TONATIERRA
Community Development Institute
PO Box 24009
Phoenix, AZ 85074
www.tonatierra.org
tonal@tonatierra.org
May 17, 2022
Committee on the Elimination of Racial Discrimination (CERD)
CERD Secretariat
UNOG-OHCHR
8-14 Avenue de la Paix
CH-1211 Geneva 10
Switzerland
Dear Members of the Committee,
Recommendation for Theme: UN
Decolonization Protocols and Systemic Racial Discrimination against Indigenous
Peoples
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This submission is presented for
inclusion in the list of themes to be addressed during the review of the United
States of America by the Committee on the Elimination of Racial Discrimination
in August 2022.
Background
The International Convention on the
Elimination of All Forms of Racial Discrimination (ICERD) states:
Article 15
Pending
the achievement of the objectives of the Declaration on the Granting of
Independence to Colonial Countries and Peoples, contained in General Assembly
resolution 1514 (XV) of the 14 December 1960, the provisions of this Convention
shall in no way limit the rights of petition granted to these peoples by other
international instruments or by the United Nations and its specialized
agencies.
The reference of Article 15 of the ICERD
to objectives to be achieved in General Assembly Resolution 1514 (XV) is predicated
by the goal of the eradication of colonialism in all its forms, since:
Convinced that the
continued existence of colonialism prevents the development of international
economic cooperation, impedes the social, cultural and economic development of
dependent peoples and militates against the United Nations ideal of universal
peace,
Believing that the
process of liberation is irresistible and irreversible and that, in order to
avoid serious crises, an end must be put to colonialism and all practices of
segregation and discrimination associated therewith,
The
subjection of peoples to alien subjugation, domination and exploitation
constitutes a denial of fundamental human rights, is contrary to the Charter of
the United Nations and is an impediment to the promotion of world peace and
co-operation.
All
peoples have the right to self-determination; by virtue
of that right they freely determine their political status and freely pursue
their economic, social and cultural development.
The passage of UN GA1514 in
1960 marks the beginning of the end to the age of colonialism in terms of the
UN system. Consequently, when UNGA 1541 (1960) outlined the criteria for
identifying “non-self-governing territories” for the purposes of reporting under
section 73(e) of the UN charter to the UN Decolonization Committee, the issue
of discrimination in the processes of territorial integration within the
colonizing settler state was addressed as follows:
Integration should be on the basis of complete equality between the peoples of
the erstwhile Non-Self-Governing Territory and those of the independent country
with which it is integrated. The peoples of both territories should have equal
status and rights of citizenship and equal guarantees of fundamental rights and
freedoms without any distinction or discrimination; both should have equal
rights and opportunities for representation and effective participation at all levels
in the executive, legislative and judicial organs of government.
Under
1541, integration within the settler state apparatus was only one of three
options identified to correct the crime of colonialism. The other two are:
Associated
Free State Status
Independence
The history of the pathology of racial
and cultural supremacy as fundamental to the expansion of the USA across the
territories of the Indigenous Peoples on the continent precludes any legitimate
claim that the US settler state apparatus achieved “integration” under the guidelines
of UNGA 1541. Sadly, this murderous pathology
of institutionalized inequality and racism continues today, evidenced in atrocity
after atrocity of mass shootings and violent acts driven by the contemporary colonial-corporate
version of “American White Supremacy”.
With the adoption of the United
Nations Declaration on the Rights of Indigenous Peoples in 2007, the
recognition of Indigenous Peoples as Peoples, equal to all
other peoples, was established for the first time in the system of UN
protocols and procedures. For the first time, the UN system
acknowledged that the right of self-determination of all peoples, also included
Indigenous Peoples.
The issue that the proposed theme of UN Decolonization Protocols and
Systemic Racial Discrimination against Indigenous Peoples intends to
explore is the history of systematic discrimination of the US settler state
apparatus, et al, in the purported integration of territories and constituencies
of the Original Nations of Indigenous Peoples of the continent based on the nefarious,
violent, and blatantly discriminatory policies such as Manifest Destiny,
the Doctrine of Discovery and the “Blue Water Thesis” aka the
Salt Water Doctrine. That these policies
and practices of systematic discrimination continue today and have been
normalized within the UN system itself is exemplified by the fact that the UN
Decolonization Committee has yet to substantively address a single case of the
violation of the right of self-determination of the Original Nations of Indigenous
Peoples of the Great Turtle Island [America].
