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

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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 international 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 sovereignties. The three cases to 2011), or if they constitute a form of assimila- be examined here are: tion and domestication (Corntassel 2008). Some critical Indigenous scholars have even argued Case 1: Indigenous nations along the Canada-US border have signed the 2014 Iinnii (Buf- that the rights discourse itself forms a politics of falo) Treaty. recognition that subjugates Indigenous peoples Case 2: Indigenous nations signed a treaty in Sep- to the nation-state, obliging them to practice tember 2016, to jointly fight pipelines politics only in ways recognized as legitimate by that carry Canadian Tar Sands oil. the settler state (Alfred 2005; Coulthard 2014). Case 3: The International Indian Treaty Council In the case of the Yukon, for example, Nadasdy has held annual Indigenous nation treaty has observed that gaining self-government has conferences without state participation entailed tradeoffs for Indigenous peoples, such since 1974. that: “Land claim and self-government agree- These cases share some salient commonalities ments are not simply formalizing jurisdictional and differences. Each explores Indigenous trea- boundaries among pre-existing First Nation poli- ties and governance agreements that exist both ties; they are mechanisms for creating the legal within states and across state borders. Cases 1 and administrative systems that bring those poli- and 2 are located in North America, while Case ties into being” (Nadasdy 2012: 503). 3 initially began as a Western Hemisphere initia- While some activist and scholarly voices hold tive but quickly expanded to a global effort. All that the UN Declaration recognizes an Indig- cases occur in the context of advanced Western enous legal right to self-determination equal liberal democracies, emerging in regions with a to all other peoples, with parallels to the 1960 long-documented tradition of historical treaty UN Decolonization Declaration (Carmen 2012; making. All of the cases have roots in Indigenous Deer 2011), others critique the UN Declaration activism that is both resistant to colonialism and for diminishing self-determination rights within simultaneously aimed at building new institu- a colonial matrix of settler state power (Watson

27 New Diversities 19 (2), 2017 Sheryl R. Lightfoot and David MacDonald

2011). A third path views the UN Declaration’s political self-determination that operates inde- articulation of self-determination as a unique pendently of domestic Indigenous-state relation- and relational form (Anaya 2009; Lightfoot 2016), ships or beyond the state. Yet, Indigenous peo- requiring ongoing negotiation. International ples engaged in treaty relations with one another fora, such as the UN Permanent Forum, have and with non-human entities long before contact long been useful to Indigenous peoples working with colonizers and generally welcomed such across state boundaries (Lightfoot 2016), while forms of political relations with early explorers domestically, organizations such as the Iwi Chairs and settlers. So, in many respects, it is entirely Forum in Aotearoa-New Zealand and the Assem- natural to expect Indigenous people to continue bly of First Nations and provincial counterparts to relate to one another utilizing treaty making. in Canada have promoted forms of self-deter- However, with colonial relations dominating over mination on behalf of their members. Norway, time, it has become natural to think of Indigenous Finland, and Sweden have institutionalized Indig- peoples relating only in and through states and enous legislatures that serve as consultative bod- their structures. For the past several hundred ies to the national parliaments (Broderstad 2011; years, Indigenous treaty making has been solely Kuokkanen 2011, 2012). understood as directed at and through states. Some Indigenous peoples exercise self-deter- This colonial pattern is changing. In recent years, mination in ways that resemble the external Indigenous peoples around the world have been sovereignty of states: issuing and travelling on taking back their old traditions of treaty -mak their own passports (Kuprecht 2013), conduct- ing as an innovative Indigenous form of political ing trade and diplomatic missions (Beier 2009; relations that pushes the boundaries of what, for Kuprect 2013; Macklem and Sanderson 2016), many years, has typically been considered “inter- engaging in international trade (Drahos and national relations.” We illustrate this trend with Frankel 2012; O’Sullivan 2007), as well as nego- three contemporary cases, and then offer some tiating and entering into treaty-like agreements conclusions. with other Indigenous peoples (Beier 2009; Henderson 2008; Lightfoot 2016). So, while the The Iinnii (Buffalo) Treaty UN Declaration seems to offer a novel view of The peoples of the Northern Plains of North Indigenous self-determination, it may also fore- America have used treaty as their primary form ground new and evolving global understandings of political relations since time immemorial. For of the term, decoupling it from sovereignty and thousands of years prior to European contact, the territoriality (Lightfoot 2010; Quane 2011), with Blackfoot, Cree and Dakota peoples, among oth- salient practical implications that move beyond ers, used intertribal treaties to form agreements Indigenous peoples to impact wider issues of and alliances amongst themselves. Traditionally, global governance, a phenomenon that has been these groups also often extended the practice inadequately explored in International Relations of treaty making to include non-human animals, (Beier 2009, Keal 2003, Tickner 2015). including and especially, the buffalo, who some- Self-determination is a common area of theo- times were seen, Hubbard (2014) recalls, “much retical work in Indigenous Studies (Alfred, 2005; like a benevolent grandparent” (294). Anaya, 2009, 2000; Corntassel, 2008; Coulthard, Initially, treaties were also the preferred form 2014; Koukkanen, 2011, 2012; Simpson, 2014; of European relations with Indigenous peoples of Simpson 2011), yet is often considered either North America. As early as 1613, Dutch settlers as cultural/linguistic/spiritual resurgence or in formed an enduring treaty with the Haudeno- terms of relations between IPs and the state saunee peoples of the Eastern Great Lakes and (Deloria and Wilkins, 1999; Lerma, 2014). Few St. Lawrence River valley, known as the “Two theoretical or empirical examinations explore Row Wampum” treaty. This treaty, depicted on

