Preliminary Study Shows ‘Doctrine of Discovery’ Legal Construct Historical Root for Ongoing Violations of Indigenous Peoples’ Rights, Permanent Forum Told

27 April 2010
HR/5019

Preliminary Study Shows ‘Doctrine of Discovery’ Legal Construct Historical Root for Ongoing Violations of Indigenous Peoples’ Rights, Permanent Forum Told

27 April 2010
Economic and Social Council
HR/5019
Department of Public Information • News and Media Division • New York

Permanent Forum on Indigenous Issues

Ninth Session

11th Meeting (AM)

Preliminary Study Shows ‘Doctrine of Discovery’ Legal Construct Historical Root

for Ongoing Violations of Indigenous Peoples’ Rights, Permanent Forum Told

Also Hears from Chair of Canada’s Truth and Reconciliation Commission,

Established as Part of 2007 Indian Residential Schools Settlement Agreement

The expert members of the United Nations Permanent Forum on Indigenous Issues today turned their attention to the historical root of ongoing violations of indigenous peoples’ human rights, so-called “discovery doctrines”, which for centuries served as “legal” rationale for stealing land and dehumanizing aboriginal peoples, as well as justification for the establishment of boarding schools throughout North America to “civilize” Indian children.

Special Rapporteur Tonya Gonnella Frichner, Permanent Forum member from the United States, presented to the 16-member body her preliminary study of the impact on indigenous peoples of the international legal construct known as the “Doctrine of Discovery”.  The just-completed survey revealed that the Doctrine, along with papal bulls dating back to the fifteenth century, and other such Vatican documents and royal charters, had evolved ‑‑ with disastrous effect on the world’s indigenous nations and peoples ‑‑ into an interpretative framework that had become institutionalized in law and policy, at national and international levels.

“That interpretive framework is the root problem facing indigenous peoples,” she continued, emphasizing its two elements:  dehumanization and dominance.  For centuries, the terrible scenario played out thusly:  A Christian monarch who located or “discovered” non-Christian lands and territories had the right to claim a superior and paramount title to those territories.  Further, the Doctrine held that non-Christian lands were considered to belong to no one, and once a Christian monarch had claimed the right of dominion, that claim was transferred to other political successors.

Sadly, even though there had been some Christian thinkers who called the process of conquest into question, when the issue was debated in Spain in the late 1550s, no conclusion was reached among the Christian Europeans as to whether indigenous peoples in the Americas were human, she said.

“Today, clearly, indigenous peoples have joined the debate by declaring most definitely that we are human beings,” she said, but stressed that the “Doctrine of Discovery” and similar practices had been institutionalized and the damage was done.  The preliminary study focused on the history of the United States, and revealed that the Doctrine had been officially adopted by the Government in the 1823 Supreme Court ruling Johnson v. M’Intosh.  That decision had referred to discovery by “Christian peoples” notwithstanding the “occupancy of the natives, who are heathens”.

The Johnson ruling had also cited recognition of the Doctrine of Discovery and assertion of dominion by Spain, Portugal, France and Holland.  It had also mentioned the East India Company, and the Doctrine also related to the history of Russia.  “This shows the global scope of [the Doctrine’s] application and its concomitant framework of dominance,” she said, adding that it was also the basis of the line of thinking that Indian land rights in the United States were nothing more than “permission from the whites” for the Indians to occupy their own native lands.

Finally, she said that there was a strong case to be made for the argument that the critical problems and human rights violations faced by indigenous peoples could be traced to the Doctrine of Discovery.  She recommended that convening an expert group meeting and comprehensive study on the matter were both very much needed.  “Specifically, a comprehensive study of the Doctrine will provide an opportunity to understand that all the various struggles that indigenous peoples are engaged in are a manifestation of the same root cause, which is the claim by one people of a right of dominance over another,” she reiterated.

Among other deleterious effects, the Doctrine justified the establishment of notorious boarding schools in the nineteenth and twentieth centuries that aimed to “civilize” Indian children by removing them from their families and stripping them of their culture.  Murray Sinclair, Chairperson of the Truth and Reconciliation Commission of Canada, spotlighted that issue, noting that Canada’s indigenous peoples had experienced such harm for more than 150 years, with the enforcement of a racist policy of assimilation through the use of so-called “Indian residential Schools”.

