THE INTERNATIONAL PERSONALITY OF INDIGENOUS PEOPLES :

An Account from North America

David Schneider

and

Louis Furmanski

Department of Political Science

University of Central Oklahoma

Edmond, OK 73034

Prepared for delivery at the 1996 Annual Meeting of the American Political Science

Association , The San Francisco Hilton and Towers, August 29-September 1, 1996

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Three fundamental approaches exist in dealing with minority rights in law1. The

first is to seek the integration of minority groups into the larger society. This can be

advanced in either of two ways. The first is to try to assimilate minorities thru benign

measures such as non-discrimination laws or legal guarantees of equality. The second

approach also has as it's ultimate objective the integration of minority groups into the

majority society. Its measures are, however, of a coercive nature. Examples abound and,

in most cases, their purpose is to advance the domination of the majority group, generally

through exercising political, economic, or culture hegemony. The third approach

recognizes that differences exist, and that an integrationist strategy, of whatever variety, is

unlikely to succeed. This approach acknowledges the inevitability of the differences

which separate the communities and to seek to accommodate those differences by

employing a variety of pluralist techniques. Very often all of the above can be found to

be part of the history of majority-minority group relations, sometime applied

simultaneously, or at different times during their mutual histories.

For the most part, how minority groups (as most indigenous peoples are regarded

within existing state structures) should be treated or protected was considered, until

recently, to be a matter of domestic policy, and, as such, of no relevance to international

law. Within a relatively brief time period, however, we have witnessed some rather

significant shifts in how indigenous peoples are treated within the body of international

1 Claire Palley, "The Role of Law in Relation to Minority Groups" in Anthony E.

Alcock, B.K. Taylor, J.M. Welton, eds. (1979) The Future of Cultural Minorities.

N.Y.: St. Martins Press. p.120.

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law. Immediately after WWI, the protection of minority rights was cited as a condition of

entry into the League of Nations, which also established machinery to settle disputes

arising out of allegations of mistreatment. The end of WWII brought further

developments, mainly in the area of human rights protections, thus shifting focus from

viewing the grievances of minorities from the perspective of group injustices, to seeing

them as examples of the violation of individual rights. However, we have recently

witnessed a swing back to viewing minority rights under the banner of group rights,

rather than the individual human rights focus.

Historically, members of the international community have been very reluctant to

recognize indigenous peoples as equal players in the international arena. The indigenous

inhabitants of North America were generally considered to be nothing but conquered

ethnic minorities. The power and influence that these indigenous people once exercised

was quickly forgotten once European settlements came to dominate the economic and

political arena. Despite the fact that their "treaty-making" resulted in much suffering and

loss, some indigenous groups have not forgotten, nor have they ever stopped considering

themselves equals within the international community. The Iroquois represent such a

group. The Iroquois Confederacy consists of six individual tribes- Onondaga, Seneca,

Mohawk, Oneida, Cayuga, and the Tuscarora. The Haudenosaunee, as they call

themselves, have consistently held that they have never ceased to be the same

Confederacy that stood equal to France, Britain, and the United States in the 17th and

18th centuries. The claim to such a status is not frivolous, nor is it a reactionary political

move. It is a concept intrinsic to Iroquois identity, tradition, and history.

This essay will contend that despite many obstacles, there is sufficient evidence to

support the argument that the Iroquois merit recognition as having the stature of

autonomous international actors. To provide a sufficient backdrop, this essay will first

look at the historical and treaty precedents that support the international status of the

Iroquois, and the implications of this status towards their efforts to attain increased levels

of self-determination. The continuing obstacles to their increased international status will

also be examined. Finally, a few thoughts on the implications of these developments will

be offered.

I. SUPPORT FOR AN INTERNATIONAL IDENTITY

A. Historical Precedent for International Identity

From the first Europeans encounters with the native inhabitants of the Americas,

customary international norms and other aspects of international law consistently affected

their relationship. Francisco de Vitoria (1480-1546), a Dominican professor of theology

at the Spanish University of Salamanca, was the first European to explore the legal

character of the relationship between native Americans and early European arrivals.

According to Vitoria, claims based upon the Doctrine of Discovery which argued in

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support of the validity of European title to land in the Americas were defective, given that

international law at that time only recognized land without an owner (res nullius) as

available to be taken under a Discovery claim. Valid title, Vitoria argued, rested with the

intrinsic sovereignty enjoyed by aboriginal peoples. As sovereigns, they consequently

possessed the right to negotiate equally with the European nations, and enter into

international agreements with them. Although his ideas were not generally accepted,

Vitoria's position does represent early assertion of the argument that the indigenous

peoples of the Americas should be recognized as possessing international status.

To be faithful to Vitoria's corpus of opinion on the status of native Americans, it

must be noted that he developed a justification for the European conquest of the

Americas, one that was based upon a view of their civilizations as inherently inferior:

"Although these barbarians are not all together mad...they are not

far from being so...They are not, or are no longer, capable of governing

themselves any more than madmen or even wild beasts and animals..." 2

In the final analysis, while Vitoria argues for the equality of north Americans and

Europeans within a legal discourse, his political discourse clearly accepts and advances

the inferiority of indigenous Americans.

Bartholomew de Las Casas (1474-1566), a Dominican missionary to the

American Indians of the West Indies, also spoke out on the illegitimacy of placing the

indigenous Americans in conditions of servitude to Spain. After traveling with Columbus

to America and Haiti, he vehemently opposed the Spanish enslavement of native

Americans. He characterizes European domination as unlawful, tyrannical, and unjust.

Like Vitoria, he argued that native Americans were their own masters, and that they had

the only legitimate claim to the land on which they lived. Nevertheless, the "new world"

obviously represented too much economic potential to allow adherence to a doctrine of

legal equality to interfere with European colonization.

