(Final report of study on treaties, agreements and other constructive arrangements between States and indigenous populations)

CHAPTER II: SUMMARY OF FINDINGS

91. In the three progress reports submitted until now, the Special Rapporteur   has endeavored to address not only the various aspects of the question of   treaties between Indigenous peoples and States as identified by Mr. Martinez   Cobo, [Study of the Problem of Discrimination Against Indigenous Populations, Vol V: "Conclusions, Proposals and Recommendations", doc. E/CN.a/sub.2/1986/7/Add4, paras. 388-392.] but also those same aspects in connection with agreements and other   constructive arrangements as mandated by the Commission and ECOSOC.

92. Those issues include among others, the areas covered by such instruments, their present-day legal standing, their implementation or lack thereof, and the consequences this might entail for Indigenous peoples.

93. These aspects were addressed on the basis of manifold sources and   documentation, including the results of responses received to the two questionnaires circulated twice at the beginning of his mandate; [28] the results of field and archival research conducted either by himself or his  Consultant; and extensive documentation and other materials submitted by  interested parties, whether States, Indigenous peoples or organizations,  scholars, and other individuals concerned.  

28 (it should be noted, however, that the Special Rapporteur has from the beginning, repeatedly deplored (see for example, E/C.4/Sub.2/1995/27, para.32), the very limited response to his questionnaire from Indigenous nations/organizations, a situation which improved considerably after 1995 as a result of the efforts by some organizations such as the International Indian Treaty Council. In addition, he has also had to contend with the widespread lack of response from Governments concerned to their version of the questionnaire. Of the very few received, some were of a merely general or formal nature with little of substance.)

94. The sheer volume and diversity of these documents have led the Special   Rapporteur to devote particular attention to the overall approach of the Study   and its methodological and theoretical challenges. The main approaches  taken in this regard were spelled out in his first progress report. [Compare E/CN.4/Sub.2/1992, para.392] They  can be summarized as follows.

95. The Special Rapporteur insisted from the start on the need for a transdisciplinary approach --albeit with a strong juridical focus. [E/CN.4/Sub.2/1991/33, para 89]

96. Any attempt to explore and understand Indigenous representations and   traditions regarding treaties, agreements and other constructive arrangements   must be carried out so as to favor a decentered view on culture, society, law, and history, and to deal critically with ethnocentrism, eurocentrism, and  the evolutionist paradigm.

97. Moreover, the close connection between the Indigenous problematique, the   phenomena of colonialism, domination, and assimilationist policies had to be   thoroughly reviewed and acknowledged. This is a connection also made in the   academic disciplines involved (such as anthropology), as well as in the legal
discourse and in positive law. [E/CN.4/Sub.2/1992/32, paras. 32, 40]

98. There are numerous historical examples of law as an instrument of colonialism, such as the doctrine of terra nullius, the encomienda and repartimiento systems instituted in Latin America by the Spanish Crown in the sixteenth century, the so-called removal treaties imposed on the Indigenous nations of the southeastern United States under President Jackson in the 1830s, and various types of State legislation encroaching on (or ignoring) previously recognized Indigenous jurisdiction, such as the Seven Major Crimes Act and the Dawes Severalty Act passed by the United States Congress in the 1880s, the federal Indian Act in Canada, post-Mabo legislation in Australia, and in many pieces of legislation throughout Latin America.

99. Yet, with rare exception, the discourses of law itself, including that on treaties and treaty-making in the context of European expansion overseas and that of their successors in the territories conquered, are not impervious to anachronism and ex post facto reasoning, thus condoning discrimination of Indigenous peoples rather than affording them justice and fair treatment.

100. A critical historiography of international relations clearly shows the dangers of this particular kind of reasoning that projects into the past the current domesticated status of Indigenous peoples, as it evolved from developments taking place mainly in the second half of the nineteenth century under the impact of legal positivism and other theories advocated by European colonial powers and their continuators.

101. In his second progress report, the Special Rapporteur endeavored, inter alia, to assess the contribution of that historiography to a better understanding of treaties and other legal instruments mutually agreed to by Indigenous peoples and States, considering in particular the works of Charles H. Alexandrowicz and other relevant authors. [Compare E/CN.4/Sub.2/1995/27, para. 336]

102. As established supra (para.58), the main finding that emerges from these works relates to the widespread recognition of "overseas peoples" --including Indigenous peoples in the current sense of the term-- as sovereign entities by European powers and their successors, at least during the era of the Law of Nations.