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the wampum belt as two parallel blue lines on On September 23, 2014, representatives from a white background, intended that the two peo- eleven tribes/First Nations in the United States ples would co-exist like two parallel rivers, each and Canada signed the “Northern Tribes Buffalo one independently navigating its own way, with- Treaty” in Blackfoot territory in Browning, Mon- out disturbing or disrupting the other. As Wilson tana. The first intertribal treaty to be signed on (2000) wrote, “This wampum belt confirms our the Great Plains in over 150 years, this treaty words. […] Neither of us will make compulsory was intended to establish an alliance for coop- laws or interfere in the internal affairs of the eration among the various reserves to restore other. Neither of us will try to steer the other’s the buffalo on tribal or co-managed lands. The vessel.” (115-116). British colonial policy was signatories included the Blackfeet Nation, the also based on treaty making, usually in the form Blood Tribe, Siksika Nation, Piikani Nation, the of military alliance which either sought aid or Assiniboine and Gros Ventre Tribes of the Fort neutrality from tribes or their friendship and Belknap Indian Reservation, the Assiniboine and peace. For many years, treaty making was satis- Sioux Tribes of the Fort Peck Indian Reservation, factory practice for both Indigenous nations and the Salish and Kootenai Tribes of the Confeder- the colonizers (Leslie & Macguire, 1979). ated Salish and Kootenai Indian Reservation, and In the meantime, ancient intertribal practices the Tsuu T’ina Nation. Collectively, these groups of treaty making continued, especially in the West own and manage about 6.3 million acres of prai- and the Great Plains until the second half of the rie and grasslands in the United States and Can- 19th century. The Lame Bull Treaty of 1855, which ada. As reported by the American Bison Society established a large common hunting ground, was (2014), “their goal is to achieve ecological res- one of the last of the Northern Plains intertribal toration of the buffalo on their respective lands, treaties to be signed, prior to the colonizers’ and in so doing to re-affirm and strengthen ties demand in the late 19th century that all Indige- that formed the basis for traditions thousands of nous peoples’ external relations be only with the years old.” colonizing state (American Bison Society, 2014). Leroy Little Bear of the Blood Tribe in Alberta Coincident in time, settlers slaughtered buffalo in and Professor Emeritus at the University of Leth- great numbers, and the once great wild buffalo bridge, describes this treaty process as a lengthy herds disappeared completely from these lands one. Buffalo dialogues, he said, were held among by the early 20th century. Indigenous peoples of elders in Blood territory over the course of about the Great Plains were pushed onto reserves, and six or seven years. After about seven years of forced to alter their ways of life, which had previ- discussion, the elders declared that they were ously and traditionally revolved around both the now of one mind and they wanted the buffalo buffalo and treaty making. For more than a cen- to come back. But, they also realized that this tury, Indigenous peoples lived with the reserve task, to bring free roaming buffalo back to their system and largely (though never fully) accom- lands, was an enormous one, and they needed modated state demands for exclusivity in exter- others to help. The elders suggested a treaty, nal relations. The few buffalo that survived the saying that we used to make treaties not only 19th century slaughter remained in captivity. But, between ourselves but also between us humans in the late 20th and early 21st century, Indigenous and with other animals. The elders also said that peoples’ resistance re-emerged on both sides the Blackfoot have had a treaty with the buffalo. of the Canada-US border, centered on the twin But now, Little Bear said, the elders declared that goals of political self-determination and cultural we need a treaty to bring our people together resurgence. Both intertribal treaty making prac- so that we can have a place for the buffalo once tices and relations with the buffalo needed to again. According to Little Bear, who played a return. major role in the Iinnii (Buffalo) Initiative to

