Indigenous Peoples and International Law

Indigenous Peoples as Subjects of
International Law
For more than 500 years, Indigenous laws have been disregarded. Many
appeals for their recognition under international law have been made, but
have thus far failed – mainly because international law was itself shaped by
colonialism. How, this volume asks, might international law be reconstructed,
so that it is liberated from its colonial origins?
With contributions from critical legal theory, international law, politics,
philosophy and Indigenous history, this volume pursues a cross-disciplinary
analysis of the international legal exclusion of Indigenous Peoples, and of its
relationship to global injustice. Beyond the issue of Indigenous Peoples’
rights, however, this analysis is set within the broader context of sustain-
ability; arguing that Indigenous laws, philosophy and knowledge are not only
legally valid, but offer an essential approach to questions of ecological justice
and the co-existence of all life on earth.
Irene Watson belongs to the Tanganekald, Meintangk and Boandik First

Nations Peoples. She is a Professor of Law at the University of South Australia.
Indigenous Peoples and the Law
Series editors
Dr Mark A. Harris, La Trobe University, Australia; Prof Denise Ferreira da Silva,
Queen Mary, University of London, UK; Dr Claire Charters, University of Auckland,
New Zealand; Dr Glen Coulthard, University of British Columbia, Canada
The colonial modalities that resulted in the pillaging of the ‘New World’
involved wholesale dispossession, genocidal violence and exploitation of their
original inhabitants. It was not, however, until the latter part of the twentieth
century that Indigenous peoples attained some degree of legal recognition.
This book series focuses upon the manner in which Indigenous peoples’
experiences of law have been transformed from an oppressive system of deny-
ing rights to a site of contestation, and the articulation of various forms of
self-governance. Encouraging a range of theoretical, political and ethical per-
spectives on Indigenous peoples and the law, this book series aims to provide
a comprehensive survey of the experience of Indigenous peoples and their
changing relationship with national and international juridical frameworks.
Titles in this series:
Aboriginal Peoples, Colonialism and International Law: Raw Law

Irene Watson
Indigeneity – Before and Beyond the Law

Kathleen Birrell
The Literary and Legal Genealogy of Native American

Dispossession: The Marshall Cases Trilogy
George Pappas
Indigenous Peoples as Subjects of International Law

Edited by Irene Watson
Forthcoming titles in this series:
Human Rights, the Rule of Law and Exploitation: Blood Minerals

Mark Harris
Scales of Governance and Indigenous Peoples: New Rights or

Same Old Wrongs?
Edited by Irène Bellier and Jennifer Hays
Indigenous Peoples as Subjects
of International Law
Edited by
Irene Watson
~~o~;J~n~~~up
YORK
LONDON
LONDON
YORK
LONDON
LONDON AND NEW
First published 2018
by Routledge
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a GlassHouse Book
Routledge is an imprint of the Taylor & Francis Group, an informa business
© 2018 selection and editorial matter, Irene Watson; individual
chapters, the contributors
The right of Irene Watson to be identified as the author of the editorial
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asserted in accordance with sections 77 and 78 of the Copyright,
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British Library Cataloguing in Publication Data
A catalogue record for this book is available from the British Library
Library of Congress Cataloging in Publication Data
Names: Watson, Irene (Irene Margaret), editor.
Title: Indigenous peoples as subjects of international law / edited by
Irene Watson.
Description: Abingdon, Oxon [UK] ; New York : Routledge, 2017. |
Includes bibliographical references and index.
Identifiers: LCCN 2016055878 | ISBN 9781138645158 (hardback) |
ISBN 9781315628318 (ebook)
Subjects: LCSH: Indigenous peoples (International law) | Indigenous
peoples–Legal status, laws, etc. | Indigenous peoples–Civil rights. |
Self-determination, National.
Classification: LCC K3247 .I5245 2017 | DDC 342.08/72–dc23
LC record available at https://lccn.loc.gov/2016055878
ISBN: 978-1-138-64515-8 (hbk)

ISBN: 978-1-315-62831-8 (ebk)
Typeset in Garamond
by Taylor & Francis Books
Contents
Acknowledgements vii
Contributors ix
Introduction 1
IRENE WATSON
1 Aboriginal Nations, the Australian nation-state and Indigenous

international legal traditions 5
AMBELLIN KWAYMULLINA
2 Domination in relation to Indigenous (‘dominated’) Peoples in

international law 18
STEVEN NEWCOMB
3 The ‘natural’ law of nations: society and the exclusion of First

Nations as subjects of international law 38
MARCELLE BURNS
4 Long before Munich: the American template for

Hitlerian diplomacy 54
WARD CHURCHILL
5 First Nations, Indigenous Peoples: our laws have always been here 96
IRENE WATSON
6 Law and politics of Indigenous self-determination: the meaning of

the right to prior consultation 120
ROGER MERINO
7 How governments manufacture consent and use it against

Indigenous Peoples 141
SHARON VENNE
vi Contents
8 ‘Kill the Indian in the child’: genocide in international law 171

TAMARA STARBLANKET
Bibliography 201
Index 221
Acknowledgements
I would like to thank all contributors for their collaboration and work on this
project.
I am grateful to Greta Bird, Kathy Bowrey, Morgan Briggs, Margaret
Davies, Michael Detmold, Peter Fitzpatrick, Natsu Taylor Saito, Isabelle
Schulte-Tenckoff and Michael Watson for their generosity in reading and
commenting on early draft chapters.
Research and editorial assistance provided by Jo Bird and Kate Leeson was
also much appreciated.
In 2012, I was awarded an Australian Research Council Discovery Indi-
genous Award which enabled me to contribute to and edit this book.
I owe my thanks to Colin Perrin and the editors of this series for the
opportunity to publish this body of work.
I acknowledge the work of Richard Bell and his permission to use the
image from one of his wonderful paintings ‘We Were Here First’ as the book
cover.
This page intentionally left blank
Contributors
Marcelle Burns is a Kamilaroi woman and a pre-doctoral fellow at the School of

Law, University of New England, New South Wales, Australia. She has
worked in First Peoples law and policy as an academic and solicitor for over
twenty years. Her contribution to this book has been supported by an Aus-
tralian Government Research Training Program Scholarship.
Ward Churchill is an independent activist/scholar of Cherokee descent. He is
a former professor of American Indian studies at the University of Colorado/
Boulder, and has published more than twenty books.
Ambellin Kwaymullina (LLB Hons) is an Aboriginal academic, writer and
artist who comes from the Palyku people of the Pilbara region of Western
Australia. She has worked in government and politics, and is presently a
lecturer at the University of Western Australia Law School.
Roger Merino PhD is Professor of Public Policy and Legal Theory at the
Universidad del Pacífico (Lima, Peru) and Visiting Scholar at the Harvard
Law School’s Institute for Global Law and Policy.
Steven Newcomb (Shawnee, Lenape) is co-founder/co-director of the Indi-
genous Law Institute and has advocated for Indigenous Nations/Peoples for
over twenty years, including at the United Nations.
Tamara Starblanket is a Nehiyaw Iskwew (Cree Woman) from Ahtahkakoop
Cree Nation in Treaty Six Territory on Great Turtle Island. Her research
interests are studying the impacts that genocide has had on the land and
Original Nations and Peoples. Understanding genocide and the collective
historical and present-day trauma is necessary for a true movement towards
self-determination.
Sharon Venne is an Indigenous Treaty person (Cree). She worked at the
United Nations prior to the establishment of the Working Group on
Indigenous Peoples in 1982. She has lectured internationally on the rights
x Contributors
of Indigenous People, and worked to secure a UN Study on Treaties which

reflects Indigenous laws and norms.
Irene Watson belongs to the Tanganekald, Meintangk and Boandik First
Nations Peoples. She is a Professor of Law and the Pro Vice Chancellor
Aboriginal Leadership and Strategy at the University of South Australia.
Introduction
Irene Watson
In 1981, Bart Willoughby recorded the lyrics to his song ‘We Have Survived’
on the album Wrong Side of the Road with Aboriginal band No Fixed Address.
The opening line began ‘We have survived the white man’s world’ and the
chorus ended with ‘And you know you can’t change that’. Thirty-five years
later, the lives of First Nations continue. Many of us have survived the trauma
of colonialism and genocide, and the history cannot be changed, the fact of
our survival cannot be altered.
This collection of writings is about First Nations’ ongoing struggles to
sustain our worlds and the nature which supports them. They acknowledge
that we were here first and that we have survived the onslaught of colonialism
and genocide, and that we are now living in two worlds, that of First Nations
and that of the colonial. They are remembering that which has passed, but a
past which is present and a present which is all the time becoming our future.
Ambelin Kwaymullina’s chapter does not explore the international legal order
that exists, but the one that might exist, and asks the question: what may
some of the norms be that might shape the international legal system were it
based in Indigenous ways of knowing, being and doing, and what is the
relevance of those norms to the international community today?
This volume is not about recycling old ideas because we have run out of
new ones, but because nothing much has changed in the world of colonialism.
Aboriginal resistance to assimilation is as relevant today as it has been since
1492. The events which have blighted our lives across the world for five
hundred years – and continue to unfold – remain the unfinished business of
de-colonisation. What has been said and written before needs to be said again
and again until we all understand the truth, beyond the myths and lies of
colonialism. It is an aim of this volume to build upon our knowledge and the
meanings of being ‘Indigenous’ in the world today.
In 1977, Russell Means spoke before a United Nations forum and stated, ‘I
am an American Indian, not a Native American.’ He went on to explain:
I abhor the term Native American. It is a generic government term used

to describe all the indigenous prisoners of the United States. These are
2 Irene Watson
the American Samoans, the Micronesians, the Aleutes, the original

Hawaiians and the erroneously termed Eskimos, who are actually Upiks
and Inupiats. And, of course, the American Indian.
I prefer the term American Indian because I know its origins. The
word Indian is an English bastardization of two Spanish words, En Dio,
which correctly translated means in with God. As an added distinction
the American Indian is the only ethnic group in the United States with
the American before our ethnicity.
At an international conference of Indians from the Americas held in
Geneva, Switzerland at the United Nations in 1977 we unanimously
decided we would go under the term American Indian. We were
enslaved as American Indians, we were colonized as American Indians
and we will gain our freedom as American Indians and then we will call
ourselves any damn thing we choose.1
Naming and constructing who we are is essential to the colonial project and
its long campaign to subjugate the ‘natives’ to colonial power. For centuries,
an arsenal of euro-derived ‘legal’ tools has been applied towards those ends.
For centuries, First Nations laws have been deemed non-existent; the idea that
there is an absence of law in First Nations’ territories supported the moral case
for colonialism and was backed up by idealised notions such as the ‘savage’
and ‘backward natives’.
Steven Newcomb describes international law as an organised system of
domination, within which terms such as ‘states’, ‘territories’, ‘jurisdiction’,
‘dominion’, ‘tribal peoples’, ‘native peoples’ and ‘indigenous peoples’ constitute
the context which relegates some peoples to a state of existence ‘under’ the
‘dominance’ of other peoples who are organised into ‘states’. International law
grew out of the distinctions constructed between civilised and non-civilised
peoples, and those distinctions enabled and confirmed that international law
favoured the ‘civilised’ ‘family of nations’. Marcelle Burns’ chapter maps how
the concept of society is foundational to international law, and its purpose and
use as a tool to exclude First Nations from ‘recognition’ within state regimes.
Many appeals for recognition under international law have been made by
First Nations, and those moves have largely failed due to international law
being viewed from a statist perspective. Ward Churchill maps the origins of
state plenary power in the discovery doctrine and the consequential dis-
possession and genocide of First Nations as a product of that doctrine. Racism
was deployed in the beginnings, as it still is, to normalise plenary colonial
power, and that power has not only been normalised, but also masked as
being beneficial and core to the ‘civilising mission’. Churchill traces the rela-
tionship between state plenary power deployed by the nazis as being ‘nothing
1 Russell Means, ‘Opening Plenary Session’ in The Geneva Conference, Official

Report by International Indian Treaty Council, (1977) 1(77) Treaty Council News.
Introduction 3
new or especially different’ from what had already been done in the Americas.
The colonisation of North America performed as a template for Hitler, as
German troops were advised they had ‘a duty to look upon natives as Red-
skins’, and to conduct themselves as their US predecessors had during ‘the
struggle in North America against the Red Indians’.
In the twenty-first century, many First Nations remain confined to the
‘domestic paradigm’ of the occupying settler state. Our colonisation persists,
but Indigenous philosophy, laws and knowledges remain foundational to our
lives. Taking up this point, I further consider the language and philosophy of
empire and how it is applied in the ongoing domination and subjugation of
First Nations Peoples, knowing that at the same time the language and philo-
sophies of our old people continue to centre our lives. I discuss how those lan-
guages and philosophies challenge those narratives which have worked to
marginalise our ancient legal systems.
To date, little headway has been made in progressing a horizontal dialogue
between colonialist interests and Indigenous-centred knowledges, laws and
philosophy, while much literature and discussion concerning Indigenous
rights is centred upon an anthropocentric, colonially constructed identity.
Roger Merino argues that any inclusion of Indigenous Nations has meant
adaptation to the new state, while exclusion means Indigenous Nations are
eliminated in material and/or legal terms. Whether exclusion or inclusion,
neither gives real credence to Aboriginal knowledges and laws.
This book challenges how colonial identities are constructed and represented
in both colonial states and in international law, and its contributors respond
with the aim of demythologising ‘Indigenous recognition’ and revealing the
ontological realities of First Nations Peoples. Sharon Venne exposes how
colonial states manufacture ‘consent’ through the use of organisations – either
established or newly created – to imply that Indigenous Peoples and Nations
have given consent, either through the introduction of legislation or other
initiatives which provide the illusion of legitimacy, for state governments to
act against the interests of Indigenous Peoples and Nations. Tamara Starblanket
also exposes international law as a dominating, dehumanising and oppressive
experience through an examination of the crime of genocide in international
law and how states have excluded the Indigenous experiences of ‘cultural
genocide’ or ‘forced assimilation’ from recognition as crimes of genocide.
To date, no major international research has attempted to evaluate how the
exclusion of an Aboriginal knowledge-centred approach from international
law has contributed to global injustices. Instead, the focus has been on models
which have proposed the assimilation of First Nations Peoples by the respec-
tive states. In the past, assimilationist models were developed to accommodate
claims for the ‘recognition’ and ‘equality’ of First Nations Peoples’ ‘rights’,
but whatever ‘progress’ was made, these efforts have proven largely of no
benefit to our situation overall. Now it is timely to develop a new analysis of
the exclusion of First Nations Peoples-centred approaches; indeed, it is now
4 Irene Watson
critical that international law and social policy developments stop ignoring
the question and recognise the validity of Aboriginal laws, philosophy and
knowledge as an essential approach to questions of justice.
The contributors write from the disciplines of critical legal theory, inter-
national law, politics, philosophy and First Nations histories. It is our ambi-
tion that this work will generate dialogue across the disciplines and advance
conversations on international law and global justice. Lastly, this volume will
fill a knowledge gap: how might we move beyond a rights discourse which is
locked within a matrix of coloniality? In colonialism’s shaping of international
law, its refusal to recognise the laws and sovereignties of First Nations, and
the concomitant disasters which entail, we are left to consider the question:
how might we reconstruct international law so that it is liberated from its
colonial origins?
Chapter 1
Aboriginal Nations, the

Australian nation-state
and Indigenous international
legal traditions
Ambellin Kwaymullina
Australia is a continent, not a country.

This land is home to the hundreds of Aboriginal homelands that we name
our Countries, each with a language, culture and people. It is home as well
to the Torres Strait Islander People whose lands lie in the Torres Strait
Islands off the Queensland coast (although, as an Aboriginal scholar, this
chapter is founded in my understanding of Aboriginal systems). The term
‘Aboriginal’ as it is used throughout this chapter refers to the prior occu-
piers of mainland Australia, Tasmania and some offshore islands; when I
intend to include Torres Strait Islander Peoples and Indigenous Peoples
from elsewhere in the world, I will use the term ‘Indigenous’. The many
Aboriginal legal orders of our many different Countries are now often
spoken of as if they form a single body of law. But the use of the singular to
describe these legal systems, along with the grouping of our nations under
the descriptor ‘Aboriginal’, hides a truth: that the Aboriginal legal tradition
was always an international tradition. Aboriginal Nations formed complex
networks of relationships, traded goods, entered into negotiations over
shared law spaces, respected each other’s boundaries and were subject to
consequences if they did not. An international legal order did not begin
with the writings of Grotius or Vattel or the rise of the Westphalian state;
nor did an international human rights regime start with the Universal
Declaration of Human Rights or with any of the human rights treaties and
associated monitoring bodies that arose post-1945. These are newcomers
all, systems in their infancy that imposed themselves onto ancient inter-
national legal orders arising from the interactions of the Indigenous Nations
of this earth.
The purpose of this chapter is to reflect upon three of the norms that
underlie the international legal tradition of Australian Aboriginal Nations. I
am characterising these norms as ‘narrative sovereignty’, ‘relationship-based
citizenship’ and the ‘right to be human’. In so doing, I am applying an
Indigenous perspective, which is to say, a perspective grounded in an Indi-
genous centre and which – consistently with Indigenous world views – is
6 Ambellin Kwaymullina
holistic, non-linear and relationships-focused.1 However, my analysis is only

one Indigenous view among many. The Indigenous Peoples of the globe
share commonalities in terms of earth-based world views, experiences of colo-
nialism, and the present-day disadvantage which is colonialism’s legacy.2 But
we are also highly diverse, and my own perspective is influenced by my own
knowledge and experiences, as well as the culture and history of the Palyku
People from whom I come.
The world(s), the Dreaming(s) and the apocalypse(s)

The legal systems of the Aboriginal Nations of Australia began in what is
sometimes called the ‘Dreaming’.3 The Dreaming is the beginning from
which all other beginnings emerge, for whatever existed before could not
support life as we know it now. It should be noted, however, that in Aboriginal
systems, terms such as ‘begin’ and ‘end’ do not carry linear implications. Time
does not run from the past through the present and on into the future, but is
simply part of larger cycles of existence.4 Like all things, time exists in space
1 In this I am informed by the work of Indigenous thinkers in the area of Indigenous

research methodologies including: Veronica Arbon, Arlathirnda Ngurkarnda Ityirnda:
Being – Knowing – Doing: De-colonising Indigenous Tertiary Education (Post Pressed,
2008); Leroy Little Bear, ‘Jagged Worldviews Colliding’ in Marie Battiste (ed),
Reclaiming Indigenous Voice and Vision (UBC Press, 2000) 77; Mary Graham, ‘Some
Thoughts about the Philosophical Underpinnings of Aboriginal Worldviews’ (2008)
45 Australian Humanities Review 181; James (Sakej) Youngblood Henderson, ‘Ayuk-
pachi: Empowering Indigenous Thought’ in Marie Battiste (ed), Reclaiming Indigenous
Voice and Vision (UBC Press, 2000) 248; Karen Martin, ‘Ways of Knowing, Ways of
Being and Ways of Doing: A Theoretical Framework and Methods for Indigenous
Re-search and Indigenist Research’ (2003) 76 Journal of Australian Studies 203; Karen
Martin, Please Knock Before You Enter: Aboriginal Regulation of Outsiders and the Implica-
tions for Researchers (Post Pressed, 2008); Aileen Moreton-Robinson and Maggie
Walter, ‘Indigenous Methodologies in Social Research’ in Maggie Walter (ed), Social
Research Methods: An Australian Perspective (Oxford University Press, 2nd edn, 2009) 1;
Martin Nakata, Disciplining the Savages, Savaging the Disciplines (Aboriginal Studies
Press, 2007); Lester Irabinna Rigney, ‘Internationalization of an Indigenous Anti-
colonial Cultural Critique of Research Methodologies: A Guide to Indigenist
Research Methodology and its Principles’ (1999) 14(2) Wicazo Sa Review 109; Linda
Smith, Decolonizing Methodologies: Research and Indigenous Peoples (Zed Books, 2nd edn,
2012).
2 For points of similarity between Indigenous Peoples worldwide, see United
Nations Permanent Forum on Indigenous Issues, State of the World’s Indigenous
Peoples, UN Doc ST/ESA/328 (2009).
3 ‘Dreaming’ is an inexact English approximation of an Aboriginal concept that
has no English equivalent. For a critique of the term, see Vicki Grieves, Abori-
ginal Spirituality, Aboriginal Philosophy: The Basis of Aboriginal Social and Emotional
Wellbeing (Cooperative Research Centre for Aboriginal Health, 2009) 8.
4 For an examination of the differences between linear and non-linear (Indigenous)
time from a quantum physics perspective, see David Peat, Blackfoot Physics
(Fourth Estate, 1995).
Aboriginal Nations and the nation-state 7
and is as susceptible to action and interaction as any other form of life. To say
something ‘begins’ is to say that something new has entered the world, but it
is perhaps never entirely correct to refer to anything as ending. Everything
lives and everything moves through phases of creation; and while some
transformations are so profound that it may not be possible to be sure what
emerges on the other side of the transformative process, this is not the same as
an end. Besides which, everything ultimately returns to Country, and since in
holistic systems the whole is both more than its parts and in all its parts,
every part of Country contains Country entire.5
Through their actions, the many Dreaming Ancestors embodied ‘what is’,
along with the rules (the law) that would allow ‘what is’ to continue always.
But just as there is not a single Aboriginal Country, there is not a single
Dreaming. Rather, there are Dreamings who danced, sang, fought, stole,
slept, and who – through these and a thousand other interactions – brought
Aboriginal Countries into being. Among their stories are those of Old Man
Karramala (Old Man Goose) who played a didjeridu and made a waterfall in
Mak Mak Country;6 the mouse Galu who found where Bangarra (blue-tongued
lizard) had hidden all the water in the rainforest lands of the Jirrbal;7 and the
Nyungar tale of the little Djidi Djidi bird who outsmarted the eagle.8 The
journeys and actions of the Dreamings can be traced in the geography of
individual Aboriginal Countries and in the patterns of behaviour of all life.
The Dreamings are also the source of the law, which at its broadest is the
ways of living in Country that sustain Country. For thousands of linear years,
Aboriginal Nations moved through the cycles of creation laid down by
the Dreamings and the world was constantly made anew. Then came the
apocalypse.
As the West measures time, the apocalypse began on the east coast of
Australia in 1788 and reached the lands of my people, the Palyku, in the
1860s. It was not a single apocalypse but a multitude; a cycle of destruction
that repeated in every Aboriginal Nation. Each cataclysm varied in its details
but its larger patterns of violence remained the same. Psychologist Judy
Atkinson (Jiman and Bundjalung), drawing on the work of Donald Baker, has
identified three cycles of violence: overt physical violence (invasion, disease,
death and destruction); covert structural violence (enforced dependency,
5 I have previously written of this in Ambellin Kwaymullina, ‘Seeing the Light:

