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Treaty Relations Between Indigenous Peoples: Advancing Global Understandings of Self-Determination

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Treaty Relations Between Indigenous Peoples: Advancing Global Understandings of Self-Determination Treaty Relations between Indigenous Peoples: Advancing Global Understandings of Self-Determination by Sheryl R. Lightfoot (University of British Columbia) and David MacDonald (University of Guelph) Abstract Nation-states around the world tend to view Indigenous nations’ claims for sovereignty and self-determination in zero-sum terms, fearing that any advancement in Indigenous peoples’ self-determination means a loss of sovereignty or territorial integrity for nation-states. This article aims to shed light on how Indigenous political actors in several countries are advancing self-determinationin practice with, within, and across the borders of individual states, while navigating the international system, in assertive, maximal, innovative, and peaceful ways that do not result in a loss of nation-state sovereignty or territorial integrity. Some Indigenous peoples are entering into treaty or partnership agreements with other Indigenous groups, in conjunction with state institutions, or completely outside state purview. We examine several cases of such treaty relations and draw some conclusions about how these types of Indigenous-to-Indigenous treaty relations are enhancing and advancing Indigenous self- determination. Keywords: Indigenous peoples, Indigenous politics, self-determination, treaties, state sovereignty, colonization, Indigenous rights, UNDRIP, plural sovereignty Settler state governments have long claimed nations so that they conduct their external rela- absolute political sovereignty over Indigenous tions only with and through state institutions. lands, institutions, and peoples – claims that However, Indigenous peoples resist this colonial have always been subject to contestation and impulse for control in multiple ways and, in doing resistance by Indigenous peoples. Further, so, are driving shifts in global understandings of nation-states tend to view claims for sovereignty self-determination. and self-determination by Indigenous peoples in As Sheryl Lightfoot (2016) has argued, the zero-sum terms, fearing that any advancement in 2007 UN Declaration on the Rights of Indigenous Indigenous peoples’ self-determination means a Peoples (“the UN Declaration”), a global con- loss of sovereignty or territorial integrity for sensus statement of Indigenous peoples’ rights nation-states. Settler states have so jealously drafted by both states and Indigenous political guarded sovereignty and self-determination actors, has shifted global understandings of self- as their exclusive domain that they have even determination toward new constructions. All self-proclaimed a right of exclusivity in relations of the old colonial doctrines that justified state with Indigenous peoples (who are relegated to domination over Indigenous lands and resources the domestic sphere), creating and maintaining and the subjugation of Indigenous peoples, such policy structures that have legally confined and, as the Doctrine of Discovery, plenary power, and in practice, attempted to constrain Indigenous terra nullius, have been technically delegitimized NEW DIVERSITIES Vol. 19, No. 2, 2017 ISSN ISSN-Print 2199-8108 ▪ ISSN-Internet 2199-8116 New Diversities 19 (2), 2017 sheryl r. Lightfoot and David MacDonald in the international sphere, and Indigenous While the incommensurability of settler state peoples are recognized as enjoying the right of sovereignty and Indigenous self-determination is self-determination equal to all other peoples on widely argued (Tuck and Yang 2012; Barker and Earth. However, the new terms and meaning of Batwell-Lowman 2016; Simpson 2016; Coulthard Indigenous peoples’ self-determination is not so and Simpson 2016), Indigenous peoples, in some clear. While the UN Declaration states, in Article cases around the world, are pushing for impor- 3, “Indigenous peoples have the right to self- tant practical changes that allow states to peace- determination,” it also contains Article 46 which fully and more justly co-exist with Indigenous states: “nothing in this Declaration may be inter- nations. In recent decades, Indigenous political preted as implying for any State, people, group actors in several countries have been advanc- or person any right to engage in any activity or ing self-determination in practice through treaty to perform any act contrary to the Charter of the relations with, within, and across the borders of United Nations or construed as authorizing or individual states. In doing so, they are exercis- encouraging any action which would dismember ing their self-determination in assertive, maxi- or impair, totally or in part, the territorial integ- mal, innovative, and peaceful ways