of mine from the Holy Rosary Indian Mission on the Pine Ridge Reservation. What a wonderful surprise.

But that's the way it is in Rapid City these days. If you have lunch at the new Ruby Tuesday's you will see young Lakota men and women working the tables, or if you stop at the Prairie Edge Trading Post in downtown Rapid City you will meet Indian artists and artisans, plus a young Lakota man named Marty Frogg running the bookstore.

There are some institutions in the state that still need to diversity. The mass media is one; law enforcement and political appointee jobs by Governor Mike Rounds are the others.

If you happen to be Lakota, Dakota, or Nakota and find yourself as a patient at the Rapid City Regional Hospital you will meet Kathy Ducheneaux, a Lakota woman, who serves as a liaison between the hospital staff and its Lakota patients. She brings comfort to the Indian patients brought to the hospital from the distant Indian reservations in the state and she makes their stay more pleasant by speaking to their needs in their own language.

Even Mississippi has made strides in creating racial harmony.

As I step into the seventh decade of my life I am gratified that I have been a witness to these changes in race relations and even happier that I helped in a small way to move that heretofore-immovable rock.

Tim Giago is the president of the Native American Journalists Foundation, Inc., and the publisher of Indian Education Today Magazine. He can be reached at najournalists@rushmore.com or by writing him at 2050 W. Main St., Suite 5, Rapid City, SD)

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RETURNING THE WORLD TO HARMONY:
GETTING TO PEACE IN AMERICAN INDIAN TRADITION

Stephen M. Sachs, Professor Emeritus of Political Science, IUPUIssachs@earthlink.net

Revised version of a paper presented at the Native/Indigenous Studies Area of the 2006 Southwest/Texas Popular Culture/American Culture Association Conference, Albuquerque, NM. February 8-11, 2006.

Contemporary western efforts at getting to peace are hampered by lack of a clear vision, by a great many people, of peace as a dynamic, positive entity. Too often peace is seen as the negation of a negative, such as "non-violence" or the absence of discord or war, or as some ultimate static state beyond the practical realm1. To help create a positive vision of peace to guide the world today, it is useful to remember indigenous traditional concepts of peace, which are at the roots of all modern cultures, of which the closely related sets of traditional American Indian approaches to peace are typical.

I: TRADITIONAL AMERICAN INDIAN APPROACHES TO BUILDING, MAINTAINING AND RESTORING PEACE

For traditional American Indians, the ideal for individual and social life is harmony, and balance2 (which the Navajo call beauty [hozo]3), based upon respect for all beings (and everything is alive, even the rocks are living), in accordance with the natural order of which human beings were a part and all are related. The Lakotas, for example, state this at the end of prayers: Mitakue Oyasun: "all my relations - amen!" - a word, which like the Hindu Om, when fully stated contains all the vowels4. But harmony, balance, beauty, peace is not automatic, one has to work continually to attain and maintain it at every level. As the Chaudhuris say of the Muskogee, "Given the unpredictable .elements of nature and the quirks of human nature, the search for harmony takes sustained effort in all social institutions."5 Hence, in personal inner work and in all relationships, including with the natural environment and all its nations of plants, animals, etc., one continually participates in processes for returning to harmony. Each Native culture did this in a different manner, but almost all followed the same general principles (at least until they become too large or events put them sufficiently out of balance).6

A major component of the natural and human order, and a key to peace-harmony (seen slightly differently by different indigenous cultures) is what some would call the principle of the circle, itself based on a fundamental value of respect, which in an important sense involves an equality between the whole and the part, at every level (i.e. the whole at one level being the part at the next, eg: the individual in the family or group, the family or group in the tribe, the tribe in the world). As some Lakotas might understand it, the places in the circle have no meaning without the whole of the circle, but there is no circle without each of the individual places, which have their own qualities and ways of seeing. Hence if anything is to be decided, everyone must be heard from in an inclusive participatory process, in which everyone affected is a participant, and so far as possible, everyone's concerns are worked into the decision.7 This means, also, that leaders, chosen for their fine qualities, are primarily facilitators and announcers of collective decisions, though as persons respected for their wisdom and integrity8 (something like "virtue" - but that is a Roman, now Western concept, that isn't quite the same as the American Indian sense of "good qualities"), they do have influence and exercise what in an Eastern sense might be called "guidance." Thus, every decision needs to include the input and interests of the whole community, with the goal of maintaining balance for the long term. And for native people, the community includes all beings (i.e. the plants, animals, etc.), so that the concept of peace includes keeping the natural environment in balance.

By relying on forms of inclusive, participatory decision making and leadership, in which everyone was treated with respect, and their views valued in reaching a group or community consensus, the identity of each person with the group was strengthened, and the concern for each person for all the others was increased in ways that strongly tended to cause people to feel, speak and act respectfully toward one another, and thereby, to foster the harmony and peace of the community. Since consensus was built on the basis of respect for each person, and the unique qualities that they could contribute to the general good, individuals were encouraged to develop in their own way (so long as they did not cause harm), as the social system provided opportunity for self actualization and development necessary for each person’s own realization in ways that directly provided for the needs of the community, thus enhancing acceptance by others, for most community members, further providing a basis for cordial relations.

Indeed, traditional Indian societies functioned as families, with all tribal members treated as if they were relatives, regardless of whether they were biologically related. As Ella DeLoria said of the Dakota, this was a system that worked.9

Kinship was the all-important matter. Its demands and dictates for all phases of social life were relentless and exact; but on the other hand, its privileges and honorings and rewarding prestige were not only tolerable but downright pleasant for all who conformed. By kinship all Dakota people were held together in a great relationship that was theoretically all-inclusive and co-extensive with the Dakota Domain. Everyone who was born a Dakota belonged in it; nobody need be left outside. [And since being Dakota, as with Indian societies generally, was more a matter of participation in the community than blood, kinship included all who effectively joined the community, whether they married in or were adopted, a common practice throughout traditional Native America].
. . . . . . .
...I can safely say that the ultimate aim of Dakota life, stripped of accessories, was quite simple: One must obey kinship rules: One must be a good relative. No Dakota who has participated in that life will dispute that. In the last analysis every other consideration was secondary-property, personal ambition, glory, good times, life itself. Without that aim and the constant struggle to attain it, the people would no longer be Dakota in truth. They would no longer be even human. To be a good Dakota then was to be humanized, civilized. And to be civilized was to keep the rules imposed by kinship for achieving civility, good manners, and a sense of responsibility toward every individual dealt with. Thus only was it possible to live communally with success; that is to say, with a minimum of friction and a maximum of good will.

Deloria goes on to point out that kinship, like all the other principles we have been discussing, while not functioning perfectly, worked quite well in Indian society,10

What I have given here is, of course, an ideal picture. But I can honestly say that hardly one in a hundred dared to be thought of as deviating from its rule, although there were always a few naturally heedless persons who persistently or occasionally disregarded it. But that at once classified them as with the witko-the naughty, irresponsible child, the outlaw adult, the mentally foolish, the drunk. No adult in his right mind cared to be so classed.

To keep daily life civil, traditional indigenous societies had many politenesses, protocols and mechanisms to avoid and resolve conflict respectfully. For example, an elder, perceiving a pattern of bad behavior in another, would raise the issue nonconfrontively with the suspected miscreant, by telling a story about another, often fictional, person acting in the improper way in question. Thus the person concerned was given an opportunity to improve their action or attitude, while honoring their autonomy and prestige.