The belief was that indigenous peoples were inferior and that, with church assistance, they could be “Christianized” and, therefore, equal.  “The Canadian Government stated early on that, through their policy of assimilation, within a century Indian people would cease to exist,” he recalled.  For seven generations, nearly every indigenous child in Canada was taken from his or her family and forced to live in such institutions of assimilation, he said.

The results, while unintended, had been devastating, and seen in the loss of language and traditional beliefs, and more tragically in the loss of parenting skills and poor education results.  “Indigenous people in Canada never assimilated,” he stressed.  While damaged, indigenous cultures, traditions and languages were still very much alive.  To overcome indigenous peoples’ resistance to such policies, Canada passed laws that denied them the right to vote, created a pass system to control their movement and declared traditional ceremonies illegal, he explained.

In light of its growing failure, Canada gradually restored basic human rights, and the last residential school closed in 1996, he said.  But a great wrong had been done and survivors sought redress.  It was soon clear that a court solution would take too long and, in 2007, survivors, the Government and churches negotiated a “court-approved” settlement.  The Truth and Reconciliation Commission of Canada was a condition of that settlement.  Survivors agreed to set aside $60 million of their compensation fund for the Commission’s purposes.  “The [Truth and Reconciliation Commission] is not here to lay blame or to determine guilt,” he said.  Its first obligation was to show the true story of residential schools.

The legacy was that indigenous peoples did not have the same standard of life enjoyed by mainstream Canadians, he said.  Disrespect against them stemmed from the many generations of public policy founded on the view that white Euro-Canadians were superior.  For true reconciliation, Canadians must be part of the solution and education would be the main tool to address the situation.  Indeed, from education would come understanding and respect for all.  The Commission would gather statements from all individuals and their children who wished to describe their experiences.  That history must be shared, so that later generations would see a Canada where the relationship was founded on mutual respect.

Among the members of the Forum participating in the dialogue, Margaret Lokawua, from Uganda, said the Doctrine of Discovery affected people in Africa.  Western philosophy said “you go stand over there, close your eyes and pray while we take your land”.  Traditional courts were no longer recognized because of Western ways of handling cases.  Traditional education had been destroyed.  Today, the Declaration on the Rights of Indigenous Peoples outlined the right to education and should be used as a strong advocacy instrument.  States should ensure use of the Declaration in policies and programmes.

Describing his experience, Hassan Id Balkassm, Forum member from Morocco, spoke about European exploitation through assimilation policies.  Children placed in schools had seen their cultures and education destroyed.  While education should have been a means for fostering indigenous languages, in Northern Africa, schools had not taken into consideration indigenous peoples’ identities and had imposed assimilation policies.  He had only spoken his own language at home, but at school, felt as if “my tongue had been cut away from me”.  He did not speak the language spoken in his school.

Assimilation policies in schools had scorned indigenous values, languages and traditions, he said.  Children were made to feel guilty for pronouncing words that were not part of the official languages.  Later on, as a lawyer in Morocco, he had been sent to jail for a week for placing a slogan in his window in the Tamazigh language.  The Tamazigh people created reconciliation committees for those who had been imprisoned and, among other things, were trying to reintegrate the Tamazigh language into schools in Morocco and Algeria.

Also participating in the morning’s discussion were Forum Members from Spain, Australia, Norway and Philippines, as well as representatives of the Australian Youth Caucus, Consejo Nacional de Ayllus y Markas del Qullasuyu, Indigenous Peoples Survival Foundation, Femmes Autochtones du Quebec and the African Caucus.

Participating as observers were the Senior Assistant, Deputy Minister, Policy and Strategic Direction, Indians and Northern Affairs of Canada, as well as the Vice-Minster of Justice of Bolivia, and the Vice-Minister of Indigenous Issues of Venezuela.  Representatives of Guatemala, Denmark and China also addressed the Forum, as did representatives of the observer for the Holy See and the Organization of American States.

The Permanent Forum on Indigenous Issues will reconvene at 10 a.m. Wednesday, 28 April, for a half-day discussion on forests.

Background

The Permanent Forum on Indigenous Issue this morning continued its discussion on its future work, including issues of the Economic and Social Council and emerging issues.  (See Press Release HR/5018.)