29 New Diversities 19 (2), 2017 Sheryl R. Lightfoot and David MacDonald

ensure that the elders’ vision for treaty became Buffalo restoration efforts as a result of the reality, treaty began on January 29, 2017, when Cree and Blackfoot leaders gathered to bless buffalo Having humans fit themselves into the ecological balance (is) fundamental to the life-ways of Indian journeying on their way from Elk Island National peoples. But the buffalo is a major player in this Park to roam freely in Banff National Park. Wes- ecological scenario. The near extinction of the buf- ley First Nation Band Councillor Hank Snow told falo left a major gap. The treaty on buffalo restora- Windspeaker reporter Shari Narine (2017) that tion aims to begin to fill that gap and once again he believes it is the first time in many genera- partner with the buffalo to bring about cultural and ecological balance” (Alexander 2014). tions that the Blackfoot Confederacy has come together with the Samson Cree Nation to do cer- The 2014 treaty, titled The Buffalo: A Treaty of emony. The ceremony, he said, allows a connec- Cooperation, Renewal and Restoration, opens tion with the buffalo and that both First Nations with an acknowledgement of this ancient rela- people and the buffalo are together freeing tionship with buffalo. It reads, themselves from 150 years of imprisonment Since time immemorial, hundreds of generations under colonization. (Narine 2016). of the first peoples of the FIRST NATIONS of North While the physical and cultural restoration of America have come and gone since before and af- the buffalo is underway, the multiple political ter the melting of the glaciers that covered North motives and results of the Buffalo Treaty are also America. For all those generations, BUFFALO has apparent. Leroy Little Bear sees the treaty as a been our relative. BUFFALO is part of us and WE are part of BUFFALO culturally, materially, and spir- new expression of Indigenous sovereignty based itually. Our on-going relationship is so close and co on old practices of Indigenous self-determina- embodied in us that Buffalo is the essence of our tion and political relations. He said, holistic ecocultural life-ways. The whole notion of sovereignty is really a matter They treaty was designed to be enduring and of degree. And a phasing-in to greater and greater open to new partnerships and supporters. Arti- autonomy, a greater and greater amount of self- cle VII states that others are invited to join and decision making. It’s kind of like we’re taking on form partnership with the signatories to make more of our own decision making, and that’s what everybody on both sides of the border are talking the objectives of the treaty a reality. In August about. (Radford 2016.) 2015, the first anniversary gathering of the Buf- falo Treaty took place, this time in Banff, Alberta, In this scenario, the rigid borders of states are to welcome additional signatories to the treaty: more permeable, allowing buffalo a degree of the Stoney Nakoda Chiniki Nation, Bearspaw mobility which they have not had for over a cen- Nation, the Wesley Nation and the Samson Cree tury. Nation. Noting that the treaty aims to restore multiple relationships that existed when- buf Tar Sands Treaty Alliance falo roamed freely throughout their territories, Another inter-Indigenous treaty was born about new signatory, Chief Ernest Wesley of the Wes- the same time, also in Western North America. ley First Nation (Stoney Nakoda) told the CBC On April 10, 2015, a number of Indigenous lead- (2015), “For me, it’s historic. We’ve become ers, representatives and activists from grassroots brothers again with the buffalo.” In 2016, at the organizations across Canada held a meeting, a 30th annual Treaty 4 gathering, Indigenous lead- day ahead of a large climate march in Quebec ers from 10 more First Nations signed the treaty: City. This group of leaders and activists wanted Sakimay, Star Blanket, Okanese, Ocean Man, to strategize about how to deal with climate Ochapowace, Peepeekisis, Yellow Quill, Pheasant change, which disproportionately impacts Indig- Rump, Wuskwi Sipihk and Sapotaweyak (Radford enous communities since they are often located 2016). in areas hardest hit by such things as rising ocean