A similar view of family to Deloria’s is expressed in writing about Cherokee ways, and beyond that to traditional native Americans in general, by Michael Garrett,11

Because the survival and well-being of the individual is synonymous with that of the community, family plays a prominent role in our lives,...Many native American people are a family in a real sense, because they identify themselves not by their own accomplishments, but by the nature of their relations and the energy they draw from those connections.

Garrett goes on to point out that for the Cherokee, as for other traditional Indian peoples, the concept of “family” was part of larger metaphysical and spiritual concerns:

The traditional view of family is universal in scope. “Family” extends well beyond immediate relatives to extended family relatives through the second cousin, members of the clan, members of the community or tribe, all other living creatures in this world, the natural environment and the universe itself. The entire universe is thought of as “a family” with each and every one of its members having a useful and necessary place in the Circle of Life, just as each strand creates the beauty and strength of the Web [of life].12

In the traditional way, the prevalence of cooperation and sharing in the spirit of community is essential for harmony and balance.13

An essential dimension of living collaboratively as a harmonious family, in which one’s own welfare is understood as encompassing the well-being of all, is the maintenance of the economic balance of the community. Hence redistribution and reciprocity were central values, following which generosity and sharing were strongly emphasized. Hence for the Lakota, and many other indigenous nations, if one’s son or daughter achieved a major accomplishment, in their honor the family held a feast and a giveaway for the community, while a hunter returning with game was sure to share his bounty with those less well off. Thus, productivity was encouraged not by heralding producing for oneself, but by honoring providing for all. 14

An important aspect of the balance of human relations was a unity in diversity in which division of function and labor was seen as a balanced reciprocity of unique individuals, and did not produce marked differences in status, as have resulted from the division of labor in hierarchical societies. This is seen particularly in the maintenance of balance between men and women across traditional North American Native societies.15 To the extent that in Western societies it could be said that a man's home is his castle, among traditional Native Americans one might say that a man's home was her castle. For example, among the Haudenosaunee (Iroquois), only men served as chiefs (sachems) on the intertribal council, but women held considerable power. In certain clans, the women, speaking through the Clan Mother, nominated the chiefs and had the power to remove them for misconduct.16 In some tribes women served as chiefs, but regardless of their formal role, women in traditional Native American societies were predominate in their own affairs and held great influence in public affairs.17 In the economic activities of everyday life, men and women each had their independent, yet interdependent, functions, that they carried out autonomously. For the Huron,18 for instance, men carried out outside activities under their own direction, such as hunting, fishing, trading, diplomacy, warfare and clearing new farm fields. Women autonomously farmed, managed the household and had the prime responsibility for raising children.

In Indian societies an additional factor reinforcing the harmony of the individual with the whole was a spirituality that pervaded all of life. This was consistent with, and indeed an expression of, the social values of each people, and was an important building block in the development of individual and social integration.19 In different ways, every Native American society functioned under spiritual principles of harmony (or as the Dine, or Navajo, say, “beauty”) that involved harmonizing the individual and the whole. In some more individualistic band societies, such as the Comanche,20 which had individual and small group ceremonies and spiritual practices, but no overarching rituals, both the religion and the socio-political practice put more responsibility on the individual to find his or her place in the larger whole, than did societies with strong collective rituals, such as the Pueblos. Yet, these latter societies, still had spiritual as well as social roles for each individual. Many, societies, such as the Lakota and the Cheyenne, had both individual ceremonies, such as a person seeking a deeper understanding of her or his purpose in life by going on a vision quest (an individual retreat),21 and one or more collective rituals of renewal of the Earth and the people such as the Sun Dance. Moreover, the individual rituals and spiritual experiences had important societal aspects, even as there were unique individual roles in the collective rituals. For example, for plains tribes, the visions one might receive on a vision quest, in a dream, in a Sun Dance, or at any time, often contained important information for the society as well as for the person.22 Thus there were dream societies to help interpret individual peoples’ dreams, and when proper, to help them share them in appropriate ways with the community.

While all of the above teachings, practices and social arrangements helped to establish the ideal of peace-balance-harmony-beauty, and to approach and attempt to maintain it in practice, Native North Americans understood that in a complex interactive world, harmony will constantly be lost, individually and collectively, and steps must be undertaken to regain it. Hence, on the spiritual-psychological level, Indian cultures had ceremonies for reestablishing balance. For the Navajo (Dine), for example, virtually all ceremonies are healing rituals to return people to beauty. In addition to healing rituals for rebalancing individuals and/or groups, many tribes had major rituals for the "renewal of the earth and the people," such as the Sun Dance of the Lakota and other plains, Rocky Mountain and Great Basin Tribes.23

On the socio-political-economic level (with some spiritual-psychological aspects) all native cultures traditionally had what are often called "peace making" processes for settling conflicts and disputes, and for redressing injuries and grievances. These are almost always facilitated participatory processes for returning the parties to harmony: good relationship. Thus tribal people more often dealt with harms in ways that western legal systems would consider torts (injuries to be dealt with by civil law) than crimes, with the emphasis on restoring the preexisting situation and/or set of relations, rather than attaining justice or retribution. This might involve a gift or payment for damages, such as when a Kiowa or Cheyenne man eloped with another man's wife, it was required that the absconder provide a suitable compensation to the injured husband, with a peace chief facilitating the resolution of the dispute between the parties.24 In some instances of homicide, restoration went so far as to have the party causing the death (whether intentional or accidental) take on a role of the deceased, as with an Aleut (Eskimo) 25 or Lakota26 man marrying the wife of the husband he had killed, in order to insure that the deceased's family was cared for, and, particularly in the latter case, to restore harmony between the families involved in the dispute. With the importance of familial relations in native societies, an injury involved not only the individuals involved, but the familial group of which they were members. In some instances, the process of restoration even extended to warfare. Among the Wendat (Huron), for example, a captured enemy would sometimes be adopted to replace a family member killed by the enemy, with the adoptee taking on all of the lost person's roles, including leadership positions. 27

Since the handling of disputes and trouble cases aimed at restoration and maintenance of harmony in the community, working out a proper solution often involved consideration of the full range of relations between the parties, and the whole catalogue of ill feeling, and its causes, between them. This contrasts with the narrower focus on what is specifically relevant to the case at hand in deciding on fault or guilt in U.S. courts (though they do consider wider concerns in deciding upon punishment in criminal cases).

Similarly, the emphasis on restoring harmony meant that acts of improper behavior were generally handled with a focus on rehabilitation of the wrong-doer by traditional native North Americans. Thus, when some Cheyenne young men were caught hunting buffalo on their own, which might have stampeded the herd so that further hunting of it would have been impossible, the miscreants were beaten and had their horses killed and gear destroyed. But once it was clear that they accepted the punishment, the young men were resupplied and brought back into the ranks of the hunters.28 It was generally only in extreme cases that a person was killed or exiled. Among the Aleut's, for instance, a man who killed community members several times, or someone who lied repeatedly, might be executed or forced out as a danger to the community.29 Even in extreme cases, some rehabilitation might be possible. With the Cheyenne for example, killing another tribal member was considered so serious that the whole tribe would be polluted by the act, requiring purification and renewal of the nation's most sacred objects and the expulsion of the murderer.30 Yet, after several years, the offender, if repentant, might be permitted to return, with permission of the family of the deceased, which there was usually social pressure for them to give.

