A Pathway to Justice for Indigenous Peoples in International Law: Implementation of the United Nations Declaration on the Rights of Indigenous Peoples
By Dr. Sheryl Lightfoot
For most of the past 500 years, international law has not served Indigenous peoples well, often enabling patterns of injustice through erasure, subjugation, inequality, and exclusion. Beginning in the 15th century, the Doctrine of Discovery became the foundation for European colonialism, justifying the subjugation, displacement, and dispossession of Indigenous peoples around the world. By the mid-20th century, in the aftermath of two incredibly violent world wars, an important body of international law emerged, grounded in universal human rights. But there were clear absences and omissions concerning Indigenous peoples, particularly excluding consideration of their distinctive nations and institutions.
In the mid-20th century, the international community adopted a set of laws and processes for decolonization. But again, Indigenous peoples were left out, without any access to justice through this system. It was not until 2007, when after nearly four decades of advocacy and struggle by the global Indigenous peoples’ rights movement, that the United Nations General Assembly officially adopted the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), and international law began a long, slow process to remedy the injustices it has committed against Indigenous peoples over time.[i]
The First International Law: The Doctrine of Discovery
The Doctrine of Discovery emerged from the European Age of Exploration, spurred by a desire for territorial expansion, resource exploitation, and the spread of Christianity. Its roots can be traced back to the Papal Bulls issued by Pope Nicholas V in the late 15th century, specifically the bulls Dum Diversas (1452) and Romanus Pontifex (1455). These two documents effectively granted European, i.e., Christian, powers the exclusive authority to discover, conquer, and colonize non-Christian lands, labelling these lands as terra nullius, meaning, “land that belongs to no one.” This assertion completely disregarded the presence, histories, and inherent sovereignty of Indigenous peoples who had lived on those lands and governed themselves since time immemorial.
The Doctrine of Discovery, which eventually coalesced from the Papal Bulls into the first principle of international law, was the white supremacist “theory that guided colonial practice” since it contained an underlying assumption that “Europeans were higher … in intelligence than the Indians, and also suggests that the Europeans, by virtue of a ‘superior’ intelligence, possessed a higher position of power in relation to the lands of the (American) continent and in relation to the Indigenous peoples living there.”[ii] As Vine Deloria, Jr. wrote, “In practice, the theory meant that the discoverer of unoccupied lands in the rest of the world gained a right to the land titles,” as well.[iii]
The Doctrine of Discovery has had far-reaching consequences for Indigenous peoples. It facilitated the colonization of the Americas, Africa, Asia, and the Pacific, leading to the forced displacement, enslavement, and genocide of countless peoples. Land seizures, forced assimilation, and cultural erasure became the norm as colonizers sought to establish dominance and control. The doctrine, however, is not merely an unpleasant historical memory. Indigenous peoples around the world continue to grapple with the enduring consequences of the dispossession, marginalization, and inequalities enabled by the doctrine’s foundational role in the establishment of many “post-colonial” nation states.
In the United States context, the doctrine was formalized into law during the 1820s and 1830s in the trilogy of Supreme Court cases often described as the Marshall decisions, in reference to then-Chief Justice John Marshall. The seminal case of the trilogy, Johnson v. McIntosh (1823),[iv] solidified the international legal framework of the Doctrine of Discovery and its application to Indigenous land rights in the United States. Canadian law imported the Marshall decisions through the St. Catharine’s Milling and Lumber Company v. The Queen (1888) decision.[v] Over time, Australian and New Zealand courts also imported the doctrine in their legal systems, citing Johnson v. McIntosh.
In the Johnson v. McIntosh case, the U.S. Supreme Court was tasked with deciding the validity of land purchases made by William McIntosh, a white settler, from tribal nations. The court cited the Doctrine of Discovery as the foundation for the legal principle that Indigenous nations held only a right of occupancy, not full ownership, over their ancestral lands. The court held that the United States had inherited the exclusive right of acquiring and extinguishing Indigenous land title from the European powers that had first discovered and claimed the territory, under the doctrine. This decision established that the United States, as a successor to European colonial powers, had the authority to extinguish Indigenous land rights without their consent. It legitimized the confiscation and forced displacement of Indigenous peoples from their ancestral lands within the United States, which then spread to other new states emerging from European colonial rule.