The 16-member expert body was expected to consider the report on indigenous peoples and boarding schools; the preliminary studies on the impact on indigenous peoples of the international legal construct known as the “doctrine of discovery”; and issues relating to Beijing+10.

Presentation and Discussion of Reports and Studies

First up, Special Rapporteur TONYA GONNELLA FRICHNER, Permanent Forum member from the United States, presented the preliminary study of the impact on indigenous peoples of the international legal construct known as the “Doctrine of Discovery” (document E/C.19/2010/13).  She said that the study was now complete and had been translated into the working language of the Permanent Forum.  There was now a “great deal of support” to convene an expert group meeting on the Doctrine, and for a comprehensive study of the Doctrine to be conducted by a representative of the seven regions identified by the Permanent Forum.

She said that the United Nations Declaration on the Rights of Indigenous Peoples was a significant step towards honouring and upholding such rights, including the rights to self-determination.  That Declaration had been the product of indigenous peoples working towards solving problems that they all shared.  However, the real problems were not to be found in the actual text of the Declaration, and that was the importance of the preliminary study; it identified the shared problem as the legal construct known as the “Doctrine of Discovery”, and the interpretive framework that had resulted, and continued to result, in violations of indigenous peoples’ human rights throughout the world.

“That interpretive framework is the root problem facing indigenous peoples,” she continued, emphasizing that that framework had two elements:  dehumanization and dominance.  The first thing that all indigenous peoples shared was being invaded “by those who treated us without compassion because they considered us less than human, or not even human”.  Dehumanization had led to the second thing all indigenous peoples had in common:  being treated on the basis of the belief that those who had invaded their territories had the right to lordship over their existence and, therefore, had the right to take, grant and dispose the lands, territories and resources of indigenous peoples without their consent or permission.

“This is the reason why a discussion of the human rights of free, prior and informed consent is critically important with regard to indigenous nations and peoples,” she said, telling the Permanent Forum that the preliminary study was a first step towards resolving the root problems that the Declaration was intended to address.  Indigenous peoples were woven into the biological fabric of their traditional territories; indeed, what was now referred to as “biological diversity” was a direct result of indigenous communities upholding the sacred responsibility to maintain those lands for generations.  Now, others believed that they had the right to take, commodify and even destroy those biosystems.  “Their domination and dehumanization based on the Doctrine of Discovery are steps towards that end,” she declared.

She went on to stress that once indigenous peoples’ protection had been removed, the destruction of waters, trees, animals and all other life forms intricately woven into the framework of their livelihoods soon followed.  “This is why indigenous peoples had been experiencing, describing and fighting for more than five centuries.  We already see signs of ecological collapse in the over consumption of fisheries, massive deforestation, toxic chemicals spewed across the Earth and into waterways,” she said.  The preliminary study focused on a very specific argument that could be traced back centuries, to the days of Western Christendom; an argument stated in a number of papal documents authorizing “discovery and conquest” and “discovery and commerce”.

For centuries, the terrible scenario played out thusly:  A Christian monarch who located or “discovered” non-Christian lands and territories had the right to claim a superior and paramount title to those territories.  Further, the Doctrine held that non-Christian lands were considered to belong to no one, and once a Christian monarch had claimed the right of dominion, that claim was transferred to other political successors.  Yet, she said, as far back as the 1500s, there were Christian thinkers who saw the Doctrine for what it was and called the process of dominion and dehumanization into question.  Nevertheless, when Sepulveda and Bartolomé de Las Casas debated the issue in Spain in the late 1550s, no indigenous peoples had been present and no conclusion was reached among the Christian Europeans as to whether indigenous peoples in the Americas were human.

“Today, clearly, indigenous peoples have joined the debate by declaring most definitely that we are human beings,” she said, but stressed that the “Doctrine of Discovery” and similar practices had been institutionalized and the damage had been done.  The preliminary study focused on the history of the United States, and revealed that the Doctrine had been officially adopted by that Government in the 1823 Supreme Court ruling Johnson v. M’Intosh.  That decision set out the principle that “discovery gives title to the Government, by whose subjects […] the discovery was made, against all other European Governments”.  Importantly, it referred to discovery by “Christian peoples” notwithstanding the “occupancy of the natives, who are heathens”.

