DOCUMENT: INT.TXT


                 INTERNATIONAL LAW AND POLITICS
              TOWARD A RIGHT TO SELF-DETERMINATION
                     FOR INDIGENOUS PEOPLES
 
                                            --Glenn T. Morris

     We support the principles that indigenous peoples have the   
     right to exist as distinct peoples of the world, and that    
     they have a right to possession of their territories and     
     the right to sovereign self-determination.  We call upon     
     the people of the world to join us in asserting that the     
     genocide and dispossession of indigenous peoples is a mat-   
     ter of rightful concern to the world community, as are mat-  
     ters of involving a consistent pattern of gross violations   
     of the rights of the indigenous peoples and nations under    
     principles established by international law, and that ac-    
     tion must be taken by the world organizations and specifi-   
     cally the United Nations.

             Statement of the Indigenous Peoples' Fourth Tribunal 
              on the Rights of the Indians of the Americas, Nov-  
              ember 28, 1980

     The historical operation of a system of legal norms and
standards, ordained by a handful of states, and imposed upon the
overwhelming majority of the world's peoples without their consent
or input, is considered perverse and unjust by most indigenous
peoples.  This system, pretentiously known as "The Laws of
Nations," continues to operate at the threshold of the 21st century
without meaningful participation by hundreds  of millions of the
planet's indigenous peoples.  This observation is not meant to
suggest that all that has been, or continues to be, recognized as 
"The Laws of Nations" either unjust or unacceptable.  What it *is* 
intended to suggest is that, as is now readily acknowledged,
colonial or settler states should not possess the right to impose
their particular definition of just or equitable relations between
peoples on the majority of humankind and call it "law." 

     Only in the past fifty years, or the past thirty for over a
third of the states of the world, has self-determination been
realized through the recognition that colonialism is abhorrent to
the desired liberty of humankind.  Through the acceptance of the
U.N. charter and other human-rights instruments, self-determination
of peoples is a universally accepted aspiration.  Unfortunately,
thousands of the world's peoples have yet to realize that
aspiration.  Indigenous peoples from Burma to Brazil, from the
Arctic to Australia, continue to be denied the right to control
their affairs in any effective and meaningful manner.  In many of 
these countries such as Guatemala, Bolivia, Greenland, and Ecuador, 
indigenous peoples comprise a majority of the total state
population;  yet, they often remain disenfranchised and
subordinated by the descendants of the original settler or
colonizing classes.  Despite recent and tentative advances in the
recognition of the rights of indigenous peoples in such places as
Nicaragua, Greenland, and Panama, and despite some progress in
certain international forums, the overwhelming majority of
indigenous peoples are forced to struggle for their very existence 
against the enormous pressure of encroaching states surrounding
them. 

     Through the application of international legal and political
norms, many peoples under colonial domination have achieved some
level of political self-determination.  Many representatives of
indigenous peoples and nations point to the example of the
decolonization of southern Africa as an example to be emulated in
the case of indigenous peoples elsewhere.  Just as principles of
self-determination have been applied to liberate the peoples of
Zimbabwe or Namibia, where the idea of Black majority rule is 
accepted without question, so, too, should such principles apply to
all indigenous peoples.  This essay is devoted to the examination
of why such principles have not been applied to indigenous peoples
an how the operation of European and American legal doctrines has
been used to maintain their colonial condition.  One particular
paradox in this examination will be the recognition that even by
their own legal standards, the Euroamerican colonization of the
Western hemisphere (and, by extension, other indigenous peoples'
lands across the globe) was unjustified.

     More important, the purpose here is to indicate that through
the application of contemporary principles of international law,
particularly in the area of decolonization and self-determination,
indigenous peoples must ultimately be entitled to decide for
themselves the dimensions of their political, economic, cultural,
and social conditions.  It must be emphasized that the construction
of this position is not based in the supposition that because
indigenous peoples constitute ethnic or cultural minorities in
larger societies they must be protected due to that status.  
Rather, the position is that since Europeans first wandered into
the Western hemisphere they have acknowledged the unique status of
indigenous peoples qua indigenous peoples.  That status is only now
being reaknowledged through the application of evolving principles
of positive and customary international law.

     While such assertions may seem novel and untenable at present,
it should be recalled that just forty years ago, tens of millions
of people languished under the rule of colonial domination;  today,
they are politically independent.  Central to their independence
was the development and acceptance of the right to self-
determination under international law.  Despite such developments,
many colonized peoples were forced by desperate conditions to
engage in armed struggle to advance their legitimate aspirations. 
Similarly, for many indigenous peoples few viable options remain in
their quest for control of their destinies.  Consequently, a
majority of the current armed conflicts in the world are not
between established states, but between indigenous peoples and
states that seek their subordination.  Armed struggle for most
indigenous peoples represents a desperate and untenable strategy
for their survival.  Nonetheless, it may remain an unavoidable
option for many of them, because if their petitions seeking
recognition of their rights in international forums are ignored,
many indigenous peoples, quite literally, face extermination.

     Although this chapter has implications for the status of all
indigenous peoples, its concentration is primarily within the
United States.  This is because, in several ways, the status of
indigenous nations within the U.S. is unique, and the policy of the
United States toward indigenous nations has frequently been
emulated by other states.  The fact that a treaty relationship
exists between the United States and indigenous nations, and the
fact that indigenous nations within the U.S. retain defined and 
separate land bases and continue to exercise some degree of
effective self-government, may contribute to the successful
application of international standards in their cases.  Also, given
the size and relative power of the United States in international
relations, and absent the unlikely independence of a majority-
indigenous nation-state such as Guatemala or Greenland, the
successful application of decolonization principles to indigenous
nations within the U.S. could allow the extension of such
applications to indigenous peoples in other parts of the planet.

     One final introductory point:  Indigenous peoples, as all
colonized people, have come to realize the importance of semantics
in their quest for self-determination.  Consequently, the use of
several key terms in this chapter is deliberate.  The terms
"indigenous peoples" or indigenous nations" are used intentionally
for the reason that, if nothing else, they accurately describe the
original peoples of given territories.  Ideally, the specific names
of indigenous nations would be (and have been) used, but for the
sake of clarity and brevity, that practice has been limited here. 
Although the term "nation" denotes a socio-political construct of
European nature, the concept carries with it considerable 
importance in international debates.  Fortunately, among the ranks
of indigenous peoples a discussion has begun that calls into
question the usefulness of forcing indigenous reality into the
forms developed by Europeans.  Consequently, new descriptions of
the historical organization of indigenous societies, as well as
indigenous aspirations, are being formulated.  The result may be
the evolution of completely novel international relationships
between and among peoples.  Despite this development, the term
"nation" is deliberately used in this chapter.  A reasonable
explanation for the use of the term was provided by Oren Lyons  of
the Onondaga Nation:

     We are the original people on this land.  We are the land    
     keepers.  We are not a minority within our own lands.  One   
     must understand that terminology is very important.  How     
     you address yourself is very important to (Euroamericans).   
     If you try and change that terminology, you will find out    
     how important it is.  So we must speak of ourselves as       
     people...If you fall into the category of "tribes" or        
     "bands," a gaggle of geese, a herd, a group...you're more    
     than that.  It's important not to call Indians "bands."      
     You try to change (Euroamerican) terminology...they will     
     not accept it because it is that important.  That terminology 
     is just as important to you.  So, you should first of all    
     represent yourself as what you are.  Nations are not according 
     to size, nations are according to culture.  If there are     
     twenty people left who are still representing their nation, in 
     the eyes of our people, they are a nation.  Who are we to say 
     less?