The stage was thus set early on for the domination and exploitation of native Americans,

regardless of their legal status, national or international. The desire to exploit the riches

of the Americas, abetted by an ideology justifying the domination of "inferior beings",

resulted in the paternalistic guardianship known as colonialism.

The stance of the newly independent government of the United States was equally

duplicitous when it came to how it treated its indigenous neighbors. The political/legal

achievements of native Americans were recognized from the very beginning as putting

them on par with the achievements of European civilization of that era. Benjamin

Franklin, for one, expressed his admiration that the Iroquois Confederacy "should be

capable of forming a Scheme for such a Union, and be able to execute it in such a

manner, as that it has subsisted for Ages, and appears indissoluble."3 What Franklin was

3 Quoted in: John Howard Clinebell and Jim Thomson (1978) "Sovereignty and Self-

Determination: The Rights of Native Americans Under International Law," Buffalo

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referring to was the Iroquois Confederacy's Gayaneshagowa, or the Great Binding Law.

This system of government, recorded in wampum between 1300 and 1600 AD, outlines

the duties of the Five Nations (before the inclusion of the Tuscaroras) as members of the

Confederacy, and contains an elaborate concept of checks and balances which, as it has

been argued, influenced the drafting of the United States Constitution.4

After independence, the stance of the United States towards its indigenous

neighbors was unambiguously clear, i.e., it recognized them as independent, sovereign

states, with which it was to conduct normal diplomatic relations, including the waging of

war. The Northwest Ordinance, passed in 1787, contained the following passage:

The utmost good faith shall always be observed toward the Indians;

their land and property shall never be taken from them without their

consent; and in their property, right, and liberty they shall never be

invaded or disturbed, unless in just and lawful wars authorized by Congress.5

It was, of course, the latter half of the above injunction which came to dominate the

nature of U.S.-native American relations from that time on. This tragedy does not

diminish, however, the recognized equality under the law by which the United States, at

first, conducted it relations with the indigenous peoples of North America.

B. Treaty Precedent

Felix Cohen, who produced the definitive work on Federal Indian law, adressed

the debate over whether or not treaties had been made with independent nations. Cohen

quotes U.S. Attorney General William Wirt in his opinion concerning the Treaty of

Indian Spring:

...The point then, once conceded, that the Indians are independent to the

purpose of treating, their independence is, to that purpose, as absolute as

that of any other nation.

...Nor can it be conceded that their independence as a nation is a limited

independence. Like all other independent nations, they are governed

solely by their own laws. Like all other independent nations, they have

the absolute power of war and peace. Like all other independent nations,

their territory is inviolable by any other sovereignty.

....whether their title be that of sovereignty in the jurisdiction or the soil,

or a title by occupancy only, it is such a title that no other nation can

rightfully acquire, but by the same means by which the territory of all

other nations, however absolute in their independence , may be acquired-

that is, by cession or conquest....

As a nation they are free and independent. They are entirely self-

Law Review, v.27, no. 4, p. 682.

5 Act of Congress, August 7, 1787, Art3, 1 Stat. 50.

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governed, self-directed. They treat, or refuse to treat, at their pleasure;

and there is no human power which can rightfully control them in the

exercise of their discretion in this respect. In their treaties, In all

contracts with regard to their property, they are as free, sovereign,

and independent as any other nation.

.... Nor can I discover the slightest foundation for applying different

rules to the construction of their contracts, because they reside

within the local limits of the sovereignty of Georgia. [italics added]6

Once the treaty system was abolished by the Congress in 1871, subsequent

conventions came to be known simply as "agreements". This change meant little to the

Indian Nations at the time. Nor did the change in any way reduce the inherent

sovereignty of the Native Nations.

The Iroquois Confederacy has consistently held that the treaties they entered into

with the U.S. and Canada support their claim that they should be given recognition as

participants in the international community. They point to the Treaty of Fort Stanwix

(1784) and Jay's Treaty (1794). The Treaty of Canadaigua, considered especially

important, established everlasting peace between two sovereign nations and assured the

Six Nations that the borders of their land would be respected.7 It is upon these treaties

that the Iroquois base their assertion that their relationship with the Federal government is

as one of two parties on an equal footing with one another. Their argument, simply put,

is that the treaties the U.S. government entered into with native Americans carry the full

weight of international law and deserve the same distinction as treaties made with other

"foreign" countries. And, despite efforts by Congress to diminish their status, the

Supreme Court has consistently supported the native American argument that the status

of these treaties is as instruments of agreement between two sovereign nations.

Nevertheless, the reality of native American relations with the U.S. government

was accurately depicted in "A Brief Statement on the Background of Present Day Indian

Policy", which was submitted to the Department of State in 1938, the Office of Indian

Affairs.

During the years when the rivalries of England, France and Spain

on the continent gave the various Indian tribes positions of strategic

power, negotiations with these tribes were carried on by the Colonies

and later by the United States on the basis of international treaties.

These treaties acknowledged the sovereignty of Indian tribes and

implied the acknowledgment of a possessory right in the soil that the

tribes occupied. After the cession of Louisiana, by France in 1803,

the termination of the war with Great Britain in 1814 and the cession

of Florida by Spain in 1819, there developed an increasing tendency

7 Lawrence M. Hauptmann (1981) The Iroquois and the New Deal. Syracuse: Syracuse

University Press, p.3.

6

to deny the sovereignty of Indian tribes and to deal with them by force

of arms.8

This betrayal of its legal responsibilities on the part of the U.S. government was not

supported by the Supreme Court which, in two landmark decisions excerpted below,

reaffirmed the international status of native Americans.