Aboriginal Law, Learning and Sustainable Living in Country’ (2005) 6(11)
Indigenous Law Bulletin 12.
6 See Deborah Bird Rose, Nancy Daiyi, Kathy Deveraux, Margaret Daiyi, Linda
Ford and April Bright, Country of the Heart: An Indigenous Australian Homeland
(Aboriginal Studies Press, 2002) 10.
7 See Maisie Yarrcali Barlow (author), Michael Boiyool Anning (illustrator), Jirr-
bal: Rainforest Dreamtime Stories (Magabala Books 2001) 35–45.
8 See Len Collard, ‘Djidi Djidi, Wardong, Kulbardi, Walitj and Weitj: Nyungar
Dream Time Messengers’ (2009) 54(2) Westerly 7, 12–13.
legislation, reserves and removals); and psycho-social domination (cultural and

spiritual genocide).9
Aboriginal people, like Indigenous Peoples elsewhere, lived through the
end of the world but we did not end; nor did our culture or our Dreamings.
But we are now nations existing within the nation-states that arose from, and
inherited the benefits of, our dispossession. Further, the laws and legal insti-
tutions of these nation-states sprang from the lie of Indigenous inferiority that
was required in order to assert the moral and legal authority required to claim
our lands.10 In 2007, the United Nations General Assembly made a limited
acknowledgement of Indigenous rights in the form of the Declaration on the
Rights of Indigenous Peoples. But, as has been pointed out by some Indigenous
scholars, the reason those rights required elucidation and protection in the
first place is because of their continued violation by the nation-states to whose
dominion – and domination – we remain subject.11
Indigenous academic Leroy Little Bear (Blood Indian Tribe, Blackfoot
Confederacy) once identified that one of the problems of colonialism is that it
tries to maintain a singular order, suppressing the diversity of human world
views and typically resulting in oppression and discrimination.12 The Indigenous
Peoples of the globe who are marginalised by this singular order often have
our concerns framed as ‘Indigenous problems’, which overlooks three things.
First, the degree to which the laws, institutions and policies of colonial
nation-states created, promulgated and continue to benefit from the oppres-
sion of (and discrimination against) First Peoples. Second, justice is of its
nature a universal value; to deny it to one erodes it for all. Third, diversity is
necessary. There is a recognised link between cultural diversity and the bio-
diverse environments upon which the human species depends for survival, and
Indigenous Peoples are the guardians of most of the world’s cultural diver-
sity.13 Beyond this, a singular approach is unlikely to be sufficient to grapple
with the increasing complexity of issues that face human societies.
9 Judy Atkinson, Trauma Trails, Recreating Song Lines: The Transgenerational Effects of
Trauma in Indigenous Australia (Spinifex Press, 2002) 59–73.
10 See Irene Watson, Aboriginal Peoples, Colonialism and International Law: Raw Law
(Routledge, 2014); Robert Williams, The American Indian in Western Legal
Thought: The Discourses of Conquest (Oxford University Press, 1990); and for com-
ment on the way in which the ideas embodied in notions such as the doctrine of
discovery continue to affect Indigenous Peoples worldwide, see United Nations
Permanent Forum on Indigenous Peoples, Report on the Eleventh Session, E/2012/
43-E/C.19/2012/13 (7–18 May 2012).
11 See, eg, Steve Newcomb, ‘The UN Declaration on the Rights of Indigenous
Peoples and the Paradigm of Domination’ (2011) 20(3) Griffith Law Review 578;
Irene Watson, ‘Aboriginal(ising) International Law and Other Centres of Power’
(2011) 20(3) Griffith Law Review 619; Aileen Moreton-Robinson, ‘Virtuous
Racial States’ (2011) 20(3) Griffith Law Review 641.
12 Little Bear, above n 1, 77.
13 United Nations Permanent Forum on Indigenous Issues, above n 2, ch 2.
Aboriginal Nations of ‘Australia’ and an international

legal tradition
Narrative sovereignty
When Aboriginal people meet for the first time, it is common for us to
introduce ourselves by reference to where we come from rather than who we
are, or perhaps it is more accurate to say that in speaking of our Country we
do speak of who we are. One of the reasons for the diversity of Aboriginal
Peoples – and of Indigenous Peoples elsewhere in the world – is the biodiverse
environments which form and inform all aspects of our existence. The Palyku
are from inland, freshwater Country, a homeland that demands constant
movement in order to avoid exhausting food and water sources and ensure
that all life in Country survives. Homelands with more abundant resources
require less movement but the same careful management, and the narratives of
our Countries are the narratives of ourselves. The whole is more than its parts
and the whole is in all its parts; every Country carries different strengths
which are also the strengths of the people who belong to that land.
It flows from the above that to speak of ‘sovereignty’ is to speak of a con-
cept very different from traditional Eurocentric notions of dominion over
(non-living) territory. Country was given, not taken; to assert autonomy in
regards to a Country is to assert a relationship to place comprised in equal
part of rights over Country and responsibilities to it. A right cannot exist
independent of a corresponding responsibility, for all Aboriginal relationships
are reciprocal in nature, and in this sense are informed by the fundamental
reciprocity that underlies all others: that you must care for Country if you
expect Country to care for you.
The relationship between Aboriginal Peoples and their Countries is founded
in story. It began with the narratives of the Dreaming whereby the many
Aboriginal Countries were, and are, created. It continues through the daily
participation in, and management of, the sets of relationships between all life
that the Dreamings established. In the words of Whadjuck and Balardong
Nyungar man Len Collard:
As each generation of Nyungar passes through, it is our duty to listen to,

or tell, and then remember the yarns. As the current and future generations
of Nyungar, we take on these storytelling responsibilities, passing them on
to future generations of Nyungar … so they are brought up to under-
stand and take their responsibilities and place as active participants and
custodians of such ancient boodjar [land] and katitjin [knowledge].14
14 Len Collard, ‘Wangkiny Ngulluck Nyungar Nyittiny, Boodjar, Moort and Katitjin:
Talking About Creations, Country, Family and Knowledge of the Nyungar of
South Western Australia’ in Sally Morgan, Tjalaminu Mia and Blaze Kway-
mullina (eds), Speaking from the Heart (Fremantle Press, 2008) 262, 263.
Narratives – whether in the form of song, dance, art or ceremony – also form
evidence of sovereignty, although it is evidence that has often been poorly
understood in the legal systems of the colonisers, which are accustomed to a
different form of literacy. And from an Indigenous perspective, it is difficult
to conceive of how it is possible to claim ownership of a land if you do not
know its stories and hence cannot accurately place yourself within the network
of relationships that is Country itself. The answer of the colonising states of
Western Europe to this conundrum was twofold. First, an assertion of a claim
of right over inhabited territories on the basis of the denigration of the
existing inhabitants via the many iterations of the doctrine of discovery (the
idea that land belonged not to its inhabitants but the first Christian European
nation to ‘discover’ it) and like notions.15 Second, the application of violence
that cycled through the physical, structural and psycho-social stages identified
by Atkinson, above. This twofold claim is inextricably interlinked, because
the violence was itself made possible by the denigration of Indigenous Peoples
that founded the legal claim of right.
Indigenous legal scholar Robert Williams has characterised the sustaining
idea of colonialism as being that ‘the West’s religion, civilization, and
knowledge are superior to the religions, civilizations, and knowledge of
non-Western peoples’.16 However, once Indigenous Peoples are recognised
as fully realised human beings with ways of knowing, being and doing
that are as valid as those of the West, this idea is shown for the lie it always
was. But the courts of the colonisers have often proved adept at turning
their gaze away from the question of whether the assertion of inherent
European superiority could be sustained, and what consequences might flow
if it could not. In 1823, Chief Justice Marshall of the US Supreme Court
acknowledged that the discovery doctrine was an ‘extravagant pretension’,
but concluded that it ‘becomes the law of the land, and cannot be ques-
tioned’ once a territory had been acquired and held under it.17 In 1992, a
majority of the Australian High Court was prepared to disavow the notion
of terra nullius,18 the idea that the Australian continent was a land unin-
habited and hence open to be claimed because Indigenous Peoples were not
sufficiently ‘advanced’ enough to be regarded as meaningfully occupying the
soil (which was to say, our cultures and laws did not resemble those
of Western Europe). But, like Chief Justice Marshall almost one hundred
15 For a discussion of the operation of the doctrine of discovery in English terri-

tories (including Australia), see Robert J Miller, Jacinta Ruru, Larissa Behrendt
and Tracey Lindberg (eds), Discovering Indigenous Lands: The Doctrine of Discovery in
the English Colonies (Oxford University Press, 2010).
16 Williams, above n 10, 6.
17 Johnson v Macintosh 8 Wheat 543, 591 (1823).
18 Mabo v Queensland (No 2) (1992) 175 CLR 1, 40–2 (Brennan J, Mason CJ and
McHugh J agreeing), 109 (Deane and Gaudron JJ), 180–2 (Toohey J).
years before, the High Court has been quick to affirm the sovereignty of the
coloniser.19
This means the conundrum of how others acquired sovereignty over
Aboriginal Countries is still without a satisfactory answer. We always knew
terra nullius for a lie, and this has now been recognised by the courts of the
nation-state that arose from that fiction. But if this justification has been
discarded, what remains? There has been talk of a treaty raised in the context
of current discussions regarding the potential constitutional recognition of
Australian Indigenous Peoples,20 although the process by which this could be
done so as to ensure proper representation of the multitude of Indigenous
Nations of Australia is not clear. But even were a treaty to eventuate, it would
address internal governance arrangements and would not alter the status of
Indigenous Peoples in international law nor give international recognition to
the hundreds of Australian Indigenous Nations. Like Indigenous Peoples
elsewhere, we would remain non-state actors in a system controlled by states.
This is not to diminish the achievements of Indigenous Peoples at an inter-
national level.21 But nor is it to deny the role of the international legal order
in facilitating and legitimising colonialism;22 the way in which human rights
violations against Indigenous and other marginalised peoples too often go
unchecked;23 or the degree to which Indigenous Peoples remain subject to the
hegemony of the nation-states born of our dispossession.24 Besides which,
from an Indigenous perspective, there is a larger question to be addressed. If
the singular social order established by colonialism continues and the diversity
of the world is suppressed, how will this shape the future of the human species?
In the absence of a shift in relationships that moves Indigenous Nations and
the nation-states that claim ownership of our lands beyond the colonial para-
digm, patterns repeat. My mother once wrote of this, in the context of a
conversation with one of our Aboriginal grandfathers about travel to the stars:
In 1992, they honoured James Cook by naming a space shuttle after the
Endeavour and sending it winging its way to the stars with a woodchip
19 Ibid 31–2, 69 (Brennan J, Mason CJ and McHugh J agreeing), 78–9 (Deane and
Gaudron JJ), 121 (Dawson J); Walker v NSW (1994) 182 CLR 45, 47–50
(Mason CJ); Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422,
443–4 (Gleeson CJ and Gummow and Hayne JJ).
20 Expert Panel on Constitutional Recognition of Aboriginal and Torres Strait
Islander Peoples, Recognising Aboriginal and Torres Strait Islander Peoples in the
Constitution: Report of the Expert Panel (2012) chs 8, 9.
21 For a history of Indigenous Peoples at an international level, see S James Anaya,
International Law and Indigenous Peoples (Oxford University Press, 2nd edn, 2004)
pts 1, 2; for a brief summary, see UN Permanent Forum on Indigenous Issues,
above n 2, 1–4.
22 See Watson, above n 10; Anaya, ibid pt 1.
23 See UN Permanent Forum on Indigenous Issues, above n 2, 203–11.
24 See references above n 11.
from the original ship on board. Coincidentally, that same year, the High
Court of Australia finally recognised the rights of Indigenous peoples,
leaving the door open to a form of native title over country. So one hot
summer’s night, when my grandfather and I were sitting outside looking
up at the stars, I told him about Cook’s spaceship and we talked about
its significance and what it might mean to anyone living happily on
another planet, unaware that the spirit of James Cook and his new
spaceship was about to descend on them. [My grandfather] laughed and
said, ‘Those poor buggers in the stars, do you think they’ll get stuck
with Native title too?’25
Native title is something of a ‘leftover’ of a property right, a scrap from the

colonial table that does not equate to freehold;26 continues to exist only to the
extent that it has not been extinguished by the property rights flowing from
Anglo-Australian legal system;27 and is further diminished by requirements
of content and proof which are heavily influenced by essentialist Eurocentric
notions of Indigenous culture.28 Like the rights set out in the Declaration on
the Rights of Indigenous Peoples, native title is important but fails to deal with
the more fundamental resolution that is required. The questions a legal
system founded in narrative sovereignty asks any system that would assert
autonomy over the same territory are these: What are your stories? Where is
the evidence of your understanding of the networks of living beings that
comprise Country? How do you understand your place within these networks,
which is to say, can you enumerate your relationships and in so doing explain
both your rights and responsibilities? Australia, like other colonial nation-
states, is recognised as a sovereign nation and in the Eurocentric international
legal tradition this sovereignty is not affected by any failure in environmental
stewardship; by the cycles of colonial violence required to seize, hold and
work the land; or by human rights violations against Aboriginal and Torres
Strait Islander Peoples. Such things may cause or contribute to legal disputes
or adverse comments by international monitoring bodies but they do not, in
and of themselves, affect title to the land. So within the Eurocentric inter-
national legal tradition there is no reason either to ask or answer the question
what are your stories? But within the Aboriginal legal tradition, there is no
nationhood – and hence no relations between nations – without the narratives
that found the relationship between peoples and Country.
25 Sally Morgan, ‘The Balance for the World’ in Sally Morgan, Tjalaminu Mia and
Blaze Kwaymullina (ed), Heartsick for Country: Stories of Love, Spirit and Creation
(Fremantle Press, 2008) 254, 265.
26 See Richard Bartlett, Native Title in Australia (Lexis Nexis, 3rd edn, 2014) pt 2.
27 Ibid pt 3.
28 Ibid chs 7, 8, 9, 15; Simon Young, The Trouble with Tradition (Federation Press
2008); Australian Law Reform Commission, Connection to Country: Review of the
Native Title Act 1993 (Cth), Report No 126 (2015).
Relationship-based citizenship
In Aboriginal systems, to speak of belonging to a particular Aboriginal Nation or
Nations is to speak of family. It is to say this is my mother’s Country, my grand-
mother’s Country – or this is my father’s Country, my grandfather’s Country – depend-
ing on whether the affiliation is matrilineal or patrilineal. All relationships
ultimately trace back to the Dreaming Ancestors and are expressed through
kinship systems that extend beyond human beings to plants and animals as well
as sun, moon, rain, wind and other aspects (Ancestors) of a living world. The
kinship system itself reflects the networks of relationships that is Country, and
when Aboriginal people travel, they carry that network within themselves (as the
whole is in all its parts). Country unfolds from a single point, and enfolds all that
is – or to put this into linear terms, it enfolds all that was, is and will ever be.
It is now a relatively common practice in Australia for non-Indigenous
people to acknowledge the Traditional Owners of Country,29 particularly at
an event or before the giving of a speech, although the larger point of such an
acknowledgement is often overlooked. When an Aboriginal person acknowledges
someone else’s Country, it is not merely a sign of respect but a recognition
that we are subject to the laws of that Country as interpreted and applied by
the relevant legal experts (generally Elders).30 It is also an act of self-protection,
since it is well known to Aboriginal people that it is important to proceed
with caution when you are a ‘stranger to Country’; the land can react with
hostility to unfamiliar people. An example of one of the ways in which
Aboriginal people approach Country with respect is explained by Bardi and
Indjarbandi woman Dawn Besserab:
Growing up in my family and learning from my Elders, I was told that

whenever I visited someone else’s Country I should always yell out and
tell them who I was, where I came from and what my business was. By
showing respect for the spirits of Country, I would not come to any
harm. But if I failed to do so, then something could happen to me and
the people accompanying me.31
It is also a fundamental rule, common to all Aboriginal legal systems of

Australia, that you cannot ‘speak for someone else’s Country’, and in this
sense you cannot tell someone else’s story.
29 See, eg, Reconciliation Australia, Welcome to and Acknowledgement of Country <http

s://www.reconciliation.org.au/wp-content/uploads/2013/12/QA-welcome-to-coun
try.pdf>.
30 For an examination of Aboriginal regulation of outsiders, see Martin, ‘Ways of
Knowing’, above n 1, 208.
31 Dawn Besserab, ‘Country is Lonely’ in Sally Morgan, Tjalaminu Mia and Blaze
Kwaymullina (eds), Heartsick for Country: Stories of Love, Spirit and Creation (Fre-
mantle Press, 2008) 44, 51.
It follows from this that borders are of vital importance within and between
Aboriginal Nations, although these borders were largely invisible to colonists
who were accustomed to the edges of nation-states being marked by fences,
walls or guards. The colonists were generally unable to perceive the places
where one Country ended and another began, marked as these boundaries
were and are by rivers, rocks, hollows, hills and forests and the many other
physical expressions of the actions of the Ancestor spirits.32 Further, there was
little need for Aboriginal ‘border patrols’, given that the location of our
boundaries was well known to Aboriginal people and that to trespass into
someone else’s Country was an act of stupidity that might well result in
adverse consequences for the trespasser. In this way, Country is both the
source of law and a legal actor that intervenes to enforce and protect its
boundaries.
To be an Aboriginal citizen of an Aboriginal Nation is to exist within
networks of relationships, the pattern – or story – of which was laid out by
the Dreaming Ancestors, and which is upheld through the law. To enter a
nation not your own is to carry the network of your own Country within you
but also to exist within another network. There may be connections between
your own Country and another’s, for example through intermarriage or
through songlines (the paths travelled by the Dreaming Ancestors as they
moved across the land). If these connections cannot be determined, ‘strangers’
are often assigned a place within the kinship system of the nation they have
entered. This brings them into the fabric of relationships that comprise that
nation, and the right–responsibility duality encompassed by those relationships.
Particular rights and responsibilities are dependent on the place occupied
within the system, the overall objective of which is to sustain (balance) rela-
tionships and hence the world. In this sense, divisions are also connections.
For example, the skin (kinship) system of the Palyku divides into four. These
four points are sometimes called ‘faces’; they are sections that stand face to
face, and they balance by opposing each other. To belong to any category in a
kin system is to be at once linked to all that is the same (in the sense of
occupying the same side of the balance as you do) and to all that is different,
in the sense of that which lies on other side of the balance point. In this way,
boundaries divide but do not disconnect.
The internal manifestation of Anglo-Australian sovereignty is through a
government divided into the three arms: legislative, judicial and executive. In
very basic terms, the legislative (parliament) makes the laws, the judiciary
(courts) interprets the laws, and the executive (vice-regal officials such as
governors, as well as ministers and public servants) administers the laws. But
in Aboriginal systems, the internal manifestation of narrative sovereignty is
through the relationships laid out by the Dreaming Ancestors, rather than
32 For a discussion of boundaries and boundary protocols, see Watson, above n 10,
35–37.
through central institutions. This is why, writing with Blaze Kwaymullina, I

have spoken of kinship as a relationship-based government, in that it is
through kinship that laws are made, administered and enforced.33 There are,
of course, many kinship systems and the specific rules within each one are
subject to interpretation by the relevant legal experts within that particular
system; there is no universal homogenous model of Aboriginal kinship. But
within each system, kin relations may well determine, for example, who can
tell a certain law story; who cares for the sacred places inhabited by the ulti-
mate law makers, the Dreaming Ancestors; who determines and administers
punishment for a transgression; and who interprets or mediates change in
specific rules (including by communication with the Ancestors) in order to
apply those rules to new situations. To put this another way: relationship
determines function rather than function determining relationship. In the
Anglo-Australian legal system, it is the function of the judiciary to interpret
the law and adjudicate legal disputes. But in Aboriginal legal systems, the
person(s) in whom that function vests at any given moment depends on the
relevant relationships. This may itself be subject to negotiation where different
sets of relationships interact, and the network of relationships extends to
non-human life and therefore to non-human legal actors.
When viewed in this light, the claim of the Anglo-Australian courts to
possess the function of adjudicating the existence of Indigenous laws when
determining native title claims is difficult to fathom. Anglo-Australian
courts do not possess any of the relationships that would confer that func-
tion upon them. More broadly, the Anglo-Australian legislature, executive
and judiciary collectively do not possess any of the relationships that would
confer a right to exercise the functions of government over Indigenous
Peoples or Indigenous Countries. Within the Anglo-Australian system
itself, this does not affect the validity of governmental decision making. But
in the context of resolving the broader issue with which all settler states
must grapple – how to reconcile the rights of those who were here before
with all those who came after – the need for the Anglo-Australian nation-
state to develop respectful relationships with the many Indigenous Nations
of Australia becomes a primary concern.
The right to be human

One of the points of distinction between Indigenous rights and human rights
as framed by western legal institutions is that human rights belong to indi-
viduals, while Indigenous rights – as set out in the Declaration on the Rights of
Indigenous Peoples – are collective. But this in itself points to a more funda-
mental difference: in Indigenous societies, to be a fully realised human being
33 Ambelin Kwaymullina and Blaze Kwaymullina, ‘Learning to Read the Signs: Law
in an Indigenous Reality’ (2010) 34(2) Journal of Australian Studies 195, 204.
is to be part of a collective. It is also to be responsible to the collective,

including by sustaining the relationships that constitute a lawful way of
being. And amongst Aboriginal Nations this collective extends beyond
human beings to all life in Country (and all of Country is alive).
What does it mean to conceive of humanity as part of a collective that
encompasses non-human life? Kombumerri Elder Mary Graham once wrote:
Western: what is the meaning of life?

Aboriginal: what is it that wants to know?34
All life has meaning, and all life has a perspective, the nuances of which
cannot necessarily be known to human beings. Everyone’s view is confined by
their place within the system; life does not exist in the abstract. To be a fully
realised human being is therefore to exist in such a way so as to ensure that all
life has the same opportunity for self-realisation. The Eurocentric international
legal tradition makes a division between such areas as environmental law,
human rights law and law relating to sovereignty of nation-states upon which
the international system is built. Amongst Aboriginal Nations, these are all
aspects of the same storied relationship. That relationship is made manifest
through kin systems which place specific responsibilities on specific individ-
uals in relation to family members, including those in non-human form.
These connections can, in turn, give insight into the experience of life from
perspectives not our own.
It is the continued existence of all life that makes any life possible. In such
a context, it makes little sense to speak of ‘human rights’ as something that is
separate from or superior to the network of connections that is Country. Nor,
as ever, does it make sense to speak of rights as a concept shorn of responsi-
bilities. The right to be human is a right to Country; a failure to fulfil the
responsibility to care for Country is a failure of humanity. In this respect, the
colonial apocalypse both was built on the denial of Indigenous humanity and
continues to prevent Indigenous Peoples from exercising the right to be
human by failing to resolve the sovereignty stories of those who were here
before, and all those who came after.
Conclusion
Irene Watson (Tanganekald and Meintangk Peoples) concluded in her
ground-breaking study of colonialism that Indigenous Peoples need to:
find a new way of being, an old way of being, outside that of colonial
power … We have ancient models that pre-exist the colonisation of our
34 Graham, above n 1, 181.

lands and lives. We don’t really need to look anywhere else but at
ourselves; we need simply to re-emerge as First Nations Peoples.35
In this emergence, Indigenous Peoples of Australia offer pathways into the

future for all those who genuinely wish to engage with us in a way that
respects that narrative sovereignty. To the extent that these conversations are
between Anglo-Australian governments and Aboriginal Nations, it is an
international dialogue. But if Anglo-Australian governments are unwilling to
engage, there seems no reason why the dialogue cannot be explored by anyone
with an interest in how Indigenous and non-Indigenous peoples can resolve
colonial binaries and walk forward together.
35 Watson, above n 10, 164.