103. Consequently, the problematic of Indigenous treaties and other juridical instruments today affecting the lives of these peoples, hinges on what the Special Rapporteur has termed a process of retrogression, by which they have been deprived of (or saw greatly reduced) three of the four essential attributes on which their original status as sovereign nations was grounded, namely their territory, their recognized capacity to enter into international agreements, and their specific forms of government. [E/CN.4/Sub.2/1995/27, para. 133] Not to mention the substantial reduction of their respective populations in many countries around the world, due to a number of factors including, assimilationist policies.

104. This aspect can hardly be overemphasized, especially since the ultimate purpose of the Study pertains to the potential utility of yet another process of reversal that would eventually lead toward renewed recognition of Indigenous peoples as distinct collectivities, allowing these peoples redress for decades --if not centuries-- of discrimination and forced integration.

105. It is against this backdrop that the following summary of the Special Rapporteur's findings regarding the three main categories of juridical instruments retained for study ought to be considered.

A) Treaties/Agreements between Indigenous peoples and States

106. In his initial research, the Special Rapporteur focused, by force of circumstance, on the situation of former European settler colonies, especially in North America and the Pacific, given the extensive practice of treaty-making in the context of British and French colonial policy.

107. It should be noted that, although the Special Rapporteur affirmed initially that few, if any, treaties could be traced back to colonial times in Latin America, [35] further research has led him to reconsider this assumption. This modified approach is documented in the third progress report, especially with the example of the Mapuche parlamentos (Chile). At this final stage of his work, the Special Rapporteur is inclined to accept that the origin, causes, and development of these juridical instruments can be compared, prima facie, and in some aspects, to those of certain Indigenous treaties in British and French North America. [E/CN.4/Sub.2/1996/23, paras. 145-170. In February 1998, Mapuches authorities in their lands of today's Chilean province of Cautín solemnly submitted copious documentation related to a number of those parlamentos to the Special Rappporteur. Until June 1998, only a initial review of said documentation has been possible] [35: He had nevertheless identified a small number of documents relating to situations in South America, which "date back to early republican days in at least two countries"; see E/CN.4/Sub.2/1991/33, paras. 103, 104. ]

108. In establishing formal legal relationships with peoples overseas, the European parties were clearly aware that they were negotiating and entering into contractual relations with sovereign nations, with all the international
legal implications of that term during the period under consideration. [E/CN.4/Sub.2/1992/32, paras. 138, 139;compare also E/CN.4/Sub.2/1995/27]

109. This remains true independently of the predominance, nowadays, of more restricted, State-promoted notions of Indigenous "self-government", "autonomy", "nationhood" and "partnership" --if only because the "legitimization" of their colonization and trade interests made it imperative for European powers to recognize Indigenous nations as sovereign entities.

110. In the course of history, the newcomers then nevertheless attempted to divest Indigenous peoples, as pointed out above, of their sovereign attributes, especially jurisdiction over their lands, recognition of their forms of societal organization, and their status as subjects of international law.

111. The various ways and means utilized in the process of domesticating relations with Indigenous peoples in the context of those former European settler colonies were addressed both in the second progress report (New Zealand, Australia, and in the unique case of Hawaii) [E/CN.4/Sub.2/1995/27, paras. 176-201, 202-237 and 28-249] and in the third progress report (Canada, United States, Chile). [E/CN.4/Sub.2/1996/23, paras 27-79, 81-115 and 145-170.] For a more general and detailed review of this process and its consequences, see Chapter III infra.

112. Nonetheless, it is important to stress at this point, that the passage, for Indigenous peoples, from the status of sovereign nations to that of State - domesticated entities raised a certain number of questions and posed specific challenges from the point of view of this Study.

113. First of all, in the case of treaty relations, one notes a general tendency to contest that treaties involving Indigenous peoples have a standing, nowadays, in international law. This point of view, which is widespread among the legal establishment and in scholarly literature, [40] has been basically grounded alternatively on three assumptions: either it is held that Indigenous peoples are not peoples according to the meaning of the term in international law; or that treaties involving Indigenous peoples are not treaties in the present conventional sense of the term: that is, instruments concluded between sovereign States (hence the established position of the U.S. and Canadian judiciary, by virtue of which treaties involving Indigenous peoples are considered to be instruments sui generis); or that those legal instruments have simply been superseded by the realities of life as reflected in the domestic legislation of States. [40; E.g. Sébastian Grammond, Les traités entre l'Etat canadien et les peuples autochtones (Cowansville, Québec: Editions Yvon Blais, 1995); Francis P. Prucha, American Indian Treaties, The History of a Political Anomaly (Berkeley: University of California Press, 1994)]

114. Whatever the reasoning followed, the dominant viewpoint -- as reflected, in general, in the specialized literature and in State administrative decisions and the decisions of the domestic courts -- asserts that treaties involving Indigenous peoples are basically a domestic issue, to be construed, eventually implemented, and adjudicated via existing internal mechanisms, such as the courts and federal (and even local) authorities.