They have uniformly been treated as a State from the settlement

of our country. The numerous treaties made with them by the

United States recognize them as a people capable of maintaining

the relations of peace and war...The acts of our government plainly

recognize the Cherokee Nation as a State, and the courts are bound

by those acts.9

Chief Justice John Marshall would also later comment that:

The constitution, by declaring treaties already made, as well as those

to be made, to be the supreme law of the land, has adopted and

sanctioned the previous treaties with the Indian nations, and consequently

admits their rank among those powers who are capable of making treaties.10

This is an argument that operates powerfully in their favor. Although, as mentioned

above, while the treaty system was abolished in 1871, previously agreed upon treaties still

carry the weight of international law and are protected by the Constitution. In United

States v. Forty-three Gallons of Whiskey (1876), the U.S.. Supreme Court said:

The Constitution declares a treaty to be the supreme law of the land;

and Chief Justice Marshall, in Foster and Elam v. Neilson, ...has said,

"That a treaty is to be regarded, in courts of justice, as equivalent to

an act of the legislature, whenever it operates of itself, without the aid

of any legislative provision." 11

Due to government mismanagement, many treaty claims are still in the process of

adjudication. For example, in June of 1995, the United States Supreme Court upheld the

treaty guarantees of the 1830 Treaty of Dancing Rabbit Creek in Oklahoma Tax

Commission v. Chickasaw Nation.

An even more contentious legal situation surrounds the St. Regis, or Akwesasne

Mohawk reservation. The political complexity of the St. Regis reservation lends itself to

highly emotional confrontations regarding treaty obligations. At several instances in

time, Canadian officers at the U.S.-Canadian border insisted that the Mohawks pay

9 Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 16 (1831).

11 Cohen 34 [old 8]

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customs fees when crossing the Cornwall bridge. The Jay Treaty of 1794, however,

exempts the Mohawks from having to pay any customs charge on account of the fact that

the Mohawks' land straddles the river. When the issue was forced by the Indians in 1969,

the matter was taken to court and it was acknowledged that the Mohawks had the right to

freely pass over the bridge. According to Vine Deloria, the Canadian government

decided to back away from the issue for fear that the Mohawks might choose to bring to

attention to the many other ways in which the government had infringed on the treaty-

protected rights of the Iroquois. And the Iroquois claims would not be minor, since they

claimed to hold title to no less than 85 percent of Ontario land.12

In summary, these early treaties were entered into as legal commitments between

two equal nations, thereby classifying them as international instruments. Since

international law is derived from customary law and treaties, these treaties between the

U.S. and the Six Nations are a bona fide component in establishing international norms

between the parties involved. It follows that they should be accorded the same status

within the international community as any covenant between nations. In fact, the validity

and international character of earlier treaties with indigenous nations has gained increased

support within international organizations recently. In its "Study of the Problem of

Discrimination Against Indigenous Populations," the UN Commission on Human Rights

declared:

Treaties and other agreements entered into by indigenous peoples

with other States, whether denominated as treaties or otherwise,

shall be recognized and applied in the same manner and according

to the same international laws and principles as the treaties and

agreements entered into by other States. Treaties and agreements

made with indigenous peoples shall not be subject to unilateral abrogation.

The municipal law of any State may not serve as a defense to the failure

to adhere to and perform the terms of treaties and agreements made with

indigenous peoples. Nor shall any State refuse to recognize and adhere

to treaties or other agreements due to changed circumstances where the

change in circumstances has been substantially caused by the State

asserting that such change has occurred.13

C. International Law and Self-Determination as Precedent

The right to self-determination is the focal point for Native Americans and other

indigenous peoples who have suffered a similar fate. It is the basis for the adoption of the

13 United Nations Commission on Human Rights, Sub-Commission on Prevention of

Discrimination and Protection of Minorities Working Group on Indigenous Peoples

First Session, "Study of the Problem of Discrimination Against Indigenous

Populations, " E/CN.4/Sub.2/AC.4/1982/R.1 (26 August, 1982), paragraph 6, from

The Fourth World Documentation Project:

halcyon.com/pub/FWDP/International/82-11964.TXT.

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Declaration on the Rights of Indigenous Peoples which provides a method of formal

communication to the world community on behalf of indigenous peoples.14

The right of a people to determine, for themselves, the character of their political

existence has come to be regarded one of the most fundamental human rights. That said,

it is also one of the most difficult to define, and controversial to implement. Of the most

important international documents referencing the principle self -determination are the

1996 Covenants, the first on Economic, Social, and Cultural Rights, the second on Civil

and Political Rights. Article 1 of each declares:

1. All peoples have the right of self-determination. By virtue of that

right, they freely determine their political status and freely pursue their

economic, social, and cultural development.

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

wealth and resources without prejudice to any obligations arising out of

international economic co-operation, based upon the principle of mutual

benefit, and international law. In no case may a people be deprived of

its own means of subsistence.

3. The State Parties to the Convention, including those having

responsibility for the administration of Non-Self-Governing territories,

shall promote the realization of the right of self-determination, and

shall respect that right, in conformity with the provisions of the Charter

of the United Nations.

Subsequent initiatives on the part of the UN have reaffirmed the commitment of that

organization to the principle of self-determination. Of these, perhaps the most notable is

the 1970 General Assembly Resolution # 2625, which proclaimed that: "all peoples have

the right freely to determine without external interference, their political status and to

pursue their economic, social and cultural development, and every State has the duty to

respect this right in accordance with the provisions of the Charter.."15

The status of the principle of self determination in international law is, however,

uncertain, as is the process by which legitimate claims are sorted out from those of, shall

we say, "lesser legitimacy". It is probably safe to say that self-determination is a

recognized legal right within the corpus of international law in the context of

decolonization, assuming one does not dispute the definition of colonialism too

vigorously. The decolonization context is clearly supported by General Assembly

Resolution 1514 (XV) - the Declaration on Granting Independence to Colonial Countries

and Peoples. Subsequent developments, such as the above cited 1966 Covenants, begin

15Declaration on Principles of International law Concerning Friendly Relations and

Cooperation among Strates in Accordance with the Charter of the United Nations,

G.A. Res. 2625, 25 U.N. GAOR, Supp. No. 28, 121, U.N. Doc. A/8082 (1970).