              HISTORICAL RIGHTS OF INDIGENOUS PEOPLES

     The historical antecedents of the legal rights of indigenous
peoples may be found centuries prior to the European arrival in the
Western hemisphere.  After the establishment of the Holy Roman
Empire, but prior to the colonial travels of Europeans to the "New
World," distinctions drawn by Europeans between the various peoples
of the know world were generally in terms of Christians and
"infidels."  With the expansion of Christianity, the acquisition of
territory from newly discovered peoples (such as those in Asia and
Africa) or from familiar peoples (particularly the Saracens and
Turks) who were unwilling to accept Christian doctrines and who
were therefore subject to "reconquest," was justified through the 
extension of the Roman legal principle, territorium (res) nullius. 
Under this extension, a "discoverer" could legally occupy a
territory that was already inhabited (by "infidels") and extend
Christian sovereignty over it.

     Eventually, this principle of effective occupation was
rejected in favor of the principles of conquest and effective
possession.  Under these new principles, justification for
extension of Christian sovereignty rested upon the attitude that
infidels were the enemies of Christian civilization and that non-
believers could be dispossessed of their territories justifiably by
subjugation through wars of conquest.  They lost all rights  to
territorial integrity as separate and distinct peoples.  Not all 
Christian jurists or legal theorists of the time accepted the
premises upon which the principle of conquest was founded.  Among
the more notable defenders of the rights of non-Christians to
maintain control over their territories were Thomas Aquinas
(1227-1274) and Sinibaldo Fiesco, who became Pope Innocent IV
(1243-1254).  Although the theories of these theologians and legal
scholars characterized non-Christians in pejorative terms, there
was a fundamental acknowledgment of a difference between the 
natural law of human-created institutions (summa natura) and the
divine law of God that distinguishes between the faithful and
infidels.  According to Aquinas, although political society should
disapprove of immoral acts, i.e., spiritual infidelity, the state
must make allowances for the "natural sinfulness" of human beings. 
In this way, the higher good fostered through the promotion of a
civilized, Christian society is maintained through the peaceful
integration and conversion of infidels, rather than through their
violent subjugation or destruction.

Spanish Colonial Law

     Columbus' return to Europe after his first voyage to the
Americas promoted enormous debate regarding the status of the
peoples he encountered.  This debate included the scope of
authority of European states to extend themselves over lands across
the Atlantic.  The first known European documents addressing the
question of dominion over the "New  World" were the Papal Bulls of
Pope Alexander VI.  Signed on May 3 and 5, 1493, the Alexandrine
Bulls acknowledged the right of the sovereigns of Castille and
Aragon to acquire and Christianize the islands and terra firma of
the new regions.  The issuance of the bulls created immediate 
tensions between competing European powers concerning the new
territories, tensions that would remain unresolved in Europe for
over 300 years and that continue in the Americas today.  One
interesting passage from the Bull "Inter Caetera" of may 4, 1493,
represents the first European acknowledgment of the national
character of indigenous peoples of the New World:

     [Columbus] found certain remote islands and also mainlands,  
     which had not been discovered before by others before [sic]  
     in which dwell very many tribes, peacefully living, and, as  
     it is asserted, going naked and not eating meat; and so far  
     as your messengers are able to conjecture THESE nations      
     living in the said islands and lands believe that there is   
     one God and one Creator in the heavens (emphasis added).

     Subsequent to their initial contact with indigenous peoples in
the Western hemisphere, the Europeans examined the source, depth,
and legitimacy of their claims to the lands upon which they
happened, vis-…-vis the nations already occupying the same lands. 
Ongoing discussion concerning Spanish claims in America took place
in Paris in early 16th century, primarily facilitated by John Mair
(1469-1542) and his _Commentary on the Sentences of Pater Lombard_. 
One of Mair's most prominent students was Franciscus de Victoria
(1480-1546), a professor in Glasgow and Paris, widely recognized as
"the father" of modern international law.  Mair's writing
challenged the popular contention that the Pope was vested in
independent, secular political associations or kingdoms.  Mair
agreed with earlier theorists who taught that infidels (or 
indigenous peoples) could be subdued if they failed to convert to 
Christianity, but held there was no justification for conquest if 
conversion requirements were met.  He also believed, in the
Aristotelian tradition, that slavery is a natural state for some
peoples, and that civilized nations have a natural right to rule
the less civilized.

     In Spain, the development of legal doctrines regarding the
lands and peoples of the Western hemisphere was stimulated by the
sermons of Father Antonio de Montesinos in 1511, which castigated
the Spanish for their enslavement and slaughter of the indigenous
peoples of the Americas.  His sermons led to convocation of legal
theorists and theologians at Burgos in 1512.  Two principal views
emerged from the meeting, one represented by Juan L˘pez de Palacios
Rubios (1450-1542) and the other by MatĦas de Paz (1468-1542). 
Palacios Rubios advanced the position that the Alexandrine Bulls
provided complete legal authority for the Spanish conquest of
indigenous nations, since the Pope was heir to Christ's temporal
and spiritual authority.  According to Palacios Rubios, this
authority enabled the Pope to assert control over all infidels and
compelled their obedience to the rule of the Roman Catholic Church. 
Rubios was also author of the infamous _Requirimiento_ resulted in
immediate attack by the Spaniards on recalcitrant communities and
execution of resisters.  It also provided the Spanish with what
they believed to be legal authority to wage a "Just War" against
indigenous nations and peoples.  This use of the _Requirimiento_ as
a mere rationalization has been viewed by some commentators as an
"ironic, if not ridiculous, character of a formality intended to
ease the conscience of the Spanish."

     Conversely, MatĦas de Paz, in his work _Concerning the Rule of
the Kings of Spain Over the Indians_, was the first European
scholar to repudiate the application of the Aristotelian theory of
natural slavery to American Indians.  While agreeing with the
fundamental precept that the Pope and Church alone had authority to
dominate the world, MatĦas went considerably further than Palacios
Rubios in recognizing the humanity of non-Christians.  MatĦas
distinguished between those non-Christians who had been exposed to
Christian teachings and rejected them and those, such as indigenous
peoples, who had never known the "true faith."  MatĦas de Paz
suggested that American Indians, due to their ignorance of
Christianity, could legally resist ANY WAR levied against them by
the Spanish through the _Requirimiento_ process.  Since "wars
cannot be just on both sides," either the Spanish possessed the
right to levy a Just War, or the Indians had legal right to resist. 
Consequently, the Spanish were in his view without legal authority
to enslave or dispossess indigenous nations.  According to MatĦas
de Paz, indigenous nations possessed the absolute right of self-
defence, producing the logical conclusion that the Spanish wars
were legally unjust and unjustifiable.  Without a basis to wage a
Just War, the Spanish had no legal right to dispossess indigenous
nations of their lands or their inherent sovereign authority to
govern themselves.

     The Burgos debates between Palacios Rubios and MatĦas de Paz
were important for three reasons:  first, they revealed
dramatically divergent perspectives among European scholars
regarding the rights of indigenous peoples.  Second, they led to
promulgation of the Laws of Burgos, theoretically regulating every
aspect of Spanish colonial life in "New Spain" (in practice, of
course, these laws were routinely violated or ignored).  Third,
they sowed the seeds for subsequent discussions of the same
subject.  The most critical of these subsequent debates took place
at Vallodolid between Bartolom‚ de Las Casas (1474-1566) and Juan
Gin‚s de Sep£lveda (1490-1573).

     Prior to the crucial Las Casas/Sep£lveda debates of 1550, the
Spanish jurist Franciscus de Victoria authored several articles
detailing the limits of papal and Spanish authority over indigenous
peoples and their territories.  Victoria's conclusions were clear: 
indigenous nations of the Americas exercised

     true dominion over their property in both public and private 
     matters, just like Christians, and...neither their princes nor 
     private persons could be despoiled of their property on the  
     ground of not being true owners.  It would be hard to deny   
     those who have never done any wrong, what we grant the       
     Saracens and Jews, who are persistent enemies of             
     Christianity.  We do not deny that these latter peoples are  
     true owners of their property, if they have not seized lands 
     elsewhere belonging to Christians.