Chapter 2
Domination in relation to
Indigenous (‘dominated’)
Peoples in international law
Steven Newcomb
This chapter is an effort to make explicit an underlying feature of the

language that scholars typically use when writing about the body of ideas
known as international law and the relations between ‘states’ and peoples
termed ‘Indigenous’.1 This feature of the language of international law2 is a
1 Steven Newcomb, ‘The UN Declaration on the Rights of Indigenous Peoples

and the Paradigm of Domination’ (2011) Griffith University Law Review 578,
588. The few working definitions of the term ‘Indigenous Peoples’ at the
United Nations begin with the implicit image that distinct nations or peoples
were existing free and independent of foreign domination in a particular place
when a secondary and invading group invasively entered the scene and
‘through conquest, settlement, or other means’ established dominance over
them. Those termed ‘Indigenous’ are then regarded as living under that state or
condition of ‘domination’. The use of the term ‘dominance’ by the United
Nations in this context seems designed to create a euphemistic gloss so as to
avoid using the word ‘domination’. A process of colonisation creates the ‘Indi-
genous’ condition of existing under domination or dominance. Colonisation is
accurately defined as a form of domination resulting from a nation or empire
sending agents forth to a foreign geographical area to use violence to take over
a distant territory by inserting its own people. This is done in an effort to
dominate and control the original nations and peoples already existing in that
place. Samuel Morison called this the process whereby ‘Europeans began that
amazing expansion of trade and settlement which resulted in world dominion’.
Samuel Morison, The Oxford History of the American People (Oxford University
Press, 1965) 34. This forms the context for the use of the term ‘Indigenous’ in
international law. Indigenous Nations and Peoples are accurately re-expressed
as distinct peoples that have been made to exist under the claimed dominion
(domination) of a colonising or dominating power.
2 Antony Anghie, Imperialism, Sovereignty and the Making of International Law
(Cambridge University Press, 2005) 310. Anghie points out that what is typic-
ally called international law is a product of colonisation and the colonial
encounter. That encounter, which is a violent clash between the invading power
and the original nations and peoples, results in a situation in which nations and
peoples that were existing free from domination have been forced to exist under
some form of foreign and colonising system of domination.
Domination and Indigenous Peoples 19
metaphorical pattern of domination3 and subordination,4 which generally

remains below the level of conscious awareness in discussions about peoples
called ‘Indigenous’ and their rights.5 In this chapter, I will focus on some of
the metaphorical patterns of domination that are typically found in scholarly
writings about international law and ‘Indigenous’ Peoples in an effort to
heighten awareness about a theme that has not been typically raised in inter-
national law scholarship.
As Glenn Morris has observed:
The historical operation of a system of legal norms and standards,

ordained by a handful of states, and imposed upon the overwhelming
majority of the world’s peoples without their consent or input, is
considered perverse and unjust by most indigenous peoples.6
In that one succinct sentence, Professor Morris sums up the issue – which I
identify as ‘domination’ – which is manifested as ‘states’ imposing standards,
concepts and norms of their design and choosing on the original nations and
peoples of a geographical area without their consent. This behaviour emerges
from the origin of what is termed ‘the state’. In Our Enemy the State, Albert J
Nock quotes German scholar Franz Oppenheimer, who succinctly sums up
the pattern of domination I will be drawing attention to in this chapter. This
following pattern has resulted in certain nations and peoples being termed
‘Indigenous’. As Nock puts it:
[Franz] Oppenheimer defines the State, in respect to its origin, as an

institution ‘forced on a defeated group by a conquering group, with a
view only to systematizing the domination of the conquered by the con-
querors, and safeguarding itself against insurrection from within and
attack from without. This domination had no other final purpose than the
economic exploitation of the conquered group by the victorious group.’7
The patterns of domination made explicit in the above quotation are important
for gaining insight into the nature of ‘the state’, and into the relations
3 Claus Mueller, The Politics of Communication: A Study in the Political Sociology of

Language, Socialization and Legitimation (Oxford University Press, 1977). Dom-
ination is evident when one nation or people exercises daily control over another
nation or people external to its will, or when one nation or people is made to live
in subjection to the will of another nation or people.
4 Subordination is the corollary of domination.
5 United Nations Declaration on the Rights of Indigenous Peoples, GA Res 61/295, 61st
sess, 107th plen mtg, UN Doc A/RES/61/295 (adopted 13 September 2007).
6 Glenn Morris, ‘International Law and Politics: Toward a Right of Self-Determination
for Indigenous Peoples’ in Annette Jaimes (ed), The State of Native America: Genocide,
Colonization and Resistance (South End Press, 1992) 55, 55.
7 Albert Nock, Our Enemy the State (Caxton Printers, 1946) 45 (emphasis added).
20 Steven Newcomb
between ‘the state’ and ‘Indigenous Peoples’ in international law, which is a

system of standards used by ‘states’ in their interactions with each other.
Above, Oppenheimer characterises those termed ‘the conquerors’ (dominators)
as having successfully created and ‘systematised’ the domination they have
managed to achieve over those referred to as ‘the conquered’. What Oppen-
heimer calls ‘an institution that has been forced on a defeated group’ is
accurately phrased as ‘a domination’ that has been imposed on the group
being dominated. Oppenheimer makes the pattern perfectly clear when he
calls the pattern ‘[t]his domination’.
Metaphors of domination and international law

In A Clearing in the Forest, Steven L Winter points out that metaphors are ‘our
imaginative way of having a reality’.8 It follows that metaphors of domination
are the imaginative (cognitive) means by which a dominating society is able
to constitute and maintain a reality of domination and subordination over
nations and peoples being dominated.9 C A Bowers says that metaphors carry
forward and maintain the biases and misconceptions of the past.10 International
law serves as an excellent example of what Bowers calls ‘the linguistic coloniza-
tion of the present by the past’.11 He points out that ‘colonization involved
taking for granted analogs [analogies] settled upon in the distant past which
is part of how the metaphorical language of the dominant cultures represented
the West as a civilization and the indigenous cultures as’ inferior and subordinate
‘tribes’.12
The above ideas provide an important insight: the systematic use of metaphors
of domination, both mentally and linguistically, is a means by which polities
called ‘states’ carry forward and maintain, from generation to generation, a reality
of domination and dehumanisation, especially in relation to nations and peoples
termed ‘Indigenous’. By means of such a system of ideas and behaviours, one
nation or people is able to claim to have ‘conquered’ another nation or people,
and then additionally to claim on that basis a right to maintain a controlling
will over that other nation or people, and over the lands, territories and vital
resources (such as water) of the nation or people being dominated. The ‘inter’
8 Steven Winter, A Clearing in the Forest: Law, Life and Mind (University of Chi-
cago Press, 2001) 68.
9 Steven Newcomb, Pagans in the Promised Land: Decoding the Doctrine of Christian
Discovery (Fulcrum Publishing, 2008).
10 Chet Bowers, ‘Chet Bowers: Part 1: Linguistic Roots of the Ecological Crisis’,
YouTube, 14 September 2015, <https://www.youtube.com/watch?v=O0YSPtPn
Nio>; Chet Bowers, The Way Forward: Educational Reforms that Focus on the Cul-
tural Commons and the Linguistic Roots of the Ecological/Cultural Crisis (Eco-Justice
Press, 2012) 70–105.
11 Email from Chet Bowers to Steven Newcomb, 27 February 2016.
12 Ibid.
‘relations’ that states of domination have established between each other, and
now maintain, are generally termed ‘foreign relations’ and ‘international law’.
Given this context, a shift to the viewpoint of those being dominated reveals
a phenomenon that I call ‘the domination of Indigenous Peoples by states’.
As the result of a process of reification,13 a colonising nation or people will
tend not to interpret or characterise its political system as one of domination.
The descendants of those who managed to impose their political system for-
cibly on nations and peoples now termed ‘Indigenous’ will choose not to see
the end result as a system of domination. Those who have inherited that
system would no doubt defensively say that the system which their ancestors
constructed on top of ‘Indigenous’ Peoples, and that is now being maintained
by the current generation ‘around’ and ‘on top of’ those peoples, has nothing
at all to do with ‘domination’. There will be a tendency to engage in this
denial because ‘domination’ suggests invalidity and illegitimacy. The successors
of the system will undoubtedly prefer to frame that system in terms of
‘democracy’14 and ‘civilisation’.15 They are likely to say that their system was
founded on the sanctity of ‘property’.16 Ironically, however, in keeping with
the imperial Greco-Roman tradition, ‘democracy’, ‘civilisation’ and ‘property’
are all terms of domination.17
During the course of many centuries, systems of domination have been
globalised under the terminology of the international system of ‘states’.18
From this perspective, ‘states’ is shorthand for ‘states of domination’. A single
state is shorthand for ‘a state of domination’. In the context of the metaphors
typically used in the United Nations, and in international law, the phrase
‘Indigenous Peoples’ is accurately re-expressed as ‘dominated peoples’.
Dominated (‘Indigenous’) nations and peoples are generally regarded as
having been ‘subjected’ to ‘conquest’ by an invading and dominating nation
at some time in the past.19
13 Peter Berger and Thomas Luckmann, The Social Construction of Reality: A Treatise
on the Sociology of Knowledge (Anchor Books, 1967) 89–92.
14 US State Department, ‘Announcement of U.S. Support for the United Nations
Declaration on the Rights of Indigenous Peoples’ (2011) <http://www.state.gov/
documents/organization/184099.pdf>.
15 Webster’s Third New International Dictionary (1993): ‘The act of civilizing; esp: the
forcing of a foreign cultural pattern on a population to which it is foreign.’
16 Gottfried Dietze, In Defense of Property (John Hopkins University Press, 1971).
See also Charles Haar and Lance Liebman, Property and Law (Little, Brown, 1985)
1: ‘If property starts with the first establishment of socially approved physical
domination over some part of the natural world, then the nature of that dom-
ination – often called “occupancy” or “possession” – is important.’
17 Eli Sagan, The Honey and the Hemlock: Democracy and Paranoia in Ancient Athens
and Modern America (Basic Books, 1991) 13–56.
18 Max Weber, From Max Weber: Essays in Sociology (Hans Gerth and C Wright
Mills ed and trans, Oxford University Press, 1946) 78.
19 Karen Engle, The Elusive Promise of Indigenous Development: Culture, Rights, Strategy
(Duke University Press, 2010) 73–99.
22 Steven Newcomb
The metaphor and concept of ‘conquest’ is generally associated with the

idea of some kind of military victory or triumph, as expressed above by
Oppenheimer, by claiming to have ‘won’ or ‘acquired’ a foreign territory by
force of arms or by other means.20 However, when the perspective is switched
from the viewpoint of those characterised as ‘the conquering’ nation or people,
to the nations or peoples said to have been ‘conquered’, the words ‘conquest’
and ‘conquered’ are accurately re-expressed as domination.21 As a mental exercise,
think of the different understandings and associated inferences that would
emerge if every time we were to see the word ‘conquest’ we were to reframe
and re-express it as ‘domination’. Use of that specific word by nations and
peoples said to have been ‘conquered’ by the West is one means by which
Indigenous Nations and Peoples can begin challenging this very idea by
pointing out that ‘conquest’ serves as a cover word for domination.
Another approach can also be taken: make explicit the metaphors of dom-
ination and subordination, and refuse passively to accept and operate from the
colonisers’ perspective. For example, ‘the conquest’22 is a phrase accurately
replaced with ‘the domination’. As an exercise, reflect on the difference in
connotation that would have arisen if Patricia Seed had chosen as a title for
her book Ceremonies of Possession in Europe’s Domination of the New World 1492–
1640, instead of Ceremonies of Possession in Europe’s Conquest of the New World
1492–1640.23
Dominated peoples and international law

The domination which states have constructed, maintained and used against
colonised peoples for centuries has resulted in the phenomenon of ‘dominated
(“Indigenous”) peoples’. Yet this specific issue generally remains out of focus
when the word ‘domination’ is not used. The issue of domination has very
long and very old roots indeed.24 James Crawford, in his foreword to Antony
Anghie’s book Imperialism, Sovereignty, and International Law, has pinpointed
the issue of domination that Anghie has identified in his research into the
origins of international law. Crawford notes that Anghie ‘examines a series of
episodes in the legal history of the relations between the West and non-
Western polities’.25 Anghie, says Crawford, argues that these episodes have
20 The Compact Edition of the Oxford English Dictionary (1971) vol 1.

21 Richard Brown, A Poetic for Sociology: Toward a Logic of Discovery for the Human
Sciences (Cambridge University Press, 1977) 47.
22 ‘Conquest’ is often used by historians and scholars of international law, which
suggests a victory or triumph rather than a form of domination.
23 Patricia Seed, Ceremonies of Possession in Europe’s Conquest of the New World 1492–
1640 (Cambridge University Press, 1995).
24 Frances G Davenport, European Treaties Bearing on the History of the United States
and Its Dependencies to 1648 (Carnegie Institution of Washington, 1917).
25 James Crawford, ‘Foreword’ in Anghie, above n 2, xi.
been ‘reproducing at different epochs and in different ways an underlying

pattern of domination and subordination’.26 From its beginning, international
law was not ‘exclusively concerned with the relations between states’, Crawford
notes, ‘but, and more importantly, with the relations between civilizations and
peoples’. ‘Moreover’, says Crawford, ‘these were relations of domination’.27
Professor Anghie, in his chapter ‘Francisco de Vitoria and the Colonial
Origins of International Law’, examines in detail Vitoria’s discourse and
arguments, and Vitoria’s view that ‘Indians were excluded from the realm of
sovereignty’.28 As Anghie concludes:
ultimately, the one distinction which Vitoria insists upon and which he
elaborates in considerable detail is the distinction between the sovereign
Spanish and the non-sovereign Indians. Vitoria bases his conclusions that
the Indians are not sovereign on the simple assertion that they are pagans.29
Given Jonathon Havercroft’s acknowledgement that major critiques of sover-

eignty find it to be ‘an unjust form of political domination that limits human
freedom’,30 concluding that the Indians were not sovereign because they were
not Christian left the ‘Indians’ wide open to a forcibly imposed unjust system
of political domination by ‘the sovereign Spanish’, ‘the all-powerful sovereign
who administers this law’ of jus gentium.31 Anghie argues that the ‘sovereignty
doctrine was not developed in the West and then transferred to the non-
European world’.32 Rather, the ‘sovereignty doctrine acquired its character
through the colonial encounter’33 because, Anghie contends, ‘sovereignty
[domination] was constituted through colonialism’.34
Then, as a more recent example, Anghie provides a detailed account of the
positivist school of international law in the nineteenth century. He uses a
wide number of synonyms for domination and dehumanisation, while
explaining how ‘Positivists developed an elaborate vocabulary for denigrating
non-European people, presenting them as suitable objects for conquest, and
legitimizing the most extreme violence against them, all in the furtherance of
the civilizing mission discharging the white man’s burden’.35 Synonyms for
domination and dehumanisation in that one sentence include ‘denigrating’,
‘objects for conquest’, ‘extreme violence’ and ‘civilizing mission’. The average
26 Ibid.
27 Ibid (original emphasis).
28 Anghie, above n 2, 26.
29 Ibid 29 (emphasis added).
30 Jonathan Havercroft, Captives of Sovereignty (Cambridge University Press, 2011) 34.
32 Ibid 29.
33 Ibid.
34 Ibid 38.
35 Ibid.
24 Steven Newcomb
reader may not recognise the phrase ‘civilizing mission’ as expressing the theme
of domination. The connection is found in Webster’s Third New International
Dictionary (unabridged), which defines ‘civilization’ as ‘the process of civiliz-
ing’, for example ‘the forcing of a particular cultural pattern on a population to
which it [the cultural pattern] is foreign’ (emphasis added).
Forcing free and independent nations and peoples to undergo a politically
coercive, dominating and multi-generational process of subjection to ‘a foreign
cultural pattern’, purportedly in keeping with international law between
‘states’, has resulted in a trauma-inducing history for peoples now called
‘Indigenous’. Thomas R Berger’s book A Long and Terrible Shadow provides
numerous example of the pattern of domination, subordination and
dehumanisation that historically contextualises the relationship between
nations and peoples termed ‘Indigenous’ and polities called ‘states’ in inter-
national law. In the following paragraph of 84 words, for instance, Berger
provides at least ten examples of domination and dehumanisation, which I
highlight using additions in brackets:
The Spaniards came first to [invade] the West Indies; they waged a series
of campaigns of extermination [domination] against the Indians of His-
paniola. On horseback, accompanied by infantry and bloodhounds [to
hunt down the Indians] [domination], the conquistadores [dominators]
destroyed almost at will [domination] the hunting and gathering tribes
of the island. They raped [domination] and murdered [domination],
sparing neither women nor children [domination]. Resistance [to Spanish
domination] by the Indians was put down mercilessly [by means of
domination]. By 1496, the Spaniards were in complete control of [had
achieved complete domination over] the island of Hispaniola. Similar
assaults [campaigns of domination] were made on Cuba and other islands
of the Caribbean.36
Innumerable volumes of this sort of dark history illustrate the conceptual and
behavioural roots of what Anghie calls ‘the relationship between international
law and the colonial confrontation’, and the roots of what he terms ‘sover-
eignty doctrine’.37 Given that colonialism is simply another synonym for
imperialism and domination,38 Anghie’s focus on ‘the relationship between
international law and the colonial confrontation’ provides much-needed
insight into what is seldom explicitly written about, namely, the domination
of nations and peoples now commonly called Indigenous.39
36 Thomas Berger, A Long and Terrible Shadow: White Values, Native Rights in the
Americas since 1492 (University of Washington Press, 1967) 3.
38 Rene Maunier, The Sociology of Colonies: An Introduction to the Study of Race Contact
(Routledge, 1949) 29–36.
39 Newcomb, ‘UN Declaration’, above n 1.
Some of the most basic vocabulary found in writings about Indigenous

Peoples in the context of international law include ‘state’,40 ‘civilization’,41
‘Indigenous’,42 ‘sovereignty’,43 ‘symbolic acts of possession’,44 ‘conquest’45
and ‘property’.46 Each of these words, and all of them together when viewed
as a single gestalt or paradigm, leads to the idea and pattern of domination. A
deeper examination of these metaphors, their interpretation and the various
contexts in which they are typically used provide us with an important insight:
the idea system of international law has been used by the agents of polities called
‘states’ as a means of constituting and maintaining, on a seemingly permanent
basis, a linguistic and behavioural reality of domination for nations and peo-
ples called ‘Indigenous’.47 Yet scholars of international law tend to write as if
there is no such thing as the domination of Indigenous Peoples by states.48
Indigenous Peoples are not part of an ‘objective’

physical reality
The idea of certain peoples being classified as ‘Indigenous’ is not part of an
‘objective reality’ physically existing in the world independent of the human mind.
It is the human mind, and, more specifically, the western or occidental mind,
that came up with the metaphorical idea of certain peoples being termed and
categorised as ‘Indigenous’. The category was developed based on particular
characteristics or properties ascribed to ‘Indigenous’ Peoples in a dominating
context of empire and colonialism, or in the contemporary context of a given
‘state’ of domination.49 Peoples called ‘Indigenous’ in international law, for
40 Weber, above n 18. See Max Weber’s definition of ‘the state’: ‘Like the political
institutions historically preceding it, the state is a relation of men dominating
men, a relation supported by means of legitimate (i.e. considered to be legit-
imate) violence. If the state is to exist, the dominated must obey the authority
claimed by the powers that be’: ibid 78 (emphasis added).
41 See above n 15.
42 Newcomb, ‘UN Declaration’, above n 1, 588–9.
43 Havercroft, above n 30, 34. Eminent political philosophers such as Arendt, Fou-
cault, Hardt and Negri, and Agamben agree in their assessment that ‘sovereignty’
constitutes ‘an unjust form of political domination that limits human freedom’.
44 Seed, above n 23.
45 Ibid.
46 Dietze, above n 16.
47 Newcomb, Pagans in the Promised Land, above n 9.
48 The so-called ‘conquest’ has, from the perspective of those said to have been
‘conquered’, resulted in the imposition of an unjust form of political domination,
which, ironically, is a definition of ‘sovereignty’ provided in Havercroft’s Captives
of Sovereignty, above n 30, based on his reading of a number of political
philosophers.
49 United Nations Department of Economic and Social Affairs, State of the World’s
Indigenous Peoples, UN Doc ST/ESA/328 (2009) 6: ‘The concept of indigenous
peoples emerged from the colonial experience, whereby the aboriginal peoples of
26 Steven Newcomb
example, are typically framed in terms of metaphors of hierarchy, and thus are
characterised as ‘occupying’ a ‘lower’ order or ‘subordinate’ ‘space’ ‘beneath’
the political authority of ‘polities’ called ‘states’.50 The metaphorical imagery
of Indigenous Peoples existing ‘in’ or ‘within’ the state, or being ‘subject to’
and ‘under’ the authority of ‘the state’, certainly serves this purpose.51 The
metaphor of a ‘subordinate’ position or status is sometimes stated in the
United Nations as such peoples being ‘non-dominant’.52 This only makes
sense in relation to the correlative of another people, society or state which is
regarded as being dominant or dominating.
English philosopher Adam Smith mentioned this kind of pattern in his
Essay on Colonies when he said that, during ‘the course of many centuries
among savage and barbarous nations’, the colonisers carried with them ‘the
habit of subordination’.53 This is accurately interpreted to mean that the
colonisers (dominators) had a habit of using subordinating and dehumanising
metaphors such as ‘savage’, ‘barbarous’ and ‘uncivilised’ (undominated)
against the free nations and peoples living in the lands being colonised. Stated
differently, the colonisers carried with them a mental habit of using meta-
phors of domination as part of the process of ‘colonisation’, which Samuel
Eliot Morison defines as ‘a form of conquest in which a nation takes over a
distant territory, thrusts in its own people, and controls or eliminates the
native inhabitants’.54
It would be difficult to devise a more perfect picture of domination than
the one Morison provides in the above sentence, which goes well with Claus
Mueller’s definition of domination. In The Politics of Communication, Mueller
defines domination as ‘the control’ by ‘a limited number of individuals over
the material resources of society’, and ‘over access to positions of political
[decision-making] power’.55 International law is one means by which such
control has been achieved over nations and peoples termed ‘Indigenous’.
Through the centuries, a limited number of colonisers in leadership positions
of power have mentally projected metaphors of domination and subordination
a given land were marginalized after being invaded by colonial powers, whose
peoples are now dominant over the earlier occupants’ (emphasis added). The phrase
‘now dominant’ is followed later in the same paragraph with an explicit mention
of ‘Domination and displacement of peoples’. The nations and peoples being
dominated end up in ‘a state of domination’ by a given ‘state’ of domination.
50 Newcomb, Pagans in the Promised Land, above n 9.
51 Ibid.
52 Jose R Martinez Cobo, UN Special Rapporteur on the Problem of Discrimin-
ation Against Indigenous Populations, Study of the Problem of Discrimination
against Indigenous Populations, UN Doc E/CN4/Sub2/1986/7/Add 4 (1986) para
379: ‘They form at present non-dominant sectors of society …’
53 Adam Smith, Essay on Colonies (M Walter Dunne, 1901) 12.
54 Morison, above n 1, 34.
55 Mueller, above n 3, 129.
onto the nations and peoples that were originally living free of those mental
projections, and of the dominating behaviours that follow from them.
Given this fact, peoples now called ‘Indigenous’ are the ones who have been
both mentally and physically subjected, or dominated, by those engaged in
the enterprise of colonialism and imperialism, or, in contemporary times, by
those carrying out the role of ‘the state’. Colonisation involves a given system
of domination (for example, a ‘state’, ‘kingdom’ or ‘monarchy’) sending
human beings forth as agents who are assigned the task of transporting a
mental and physical system of domination into a ‘newly located’ (‘discovered’)
geographical area where that system was not yet existing. They are expected
to engage in the long and violent process of constituting that system over and
on top of the original nations that were previously existing in that place free
from a violently imposed and foreign domination. This forcible process of
imposition is what has sometimes been ‘the civilising mission’,56 as mentioned
previously.
That the concept ‘Indigenous Peoples’ is metaphorically ensconced in an
overall semantic context of domination generally goes unmentioned. This is
somewhat remarkable given that the domination–subordination conceptual
pattern is central to the working definition of what it means to be considered
‘Indigenous’ in both international law and the United Nations.57
Metaphorically depicting such peoples as living a lower-order, dominated
existence in relation to polities called ‘states’ seems to be a requisite of the
idea system that elite humans of the West have developed and maintained as
international law.58 When Indigenous Nations and Peoples express the desire
to free themselves from being dominated by a particular system (‘state’) of
domination, some scholars typically frame this as ‘talk of secession’.59
Such scholars frame the matter in this way even though it seems senseless
for Indigenous Nations and Peoples to be characterised as attempting to
‘secede’ from a linguistic, metaphorical and behavioural system of domination
imposed on them against their will, a system of domination to which they
have not freely acceded. Scholars who engage in this inapt use of political
terminology ought to be reminded that a desire by peoples who have been
and are still being dominated to be freed from that ongoing and chronic
predicament is not a desire for secession; it is a desire for liberation from an
56 Anghie, above n 2, 3–4.