9

to disassociate the right of self-determination from its colonial origin and begin to vest it

with an understanding which accepted the identification of peoples who had a right of

self-determination as peoples experiencing oppression. The Helsinki Final Act expresses

this development in rather stark language when it refers to "the principle of equal rights

and self-determination of peoples...in full freedom, to determine,, when and as they wish,

their internal and external political status, without external interference, and to pursue as

they wish their political, economic, social and cultural development."16

Even though there exist little doubt as to the acceptance of self-determination as

an accepted principle of international law, numerous conceptual problems remain to be

addressed by those who would wish to invoke this in support of their efforts to obtain

legal redress for their grievances.17

First, there is the problem of defining a "people" who possess the right to make a

valid claim to self-determination, i.e., Falkland Islanders; the Kurds; Basques;

Palestinians; or the Iroquois? Clearly, defining a people who qualify to invoke the right

of self-determination does not lend itself to a generally agreed upon legal definition. The

International Court of Justice, in its 1970 decision in the Greco-Bulgarian Case provided

the following definition of what constitutes a "people":

A group of persons living in a given country or locality, having a race,

religion, language and traditions of their own and united by the identity

of race, religion, language and tradition in a sentiment of solidarity, with

a view to preserving their traditions, maintaining their form of worship,

insuring the instruction and upbringing of their children in accordance

with the spirit and traditions of their race and rendering mutual assistance

to each other.18

Other attempts, such as that by the International Commission of Jurists in 1972 have been

equally futile.19 In reality, political dynamics determine which "oppressed" peoples gain

sufficient acceptance and support to merit their being recognized as having the right of

self-determination. This recognition has most often been expressed by UN Resolutions

which "grant" to certain oppressed groups the status as peoples possessing legitimate

aspirations of self-determination. Left unanswered is the question of the legal

competence of the UN to grant this recognition in the first place. Nevertheless, the

United Nations has not shied away from reaffirming the commitment of that organization

to the principle of self-determination. Of these, perhaps the most notable is the 1970

17 The following discussion borrows from Michla Pomerance (1984) "Self-Determination

Today: The Metamorphosis of an Ideal" in Israel Law Review, v.19 - excerpted in

Anthony D'Amato, ed. (1994) International Law Anthology, Anderson Publishing

Co. pp. 256-258.

19 Secretariat of the International Commission of Jurists, The Events in East Pakistan,

Geneva, (1972). p. 70.

10

General Assembly Resolution # 2625, which proclaimed that: "all peoples have the right

freely to determine without external interference, their political status and to pursue their

economic, social and cultural development, and every State has the duty to respect this

right in accordance with the provisions of the Charter.."20

The second problem with implementing the right of self-determination is the link

with competing claims which invariably are part of a larger and complex political

dynamic responsible for generating such claims to begin with. Pomerance breaks down

this problem into three components:

a) The demand for secession or separate self-determination by one "self"

clashes with the claim to territorial integrity or political independence

put forward by the unit of which the first "self" is felt to be a part.

b) "Self-determination" by the smaller unit conflicts with the "self-determination"

to which the larger unit claims to be entitled.

c) There is an opposition between two claims to territorial integrity - that of

the larger as against that of the smaller unit.21

Thus understood, the claim of self-determination, carried to an extreme, may generate

more claims than it resolves, as successful claimants spawn aggrieved parties which seek

to then further their claims as well. As Pomerance put it, "self-determination, in the sense

of full independence and sovereignty, cannot be given to all peoples, unless the 'self' is

reduced to the individual 'self ' of the term's metaphysical origins."22 Of the prospects of

considering self-determination as an individually based claim, rather than a collectively

vested one, more will be said below.

The third problem associated with self-determination is that of time. Is there a

period of time beyond which claims of self-determination loose their viability and/or

credibility? The duration of a claim to self-determination might be one, comparatively

strong, factor in assessing its merit. Do more recent cases of oppression merit lesser

consideration than older, less serious, ones? Again, the international community is

relatively silent on this aspect, with the exception of its consistent support of self-

determination within the context of the decolonization process. This would seem to

establish a time frame outside of which claims of self-determination would not likely

receive widespread support, seeing that they would then likely run headlong into conflict

with another, and in ways much stronger, norm of international law - territorial integrity.

Yet, if one considers the willingness of the international community to accept the claims

of the Palestinian people, neither duration nor decolonization seems, in the final analysis,

to be a crucial factor.

The last problem associated with self-determination is that it is tied-in closely

with the concept of representative government. This assertion is, in some quarters,

21 Pomerance, p. 257.

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controversial. This author feels, however, that the two cannot be separated without doing

harm to both. In self-determination entails the right to pursue one's economic, social,

political and cultural development; to be free from political domination, or discrimination

based upon race, creed, or whatever; to enjoy fundamental human rights, among them to

participate in the selection of a government of one's choice, I don't see how self-

determination can be divorced from the practice of democracy. That said, the

fundamental problem which confronts democracies is, can a legitimate claim to self-

determination emerge within the context of a democratic political culture? Are not

democratic governments by definition representative and, hence, immune to fostering or

tolerating the kinds of conditions which ignite "oppressed" peoples to call for self-

determination?

If the principle of self-determination is appropriate to Native Americans, they

could define its relationship with the United States of Canada with the support of an

international standard. Some may choose to continue their semi-sovereign status, others

may choose total independence. The traditional Iroquois would have the support for the

position they have maintained throughout history.

International adjudication provides a precedent by which to operate and define

international norms. The following cases deal directly with two Iroquois tribes;

Mohawks and Cayugas, and illustrates the fact that courts, in deciding international

questions, set precedents that make it difficult for Native nations to claim equal status

among other nations.

In 1926, the Canadian Cayuga Indians maintained that they were the same

"Cayuga Nation" which signed the 1795 treaty with New York. They claimed that since

they represented the majority of the descendants of the "Cayuga Nation," they were

entitled to the same annuity as the other Cayugas within the borders of the United States.