Writing in 2006, Eastern Shawnee legal scholar Robert J. Miller noted that the Doctrine of Discovery remained valid international law, as it had never been officially denounced in international law or by the Vatican.[vi] Further, Johnson v. McIntosh has been cited at various times by courts in Canada, Australia, and New Zealand. It was specifically cited in a U.S. Supreme Court case as recently as 2005, in City of Sherrill v. Oneida Indian Nation of New York, with Justice Ruth Bader Ginsburg delivering the majority opinion of the Court.[vii] As recently as 2012 in Canada, the Court of Appeal in the province of British Columbia cited discovery in an attempt to continue to deny Indigenous peoples their land rights.[viii] While that case was later overturned,[ix] the legal system in Canada still relies on the doctrine to justify the “presumed sovereignty” of the Crown.
In recent decades, there were numerous appeals by Indigenous peoples to the Vatican, asking for repudiation or rescindment of the Doctrine of Discovery, relying on the United Nations Declaration on the Rights of Indigenous Peoples for support. An important preambular paragraph in the UNDRIP affirms “that all doctrines, policies and practices based on or advocating superiority of peoples or individuals on the basis of national origin or racial, religious, ethnic or cultural differences are racist, scientifically false, legally invalid, morally condemnable and socially unjust.”[x]
In 2010, the Holy See issued a statement that “for the Church, the (Doctrine of Discovery) has had no value whatsoever for centuries” and indicated that the refutation of the doctrine in legal systems was now the responsibility of the states that have employed it.[xi] In a surprise announcement on March 30, 2023, the Vatican issued a statement that the “Catholic Church … repudiates those concepts that fail to recognize the inherent rights of Indigenous peoples, including what has become known as the legal and political ‘Doctrine of Discovery.’”[xii] This same statement highlighted the Vatican’s support for the United Nations Declaration on the Rights of Indigenous Peoples, noting “the implementation of those principles would … help protect the rights of Indigenous peoples.”
International Human Rights Law
On December 10, 1948, just a few years following the end of the second World War, the United Nations General Assembly adopted a landmark document, the Universal Declaration of Human Rights (UDHR).[xiii] The UDHR serves as a comprehensive framework for the protection of fundamental human rights and freedoms. It consists of 30 articles that outline a broad range of civil, political, economic, social, and cultural rights that should be universally upheld.
This document asserts that human rights are universal and based on the inherent dignity and equal rights of all human beings, simply by nature of being human. It recognizes a host of civil, political, economic, social, and cultural rights and asserts that these rights are interconnected and mutually reinforcing. Further, the UDHR places the primary responsibility for upholding and promoting human rights on nation states, which are expected to respect, protect, and fulfill the rights enshrined in the UDHR, and are urged to adopt national laws and policies that align with these principles.
In the decades that followed, the international community developed, and individual states signed and ratified, a series of human rights treaties. These treaties are legally binding, international agreements that outline the rights and freedoms that all individuals are entitled to. These treaties established a framework for the protection and promotion of human rights at the international level. The foundational treaties in the human rights system included the International Convention on the Elimination of All Forms of Racial Discrimination (CERD), adopted in 1965,[xiv] as well as the International Covenant on Civil and Political Rights (ICCPR)[xv] and the International Covenant on Economic, Social and Cultural Rights (ICESC),[xvi] both adopted in 1966. These treaties, along with many to follow, form the core of international human rights law.
A fundamental principle of international human rights law is self-determination, which was the only collective right recognized and widely supported by the international community for many years. Self-determination, as articulated in Article 1 of both the ICCPR and the ICESC, recognizes the right of all peoples to freely determine their political status, pursue their economic, social, and cultural development, and exercise control over their own resources.
The problem for Indigenous peoples, at this time, was that the international human rights system did not consider Indigenous peoples to be “people” with an inherent and equal right of self-determination, as all other peoples. Due to the legacy of the Doctrine of Discovery, Indigenous peoples were considered as “populations,” “people,” without the “s,” or as “minorities” within nation states. None of those terms carry the inherent right of self-determination; only “peoples” carry that right. So, while international human rights law supported equal rights for Indigenous individuals, it simultaneously excluded Indigenous peoples from all collective rights as “peoples.” In short, international human rights law actively excluded Indigenous peoples, by definition, from the right of self-determination.
Yet, for Indigenous peoples, self-determination is the foundational right from which all other rights flow. Sámi scholar Rauna Kuokkanen theorises self-determination as “a foundational value that seeks to restructure all relations of domination.”[xvii] It is a concept that, deployed in both domestic and international domains, can “produce different forms of politics and political claim-making.”[xviii] It took years of tough advocacy by the global Indigenous peoples rights movement to push the international human rights system to accept them as “peoples” with an equal right of self-determination, as all other peoples.