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levels and wildfires. The consensus of this group als that the group collectively opposes: Kinder was that, in North America, one of the biggest Morgan, Energy East, Line 3, Northern Gateway environmental threats is the Tar Sands of Alberta, and Keystone XL. The document also lists some and the group members all aimed to halt the rail projects associated with distribution of tar expansion of Tar Sands production and distribu- sands oil. tion. Since this is a treaty, meaning it can only be Also in 2015, representatives from the Yinka signed by nations, signatories can include only Dene Alliance of central British Columbia began First Nations on the Canadian side and Tribes on an awareness campaign. Dubbed the “West the US side of the border. Other organizations, meets East” tour, this group spent a month visit- groups, companies, unions and so forth are wel- ing First Nations communities along the Energy come to sign the Solidarity Accord in support East pipeline route to discuss with them how of the Treaty Alliance, if they wish. By Novem- community activism resulted in the earlier “Save ber 2016, when the Canadian government the Fraser Declaration” that helped beat a similar announced approval of the Kinder Morgan pipe- project by banning a pipeline under Indigenous line, the Treaty Alliance held another ceremonial Law. Later that same year, in September, the alli- signing of new members. It had grown to over ance grew when the Union of British Columbia 100 signatories and numerous supporting groups Indian Chiefs invited Grand Chief Serge Simon (Treaty Alliance 2016a). By July 2017, another of the Mohawk Council of Kanesatake, Grand ceremonial signing included the Great Sioux Chief Derek Nepinak of the Assembly of Mani- Nation, Ponca Nation and Blackfoot Confederacy, toba Chiefs, and Chief Arnold Gardner of Eagle all on the US side of the border, bringing the total Lake First Nation to address their 47th annual Indigenous nation signatories to over 130 (Treaty Chiefs-in Assembly. These Indigenous leaders Alliance 2017). On the same day, these same all expressed a similar frustration – that while groups signed another inter-Indigenous treaty: “Indigenous peoples have contributed the least “The Grizzly: A Treaty of Cooperation, Cultural to climate change, they stand to lose the most” Revitalization and Restoration,” which aims to (Treaty Alliance 2015). Citing Tar Sands expan- safeguard the grizzly bear and fight against the sion as the largest contributor to Canada’s rise Trump administration’s effort to delist it from the in greenhouse gas emissions, they all stood com- Endangered Species Act (Treaty Alliance 2017a). mitted to fight new expansion of Tar Sands pro- In May 2017, the group announced an integrated duction and distribution.1 divestment campaign called “Mazaska Talks” Momentum grew over the next year, and (“mazaska” is Lakota for “money”) against the on September 22, 2016, a new continent-wide banks funding these Tar Sands pipeline projects Indigenous treaty, the Treaty Alliance Against Tar (Treaty Alliance 2017b). Sands Expansion, was signed on Musqueam ter- The Tar Sands Treaty reveals three principles ritory in Vancouver. Fifty First Nations and Tribes that illustrate how contemporary Indigenous from across Canada and the United States signed treaty making is creating novel visions of self- the treaty committing themselves to “working determination. First, the Treaty invokes Indig- together to stop all proposed tar sands pipeline, enous law and ancient treaty making practices tanker and rail projects in their respective ter- as its foundation. Second, Indigenous steward- ritorial lands and waters.” A press release from ship of the Earth motivates unified action and the group, issued on September 22, 2016, cites provides Indigenous leadership for what might five specific pipeline and tanker project propos- otherwise be framed as a non-Indigenous-led environmental movement. Third, the Treaty 1 Background on the Treaty Alliance in this section is envisions and calls for a future of shared decision drawn from the group’s website: treatyalliance.org. making authority between Indigenous and non-