The case was arbitrated by an international tribunal of the U.S. and Great Britain. The

tribunal found:

Such tribe is not a legal unit of international law. The American Indians

have never been so regarded... From the time of discovery of America

the Indian tribes have been treated as under the exclusive protection of

the power which by discovery or conquest or cession held the land which

they occupied... In the first place the Cayuga Nation has no international

status... It existed as a legal unit only by New York law. It was a de facto

unit...[Cayuga Indians Claim United States- Great Britain: Arbitral Tribunal

(1926) 6 R.I.A.A. 173] 23

On the contrary, American Indians have been regarded as legal units of international law

since first contact. The Cayuga Nation is indeed de jure, not simply an entity of fact, as

the Tribunal erroneously suggests. By their inclusion in the Great Law of Peace as one of

23 L.C. Green (1970) International Law. Oceana Publications. pp. 57, 58.

12

the Six Nations of the Haudenosaunee, the Cayugas were a legally defined body long

before the arrival of the Europeans, and long before the existence New York law. The

United States made over 370 treaties with Native American nations between 1778 and

1871. A century of treaties illustrates the fact that the European powers, Britain, France,

the Netherlands, Spain, and Sweden, also recognized the sovereign character of the

Native Americans. Article VI of the U.S. Constitution gives these treaties the full

weight of law and accords them the same status as any international treaty.

... The Cayuga Nation, as it existed as a legal entity by New York law,

could not change its national character, without any concurrence by

New York, and become, while preserving its identity, as the covantee

in the treaty of and by British law. ...Such a legal unit cannot change its

national character by its own act... Even less is such a thing possible in

the case of an Indian tribe, whose dependent condition is as well settled

as its legal position is anomalous...

...In the second place, we must bear in mind the dependent legal position

of the individual Cayugas. Legally, they could do nothing except under

the guardianship of some sovereign. They could not determine what should

be the nation, nor even whether there should be a nation legally. [Cayuga

Indians Claim United States- Great Britain: Arbitral Tribunal (1926)

6 R.I.A.A.173] 24

Under commonly accepted norms in contemporary international law, the Cayugas should

have the ability to define their own existence in any manner they please. It is doubtful the

Cayugas were consulted on this point before it was written into the opinion of the

tribunal. This court has taken it upon itself to deny the Cayugas the very right of self-

determination that the UN has set before the international community as a common ideal.

In fact, most native Nations in North America should be considered states, if the test of

the 1933 Montevideo Convention on the Rights and Duties of States is applied. It lists

four criteria that demonstrate the existence of a state; "a defined territory, a permanent

population, a government, and a capacity to conduct international relations."

As previously argued, the historic relations that the Iroquois established with the

English, Dutch, and French during the early period of European colonization clearly

establishes them in an international role and, thus, provides the basis for modern

arguments supporting native American sovereignty.

With the encouragement of such Onondaga leaders as Samuel George in the mid-

1800s, and Deskaheh at the turn of the century, this interpretation of Iroquois-US

relations has remained consistent throughout the history of mutual relations between the

two. The more conservative Onondaga group, to this day, maintains an existence even

more separate from the dominant culture. In addition to religion, language, and

ceremonies, they have chosen to stay politically aloof from U.S. politics due to their sense

of nationhood.

13

On occasions, federal agencies respect Native sovereignty when it cannot be

avoided. This is illustrated by the case of Dennis Banks, an Ojibway and member of the

American Indian Movement, who in 1983 fled to Onondaga in his attempt to avoid arrest

by federal law enforcement officials. The authorities decided to avoid possible violence

and not enter the territory of the Onondagas. Regarding the situation, Chief Oren Lyons

explained that the council's authority could not stop the "warriors" from defending tribal

interests on the Onondagas' own territory.

The Iroquois have never consented to being governed by the U.S. or Canada and

have always maintained their desire for political autonomy. The ideal of autonomy has

yet to be realized, but in many ways the concept of a national sovereignty has been

supported and maintained over time. It is true that they operate within the current U.S.

political system, but only because they are powerless to do otherwise. To the Iroquois,

federal government law is de facto law, and there are members of their community who

are simply waiting for it to pass away. But, as many non-Indians say, change over the

centuries has been so dramatic that tribal sovereignty is impractical. Even if Indians do

want it, it is only a dream of the past. These critics contend that to allow their future to be

ruled by their collective past would not serve as a basis upon which to plan their future.

Changes have made the indigenous Nations into what they are today, but this does not

provide sufficient enough reason for the federal government to continue to dictate their

future. Any attempt by the Iroquois to assert political autonomy can be viewed as a

legitimate response to the overbearing policies of the United States.25

Does this mean some tribes would secede? Secession would not apply to all

tribes. It seemingly would apply towards those which voluntarily became part of a state,

as in Oklahoma, but by the definition of the term, it could not apply to those that had

never relinquished their sovereignty, nor desired to be under the direct influence of the

U.S. government. Indian land is governed by tribal law but overseen by the federal

government as a trust relationship. Tribes have never had the status of statehood, and

have never been participants in the federal system. They were not formed within the

federal system as were states. If U.S. federal law came to no longer be applied to Native

American tribes, it need not, nor should it, be considered secession. Rather, it would be a

withdrawal of Federal trust responsibilities and law from indigenous territories. The

situation would be a restoration of a previous condition, not the birth of a independent

polity. It would be similar to The U.S. withdrawing its influence from Guam or

Micronesia, or the U.K. withdrawing its influence from Scotland. It would be viewed by

many tribes as an end of a long, forced occupation.

There would be no immediate need to drastically alter the face of America.

Reaffirming the international borders and character of Native Nations would be as simple

25 John Howard Clinebell and Jim Thomson (1978) "Sovereignty and Self -

Determination: The Rights of Native Americans Under International Law," Buffalo

Law Review, v.27, no. 4, p. 712.