that do not rity or political unity of sovereign and indepen- threaten nation-state sovereignty or result in a dent States.” In other words, Indigenous peoples loss of state territorial integrity but are stretch- have a right to self-determination, but not neces- ing the limits of how state sovereignty has been sarily a right to secede from states or the right to previously understood. declare their independence as states. Since the Some Indigenous peoples around the world UN decolonization era began in the 1960s, “self- are entering into treaty or partnership agree- determination” has been largely understood as ments with other Indigenous peoples, in conjunc- the right to independence as a state, and the tion with state institutions, or completely outside UN Declaration is clearly pointing toward some state purview. Normally, international relations new understanding of self-determination that consider treaties as the exclusive domain of sov- does not equate to Westphalian interpretations ereign states. The Vienna Convention on the Law of state sovereignty, and a decoupling of sover- of Treaties (1969) defines a “treaty” as “an inter- eignty from self-determination (Lightfoot 2016). national agreement concluded between States in Indigenous peoples, in many respects, are written form and governed by international law, leading the way toward a future global imaging whether embodied in a single instrument or in of self-determination that will likely involve sov- two or more related instruments and whatever ereignties and other forms of political relations its particular designation” (Art. 2.1a). However, that may be plural and multiple, and are often Indigenous treaty making has always, since time rooted in the age-old practice of treaty mak- immemorial, involved more and deeper rela- ing. Both the global Indigenous rights discourse tions than simply an agreement between states and the political practices of some Indigenous or even merely between political entities. Rather, peoples around the world are, together, alter- it has embodied the depth and richness of Indig- ing these old state-centric and zero-sum pat- enous relationship making, which have always terns of Indigenous-state relations and toward included responsibilities not only to other politi- a set of political relations that is far more plu- cal bodies but also to non-human entities such ral and multiple in terms of sovereignties. The as animals, the environment and the spirit world. global challenge, that Indigenous peoples are Some Indigenous peoples in the contemporary helping address, is to re-think and re-imagine period are drawing on and reinvigorating their how self-determination can be practiced with- own traditional treaty practices in ways that cre- out an exclusive reliance on state structures ate multiple possibilities for the conventional (Lightfoot 2016). understanding of “treaty.” For example, Heidi 26 Treaty Relations between Indigenous Peoples New DIveRsities 19 (2), 2017 Kiiwetinepinesiik Stark (2017) has articulated tions and structures. Case 1 also explores human how treaties existed well before colonization, to non-human treaties, a subtext which implic- in webs of relationships with all creation, those itly runs through the other cases as well, as many “pre-existing relationships and responsibilities Indigenous peoples see the land and animals as across Anishinaabe aki (the Earth) that were parts of their responsibilities as human beings. impacted by these agreements.” By re-creating The cases also demonstrate how traditional and re-defining treaty making for their own pur- and evolving Indigenous models of diplomacy poses, in their own way, and on their own terms, and treaty can help counter the many negative these Indigenous peoples are actively asserting effects of absolute state sovereignty. Throughout, their self-determination in ways that advance its we also note similarities between Indigenous construction well beyond a territorially bounded knowledge and the evolving area of posthuman- nation state. ist thought in the social sciences, which reflects After first examining the concept of Indigenous some aspects of what we discuss here. self-determination and its place in the interna- tional human rights discourse, this article will Indigenous Peoples and Self-Determination examine several cases of such treaty relations Existing scholarly debates in the Indigenous rights, and attempt to draw some conclusions about politics, and law literatures focus attention on how these types of Indigenous-to-Indigenous whether Indigenous rights, as articulated in the treaty relations are enhancing and advancing UN Declaration are an advancement in Indige- Indigenous self-determination as well as leading nous sovereignty and self-determination (Burger a global conversation on the possibilities for plu- 2011; Daes 2011; Stavenhagen 2011; Thornberry ral and multiple
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