The need for harmony was not merely an ideal, but very was a practical realization learned from experience, as exemplified in the history of creation the Great Peace of the Hudassane (Iroquois) and other confederacies, and in the need for people to collaborate and get along in everyday community life, as set froth in Ella Deloria, “A System that worked,” in Speaking of Indians 31 The history is quite clear among the Hudassane.32 Their current ways, including their confederation (the Great Peace), arose to overcome internal dissension. It was a time of blood feud among clan units and fighting between tribes reminiscent in our own time of the civil war in Lebanon and gang wars in Los Angeles. Thanks to the vision and work of the Peacemaker (Deganawidah) assisted by Hayanwatah (or Hiawatha) the Great Peace was achieved and an extremely participatory government based upon principles of equality and justice was installed, with the responsibility that each decision and action by the people be beneficial in its results to the seventh generation yet to come. That government, and numerous others across traditional North America, were able to guide societies, in a most democratic manner, that whatever their imperfections, were remarkably peaceful, prosperous and happy for virtually all of their citizens.

II: THE GROWING RELEVANCE OF THE TRADITIONAL PRINCIPLES

It would do well for the world today to apply the traditional American Indian principles for attaining and maintaining harmony, in ways that fit present circumstances, with an eye to the future, if we are to get to peace: to survive and live decently. Circumstances have changed in many ways for both Indian peoples and the wider world, but with somewhat different application, the traditional approaches are increasingly relevant. Indeed, some of these processes are being renewed by tribes, today, to return to harmony after centuries of colonialism, such as the use of peacemaker courts33 and inclusive participatory decision making,34 while there are numerous developing equivalents of traditional North American Native ways in the contemporary world.

The heart of what is necessary to attain productive and harmonious relations within and between communities is to return human interaction to a basis of mutual respect.35 Unless people deal with each other as equal partners in a mutual relationship, interaction is likely to continue to lead to injustice and dangerous dominance. This in turn will most probably increase ongoing struggles marked by open and structural violence. To break out of the recurring cycles of repression and violence, it is necessary that we build human relationships upon the principle of "unity in diversity," so that each of us respects the interests, views and ways of all individuals, groups and cultures. This is important not only to avoid doing harm to others, but because we each have something to learn from every person, group and culture. Moreover, repression is costly and inefficient in comparison with collaboration, which is also far more emotionally rewarding to everyone. Thus, it is mutually advantageous for all of us to move from relations founded upon cultural hegemony to relations centered upon cultural sharing and exchange.

The attainment of mutually respectful relations requires appropriate processes. One of these is the use of participatory mutual problem solving of issues, often involving some form of consensus decision making, undertaken appropriately for the context. For example, business, government and nonprofit organizations around the world have improved their internal relations, communications, quality of decision making, productivity, efficiency, effectiveness (by every measure) and flexibility in adapting to changing conditions by initiating a variety of participatory decision making processes, following the same principles traditionally used in tribal councils.36 Thus, modernizing organizations have been learning that by treating employees humanely, as partners in their operations, participating from each person’s unique viewpoint and abilities, that not only are internal relations improved, but organizational knowledge, creativity and quality of operation are very significantly enhanced.

Similarly, at the level of the community, there are contemporary examples of political decision making leading to better decisions, achieving a better balance of interests, and thus providing a basis for transforming sharply divisive rifts in the community into collaborative partnerships for creative advancement, by involving all the concerned parties in decision making processes. In the field of environmental regulation, for instance, more collaborative and inclusive approaches have been taken to overcome the slow system of command regulation, requiring a large bureaucracy, that often produces decisions that do not adequately balance the needs of the effected parties, and that are often ineffectively enforced, at considerable expense.37 In a number of cases, the Environmental Protection Agency (EPA) has utilized a process for developing regulation by bringing all the interested parties (primarily representatives of environmental groups, business and the agency) together to participate in consensus decision making. Any of the parties may withdraw from the process at any time. But if they accept the final agreement, they cannot challenge it in court. As in traditional tribal governance, the process of dialog takes time, but usually results in better decisions than competitive processes because of the attempt to accommodate all of the concerns and interests of those affected to create a viable policy. By contrast, decisions in competitive processes tend to be the result of the ability of the individual contenders to force the inclusion of as much of their position as possible in the final outcome, with compromises being determined more in terms of including the diverse agendas of strong pressure groups than in achieving a well working policy as a whole.

This inclusive method was used by EPA in 1991 to set new standards for the contents of gasoline.38 Several states, including Indiana, California and Florida have taken such an inclusive approach to promoting energy conservation and pollution reduction in the generation of electric power.39 In the past, there have been no incentives for power companies to operate efficiently or to encourage customers to conserve energy.40 Using an inclusive process, power company, environmental group, and consumer group representatives sat down together along with state officials to develop regulations that meet the primary concerns of all the parties. This resulted in measures that save consumers money and reduce energy use (thereby reducing pollution) through allowing power producers to benefit financially from encouraging consumers to be energy efficient.

Organizations like Search for Common Ground (SFCG) have been working to heal intra and inter-community conflict by bringing the discordant parties together in peace-building processes aimed at finding mutual interest as a basis for resolving or transforming disputes and developing collaboration. At the end of 2005 Search for Common Ground was working in 17 countries around the world. For example, in the United States, SFCG was assisting communities bridge their divides through a consensus building process bringing political, community and business leaders together to address important policy issues such as health care for the uninsured. In several nations SFCG has been teaching conflict resolution values and skills, and using radio and TV to create peace-building dialogues on major issues.41 Similarly, the recent launching of “truth commissions” in South Africa and other nations have been vehicles for bringing reconciliation to countries and communities after the ending of repression, as an alternative to applying the currently more common methods of retribution, which often continue destructive conflict, at times continuing the repression, reversing the roles of repressor and oppressed, in.42

Where individuals, in the United States and many other Twenty-First century nations, disturb the harmony of the community by acts that are defined as criminal, in a high percentage of cases the punitive approach of the criminal justice system does little to return the offender or the community to harmony, as there is a high recidivism rate among those convicted of crimes, and extended incarceration in prisons focusing almost entirely on detaining large numbers of convicts, often provides more education in criminal behavior than rehabilitation. Thus, there has been a growing interest in what are often more effective alternative approaches to correction, many of which mirror the restorative approaches to deviance of Native nations. These include programs that reintegrate convicts with society, such as halfway houses with job programs, and various forms of restorative justice that involve the law breaker doing work in the community. Sometimes this is undertaken among those injured by the criminal’s act, to repay at least some of the damage done and to return the criminal to a good relationship with the community.43 Among these approaches is a growing movement to bring young offenders face to face with their victims, when appropriate. After one such mediation, the juvenile wrongdoer stated, “I now realize I hurt them a lot.... To understand how the victim feels makes me feel a lot different.” Hearing that in a meaningful dialog is often healing to the victim and the perpetrator.44