14

as defining the reservations as protectorates.26 Such a step would be small but is more

than adequately supported by precedent and history.

Even though it is true that most native Americans are economically dependent on

the US and Canada, some would gladly trade those benefits for the opportunity to have

true autonomy and their independence restored. Concerning the opinion of the Iroquois

on this matter, one author states:

In one aspect, Iroquois history is a success story: far from joining

the ranks of vanishing Indians, many more Iroquois walk the earth

today than were ever recorded before. If the policies of the United

States and Canada ever wholeheartedly embrace the principle of

cultural pluralism toward which these nations seems to be groping,

it is not inconceivable that the Iroquois may emerge as a strong,

united people once more.27

For the Iroquois, total political independence from the U.S. government would simply be

a confirmation of what they already know.

II. OBSTACLES TO INTERNATIONAL STATUS

"The relation of an Indian tribe to other governments presents a series of difficult

problems of international law," declares Felix Cohen.28 Most critics of the position which

supports the international stature of indigenous Americans argue that the matter is

entirely domestic, that international norms do not apply, and that the tribal functions are

too intertwined with the federal government for it to have any recognition as an

autonomous entity. The problems can be found in both domestic and international

arenas.

A. Domestic Obstacles

The Supreme Court of the 19th century sought to define tribal sovereignty in

Worcester v. Georgia (1832) and Cherokee Nation v. Georgia (1831). In these cases,

Justice Marshall maintained that the various tribes were separate political entities, yet

subordinate to the authority of the United States.29 Since the treaty making process was

abolished in the 1870s, the lines separating federal and tribal jurisdiction becomes

increasingly vague. John Howard Clinebell and Jim Thomson list several laws that

contribute to the problem. The Indian Reorganization Act, for example, gives the federal

27 Francis Jennings, ed. (1985) The History and Culture of Iroquois Diplomacy. Syracuse:

Syracuse University Press. p. 16.

29 Thomas R. McGuire (1990) "Federal Indian Policy: A Framework for Evaluation," in

Human Organization. v.49, no.3. p. 207.

15

government the ability to force the Indians to pattern their tribal governments after the

wishes of the United States. Another is Public Law 280 which allows the states to

assume certain types of jurisdiction over Indian reservations. Such attempts by federal

and state government to gradually assume control and make irrelevant tribal authority

serves only to muddle the relationship.30

Another government policy that complicates the issue of Iroquois independence is

the Indian Citizenship Act of 1927. Primarily due to the service of Indians in World War

I, citizenship and suffrage were extended to Native Americans. Many Iroquois, however,

were opposed to the notion that they were to be citizens of the United States. If they had

never been a part of the US or Canada, how could they now be citizens? They argued

that they already had citizenship with their own tribes, and that it is impossible to be a

citizen of more than one sovereign, a position that the U.S. has consistently taken within

its own domestic law (although this may be undergoing some modification). To the

people of the Six Nations, acceptance of citizenship would be a renunciation of the

treaties which guaranteed the Iroquois a separate status. To this day, the traditional

Iroquois refuse to accept any federal authority over them.31

The Akwesasne, or St. Regis, Mohawk reservation is an object lesson in how an

Indian community can suffer due to more pervasive government policies. The Akwesasne

reservation straddles the Saint Lawrence River in upper New York. In 1794 the Jay

Treaty, signed by the United States and England, delineated the Canadian-U.S. national

boundaries. According to the treaty, the border was drawn directly through the St. Regis

reservation. At the time, the Mohawks still enjoyed their own government, but in

subsequent years their method of government was to be dictated to them by the State of

New York, and then by the United States and Canada.

In the 19th century, the State of New York prescribed a system of government for

St. Regis in its New York Indian Code whereby three chiefs were to be elected from the

American side of the international boundary, one every three years. These officials from

the American side are the only ones the federal government will recognize. In addition,

the Mohawks must elect an additional council to represent them on the Canadian side. In

the eyes of the Mohawks themselves however, the state imposed chiefs do not hold near

the status or prestige as those chosen by the traditional system, which is still alive and

well on the reservation.32 To complicate the situation further, the United States and

Canada do not recognize the traditional government, nor does the traditional government

recognize the authority of the elected councils. 33

State courts were given the power to hear civil arguments between Indians in

1950. Indian interests were protected when the Supreme Court ruled that state courts

were available for Indians to use by their own choice. The law in no way granted to the

31 Hauptmann, p. 5.

33 Arden, 386

16

states jurisdiction over Indian country. The conflict over criminal jurisdiction was settled

when, in 1984, Congress decided that New York had jurisdiction over "offenses

committed by or against Indians on Indian reservations within the State of New York."34

While on the subject of the federal and tribal relationship, an interesting offshoot

in U.S.-native American relations is the service of native Americans in the armed forces.

Some would argue that military service under the aegis of the US would be conclusive

evidence of assimilation. On the contrary, it is argued by anthropologists/sociologists that

"military service" is part of the natural expression of Iroquois culture.

In the colonial era, each individual warrior fought for his own personal reasons.

There was not necessarily any single overriding motivation. Iroquois involvement in the

Civil War was consistent with this. Enlistment into the ranks of the Union was

enthusiastic and the young men of the Six Nations, unlike some their white counterparts

did not seek ways to avoid service.35

The Iroquois declaration of war on Germany in World War I was the act of a free

state. The Confederacy was purposely reasserting its independence. In World War II,

there was a declaration of war against Germany and the other Axis powers in June of

1942, but this time it was given by a traditional faction, not by the unified Confederacy.

The Six Nations Council did, however, refused to cooperate with the federal

government's compulsory service policy and the Selective Service Act. In fact they took

their case to court claiming that the Citizenship Act of 1924 was unconstitutional.