In terms of the US settler state apparatus, this issue is compounded and
aggravated by the denial and violation of the Treaties and agreements
between the US government and hundreds of Indigenous Nations. The 1868 Fort Laramie Treaty with the Oceti
Sakowin (Seven Nations), is an emblematic example of this issue as is the
case of the Western Shoshone Nation and the Treaty of Ruby Valley (1863),
among many others.
With respect to the situation of the
Western Shoshone in particular, the Committee on the Elimination of Racial
Discrimination formally rendered a decision regarding ongoing actions of
the United States and its ongoing failure to implement the recommendations
contained in paragraphs 8 to 10 of its Decision 1(68) of 2006 and reiterated
"in its entirety'' in paragraph 19 of its 72nd Session Concluding
Observations (2008). Instead, the U.S. continues to move forward on highly destructive
industrial activities and plans on Western Shoshone lands - threatening to
expand the irreparable cultural, spiritual and environmental harm being caused.
In fact, on September 28, 2009, the
Committee noted the United States' failure to respond to requests for
information and expressed concern over its slow pace in implementing
recommendations. The Committee called again for the "full
implementation" of Decision 1(68) and reiterated its request for
information regarding its progress. Furthermore, the Committee expressed the need
for "high-level" U.S. officials to consult with the Western Shoshone
on matters of resource extraction on Western Shoshone traditional lands.
In terms of the proposed theme, what
is especially significant about the treatment of the Western Shoshone case by
CERD and other UN agencies, is the fact that the US government’s claim for
jurisdiction over Western Shoshone territory via “gradual encroachment” is based
on the legaloid, discriminatory, and repudiated Doctrine of Discovery of
Christendom, via Mexico and the Treaty of Guadalupe Hidalgo (1848). This dimension of the case is not addressed by
CERD. The only territorial franchise
that Mexico may have illegally claimed over Shoshone Nation territory at any
time is as a successor state in historical consequence to the purported
claims of discovery by Spain under the Papal Bulls of Inter Caetera
(1493).
And although the UN Permanent Forum on
Indigenous Issues issued a repudiation of the Doctrine of Discovery of
Christendom in 2010, the underlying issue of the discrimination and denial
of the rights of petition articulated in Article 15 ICERD continues with
impunity in the UN decolonization protocols.
This must be corrected.
CONCLUSION
On October 8, 2021, the UN Human Rights Council Resolution adopted
resolution 48/7 titled Negative Impact of the Legacies of Colonialism on the
Enjoyment of Human Rights, wherein is stated the following:
Expressing deep concern at the violations of human rights of indigenous peoples committed in colonial contexts, and stressing
the need for States to take all measures necessary to protect rights
and ensure the safety of indigenous peoples, especially indigenous women and
children, to restore truth and justice and to hold perpetrators accountable,
1. Stresses the utmost
importance of eradicating colonialism and addressing the negative impact of the
legacies of colonialism on the enjoyment of human rights;
2. Calls
for Member States, relevant United Nations
bodies, agencies and other relevant stakeholders to take concrete steps to
address the negative impact of the legacies of colonialism on the enjoyment of
human rights.
Submission to CERD: Concrete steps addressing the systematic negative impact
of the legacies of colonialism in the UN system:
1) Recommendation for Theme: UN Decolonization
Protocols and Systemic Racial Discrimination against Indigenous Peoples
This theme
is respectfully submitted for inclusion in the list of themes to be addressed
during the review of the United States of America by the Committee on the
Elimination of Racial Discrimination in August 2022.
2) As a follow up to this theme, CERD should report
our recommendations to the UN General Assembly with support for the
inclusion of the Sioux Nation, based on the 1868 Fort Laramie Treaty, in the UN
Decolonization procedures which have recently been opened to us with UN
Human Rights Council Resolution No. 48/7.
3) The CERD should comprehensively address the systematic
violation of the Human Rights of Indigenous Peoples under the regimes of the
colonizing settler states of the Americas and their international borders, as
is exemplified in the Western Shoshone case and the border between US-Mexico established
by the Treaty of Guadalupe Hidalgo (1848).
4) For the purposes of discussion on this theme,
the recommendations of the 1999 UN Treaty Study by Dr. Miguel Alfonso Martinez
should be integrated as a substantive foundation for review, discussion, and effective
action to address the legacies of institutionalized colonialism in the UN
system.
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