31 New Diversities 19 (2), 2017 Sheryl R. Lightfoot and David MacDonald

Indigenous peoples and institutions. The text of nying Solidarity Accord also states: “We recog- the Treaty contains expressions of each of these nize the inherent rights of Indigenous peoples principles. It states: of Turtle Island to govern their territories and uphold their sacred trust to protect their land… Our Nations hereby join together under the pres- ent treaty to officially prohibit and to agree to col- (as)…Indigenous peoples have protected and lectively challenge and resist the use of our respec- stewarded these lands for millennia.” Casey tive territories and coast in connection with the -ex Camp-Horinek of the Ponca Tribe of Oklahoma pansion of the production of the Alberta Tar Sands, expressed this sentiment when his tribe signed including for the transport of such expanded pro- the Treaty in July 2017. He said, “If you don’t duction, whether by pipeline, rail or tanker. As sovereign Indigenous nations, we enter this think we’re nations, if you think we’re isolated treaty pursuant to our inherent legal authority and remnants of a bygone era, just watch us exercise responsibility to protect our respective territories our sovereign right to protect our land and our from threats to our lands, waters, air and climate, people by stopping these pipeline abominations but we do so knowing full well that it is in the best from threatening our water and our very future” interest of all peoples, both Indigenous and non- Indigenous, to put a stop to the threat of Tar Sands (Treaty Alliance 2017a). expansion. Indigenous law has always included treaty We wish to work in collaboration with all peoples making among Indigenous nations as well as and all governments in building a more equitable between Indigenous nations and Europeans. The and sustainable future, one that will produce Treaty text opens with this observation: healthier and more prosperous communities across Turtle Island and beyond, as well as pre- We have inhabited, protected and governed our serve and protect our peoples’ way of life (empha- territories according to our respective laws and sis added). traditions since time immemorial. Sovereign Indig- enous Nations entered into solemn treaties with The Tar Sands Treaty is intended for collective European powers and their successors but Indige- nous Nations have an even longer history of treaty action and support against a common, trans- making amongst themselves. Many such treaties continental threat. “We are in a time of unprec- between Indigenous nations concern peace and edented unity amongst Indigenous people work- friendship and the protection of Mother Earth. ing together for a better future for everyone,” noted Rueben George of the Tsleil-Wauthuth Chairman Brandon Sazue of the Crow Creek Sioux Sacred Trust Initiative (Treaty Alliance 2016b). Tribe, who called together Indigenous leaders to Kanesatake Grand Chief Serge Simon agreed, a treaty signing ceremony in July 2017, referred stating, “What this treaty means is that from to the Treaty Alliance as “Remaking the Sacred Quebec, we will work with our First Nation allies Hoop,” an ancient alliance between the Great in BC to make sure that the Kinder Morgan pipe- Sioux Nation and the Blackfoot Confederacy line does not pass and we will also work with- (Treaty Alliance 2017). out Tribal allies in Minnesota as they take on Finally, The Tar Sands Treaty expresses a vision Enbridge’s Line 3 expansion, and we know they’ll of “a clean and just energy future for us all” help us do the same against Energy East” (Treaty based on collaborative decision making author- Alliance 2016b). ity shared by Indigenous and non-Indigenous The Treaty is based on Indigenous nationhood peoples (Treaty Alliance 2016c). As expressed on and Indigenous law, based on protection of the the Treaty Alliance website, “Indigenous Nations Earth. In fact, text of the Treaty opens with these need to also be equal partners in developing twin ideas. The Treaty states: “We have inhab- responses and solutions to our climate crisis. ited, protected and governed our territories And in the course of urgently getting off fossil according to our respective laws and traditions fuels, it will be critical to ensure that no one is since time immemorial.” Further, the accompa- left behind” (Treaty Alliance, 2015). In fact, the