57 United Nations Department of Economic and Social Affairs, State of the World’s
Indigenous Peoples, UN Doc ST/ESA/328 (2009).
58 Ibid.
59 Engle, above n 19, 73–99. See also Echo-Hawk, In the Light of Justice: The Rise of
Human Rights in Native America and the UN Declaration on the Rights of Indigenous
Peoples (Fulcrum, 2013) 44: ‘Self-determination in the indigenous context does
not include a right to succeed [sic] from states that recognize human rights,
because the Declaration disclaims intent to dismember the territorial integrity or
political unity of states.’
28 Steven Newcomb
imposed system that constructs and maintains a mental, physical and trauma-
inducing reality of domination on an ongoing and intergenerational basis.60
UN Declaration on the Rights of Indigenous

(‘dominated’) Peoples
On 13 September 2007, the United Nations General Assembly adopted the
UN Declaration on the Rights of Indigenous Peoples. In the years since the
declaration’s adoption, it has been typical to hear some Indigenous Peoples’
advocates speak as if a sea change is on the horizon with regard to the treatment
of the rights of Indigenous Peoples in international law. Indigenous Peoples’
representatives who express this view seemed not to notice that the newly
adopted UN declaration is not designed to end the relationship of domination
between polities called ‘states’ and peoples termed ‘Indigenous’. Nor does that
document fundamentally change the manner in which that dominating rela-
tionship is written about in the idea system of international law. In the inter-
national arena and in the adopted text of the UN declaration, for example, the
word ‘States’ is still spelled with the honorific capital ‘S’, and the word
‘indigenous’ is still spelled with a symbolically subordinate lower case ‘i’.61
This is both symbolic and constitutive of the domination system of ‘the state’
and of ‘states’.62
Given the adoption of the UN Declaration on the Rights of Indigenous Peoples
in 2007, it is common to hear the claim put forth that the idea system and
60 Eduardo Duran, Bonnie Duran, Maria Yellow Horse-Brave Heart and Susan
Yellow Horse-Davis, ‘Healing the American Indian Soul Wound’ in Russell
Thornton (ed), Studying Native America: Problems and Prospects (University of
Wisconsin Press, 1998) 60.
61 US Statement to UN ECOSOC, E/CN4/Gr1987/7/Add12 (30 September 1987).
The Office of Legal Affairs of the US Department of State’s upper case/lower case
stylistic technique resulted in the State Department violating the ordinary rule
for capitalising the first letter of a proper noun, such as ‘Indian’. In a response to
complaints by the traditional Hopi Kikmongwis to the United Nations, the
State Department wrote in an official US intervention about Felix Cohen ‘con-
sidered by many to be the preeminent authority on federal indian [sic] law, in
his Handbook of Federal Indian Law …’.
62 Ibid:
It is clear that the concept of tribal sovereignty has been recognized by the
United States Supreme Court as derived from international law subject to
modification by the Congress of the United States … [T]reaties and statutes
of Congress have been looked to by the [US] courts as limitations upon ori-
ginal tribal powers, or, at most evidence of recognition of such powers, rather
than as the direct source of tribal powers. This is but an application of the
general principle that ‘it is only by positive enactments, even in the case of
conquered [dominated] and subdued [dominated] nations, that their laws are
changed by the conqueror [dominator]’.
standards of international law are developing new norms.63 Evidence of this

supposed development of international law standards pursuant to the UN
Declaration on the Rights of Indigenous Peoples is said to be found in the fact that
peoples called ‘Indigenous’ are deemed to have the right to aspire towards the
attainment of certain rights beneath or ‘under’ state sovereignty (domin-
ation).64 State governments seem to be saying to Indigenous Peoples, ‘So long
as you agree not to tamper with or contest the state’s claim of sovereignty
(domination) over your existence, you may aspire to one day, in some distant
and indeterminate future, achieve certain rights under and within the system of
state sovereignty (domination).’
How Indigenous Peoples’ advocates will be able eventually to persuade
state actors to recognise Indigenous Peoples as possessing such rights is not at
all clear. However, Indigenous Peoples are considered by states to be more
than welcome to make the effort eventually to achieve certain ‘rights’ under state
sovereignty (domination), just so long as they do not aspire to free themselves
from the imposition of state sovereignty (domination).
Importantly, the UN Declaration on the Rights of Indigenous Peoples has resulted
in no call for the United Nations’ working definitions of the term ‘Indigenous
Peoples’ to be refashioned. The idea of Indigenous Peoples is still being
defined in the exact same manner after the adoption of the UN declaration as
it had been before its adoption by the United Nations General Assembly. The
relationship of domination between states and Indigenous Peoples is not
explicitly addressed in the UN Declaration on the Rights of Indigenous Peoples let
alone modified or ended by that document’s adoption.
During the decades that Indigenous Peoples’ advocates had been working
towards reform in the international arena and in international law relative to
Indigenous Peoples, the word ‘domination’ was only occasionally mentioned
in relation to Indigenous Peoples’ issues. On closer reflection, this seems odd
given the specific working definition of peoples termed ‘Indigenous’ in inter-
national law. One definition was published in a 1986 report by the UN
Special Rapporteur on the Problem of Discrimination Against Indigenous
Populations. It includes tell-tale phrases that identify the pattern of domin-
ation: ‘pre-invasion’, ‘pre-colonial’, ‘distinct from other sectors of the societies
now prevailing’ and ‘non-dominant sectors of society’.65 Oddly, the above
phrases are not associated with the idea of domination in the mind of the
average English language speaker. It is only upon reflection that the dom-
inating nature of words such as ‘invasion’, ‘colonial’ and ‘prevailing’ become
noticeable.
63 Echo-Hawk, above n 59, 39–40.

64 Ibid: ‘indigenous self-determination runs parallel to state sovereignty [domina-
tion] and takes place within [ie “under”] the body of the state’.
65 Martinez Cobo, above n 52, para 379.
30 Steven Newcomb
An aspiration to end the domination

As mentioned above, the UN Declaration on the Rights of Indigenous Peoples is
designed to accord ‘dominated’ (‘Indigenous’) peoples the right to aspire to
achieve certain rights under, beneath, or within a state-run system of domination.
An important feature of that system is called ‘the territorial integrity of the
states’. Article 46 of the UN Declaration on the Rights of Indigenous Peoples specif-
ically declares that peoples called ‘Indigenous’ may not question the existence
of states, or their territorial integrity. This gives the impression that domin-
ated peoples may not question or challenge the political existence and polity
of their dominators. From the viewpoint of the international system of states,
Article 46 seems to suggest that nations and peoples termed ‘Indigenous’ may
not question the territorial domination that the states have claimed over the
lands and territories of the original nations of the continent based on a
claimed right of Christian discovery and domination.66
Most scholars of international law never focus on the domination of Indi-
genous Nations and Peoples by states, and thus never advocate ending such
domination. They seem to suggest it is possible to maintain the domination
system in relation to Indigenous Nations and Peoples, and at the same time
eventually achieve a ‘peaceful’ coexistence between peoples called ‘Indigenous’
and states of domination.67 Such scholars seem to envision a future in which
the nations and peoples being dominated by states will have learned to
‘reconcile’ themselves to living within and under a given ‘state of domin-
ation’.68 At least one Indigenous scholar has said that the UN Declaration on
the Rights of Indigenous Peoples is intended to ‘incorporate Indigenous peoples
into the body politic’ of the state.69 This view seems to coincide with the
findings of the Truth and Reconciliation Commission of Canada.70 From the
viewpoint of states, efforts must be made to keep dominated peoples pacified
and conciliated through a process of ‘reconciliation’ so they will not funda-
mentally question or challenge the state system of domination, or the violent
basis upon which that system came into existence to begin with, as illustrated
by the quotation from Oppenheimer above.71
The UN Declaration on the Rights of Indigenous Peoples is being treated by
some scholars as a framework for achieving peaceful equilibrium between
states of domination and peoples called ‘Indigenous’ without ‘the domination
66 Echo-Hawk, above n 59, 45; Steven Newcomb, ‘The Evidence of Christian

Nationalism in Federal Indian Law: The Doctrine of Discovery, Johnson v
M’Intosh and Plenary Power’ (1993) 20 New York University Review of Law and
Social Change 303.
67 Echo-Hawk, above n 59, 99–132.
68 Ibid.
69 Ibid 125–6.
70 Truth and Reconciliation Commission of Canada, Honoring the Truth, Reconciling
the Future (2015) <http://www.trc.ca/websites/trcinstitution/index.php?p=890>.
71 Nock, above n 7.
of Indigenous Peoples by the state’ ever becoming a focus of attention. The

document itself is being characterised as ‘aspirational’ in keeping with the
view that states are willing to take note of the fact that peoples called ‘Indi-
genous’ have certain aspirations for a more desirable future. No surprise there.
Neither state actors nor most representatives of Indigenous Peoples seem to
be arguing that the UN declaration provides a means for liberating Indigenous
Peoples from a given state of domination. Article 46 of the declaration, which
refers to ‘the territorial integrity of states’, was apparently written from the
statist viewpoint that the UN Declaration on the Rights of Indigenous Peoples may
not be used by peoples called ‘Indigenous’ in an effort to challenge the state’s
system of domination exerted over and used against them.
Imperial states and original nations

The system of domination expressed through the language of international
law makes it seem imprecise, from the viewpoint of states, to apply the term
‘nation’ to peoples termed ‘Indigenous’ in the international context, and in
the general parlance of ‘states’. A principle of international law which ‘states’
never apply to peoples termed ‘Indigenous’ was expressed by Chief Justice
John Marshall in the US Supreme Court decision Church v Hubbart in 1804:
‘The authority of a nation within its own territory is absolute and exclusive.’72
Applying this principle of absolute and exclusive territorial authority to original
Native Nations, as against the United States for example, would have very
likely created a permanent barrier to the domination–subordination system of
the United States in relation to original nations and in relation to the lands,
territories and resources of original nations.
Article 46 of the UN Declaration on the Rights of Indigenous Peoples is predi-
cated on this principle of exclusive ‘state’ territoriality. Article 46(1) of the
UN declaration says that nothing is to be ‘construed as authorizing or
encouraging any action which would dismember or impair, totally or in part,
the territorial integrity, or political unity of sovereign and independent
States’. When we consider the point that ‘sovereignty’ is ‘an unjust form of
political domination that limits human freedom’,73 and Oppenheimer’s point
about ‘the state’ resulting from the systematising of domination by one nation
or people over another,74 as well as Weber’s point that ‘the state’ is the result
of ‘the relation of men dominating men’,75 a question arises: will Article 46 of
the UN declaration be interpreted by ‘states’ to mean that Indigenous
Nations and Peoples may not focus on ‘states’, or on a particular state, as
systems of domination? Will Article 46 be interpreted by states as meaning
72 Church v Hubbart 6 US 187, 234 (1804).

73 Havercroft, above n 30.
74 Nock, above n 7.
75 Weber, above n 18.
32 Steven Newcomb
that Indigenous Nations and Peoples may not directly challenge the domin-
ation of Indigenous Peoples by states because such a challenge might threaten
‘to impair the territorial integrity’ and ‘political unity’ of ‘states’ of domination?
The fourth preambular paragraph of the UN Declaration on the Rights of
Indigenous Peoples affirms ‘that all doctrines, policies and practices based on or
advocating superiority of peoples or individuals on the basis of national origin
or racial, religious, ethnic or cultural differences are racist, scientifically false,
legally invalid, morally condemnable and socially unjust’. US federal Indian
law and policy are predicated on US claims of ‘ascendancy’76 (domination)
and superiority on the basis of national origin, as well as on the basis of
‘racial, religious, ethnic and cultural differences’ between the society of the
United States and the original nations of the continent. Justice Joseph Story
demonstrated the religious argument the United States has used as a basis for
claiming a right of domination over the original nations of the continent, and
for refusing to apply the above-mentioned doctrine of territorial exclusivity to
any original nation.77
Story said of the original nations: ‘As infidels, heathens, and savages, they
were not allowed to possess the prerogatives belonging to absolute, sovereign,
and independent nations.’78 This matches Francisco de Vitoria’s conclusion
mentioned above that Indians, as ‘pagans’, were not ‘sovereign’.79 Major
thinkers of western Christendom regarded non-Christians as being dis-
qualified from having a right to be deemed fully ‘sovereign’ and to remain
independent of Christian European domination.
When Chief Justice John Marshall for a unanimous US Supreme Court said
the United States had adopted the principle of ‘Christian people’ applying the
‘right of discovery’ to lands that were inhabited by ‘heathens’,80 he, the
Supreme Court as a whole and the United States government thereby applied
a biblical context and form of reasoning against our nations and peoples. This
biblical pattern of reasoning about non-Christian ‘heathen’ nations only
having a right of ‘occupancy’ and a ‘diminished’ independence became an
established precedent of the US Supreme Court as result of the Johnson v
M’Intosh ruling,81 which the United States first began imposing on our
nations 194 years ago, as of 2017.
The conceptual system of US domination, and Native (‘Indigenous’) Nation
subordination on the basis of Christian and biblical patterns of thought, is
designed to prevent nations termed ‘Indigenous’ from being able effectively to
exclude the United States from the territory of any original nation, while at
76 Johnson & Graham’s Lessee v M’Intosh 21 US (8 Wheat) 543, 573 (1823).

77 Joseph Story, Commentary on the Constitution of the United States Volume III (Hil-
liard, Gray and Company, 1833) 5 § 1.
78 Ibid 135 § 152.
79 See Anghie, above n 2.
80 Johnson v M’Intosh 21 US (8 Wheat) 543, 576–7 (1823).
81 Ibid.
the same time making certain that every such ‘Indigenous’ Nation is regarded
as ‘subject to’ the political and legal jurisdiction of the United States. The fact
that religious categorisations serve as the starting point of this system of ideas
has been well concealed for nearly two hundred years, in part because legal
scholars replace ‘Christian’ with the word ‘European’.82 The United States
claims to possess an absolute territorial exclusivity, based on international law,
while arguing, based on international law, that Indian ‘Nations’ (‘tribes’) do
not possess the prerogative of such territorial exclusivity.
On what basis does the United States assume, for example, that the original
nations of the North American continent do not possess territorial integrity
and territorial exclusivity? Because, centuries ago, the Christian nations of
Europe claimed to have ‘discovered’ non-Christian Indian lands.83 Polities
called ‘states’, such as the United States and Canada, demand acknowledgement
of what they presuppose to be their ‘territorial integrity’, but they reject out of
hand the idea that territorial integrity and exclusivity are characteristics of
original nations and peoples termed ‘Indigenous’. Both the United States and
Canada are to this day still using the metaphors of the ancient Christian law
of nations against nations termed ‘Indigenous’. They are doing so as a covert
means of maintaining a ‘state’ system of domination over and against such
nations, which the United States typically calls ‘tribes’.
States such as the United States and Canada do, however, use the word
‘nation’ politically to communicate the sense of a ‘domestic’ and ‘subordinate’
nation, which is metaphorically characterised as existing ‘within’ or ‘internal
to’ the territorial ‘homeland’ of a given state, such as the United States or
Canada.84 On that basis, Indigenous Nations that were originally existing free
from domination are now deemed ‘domesticated’ ‘nations’ that are considered
subject to85 the domination system (‘sovereignty’) of a given ‘state’. Because
internationally recognised ‘states’ typically apply the term ‘nation’ to them-
selves, the term ‘nation’ is a cardinal feature of the lexicon of international law
and of the lexicon used at the United Nations as applied to ‘states’.86 Indeed,
82 Robert Williams, The American Indian in Western Legal Thought (Oxford Uni-
versity Press, 1990) 317.
83 Edward Dumbauld, ‘John Marshall and the Law of Nations’ (1955) 104 Uni-
versity of Pennsylvania Law Review 38.
84 See, eg, Susana Mas, ‘Trudeau Lays Out Plan for New Relationship with Indi-
genous People’, CBC News, 8 December 2015 <http://www.cbc.ca/news/politics/
justin-trudeau-afn-indigenous-aboriginal-people-1.3354747>. Notice that the
Canadian Broadcasting Corporation editors declined to place an ‘s’ on the word
‘people’, thereby avoiding the idea that Canada as a country is dealing with
distinct nations termed ‘peoples’ with an ‘s’.
85 The Compact Edition of the Oxford English Dictionary (Oxford University Press,
1971): ‘To make (persons, a nation or country) subject to a conquering or sover-
eign power; to bring into subjection to a superior; to subjugate [ie to dominate].’
86 Echo-Hawk, above n 59, 4–6, characterises ‘Indigenous Peoples’ as ‘beyond the
reach’ of certain rights, and further says that ‘Indigenous Peoples’ have been not
34 Steven Newcomb
‘inter’ and ‘national’ are obviously combined to indicate relations existing

between nations, meaning between states. This terminology is considered to
have nothing to do, however, with ‘Indigenous’ Nations which are regarded as
falling into a domestic category of ‘interior’ or ‘internal’ affairs of the state.
The UN Declaration on the Rights of Indigenous Peoples was drafted in keeping
with this framework.
In typical writings about international law and the UN Declaration on the
Rights of Indigenous Peoples, the words ‘nation’ and ‘national’ seem reserved
solely as a synonym for polities called states.87 In the official language of the
United Nations, the terms ‘nation’ and ‘national’ are never used as an inter-
national law category for peoples called ‘Indigenous’. Few if any non-Indigen-
ous scholars who write about international law ever seem to express the view
that peoples termed ‘Indigenous’ are rightfully distinct nations with a funda-
mental right to exist and live free and independent of some state’s domination
(‘sovereignty’). Even the word ‘peoples’ (with an ‘s’) is only applied grudg-
ingly and cautiously,88 if at all, to peoples called ‘Indigenous’ in the interna-
tional arena. The reason is simple. Adding the letter ‘s’ to ‘people’ denotes
many entire peoples, which suggests that they are also nations and therefore
potentially in competition with the dominationhood claimed by states in
relation to a specific territory.
Does the domination of Indigenous Peoples by states

violate their rights?
Question: Do Indigenous Nations and Peoples have the right to live free from
the dominationhood of states? Dealing with this question requires that we
focus on the category ‘the rights of Indigenous Peoples’. If we think of that
category as a list of rights which peoples called ‘Indigenous’ are considered to
possess, another question arises: does that list of rights include ‘the right to
live free from domination by states’? If, on the basis of some rationale, one
answers, ‘yes it does’, then it stands to reason that the current domination of
the existence of ‘Indigenous’ Peoples by states is in violation of their right to
distinct nations in their own right, but ‘vulnerable minorities captive to hostile
or indifferent domestic forums in their own nations’. Thus, strangely, in a most
colonising manner, Echo-Hawk has characterised the governments of ‘states of
domination’ as being the Indigenous Peoples’ ‘own nations’, rather than their
own original nations being their own nations.
87 Asia-Pacific Forum of National Human Rights Institutions and UN Office of the
High Commissioner for Human Rights, The United Nations Declaration on the
Rights of Indigenous Peoples: A Manual for National Human Rights Institutions (2013) v.
This extensive report uses the word ‘national’ only with regard to ‘states’, as in,
eg, ‘National Human Rights Institutions’ and ‘national implementation of the
Declaration’. It only focuses on ‘states’ as ‘nations’, and never refers to ‘Indigen-
ous Peoples’ as nations.
88 US State Department, above n 14.
live free from state domination. If, however, on the basis of some other
rationale, one answers ‘no, Indigenous Peoples do not have the right to live
free from the domination of the state’, then it follows that ‘Indigenous’ Peoples
are presumed to be obligated, on the basis of some rationale, to continue
living under the domination of a given state.89 In this scenario, it is a sensible
task to identify the rationale being used by states to presume that peoples
termed ‘Indigenous’ are obligated to continue living under state domination.
Such a rationale for the domination of the original nations of the continent
was expressed by US Supreme Court Justice Joseph Story in the early nine-
teenth century based on the Johnson v M’Intosh ruling: (1) the ancestors of the
original nations were not Christians when the Christian nations of Europe
invasively arrived, and (2) the Christians would not allow the original nations
to possess the prerogatives belonging to absolute, sovereign and independent
nations. Why is this? The answer is simple. The Christians used the power of
the human mind to frame the original nations of the continent metaphorically
as ‘infidels, heathens and savages’. The Christians deemed the original nations
to be disqualified from the category of ‘absolute, sovereign and independent
nations’ based on Christian mental projections onto the original nations.
Domination has a powerful mental dimension.
Story’s rationale brings to mind another related point: The domination of
Indigenous Peoples by states cannot be brought into focus without using the
specific phrase ‘the domination of Indigenous Peoples by states’. Without that
specific wording, it is not possible for this issue to become a feature of our
conscious awareness. Alternatively, armed with that specific wording, it then
becomes possible to ask a question that heretofore has not yet been asked and
addressed: ‘Does the domination of Indigenous Peoples by states violate the
rights of Indigenous Peoples?’90 This leads to a related question: ‘Does the list
of rights for peoples termed “Indigenous” include the right to live free from
domination by states, generally, or by any given state?’ Again, whether we say
‘yes, the rights of peoples termed “Indigenous” does include a right to live
89 Henry Wheaton, Elements of International Law (B Fellowes, 1836) 220: ‘the con-
stant and approved practice of nations shows that, by whatever name it be called,
the uninterrupted possession of territory, or other property, for a certain length
of time, by one State, excludes that claim of every other’. Logic would suggest
that the long and uninterrupted possession of territory by the original nations of
the North American continent and American hemisphere would exclude the
claims of a right of domination asserted by all other invading and colonising
nations. However, the principle of prescription expressed by Wheaton was
deemed by the powers of Christendom only to apply to Christian nations, and
was therefore deemed to be inapplicable to ‘heathen’, ‘infidel’ or ‘barbarous’
nations. See BA Hinsdale, ‘Right of Discovery’ (1888) 2(3) Ohio Archæological and
Historical Quarterly 363.
90 This way of framing the matter presupposes that ‘the domination of Indigenous
Peoples by states’ does indeed exist. Some might say that this presupposition is
being presented here as a taken-for-granted truth without proof.
36 Steven Newcomb
free from domination by states’, or if we say that the list does not include
such a right, it is necessary to identify the rationale being used to answer the
question. Since the issue is never typically raised, the rationale for either
answer is not readily identified.
Given the above ideas, another question arises that has not yet been posed
in international law literature with regard to the UN Declaration on the Rights
of Indigenous Peoples: is it possible for the ‘right’ of Indigenous Peoples to live
free from domination to be realised or ‘respected’ while those peoples are still
existing under the pattern and system of domination of a given state? Because
international law scholars have not specifically focused on domination as a
problem to be addressed with regard to Indigenous Peoples, there has been no
call by those scholars to regard the domination of Indigenous Peoples by states as a
violation of the right of Indigenous Peoples. It would seem that state actors
have been silently making the assumption that states have an unquestionable
right to maintain domination over ‘Indigenous’ Peoples. Then, again, it is
possible that by pretending such domination does not even exist states have
treated the domination of ‘Indigenous’ Peoples as something that does not
need to be addressed.
Conclusion
Domination and dehumanisation are useful categories of analysis in the field
of international law with regard to dominated nations and peoples termed
‘Indigenous’. If our goal is the emancipation of original nations and peoples
from systems of domination, then it seems certain that the UN Declaration on
the Rights of Indigenous Peoples is not the document that will enable us to
accomplish this aim. This is especially true given Article 46 of the declaration,
and a statist interpretation of that document designed to maintain the reign
of ‘states of domination’ over original nations.91 What is worse is the number
91 Eg on 16 October 2006, the governments of Australia, New Zealand and the

United States made a joint intervention at the United Nations opposing the UN
declaration. Among other points made in the document, we find:
There is no definition of ‘indigenous peoples’ in the text. The lack of defin-

ition or scope of application within the Chair’s text means that separatist or
minority groups, with traditional connection to the territory where they
live – in all regions of the globe – could seek to exploit this declaration to
claim the right to self-determination, including exclusive control of their
territorial resources. And this text would allow them to wrongly claim
international endorsement for exercising such rights.
‘Statement by NZ Ambassador Rosemary Banks on Behalf of Australia, New

Zealand and the United States on the Declaration on the Rights of the Indigen-
ous Peoples’ (USUN Press Release No 294(06), 16 October 2006) 2. (This
document is on file with the author.)
of Indigenous Peoples’ representatives who insist on interpreting the UN