As a direct result of Indigenous advocacy during the negotiations for the UNDRIP, this injustice in international human rights law was corrected, at least in print. Article 1 of the UNDRIP specifically recognizes that Indigenous peoples have “the right to the full enjoyment, as a collective or as individuals, of all human rights and fundamental freedoms as recognized in the Charter of the United Nations, the Universal Declaration of Human Rights, and international human rights law.” Article 2 acknowledges the equality of Indigenous peoples to “all other peoples.” Then, Article 3 states unequivocally, “Indigenous peoples have the right to self-determination.”
The UN’s Decolonization Program
Decolonization, a process that aimed to dismantle colonial structures and restore self-governance to oppressed peoples, reached its height in the mid-20th century, when decolonization was predominantly interpreted as a struggle for independence by nations that had been colonized by European powers. Movements for self-determination, which centered around political, economic, and social liberation from colonial rule, found clear support in international human rights law, and especially, the human rights treaties. However, Indigenous Peoples found themselves, once again, marginalized and excluded, both in the discourse and processes of decolonization.
In the 1950s and 1960s, when discussions were occurring globally on self-determination and eligibility for decolonization, the leading imperial powers of the time were deciding which peoples were eligible for decolonization. Belgium, which held a large colony in Africa, tabled a proposal that all imperial powers should decolonize, including settler colonial states, such as Canada, Australia, New Zealand, and the United States. Those nations, together with an unlikely ally during the Cold War years, the Soviet Union, felt otherwise. Together, they invented the “saltwater” thesis, which said that only colonies discontiguous from the colonial power, colonies located over saltwater, should be eligible for decolonization. The saltwater thesis definition was placed into the “Declaration on the Granting of Independence to Colonial Countries and Peoples,”[xix] the key U.N. General Assembly resolution on decolonization. Ultimately, this coalition prevailed, and the saltwater thesis drove the decolonization project, leaving Indigenous peoples definitionally excluded again, and as Chickasaw scholar James Sa’ke’j Youngblood Henderson describes, “the unfinished business of decolonization” with Indigenous peoples relegated to a discriminatory and second-class version of self-determination.[xx]
The Remedy: Implementation of the UNDRIP
At its core, the United Nations Declaration on the Rights of Indigenous Peoples is a remedial document, intended to serve as the antidote to this variety of injustices stemming from international law, which enabled subjugation, dispossession, and colonialism through the Doctrine of Discovery. Then later, perpetuated injustices in the form of erasure, discrimination, and exclusion through international human rights law and the U.N.’s decolonization program. The UNDRIP moves to correct this array of injustices, “affirming that Indigenous peoples are equal to all other peoples, while recognizing the right of all peoples to be different, to consider themselves different, and to be respected as such.”
Without implementation, however, the UNDRIP is simply a remedy on paper.
In recent years, UNDRIP has been used to set guidelines and standards on the international level and to establish legal obligations on the domestic level. It is cited as a reference, serves as a source of information and inspiration, and constitutes incontrovertible proof of the rights and duties of Indigenous peoples.
Due to Indigenous peoples’ advocacy, there are now several mechanisms within the United Nations that support implementation of the UNDRIP: 1) the Special Rapporteur on the Rights of Indigenous Peoples, established in 2001 under the Special Procedures mandate of the Commission on Human Rights, 2) the Permanent Forum on Indigenous Issues, established in 2000 as a high-level advisory body to the Economic and Social Council, 3) the Expert Mechanism on the Rights of Indigenous Peoples, which was mandated by the Human Rights Council in 2007 to provide advice on implementing the UNDRIP, and 4) the U.N. Voluntary Fund for Indigenous Peoples, which was established by the General Assembly in 1985 to support Indigenous peoples’ broad participation in the U.N. system. Several international organizations have developed policies and guidelines that draw from UNDRIP. International treaty bodies – charged with monitoring compliance with the international human rights treaties – are increasingly utilizing UNDRIP as an interpretive lens on their work.