Finally, in the face of rising oceans, more - and more intense - storms, and the exigencies of climate change from human induced global warming; increasing skin cancer rates and considerable environmental damage from industrial production of ozone layer destroying chemicals; and extensive serious harm to people and the environment from a plethora of man made pollutants, it is now clear that returning to the Native practice of living in balance with the ‘natural’ environment is essential for human beings living decent lives, if not human survival. Moreover, as indigenous people knew from experience, in the Twenty-First Century, we need to return to living in balance with our environment, if we are to live harmoniously with one another, in order to avoid disastrous conflict over resources, made scarce from over exploitation, pollution and other destructive action. Similarly, if we are to remove the causes of disharmony in human affairs, our societies need to return to economic harmony, by reinstituting sufficient levels of redistribution and reciprocity for everyone to have the opportunity to participate equitably in well functioning societies. As Native people in North America, and indeed all our tribal forbearers, understood from experience, living in peace, harmony, balance, beauty is not an unattainable ideal, but an ongoing process of living by seeing our own interest in working to keep in balance the long term interests of ourselves and all our relations, in what one might call an ‘ethics of respect,45 in a contemporarily appropriate application of traditional ethical principles.46

Perhaps it is time to remember to be buffalos without horns:

We Are the Buffaloes Without Horns 12/30/05
(Written morning after dreaming:
We are the Buffaloes without horns. Having seen the movie,
In the olden days living was easy. The Interpreter: We ate the grass Sensing what it means
And we knew
To return to Africa,
What to do.
Where we no longer have anyone
Life was good,
But that is where
Though not perfect.
We remember them.)
Now
We have to eat the air:
Remember how to be
Like Gods,
Or we become Demons.
We have to look inside,
See the patterns of the Stars
As they move
Across eons:
Dance them into the fabric
Of our days,
That together
We realize
The perfection of our lives.

FOOTNOTES

1. Most of the peace and conflict resolution community knows better, as can be seen by going to some of their web sites and list serves. But much of the general public and many political decision makers do not. Some examples of peace and conflict resolution web sites include:
The Association for Conflict Resolution (ACR): www.acr.net.
The Fellowship of Reconciliation (FOR) engages in many practical peacebuilding projects and produces numerous publications. FOR is at: http://ga3.org/forusa/home.html, or can be contacted via Jacqueline Haessly, jacpeace@earthlink.net..
The Peace and Justice Studies Association (PJSA), which publishes the newsletter, The Peace Chronicle, and copublishes the scholarly journal Peace & Change: A Journal of Peace Research with the Peace History Society, as well as running a peace and justice list serve and holding an annual coinference, can be contacted at: PJSA, 5th Floor University Center, 2130 Fulton Street, San Francisco, CA 94117 (415)422-5238, http://www.peacejusticestudies.org/index.php.
The International Crisis Group (IGC) carries regular reports and sets of recommendations about difficult developing situations around the globe, at: http://www.crisisgroup.org/home/index.cfm. IGC also has a regular E-mail report circulation sercvice that can be subscribed to on its web site.
Peace Media publishes a monthly web magazine at: http://peacejournalism.com/ReadArticle.asp?ArticleID=6086.
The Bulletin of Regional Cooperation in the Middle East, a publication of Search for Common Ground (SFCG), seeks to provide an ongoing link among non-governmental cooperative efforts in the Middle East. It is available via E-mail. For a free subscription to the Bulletin of Regional Cooperation in the Middle East and to the Common Ground News Service, E-mail as follows: Subscribe-cgnews@lists.sfcg.org (English), Subscribe-cgnewsarabic@lists.sfcg.org (Arabic); Subscribe-cgnewshebrew@lists.sfcg.org (Hebrew). Search for Common Ground in the Middle East (Jerusalem offices) are at 26, Heleni Hamalka Street, 95101 Musrara, Jerusalem, Israel. For international mail: Search for Common Ground in the Middle East, 83 Nablus Road, Sheikh Jarrah, Jerusalem, Israel.
Bitterlemons.org is a website that presents Israeli and Palestinian viewpoints on prominent is-sues of concern. It focuses on the Palestinian-Israeli conflict and peace processes as well as a variety of topics affecting the Middle East with the goal of contributing to mutual understanding through the open exchange of ideas. Each weekly edition, addressing a specific issue of controversy, is posted on the website. Readers can obtain a free subscription by entering their email address in the space provided on the homepage: http://www.bitterlemons.org as well as www.bitterlemons-international.org, for their new "Middle East Roundtable".
The online journal, Nonviolent Change, edited by the author is at: www.nonviolentchangejournal.org.

2. As, for example, with the Muscogee (Creek), as seen in their creation story, and in all their related stories showing how everything is interrelated and must be kept in balance, as set forth by in Jean and Joyotpaul Chaudhuri, A Sacred Path: The Way of the Muscogee Creeks (Los Angeles: UCLA American Indian Studies Center, 2001). The Chaudhuris tell us, for example, "The beautiful astronomical legends give us a picture of the balance of male and female energies, thereby showing the patch of darkness in light and light in darkness, all circling in the search for harmony in motion. The legends provide a humanities parallel of the science of the Creeks which also sees the search for balance between the four elements and the synergy linking the cycles of dynamic energies of the earth, the water, the sun (fire), and the sky (air). This is no romantic pipe dream, but the vision of an earth-centered culture with sacred trust responsibilities. The Earth centered physics involves exchanges between and transformations of various forms of energy and the cycles of energy among soil, water, nutrients, animals, sunlight, air and rain in an environmentally balanced manner (p. 19)". This dynamic balancing, that is necessary in the physical sphere, is also necessary in society, in which all the elements: men, women, the different clans and the two moieties - indeed all individuals - each have their unique and essential functions that must be kept in, and returned to, balance (Ch. 5-10). The same is true of the individual, who if internally out of balance can not act socially in a balanced way. "In the Muscogee Creek cosmos, all things consist of particular combinations of body, mind and spirit. When these are not in harmony, one is truly lost and healing becomes necessary for the entity to continue (p. 23, the theme pervading chapter 4)."

3. See Kluckhohn and Leighton, The Navaho; James F. Downes, The Navajo (New York: Holt Reinhart and Winston, Inc., 1972), particularly chapters 2, 3 and 8; Robert W. Young, A Political History of the Navajo Tribe (Tsaille, Navajo Nation, AZ: Navajo Community College Press, 1978); and Alice Reichard, Navaho Religion (New York: Pantheon Books, Bollingen Series, 1950).

4. See Gerald Mohatt and Joseph eagle Elk, The Price of a Gift: A Lakota Healer's Story (Lincoln: the University of Nebraska Press, 2000), pp. 3, 35, 145-146, 298-199; and Joseph M. Marshall III, The Lakota Way: Stories and Lessons of Living (New York: Viking Compass, 2001), pp. 211, 227. The Muscogee, like numerous other indigenous nations, have a very similar approach to interrelatedness, and when they dance the first friendship dance, recognizing and honoring the creator that surrounds all things and beings, they chant "iyabileyuppe," which also contains all the vowel sounds (Chaudhuri and Chaudhuri, A Sacred Path, p. 26).