115. It is worth underlining, however, that this position is not shared by Indigenous parties to treaties, whose own traditions on treaty provisions and treaty-making (or negotiating other kinds of compacts) continue to uphold the international standing of such instruments. Indeed, for many Indigenous peoples, treaties concluded with European powers or their territorial successors overseas are, above all, treaties of peace and friendship, destined to organize coexistence in --not their exclusion from-- the same territory and not to restrictively regulate their lives (within or without this same territory), under the overall jurisdiction of non-indigenous authorities. In their view, this would be a trampling on their right to self-determination and/or their other unrelinquished rights as peoples.

116. By the same token, Indigenous parties to treaties have rejected the assumption held by State parties, that treaties provided for the unconditional cession of Indigenous lands and jurisdiction to the settler States.

117. It is worth noting in this regard that Indigenous views on treaties have begun to receive increased attention in some countries, such as Chile, New Zealand, and Canada. Thus, in its recent Final Report, the Royal Commission on Aboriginal Peoples, established by the Canadian Government, recommended that the oral history of treaties, orally transmitted from generation to generation among Indigenous peoples, be used to supplement the official interpretation of treaties based on the written document. [Report of the Royal Commission on Aboriginal Peoples, Vol.2, "Restructuring the Relationship," Part One, Recommendation 2.2.2 (Ottawa: Minister of Supply and Services, 1996), p.49]

118. Nevertheless, the contradictions one notes regarding the historiography and interpretation of treaties, depending on whether one deals with State-promoted views on this matter, the established academic legal discourse, or the traditions upheld by Indigenous peoples themselves, their practical consequences undoubtedly create a conflict situation.

119. In addition, these contradictions place a formidable burden on the formulation and realization of future negotiated legal instruments between Indigenous peoples and States: the difficulties of negotiating those new instruments, without having previously identified and settled key questions need not be stressed.

120. This observation clearly pertains to all treaty/agreement-related issues. One example is the alleged opposition, in the Canadian context, between treaties of peace and friendship (eighteenth century and earlier) and so-called numbered treaties of "land surrenders" (especially from the second half of the nineteenth century on). This opposition is contradicted by Indigenous parties to numbered treaties, who consider that they are parties to treaties of peace, friendship and alliance and that they did not cede either their territories or their original juridical status as sovereigns. Similar discrepancies are to be noted in the United States and New Zealand.

121. Closer scrutiny of the provisions of treaties concluded between Indigenous peoples and States also reveals that in most cases the object of such treaties is common in international law, whatever the historical period considered; thus such treaties deal with questions of war/peace, trade provisions, protection of the subjects/citizens of each signatory party, and so forth.

122. Furthermore, while the predominant present day legal discourse holds that treaties fall primarily within the domestic realm of States, the manner in which treaties are dealt with in municipal law and by the national courts nevertheless also raises a number of questions.

123. In this connection, failure of State parties to comply with, or their violation of the obligations assumed under existing treaties, the unilateral abrogation of the treaty itself (or parts thereof), via State law or other mechanisms, and even the failure of State parties to ratify treaties negotiated with Indigenous peoples were problems identified, at an early stage of his work, by the Special Rapporteur regarding the significance of treaties/agreements at the national level.

124. Such problems are, in one way or another, connected with most juridical situations retained by the Special Rapporteur for study; moreover, they are not limited to historical situations but also do arise with respect to more modern compacts. [E/CN.4/Sub.2/1995/27, paras. 130-311, E/CN.4/Sub.2/1996/23, paras. 27-209 ]

125. It follows that the enforcement and implementation of existing, recognized treaties involving Indigenous peoples today can hardly be taken for granted. Furthermore, it remains to be seen what burden this state of affairs places on the modalities of future negotiated agreements between Indigenous peoples and States. Obviously, this also has a number of practical consequences for the status and legal personality of Indigenous peoples, both at the national and at the international level.

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