     He also concluded that because the Pope was not lord of the
entire world, there could be no exercise of papal authority over
indigenous nations.  Further, Victoria asserted that Christians not
only were without legal claim to already occupied lands of the
Americas, but (as was previously recognized by MatĦas de Paz) they
were without sufficient legal right to levy a Just War against
indigenous peoples based on the claim that the new territories now
belonging to Spain through papal donation, or based on the Indian's
rejection of Christianity.  These conclusions effectively refute
any European or Euro-derived claim to the Western hemisphere based
on the so-called Rights of Conquest doctrine.

     Victoria was the first European theorist to suggest that
indigenous nations in the Americas possessed the inherent sovereign
power to make territorial cessions through voluntary and informed
agreements in the form of international treaties.  This principle
was endorsed, though by no means universally, for the succeeding
five centuries by various jurists, international legal scholars,
and political leaders.  According to the noted U.S. legal theorist
and historian Felix S. Cohen, the concept of treating between
European states and indigenous nations, as first suggested by
Victoria, was rooted in three basic assumptions:

     1.  that both parties to the treaty are sovereign powers;    
     2.  that the Indian [nation] has a transferable title of some 
         sort to the land in question;  and 
     3.  that the acquisition of Indian lands could not safely be 
         left to individual colonists, but must be controlled by  
         government monopoly.

     Influenced  by the writings and lectures of Victoria, Pope
Paul III issued the Bull "Sublimus Deus" in 1537, instructing his
Catholic subjects to view indigenous peoples as true humans. 
Further, he instructed European sovereigns that "the said Indians
and all other people who have been or may later be discovered by
Christians, are by no means to be deprived of their property, even
though they be outside the faith of Jesus Christ;  and that they
may and should freely and legitimately enjoy their liberty and
possession of their property;  nor should they in any way be
enslaved;  should the contrary happen, it shall be null."  By 1540,
reports of massacres of the indigenous peoples of the Americas by
the Spaniards were becoming so common, and were so troubling to
Charles V of Spain, that he convened a council of jurists and legal
scholars to discuss the rights and responsibilities of the Crown in
the Western hemisphere.  A series of councils and debates took
place in the succeeding years, culminating in the debate between
Las Casas and Sep£lveda.  The latter, who had never traveled to the
Americas, and who had seen American Indians only in the slave
market in Seville, argued in favor of the Spanish conquest of
indigenous peoples, whom he viewed as sub-human infidels:

     In defending the Spanish rule, Sep£lveda argued the
     superiority of Spaniards and the inferiority of Indians.  A  
     just war was one in which the barbarian enemy was offered an 
     opportunity to yield peaceably, as in the _Requirimiento_    
     procedure...He attacked the American Indians, and most       
     particularly the Aztecs as stupid, inept, uncivilized, cruel, 
     idolatrous and immoral.  Indeed, they were "natural slaves."

     Las Casas, a Dominican missionary who had traveled and lived
among indigenous nations throughout the Caribbean and Latin America
between 1502 and 1547, argued fervently that native peoples could
not be subjugated legally by the Spanish.  He agreed with Victoria
that the indigenous nations of the Western hemisphere were the
rightful sovereigns of their territories, that Europeans had no
cause to wage Just Wars, and that conquest of the region was
"unlawful, tyrannical, and unjust."  Although the debate did not
result in dramatic policy changes in Spain, the legal and political
repercussions were felt in the Americas, at least temporarily.  The
Spanish had no intention of vacating their colonies, but the Crown
did pass a number of laws, beginning in 1573, explicitly
recognizing the territorial integrity of certain indigenous
nations.  With the passage of these laws, the Spanish implicitly
created a system of trusteeship for the indigenous peoples of New
Spain.  This is not to suggest that the trust was consistently
upheld, that the rights of indigenous nations were respected, or
that the repression and subjugation of native peoples was
diminished.  It is intended, instead, to suggest that "the
oppression was in defiance of, rather than pursuant to, the laws of
Spain."  It also suggests, as the Papal Bulls and Spanish _Cedulas_
themselves did, that violations of Spanish law should have rendered
the extension of Spanish territorial sovereignty null and void.


English Innovations

The Spanish debate concerning the rights of indigenous peoples was
carried to northern Europe and influenced the legal and political
practices of other European colonial powers (Spanish Catholic
influence was extended to England, for instance, until 1558, when
the Protestant Queen Elizabeth I ascended to the throne).  English
colonizing doctrines, perhaps the most enduring for indigenous
peoples, were employed first on the Irish and then exported to the
Western hemisphere.  According to Robert Williams, this colonial
style synthesized "medievally derived legal theories on the
diminished status and rights of normatively divergent savage
people, anti-Spanish religious and mercantile nationalism, the
English innovations of Spanish colonizing practice."

     English justifications for the dispossession of North America
from indigenous peoples derived from an Elizabethan Protestant
doctrine declaring the English in covenant with God to bring "true"
(as opposed to Spanish) Christianity to "heathen native."  The
development of English legal doctrines regarding colonization was
heavily influenced by George Peckham, who, in turn, relied on the
writings of Victoria.  Peckham, however, used Victoria for his own
purposes, primarily to justify English colonization under the Laws
of Nations by asserting that English Christians had the lawful
right to trade with indigenous peoples worldwide.  According to
Peckham, if infidels refused to trade, the English were then
entitled to conquer the resisters and dispossess them of their
lands.  By this reasoning, all that was required to wage a Just War
was to come upon a people that was unwilling to trade or accept
missionaries.  The English claimed to -- but probably did not --
feel legally justified in conquering American Indians on this
basis.  In the example of the colonization of Virginia, English
colonizers, cognizant of the questionable moral and legal
justification for their invasion, engaged in self-deception,
refusing any objective analysis of their actions:

     Instead, a strategy of silence, in order to suppress the     
     arousal of any contrary discourse, was agreed on.  The justice 
     of the company's royally assigned title in America would     
     operate simply on a presumption of English superior rights in 
     America...Conquest of America itself would prove the superior 
     right of the English to the Indians' America...By the early  
     seventeenth century at least, Spaniards recognized as well as 
     did the English that legal arguments had little to do with   
     European "rights" in America.

     Hence, the imposition of the European presence in the Americas
cannot reasonably be asserted to be the consequence of adherence to
law, but rather the operation of sheer force.  The a priori
justifications of the English, while soothing to the conscience of
those invaders who benefitted, demand serious scrutiny because they
constitute the legal cornerstone for all subsequent English
settlement in the Western hemisphere.  As often happens in the
development of law affecting indigenous peoples, these early self-
serving justifications of the English became enshrined and
legitimized in legal precedent.  The 1622 "Barkham's Case" held,
despite contrary writings by Vattel and other legal authorities,
that the legal and political authority of "heathen infidels" was
necessarily abrogated when it came into contact with Christian
sovereignty.  With such reasoning, expansion of English and U.S.
colonization of indigenous peoples was inevitable.


          THE STATUS OF INDIGENOUS NATIONS IN THE U.S.

     The first sustained European settlements in the area now know
as the United States were established in 1565 at St. Augustine,
Florida;  1607 at Jamestown, Virginia;  1609 at New Amsterdam (New
York) and Santa F‚, New Mexico;  and 1620 at Plymouth,
Massachusetts.  Without exception, these colonists were greeted by
native peoples with friendship and openness, as Columbus had been
before them.  In return, indigenous nations were confronted with
racism, massacres, religious bigotry, and systematic fraud.  As
discussed above, by the time Europeans began colonizing the
Americas, they had established and adhered to (at least among
themselves) a number of accepted legal norms concerning territorial
acquisition and possession.  Among the most basic of these
standards was the "right to use that which one had created,
possessed or occupied without wrongfully taking [it] from another." 
As concerns land, this principle was known as possession of
territorium nullius, acknowledging the rights of those who had
occupied territories over prolonged periods of time, under the
principle of "immemorial possession."