5. Chaudhuri and Chaudhuri, A Sacred Path, Ch. 9, especially where quoted at p. 68.

6. See for example how this worked very well in Muscogee terms in Chaudhuri and Chaudhuri, A Sacred Path.

7. For a discussion of this in general terms, with examples from several tribes, see Stephen M. Sachs, "Remembering the Circle: The Relevance of Traditional American Indian Governance for the 21st Century," Western Social Science Association 2001 Annual Meeting, and "Acknowledging the Circle: The Impact of American Indian Tradition Upon Western Political Thought and its Contemporary Relevance," Proceedings of the 2002 American Political Science Association Meeting (Washington, DC: American Political Science Association, 2002). This general pattern is also discussed briefly in Sharon O'Brien, American Indian Tribal Governments (Norman, OK: University of Oklahoma Press, 1989), Ch. 2. For discussion of how some particular traditional native nations were participatory see: Lewis Henry Morgan, League of the Iroquis (Secaucus, NJ: Citadel Press, Carol Publishing Group 1996); Bruce G. Trigger, The Huron: Farmers of the North (Fort Worth, TX: Holt, Rinehart and Winston, Inc., 1990), especially Ch. 6, "Government and Law"; Morris Edward Opler, An Apache Way of Life: The Economic Social, and Religious Institutions of the Chiricahua Indians (Lincoln: University of Nebraska Press, 1996), on politics, particularly pp. 460-471; Clyde Kluckhohn and Dorethea Leighton, The Navaho (Cambridge, MA: Harvard University Press, 1974), pp. 111-123;. Young, A Political History of the Navajo Tribe, pp. 15-16, 25-27; Alfred W. Bowers, Hidatsa Social and Ceremonial Organization (Lincoln: University of Nebraska Press, 1992), particularly pp. 26-64; Catherine Price, The Oglala People, 1841-1879: A Political History (Lincoln: University of Nebraska Press, 1996) [which drew on many sources including the Walker papers], particularly pp. 7-21, 33-34, 60-62, 98-99, 156, 168 and 172-173; the second of the three edited volumes of the James R. Walker papers published by the University of Nebraska Press: Raymond DeMallie, Ed., Lakota Society (1982), Part I, particularly documents 6-16; Ruth Landes, “The Ojibwa of Canada,” in Margaret Mead, Ed., Cooperation and Competition Among Primitive Peoples (New York: McGraw Hill Book Company, Inc., 1937), Ch. 3; Jannette Mirsky, “The Dakota” in Mead, Cooperation and Competition Among Primitive Peoples; and Chaudhuri and Chaudhuri, A Sacred Path, particularly Ch 9, but throughout the rest of the work, including in the creation Myth discussed in Ch. 3.

8. Among the Navajo, for example. Young, A Political History of the Navajo, pp. 15-16, 25-27, reports that, according to Dine legend, the people lived in independent, self sufficient camps, in which, like other band societies, decisions were made by the community by consensus. Headman (Hozhooli Naat’aah) only acted as advisors. He usually was proficient in leading at least one ceremony, governed by persuasion, “expounded on moral and ethical subjects, admonishing the people to live in peace and harmony. With his assistants he planned and organized the workday life of his community, gave instruction in the arts of farming and stock raising and supervised the planting, cultivating and harvesting of the crops. As an aspect of his community relations function, it was his responsibility to arbitrate disputes, resolve family difficulties, try to reform wrong doers and represent his group in its relations with other communities, tribes and governments. He had no functions whatsoever relating to war because the conduct of hostilities was the province of War Chiefs. “A headman was a man of high prestige, chosen for his good qualities and only remained a leader “so long as his leadership enlisted public confidence or resulted in public benefit.” The same is shown in all of the references in footnote 7. See also E. Adamson Hoebel, The Law of Primitive Man (New York: Atheneum, 1976), n, Ch. 5 & 7.

9. Ella Deloria, Speaking of Indians (Lincoln, University of Nebraska Press, 1998), Part II, “A scheme of Life That Worked,” pp. 24-25.

10. Ibid., p. 37.

11. Michael Garrett, “To Walk in Beauty: The Way of Right Relationship,” in J.T. Garrett and Michael Garrett, Medicine of the Cherokee: The Way of Right Relationship (Santa Fe: Bear and Company Publishing, 1996), p. 165.

12. Ibid., p. 166.

13. Ibid., p. 165.

14. For example, see Mohatt and Eagle Elk, The Price of a Gift, Ch. 8, pp. 17-18, 118, 156-157 and 179-180.

15. Laura E. Klein and Lillian A. Ackerman, “Introduction,” and Daniel Maltz and JoAllyn Archambault, “Concluding Remarks,” in Laura E. Klein and Lillian A. Ackerman, Ed., Women and Power in Native North America (Norman: University of Oklahoma Press, 1995), pp. 3-16 and 230-249, found, in a study of 13 North American societies and multiple society culture areas north of what is now Mexico, that traditionally, in all but one case, there was a balanced reciprocity between men and women. The one partial exception in the study was the Muscogee, which Joyotpaul Chaudhuri told this author is incorrect information acquired from cultural "mixed bloods" who did not understand the traditional male-female balance of Muscogee Society, as set forth in Chaudhuri and Chaudhuri, A Sacred Path. Thus in all 13 cases it is known that balanced reciprocity existed.

16. O'Brien, American Indian Tribal Government, pp. 17-20.

17. Valerie Sherer Mathes, "Native American Women in Medicine and the Military," Journal of the West, Vol. 21, 1982, p. 44.

18. Trigger, The Huron, Ch. 3.

19. For instance, if you go to a Lakota (Dakota or Nakota) Sun Dance and ask the Dancers why they endure four grueling days dancing beneath the hot sun without food or drink, they will not tell you that it is to gain prestige or to receive personal spiritual power, though those things may come to them. The dancers will tell you that they give themselves away that "the people may live." Their giveaway is first to the Great Spirit, second to the people, and only lastly for themselves (and, even so, only so that they can play their proper part in the greater whole). (Observation of the author who has supported Lakota Sun Dances in 1984, and from 1992 to the present).

20. See Hoebel, The Law of Primitive Man, Ch. 7; and Ernest Wallace and E. Adamson Hoebel, The Comanches: Lords of the Plains (Norman: University of Oklahoma Press, 1952).

21. See Hoebel, The Law of Primitive Man, Ch. 7; and E. Adamson Hoebel, The Cheyenne (New York: Holt, Rinehart and Winston, 1978), Ch. 1-5.

22. See Lee Irwin, The Dream Seekers: Native American Visionary Traditions of the Great Plains (Norman: University of Oklahoma Press, 1994), Ch. 1, 2 and 8.

23. On the Lakota Sun dance see, Thomas E. Mails, Sun Dancing at Rosebud and Pine Ridge (Sioux Falls, SD: The College of Western Studies, 1978); J.R. Walker, The Sun Dance of the Oglala and Other Ceremonies of the Oglala Division of the Teton Dakota, The Anthropological Papers of the American Museum of Natural History, Vol XVI, Part II (New York, The American Museum of Natural History, 1917); and James R. Walker, Edited by Raymond J. DeMallie and Elaine A. Jahner, Lakota Belief and Ritual (Lincoln, NE, University of Nebraska Press, 1980). On the Cheyenne Sun Dance see, E Adamson Hoebel, The Cheyennes: Indians of the Great Plains (New York: Holt, Rinehart and Winston, 1960) On the Shoshone, Ute and on of the Crow sun Dances, see, Joseph G. Jorgensen, The Sun Dance Religion: Power to The Powerless (Chicago: University of Chicago Press, 1972).