Declaration on the Rights of Indigenous Peoples in a manner that only serves to
reinforce and maintain existing patterns of state domination, while altogether
ignoring the need to call for an end to the domination of Indigenous Peoples
by states.
Chapter 3
The ‘natural’ law of nations:

society and the exclusion of
First Nations as subjects of
international law
Marcelle Burns
Introduction
‘Society’ has been identified as a foundational concept in the development of
international law, defining both state sovereignty and membership of the
family of nations.1 Antony Anghie, for example, argues that society was a
central concept shaping the emergent Eurocentric international legal order as
it shifted from its foundations in natural law based on transcendental and
universal values towards a scientific, positivist framework.2 The Eurocentric
construct of society, and the way it shaped the fundamental elements of
(public) international law, had serious consequences for First Nations. As
Anghie argues, nineteenth-century positivist international law devised a
number of strategies to exclude non-Europeans from the emerging inter-
national legal order: first, by creating a distinction between so-called civilised
and uncivilised peoples; and, second, by only admitting peoples who met
European standards of civilisation as members of ‘international society’, and
thereby linking international legal status to a ‘cultural distinction’.3 So, for
Anghie, sovereignty and international law were constituted through colonialism,
in ways that excluded non-European peoples as subjects of international law.4
This characterisation does not, however, fully explain the significance of
society, nor how it shaped sovereignty and sovereign power.
Anghie does not identify precisely how the positivists put the concept of
society to such use, nor does he examine the crucial link between the nineteenth-
century positivists’ preoccupation with society and the work of their natural
law predecessors. This chapter addresses these concerns to argue that the natural
law origins of European international law, and in particular the work of Francisco
de Vitoria (1483–1546) and Hugo Grotius (1583–1645), was grounded upon
the concept of society in ways which constructed First Nations peoples, as

(Cambridge University Press, 2004) 59.
2 Ibid 48.
3 Ibid 57–8.
4 Ibid 38.
Society and the exclusion of First Nations 39
Irene Watson says, as ‘special objects’ within the emerging Eurocentric

international legal order.5
Leading texts on Indigenous Peoples and international law tend to focus pri-
marily on Vitoria, and pay little attention to how Grotius also shaped the position
of Indigenous Peoples within the nasceant colonial regime.6 First, they critique the
Grotian theory of just wars for the support it provided to colonialism,7 while
giving very little attention to Grotius’ vision of sovereignty and sovereign power,
which operates to exclude Indigenous Peoples as fully fledged subjects of interna-
tional law. Second, Grotius is also noted for his theory of property, which accord-
ing to Robert Williams Jr is constructed in contrast to a mythical ‘primitive
hunter-gatherer state’.8 While James (Sakej) Youngblood Henderson also credits
Grotius with articulating the first comprehensive theory of international law,9 he
does not explore his work on society and the scope and nature of sovereign power.
In this chapter I aim to show that the concept of society was central to the
formative natural law theories of international law, influencing who was deemed
to hold sovereign power, the rights flowing from sovereignty, and as a con-
sequence the way that Indigenous Peoples were positioned within the developing
Eurocentric international legal order. I will do so by examining the work of
Francisco de Vitoria, and also how Hugo Grotius extended Vitoria’s work in
important ways. I will show how society functions within their work to create a
law of nations which was constructed to support European colonial expansion
and the domination of Indigenous people, which informed the positivist
tradition of international law that was to follow.
The natural law context of the ‘law of nations’

Francisco de Vitoria and Hugo Grotius are widely acknowledged as two of the
founding scholars of ‘modern international law’, as it is understood within the
5 Irene Watson, ‘Aboriginal(ising) International Law and Other Centres of Power’

(2011) 20(3) Griffith Law Review 619, 631.
6 See generally Robert A Williams Jr, The American Indian in Western Legal
Thought: The Discourses of Conquest (Oxford University Press, 1990) 93–108;
S James Anaya, Indigenous Peoples in International Law (Oxford University Press,
2nd edn, 2004) 19; Anghie, above n 1, 19–30; and critique by Yasuaki Onuma,
‘Multi-civilizational International Law in the Multi-centric 21st Century World:
Transformation of West-Centric to Global International Law as Seen From a
Trans-civilizational Perspective’ in Peter Haggenmacher, Pierre-Marie Dupay
and Vincent Chetail (eds), The Roots of International Law (Martinus Nijhoff Pub-
lishers, 2014) 599, 629.
7 Williams, ibid; Anaya, ibid; Anghie, above n 1, 19–30.
8 Robert A Williams Jr, Savage Anxieties: The Invention of Western Civilization (Pal-
grave Macmillan, 2012) 203.
9 James (Sakej) Youngblood Henderson, ‘The Context of the State of Nature’ in
Marie Battiste (ed), Reclaiming Indigenous Voice and Vision (University of British
Colombia Press, 2000) 11, 15.
40 Marcelle Burns
European context.10 While the extent of their respective influence has been
questioned, it is beyond the scope of this chapter to debate these issues.11 I
focus on these two scholars because they both shared concerns, albeit for very
different reasons, about the morality and legality of the conduct of Christian
European nations with respect to non-Christian peoples, and because they
sought to address some disturbing questions arising from the European colo-
nial project. Their works emerged at a time when medieval Europe was
undergoing major transformation with the decline of religious authority, and
a shift towards secular forms of power.12 Ironically, this shift coincided with
an intense period of European colonial expansion under the purported
authority of a series of ‘papal bulls’ which granted Spain and Portugal rights
to partition the world.13 However, competition between aspiring European
colonial powers, together with Protestant scepticism at the papal authority
underpinning Spanish and Portuguese claims, created the need to develop a
secularised rationale for colonisation that no longer relied upon religious
justifications.14
Francisco de Vitoria (Vitoria), a Spanish Dominican theologian, wrote his
major reflections ‘On the American Indians’ (1539) and ‘On the Law of War’
(1539) some forty years after Christopher Columbus’ voyage of ‘discovery’ to
the Americas, and in response to reports of ‘bloody massacres and innocent
individuals pillaged of their possessions and dominions’ which raised ‘grounds
10 On Grotius’ significance as a founder of international law, see Arthur Nussbaum,

A Concise History of the Law of Nations (Macmillan, 5th edn, 1964) 113; Yasuaki
Onuma, A Normative Approach to War: Peace, War and Justice in Hugo Grotius
(Clarendon Press, 1993) 1; Benedict Kingsbury and Adam Roberts, ‘Introduc-
tion: Grotian Thought in International Relations’ in Hedley Bull, Benedict
Kingsbury and Adam Roberts (eds), Hugo Grotius and International Relations
(Clarendon Press, 1992) 1, 3. Peter Haggenmacher argues that Grotius’ primary
concern was to articulate a theory of just war with respect to extra-national
relations, rather than a theory of international law. Peter Haggenmacher, ‘On
Assessing the Grotian Heritage’ in TMC Asser Instituut, International Law and
the Grotian Heritage (TMC Asser Instituut, 1985) 150, 154. On Vitoria’s primary
influence, see Anghie, above n 1, 13–14; Williams, American Indian, above n 6,
98; Christopher R Rossi, Broken Chain of Being: James Brown Scott and the Origins
of Modern International Law (Kluwer Law International, 1998) 5. See generally
James Brown Scott, The Spanish Origins of International Law: Francisco de Vitoria
and His Law of Nations (Clarendon Press, 1934).
11 See generally Yasuaki Onuma, ‘When Was the Law of International Society
Born? An Inquiry of the History of International Law from an Intercivilizational
Perspective’ (2000) 2 Journal of the History of International Law 1, 5; Rossi, ibid 5.
Rossi notes that Scott was an ardent advocate of de Vitoria as the father of
international law, a position which was strongly refuted by Nussbaum, ibid
296–306.
12 Onuma, Normative Approach, above n 10, 8.
13 Ibid 271–2.
14 Ibid 8.
for doubting the justice of what had been done’.15 ‘On the American Indians’
questions the lawfulness of various claims to titles by the Spanish (including the
Christian doctrine of discovery)16 and also sets out what Vitoria regards as a
number of ‘just claims’ to title over Indian lands. ‘On the Law of War’ articulates
Vitoria’s theory of ‘just war’ in which he argues that the ‘possession and occupa-
tion of these [Indian] lands is most defensible in terms of the laws of war’.17
However, it is Vitoria’s lesser-known essay ‘On Civil Power’ (1528)18 which
establishes his vision of sovereignty that underpins his latter works and, import-
antly, defines sovereign power by invoking the concept of society. This essay has
been described by Anthony Pagden as ‘a defence of the Castilian monarchy, and
of monarchies in general, as the most perfect form of political community’.19
In contrast, Hugo Grotius, a Dutch lawyer and jurist, started his treatise
The Law of War and Peace (1625) as part of a defence of the actions of the
Dutch East India Company, which captured a Portuguese vessel in the waters
off the East Indies, and in doing so challenged Portugal’s claim to exclusive
trading rights in the area based on the authority of the papal bulls.20 This
work was animated by a concern that:
Throughout the Christian world I have observed a lack of restraint in

relation to war, such as even barbarous races should be ashamed of; I
observed that men rush to arms for slight causes, or no cause at all, and
that when arms have once been taken up there is no longer any respect
for law, divine or human; it is as if, in accordance with a general decree,
frenzy had openly been let loose for the committing of all crimes.21
While Vitoria and Grotius had very different motivations, there was sub-
stantial overlap in their work. First, they both emphatically rejected the
Christian doctrine of discovery as legitimate grounds for colonial acquisition
of Indigenous Peoples’ lands.22 Grotius makes the point (with reference to
Vitoria) stating:
15 Francisco de Vitoria, ‘On the American Indians’ in Anthony Pagden and Jeremy
Lawrance (eds), Vitoria: Political Writings (Cambridge University Press, 1991)
231, 238.
16 Ibid.
17 Francisco de Vitoria, ‘On the Law of War’ in Anthony Pagden and Jeremy
Lawrance (eds), Vitoria: Political Writings (Cambridge University Press, 1991)
293, 295 (emphasis added).
18 Francisco de Vitoria, ‘On Civil Power’ in Anthony Pagden and Jeremy Lawrance
(eds), Vitoria: Political Writings (Cambridge University Press, 1991) 1.
19 Anthony Pagden, ‘Introduction’ in Anthony Pagden and Jeremy Lawrance (eds),
Vitoria: Political Writings (Cambridge University Press, 1991) xiii, xviii.
20 Hugo Grotius, The Law of War and Peace (Francis W Kelsey trans, Bobbs-Merrill,
1925) xiv–xv.
21 Ibid 20.
22 Vitoria, ‘On the American Indians’, above n 15, 265; Grotius, ibid bk 2, 22.9.
42 Marcelle Burns
[It is] Equally shameless … to claim for oneself by right of discovery

what is held by another, even though the occupant may be wicked, may
hold wrong views about God, or may be dull of wit. For discovery
applies to those things which belong to no one.23
For Vitoria, claims to title based on discovery were unjust because under his
law of nations discovery could only apply to unoccupied lands, and as the
lands in question clearly had an owner, such claims could not be allowed ‘any
more than it would if they had discovered us’.24 Vitoria concedes, however,
that titles based on discovery may have ‘some validity’ when considered in
conjunction with another claim, leaving open the possibility of acquiring title
over Indian lands on a different basis.25
Second, both Vitoria and Grotius also viewed as unjust wars or titles based
on the grounds of refusing to accept Christianity, because ‘unbelief’ was not
sufficient grounds to claim title or wage war.26 As a consequence, they
endeavoured to articulate a secularised law of nations, based on natural law,
which for Grotius was determined from the precepts of divine or Christian
law, as dictated by ‘right reason’, which was perceived as ‘manifest and self-
evident’, and therefore immutable and universal.27 Vitoria’s natural law was
(using Aquinas’ definition) ‘the participation in the eternal law by rational
creatures’, based on ‘reason and enlightenment’ as found in ‘the general con-
sensus of men’.28 However, what constitutes ‘right reason’ and ‘the general
consensus of men’ for Vitoria and Grotius is determined with reference to a
particularly Eurocentric and Christian canon of philosophical thought.29
Third, both Vitoria and Grotius place great significance on ‘rationality’ as a
precondition for recognition of sovereign power and consequent rights.
Vitoria argued that ‘barbarians’ were rational beings, evidenced by the fact
that ‘they have some order in their affairs: they have properly organized cities,
proper marriages, magistrates and overlords, laws, industries, and commerce,
all of which require the use of reason’.30 As rational beings they also possessed
‘true dominion, both public and private’,31 and also could be regarded as
‘legitimate’ sovereigns.32 Indeed, Vitoria’s characterisation of Indigenous
people as rational beings has been noted as one of his most significant
23 Grotius, ibid.
24 Vitoria, ‘On the American Indians’, above n 15, 264–5.
25 Ibid 265.
26 Ibid 270; Grotius, above n 20, bk 2, 40.8.
27 Grotius, above n 20, xl–xli.
28 Pagden, above n 19, xiv.
29 Williams, American Indian, above n 6, 101; Onuma, Normative Approach, above
n 10, 377.
30 Vitoria, ‘On the American Indians’, above n 15, 250.
31 Ibid 251.
32 Vitoria, ‘On Civil Power’, above n 18, 17–18.
contributions to international legal discourse.33 However, Vitoria also regarded

barbarians as ‘foolish and slow-witted’, which he argued may provide grounds
for ‘subjecting the Indians’ in other ways.34 Grotius also observes (with
reference to Vitoria) that ‘the view seems defensible that, if there exist any peoples
wholly deprived of the use of reason, these cannot have ownership, but merely for
charity’s sake there is due to them what is necessary to maintain life’.35 As
Williams and Anghie note, for Vitoria the natural law foundations and
purported universality of this emerging law of nations made it binding on all
peoples, with the attribution of reason to First Peoples also bringing them
within its jurisdiction.36 The purported universality of the law of nations also
extended to Indigenous Peoples, who were included within its framework, yet
also excluded and subjugated by it.37 The consequences for First Peoples of
being perceived as irrational will be explored further below.
Yet despite its apparent humanitarian and egalitarian foundations,38 the
naturalist law of nations developed by Vitoria and Grotius was also problem-
atic because it privileged European forms of social, legal and political orga-
nisation, and presented them not only as ‘exemplary’, but as universal.39 The
consequence for Indigenous Peoples was that failure to conform to ‘universal’
standards based on European Christian norms was viewed as irrational, pro-
viding grounds for denying Indigenous Peoples ‘rights’ to property and
sovereignty. The law of nations, as an emerging body of legal disciplinary
knowledge, constructed a subjugated position for Indigenous Peoples within
the Eurocentric international legal order. As I will argue, the concept of
society was central to this construction, being fundamental to how the
modern doctrine of sovereignty was conceived, and the scope and nature of
sovereign power.
The Eurocentric concept of society

Underlying Vitoria and Grotius’ vision of sovereignty and sovereign power
was a concept of society. According to Vitoria, societates, meaning a partner-
ship, is the natural form of human association, arising from the distinct
human characteristics of speech and reason, and the need for humans to live
together to fulfil their need for food, shelter, safety and security.40 For Vitoria,
33 Williams, American Indian, above n 6, 99.

35 Grotius, above n 20, bk 2, 22.10.
36 Williams, American Indian, above n 6, 100; Anghie, above n 1, 23.
37 Peter Fitzpatrick, Modernism and the Grounds of Law (Cambridge University Press,
2001) 173.
38 Seth Gordon, ‘Indigenous Rights in Modern International Law from a Critical Third
World Perspective’ (2006–07) 31(2) American Indian Law Review 401, 402.
39 Fitzpatrick, above n 37, 121.
40 Vitoria, ‘On Civil Power’, above n 18, 6–9.
44 Marcelle Burns
people enter partnerships due to the necessity of helping to bear each other’s
burdens, and so according to this logic ‘a civil partnership (ciuillis societas) is
the one which most aptly fulfils men’s needs’.41 As a creature of necessity,
society is not a human invention, but is founded in natural law, with the
consequence that the very ‘purpose and utility of public power are identical to
those of human society itself’.42 Indeed, Vitoria argues (with reference to Aristotle),
that men are ‘impelled by nature to seek society’, and that those who do not
‘should be counted as beasts’.43
For Grotius, the natural desire of society arises from the particular qualities
of humans, being speech and the ‘faculty of knowing and acting, according to
some general principles’.44 These qualities set humans apart from other living
beings, and find their deepest expression in the concept of society:
For Man is indeed an Animal, but one of a very high Order, and that
excels all the other Species of Animals much more than they differ from
one another; as the many Actions proper only to Mankind sufficiently
demonstrate. Now amongst the Things peculiar to Man, is his Desire of
Society, that is, a certain Inclination to live with those of his own kind,
not in any manner whatever, but peaceably, and in a community regulated
to the best of his understanding.45
According to Grotius, a person’s natural inclination is to live in society, not

merely out of self-interest, but because a person is ‘more perfect’ when their
actions are ‘designed for the service of another’.46 Grotius also posits that
municipal law stems from the need for people to form agreements and create
obligations, this being the reason why ‘bodies of municipal law have arisen’.47
Grotius argues that the ‘care of maintaining society, in a manner conformable
to the light of human understanding, is the fountain of right, properly so called’,
and includes respecting private property; fulfilling obligations and promises;
paying restitution for harm done; and an expectation of punishment if rights
are transgressed.48 Importantly, for Grotius ‘rights’ are constituted both in
and through society, because the mutual recognition and protection of rights is the
very essence of society itself. Rights are determined by the use of ‘reason’, with
anything contrary to reason being inconsistent with natural law.49 Society,
according to Vitoria and Grotius, is synonymous with public or civil power,
41 Ibid 8–9.
42 Ibid 9–10 (emphasis added).
43 Ibid 8.
44 Grotius, above n 20, vii.
45 Grotius, above n 20, vi.
46 Ibid vi.
47 Ibid 15.
48 Ibid viii.
49 Ibid ix.
and is the conceptual vessel through which rights are asserted and defended,
according to ‘reason’. Public power is exercised in the interests of society
which both constitutes and is constituted by law.50 In this sense, ‘society’
represents a distinctly Eurocentric mode of legal and political practice which
assumes the guise of universality under the rubric of an all-encompassing
natural law. Moreover, the concept of society and the notion of rights are
further refined to exclude non-European forms of political organisation, as
unworthy of sovereign status in the emerging Eurocentric international law.
Society and the nature of sovereignty

Vitoria and Grotius also express distinct preferences for certain forms of
society which they believe are most suitable for exercising sovereign power.
For Vitoria, it logically follows from the necessity of civil societies that ‘the
city (ciutias) is … the most natural community, the one which is more con-
formable to nature’.51 And for Vitoria, the perfecta communitas is not subject
to the will of another, ‘a perfect community or commonwealth [state] is
therefore one which is complete in itself; that is one that is not part of
another commonwealth, but has its own laws, its own independent policy,
and its own magistrates’.52 According to Vitoria, no society is self-sufficient
without ‘magistrates and authorities possessing executive power’.53 In
keeping with his role as advisor to the Castilian monarchs, Vitoria argues
that, ‘with all the most honoured and wise peoples of earth, the monarchy is
not merely equitable and just, but also of all forms of government the most
excellent and convenient to the commonwealth’.54 Here Vitoria links
society, community and commonwealth (state) as being the most perfect
forms of human partnership, and the monarchy as eminently suited to possessing
sovereign power.
Vitoria also maintains that non-Christian peoples may be legitimate sovereigns
because ‘there can be no doubt at all that the heathen have legitimate rulers
and masters’ (based on an analogy with pre-Christian secular forms of law
which did not rely on divine law for their legitimacy).55 And although
Vitoria affirms that non-Christian sovereigns shall not be deprived of their
kingship or power on the grounds of ‘unbelief’, they may be deprived of their
power, where they have ‘committed some other injustice’,56 such as preventing

51 Vitoria, ‘On Civil Power’, above n 18, 9 (emphasis added).
52 Vitoria, ‘On the Law of War’, above n 17, 301. Williams, American Indian, above
n 6, 116, refers to the Nys translation of Vitoria in which ‘state’ is substituted
for ‘commonwealth’.
53 Pagden, above n 19, xxii.
54 Vitoria, ‘On Civil Power’, above n 18, 20.
55 Ibid 17–18.
56 Ibid 18 (emphasis added).
46 Marcelle Burns
the spread of Christianity, or for ‘practising any nefarious custom or right’.57

Vitoria also identifies another possible ground for depriving Indigenous
Peoples of their title and sovereignty: the perceived mental incapacity of
‘barbarians’:
these barbarians, though not totally mad … are nevertheless so close to

being mad, that they are unsuited for setting up or administering a
commonwealth both legitimate and ordered in human and civil terms.
Hence they have neither appropriate laws nor magistrates fitted to the
task. Indeed they are unsuited to governing their own households (res
familiaris); hence their lack of letters, of arts and crafts (not merely liberal,
but even mechanical), or systematic agriculture, of manufacture, and of
many other things useful, or rather indispensable, for human use. It might
be therefore argued that for their own benefit the princes of Spain might
take over their administration, and set up urban officers and governors
on their behalf, or even given them new masters, as long as this could be
proved to be in their interest.58
Indeed, Vitoria claims there are ‘scant differences between the barbarians
and madmen; they are little or no more capable of governing themselves
than madman, or indeed wild beasts’.59 Sovereign status is therefore conditional
upon conforming to Christian norms which if transgressed provide the justi-
fication for depriving non-Christian peoples of sovereign power. The potential
for non-recognition also exists where Indigenous Peoples are perceived as
lacking the capacity to govern according to human and civil terms. Here the
discursive production of an exemplary European society as the paragon of
political and legal organisation operates to exclude other forms of law as
simply unsuited to possessing or exercising sovereign power. While Vitoria
attributes to First Nations rights to sovereignty and property, these ‘rights’
are effectively denied to Indigenous people when they are perceived as lacking
the rationality either to realise or to sustain them. Here the positing of rights
is deployed, as Peter Fitzpatrick observes, to create a system of domination.60
A perceived lack of rationality points to a failure to administer a society in
civil and human terms. Thus society functions to prescribe the conditions of
sovereignty and sovereign power, and operates to exclude Indigenous Peoples
as fully-fledged subjects within the Eurocentric international legal order.
For Grotius ‘the common subject of supreme power is the State’ which he
regards as ‘a perfect society of men’.61 The state constitutes ‘An association in
57 Vitoria, ‘On the American Indians’, above n 15, 284–8.

58 Ibid 290. Williams, American Indian, above n 6, 104 and 114 refers to the Nys
translation which uses the term ‘non-intelligence’ rather than ‘mad’.
59 Vitoria, ibid 290–1 (emphasis added).
61 Grotius, above n 20, bk 1, 3.7 (emphasis added).
which many fathers of families unite into a single person and the state gives
the greatest right to the corporate body over its members. This in fact is the
most perfect society.’62 Sovereign power is indivisible, being ‘not subject to the
legal control of another’.63 According to Grotius, sovereignty is also evidenced
by certain types of legal institutions and processes, for example ‘laws, courts,
and public officials’,64 and the existence of ‘tribunals and the other agencies’
through which citizens and foreigners alike may obtain their rights.65 While
Grotius affirms that the ‘common subject’ of sovereignty is the state, sover-
eignty may be exercised in different ways: by a government of the people, a
constitutional government, or by individuals with supreme power.66
Vitoria’s qualified acceptance of Indigenous sovereignty is, however, radic-
ally subverted by Grotius whose vision of sovereignty explicitly privileges and
sanctions imperialism. It excludes from sovereignty ‘peoples who have passed
under the sway of another people, such as the peoples of the Roman provinces’.67
Thus Grotius regards colonised peoples as lesser subjects of the law of nations,
stating: ‘For such peoples are not in themselves a state, in the sense in which
we are now using the term, but the inferior members of a great state, just as
slaves are members of a household.’68 And while Grotius recognises that sover-
eignty may be held by peoples under an ‘unequal alliance’ or treaty (for
example, conquered peoples subject to treaties), he concedes that in the
majority of cases the more powerful party ‘gradually usurps the sovereignty
properly so called’.69 Here, Grotius departs from the natural law origins of his
law of nations to articulate a notion of sovereignty which is more positivistic
and ‘factual’ in the sense of explaining just how things are.70 In doing so,
Grotius provides tacit acceptance to forced invasion and colonial imposition as
legitimate forms of territorial acquisition, which once asserted are accepted as
faits accomplis. Hence, First Nations’ sovereignty is not perceived as indepen-
dent and self-sufficient in the same way that European sovereignty is: it is
constructed as something lesser, and vulnerable to European intervention and
colonial control.
Under the normative framework established by Vitoria and Grotius, only
‘civil’ societies constitute sovereign societies, and they are exemplified by
European legal and political institutions such as courts and public officials
exercising executive power. While Vitoria affords some recognition of First
Nations as sovereign peoples, it is conditional upon adopting Christian values
62 Ibid bk 2, 5.22 (emphasis added).