     Enforceable rights under immemorial possession were recognized
by the legal theorists of the Middle Ages, as they had been by the
Romans before them.  The doctrine of immemorial possession,
combined with recognition of the inherent sovereignty and
possessory right of indigenous nations, was found to be so
compelling by the Dutch that they began to negotiate treaties for
land cessions from indigenous nations from their first contact with
one another.  The Swedish soon followed the Dutch example, as did
some English colonists, reinforcing conclusions that the Doctrine
of Discovery did not diminish the sovereign rights of indigenous
peoples, but was a mechanism of controlling competing European
states in their negotiations with indigenous nations regarding
territorial cessions.

     After the 17th century, the discovery doctrine was generally
understood not to limit or divest indigenous nations of any
authority over their territories.  The doctrine was developed as a
regulatory mechanism between European sovereigns to prioritize
their rights to engage in international relations with indigenous
nations, and to preempt other European states from interacting with
the same indigenous nation.  The discovery doctrine and the
limitations that Europeans knowingly placed on their claims to
lands in the Americas were succinctly described by United States
Supreme Court Chief Justice John Marshall:

     The principle, acknowledged by all Europeans, because it was 
     in the self-interest of all to acknowledge it, gave to the   
     nation making the discovery, as its inevitable consequence,  
     the sole right of acquiring the title and of making
     settlements on it.  It was an exclusive principle which shut 
     out the right of competition among those who had agreed to it. 
     It regulated rights given by discovery among the European    
     discoverers;  BUT COULD NOT AFFECT THE RIGHTS OF THOSE ALREADY 
     IN POSSESSION, either as aboriginal occupants or by virtue of 
     discovery made before the memory of man.  It gave the
     exclusive right of purchase, but did not found that right on 
     a denial of the possessors to sell [emphasis added].

     European states fully understood the nature of their
negotiations with the indigenous nations of the Americas. 
Indigenous governments acted as sovereigns, despite attempts to
construct circumventions and rationalizations, with all the
attendant authority of this status.  The years immediately
preceding the American Revolution saw an effort, by both the
British and the newly formed Continental Congress of the United
States, to centralize their relations with indigenous nations. 
This effort represented a deliberate decision to remove the power
to negotiate with native nations from the individual colonies and
vest it exclusively with the national government, thereby insuring
the uniformity of negotiations between equal national sovereigns. 
In an effort to enlist the support of indigenous nations for the
Revolution, the Americans began to treat formally with native
governments.  The first of these treaties was later described by
the U.S. Supreme Court as "the model of treaties between the
crowned heads of Europe."

     The founding documents and laws of the United States remove
any doubt that the nascent state recognized the national
sovereignty of indigenous nations;  the intention to recognize
indigenous sovereignty is clear.  Additional evidence may be
obtained from the opinions of William Wirt, an early attorney
general of the United States:  "So long as a tribe exists and
remains in possession of its lands, its title and possession are
sovereign and exclusive.  We treat with them as separate
sovereignties, and while an Indian nation continues to exist within
its acknowledged limits, we have no more right to enter upon their
territory than we have to enter upon the territory of a foreign
prince.

     The point, then once conceded, that the Indians are
     independent to the purpose of treating, their independence is 
     to that purpose as absolute as any other nation.  Being      
     competent to bind themselves by treaty, they are equally     
     competent to bind the party who treats with them.  Such a    
     party cannot take benefit of the treaty with the Indians and 
     then deny them the reciprocal benefits of that treaty on the 
     grounds that they are not independent nations to all intents 
     and purposes...Nor can it be conceded that their independence 
     as a nation is a limited independence.  LIKE ALL OTHER       
     INDEPENDENT NATIONS, they have absolute power of war and     
     peace.  LIKE ALL OTHER INDEPENDENT NATIONS, their territories 
     are inviolable by any other sovereignty...As a nation, they  
     are still free and independent.  They are entirely self-     
     governed, self-directed.  They treat, or refuse to treat, at 
     their pleasure;  and there is no human power which can rightly 
     control them in the exercise of their discretion in this     
     respect [emphasis added].
     With this policy, the United States negotiated treaties with
the sovereign indigenous peoples of North America.  These treaties
were, and continue to be, recognized under Article VI of the U.S.
Constitution of the U.S. Constitution as the supreme law of the
United States, and continue to warrant the same respect and
enforcement as any other international treaty.  Of equal importance
is the principle of continued respect for the national sovereignty
of the indigenous nations that entered into those treaties.  In the
previous section, evidence was advanced that European states were
forced to acknowledged the objective sovereignty of indigenous
nations.  This recognition eventually translated into over a
century of treaty-making by the governments of France, Spain,
Sweden, Britain, the Netherlands, and the United States with
various indigenous nations.  Between 1778 and 1871, the United
States entered into and ratified more than 370 treaties with
indigenous peoples.  Between 1871 and 1902, new covenants between
the governments were formalized in "agreements."  As a practical
matter, particularly as regards U.S. policy that continued to
define indigenous nations as sovereign, the semantic difference
between treaties and agreements was of limited importance.  The
change reflected internal institutional conflicts between the U.S.
Senate and House of Representatives over which would exert greater
influence in the are of indigenous relations, but the overall
perception of the United States toward native sovereignty was not
altered.

     As with all treaties, it would be reasonable to view the
covenants between the United States and indigenous nations in an
international context.  They should be reviewed in light of the
norms and developments that govern all treaties in the
international arena.  One underlying assumption should be that
treaties represent legal obligations by nations of people, entered
into in good faith, the material parts of which must be honored by
the parties to the accord.  Treaties are, among other things,
bilateral compacts between nations or states.  The United States
and indigenous nations entered into agreements on a co-equal legal
footing, and the agreements should be accorded the same respect as
other bilateral or multilateral treaties in the international
community.  U.S. courts have never upheld the claim that treaties
between indigenous peoples and the U.S. are inferior to, or should
be accorded any less respect, than any other treaty signed and
ratified by the United States.

     Treaties between the United States and indigenous governments
remain in force, require compliance by all parties, and have not
been diminished in their international character.  It should be
noted that the international dimensions of these treaties have been
supplemented in two important respects by the courts of the United
States.  First, the canon of construction for these treaties
requires that they are to be interpreted as the native negotiators
and signatories would have understood them.  Second, treaties are
to be interpreted liberally by the courts, with ambiguities
resolved in favor of indigenous interpretations.  Additionally,
U.S. courts will not find an implied abrogation of a treaty through
subsequent treaty or legislation;  the intent to abrogate the
treaty must be expressly stated by the Congress.  Acceptance of
these canons of construction in no way diminishes the nature or
force of the treaties, but rather recognizes the unique character
of the relationship -- geographically and politically -- between
the United States and indigenous nations.  These canons of
construction also represent a recognition by the United States of
the fraudulent and coercive techniques it often employed in
securing indigenous agreement to the treaties.

     These principles notwithstanding, it has been asserted that
the treaties between the United States and indigenous nations do
not properly fall within the international definition of a treaty
under international law.  Such assertions are disputed not only in
U.S. case law -- as Vine Deloria, Rebecca Robbins, and other
contributors to this volume make abundantly clear -- but they also
find disfavor in principles advanced by international experts.  It
cannot be denied that as the 20th century comes to a close many
international legal scholars and jurists refuse to recognize an
international status for indigenous peoples or for the treaties to
which they are parties.  This is at least partly a function of
powerful states, the United States among them, that argue that
relations between states and indigenous peoples are purely matters
of internal, domestic jurisdiction.  This position is shared by
virtually every member state of the United Nations that is engaged
in relations with indigenous peoples.

     While it is true that the United States Congress has passed
thousands of laws in the area of U.S.-indigenous affairs, to
suggest that the unilateral acts of a legislature can diminish the
national sovereignty of indigenous nations that are thousands of
years old seems an unjustifiable conclusion.  Although the United
States claims that its national legislature possesses such rights
under the "plenary power doctrine," its assertion is not unlike
similar claims by other colonizing states that have maintained that
their relations with colonized peoples are purely domestic issues. 
Asserting such claims, however, does not accord them acceptance
under law.  The roots of the assertion that the United States
possesses exclusive domestic jurisdiction over its relations with
indigenous nations can be found in U.S. case law and the self-
serving legislation that often accompanied it.