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Treaty Alliance demonstrates how Indigenous 1974. A year after the American Indian Move- peoples are working collectively to shift deci- ment’s 1973 occupation of/siege at Wounded sion making processes from a strictly hierarchical, Knee (South Dakota) had ended, and its principle state-based model, that may include consulta- leaders either jailed or defending themselves in tion with Indigenous peoples and others, toward court, the movement for Indian civil rights set a model that is based on the principle of free, about re-orienting and re-organizing itself. prior and informed consent, where Indigenous Legal scholar, philosopher, and theologian peoples aims to be included as decision making Vine Deloria, Jr. had published, in early 1974, partners in issues that impact them. As Kevin his fourth book of the more than twenty he Hart, Assembly of First Nations Regional Chief would write in his lifetime, Behind the Trail of for Manitoba, noted: “These tar sands pipeline Broken Treaties: An Indian Declaration of Inde- fights…are about protecting our Mother but will pendence. Drawing a direct link between the also end up being the turning point for relations status of American Indians in the American legal between our Nations and state powers – the framework and genocide, Deloria encouraged point where we say no more” (Treaty Alliance, Indigenous peoples to take up several agendas. 2017a). First, he called for a re-internationalization of As an alternative to the existing model of their relationship with governments. Logically, if Indigenous consultation, exercised by both the nations had signed “treaties” with tribes at one United States and Canada, the Treaty Alliance time, those tribes were considered “nations” by is centered on the principle of free, prior and definition and that status could be regained. He informed consent, which requires not only that also encouraged American Indians to go to the Indigenous peoples be consulted about issues international level, again, as had been attempted and decisions that impact them but that they be earlier, but failed, in the 1920s League of Nations. actively involved in such decision-making pro- Deloria encouraged the use that international cesses, from beginning to end. It also requires platform to push for a new agenda: a reinstitu- that they consent to projects that impact them, tion of the treaty process. in contrast to consultation polices which often Deloria’s philosophy aligned with that of Indig- provide the means for projects to proceed with- enous activists. In the summer of 1974, a group out the consent of the Indigenous communities of more than 5000 elders and traditional lead- directly impacted. Such a normative shift would ers representing ninety-eight Indigenous nations have tremendous implications not only on the from nine countries gathered at Standing Rock need for governments to interact more collab- Reservation in Lakota territory. These elders and oratively with Indigenous peoples, but the ripple leaders decided to take their treaty issues to the effects of such a shift may eventually broaden international level, especially the UN, and so and flatten the notion of self-determination they officially founded the International Indian for all peoples, Indigenous and non-Indigenous Treaty Council (IITC) as their organizational vehi- alike. cle. Several years later, in 1977, the IITC was the first Indigenous organization to receive consulta- International Indian Treaty Council tive status with the United Nations Economic and Despite the surge in inter-Indigenous treaty mak- Social Council (ECOSOC.) In the decades since, ing in Western North America in the 2010s, the IITC has served as a leading organization in the contemporary history of Indigenous treaty mak- global Indigenous rights movement. It supports ing can be traced back to the 1970s when the grassroots Indigenous struggles for self-determi- International Indian Treaty Council was formed nation and human rights by building, organizing at the very first treaty meeting at Standing Rock and facilitating “the direct, effective participa- Reservation in South Dakota in the summer of tion of traditional Indigenous Peoples in local,

33 New Diversities 19 (2), 2017 Sheryl R. Lightfoot and David MacDonald

regional, national and international events and The United States of America has continually vio- gatherings addressing their concerns and sur- lated the independent Native Peoples of this continent by Executive action, Legislative fiat andJu- vival” (IITC 2013). dicial decision. By its action, the U.S. has denied Eight guiding principles of IITC have shaped all Native people their International Treaty rights, its work over more than four decades. These Treaty lands and basic human rights of freedom range from an emphasis on traditional Indige- and sovereignty. This same U.S. government, nous values, to a preference for consensus deci- which fought to throw off the yoke of oppression and gain its own independence, has now reversed sion making processes, gender equality, and the its role and become the oppressor of sovereign Na- recognition and support of individual, unique tive people. Indigenous cultures in their unified movement. Crucially important as well is guiding principle In addition, the 1974 Declaration also calls for number five: “The IITC believes that Indigenous active non-violent resistance, “by truth and Peoples should speak for and represent them- action.” Intentionally mimicking some - lan selves before the world community” (IITC, n.d.). guage of the US Declaration of Independence to Since 1974, this has meant a treaty making pro- emphasize a common human desire for freedom cess of consensus agreement among Indigenous from oppression, it continues: “In the course of political actors that then proceeds in auni- human events, we call upon the people of the fied way to advocate collectively on the global world to support this struggle for our sovereign level. rights and our treaty rights. We pledge our assis- From the first founding Treaty Conference in tance to all other sovereign people who seek June 1974, the International Indian Treaty Coun- their own independence.” cil has advocated for the recognition and protec- The 1974 Declaration emphasized that the tion of Indigenous-state treaties and operated hundreds of existing treaties between the United on a treaty making model itself. This first Treaty States and Indigenous nations must not be aban- Council of 5000 delegates from 98 Indigenous doned or forgotten but rather, be recognized and nations from across North and South America secured in contemporary times through a “com- met for eight days of discussion. A single docu- mitted and unified struggle, using every legal ment emerged from these deliberations: The and political resource.” It notes specifically how Declaration of Continuing Independence by the the Constitution of the United States confirms First International Indian Treaty Council at Stand- that international treaties are intended as the ing Rock Indian Country, June 1974. This decla- “Supreme Law of the United States” and yet, it ration reflects the twin treaty making goals of blatantly ignores and violates hundreds of trea- the new IITC organization. IITC would itself rely ties with Indigenous nations that were to protect on a treaty making model of inter-Indigenous the lands and sovereignty of those nations. relations and decision making in order to advo- Organizationally, the newly formed Inter- cate, on the national and international levels, national Indian Treaty Council was to be non- for respect for Indigenous-state treaties and a governmental organization (NGO) with offices future vision of self-determination that centers in New York and Washington to interface with treaty making both amongst Indigenous nations national and international political organizations. and between Indigenous and non-Indigenous But, IITC would have a flavor not previously seen peoples. in the NGO community, given that it was founded The Preamble of the 1974 Declaration opens on the basis of consensus decision-making with a strong charge against the United States for amongst many diverse Indigenous nations and its ongoing failure to honour its treaty responsi- would continue to operate on this basis into the bilities: future. It was to be a unifying force of collective Indigenous advocacy and information dissemi-