She went on to note that the Johnson ruling had also cited recognition of the Doctrine of Discovery and assertion of dominion by Spain, Portugal, France and Holland.  That ruling had also mentioned the East India Company, and the Doctrine also related to the history of Russia.  “This shows the global scope of [the Doctrine’s] application and its concomitant framework of dominance,” she said, adding that it was also the basis of the line of thinking that Indian land rights in the United States were nothing more than “permission from the whites” for the Indians to occupy their own native lands.

Finally, she said that there was a strong case to be made for the argument that the critical problems and human rights violations faced by indigenous peoples could be traced to the Doctrine of Discovery.  The recent report on the State of the World’s Indigenous Peoples pinpointed the critical conditions faced by indigenous peoples, and each and every caucus statement made during this session of the Permanent Forum clearly documented the devastating and lasting impact of that Doctrine on native peoples from all corners of the world.  For all those reasons, she said that the expert group meeting and comprehensive study on the matter were both very much needed.  “Specifically, a comprehensive study of the Doctrine will provide an opportunity to understand that all various struggles that indigenous peoples are engaged in are a manifestation of the same root cause, which is the claim by one people of a right of dominance over another,” she reiterated.

Next, CARSTEN SMITH, Permanent Forum member from Norway, updated his colleagues on the relevant work of the Forum’s parent body, the Economic and Social Council.  He said that, when the Declaration on the Rights of Indigenous Peoples had been adopted, the Council had assigned it several new obligations, including follow-up on effective implementation of Article 42, which obligated all United Nations entities, as well as States, to “promote respect for and full application of the provisions of this Declaration and follow up the effectiveness of this Declaration”.

He said the Council had convened an Expert Group Meeting to consider the issue, which had taken place in March 2009.  In July, during the Council’s substantive session in Geneva, Member States had discussed the Forum’s work.  Some had noted that, while they supported the Permanent Forum, it was in fact, not a treaty monitoring body.  Mr. Smith said that discussion of the matter would continue, as Forum members considered such follow-up essential to the work of the Forum.

When the floor was opened for other speakers, JEAN-FRANÇOIS TREMBLAY, Senior Assistant Deputy-Minister, Indian and Northern Affairs of Canada, said reconciliation and renewed partnership with aboriginal peoples were key pillars of his Government’s Aboriginal Agenda.  The Indian Residential Schools Settlement Agreement had signalled an historic shift in relations with aboriginal peoples in Canada, Church entities and the Government.  That Agreement was an excellent example of an honourable and collaborative approach to the development of solutions for long-standing grievances.  Further, in June 2008, Prime Minister Stephen Holder had offered a statement of apology, on behalf of all Canadians, to the former students of Indian residential Schools.

That apology had been comprehensive, and had recognized the suffering of students and families for the residential school system and its continuing impact on aboriginal cultures, heritage and communities.  He said the gesture had been well-received by indigenous leaders and many survivors and, coupled with the substantive elements of the Settlement Agreement, indicated the sincerity of all parties to develop a new working relationship.  Much progress had been made on implementing all aspects of the Settlement Agreement, including financial compensation.

The reparations package included a lump sum payment for all former students who had resided in the schools, a compensation process for serious abuses, funding for healing programmes and commemoration initiatives, and the establishment of the Truth and Reconciliation Commission, to give voice to those who had experienced the residential school system.  As of January 2010, the Canadian Government had received some 99,460 applications for the “Common Experience Payment”.  Of those, some 96,000 had been processed and some 75,000 had been found to be eligible for payment to former students of an amount that exceeded Can$1.5 billion.  Among other initiatives, he said that Canada had also recognized that many former students and employees were quite elderly.  With that in mind, Canada was making its best efforts to ensure that the processes of the Settlement Agreement were relevant and timely for all.

CONNIE TARACENA (Guatemala) said that her Government had implemented a national strategy to combat climate change, based on the principle of shared but differentiated responsibilities.  It took into account measures aimed at disaster risk management, as well as ensuring food security, chiefly through agriculture and infrastructure rehabilitation.  She said that the Indigenous Ombudsman’s Office was intimately involved in the national effort.  Indeed, the Government aimed to boost the participation of indigenous representatives from all communities to reduce vulnerabilities and identify strategies that addressed the needs of all.