Laurence Hauptmann records the words of Chief Clinton Rickard, who presented the

Confederacy's position:

We had absolutely no objection to or young men serving in the armed

forces, but we did object to a violation of our national sovereignty and a

brushing aside of our treaties as well as the governments, legislating for us.36

The Iroquois subsequently lost their case in the Second Circuit US Court of Appeals.

The Haudenosaunee are proud of the role their members have played in the US

military but their involvement does not mean that Iroquois see themselves as citizens.

The Jay Treaty of 1794 meant that all hostilities between the United States and the

Confederacy were to cease, therefore it is considered perfectly logical for Iroquois men to

fight alongside the men from the United States. In this way they fulfill their treaty

commitment. But more important to their native identities, every conflict entered into by

the United States gives the young men an opportunity to gain status within their

community.37

35 Hauptman, p. 13, 14.

37 Hauptman, pp. 15, 16.

17

To summarize, the issues discussed above have fostered the overwhelming

attitude within federal and state government that indigenous Americans have been

reduced over the past century to merely a dependent ethnic group existing under a type of

wardship. But for all the disjointed, contradictory policies that obscure the lines that

separate them as sovereign and distinct political entities, the Supreme Court consistently

alludes to the tribes as semi-sovereign nations. This implies a certain amount of

autonomy.38

B. The International Arena

In addition to domestic hurdles, native Nations have found it difficult to benefit

from certain standards of international law accorded to "colonized" peoples. The

problems associated with the decolonization process prompted the UN to define exactly

what constituted a colony. The UN defined a colony based on the following three

elements:

1. foreign domination,

2. the presence of a political/territorial entity in the colony;

3. geographical separation from the colonizing power.

As one can see, indigenous Americans found it difficult to claim a colonial status because

they failed to satisfy the third element. That being the case, they would not be eligible to

claim any rights associated with decolonization. But The Inuit Tapirisat of Canada, who

have consultative status with the UN, have claimed that their situation constitutes a "form

of colonization trapping [them] within existing States" and it is "no less an arbitrary and

unjust denial of fundamental human rights." 39

In I it was admitted that the Jay Treaty (1794) and the Treaty of Ghent (1814)

between the United States and Great Britain delineated the boundaries between the two

nations without taking into account the problem of the political relationship between the

Canadian government and the Native American tribes whose land was located on the

boundary. The claim was brought by a Mohawk resident of the Akwesasne, or St. Regis,

reservation, through which the US-Canadian boundary was drawn by the aforesaid

treaties. As stated in the Court's decision:

The question of the Indians, however, was left untouched and

39 United Nations Commission on Human Rights, Sub-Commission on Prevention of

Discrimination and Protection of Minorities Working Group on Indigenous

Populations Twelfth session, "Standard Setting Activities: Evolution of Standards

Concerning the Rights of Indigenous Populations," Information received from the

Inuit Tapirisat of Canada (25-29 July 1994), The Fourth World Documentation

Project: ftp.halcyon.com/pub/FWDP/International/ 94-13054.TXT.

18

during the years that followed they presented both governments

with problems of reconciliation... No clear political conception has

been formulated of the relationship of the Indians either to the old

or the new Government especially in respect of rights in the lands

over which the natives had formerly roamed at will;... and their

protest was that the British had purported to transfer to the United

States a title which they did not posses...Indian affairs generally have

for over a century been the subject of expanding administration

throughout what is now the Dominion, superseding the local

enactments following the treaty designed to meet an immediate

urgency...

These considerations seem to justify the conclusion that both the

Crown and Parliament of this country have treated the provisional

accommodation as having been replaced by an exclusive code of

new and special rights and privileges... The appeal must be dismissed.

[Francis v. The Queen Supreme Court of Canada (1956) 3 D.L.R. (2d) 641]40

If Native American desired to raise a question of international law, they would

certainly want the matter settled by a disinterested third party. It seems as if the U.S. and

Canada play defendant and judge in the same forum. It necessarily follows that a

disinterested third party cannot be found in a US/ Canadian tribunal or in the Supreme

Court of Canada.

III. INTERNATIONALISM

In an attempt to counter the obstacles to their recognition as international

entities, the Iroquois, as have other nations, have continually appealed to international

norms. As it is naturally a part of the identity of a sovereign nation to interact with other

sovereign nations, some indigenous Americans periodically do so to further their

interests. For example, in the 1970s, the Council of Energy Resource Tribes, ( an

organization of over 20 tribes, such as the Navajo, Osage, Yakima, Blackfoot, Northern

Cheyenne, Crow, etc.) consulted with OPEC nations in order to more efficiently assess

and develop the resources found on the reservations. Their reason was that federal

management of Indian resources is appallingly sub-standard.41 More recently, in response

to the Canadian government's lack of enforcement of fishing laws, the Saugeen Ojibway

declared on September 23, 1995 that it was their intention to claim jurisdiction over

approximately 200 miles of coast around Georgian Bay in Lake Huron.42 Such an act is

reminiscent of the assertion of rights of coastal sates under the Law of the Sea

Convention.

41 Peter MacDonald, "Energy and Land Use Questions on Indian Lands," Wassaja 5,

5 Sept. 1977, 13.

19

Along political lines, the Iroquois contend they have never surrendered their

independence to anyone. Other such tribes asserting the same include the Shoshone and

the Hopi.43

While a group may not be directly involved in the international community,

sovereignty dictates that they have the capacity to do so at any time they choose. Not

only does the Iroquois Confederacy claim their political independence, but they have

chosen to involve themselves in the international community, nor has the pervasive

nature of the federal government has not diminished this ability. At many points in

history they have behaved in such fashion. Involvement in international discourse is a

Iroquois tradition. This tradition has its roots in early American history.