34 Treaty Relations between Indigenous Peoples New Diversities 19 (2), 2017

nation that also respected the unique cultures, Conclusions political circumstances and treaties of each Our review of these three cases highlights ways individual Indigenous nation. As the 1974 Dec- in which Indigenous peoples are acting as self- laration states: “The International Indian Treaty determining political actors dealing with matters Council recognizes the sovereignty of all Native which fall within their traditional authority such Nations and will stand in unity to support our as buffalo mobility, while in other cases like the Native and international brothers and sisters in Tar Sands, banding together to resist environ- their respective and collective struggles concern- mental degradation and the spread of hazardous ing international treaties and agreements.” resource extractive industries. It also declared that the IITC would open diplo- Many Indigenous peoples are exercising their matic relations with the US through the Depart- self-determination by defining for themselves ment of State rather than the Department of what self-determination can and should mean. Interior’s Bureau of Indian Affairs. This demon- Their practices move beyond western forms of strates that the original intention of the group “internal” and “external” sovereignty, taking a was to push for a new and more assertive form of more holistic form, well beyond a legal or juridi- Indigenous sovereignty, specifically grounded in cal framework to also include culture, history, practices of international diplomacy as opposed and spirituality. It broadens the practice of self- to internal, domestic mechanisms. Finally, the determination to include not only relations with 1974 Declaration articulated that the IITC would other humans but also with non-human animals make application to the United Nations for rec- and the environment, in accordance with Indig- ognition and membership of “sovereign Native enous ontologies and lifeways. In practice, self- Nations” and pledged its support to any other determination by Indigenous peoples also moves Indigenous nation anywhere in the world doing beyond a discrete moment of political decision, the same. like a declaration of independence or a referen- In the years since 1974, IITC has kept to these dum, but rather, is conceptualized as part of an guiding principles, even as it has expanded. ongoing set of relations and obligations—politi- Treaty conferences are held annually in different cal, cultural and spiritual. locations around the world and focus on emerg- Indigenous knowledge systems, ways of gov- ing issues of common concern; each year, inter- erning, making treaty, and understanding the Indigenous discussions are held and common world have recently been reflected, and some- consensus resolutions achieved. For example, times appropriated, in the posthumanist turn in the 40th Anniversary Treaty Conference held in some of the social sciences. If humanism posi- 2014 in Okemah, Oklahoma, issued resolutions tioned humans as the centre of all sentient life on on such matters as environmental toxins, wom- earth, the posthumanist turn is attuned to human en’s reproductive health, and extractive indus- reliance on and interdependence with the rest of tries. The 2016 Treaty Conference in Hawai’i the world. This means, following Audra Mitchell, focused heavily on food sovereignty (IITC 2016). that posthuman approaches describe “worlds The longstanding IITC movement for Indigenous intersected and co-constituted by various kinds peoples to represent themselves in the United of beings: humans, other organisms, machines, Nations also had a boost of activity between elemental forces, diverse materials – plus 2015 and 2017 when the President of the UN hybrids, intersections and pluralities of all of General Assembly directed a group of advisors the above (and more)” (Mitchell 2017 11). Simi- to work on a draft resolution for enhanced Indig- larly, since 2015, “Anthropocene” theorists have enous participation in the General Assembly. suggested that since everything is interrelated, (United Nations 2015) bound together by “social power,” “enmeshed”