24. Hoebel, The Law of Primative Man., pp. 146, 160-167 and 172-176.

25. Ibid., p. 87.

26. Deloria, Speaking of Indians, p. 34.

27. Trigger, The Huron: The Farmers of the North, pp. 58-60

28. Hoebel, The Law of Primitive Man, pp. 143 and 150156.

29. Ibid., pp. 70 and 88-91.

30. Ibid., pp. 142-143 and 156-160. Murder, however, was such a heinous act for the Cheyenne that the pollution never fully left the reformed killer, who was ever after perceived not to smell quite right, and thus was not permitted to share in communal ceremonies, though he might otherwise participate in the life of the community.

31. Deloria, Speaking of Indians, pp. 32-37, discusses the traditional ways of maintaining and recreating harmony among the people.

32. Oren Lyons, "The American Indian in the Past" and Donald A Grinde, Jr., "Iroquois Political Theory and the Roots of American Democracy," in Oren Lyons, John Mohawk, Vine Deloria, Jr., Lawrence Hauptman, Howard Berman, Donald Grinde, Jr., Curtis Berkey and Robert Venables, Exiled in the Land of the Free: Democracy, Indian Nations, and the U. S. Constitution (Santa Fe, NM: Clear Light Publishers, 1992).

33. For examples from the Coast Salish peoples see, See Bruce G., Miller, The Problem of Justice: Tradition and Law in the Coast Salish World (Lincoln: University of Nebraska Press, 2001). For examples from Navajo Nation see, Chief Justice Tom Tso, "The Process of Decision Making in Tribal Courts," and Justice Philmer Bluehouse and James Zion, "Hozhooji Naat'aanii: The Navajo Nation Justice and Harmony ceremony," in Marianne O. Nielsen and Robert A. Silverman, Native Americans, Crime and Justice (Boulder: CO, Westview Press, 1996), pp. 170-189.

34. LaDonna Harris, Stephen Sachs and Benjamin Broome, "Returning to Harmony Through Reactivating The Wisdom of the People: The Comanche Bring Back the Tradition of Consensus Decision Making," Native Americas, Vol. XII, No. 3, Fall 1996; and "Wisdom of the People: Potentials and Pitfalls in Efforts by Comanches to Recreate Traditional Ways of Building Consensus," American Indian Quarterly, Vol. 25, No. 1, Winter 2001.

35. For a discussion of this necessity and of the process of building a culture of peace based upon mutual respect and unity in diversity, see Stephen M. Sachs, "Building the World Team: Getting to Peace Through Developing a Collaborative Culture," Organization Development Journal, Vol. 8, No. 1, Spring 1990, and "Learning the Pedagogy of Peace: or Living the World Team into Existence," paper presented at the COPRED 16th annual Conference in Milwaukee, 1987 (available from the author).

36. For discussion of the gains realized from organizational democracy, and the reasons for them, see: John Simmons and William Mares, Working Together (New York: Albert Knopf, 1983); Stephen Sachs, "The Cutting Edge" and "Employee Participation: The Next Stage", Workplace Democracy, Vol. XII, No. 2, Fall 1985, and No. 61, Summer 1988. Stephen Sachs, "The Interest and Goal Structure of Self-Managed Organizations" (Paris: Second International Conference on Participation, Workers Control and Self Management, 1977) discusses the reasons for the advantages of collaborative over hierarchical organizations including the tendency of collaborative organizations to minimize status differences stemming from the division of labor in comparison to hierarchical organizations. The paper is available from the author (ssachs@earthlink.net). Stephen M. Sachs, "Building Trust in Democratic Organizations," Psychology, Vol. 31, No. 2, 1994.

37. See Zachary Smith, The Environmental Paradox (Englewood Cliffs, NJ: Prentice Hall, 1992); and Charles Davis, The Politics of Hazardous Waste (Englewood Cliffs, NJ: Prentice Hall, 1993); and on finding solutions see, David Osborne and Ted Gaebler, Reinventing Government: How the Entrepreneurial Spirit is Transforming the Public Sector (Reading, MA: Addison-Wesley Publishing Company, Inc., 1992), Introduction, "An American Perestroika," and Ch. 4, "Mission Driven Government: Transforming Rule-Driven Organizations.

38. Jeff Smith, "Traditional Foes Agree on Gasoline Formula," Indianapolis Star, Vol. 89, No. 73, 1991, pp. 1, 7.

39. Citizens Power, Vol. 18, No. 2, Fall 1992, published by Citizens Action Coalition, 3951 N. Meridian St., Suite 300 Indianapolis, IN 46208, contains several articles on this topic. Reinventing Government, pp. 299-395 touches on this issue in environmental regulation and discusses some other incentive based approaches to environmental regulation.

40. Wilson Clark, Energy for Survival (Garden City, NY: Anchor Books, 1975), Oh. 3.

41. For more information go to: http://www.sfcg.org. Common Ground's "vision is of a world in which:
* Individuals, organizations, governments and societies respond to their differences in non-adversarial ways - where those differences stimulate social progress, rather than precipitate violence.
* The predominant approach to conflict is to reach out to cooperate with those we disagree with - where reconciliation is considered the norm.
* Our underlying respect for one another and our shared interests and concerns are not overwhelmed by our differing points of view.
* In their everyday lives, human beings are safer and more secure.
Our goal is to make finding common ground the common thing."

42. See Wanda D. McCaslin, Ed., Justice as Healing, Indigenous Ways: Writings on Community Peacemaking and Restorative Justice from the Native Law Center (Saint Paul, MN: Living Justice Press, 2005), pp. 38-47, 413 and 416.

43. For discussion of the problems with punitive approaches to corrections and the value of restorative and related alternative approaches, see Michael Branegan, “Restoring Community to Restorative Justice,” Research and Creative Activity, Indiana University, Vol. XI, No. 3, January 1997. For an extensive consideration of the applicability of various applications of Native principles of restorative justice, see the various writings in McCaslin, Ed., Justice as Healing.

44. Jon Wilson “Real Justice,” Hope Magazine, No. 20 Fall, 1999, pp. 58-62, quote on p. 60.

45. See John Brown Childs, with commentaries by Guillermo Delgado-P, et. Al. Trans-communality: From the Politics of Conversion to the Ethics of Respect (Philadelphia: Temple University Press, 2003).

46. For an example of traditional ethics see, Phil Lane, Jr., Judie Bupp, Michael Bupp, and Elders, “The Sacred Tree: Code of Ethics,” The Sacred Tree: Reflections on Native American Spirituality, Third Edition (National Book Network, 1984), on line at: http://www.prayer-network.info/coe/.

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ESSENTIAL VALUES OF AN INDIGENOUS RIGHTS DECLARATION

Paper and Annex, prepared by First Peoples Human Rights Coalition, distributed at the Permanent Forum on Monday, May 22nd under Agenda Item 4B, when the draft U.N. Declaration on the Rights of Indigenous Peoples and Human Rights will be discussed.

Indigenous peoples worldwide have worked for decades to ensure that our pre-existing human rights are recognized and upheld by the nations of the world. Clearly, domestic laws have not protected the ability of Indigenous peoples and communities to live secure lives as self-determining peoples. As a result of their persistent efforts, Indigenous representatives slowly began to open doors to the United Nations and the world community.[1]

At stake are the same issues that have been at risk for hundreds of years: ownership and control of lands and resources, self-government and decision-making authority, as well as the right of Indigenous peoples to live in peace and security as distinct peoples. Indigenous leaders, advocates, and organizations have worked with great determination. A most important result of their specific efforts since 1984 is the draft U.N. Declaration on the Rights of Indigenous Peoples. The adoption of this U.N. document in 2006 is now being widely promoted by Indigenous peoples globally.