Cohen gives an account of the importance of the Iroquois' role in the early years of

the colonies:

The friendship of these Indians [Iroquois] was highly important,

if not a decisive, factor in the struggle of France and England for

this Continent. The history of this struggle, as enacted in America

is largely the history of these Indians, who in defending their own lands,

played an international role which brought them recognition in treaties

between France and England. It is no wonder that the Iroquois were

"courted and conciliated" by England and that their national character

was scrupulously observed and recognized. 44

Doug George-Kanentiio also elucidates the importance of the Six Nations:

Our ancestors managed not only to preserve a general peace among

these peoples but also conducted formal relations with Great Britain

and France on a nation-to- nation basis with Iroquois ambassadors

and representatives given full diplomatic recognition.

For decades the Confederacy acted as a security umbrella for the

colonists...But it was the Confederacy which prevented massive

retaliatory warfare between natives and whites...45

The 19th century was disruptive for most native Americans, during this time there

is little record of Iroquois involvement in the larger world. Yet, the 20th century was to

prove vastly different, and the most capable representatives in this century have come

from the Cayuga, Tuscarora, and the Onondaga, the "Fire Keepers" under the Great Law

of Peace.

43 Doug George-Kanentiio, "Haudenosaunee Confederacy a presence at the UN," in

News From Indian Country, late Sept. 1995, 13.

45Doug George-Kanentiio, "Iroquois Diplomacy and the Balkan Quagmire," in

News From Indian Country, mid October, 1995, 19

20

In the 1920s, a man by the name of Deskaheh, a Cayuga, also known as Levi

General, brought to the Six Nations his concept of reaffirming and defending Iroquois

sovereignty, which proved to have a significant effect in renewing enthusiasm and

interest in this issue. In response to Canadian policies, he traveled on an Iroquois

passport to Europe as representative of the Confederacy Council at Grand River. His goal

was to defend the Haudenosaunee cause before the British secretary of the Colonial

Office and the League of Nations in Geneva. He argued, as the Iroquois have consistently

maintained, that they have never given up any sovereignty.46 Although his two years of

persistence were ineffective in the political sense, Deskaheh did succeed in reintroducing

the Iroquois to the nations of the world.

Then there is the Tuscarora man, Wallace "Mad Bear" Anderson, who traveled to

almost every seaport in North and South America as merchant seaman and established

contacts with Mexican and Central American Indians. Vine Deloria Jr. suggests that

Anderson built the groundwork that led to a closer network of North, Central, and South

American Indians.47

Since that time, the Iroquois presence has become well established in international

organizations. In 1984 the Iroquois assisted in drafting a "Declaration of Principles of

Indigenous Rights" in Panama and were formally recognized in Holland at the Fourth

Russel International Tribunal.48 The following year, Chief Leon Shenandoah, Onondaga,

proposed a future "worldwide cease-fire" for 1986 before the United Nations General

Assembly.49 In 1987, Onondaga Chiefs Oren Lyons and Bernie Parker were invited to

Bogata, Columbia to support the Miskito Indians in their peace negotiations with the

Sandanista government. The Miskitos' desire for independence from Nicaragua is said to

be a struggle the Iroquois traditionalists see as an extension of their own.50 And more

recently on November 22 and 23 of 1993, the Onondaga delegation , comprised of Oren

Lyons, Audrey Shenandoah, Leon Shenandoah, and Jake Swamp, attended the UN's

"Cry of the Earth, the Legacy of First Nations" environmental conference.51 And of

course, they do their traveling on Iroquois-issued passports.

As this paper has shown, the ability of the Iroquois to operate on the international

level has been severely discouraged by the U.S. and Canada's federal governments, as

well as some points of international law. But at the same time, this ability is supported

47Deloria, p. 233

49Chief Oren Lyons, "Haudenosaunee: Mohawk-Oneida-Onondaga-Cayuga-Seneca-

Tuscarora To the General Assembly of the United Nations New York" (24 October,

1985) The Fourth World Documentation Project:

halcyon.com/pub/FWDP/Resolutions/International/ daypeace.txt.

51 Valerie Taliman, "Legacy of First Nations heard at United Nations, " in

News from Indian Country, mid-December 1993, 1.

21

by history and the very core ideals that gave rise to international law. While this intrinsic

Iroquois characteristic may not be recognized by some, it is now reemerging as a tool to

reintroduce the tribes back into the international community as they once were before. To

involve themselves in such matters is entirely consistent with Iroquois tradition, identity,

and their belief in autonomy and independence. They will not wait for the federal

government's blessing. For the native Nations that would desire to move in this

direction, the Iroquois would serve as an example and would set a hopeful precedent in

U.S. federal policy.

22

IV. CONCLUSION

The road to Native American self government has a long and tortuous one, with

many disappointments along the way. There is reason to believe that due to the higher

international visibility that native American claims now enjoy, the most basic right, the

right of self-government, may be closer to being realized. The transfer of economic

control of American Indian reservations from the Federal government and the Bureau of

Indian Affairs to the tribes themselves has laid the economic groundwork to assist

measures to enhance political autonomy.

The acceptance on the part of the government of the United States that Indian

Rights are subjects of international concern for which it accepts responsibility is another

significant development. The U.S. government has publicly placed Indian Rights under

Basket III topics of the 1975 Helsinki Act, thus creating an international commitment to

enter into government-to-government relations with its Indian nations. While this

remains largely a paper commitment to date, its significance should not be

underestimated. The prestige and credibility of the United States to speak out on minority

rights abroad is now increasingly subject to scrutiny based upon its compliance to its

commitments at home.

President Reagan exhibited his sensitivity to this relationship when he committed

his administration to promoting a policy of Indian self-government. While his

motivations may not have been totally in line with the Helsinki Final Act, the end result

has been measured improvement in the ability of Native Americans in the United States

to exercise higher degrees of autonomy, particularly in the economic arena. The impact

of efforts to devolve ever more federal government responsibility down to the level of the

states does not bode particularly well for continued progress. The key question to ask

may be: Will Native Americans be content to accept progress in their economic and

social development, while experiencing little progress in achieving greater levels of

political autonomy?