35 New Diversities 19 (2), 2017 Sheryl R. Lightfoot and David MacDonald

as “guests on this planet,” we should best see viability of existing settler states. As such these ourselves as “an array of bodies connected and are examples of complementary practices of self- interconnected in complex ways that have little determination. to with nationality” (Planet Politics 2015, 2). They may reflect aspects of a new relation- Unlike many forms of Indigenous knowledge, ship developing between Indigenous peoples, this posthumanist turn remains human cen- established state structures, and international tric, and profoundly Eurocentric as well, such institutions. These practices also bring to mind that Jane Bennett, in Vibrant Matter, cites only Brunyeel’s (2007) work on the “third space of white European male theorists as her inspira- sovereignty,” spaces where Indigenous peoples, tion: “Baruch Spinoza, Friedrich Nietzsche, Henry possessed of their inherent sovereignty, do not David Thoreau, Charles Darwin, Theodor Adorno, clearly fit with the spatial and temporal bound- Gilles Deleuze . . .” Her explicit goal is not so aries of settler states any more than those of the much about the world as it is “motivated by a settler state fit with their practices and structures self-interested or conative concern for human (xiv). In the past, such practices were crushed by survival and happiness,” which translates into discriminatory settler state legislation and struc- “greener forms of human culture and more atten- tural violence. This is slowly changing, as some tive encounters between people-materialities states mature within the international system and thing-materialities” (Bennett 2010 viii). and show a willingness to abide by agreements For Indigenous peoples, the conception such as the UN Declaration. of humans being inseparable from the world around them and interdependent with it goes back many millennia. Yet, as Metis scholar Zoe Todd signally notes, European and settler theo- References rists have been advancing Indigenous knowledge ALEXANDER, R. 2014. “Historic Intertribal Trea- systems as if they were European without any ty Works to Restore Bison in Western Canada, mention of Indigenous peoples. This boils down U.S.” Huffpost. http://www.huffingtonpost. ca/rob-alexander/alberta-montana-bison- to a conceit where Indigenous thinkers are fil- treaty_b_5890836.html (accessed Nov. 25, tered through “white intermediaries” instead of 2017). “citing and quoting Indigenous thinkers directly, ALFRED, T. 2005. Wasáse: Indigenous Pathways of unambiguously and generously.” Indigenous Action and Freedom. Toronto: University of To- peoples, Todd writes (with sentiments we share) ronto Press. must be regarded “[a]s thinkers in their own AMERICAN BISON SOCIETY. 2014. “Historic Buffa- right, not just disembodied representatives of lo Treaty Signed by Tribes and First Nations Along an amorphous Indigeneity that serves European U.S. and Canadian Border.” American Bison Soci- intellectual or political purposes, and not just as ety. https://programs.wcs.org/ambisonsociety/ research subjects or vaguely defined ‘collabora- News/American-Bison-Society-News/article- Type/ArticleView/articleId/9496/Historic-Buf- tors’” (Todd, 2017, 7). falo-Treaty-Signed-by-Tribes-and-First-Nations- In this chapter, we have sought to better con- Along-US-and-Canada-Border.aspx (accessed ceptualize how the right to self-determination is Nov 25, 2017). evolving and being practiced by Indigenous peo- ANAYA, J.S. 2000. “Self-determination as a Collec- ples in new, creative and innovative ways, which tive Human Right Under Contemporary Inter fully respect Indigenous laws, traditions, and national Law.” In Operationalizing the right of nation-to-nation relationships with one another Indigenous peoples to self-determination, edited and with settler governments. We have consid- by P. Aikio and M. Schenin. Turku: Institute for ered three cases where we could see Indigenous Human Rights. self-determination as commensurable with the

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Note on the Authors

Sheryl Lightfoot is Anishinaabe, a citizen of the Lake Superior Band of Ojibwe, enrolled at the Keweenaw Bay Indian Community in Baraga, Michigan. She is Canada Research Chair in Global Indigenous Rights and Politics and associate professor in First Nations and Indigenous Studies and the Department of Political Science at the University of British Columbia. Her first book, Global Indigenous Politics: A Subtle Revolution, was published in 2016 by Routledge Press in their critical international relations series. She is currently working on another book project, The Politics of Indigenous Apologies, a multi-national comparative study of state apologies to Indigenous peoples.

David B MacDonald is a full professor of political science, and the research leadership chair for his college, at the University of Guelph, Canada. His research and teaching areas include International Relations, US foreign policy, comparative Indigenous-settler relations in English speaking settler states. He has written four books on these subjects as well as numerous articles and book chapters, and four co-edited books amongst other works. His work is funded by the Social Sciences and Humanities Research Council of Canada. He has also been a faculty member at the University of Otago and the ESCP Graduate School of Management – Paris.