             U.S. COLONIZATION OF INDIGENOUS NATIONS

     Prior to the War of 1812, the military, economic, and
political strength of the United States was inadequate to colonize
all of the indigenous nations whose territories were found east of
the Mississippi River.  By the 1820s, however, the power of the
United States had been consolidated considerably, to the extent
that many indigenous nations were vulnerable to military invasion
by U.S. forces.  The expansion of the U.S. was fueled by the racist
philosophy of Manifest Destiny.  Under this philosophy, the
Americans believed that through divine ordination and natural
superiority of the white race, they had a right (and indeed an
obligation) to seize and occupy all of North America.  Typical of
the pronouncements from supporters of the philosophy, Senator
Thomas Hart Benton proclaimed that Euroamericans "had alone
received the divine command to subdue and replenish the earth," and
indigenous people had no right to the land of the Americas because
this land had been created for use...by the white races...according
to the intentions of the Creator."  Several years later, racist
sentiment had not tempered.  On the floor of the United States
Congress, the motives underlying the colonization of indigenous
nations were made clear:

     Congress must apprise the Indian that he can no longer stand 
     as a breakwater against the constant tide of civilization...An 
     idle and thriftless race of savages cannot be permitted to   
     stand guard at the treasure vaults of the nation which hold  
     our gold and silver...the prospector and miner may enter and 
     by enriching himself enrich the nation and bless the world by 
     the result of his toil.

     During the 19th and 20th centuries, the philosophy of Manifest
Destiny was accompanied by several pieces of legislation that
accomplished under cover of law that which would not have been
legally justifiable through military force.  The legislation,
discussed below, was invariably framed and adopted under the
pretense of assistance to indigenous nations in making the
transition to the U.S. brand of "civilized" society.  The U.S.
definition of civilization, not surprisingly, was a pungent
combination of fundamentalist Christianity, unrepentant racism, and
economic Darwinism.  President John Adams prefaced this philosophy
in a letter to Judge Tudor:

     What infinite pains have been taken and expenses incurred in 
     treaties, presents, and stipulated sums of money, instruments 
     of agriculture, education...to convert these poor savages to 
     Christianity!  And, alas! with how little success!  The      
     Indians are as bigoted to their religion as the Mohametans   
     [sic] are to their Koran, the Hindoos are to their Shaster,  
     the Chinese to Confucius, the Romans to the Saints and angels, 
     or the Jews to Moses and the Prophets.  It is a principle of 
     religion, at bottom, which inspires the Indian with such     
     invincible aversion both to Civilization and Christianity.   
     The same principle has excited their perpetual hostilities   
     against the colonists and the independent Americans.

     By 1848, the United States had consolidated its political,
economic and military power sufficiently to abandon any remaining
subtleties in its colonization of indigenous peoples.  In his
report on the status of relations between the United States and
Indigenous nations, as well as his prescription for a successful
future policy, Commissioner of Indian Affairs William Medill
reported that he favored the exercise of direct colonial power over
the Indian nations:
     Apathy, barbarism, and heathenism just give way to energy,   
     civilization and Christianity...The Policy already begun and 
     relied on to accomplish objects so momentous and so
     desirable...is, as rapidly as it can safely and judiciously  
     be done, to colonize our Indian tribes...within a small      
     district of country, so that, as the game decreases and      
     becomes scarce, the adults will eventually be compelled to   
     resort to agriculture and other kinds of labor to obtain a   
     subsistence...It may be said that we have commenced the      
     establishment of two colonies for the Indian tribes that we  
     have been compelled to remove;  one north, on the headwaters 
     of the Mississippi, and the other on the Western borders of  
     the Missouri and Arkansas in Oklahoma Territory.

     By its own admission, the U.S. had thus embraced a policy of
colonizing indigenous peoples, and it augmented its policy with
additional legislation.  Through this policy, as Ward Churchill
explains in Chapter Five, on land struggles, indigenous nations
were confined to enclaves a fraction of the size of their original
territories.  Nor did U.S. expropriation of native land holdings
end, as is popularly imagined, during the early part of the 20th
century.  Between 1936 and 1976, over 1.8 million acres of land
were removed from the control of indigenous nations by the federal
government.  Although these seizures were usually accorded some
monetary compensation, the cessions were not made voluntarily by
the native peoples involved.  The damage inflicted upon the
remaining territorial integrity of the indigenous nations involved
is unquantifiable, and, arguably, such transactions constitute
breaches of international standards of behavior.


Political Colonization

While all this was going on, a series of statues including the
Major Crimes Act (1885), General Allotment Act (1887), Indian
Citizenship Act (1924), Indian Reorganization Act (1934), and
various  termination  and relocation  acts during the 1950s and
'60s -- each of them  discussed in  this text by Rebecca Robbins
and others -- were subsequently passed in order to extend absolute
U.S. control over jurisdiction, land tenure, national allegiance,
and governance over even the residues of indigenous territoriality. 
The political colonization of indigenous nations becomes more
complex as the process matures.  As colonial administrations become
more firmly entrenched, the comprador class on reservations refuses
to acknowledge the role of the United States in the colonization of
indigenous peoples at all.  Tribal regimes, ostensibly operated by
indigenous peoples, are ultimately influenced by non-indigenous
decisionmakers, usually in Washington D.C.  The appearance of self-
determination is nothing more than colonial self-administration. 
In this way, as Voltaire stated, by maintaining the illusion of
freedom, volition itself is captured, and subjugation becomes
complete.  Despite some recent changes in the way that the federal
government views its relations with indigenous nations, the
ultimate decisionmaker concerning the parameters of indigenous
self-determination is the U.S.  In language that the U.S. considers
benevolent, but that must ultimately be considered stifling to
indigenous peoples, the U.S. policy of administering indigenous
nations has been described in the following terms:

     A [native nation] is free to maintain or establish its own   
     form of government...[but periodically] Congress has by      
     statute dictated the manner of choosing tribal officials or  
     other aspects of the [Indian nation's] government...But if   
     Congress intends to replace the authority of an established  
     form of government, its intent must be clearly indicated and 
     tribal authority will continue, to the extent that it can    
     coexist with Congress' alterations.

     This attitude of administration resembles virtually any of the
late colonial period.  Certainly, it is similar to that of Portugal
in its assertion of ultimate control over the governments of the
colonized peoples of Angola and Mozambique.  Portugal also
contended that the colonies were merely overseas provinces which,
with Portugal itself, constituted a single, unitary state. 
Because, according to Portugal, the colonies were actually
provinces, they were subject only to municipal jurisdiction of
Portugal.  This nation-state adamantly refused to recognize the
right of its colonies to independence and self-determination. 
Accordingly, it administered the colonies from Lisbon, allowing
"self-government" only as defined by the colonial power, and
ignoring the mandate of the United Nations to facilitate the
independence of the colonies.  Portugal, like the United States and
other states that must address indigenous issues, insisted that the
entire matter of its relations with its colonies was purely
domestic, not within the purview of international law or
international organizations.

     In another example with similarities to the U.S., the
government of South Africa continued, until 1990, to dictate the
form of government in Namibia.  Just as the U.S. claims to hold
indigenous nations, so too did South Africa hold Namibia in what it
called a "sacred trust."  Fortunately for the Namibians, the
international community saw through the self-serving pronouncements
of South Africa and applied sufficient international pressure on
this nation-state to insure Namibian independence.  The political
colonization of indigenous nations within the U.S. is relatively
easy to chronicle and comprehend.  As with colonialism in other
parts of the world, however, it represents only part of the
equation.  Economic colonization is not only often more insidious,
but much more difficult to overcome than political subordination.