However, a recently published claim implies that unless the U.N. Declaration on the Rights of Indigenous Peoples is adopted by consensus, it might never become legally binding. It further implies that unless the Chair's proposed text[2] is reopened to accommodate certain governments, the Declaration would remain just a statement of theoretical or proposed rights. This claim misstates the nature of our inherent rights. It also narrowly defines the force of the international Declaration and creates misleading conclusions about legally binding international law.

As the Declaration now approaches consideration in the new Human Rights Council and a possible vote in the U.N. General Assembly, it might be helpful to ask ourselves certain questions. What is a U.N. declaration? Is there a relationship between a vote in the U.N. General Assembly and eventual acceptance of a declaration's provisions as legally binding international law? Can the intentions of a few governments diminish the legal effectiveness of an international declaration?

It is true that the Declaration, when adopted, will not be legally binding. Declarations are generally considered to be ;soft law' at the international level; that is, they may have some legal weight but do not have the same legal force as international treaties. But declarations adopted by the U.N. General Assembly do have multiple layers of value:

Adoption of this instrument will give the clearest indication yet that the international community is committing itself to the protection of the individual and collective rights of indigenous peoples. While this Declaration would not be legally binding on States, and would not, therefore, impose legal obligations on governments, the declaration would carry considerable moral force.[3]

Eleanor Roosevelt, in addressing the 1948 U.N. General Assembly, described another declaration, the Universal Declaration of Human Rights (UDHR) as follows: “In giving our approval to the declaration today it is of primary importance that we keep clearly in mind the basic character of the document. It is a declaration of basic principles of human rights and freedoms to serve as a common standard of achievement for all peoples of all nations.”[4]

Declarations of the General Assembly can often articulate perceived principles of international law before those principles have become the usual practice of States. This contributes to the progressive development of international law. Declarations can also incorporate already existing - not just developing - international law.

Additionally, the provisions of a declaration can influence various U.N. agencies, shaping policy decisions and program priorities in important and practical ways. For instance, many U.N. agencies have already adopted the principle of Free, Prior, and Informed Consent (FPIC) as part of their operational policy. Other vital concerns of Indigenous peoples, such as lands and resources, treaties, and the protection of cultural diversity have advanced within agencies via policies, program, studies, and conferences. The responses of agencies to an adopted Declaration can, in turn, beneficially influence public opinion.

International declarations may be invoked by courts in interpreting human rights within some domestic legal systems. For example, the Supreme Court of Canada consistently refers to international instruments for interpretive purposes, regardless of whether Canada has signed or ratified such instruments. U.N. declarations can be, and are, used by human rights treaty monitoring bodies of the United Nations in interpreting international treaties. Declarations may also be used beneficially by Indigenous peoples in standard-setting processes, if an existing declaration helps to reinforce the basic rights and values of
Indigenous peoples.

Noting the many positive aspects of an international declaration, can its eventual effectiveness be predicted by the number of votes in the General Assembly? Clearly, the greater the level of support, the more likely it is that the provisions of the draft Declaration can become, in time, legally binding. Indigenous representatives and advocates worldwide seek this strong support from States.

However, returning to the UDHR as one example, a story emerges that illustrates some surprising turns. The 58 members of the 1948 General Assembly had strong differences regarding various provisions of the declaration.[5] Divergent political and philosophical approaches raised real questions regarding support from States.

Eleanor Roosevelt, recognizing this uncertain dynamic when she addressed the members before the vote, did not ask for consensus. She asked the General Assembly to approve the declaration by an “overwhelming majority as a statement of conduct for all.“[6] Forty-eight nations voted for the UDHR, eight abstained (the Soviet bloc countries, South Africa and Saudi Arabia), and two were absent. The community of nations adopted the declaration ‘without dissent.’

Did the lack of unanimity affect the ability of the provisions of the UDHR to become legally effective? There are two basic paths for a declaration to become legally binding international law. First, the provisions of the declaration can be molded into a treaty (covenant or convention). Those States that become a party to the treaty (through ratification or accession) voluntarily accept a legal obligation to uphold the articles of the treaty. The treaty is binding on those States.

By 1966, eighteen years later, most of the provisions of the UDHR had been drafted into two treaties, the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the International Covenant on Civil and Political Rights (ICCPR). In 1976, when the Covenants entered into force, the ICESCR was binding for 34 States; the ICCPR for 32. Today, 152 States are party to the IESCR, and 154 to the ICCPR. Together with the UDHR, the three documents became known as the International Bill of Human Rights. It might be useful to compare the 1948 UDHR vote with eventual support for the two Covenants.

All of the Soviet bloc countries became 'Parties' to both Covenants. Saudi Arabia did not sign or ratify either Covenant. South Africa signed, but did not ratify the ICESCR. It became a party to the ICCPR.

Several of the 'pro' votes did not translate into later support for the two Covenants. Of the 48 members of the General Assembly who originally supported the UDHR, Cuba, Myanmar, and Haiti have not signed or ratified the ICESCR. Cuba, Myanmar, and Pakistan have not signed or ratified the ICCPR.

Pakistan and the United States of America have signed, but not ratified the ICESCR. China has signed, but not ratified the ICCPR.

Nevertheless, the worldwide acceptance of the principles enshrined in the UDHR has continued to grow and to inspire many other human rights instruments. The IESCR and the ICCPR are considered to be core international human rights instruments. Four other treaties that are ‘core’ are the Convention on the Elimination of All Forms of Racial Discrimination (CERD), Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), and the Convention on the Rights of the Child (CRC). All of these Conventions are considered to have originated in provisions of the UDHR, followed by their own specific U.N. declarations. See ANNEX for the 1948 member’s eventual acceptance or rejection of these six core treaties.

A second way for the provisions of a declaration to become legally effective is for them to become customary international law. They are then legally binding in international law to all States. In time, a provision of a declaration can be viewed as customary international law, if States repeatedly act in accordance with it, and if it can be shown that they believe it is their legal obligation to do so. And, again, it is important to note that certain provisions of a U.N. declaration may already be considered customary international law.

State practice does not have to be unanimous. If a State violates or does not accept a rule, that State cannot prevent the rule from becoming customary international law. But it is necessary for a ‘representative majority of States’ to consider a rule or provision to be their legal obligation. Many of the provisions of the UDHR have now become so respected by States that upholding them has become their usual practice, their custom. Therefore, at least portions of the UDHR now have the status of customary international law.[7]

Even so, some States may consider themselves as not legally bound by certain UDHR provisions. A government might claim to have consistently objected to a particular rule or rules, and not intend to change its position. When Eleanor Roosevelt addressed the General Assembly in 1948, she stated before the vote:

“my Government has made it clear in the course of the development of the declaration that it does not consider that the economic and social and cultural rights stated in the declaration imply an obligation on governmental action.” [8]

Regretfully, the United States continues to echo this position almost 60 years later. In the 2005 Commission on Human Rights (CHR) discussion of the “Right of everyone to the enjoyment of the highest attainable standard of physical and mental health” the U.S. representative said, “the United States believes that while the progressive realization of economic, social, and cultural rights requires government action, these rights are not an immediate entitlement to a citizen.”[9] He then asked that the adoption of the resolution “be decided by a recorded vote” and cast the lone vote against it (with no abstentions).