63 Ibid bk 1, 3.7.
64 Ibid bk 1, 3.6.
65 Ibid bk 3, 2.2.
66 Ibid bk 2, 3.8.
68 Ibid (emphasis added).
69 Ibid bk 1, 2.21.
48 Marcelle Burns
and having institutions to administer the ‘human and civil needs’ of the
society thus constituted. Grotius further entrenches this division, denying
sovereign status to peoples lacking European norms of political and legal
organisation. Even worse, however, Grotius’ law of nations legitimises colonial
incursions onto the lands of First Nations peoples, condones the gradual
usurpation of sovereign power and endorses it as a form of prescription. For
European nations, sovereignty is marked by independence and indivisibility.
In contrast, Indigenous sovereignty is vulnerable to colonial expansionary
interests, with First Nations constructed as objects to be governed within the
domestic sphere. The pattern of colonial entrapment thus ensured First
Nation people’s ‘domestication and containment’ within the municipal laws
of colonial nation-states,71 with the effect of nullifying First Nations’ inde-
pendent international legal status.72
International society and the ‘law of nations’

Grotius and Vitoria also posit society and the natural sociability of people as
evidence of the existence of a law of nations. For Vitoria, it is the binding
nature of civil law upon the legislator in his ideal society, ‘who should share
the burdens of the commonwealth’, that cements the authority of the law of
nations.73 He infers by corollary that there is a consensual law of nations,
which has the force of ‘positive enactment (lex)’ because:
The whole world, which is in a sense a commonwealth, has the power to

enact laws which are just and convenient to all men; and these make up
the law of nations. From this it follows that those who break the law of
nations, whether in peace or in war, are committing mortal crimes … No
kingdom may choose to ignore this law of nations, because it has the
sanction of the whole world.74
71 Watson, above n 5, 631.

72 The domestication and containment of First Nations within the state is exem-
plified in the notion of ‘domestic dependent nations’ as articulated by Chief
Justice Marshall of the United States Supreme Court in Cherokee Nation v State of
Georgia 30 US 1; 5 Pet 1 (1831). However, this limited status was denied to
Aboriginal peoples in Australia in R v Murrell (1836) 1 Legge 72; and later in
Coe v Commonwealth (1979) 53 ALJR 403, 409 in which Justice Gibbs stated that
‘it is not possible to say, as was said by Marshall CJ … that the Aboriginal
people of Australia are organised as a “distinct political society separated from
others”, or that they have been uniformly treated as a state … The contention
that there is in Australia an Aboriginal nation exercising sovereignty, even of a
limited kind, is quite impossible in law to maintain.’ This position was affirmed
in Coe v Commonwealth (No 2) (1993) 68 ALRJ 110, 115.
73 Vitoria, ‘On Civil Power’, above n 18, 40.
74 Ibid. A different translation of this passage also appears in Williams, American
Indian, above n 6, 116, with ‘state’ begin substituted for ‘commonwealth’.
Here, Vitoria invokes the notion of society as a civil partnership, to underpin

a consensual law of nations binding upon international society which may
enact laws for the common good of all. However, as I will argue below, what is
viewed as ‘just and convenient’, or for the ‘advantage’ of the great society of
states, is constructed from a particularly Eurocentric and Christian world view
which excludes other modes of lawfulness which do not fit the civil society
model.
For Grotius, the natural sociability of people inevitably leads to ‘mutual
relations of society’ which underpin natural law, in contrast to municipal law
which is based on mutual consent.75 Natural law, however, is also shaped by
‘expediency’, so for people to obtain the things necessary to ‘live properly’,
they must also ‘cultivate the social life’.76 Grotius argues by analogy that
municipal laws should also cater for expediency and those prescribing laws for
others must have some ‘advantage in view’.77 The common advantage of its
members is also advanced as the rationale for a consensual law of nations:
just as the laws of each state have in view the advantage of that state, so
by mutual consent it has become possible that certain laws should ori-
ginate as between all states, or a great many states; and it is apparent that
the laws thus originating had in view the advantage, not of particular
states, but of the great society of states. And this is what is called the law of
nations, whenever we distinguish that term from the law of nature.78
So for Grotius, the law of nations, although based on natural law, is created
from the consensus of a great many states which constitute the ‘great society
of states’ with the purpose of promoting the mutual advantage of its mem-
bers.79 As we have seen, however, Indigenous Peoples are excluded from this
‘great society’ as non-sovereign actors.
For Grotius, the international context is also distinguished from municipal
law because under the law of nations there are no ‘higher authorities’ so each
state is free to judge its own actions.80 And according to Vitoria, any prince
who wages just war becomes, ipso jure, ‘judge of the enemy and may punish
them judicially’.81 Therefore, within international society sovereign power
takes on a special significance as it implicitly includes the prerogative to
defend sovereign ‘rights’ through the waging of ‘just war’.82 According to
Grotius, to ‘violate another’s right’ within this mutually constituted system of
75 Grotius, above n 20, 15.

76 Ibid.
77 Ibid.
79 Ibid.
82 Grotius, above n 20, xxvi.
50 Marcelle Burns
society and rights is the very nature of injustice, so the preservation of ‘human
society’ itself is equated with the ‘proper business of justice’.83
With the historical emergence of the discipline of international law, civil
society is extrapolated to the extra-national level to posit the existence of an
international or ‘human society’. States are the primary subjects of inter-
national society, and the pursuit of their mutual advantage is its central
objective and purpose. For, as Fitzpatrick has observed, ‘there is a com-
plementary and constituent relation between international law and the nation,
a relation not simply consequent on the existence of nation. That relation
forms as an international society or community of nations.’84
While this emergent international law is ostensibly binding, having the
consensus of the ‘whole world’, First Peoples are excluded from membership
of international society because, by definition, they do not fulfil the pre-
requisite conditions for recognition. As Fitzpatrick has observed, this self-
proclaimed international society is constituted to pursue a colonising project,
bringing its determinate order and stability to an ‘uncertain world’.85 The law
of nations therefore affords considerable power to states to pursue their mutual
advantage in the interests of an international human society styled according
to Eurocentric norms. This seemingly unlimited power is most clearly
articulated in the theory of ‘just wars’ which, although not a central focus of
this chapter, will be outlined briefly because it reveals the ultimate ends of
this self-proclaimed Eurocentric international society, and the implications for
the positioning of First Nations within the order it creates.
Just wars: in the interests of ‘human society’

The power to wage public war was almost exclusively attributed to sovereign
states, or those exercising sovereign power on behalf of the state,86 with the
clear implication that non-state actors or those viewed as lacking sovereign
power could not lawfully wage a ‘just war’.87 This limitation had the effect of
83 Ibid xlv.
85 Ibid 182.
86 For Grotius, the right to wage public war can only be exercised by ‘one who
holds the sovereign power in the state’, above n 20, bk 1, 3.4. According to
Vitoria, the authority to declare war rests with the commonwealth, or a prince
exercising commonwealth authority, ‘On the Law of War’, above n 17, 300–1.
87 Grotius also distinguishes between wars waged between different peoples being
declared in the name of the state, as opposed to wars conducted by ‘brigands and
robbers’. He notes, however, that the latter may assume of a form of statehood
‘[i]f by the accessions of desperate men this evil grows to such proportions that it
holds lands, established fixed settlements, seizes upon states and subjugates
peoples, it assumes the name of a kingdom’. See Grotius, above n 22, bk 3, 2.2.
Here, the law of nations also sanctions the creation of states by non-peaceful
means.
rendering Indigenous resistance to colonial power not only unjust,88 but

contrary to the interests of international society itself.
For both Vitoria and Grotius, just wars may be waged to avenge injuries,89
recover property and to inflict punishment.90 For Grotius, the doctrine of just
war is also constituted in and through international society, and includes
actions necessary to secure a right. Grotius clarifies: ‘By right I mean that
which is strictly so called, denoting the power of acting in respect to [inter-
national] society only.’91
According to Grotius, such rights extend to, in the case of necessity, taking
things belonging to others; and the right of ‘innocent use’ of the property of
another, where there is no detriment to the owners.92 Most significantly,
‘innocent use’ includes a right of passage over lands to engage in commerce,
and a right of ‘temporary sojourn’.93 Indeed, Grotius regarded the right of
passage for the purpose of trade so highly that ‘No one, in fact, has the right
to hinder any nation from carrying on commerce with any other nation at a
distance. That such permission be accorded is in the interests of human society.’94
Vitoria also argues that there is a right to trade on the basis of ‘natural
partnership and communication’ (or ‘natural society and fellowship’) which
includes the right to ‘lawfully trade amongst the barbarians’.95 Vitoria con-
cludes that, even if these rights were not supported by natural law, they are
binding under the law of nations because ‘the consent of the greater part of the
world is enough to make it binding, especially when it is for the common good of
all men’.96 So, for Vitoria and Grotius, these rights are defendable in the
interests of ‘human society’ and the ‘common good of all men’. For Vitoria, if
the barbarians resist the exercise of these rights, the Spanish may defend
themselves with the use of force.97 However, if all efforts to secure peace and
safety fail, the Spanish may ‘treat them no longer as innocent enemies, but as
treacherous foes against whom all rights of war can be exercised, including
plunder, enslavement, deposition of their former masters, and the institution
of new ones’.98
88 Richard Tuck, ‘Introduction’ in Hugo Grotius, The Rights of War and Peace
(Richard Tuck ed, Jean Barbeyrac trans, Liberty Fund, 2005) ix, xxix–xxx.
89 Grotius, above n 20, bk 2, 2.1; Vitoria, ‘On the Law of War’, above n 17, 298.
90 Grotius, ibid bk 2, 1.2.2.
92 Ibid bk 2, 2.8–11.
93 Ibid bk 2, 2.8–15.
95 Vitoria, ‘On the American Indians’, above n 15, 279. Williams, American Indian,
above n 6, 101 cites the Nys translation which calls this ‘natural society and
fellowship’.
96 Vitoria, ibid 281.
97 Ibid 281–2.
98 Ibid 283.
52 Marcelle Burns
For Grotius, to hinder the right to trade and commerce ‘is at variance with
the nature of society’ itself.99 Here, he posits the right to trade as the basis of
wide-ranging rights in the interests of human society, with such interests
constructed through a European, mercantile perspective.
As mentioned previously, Vitoria also viewed as just claims to title for the
purpose of defending the innocent against tyranny, including ‘practising any
nefarious custom or rite’, even if consensual.100 In effect, this ground enabled
the Spanish to claim just title based on a Christian world view of what was
natural and right against the voluntary will of Indigenous peoples – a somewhat
ironical position. Anghie identifies this as an ‘extraordinary powerful right of
intervention’, which had the effect of universalising Spanish cultural
norms.101 For Grotius, it was permissible to wage a just war against those
who offend against the law of nature because ‘kings’ have the right to punish
those who injure not only their subjects but also those who ‘excessively violate
the law of nature or nation in regard to any persons whatsoever’.102 This right
is considered consistent with the ‘liberty to serve the interests of human society,
through punishments’ which lies in the hands of sovereigns, being ‘them-
selves subject to no one’.103 As Richard Tuck argues, on this view the prac-
tices of non-Europeans constitute breaches of the law of nature, highlighting
the ‘interventionary character’ of Grotius’ theory, which replicates the justifi-
cations for the Christian crusades of the past.104 Here, Grotius defines acts
which offend against the law of nature, including the rights of free trade and
passage, as contrary to the interests of human society at large. Thus the pres-
ervation of human society itself, in terms dictated by a Eurocentric Christian
world view, provides a powerful rationalisation for colonial intervention and
claims to title. So despite the apparent rejection of religious rationales as the
basis for war and colonial expansion, both Vitoria and Grotius reinscribe
Christian values in their naturalist law of nations in ways that operate to
subjugate First Nations to European colonial rule.
Conclusion
Society was a central concept in the historical formation of the Eurocentric law of
nations based on natural law, being critical to how both sovereignty and inter-
national society were constructed in ways that excluded Indigenous Peoples as
subjects of international law. Within natural law theories, society has a dual

100 Ibid 287–8.
103 Ibid (emphasis added). Some examples of those who breach natural law cited by
Grotius include those who ‘act with impiety towards their parents’, ‘feed on
human flesh’, and ‘those who practice piracy’.
104 Tuck, above n 88, xxviii.
aspect in that it is used to define both the entities that hold sovereign power, and
the sum of its individual parts, which constitute ‘human society’. At the national
level, society is equated with civil society, and is entangled with the notion of
rights which are constituted in and through society. It functions as a basic ele-
ment of international law, with society being synonymous with the notions of
state, statehood and sovereign power. In the international context, the concept of
human or international society is constructed to serve the mutual advantage of its
member states, which are also the arbiters of what is perceived as ‘just’, according
to Christian Eurocentric norms.
Although the naturalist law of nations was constructed in universal and
humanitarian terms which served to include First Nations within its jur-
isdiction, it privileged European-style political and legal arrangements, and in
doing so excluded Indigenous Peoples from recognition within the emerging
international legal order. The supreme sovereign power of states also entailed
a monopoly over the right to wage ‘just wars’ and a meta-legal status in
judging the justice of their own actions, determining what was rational, rea-
sonable and necessary for the promotion of human society and for the common
good of all. The construction of these ‘rights’ served to legitimise state power
over Indigenous Peoples, bringing them within the colonial matrix of power.
The Grotian law of nations also provided tacit approval of colonialism, and
positioned First Nations people as objects to be governed within the domestic
sphere, depriving First Nations of the status of free and independent peoples.
In Foucauldian terms, the episteme105 of colonialism created the conditions
upon which to generate knowledge of a law of nations that operated to con-
struct First Nations as ‘special objects’ of international law. The concept of
society was central to the construction of this totalising discourse, which
effectively excluded Indigenous Peoples as sovereign subjects of international
law, and thus brought into being a new colonial world order.
105 Clare O’Farrell, Key Concepts, michel-foucault.com (30 October 2010) <http://
www.michel-foucault.com/concepts/index.html>.
Chapter 4
Long before Munich: the

American template for
Hitlerian diplomacy
Ward Churchill
The lesson of Munich is that the signature of Hitler is worth nothing.

(French Premier Édouard Daladier, August 1939)
On 29 September 1938, Great Britain, France, Italy and the Third Reich
entered into the Munich Agreement, allowing the latter to annex the
‘Sudetenland’, border areas of Czechoslovakia viewed by the nazis as being
part of Großdeutschland (Greater Germany).1 This, according to British Prime
Minister Neville Chamberlain, would resolve territorial issues arising from the
1919 Treaty of Versailles without military conflict,2 and thus guarantee ‘peace
for our time’.3 This was a decidedly misguided view based upon German
Chancellor Adolf Hitler’s personal assurances as well as ‘a signed statement
that he had no further territorial ambitions’ either in the Czechoslovakian
1 The term Großdeutschland refers to the areas of Europe encompassing all German-
speaking peoples. Subsequently formulated as Großdeutschland Lösung, it called
for their unification in a single state. As employed by the nazis during the
1930s, it referred to the area within the pre-1918 borders of Germany, plus
Austria and areas such as the Sudetenland, substantially populated by volksdeutsch
(‘ethnic Germans’). On the agreement itself, see Keith Eubank, Munich (Uni-
versity of Oklahoma Press, 1963); David Faber, Munich, 1938: Appeasement and
World War II (Simon & Schuster, 2008).
2 The Treaty of Versailles formally ended the First World War. It imposed terms
upon the defeated Germany including admission of guilt, payment of reparations,
demilitarisation, forfeiture of its overseas colonies and European ‘protectorates’, and
cessions of territory. Although the terms were less harsh than those imposed by the
Kaiserreich (Imperial Germany) on the new-born Soviet Union in the 1918 Treaty of
Brest-Litovsk, Germans overwhelmingly resented the ‘Crime of Versailles’. Hitler
capitalised on these sentiments by pledging to repudiate the Treaty and, after
coming to power, doing exactly that. See Alan Sharp, The Versailles Settlement
(Palgrave Macmillan, 2nd edn, 2008). On relative leniency, see Correlli Barnett,
The Collapse of British Power (Pan, 2002) 392, 316–9.
3 ‘Neville Chamberlain’s “Peace for Our Time” Speech’, 30 September 1938,
<https://eudocs.lib.byu.edu/index.php/Neville_Chamberlain‘s_%22Peace_For_
Our_Time%22_speech>.
American template for Hitlerian diplomacy 55
rump state or elsewhere in Europe.4 The Prime Minister’s explanation was

reinforced by Hitler’s speech delivered at Berlin’s Sportpalast on 26
September:
This is the last territorial claim which I have to make in Europe … I

have assured [Chamberlain] further that, and this I repeat here before
you, once this issue has been resolved, there will no longer be any further
territorial problems for Germany in Europe!5
Chamberlain should have known better. Hitler had already used the line
about having ‘no more territorial claims in Europe’ shortly after he repudiated
the ‘Versailles diktat’ by remilitarising the Rhineland on 7 March 1936.6
Indeed, since 1920, he had openly announced his intention to recover all the
territory stripped from the defeated Germany’s pre-war expanse at Versailles.7
Of the 25,000 square miles at issue, the Sudetenland comprised only one
small portion; the lion’s share had been allotted to the new-born Polish state.8
These stark realities led at least one British Foreign Ministry official to the
accurate conclusion that the nazi leader’s territorial ambitions would consist of
‘lulling his opponents to sleep with fair words to gain time to arm his people,
looking always to the day when he can throw off the mask and attack
Poland’.9 Hitler’s invasion/annexation of Austria – the so-called Anschluß
4 Richard S Thompson, Great Britain (Infobase, 2014) 78.

5 ‘Adolf Hitler – Great Speech in Sportpalast’, Neues Europa, 26 September 1938.
6 Quoted in A J P Taylor, The Origins of the Second World War (Hamish Hamilton,
1961) 133. Remilitarisation of the Rhineland was specifically forbidden under
Arts 42–44. It was also a flagrant violation of the 1925 Treaty of Locarno,
wherein international arbitration was required to alter territorial status along
Germany’s western border. See Gerhart Weinberg, Hitler’s Foreign Policy, 1933–
1939 (Enigma Books, 2013) 188; William Shirer, The Rise and Fall of the Third
Reich (Simon & Schuster, 1960) 294; Ian Kershaw, Hitler, 1889–1936: Hubris
(W W Norton, 1998) 587.
7 Abrogation of the Treaty of Versailles was announced on 24 February 1920, along
with ‘unification of all Germans in the Greater Germany’. The translated plat-
form appears as Doc 1708-PS in Office of United States Chief of Counsel for
Prosecution of Axis Criminality, Nazi Conspiracy and Aggression (US Government
Printing Office, 1946) vol 4, 208–11. On Hitler’s intent to regain not only
Germany’s ‘1914 borders’ but much more, see Adolf Hitler, Mein Kampf
(Houghton-Mifflin Sentry Editions, 1962) esp 650–5.
8 Poland was established under Arts 34 and 87–93 of the Treaty of Versailles.
Germany was required to cede part of East Prussia, Upper Silesia, and portions of
Posen and Pomerania to the new state under Arts 34 and 88. See generally,
T Hunt Tooley, National Identity and Weimar Germany (University of Nebraska
Press, 1997).
9 ‘Notes by Sir Maurice Hankey on Hitler’s External Policy in Theory and Prac-
tice, 24 October 1933’ in British Documents on Foreign Affairs (University Pub-
lications of America, 1993) 339.
56 Ward Churchill
(unification) – in March 193810 revealed the sheer falsity of the ‘fair words’
with which Hitler larded his action in the Rhineland six months before he
repeated them to Chamberlain in Munich.
The Anschluß placed Germany in the strategically advantageous position of
being able to attack Czechoslovakia from three directions simultaneously.
However, the Czechs, denied the right even to participate in the negotiation
that resulted in the dismemberment of their country, desperately warned
Britain and France – their supposed ‘guarantors’ – that ceding the Sudeten-
land to Germany would strip them of the extensive border defences they had
constructed since 1933 and leave them wide open to invasion.11 It took less
than six months for their fears to be realised.12 On 15 March 1939, in utter
disregard of the terms he had agreed to in Munich, Hitler ordered his troops
to occupy the remainder of Czechoslovakia, a task accomplished with virtually
no opposition.13 The only tangible response to this aggression by either
Britain or France was their military alliance with Poland,14 which, although
10 Articles 227–30 of the Treaty of Versailles precluded the unification of Germany

and Austria, but, emboldened by the success of his earlier repudiations of its
terms, Hitler unilaterally – and very publicly – ‘annulled’ any remaining
German obligations thereunder in February 1937. Hitler ordered his troops to
occupy the country, and then orchestrated a ‘plebiscite’ which claimed that 99.7
per cent of Austrians favoured the Anschluß Österreichs (‘eastern unification’). See
Faber, above n 1, 139–68; Jürgen Gehl, Austria, Germany, and the Anschluss,
1931–1938 (Oxford University Press, 1963).
11 On Britain and France as ‘guarantors of Czech interests’, see Eubank, above n 1,
33; on Czech protests concerning border defences, 169, 216; on German intent
to strip Czechs of fortifications, 162.
12 This would be no surprise to French premier Édouard Daladier who, in sharp
contrast to Chamberlain, returned from Munich purporting that ‘he did not
believe a word’ about Germany’s territorially benign intentions and predicting
that ‘within six months France and England would be face to face with new
German demands’. Nonetheless, he signed the agreement. See Paul N Hehn,
A Low, Dishonest Decade (A&C Black, 2005) 25.
13 German military planning for the seizure of what remained of Czechoslovakia
commenced less than two weeks after the Munich Agreement was signed. Once
the rump state was occupied, it was partitioned, with the western (Czech) por-
tion redesignated the Protektorat Böhmen und Mähren (Protectorate of Bohemia and
Moravia) and incorporated directly into the Reich. The eastern portion, dubbed
‘Slovakia’, was administered by a collaborationist government as a puppet state.
See US Chief of Counsel, above n 7, vol 1, 560–2, 577–80.
14 Polish–British Common Defense Pact, 25 August 1939. While both countries
pledged to guarantee Poland’s continuing independence on 31 March 1939,
France left it to Britain to negotiate the details. This took until 25 August, only
a week before the German invasion, which was far too late for its ‘allies’ to assist
the Poles. See Stephen Schuker, ‘End of Versailles’ in Gordon Martel (ed), Origins
of the Second World War Reconsidered (Routledge, 1999) 38. For the Polish view,
see Anita J Prazmowska, Britain, Poland and the Eastern Front, 1939 (Cambridge
University Press, 2004).
it had entered into a mutual nonaggression pact with Germany in 1934,15