Economic Colonization

Domination can be achieved in many ways.  It does not have to be
the result of overt political control.  If the economy of a small
country is totally dependent upon a set of external factors, this
is a form of domination as effective as anything that existed in
classical colonial times.  The effect of all economic factors adds
up to a sort of cumulative force majeure from which there is no
escape.  Given the multiplicity of indigenous nations in the U.S.,
and given the diversity of their populations, sizes, territories,
and natural resource reserves, it is difficult to generalize about
their economic colonization.  Nevertheless, there are several
common strategies that have been used by the United States to
ensure the economic bondage of native peoples to the U.S.  Also,
some general economic statistics are useful in ascertaining the
overall current economic condition of American Indians in the U.S.

     Indigenous peoples are in the worst economic position of any
racial or ethnic group in the U.S.  In 1970, President Nixon
admitted that Indians were the most economically depressed of any
group, a condition that has not changed to the present.  The
economic condition of indigenous nations can be tied directly to
the political and military policies of the federal government, as
overseen by the Bureau of Indian Affairs (BIA) and the secretary of
the interior.  In recent years, the BIA has become more indigenous
in appearance, but ultimately, the secretary of the interior makes
all important decisions.  To illustrate this power, the U.S.
Commission on Civil Rights wrote:

     Federal law gives the Secretary of the Interior and the      
     Commissioner for Indian Affairs [now the Assistant Secretary 
     of Interior for Indian Affairs] broad powers over all India  
     affairs and all matters arising out of Indian relations.  This 
     includes veto power over all tribal contracts.  Although the 
     Navajo Nation has an elected council, set up under  non-     
     traditional Anglo guidelines, virtually every significant    
     action of this council must receive BIA approval before it can 
     become law or acted upon by the tribe.  That approval process 
     is often unnecessarily protracted and obstructionist.

     After years of agitation and demands by indigenous
governments, some changes have been realized in this relationship,
resulting in relatively greater control of decisions on Indian
reservations.  Nevertheless, the federal government continues to
insist that it, and not native peoples, is the ultimate arbiter of
the degree of sovereignty exercised by indigenous nations.  The
importance of the exercise of U.S. control in India affairs becomes
increasingly clear when one understands the considerable natural
resource reserves found within the territories of indigenous
nations -- many of which are considered strategic by the United
States.  In this respect, native peoples of the U.S. experience
similar economic invasions and controls as other indigenous 
peoples -- be they the Yanomamis of Brazil, the Crees of Alberta,
or the Penans of Sarawak.  States consistently claim that it is
their prerogative to exploit indigenous natural resources for the
"national security," and such matters are purely domestic in
nature, beyond the scope of international scrutiny or rebuke.

     What makes the economic condition of indigenous peoples in the
U.S. somewhat unique is the judicially-created "trust relationship"
that requires the U.S. to hold native lands and resources for the
benefit of indigenous nations.  Although this trust can apparently
be breached with impunity by the U.S., some legally enforceable
rights for indigenous peoples do exist if the U.S. breaches its
fiduciary obligation to them.  Even more interesting is the fact
that the United States is a fiduciary under two trust obligations: 
one to the indigenous people it has colonized and how now live
within territory claimed by the U.S., and one to the peoples of the
Pacific Trust Territory, whose territories were placed in trust by
the United Nations, with the U.S. as trustee.  A significant
difference between these two trust arrangements is that the peoples
of the Pacific Trust Territory possess the absolute right to
exercise self-determination when and if they choose to do so.  No
such right currently exists under international law for indigenous
nations within the U.S., and the main difference in the attachment
of international rights and status has to do with geographical
separation from the colonizing power.  This requirement, and its
implications for indigenous peoples, can best be understood upon
examining the evolution of the right to self-determination in
international law, and the attendant decisions about to whom the
right is extended.


       DECOLONIZATION AND THE RIGHT TO SELF-DETERMINATION

     Discussion of the rights of colonized peoples prior to World
War I took place in the abstract, but serious discussion of
limitations on the right of colonial powers to administer the
colonies under their control was limited.  At the close of World
War I, political leaders in the two major ideological camps --
liberal capitalist republicanism and marxist socialism -- began to
recognize the inevitable decline of the system of European
colonialism that had enveloped the world for the previous 400
years.  Each side in this ideological struggle was determined to
affect the evolution of the right to self-determination according
to its particular perspective of human development and according to
its own agenda for the future.  Among the capitalist leadership,
the most vocal in support of a right of colonized peoples to
exercise self-determination was President Woodrow Wilson of the
United States.  In an address to Congress in 1917, Wilson condemned
colonialism, and implicitly condoned wars of national liberation:

     No peace can last, or ought to last, which does not recognize 
     or accept the principle that governments derive all their just 
     powers from the consent of the governed and that no right    
     anywhere exists to hand people around from sovereignty to    
     sovereignty as if they were property.

     The following year, Wilson warned the colonial powers of the
impending movement of colonized peoples demanding their political
self-determination:

     The rights of nations to self-determination is no mere phrase, 
     it is an imperative principle of action which will be        
     disregarded by statesmen in the future only at their own risk.

     Wilson's pronouncements, although consistent with his support
of liberal democracy, cannot be considered altruistic.  At the time
of his statements, European socialism was spreading, and Wilson was
interested in ensuring that a design for self-determination that
served Western interests would prevail.  Simultaneously, V.I. Lenin
was constructing a political model that would soon transform the
ancient Russian empire into a new society more disturbing to the
West than anything the czars had ever dreamed of.  A central theme
to Lenin's plan, and one that he was convinced would persuade
colonized peoples to elaborate marxist socialism, was his
definition of self-determination.  He realized that the socialist
model of self-determination must embrace novel and expanded notions
of the rights of colonized peoples not addressed by Wilson or the
West.  Consequently, Lenin's theory of self-determination embraced
the aspirations of millions of colonized people:

     Victorious socialism must necessarily establish a full       
     democracy and consequently, not only introduce full equality 
     of nations, but also realize the right of oppressed nations to 
     self determination, i.e., the right to free political        
     separation.  Socialist parties which did not show by all their 
     activities, both now, during the revolution and after its    
     victory, that they would liberate the enslaved nations and   
     build up relations with them on the basis of a free union -- 
     and free union is a  false phrase without the right to       
     secede -- these parties would be betraying socialism.

     The Bolshevik Revolution of 1917 brought with it one of the
first state declarations supporting the principle of self-
determination.  The Decree of Peace in 1917 declared that is was
illegal for the Soviet Union to annex "small or weak peoples
without their clear, voluntary, express consent and desire." 
Although nearly seventy years elapsed before the Soviet Union took
seriously Lenin's rhetoric regarding the right of nations to
genuine self-determination, its support for other colonized peoples
advanced the debate on decolonization dramatically in the
international arena.  Following World War I, the creation of the
Mandated Territories under the League of Nations, later renamed the
International Trusteeship Council under the United Nations, began
the process of supervising colonial territories working toward the
attainment of self-government and eventual independence.  In 1950,
over 20 million people lived under the UN trusteeship system in
eleven territories.  Today, only one such territory remains:  the
Trust Territory of the Pacific Islands, administered by the United
States.  All of the others have either attained self-governance or
independence or voluntarily consolidated their territories with
neighboring nations or states.

     
The United Nations

After World War II, a number of factors converged, leading to the
disintegration of the global colonial system.  Among these was the
improved education and exposure to democratic principles and
aspirations of political independence of colonized peoples.  This
led to discontent and turmoil in the colonies, a factor compounded
by the economic hardships experienced by the colonial powers as a
consequence of the War, making it increasingly difficult to
maintain distant, volatile territories.  Analysts have suggested
that the Western countries allowed the demise of colonialism after
World War II because their interest would be better protected
through the containment of the Soviet Union and the Eastern bloc
than through the maintenance of colonialism.