In national contexts, Māori legal scholar Claire Charters has found that UNDRIP is increasingly being utilized by justices in national court decisions.[xxi] It has also been incorporated into legislation, such as in Canada and its province of British Columbia, and in national constitutions, in a few instances.[xxii] (Davis, 2015)
While progress has been made in implementing UNDRIP at the national and international levels, serious challenges and gaps remain. These challenges include significant variances in political will, conflicting interests, inadequate resources, and entrenched racist and discriminatory attitudes. Ongoing dialogue, engagement, and collaboration amongst the multitude of stakeholders are crucial to effectively implement UNDRIP, ensure the realization of Indigenous peoples’ rights, and continue to create a pathway to justice.
Notes
[i][i] Sheryl Lightfoot, Global Indigenous Politics: A Subtle Revolution (Abingdon, Oxon, UK: Routledge, 2016).
[ii] Stephen Newcomb, Pagans in the Promised Land (Golden, CO: Fulcrum Publishing, 2008), 78.
[iii] Vine Deloria, Jr., Behind the Trail of Broken Treaties: An Indian Declaration of Independence (Austin, TX: University of Texas Press, 1974[1985]), 86.
[iv] Johnson v. McIntosh, 21 U.S. (8 Wheat.) 543 (1823).
[v] St. Catharine’s Milling and Lumber Company v. The Queen [1888] UKPC 70, 14 App Cas 46.
[vi] Robert Miller, Native America, Discovered and Conquered: Thomas Jefferson, Lewis and Clark, and Manifest Destiny (Westport, CT: Praeger Publishers, 2006).
[vii] City of Sherrill v Oneida Indian Nation of New York, 544 U.S. 197 (2005).
[viii] William v. British Columbia, 2012 BCCA 285.
[ix] Tsilhqot’in Nation v. British Columbia [2014] SCC 44.
[x] UN General Assembly. 2007. Resolution adopted by the General Assembly on 13 September 2007 — United Nations Declaration on the Rights of Indigenous Peoples. Sixty-first session. A/RES/61/295. Available at https://documents-dds-ny.un.org/doc/UNDOC/GEN/N06/512/07/PDF/N0651207.pdf?OpenElement (accessed June 2023).
[xi] Permanent Observer Mission of the Holy See, Economic and Social Council, 9th session of the Permanent Forum on Indigenous Issues on Agenda Item 7: Discussion on the reports “Impact on Indigenous Peoples of the International Legal construct known as the Doctrine of Discovery, which has served as the Foundation of the Violation of their Human Rights” and “Indigenous Peoples and boarding Schools: A Comparative Study” New York, 27 April 2010.
[xii] Holy See. “Joint Statement of the Dicasteries for Culture and Education and for Promoting Integral Human Development on the ‘Doctrine of Discovery.’” Holy See press release, March 30, 2023.
[xiii] UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A (III), available at: https://www.refworld.org/docid/3ae6b3712c.html (accessed June 2023).
[xiv] UN General Assembly, International Convention on the Elimination of All Forms of Racial Discrimination, 1965, United Nations, Treaty Series, vol. 600.
[xv] UN General Assembly, International Covenant on Civil and Political Rights, 1966, United Nations, Treaty Series, vol. 999.
[xvi] UN General Assembly, International Covenant on Economic, Social and Cultural Rights, 1966, United Nations, Treaty Series, vol. 993.
[xvii] Rauna Kuokkanen, Restructuring Relations: Indigenous Self-determination, Governance, and Gender (New York, NY: Oxford University Press, 2019), 23.
[xviii] Sana Nakata, “Who is the self in self-determination?” in Indigenous Self-Determination in Australia: Histories and Historiography, eds. L. Rademaker and T. Rowse (Canberra: ANU Press, 2020), 335-353.
[xix] UN General Assembly. 1960. Resolution adopted on 14 December 1960 — Declaration on the Granting of Independence to Colonial Countries and Peoples. Fifteenth session. A/RES/1514 (XV). Available at file:///Users/lightft/Downloads/A_RES_1514(XV)-EN.pdf (accessed June 2023).
[xx] James Sa’ke’j Youngblood Henderson, Indigenous Diplomacy and the Rights of Peoples: Achieving UN Recognition. (Saskatoon, SK: Purich Publishers, 2008).
[xxi] Claire Charters, “The Declaration on the Rights of Indigenous Peoples in New Zealand Courts: A Case of Cautious Optimism”, SSRN Electronic Journal (2019). Available at http://dx.doi.org/10.2139/ssrn.3356127.
[xxii] Megan Davis, “Indigenous Constitutional Recognition from the Point of View of Self-Determination and its Exercise through Democratic Participation,” Indigenous Law Bulletin 8 (2015): 10-15.