General Statements

AZURE PEACOCK, Australian Youth Caucus, said the world was becoming increasingly aware of the affinity and connection of indigenous people to forests, even as climate change and environmental degradation were putting more and pressure on forest lands.  Her Caucus, therefore, urged the Permanent Forum to press all States to take all measures to immediately restore indigenous peoples’ rights to lands, territories and resources.  The Forum was also urged to press States to seek the views of indigenous people and include them in all reporting on forests.

SERGIO HINOJOSA, Consejo National de Ayllus y markas del Qullasuyu, said that indigenous peoples in Bolivia and elsewhere were making strides in recovering their identities and ideologies.  The rights of Mother Earth were being recognized, and he urged all States to recognize those rights.

KAAB MALIK, Indigenous Peoples Survival Foundation, said indigenous peoples all faced the same struggle:  to protect Mother Earth; protect their languages; protect their ways of life.  He was seriously concerned that the devastating impact of climate change on indigenous communities was being overlooked, in his country, Pakistan, and elsewhere.  Indigenous people were being forced to change their traditional ways of life to adapt to global warming.  It was up to all people, but especially States, to work harder to curb the effects of global warming.  He also asked the Forum to urge the Secretariat to fly the indigenous peoples’ flags in front of United Nations Headquarters along with State flags.

Also on climate change, ISABEL ORTEGA, Vice-Minister of Justice of Bolivia, said that climate change and the ecologically unsafe practices of multinational corporations were combining to poison some regions of her country.  Global warming was cooking dangerous chemical waste, turning it into toxic dump sites that were killing animals and causing livestock to be born with horrible deformities.  She said the Permanent Forum must urge giant corporations to change their practices and to seek free, prior and informed consent of indigenous groups before carrying out activities, including waste dumping, on their lands.

LARS MADSEN (Denmark) said his country, which had hosted last year’s Copenhagen meeting on the United Nations Framework Convention on Climate Change, would continue to promote and support the participation of indigenous peoples groups and organizations in upcoming meetings.  It also supported the creation of a dedicated grant mechanism to provide funds to help representatives of indigenous communities participate in forest investment and management strategies, as well as to participate in monitoring implementation of forest management strategies.

LUIS TORO, Organization of American States (OAS), spoke on the protection of indigenous peoples in the Americas, explaining that the OAS was negotiating a draft declaration on indigenous peoples.  The OAS General Assembly would adopt a new text.  Negotiations would examine new outstanding matters.  He thanked the countries that had given to a fund which provided the means for indigenous people to attend meetings.  He expressed hope that indigenous leaders from the Americas would attend and speak on ways to participate in the organization.  He requested that someone from the Forum attend those seminars to explain participation in the Forum.  He hoped a declaration would be achieved next year.  In other areas, he described two training events held, as well as a seminar on indigenous rights in the inter-American system.  The OAS also sought to make indigenous issues cross-cutting in its activities.

ELLEN GABRIEL, Femmes Autochtones du Quebec, said Canada’s refusal to embark on a postcolonial process had hindered women’s full participation in decision-making processes.  Canadian human rights instruments did not provide sufficient protection from discrimination, which impeded their rights under the Declaration to freely pursue their cultural and social development.  Moreover, Canada’s Bill C-3 would not end gender discrimination ‑‑ it did not recognize indigenous rights to defend citizenship.  Gender equality was vital.  Canada had imposed its dominant culture and language, while indigenous peoples continued to struggle.  It would take 28 years for indigenous schools to be at an adequate level.  Despite the creation of the Truth and Reconciliation Commission, there were no signs of reconciliation.  It would take decades to recover from the devastating impacts of the residential school policy.  She urged the Forum to call on Canada to fully endorse the Declaration in an unqualified manner.

BARTOLOMÉ CLAVERO, Permanent Forum member from Spain, said it was important for regional organizations to participate in the Forum, particularly the Commission on the Rights of African Peoples.  Also, he wondered to what extent the change of positions vis-à-vis the Declaration by Canada and the United States would allow for movement in the never-ending negotiating process.  Finally, he recommended that the Forum’s mission to the Chaco region be borne in mind by the Bolivian Government when it came to the “abominable” practice of forced labour.