     With the founding of the United Nations in 1945, recognition
of the right to self-determination was expressed in the United
Nations charter itself.  According to Cristescu, the effect on
customary international law resulting from reference to the right
to self-determination in the charter "marks...the recognition of
the concept as a legal principle and a principle of contemporary
law."  Although some debate continues about the legal consequence
of the mention of the right to self-determination in the charter,
state practice and subsequent U.N. resolutions have provided "ample
evidence that there now exists a legal right to self-
determination," under international law.

     Subsequent to the establishment of the United Nations and the
ratification of its charter by the founding members, there was
considerable debate over the substance of the rights flowing from
the principle of self-determination.  The elements of the right to
self-determination were gradually outlined in a series of General
Assembly resolutions.  The right also received prominent attention
in the _International Covenant on Economic, Social and Cultural
Rights_ and the _International Covenant on Civil and Political
Rights_.  Additionally, state practice indicates an overwhelming
acceptance of the principle.  Of the current members of the United
Nations, over 100 were previously colonies, and have achieved their
independence since the end of World War II.  Gudmundur Alfredsson
concludes:

     The extent and general uniformity of actual state practice   
     which has characterized the speedy dismantling of the colonial 
     empire indicates for one thing that such opinio juris [on the 
     right to self-determination] exists.

     The actions of the General Assembly and the Security Council
have also been the subject of interpretation by the International
Court of Justice (ICJ).  In two relatively recent advisory opinions
concerning rights to self-determination for the peoples of the
Western Sahara and Namibia, the Court interpreted the law of
decolonization in these terms:

     [T]he subsequent development of international law in regard to 
     non-self-governing territories, as enshrined in the Charter of 
     the United Nations, made the principle of self-determination 
     applicable to all of them.  The concept of the sacred trust  
     was confirmed and expanded to all "territories whose people  
     have not yet attained a full measure of self-government"     
     (Article 73).  Thus it clearly embraced territories under a  
     colonial regime.

     This discussion indicates that through the actions of the
various bodies of the United Nations and the state members
themselves, and through the confirmation of those actions in
scholarly writings and judicial opinions, the law of decolonization
and the right to self-determination exist as established rules of
international law.  This question settled, another fundamentally
important one remains:  who constitutes the "self" in self-
determination?  Under the law, who are to be the beneficiaries of
the right?  According to Alfredsson, the U.N. resolutions
previously mentioned extend the right to colonies, non-self-
governing territories, and former colonial territories integrated
with the administering powers.  Colonies are defined through three
basic criteria:  1. foreign domination, 2. the presence of a
political/territorial entity in the colony, and 3.  geographical
separation from the colonizing power.  The only criterion that may
be problematic for indigenous peoples to satisfy is the requirement
for geographical separation from the colonizer.  Because of the
methods used by the "settler state" form of colonialism, most
indigenous nations' territories were enveloped by encroaching
powers, resulting in the colonized nations' territories being
contiguous with, not separate from, that of their colonizers.

     Non-self-governing territories are defined in Article 73 of
the U.N. charter as "territories whose people have not yet attained
the full measure of self-government."  Though this category is
subject to future clarification, certain characteristics are
indicative of the status, namely that the colony is politically,
economically, socially, and educationally underdeveloped relative
to the colonizing power.  As discussed above, indigenous nations
within the U.S. satisfy each of these criteria.  As with colonies,
the prevailing view is that non-self-governing territories must be
geographically separated from the colonizing power.  This
perspective, known as the "salt-water" or "blue-water" thesis of
decolonization, requires that colonies be separated from the
colonial power  by a substantial body of water, preferably an
ocean.  This interpretation of decolonization was challenged by
Belgium through its "Belgian Thesis," which contended that
decolonization should extend to all colonized peoples, even if they
are bound in enclaves entirely surrounded by colonizing states. 
The thesis specifically mentioned the enclave conditions of
indigenous peoples for remedy.  Despite this attempt to extend
decolonization to indigenous peoples, the "salt water thesis" has
predominated in international debate.

     The competence of the General Assembly to define non-self-
governing territories is derived from Article 10 of the charter,
and has been inferred by the ICJ in its Western Sahara opinion, in
which the Court held that Spain "could not validly object to the
General Assembly's exercise of its powers to deal with the
decolonization of a non-self-governing territory."  Consequently,
it appears to be within the competence of the General Assembly to
extend the definition of non-self-governing territories to enclaves
of indigenous nations.  Convincing arguments to persuade the
General Assembly to make such an extension can be derived from the
fact that other enclaves, such as Lesotho and Gambia have been
recognized as independent states without disrupting the territorial
integrity of the states around them.

     The final category in decolonization, colonial territories
that have been integrated with the administering powers, is
especially pertinent to the case of indigenous nations within the
United States.  Similar examples of colonial powers integrating
colonies in circumvention of international law have been held to be
illegal.  The colonial rationale for integration schemes is
explained by Alfredsson:

     [T]he practice by some colonizing states of integrating their 
     colonial territories, even though such integration in many   
     cases was pure constitutional fiction introduced in order to 
     avoid international supervision by sheltering these          
     territories under an umbrella of domestic jurisdiction,      
     implies strongly that political decolonization appeared to the 
     colonizers as a legal force and not just political rhetoric  
     which they could have flatly rejected or more simply ignored.

     Such attempts by colonial governments to create the legal and
political fiction of integration of their colonies, without the
informed and willful consent of the colonized, "have failed
however, and the territories involved have exercised their right to
political decolonization...But the attempts provide one more
compelling reason for a critical supervision and scrutiny of
integration cases and for a strict adherence to the standards
imposed by the United Nations for guaranteeing due process and
equality."  Arguably, indigenous nations within the geography of
the United States satisfy the criteria for decolonization if their
unique conditions of original sovereignty, territory, and the
nature of their colonization by the United States is considered. 
The primary obstacle to the recognition of their rights under
decolonization principles appears to be the reluctance of states to
redefine the constructs of self-determination to include indigenous
enclaves.

     
              APPLICATION OF SELF-DETERMINING RIGHT
                      TO INDIGENOUS PEOPLES

Appeals by indigenous nations in international forums to secure the
vindication of their rights as distinct and independent peoples is
not new.  During the late 19th century, the Maori of Aotearoa (New
Zealand) and the Aborigines of Australia, as well as various
indigenous nations in Canada, submitted international petitions for
resolution of territorial and jurisdictional conflicts.  In the
1920s, leaders from the Maori and Haudenosaunee (Iroquois)
confederations petitioned the League of Nations to hear their cases
for recognition under international law, but both were frustrated
through the operation of diplomatic procedural rulings.  In the
case of the Haudenosaunee, their leader, Deskaheh, spent over two
years attempting to persuade the international community through
the League to recognize the national status of his people, but
without success.

     Subsequently, little attention was given indigenous issues
until the adoption of the so-called Convention 107 by the
International Labor Organization (ILO).  Formally called "The
Convention of Indigenous Populations of 1957," Convention 107 fell
far short of recognizing an indigenous right to self-determination. 
Nonetheless, for its time, the convention was a significant step
forward in the contemporary recognition of the rights of indigenous
peoples.  The ILO recognized that indigenous peoples constitute
distinct and separate peoples possessing protectable interest in
their lands, cultures, and political structures.  The convention
also laid the foundation for future progress in the area of
indigenous peoples' rights.  After several years of deliberation,
ILO Convention 107 was deemed outdated and assimilationist in its
perspective.  Assimilation of indigenous peoples, while acceptable
in international discourse in 1957, had fallen into disfavor since
that time.  The ILO began revising the convention in 1986 and
concluded its revisions in 1989.  The new document, known as
Convention 169, updated the archaic provisions of 107 but was
reviled by many native peoples as ignoring the legitimate
aspirations of indigenous nations and continuing to protect states
in their denial of native claims for self-determination.