Additionally, an August 30th, 2005 letter from Ambassador John Bolton shares ‘key concepts’ of the United States government regarding the new Human Rights Council. He writes:

“Our changes reflect the fact that States are only obliged to fulfill obligations under international law. The UDHR is a non-binding document; therefore, as a legal matter, States have no obligations under it.” [10]

What, then, is the duty of a State to uphold provisions that have become customary international law, if the State persistently objected to it from the outset? In international law, it is not clear that consistent objections to an emerging rule of customary international law would prevent that rule from applying to an opposing State. Also, a State’s general objection to the adoption of a Declaration could well be based on procedural grounds. It would not mean that the State is opposed to some or all of its provisions.

In the case of the draft Declaration, any State objections have been limited to specific provisions. State objections have not always been consistent and, in some instances, the provision objected to may already be considered as customary international law.

It also is worth noting that all human rights are inherent (pre-existing) and inalienable (cannot be taken away). It is important to remember that the collective and individual human rights of Indigenous peoples are not being given to us:[T]he law does not establish human rights. Human rights are entitlements that are accorded to every person as a consequence of being human. Treaties and other sources of law generally serve to protect formally the rights of individuals and groups against actions or abandonment of actions by governments that interfere with the enjoyment of their human rights. [11]

The draft U.N Declaration on the Rights of Indigenous Peoples does not create rights. This historic document affirms the pre-existing and inalienable human rights of the Indigenous peoples of the world. It elaborates essential human rights standards and principles. It takes into account and reflects existing human rights as proclaimed in countless human rights resolutions, treaties and other international instruments or rulings. “A discrete body of international human rights law upholding the collective rights of indigenous peoples has emerged and is rapidly developing.”[12] In fact, some of the draft Declaration’s provisions and rules are already becoming customary State practice. [13]

Perhaps not all governments will support the adoption of the U.N. Declaration on the Rights of Indigenous Peoples. However, after decades of intensive discussion and effort, an overwhelming majority of the members of the U.N. General Assembly can ensure that the rights
recognized in the Declaration “constitute the minimum standards for the survival, dignity and well-being of the Indigenous peoples of the world.”[14]

FOOTNOTES:

[1] See, for example, Basic Call to Consciousness, edited by Akwesasne Notes, Revised Edition, Summertown TN, Book Publishing Company, (2005).

[2] The Chairman’s proposed text is the result of years of negotiations between Indigenous peoples and governments on the text of the Declaration (Annex 1 of U.N. Document E/CN.4/2006/79). Revised Chairman’s Summary and Proposal, Draft Declaration on the Rights of Indigenous Peoples at:
http://www.ohchr.org/english/bodies/chr/docs/
62chr/E.CN.4.2006.79.pdf.

[3] United Nations Guide for Indigenous Peoples, Leaflet No. 5, page 1. The United Nations Guide series is published by the Office of the High Commissioner for Human Rights, United Nations Office at Geneva, 2001.

[4] At: http://www.udhr.org/history/ergeas48.htm. Roosevelt was the U.S. representative to the U.N. Commission on Human Rights, and the Commission’s Chairperson. Speech originally published by the U.S. Department of State in “Human Rights and Genocide: Selected Statements; United Nations Resolution Declaration and Conventions,” 1949.

[5] Glendon, Mary Ann, “The Forgotten Crucible: The Latin American Influence on the Universal Human Rights Idea”, Harvard Human Rights Journal, Vol. 16, 2003. At: http://www.law.harvard.edu/students/orgs/hrj/iss16/glendon.shtml.

[6] At: http://www.udhr.org/history/ergeas48.htm.

[7] See, for example, Proclamation of Teheran, proclaimed by U.N. member States at the International Conference on Human Rights at Teheran on 13 May 1968, U.N. Doc. A/CONF. 32/41 at 3 (1968), Article 2: “The Universal Declaration of Human Rights states a common understanding of the peoples of the world concerning the inalienable and inviolable rights of all members of the human family and constitutes an obligation for the members of the international community.” [Emphasis added]

[8] At: http://www.udhr.org/history/ergeas48.htm.

[9] E/CN.4/2005/L.28, U.N. Commission on Human Rights, Sixty-first session, Agenda item 10, April 15, 2005. Audio files, Commission on Human Rights, 5th week, April 15th, 51st meeting, Original Version, at 38:20 ñ 41:33.
At: http://www.ohchr.org/chr61/audio/20050415am.rm.

[10] At: http://www.usunnewyork.usmission.gov/reform-un-jrb-ltr-rights-8-05.pdf (Page two, second paragraph).

[11] United Nations Guide for Indigenous Peoples, Leaflet No. 2, page 1.

[12] S. James Anaya and Robert A. Williams, Jr., “The Protection of Indigenous Peoples’ Rights over Lands and Natural Resources Under the Inter-American Human Rights System”, Harvard Human Rights Journal, Volume 14, Spring 2001.
At: http://www.law.harvard.edu/students/orgs/hrj/iss14/williams.shtml.

[13] See Fergus MacKay, (Forest Peoples Programme), The UN Draft Declaration on the Rights of Indigenous Peoples and the Position of the United Kingdom, May 26 2003.
At: http://www.forestpeoples.org/documents/
law_hr/un_dft_decl_ips_rights_may03_eng.pdf

[14] Revised Chairman’s Summary and Proposal, Draft Declaration on the Rights of Indigenous Peoples, Article 42. At: http://www.ohchr.org/english/bodies/chr/docs/
62chr/E.CN.4.2006.79.pdf.

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THE SELF-CONTRADICTION IN SOME STATES’ OBJECTION TO INDIGENOUS RIGHTS

Stephen M. Sachs, IUPUI

A number of nations, including the United States and Great Britain, have been objecting to numerous of the proposed rights in the working document for the Draft Declaration of Indigenous Rights, under discussion in Geneva, on the ground that these would be collective rights, and collective rights cannot exist because all rights are individual. The instance that since the source of all rights is in individual rights, a theory developed out of John Locke's Second Treatise on Government, that there cannon be collective rights, is a total self-contradiction. To hold that that there are no collective rights would be an admission that their states are not sovereign, that governments and international organizations have no authority, and that corporations, which by their very names are collective entities, which these same governments consider to be artificial persons that they endow with significant rights and authority, have no rights or authority.

While John Locke and these very same governments base their theories of government on individual rights, insisting the authority of collective entities is based on their protecting and enhancing individual rights, and that that authority is limited by individual rights, they clearly believe that collective entities are necessary to give meaning to rights, and that the members of those collective entities have rights. Thus the very basis of their philosophies allows for the members/citizens of Indigenous Nations to come together to collectively establish the rights of their members and for Indigenous Nations, as collective entities to have authority: that is to have a set of rights. While the basis for collective authority and rights of classical liberal or Lockian theory followed by some governments is different than the basis of such rights held by others, there is in fact general agreement that these rights exist. It is time that the representatives of certain states speaking from a classical liberal position cease their ridiculous objection to their own right to speak at an international forum and begin to negotiate the real issues, so that a much needed Declaration of Indigenous Rights can be completed which will be to the benefit of all peoples.

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