CARLOS SAMARA, Vice-Minister of Indigenous Issues of Venezuela, said indigenous people had been granted the right to write their own story, as seen in his country.  He proposed decolonizing education and the concepts of the Western world.  Also, indigenous communities, particularly in Africa, must be revitalized.  “We are rebuilding what had been destroyed by the capitalist world” and transnational companies, he said.  Focusing on “allegedly” developed countries that played a role in the loss of the humanist sense of humanity, he urged taking into account indigenous views of the world.  He urged cooperation to protect biodiversity, particularly in the Amazon, and end the global, colonialist, capitalist system.  His Government also wished to revitalize health systems and indigenous political and social structures.  “All leaders should hear the voice of our peoples,” he said.  “Enough of things being imposed.”

HINDUOUMAROU HINDOU, African Caucus, said 28 indigenous leaders from 15 African countries had gathered in Mali to create an action plan for implementing the Declaration on Human Rights.  That meeting was opened by a representative of the Malian Minister of Justice.  Mali’s representative emphasized the importance of human rights institutions, with particular attention placed on the marginalization of indigenous peoples.  Delegates observed that the right of indigenous peoples in Africa would be protected only with the reinforcement of independent expert human rights bodies at the national levels, free and responsible media and a well-organized civil society that worked with Governments on human rights issues.  Indigenous peoples must be given stewardship over their natural ecosystems and territories.  The African Commission on Human Rights ensured implementation of the Human Rights Declaration in the framework of the African Charter.  However, most Governments did not have a plan for implementing the Declaration.  Indigenous people were looking for new strategies to promote human rights and fundamental freedoms in Africa.  Indigenous rights had to be linked to good governance and democracy in Africa.  She urged the United Nations to help indigenous peoples, and requested United States and Canadian authorities to secure visas for them to participate in United Nations bodies.

ZHOU NINGYU (China) said his Government wished to work with the Forum to attain positive results.  Commending the experts for drafting the report on indigenous peoples and boarding schools, he pointed out that its content and views were antiquated.  They were at variance with the facts and had not reflected accomplishments attained since the establishment of new China, particularly since its “Open Door” reform.  China had sent a letter to Forum to express its concerns.

He said China attached great importance to the education of ethnic and national minorities.  The educational system in minority regions had made great strides:  elementary education had been strengthened, while adult and higher education also had moved forward.  The fifth national census showed that, among the 14 minority groups, the number of education years received was higher than the national average.  To resolve the problems related to attending school, particularly in remote mountain and border regions, the State had established boarding schools for ethnic minorities.  China had 6,000 ethnic boarding primary schools, whose enrolment had increased.  The Government continued to examine realities and further perfect its policies for nurturing the talents of those regions.

KURIAKOSE BHARANIKULANGARA, observer for the Holy See, said that over the centuries, the “papal bulls” that paved the way for European expansion, as well as many of the other “doctrines” discussed by the Forum today, had been abrogated.  The Church had also upheld the rights of indigenous peoples to their ancestral lands, regardless of whether the inhabitants were Christian or not.  The Vatican II process had also refuted the Discovery Doctrine.

As for the Church’s education programmes, he said the ultimate objective, despite the actions of some of the host communities, had been to provide improved education.  To deal with shortcoming and mistakes, including the actions of some missionaries, the Church had always sought communication and dialogue.  The Holy See had expressed its support for the Declaration on the Rights of Indigenous Peoples and would continue to be an outspoken advocate for those rights.

In response, Ms. GONELLA FRICHNER, Forum member for the United States, said that many of the points raised by the observer for the Holy See had been addressed in the preliminary study.  The Permanent Forum had held meetings with the Holy See on the Doctrine, and she would maintain that the system of dehumanization and suffering had been institutionalized, even though the Doctrine might have had no value for centuries.  Moreover, the issue had been recently brought to the Forum’s attention, and the experts had an obligation to follow up with due diligence.

Continuing in that vein, Mr. CLAVERO, Permanent Forum member from Spain, said that claims that the “papal bulls” had been overturned, were not, in fact, supported by papal law.  He said the Church believed that the bulls were manifestations of “divine right” and they had not been overturned, whatever changes had been made in the canonical laws.  At any rate, the ongoing and current impact of the discovery doctrine was an absolute fact.  While the observer had stressed the right to education, his statement had seemed to ignore indigenous peoples’ right to self-determination.

* *** *

For information media • not an official record
For information media. Not an official record.