     During the 1970s, several other events brought indigenous
issues into international attention.  In 1971, and again in 1977,
the Declarations of Barbados, documents drafted by progressive
anthropologists and indigenous representatives, called on the world
to re-examine the colonial condition of indigenous peoples, and
recognized the necessity of a hemispheric indigenous movement led
by native peoples.  During this period, indigenous movements were
growing and demanding recognition of their historic rights.  By
1974, traditional native elders in North America called upon
Russell Means, a leader of the American Indian Movement (AIM), one
of the most militant and prominent of the new organizations, to
take their issues before the United Nations.  Means and Jimmie
Durham organized the International Indian Treaty Council (IITC) as
the international diplomatic arm of AIM, receiving non-governmental
organization (NGO) status at the United Nations in 1977.  Other
indigenous organizations later entered the arena and began
constructing a global network of peoples, nations, and movements
designed to secure the attention of international bodies.  In 1977
and 1981, this network convened two international conferences in
Geneva and Rotterdam to examine the rights of indigenous peoples.

     In 1974, the United Nations Sub-Commission on Prevention of
Discrimination and Protection of Minorities commissioned a study on
the condition of indigenous peoples worldwide.  _The Study of the
Problem of Discrimination Against Indigenous Populations_ by
Special Rapporteur Jos‚ R. Martinez Cobo consisted of ten years of
extensive research on the global condition of indigenous peoples. 
As a direct result of the study and exhaustive work of indigenous
nations themselves, the Sub-Commission voted to establish a Working
Group on Indigenous Populations (WGIP) to meet annually in Geneva
to provide native peoples with a voice in the international arena. 
The WGIP has been extremely important in the indigenous quest for
self-determination for several reason.  As already mentioned, it
provides a forum through which native peoples can articulate their
needs and aspirations, including demands for self-determination. 
Additionally, it exposes states to evolving and expanding debates
concerning individual and group rights.  In this regard, the draft
proposal of the Chair of the Working Group, Erica-Irene A. Daes,
for a U.N. declaration on indigenous rights provides a framework
through which states can be impressed with the justness and
inevitability of extending internationally recognized rights to
indigenous peoples.

     Because Daes' draft declaration proposal does not explicitly
mention the right to self-determination, some indigenous delegates
to the WGIP have deemed it inadequate.  However, despite explicit
omission of the term, some benefits of the right to self-
determination are clearly recognizable.  For example, the draft
recognizes certain collective rights -- to physical and cultural
integrity, traditional lands, and autonomous control of internal
political, economic, and social institutions -- and it requires
states to honor all treaties and agreements made with indigenous
nations.  It therefore continues to fall short of full recognition
of the right of indigenous peoples to determine their own status
within the international community, to be recognized as having
standing under international law other than as individuals in human
rights proceedings, and to bring group claims of genocide or
ethnocide.  It therefore continues to recognize the supremacy of
states in the ultimate determination of the rights and jurisdiction
of indigenous nations, and it refuses to recognize the
international nature of disputes between states and indigenous
nations.

     Despite these shortcomings, Daes' draft declaration provides
an important step in the long, often tedious, process of
transforming international legal standards.  In conjunction with
the draft declaration provided by indigenous NGOs, and inevitable
future drafts, Daes' document can be utilized by the WGIP to
educate states and alter their policies toward indigenous peoples.
In addition to the draft declaration, the work of the WGIP has led
directly to a study on the international status of treaties between
indigenous nations and states.  The study, led by WGIP member
Miguel Alfonso Martinex, of Cuba, may provide native peoples with
the impetus necessary to allow international adjudication or
arbitration of treaty violations between indigenous peoples and
states.  To date, indigenous peoples have been left without any
legal forums in their treaty disputes with states other than the
domestic courts of the state with which they are a party in the
treaty.  This type of self-adjudication by states, not
surprisingly, has led to many unjust interpretations of treaty
provisions, to the detriment of indigenous peoples.


                           CONCLUSION

The historical denial of the extension of the right of self-
determination to indigenous peoples and nations is rooted in the
desire of states to protect what they perceive to be their
interests.  This, too, was the central motivation of some states in
their refusal to accept decolonization principles.  Fortunately for
colonized peoples who were geographically separated from the
colonizing states, the international community decided that the
self-determination of peoples took priority over the right of
states to hold colonies.  Although the adoption of this standard
was disruptive to the international status quo, advancement of
world peace and freedom was considered to be more important. 
Similarly, a transformation in the attitudes of state actors toward
the rights of indigenous peoples is under way.  The major obstacle
to the attainment of indigenous self-determination is the perceived
sacredness of the territorial integrity of states.  Recent dramatic
developments in the Soviet republics and other countries os the
world regarding the rights of national groups to exercise self-
determination, including secession, presents an unprecedented
opportunity to revisit questions considered long settled.

     Of particular prominence in the discussion of indigenous self-
determination is the objection that indigenous peoples, wherever
they are found, constitute indivisible sectors of a unitary state. 
To allow indigenous peoples the ultimate expression of self
determination, so goes the argument, would constitute secession,
and a threat to the territorial integrity of the state in clear
violation of the U.N. charter.  To characterize indigenous
expression of self-determination as secession, it first must be
conceded that a nation has been legitimately integrated into a
state.  If not, it can hardly be argued that the state has a lawful
right to maintain that nation in bondage.  Most indigenous peoples
argue that because their territories have been invaded and
incorporated into states without indigenous consent, self-
determination does not constitute secession, but merely the
exercise of inherent sovereign powers that have never been
relinquished.

     Even if, for the sake of argument, the ultimate expression of
indigenous self-determination WERE to constitute secession, would
the recognition of such a right for indigenous peoples disrupt the
desire of the international community for would peace and friendly
relations between peoples?  On the contrary, those aspirations
would be enhanced.  Professor Ved Nanda's discussion of this point
is helpful.  Although he does not advocated secession, Nanda
recognizes that national self-determination for enclave nations
"appears to be an irrepressible feature of the contemporary world
scene."  Consequently, he proposes the development of international
institutional mechanisms to allow the self-determination of peoples
who have been denied such rights because their aspirations were
considered secessionist.  According to Nanda, the legitimacy of he
expression of self-determination should be governed by four
criteria:

     * A clearly identifiable group possessing genuine national   
       characteristics;
     * Satisfaction that the nature and the scope of the claim are 
       compelling;
     * Substantiation of the underlying historical reasons for the 
       claim;  and
     * Proof of substantial deprivation of human rights.

     Using these criteria, many, if not most, indigenous nations in
the Western hemisphere would be entitled to exercise the right. 
This brings us to another important point.  Recognition of the
right to self-determination does not compel a move to national
independence.  In applications of the right to non-self-governing
territories, peoples may choose one of three options to express
their self-determination.  First, they may choose to pursue
sovereign independence as a state;  second, they may choose a
relationship of free association with an independent state;  or
third, they may choose integration with an independent state.  The
assumption by states that indigenous peoples exercising a right to
self-determination would automatically choose the first option
appears unfounded.  Given the difficult practical political and
economic difficulties facing smaller states in the world today,
most indigenous peoples may very well NOT opt for complete
independent state status.  Many would probably choose some type of
autonomy or federation with existing states, preserving rights to
internal self-governance and control as members of a larger state. 
Some however, may choose formal integration into a state, for
reasons unique to their particular situation.

     Regardless of which status an indigenous nations might choose,
the movement toward recognizing each nation's right to make some
choice other than unconsented to domination by a colonial or
settler state appears consistent with historical notions of self-
determination.  To apply the conclusions of Nanda to indigenous
circumstances, not only would the extension of the right to self-
determination to indigenous nations, even if it meant secession,
promote the expansion of rights in the world, it would also promote
predictable international mechanisms of resolving disputes between
indigenous nations and states around them, leading to an overall
expansion of global freedom, peace, and stability.  Without
recognition of the right, the liberation and survival of indigenous
nations remains questionable, and the majority of global conflicts
in the world will remain unresolved.
=================================================================
Taken from _The State of Native America:  Genocide, Colonization,
and Resistance_, Edited by M. Annette Jaimes.  South End Press,
1992.  ISBN 0-89608-424-8



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