was plainly next on Hitler’s list of targets.
Having instructed German foreign minister Joachim von Ribbentrop in April
to open covert negotiations with the Soviet Union for an altogether different sort
of ‘nonaggression’ pact,16 Hitler played for time, reiterating his boundless desire
for peace and limited territorial demands. When the pact with the Soviets was
finally signed on 23 August – in violation of Germany’s Anti-Comintern Pact
with Italy and Japan17 – it contained a secret protocol defining the respective
‘spheres of influence’ to be enjoyed by Germany and the Soviet Union and divid-
ing the whole of Poland between them.18 Hitler was still trying to lure the wes-
tern powers into something akin to a second Munich conference to ‘resolve’ the
issue only a week before his troops crossed the Polish border on 1 September.19
Since Hitler’s diplomatic subterfuge precluded his declaring war before
the invasion was launched, Germany stood in violation of international
customary law codified in the 1907 Hague Convention on the Laws of
War,20 and the 1928 Pact of Paris (‘Kellogg–Briand Pact’), by which it
renounced resort to military force as a means of resolving international dis-
putes.21 The same holds true with respect to the German invasions of neutral
Denmark, Norway, Netherlands, Belgium and Luxembourg in April and May
1940, and of Yugoslavia a year later, although in each of these cases an addi-
tional violation of the Hague Convention was involved.22 The onslaught against
the Soviet Union on 22 June 194123 violated not only the Hague Convention’s
15 German–Polish Agreement, 26 January 1934. See Anna M Cienciala, ‘The For-

eign Policy of Józef Piłsudski and Józef Beck, 1926–1939: Misconceptions and
Interpretations’ (2011) 56 Polish Review 111.
16 Aleksandr Moiseyevich Nekrich, Adam Bruno Ulam and Gregory L Freeze,
Pariahs, Partners, Predators (Columbia University Press, 1997) 107–11; Edward E
Ericson, Feeding the German Eagle (Greenwood Press, 1999) 46–55.
17 The Anti-Comintern Pact, between Germany and Japan, was signed on 6
November 1936. Exactly one year later, Italy signed. See Weinberg, above n 6,
342–6.
18 Molotov–Ribbentrop Pact, 23 August 1939. See Geoffrey Roberts, ‘The Soviet
Decision for a Pact with Nazi Germany’ (1992) 44 Soviet Studies 57; Roger
Moorhouse, The Devil’s Alliance (Bodley Head, 2014).
19 Office of US Chief of Counsel, above n 7, vol 1, 715.
20 Article 1 of the Hague Convention (III) Relative to the Opening of Hostilities requires
that the initiation of combat operations be preceded by either a ‘reasoned
declaration of war’ or an ultimatum attended by a ‘conditional declaration’.
21 General Treaty for Renunciation of War as an Instrument of National Policy, 94 LNTS
(entered into force 24 July 1929). See generally, Harold Josephson, ‘Outlawing
War: Internationalism and the Pact of Paris’ (1979) 3 Diplomatic History 377.
22 Article 1 of the Hague Convention (V) Respecting the Rights and Duties of Neutral
Powers and Persons in Case of War on Land provides that ‘the territory of neutral
Powers is inviolable’. Under Art 2 ‘belligerents are forbidden to move troops or
convoys of either munitions of war or supplies across the territory of a neutral
Power’.
23 See Stephen G Fritz, Ostkrieg (University Press of Kentucky, 2011) 42–4, 77–8.
58 Ward Churchill
prohibition of undeclared war, but the nonaggression pact into which Ger-
many entered less than two years before.
In the aftermath of Germany’s unconditional surrender in May 1945, with
the self-styled ‘Führer’ dead by his own hand, his ‘Thousand Year Reich’
reduced to smouldering ruins, and the surviving nazi élite mostly in custody,
the true depth of the duplicity embodied in Hitler’s diplomacy was revealed.
Since becoming head of state, everything he had said about his ‘territorial
ambitions’ was not only false but deliberately misleading. As was known by
his small circle of confidants, Hitler’s ambitions were never limited even to a
de facto repeal of the Treaty of Versailles and actualisation of Großdeutschland in
its fullest geographic sense.24
Rather, he remained committed to the broader goal set forth in Mein
Kampf: that of seizing additional Lebensraum (‘living space’) outside Ger-
many,25 defined during the meeting as including Czechoslovakia, Poland and
Lithuania, but subsequently expanded in a ‘general plan for the East’ to
encompass a vast and racially purified colonial dominion stretching to the
Volga and beyond.26 To this end, he routinely negotiated treaties with every
intention of violating them, purely as a means of gaining tactical advan-
tages, with attainment of each ‘limited’ territorial objective facilitating rea-
lisation of the next.27 All told, as was shown during the 1945–46
prosecution of the surviving nazi leadership at Nuremberg, Germany had
systematically violated no fewer than 69 separate treaties between 1933 and
1941, many of them repeatedly.28
24 There are a number of sources confirming this, not least the diaries kept by
propaganda minister Joseph Goebbels, records of his ‘dinner table conversations’
with – more accurately, monologues inflicted upon – his confidants, and the
testimonies of Göring, Rosenberg and others at Nuremberg. See, eg, Louis P
Lochner (ed), The Goebbels Diaries (Charter, 1948); Hermann Rauschning, The
Voice of Destruction (GP Putnam’s Sons, 1940); H R Trevor-Roper (ed), Hitler’s
Table Talk, 1941–1944 (Weidenfeld & Nicolson, 1953); G M Gilbert, Nuremberg
Diary (Da Capo Press, 1995).
25 Hitler, above n 7, 650–5. See Klaus Hildebrand, The Foreign Policy of the Third
Reich (B T Batsford, 1973) 15–21.
26 An initial draft of Generalplan Ost was prepared in 1940 and the final version
submitted to Hitler in May 1942. While all copies were apparently destroyed
prior to Germany’s surrender, the recovery of collateral documents has allowed
reconstruction of its contents. See Fritz, above n 23, 253–7; Alexander Dallin,
Germany Rule in Russia, 1941–1945 (Macmillan, 1957) 276–97.
27 Andreas Hillgruber, Germany and the Two World Wars (Harvard University Press,
1981) 52–3; Klaus Hildebrand, The Nazi Dictatorship: Problems and Perspectives of
Interpretation (Arnold, 2000) 136–43. Both authors overstate the case by arguing
that Hitler’s ‘ultimate goal’ was literally ‘world conquest’ rather than establish-
ing Germany as a world power. For a more balanced interpretation, see Mark
Mazower, Hitler’s Empire (Penguin Press, 2008) 2–5, 581–5.
28 See Office of US Chief of Counsel, above n 7, vol 1, 651–72, especially 652.
Hitlerian diplomacy was inherently violative of the hallowed principle of

pacta sunt servanda (‘treaties are to be obeyed’) and thus delicti juris gentium,
an offence – or, more accurately, a lengthy series of offences – against the
law of nations.29 Given the motives underlying the pattern of nazi treaty
violations, moreover, it was held to be not merely unlawful but criminal, a
‘Crime Against Peace’. This, as defined in the 1945 London Charter of the
International Military Tribunal convened to sit in judgment at Nuremberg,
consists of the ‘planning, preparation, initiation or waging of a war of
aggression, or a war in violation of international treaties, agreements or assur-
ances, or participation in a common plan or conspiracy for the accomplish-
ment of any of the foregoing’.30
To frame the charge in his opening statement to the tribunal, US Supreme
Court Justice Robert H Jackson, who served as his country’s chief prosecutor
during the trial, first quoted Hitler’s 23 November 1939 declaration to his
military commanders: ‘Agreements are to be kept only as long as they serve a
certain purpose.’31 He then rehearsed several Treaty violations knowingly
committed by the defendants while planning and waging the German war of
aggression, concluding that ‘International Law, natural law, German law, any
law at all was to these men simply a propaganda device to be invoked when it
helped and ignored when[ever] it condemned what they wanted to do’.32
The case ended on 1 October 1946, with the convictions of several defendants
for conspiring to wage aggressive war and crimes against peace, in significant
part because of their conscious participation in Hitler’s wholesale subversion
of the treaty-centred legal regime of international order.33 Despite the scale of
the crimes against humanity at issue in the Nuremberg proceedings, and
the tribunal’s acceptance that the newly named crime of genocide had been
perpetrated against several peoples,34 it was adjudged that crimes against
29 On the force of the principle in customary international law, see Hans Wehberg,
‘Pacta Sunt Servanda’ (1959) 53 American Journal of International Law 775.
30 Office of US Chief of Counsel, above n 7, vol 1, 5 (emphasis added). See also
‘War Crimes: IV. Violation of Treaties and Methods of Punishment’ (1945) 22
Bulletin of International News 299.
31 Office of US Chief of Counsel, above n 7, vol 1, 161. Reichsmarschall Hermann
Göring was far more blunt, responding to Jackson’s opening statement with the
off-record observation that he himself had ‘considered your treaties … so much
toilet paper’. Quoted in Gilbert, Nuremberg Diary, above n 24, 67.
32 Ibid 161–2.
33 Trial of the Major War Criminals before the International Military Tribunal (Inter-
national Military Tribunal, 1948) vol 22, 524–87.
34 It is generally contended that, since the word itself did appear therein, the crime
of genocide was not at issue in the Nuremberg verdicts. It will be noted, how-
ever, that, in the indictment, commission of ‘deliberate and systematic genocide’
was subsumed under the broader heading of ‘crimes against humanity’. The term
was periodically employed during the trial to describe the nature of the offences
perpetrated by given defendants, and British assistant prosecutor Hartley Shaw-
cross devoted a considerable portion of his summation to detailing the ‘horrible
60 Ward Churchill
peace – planning, preparing and initiating aggressive war in violation of

treaties – constituted ‘the supreme international crime’.35 Although the reality
was obviously far more complex, the term ‘Munich’ was cast as a convenient
signifier, indicating the entire record of criminality embodied in Hitlerian
diplomacy and the corresponding record of diplomatic ‘appeasement’ of
France and especially Britain which arguably enabled the nazis’ early successes
and the catastrophe that followed.36
The US progenitor
They made us many promises, more than I can remember. But they only kept
one. They promised to take our land, and they took it.
(Maȟpíya Lúta (Red Cloud), Oglala Lakota, 1882)
While it remains a mainstay of ‘responsible’ historiography that the nature

and magnitude of nazi criminality was both unprecedented and unparalleled,
such a view is not merely inaccurate but Eurocentric in the extreme.37
As Aimé Césaire observed only five years after the collapse of the Third Reich,
the nazis did nothing new or especially different apart from the fact that
what they did was done in Europe, to Europeans.38 Hitler’s real crime, he
policy of genocide’ implemented by the defendants. Hence, insofar as nothing to

the contrary was said in the verdicts, and since facts recited by Shawcross in
connection with his use of the term were frequently reiterated in the tribunal’s
findings of guilt, those convicted of crimes against humanity were concomitantly
convicted of genocide as well. See Trial of the Major War Criminals, vol 2, 45–6;
vol 17, 61; vol 19, 497–515.
35 Trial of the Major War Criminals, vol 22, 427.
36 Although Winston Churchill had much to say on the topic during the late
1930s, probably the strongest early articulation of the theme was in Victor
Gollancz et al, Guilty Men (Faber & Faber, 1940), co-authored by Michael Foot,
Peter Howard and Frank Owen under the collective pseudonym CATO.
Churchill made the case more thoroughly in his The Gathering Storm (Cassell,
1948). A J P Taylor then advanced it as a historical ‘truth’ in his 1961 Origins of
the Second World War, above n 6; a view fleshed out in Martin Gilbert, The Roots
of Appeasement (Weidenfeld & Nicolson, 1966); Cameron Watt, How War Came
(Pantheon, 1989); Frank McDonough, Neville Chamberlain, Appeasement and the
British Road to War (Manchester University Press, 1998). For recent elaborations,
see Faber, above n 1; R Gerald Hughes, ‘The Ghosts of Appeasement: Britain
and the Legacy of the Munich Agreement’ (2013) 48 Journal of Contemporary
History 688.
37 A cornerstone of this contention has long been the supposed ‘phenomenological
uniqueness’ of the nazi judeocide. For firm rebuttals, see David E Stannard,
‘Uniqueness as Denial: The Politics of Genocide Scholarship’ in Alan S Rosen-
baum (ed), Is the Holocaust Unique? (Westview Press, 1996) 163; Martin Shaw,
What Is Genocide? (Polity Press, 2nd edn, 2015) esp 17, 55.
38 Aimé Césaire, Discourse on Colonialism (Joan Pinkham trans, Monthly Review
Press, 2000) [trans of Discours sur le colonialism (first published 1950)].
argued, ‘is the crime against the white man, the humiliation of the white
man, and the fact that he applied to Europe colonialist procedures which until
then had been reserved exclusively for the Arabs of Algeria, the “coolies” of
India, and the “niggers” of Africa’.39
Césaire held that those engaged in reconstructing the West’s imperial
dominions were simultaneously fabricating an elaborate web of philosophical/
scientific/scholarly ‘interpretations’ to conjure the illusion that nazism was an
‘aberration’, or at least ‘anomalous’.40 They were, he argued, seeking to
‘absolve’ the functional equivalents of the nazi scourge they themselves had
‘cultivated’ and for which ‘they were responsible’, aspiring to restore the com-
fort of a time when they could ‘shut their eyes to [and] legitimize it’ because it
would be imposed only in the overseas colonies, upon ‘non-European peoples’
long viewed by Europeans as racial inferiors.41 In this squalid endeavour,
Césaire concluded, they were busily ‘chew[ing] over Hitler’s vomit’.42
The psycho-intellectual crux of the matter has always resided in denial.43
As erstwhile nazi legal theorist Carl Schmitt correctly diagnosed the situation
in 1953, one of the more significant outcomes of ‘Hitler’s War’ was a shift in
‘The West’s’ centre of gravity from Europe to its settler colonial offspring in
North America, especially the United States.44 Therefore, it is unsurprising
39 Ibid 36.
40 Thomas Mann pointed the way when he argued that the very idea of ‘Nazi cul-
ture’ was an oxymoron, a term that should be used ‘only in quotation marks’,
and that nazism itself should be viewed as an ‘isolated historical anomaly’, ‘no
more than an unfortunate interlude’, ‘a period of night and winter’. As one
observer has astutely framed the long-term result of such intellectual evasion, a
‘common understanding of Nazism’ is that it was ‘a major anomaly of human
history, a barbarous regression into pre-modern history … a unique, sudden,
incomprehensible, or “typical German” manifestation of demonic evil’, the last
being a ‘very popular representation of Nazism … [T]he “abnormalization” of
Nazism as a demonical aberration can be [and is being] used today by scientists
[and others] to establish a complete intellectual and social discontinuity between
Nazi and contemporary science’, politics, legality, historiography, art, philosophy
and so on. Didier Pollefeyt, ‘The Significance of Nazi Eugenics for Medical
Ethics Today’ in Michael Alan Signer (ed), Humanity at the Limit (Indiana Uni-
versity Press, 2000) 250, 250. Mann is quoted in Pamela M Potter, Art of Sup-
pression (University of California Press, 2016) 70. The classic rebuttal of the
notion of nazism’s evil ‘singularity’ is, of course, Hannah Arendt, Eichmann in
Jerusalem (Viking Press, 1963).
41 Césaire, above n 38, 36.
42 Ibid 63.
43 See Stanley Cohen, States of Denial (Polity Press, 2001) esp 1–18, 117–39, 278–
95. Relatedly, see Joachim J Stavelsberg and Ryan D King, American Memories
(Russell Sage Foundation, 2013); Alexander Laban Hinton (ed), Hidden Genocides
(Rutgers University Press, 2014).
44 Indeed, ‘America’ – that is, the United States – has always ‘claim[ed] to be the
true Europe’. In the aftermath of the Second World War, it actually emerged as
such, at least figuratively, since ‘only the United States [was] capable’ of
62 Ward Churchill
that denial in its most acute form has prevailed in the United States. Every
uncomfortable reality has been expunged from the country’s officially sanc-
tioned historical narrative,45 and, where that proves impossible, they are
carefully sanitised, trivialised and otherwise ‘contained’.46 Those venturing
analyses that transgress the closely drawn parameters of ‘reputable scholarship’
find their work, no matter how well argued and supported, perpetually
branded ‘controversial’ while concerted efforts are mounted to discredit the
material and/or its author(s).47
Constructing a plausible narrative through which to deny the ‘Nazi con-
nections’ to US history has been problematic.48 Hitler’s explanation in Mein
Kampf was that his intended conquest of Lebensraum in Eastern Europe would
be based on that accomplished by the ‘mostly Germanic’ settlers of the
‘upsurging American continent’ in their westward drive ‘from sea to shining
sea’.49 Nor was this the only time he had pointed out such linkages. He had
informed his high command in October 1941 that ‘Our Mississippi must be
the Volga’, and a bit later that ‘in the east a similar process will repeat itself
for the second time as in the conquest of America’.50 German troops in the
east, he declared, had ‘a duty to look upon natives as Redskins’, and to conduct
themselves as their US predecessors had during ‘the struggle in North
America against the Red Indians’,51 wherein, he contended, ‘millions of redskins
[were] shot down to a few hundred thousand’.52
asserting ‘England’s former domination’. Carl Schmitt, The Nomos of the Earth in
the International Law of Jus Publicum Europaeum (Telos Press, 2003) 291, 354–5.
45 The hub of official sanction resides in control over what children are – and are
not – taught through the country’s system of compulsory ‘education’ in both
assigned textbooks and classroom instruction. See, eg, Gary B Nash, Charlotte
Crabtree and Ross E Dunn, History on Trial (Alfred A Knopf, 1997).
46 See Edward T Linenthal and Tom Engelhardt (eds), History Wars (Henry Holt,
1996); Ellen Schrecker (ed), Cold War Triumphalism (New Press, 2004).
47 My personal experience in this regard is extensive, and I am by no means alone.
See Don Eron, Suzanne Hudson and Myron Hulen, ‘Colorado Conference of the
Association of American University Professors Report on the Termination of
Ward Churchill’ (2012) 3 Journal of Academic Freedom <https://www.aaup.org/
sites/default/files/ConferenceReport.pdf>. More broadly, see Valerie Scalamburio-
D’Annibale, Cold Breezes and Idiot Winds (Sense, 2011); Henry Giroux, Neoliber-
alism’s War on Higher Education (Haymarket Books, 2014).
48 The phrase in quotation marks is borrowed from the title of Stefan Kühl, The
Nazi Connection (Oxford University Press, 2002).
49 Hitler’s profession of admiration for the example set by the United States, and
his intention to emulate it, are scattered throughout Mein Kampf, above n 7, but
see esp 286, 641–55, 664. The passage ‘from sea to shining sea’ is from the
iconic 1910 song ‘America the Beautiful’ and is used here for effect. It does not
appear in Mein Kampf.
50 Quoted in Werner Jochmann (ed), Adolf Hitler (Knaus, 1980) 78; Ian Kershaw,
Hitler, 1936–1945: Nemesis (W W Norton, 2000) 434–5.
51 Quoted in Trevor-Roper, above n 24, 55, 469.
52 Quoted in Ian Kershaw, Fateful Choices (Penguin Press, 2007) 387.
Reichsmarschall Hermann Göring not only asserted that Germany had

merely followed the example set by the United States, but that it had
been fully entitled to do so.53 Foreign minister Ribbentrop argued that the
methods employed by nazis to secure Lebensraum differed little from those
of the United States, which, under the rationale that they were ‘an inferior
race’, had routinely ‘slaughtered the Indians’ as a means of acquiring their
lands.54 By mid-1946, hints that the ‘extinction of the Red Indians’ might
well be understood as genocide in the same sense as the nazi ‘reduction’ of
Slavic untermenschen (subhumans) in Eastern Europe had begun to find their
way into mainstream British coverage of the Nuremberg proceedings.55
Comparisons between US and nazi policies were voiced in congressional
testimony.56
In view of the extent to which such revelations might undermine the con-
trived and greatly ‘exaggerated sense of innocence’ with which the American
self-concept has always been infused,57 official abjuration at the highest
level was deemed imperative. Hence, in mid-August 1946, before the first
verdicts were read at Nuremberg, President Harry Truman publicly
advanced an outright historical fabrication intended to make it ‘perfectly
clear’ that the nazi and US approaches to territorial expansion had nothing
in common:
[While] many men and women, here and abroad, have failed to recognize
[it,] in our transactions with the Indian tribes we have at least since the
Northwest Ordinance of 1787 set for ourselves the standard of fair and
honorable dealings, pledging respect for Indian property rights. Instead
of confiscating Indian lands, we have purchased from the tribes that once
53 ‘After the US gobbled up California and half of Mexico, and we were stripped
down to nothing, territorial expansion suddenly becomes a crime.’ Quoted in
Gilbert, Nuremberg Diary, above n 24, 66.
54 Ibid 152.
55 For the phrase quoted, see R W Cooper, The Nuremberg Trial (Faber & Faber,
1947) 109.
56 Attorney Ernest Wilkinson, for instance, referred to Hitler’s having ‘invoked the
treatment of Western Indians during the period of “manifest destiny” … as
justification for the Nazi invasion[s] of Czechoslovakia and Poland to gain more
lebensraum’. Roy L Brooks, When Sorry Isn’t Enough (New York University Press,
1999) 262, citing US House of Representatives, Creation of Indian Claims Com-
mission: Hearings Before the Committee on Indian Affairs, 108.
57 On American ‘exaggerated innocence’ as embraced by ‘good Americans’ in an
entirely relevant context, see Stuart Creighton Miller, ‘Benevolent Assimilation’:
The American Conquest of the Philippines, 1899–1903 (Yale University Press, 1982)
esp 1, 253–67. A broader analysis is provided in Barry Spector, Madness at the
Gates of the City (Regent Press, 2010). Also see Debra B Bergoffen, ‘9/11:
America and the Politics of Innocence’ in Dennis J Schmidt (ed), Difficulties of an
Ethical Life (Fordham University Press, 2012) 72–87.
64 Ward Churchill
owned this continent more than 90 percent of our public domain, paying
them approximately 800 million dollars in the process.58
Truman, of course, hedged his bets, acknowledging that in the process of

acquiring its continent-spanning dominion the United States had no doubt
‘made some mistakes and occasionally failed to live up to the precise terms of
our treaties and agreements with some 200 tribes’.59 That being so, he con-
tinued, the federal government had established a commission to effect ‘the
final settlement of all outstanding claims’ by said ‘tribes’ against the United
States for its wrongful taking of their lands.60
The claim that the United States had only ‘occasionally’ violated ‘the precise
terms’ of its treaties with American Indians was a blatant falsehood. In fact, the
country had effectively been in violation of all such treaties since 1903, when,
in its Lone Wolf opinion, the Supreme Court assigned the federal government
‘plenary power’ over Indians, including the prerogative of retroactively – and
unilaterally – altering their ‘precise terms’, or otherwise exempting itself from
complying with them.61 Similarly, far from having ‘purchased’ its ‘public
domain’ from ‘the tribes that once owned’ them for the sum of ‘800 million
dollars’, it had been officially estimated as recently as 1943 that at least
$3 billion would be required to settle the claims then known to be pending.62
In announcing formation of the Indian Claims Commission (ICC), Truman also
neglected to mention that Congress had been adamantly refusing to establish any
such entity since 1910,63 abruptly reversing course only when comparisons to the
58 Statement by the President on Signing the Bill Creating the Indian Claims
Commission, 13 August 1946, in Public Papers of the Presidents of the United States
(US Government Printing Office, 1962) 414.
59 Ibid. Truman’s reference to ‘treaties and agreements with 200 tribes’ is ambiguous
at best. For the texts of the 369 ratified treaties compiled at the time his statement
was made, see Charles J Kappler, Indian Treaties, 1778–1883 (Interland, 1972,
reprint of 1904 original). The texts of an additional 31 omitted by Kappler are
included in Vine Deloria Jr and Raymond J DeMallie, Documents of American Indian
Diplomacy (University of Oklahoma Press, 1999) vol 1, 181–232. This is quite apart
from the scores of ‘agreements’ mentioned by Truman.
60 Statement by the President, 13 August 1946. He was referencing the Indian
Claims Commission Act, 60 Stat 1049 (1946).
61 Lone Wolf v Hitchcock 187 US 553 (1903). For elaboration, see Blue Clark, Lone
Wolf v Hitchcock (University of Nebraska Press, 1994); Walter R Echo-Hawk, In
the Courts of the Conqueror Decided (Fulcrum Press, 2010) 161–86.
62 The estimate was submitted to Congress by Attorney General Francis Biddle,
who was at the time of Truman’s statement serving as US representative on the
International Military Tribunal. As attorney general, Biddle argued against set-
tling the American Indian land claims on grounds that paying even an amount
equalling much less than a fair price would be far too expensive. See US House
of Representatives, Creation of Indian Claims Commission, above n 56, 1466.
63 See Francis Leupp, The Indian and His Problem (Scribner’s, 1910) 194–6; US
House of Representatives, Subcommittee of the Committee on Indian Affairs,
Hearings on the Appropriations Bill of 1914 (64th Cong, 2nd sess, 1913) 99; Lewis
nazis’ territorial seizures began to gain traction. Federal courts had been stone-
walling efforts by Indians to be paid for confiscated lands since 1879;64 and
as recently as 1945, Supreme Court justice cum Nuremberg prosecutor Jackson
ruled that Indian land claims were ‘not compensable’.65 Nor did Truman note
that the ICC was explicitly precluded from returning land – no matter how it
had been taken – to the Indigenous Nation(s) from which it was seized,66 that
any amounts paid as compensation would be determined by federal authorities
subject to an endless variety of ‘offsets’ (deductions),67 or that the Justice
Department was charged with contesting each claim in every possible manner.68
It is clear that the ICC was neither ‘the greatest submission ever made by a
sovereign state to moral and legal claims’ nor a ‘pursuit of justice for its own
sake’, as one federal jurist was still insisting a quarter century after its
creation.69 Rather, it was conceived and structured to convey this (mis)impression
while pursuing a diametrically opposing agenda. During the first twenty years of
its operation the commission managed to ‘retire’ some $2 billion in claims,
while awarding cash payouts of only $87 million.70 The ICC nonetheless
Meriam, The Problem of Indian Administration (Johns Hopkins University Press,

1928) 805–11; John Collier, From Every Zenith (Sage Books, 1963) 294–9; The
Congressional Record (21 June 1937) esp 6058, 6241, 6246, 6261.
64 It was not until 1879 that US courts formally acknowledged that American Indians
were ‘persons’, and thus possessed with standing to bring legal actions. Doing so
with regard to land claims, however, required an Act of Congress granting permis-
sion to proceed in each case. Given this hurdle, only 39 such claims were pressed
between 1881 and 1923, none of them successfully. See US ex rel Standing Bear v
George Crook 25 Fed Cas 695 (CCD, Nebraska, 1879); Stephen Dando-Collins,
Standing Bear is a Person (Da Capo Press, 2005); E B Smith, Indian Tribal Claims
Decided in the US Court of Claims (University Publications of America, 1976).
65 Northwest Band of Shoshone Indians v US 324 US 335 (1945). See Felix S Cohen,
‘Indian Claims’ in Lucy Kramer Cohen (ed), The Legal Conscience: Selected Papers of
Felix S Cohen (Yale University Press, 1960) 264.
66 See Richard A Nielson, ‘American Indian Land Claims: Land versus Money as a
Remedy’ (1972) 25 University of Florida Law Review 308.
67 See Howard Friedman, ‘Interest on Indian Land Claims: Judicial Protection of
the Fisc’ (1970) 5 Valparaiso University Law Review 26; John R White, ‘Barme-
cide Revisited: The Gratuitous Offset in Indian Land Claims Cases’ (1978) 25
Ethnohistory 179; Russel Lawrence Barsh, ‘Indian Land Claims Policy in the
United States’ (1982) 58 North Dakota Law Review 7, 13, 18–23; at 18, Barsh
observes: ‘Commission awards frequently represented less than one percent of the
real value of the damages suffered by tribal claimants.’
68 Even those embracing the process acknowledged that the department was a
relentlessly ‘unsympathetic foe’, a ‘tough and clever opponent’ dedicated to
denying Indians any compensation wherever possible. See Harvey D Rosenthal,
Their Day in Court (Garland, 1990) 23, 32, 87.
69 Quoted in John Kobler, ‘These Indians Struck It Rich: The Utes’ Treaty Land’,
Saturday Evening Post, 6 September 1972, 132.
70 US Senate, Subcommittee on Indian Affairs of the Committee on Interior and
Insular Affairs, Hearings on S 307, A Bill to Amend the Indian Claims Commission
Act of 1946 (90th Cong, 1st sess, 1967) 74.
66 Ward Churchill
accomplished something of undeniable value: by the time of its dissolution in

1978, its efforts over a thirty-year period to document the legal basis of US
title to every portion of ‘the lower 48’ states clarified the extent to which
there was none:71
From the close of the American Revolution to 1900, the United States
took possession of more than two billon acres of land [belonging to]
indigenous … nations. Half of this area [not the ‘90 percent’ touted by
Truman] was purchased by treaty or agreement at an average price of less
than seventy-five cents per acre. Another 325,000,000 acres, chiefly in
the Great Basin area, was confiscated unilaterally by Act of Congress or
Executive Order, without compensation. An estimated 350,000,000 acres
in the contiguous forty-eight states … were claimed by the United States
without agreement or the pretense of a unilateral action extinguishing
native title.72
The 675 million acres – more than a million square miles – that the United
States had simply seized from Indigenous Nations,73 using whatever force
proved necessary, equals roughly one-third of the 48 contiguous states.74
Moreover, the charade embodied in the ICC’s effort to create an appearance
of legitimate title acquisition through the imposition of post hoc cash ‘set-
tlements’ did ‘no more [to] put things right’, in the words of American
Indian Movement leader Russell Means, ‘than if the Nazis had issued a
check to the Vichy government after the fall of Paris’.75 Legal scholar Vine
Deloria Jr essentially concurred, observing that, rather than resolving terri-
torial issues in favour of the United States, ‘in an illegal taking by the
government the land title of the tribe remains intact’ unless the Indians
71 See generally, Jerome K Kuykendahl et al, United States Indian Claims Commission,
August 13, 1946–September 30, 1978: Final Report (95th Cong, 1st sess, 1979).
The commission’s voluminous record – briefs, testimonies, findings and deci-
sions – have been published in 200-odd volumes by Garland, and are available
digitally through LexisNexis.
72 Barsh, above n 67, 7–8.
73 In comparison, when they reached the furthest limit of their eastward expansion
in 1942, the nazis had seized about a three-quarters of a million square miles of
Soviet territory. They held less than half a million square miles of the Soviet
Union for more than a year, however, and adding Poland increases the total by
only 120,000 square miles. See ‘Operation Barbarossa’, New World Encyclopedia,
sec 6: ‘Outcome’.
74 The Justice Department professed concern that the total might be even higher,
warning Congress in 1956 that title to as much as half the continental United
States was legally vulnerable. The area at issue is the equivalent of all federal
landholdings in 1970. See Rosenthal, above n 68, 151; Public Lands Law
Review Commission, One-Third of the Nation’s Land (US Department of Interior,
1970).
75 Interview, April 1982.
voluntarily relinquish it.76 Hence, the ICC’s findings had merely ‘clear[ed]
out the underbrush’ previously obscuring an accurate view of who actually
owns which parts of the country.77
Now, as regards those treaties

Deloria’s conclusion was correct with regard to the vast area to which the
United States could point to no treaty or agreement as a basis for its assertion
of legal title. However, it begged the question of whether the treaties by
which Indigenous Nations had ‘sold’ their homelands to the federal govern-
ment were themselves valid. Here, it is necessary to examine them through
the lens of the international customary law codified in the 1969 Vienna Con-
vention on the Law of Treaties.78 Under Art 49 of that convention, treaties
effected through fraud are deemed void, along with any benefits accruing to
the perpetrator therefrom.79 The same applies to treaties effected through
coercion under Arts 51 and 52, and, under Art 50, treaties obtained by
‘corrupting’ signatories of the other party.
On 3 September 1783, Britain signed the Treaty of Paris, recognising the
independence of the thirteen original US states and ceding to them, collectively,
its ‘discovery rights’ to all territory between their western boundaries along the
Allegheny/Appalachian mountain chain in the east and the Mississippi River
in the west.80 The rights conveyed included the monopolistic prerogative of
acquiring land from Indigenous Nations located within the roughly 500,000
square miles involved, either by conquest or through treaty negotiations.81 It
76 Vine Deloria Jr, Behind the Trail of Broken Treaties (Delacourt Press, 1974) 227.
77 Ibid 228.
78 Employing the Vienna Convention on the Law of Treaties is entirely appropriate
because, according to the Swedish delegate to the drafting committee Hans Blix,
‘It was generally agreed that most of the contents of the … Convention were
merely expressive of rules which existed under customary international law.
Those rules obviously could be invoked as custom without reference to the pre-
sent Convention.’ Quoted in Ian Sinclair, The Vienna Convention on the Law of
Treaties (Manchester University Press, 2nd edn, 1984) 8.
79 Vienna Convention on the Law of Treaties, UN Doc A/Con39/27 (1969) 289.
80 Paris Peace Treaty (3 September 1783). The boundaries of the area to which
British rights were ceded are detailed in Art 2. The western boundaries of the
thirteen colonies turned independent states were set by the Royal Proclamation
of 7 October 1763, which designated everything west of the Allegheny/Appa-
lachian mountain chain as unceded Indian territory. To a significant extent, the
colonists’ ‘War of Independence’ was fought to nullify the ‘proclamation line’,
allowing Euroamerican expansion into Indian Country. See Thomas Perkins
Abernathy, Western Lands and the American Revolution (Russell and Russell, 2nd
edn, 1959).
81 Under the Eurocentric doctrine of discovery, the first European power to come
upon an area previously unknown to/unclaimed by other European states held a
monopoly in acquiring land in the area ‘discovered’ from its Indigenous owners.
68 Ward Churchill
is instructive that, as historian Allan Eckert observes, army commander in

chief and future US President ‘George Washington had already presented to
Congress a paper, which he called a plan … by which the western lands
belonging to the Indians could now most easily … and least expensively be
wrested from them.’82
He suggested … that the Indians be maneuvered into positions where

they had little choice but to sell [by making] grants of land … to
veterans of the Revolutionary War from such [strategically situated]
parcels as the Virginia Military Lands and the Western Reserve Lands …
Washington went on to make special mention of the fact that these set-
tlers, being veterans [would] make an excellent militia to protect U.S.
claims in the Ohio country … [By] heavily populating the Northwestern
Territory, the settlers would soon kill off all the game and make the land
so unattractive to the Indians that they will be as eager to sell as we are
to buy.83
Only ‘vacant land’ (vacuum domicilium) could be claimed outright, although the
principle was quickly extended to include ‘ungoverned territory’ (terra nullius).
Acquisition of title by conquest was also recognised as legitimate under certain
circumstances, but, for a number of reasons, the British found it more useful –
and far less expensive – to negotiate treaties of cession/purchase with Indigenous
Nations. The United States, deriving as it did from Britain, in a sense followed
suit and eventually repudiated conquest rights altogether via the Stimson Doc-
trine. See Robert A Williams Jr, The American Indian in Western Legal Thought
(Oxford University Press, 1990) esp 93–102; Sharon Korman, The Right of Con-
quest (Clarendon Press, 1996) esp 52–6, 238–9; Dorothy V Jones, License for
Empire (University of Chicago Press, 1982) esp 21–35, 93–119.
82 Allan W Eckert, That Dark and Bloody River (Bantam Books, 1995) 440
(emphasis added). What Eckert refers to as a ‘paper’ is a pair of letters, the first
from Washington to president of the Continental Congress Elias Boudinot on 17
June 1783, and the second to James Duane, chair of the Committee on Indian
Affairs, on 7 September. Duane then incorporated the main elements of
Washington’s plan in a report to Congress dated 17 October 1783. For texts, see
John C Fitzpatrick (ed), The Writings of George Washington from the Original
Manuscript Sources, 1745–1799 (US Government Printing Office, 1931–1944) vol
27, 16–18, 133–40; C Fred Worthington et al (eds), Journals of the Continental
Congress, 1774–1789 (US Government Printing Office, 1904) vol 25, 691–3.
83 Eckert, above n 82, 440 (original emphasis). Both the Virginia Military Lands
and the Western Reserve Lands were large tracts in the ‘Ohio country’ allotted
by the Continental Congress to Virginia and Connecticut, respectively, although
Congress held no legal title. The ‘Northwestern Territory’, more usually called
the Northwest Territory, encompassed all of the area west of Pennsylvania and
north of the Ohio River, that is, the present states of Ohio, Indiana, Michigan,
Illinois, Wisconsin and north-eastern Minnesota. See generally, Daniel P Barr,
Boundaries Between Us (Kent State University Press, 2006). For the real reason
why Washington felt an influx of militiamen might be useful in dealing with
the Indians, see John Grenier, The First Way of War (Cambridge University
Press, 2005) 10–13, 16–19, 148–69.
That, in Washington’s estimation, was the point at which treaty negotiations

should be initiated. He cautioned that it was important not to try to ‘grasp too
much’ in any one transaction lest the Indians be provoked into mounting an
armed resistance. Far better, he observed, to ‘induce them to relinquish their
territories and remove to the illimitable regions of the West’ incrementally, area
by area, treaty by treaty, taking care to consolidate gains and establish ‘compact
settlements’ as ‘forward posts’ before taking the next bite, until the vast expanse
east of the Mississippi was entirely free of its Indigenous owners:84
He then very meticulously laid out for Congress a blueprint of negoti-

ations … First, government agents should [falsely inform] the Indians
that as allies of the British, they had become conquered when the British
surrendered, and had no land rights … yet that the United States, in its
generosity, would, if the Indians gave up their alleged claims, pay them a
certain amount and provide them with new lands of their very own fur-
ther west … [T]reaty commissioners should [also] promise that the
United States government will endeavor to restrain our people from hunting
and settling on the new lands that had been so generously given to the
tribes [in full knowledge] that the restrictions barring settlement would
be very temporary [and that] when the Indians complained, as they
obviously would, new negotiations could be undertaken [so that] with
careful maneuvering, the tribes would again be … pushed further west.85
Eckert rightly concludes that Washington’s scheme, implemented in the

‘dictated treaties’ of Fort Stanwix (1784), Fort McIntosh (1785) and Fort Finney
(1786), was ‘immoral, unethical and actually criminal’, while, with equal
accuracy, Reginald Horsman depicts it as ‘the prelude to the gradual exter-
mination or expulsion of the Indians’ east of the Mississippi.86 Certainly, the
84 Fitzpatrick, above n 82, vol 27, 16–18.

85 Eckert, above n 82, 440–1 (original emphasis). Apart from the fact that not all
of the peoples targeted for dispossession were British allies – the Oneidas, eg,
fought alongside the insurgent colonists – the claim that those who had been
British allies ‘had become conquered’, thereby forfeiting their land rights by
virtue of the British surrender, had neither a legal basis nor a grounding in
military custom. It was simply a bold-faced lie. As Washington well knew, there
was nowhere ‘further west’ for the displaced Indians to go, other than into the
territories of other Indigenous nations, which the federal government had no
legal right to ‘give’ them.
86 Ibid 441; Reginald Horsman, ‘American Indian Policy and the Old Northwest,
1783–1812’ in Roger L Nichols (ed), The American Indian (Alfred A Knopf, 3rd
edn, 1986) 137, 139. The Fort Stanwix Treaty was with the Six Nation Iroquois
confederation (Haudenosaunee); the Fort McIntosh Treaty was with the Wyndots,
Delawares (Lenapes) and Ottawas; the Fort Finney Treaty, also known as the
Treaty at the Mouth of the Great Miami, was with the Shawnees. For texts, see
Kappler, above n 59, 5–8, 6–8, 16–18.
70 Ward Churchill
pattern established at the very onset of US treaty making with American

Indians corresponds with the criteria of fraudulence at issue in Art 49 of the
Vienna Convention, that of making ‘false statements, misrepresentations or
other deceitful proceedings by which [the other party] is induced to give a
consent to a treaty which it would not otherwise have given’.87 This, in turn,
casts in bold relief the hypocrisy infusing the lofty language of the 1787
Northwest Ordinance, proudly cited by Truman in 1946:
The utmost good faith shall always be observed towards the Indians;
their lands and property shall never be taken from them without their
consent; and, in their property rights, and liberty, they shall never be
disturbed, unless in just and lawful wars authorized by Congress.88
Cast not only as an articulation of principle but as a matter of law, the pledge
may for obvious reasons be more accurately assessed as a lie. That US officials
in every relevant capacity were perfectly aware that they were peddling false
premises in their dealings with Indigenous Nations was amply demonstrated
in August 1794, towards the end of Washington’s first term as President.
When his negotiators were finally confronted by Indians who had defeated
military expeditions dispatched to ‘chastise’ them for attacking white settlers
encroaching upon their territory,89 they were undaunted by the prospect of
the army being unleashed against them. This left the treaty commissioners
little alternative but to concede the truth:
For the first time they admitted that the American government had erred
in its initial belief, following the Treaty of Paris, that because they had
defeated the British, they had also defeated the tribes and thus rightly
acquired the Indian lands by conquest. The … government now realized,
they said, that the various Indian tribes were sovereign nations, un-
defeated and unsubdued, and that the lands north and west of the Ohio
River were theirs.90
87 Drafting committee, quoted in Sinclair, above n 78, 16.

88 An Ordinance for the Government of the Territory of the United States Northwest of the
Ohio River (13 July 1787) sect 14, art 3, in Worthington et al, above n 82, vol
32, 340–1.
89 The first of these was a mixed force of about 1,500 regulars and militiamen
under Brigadier General Josiah Harmar, which was routed in October 1790. A
larger force, commanded by Major General Arthur St Clair, was then dispatched.
On 3 November 1791 it too was routed, incurring losses of over 630 dead –
about a quarter of total US troop strength at the time and the most ever suffered
by the army in a single battle with American Indians. See Eckert, above n 82,
526–9, 562–9, 738 n 744; Colin Galloway, The Victory with No Name (Oxford
University Press, 2015) 66–7, 111–28.
90 Eckert, above n 82, 595. As one commissioner explained it, the government had
‘put an erroneous construction on … our treaty with the King. As he had not
The Indians, an alliance of Shawnees, Miamis and several other peoples

collectively referred to as the Wabash Confederation, then rejected the com-
missioners’ attempt to purchase the area in which whites had settled in vio-
lation of the treaty signed at Fort Finney in 1786,91 demanding that the
United States instead remove the squatters, as it had obliged itself to do in
the treaty, and quite reasonably suggesting that the amount offered for their
land be divided among the evicted whites as compensation for their losses.92
The result is illuminating. Washington, who had largely traded on his own
reputation as an uncommonly vicious adversary – the result of a brutal scorched
earth campaign he had launched against the Haudenosaunee (Iroquois Con-
federation) in 177993 – to cow Indians into accepting treaty terms, opted to
refresh the lesson. Having enlisted Major General ‘Mad Anthony’ Wayne to
double the size of the regular army in 1792, he ordered the general to use
purchased the country of [sic] you, of course he could not give it away; he only
relinquished to the United States his claim to it’ under the doctrine of discovery.
Quoted in Randolph C Downes, Council Fires on the Upper Ohio (University of
Pittsburgh Press, 1940) 323.
91 During the negotiations, the commissioners contended that the United States
acquired title to a portion of the land at issue through the 1789 Treaty of Fort
Harmar, although neither the Shawnees nor the Miamis were parties to it. For
their part, the Six Nation Iroquois Confederation, with whom it was entered,
flatly declared that ‘the Fort Harmar cessions were a fraud’. The commissioners,
concerned that a unified Indigenous resistance might otherwise be galvanised,
thereupon ‘announced [US] willingness to give up all lands ceded at Fort
Harmer save that sold to [a pair of notorious groups of land speculators,] the
Ohio Company and Symmes Associates’. The Shawnees and Miamis categorically
rejected the ‘compromise’. Downes, above n 90, 327, 323. For the Fort Harmar
Treaty text, see Kappler, above n 59, 23–5.
92 The Indians enlisted a trusted British advisor, Alexander McKee, to prepare their
response in written form and submit it to the commissioners on 15 August
1794. See Eckert, above n 82, 596.
93 Washington, still known as ‘Town Destroyer’ in many Indigenous traditions,
ordered major general William Sullivan and his 5,000 seasoned troops to march
through the heart of Seneca territory, in present-day western New York, laying
waste to everything in their path, and ‘not by any means, listen to any overtures
of peace until the total ruin of their settlements is effected’. Forty-odd towns
were burned, orchards levelled, crops ruined, fields salted and wells poisoned.
The adjacent Mohawks were subjected to similar treatment, although the
damage was less extensive. The number of Indians killed during the campaign
was relatively small, since they consistently retreated in the face of Sullivan’s
much larger force, but, deprived of their food stores and shelter, many died of
starvation and exposure over the winter. Neither peoples ever recovered from the
onslaught and, while the goal of ‘extirpating’ them altogether was unmet,
Washington’s broader objective of ‘inspir[ing] terror’ in Indians more generally
was by all accounts accomplished. For Washington’s order to Sullivan, dated 31
May 1779, see Fitzpatrick, above n 82, vol 15, 189–93 (passages quoted at 192).
For by far the best account of the ‘Sullivan Campaign’, see Barbara Alice Mann,
George Washington’s War on Native America (Praeger, 2005).
72 Ward Churchill
this ‘Legion of the United States’ to crush the Wabash ‘recalcitrants’ once
and for all.
The general complied, leading an overwhelming force into the heart of
Indian country and, after compelling the ‘savages’ to retreat at the battle of
Fallen Timbers in August 1794, assigning his men to ‘destroy every village,
every trading post … and every vestige of crops in a swath 10 miles wide and
50 miles in length’.94 Rendered destitute, their economy obliterated, the
Shawnees and Miamis sued for peace. The United States then imposed the
1795 Treaty of Greenville that deprived the Indians of virtually all their
remaining territory, displacing them onto the lands of other peoples in the
present-day state of Indiana.95 Eventually, the Shawnee remnants, completely
overrun by settlers even there, mostly agreed under the 1825 Treaty of St Louis
to accept ‘removal’ much further west, onto a tract of what had been Osage
land in south-eastern Kansas.96
Although Anthony Wayne’s campaign was authorised by Congress, by no
defensible interpretation can it be construed as the ‘just war’ described in the
Northwest Ordinance. It was an ‘aggressive’ war in precisely the sense the term
was employed at Nuremberg a century and a half later. The Treaty of Greenville
was ‘procured by the illegal threat [and] use of force’ and was thus invalid
under Art 52 of the Vienna Convention. Insofar as Wayne, who headed the
commission that ‘negotiated’ it, ensured that his demoralised opponents were
well plied with alcohol during the proceedings, and appears to have bribed
some of them as well,97 the treaty was also invalid under Art 50 of the con-
vention, prohibiting the ‘corruption’ of signatories.
94 Eckert, above n 82, 619. Also see Grenier, above n 83, 200–1. For more detailed
background, see Wiley Sword, President Washington’s Indian War (University of
Oklahoma Press, 1985).
95 Treaty with the Wyandot, Etc (3 August 1795), forcing the Indians to cede all of
present-day Ohio other than a small remainder in the north-west corner of the
state, as well as the southerly portion of what is now Indiana. For text, see
Kappler, above n 59, 39–45. For further explication, and a map of the cession,
see Eckert, above n 82, 624–5.
96 Treaty with the Shawnee (7 November 1825). Several additions and ‘adjustments’
were made under the Treaty with the Shawnee, Etc (29 October 1832), Treaty with
the Shawnee and Seneca (29 December 1832), and Treaty with the Shawnees (10 May
1954). For texts, see Kappler, above n 59, 202–4, 370–2, 383–5, 618–26.
97 ‘As shown by the surviving quartermaster’s receipts … the army continued
issuing large quantities of food [and] liquor to the Indians in attendance …
Wayne also had $25,000 worth of trade goods (not counting numerous kegs of
Madeira and liquor) to facilitate the proceedings, [under stipulation that] the
gifts be distributed only after his terms for the land cession were met.’ While it
was a time-honoured protocol of Indian diplomacy that gifts be dispensed by the
hosts of any parlay, it was customary that they be given at the beginning, not
the end, of the event. Moreover, the amount involved – an astronomical sum at
the time – far exceeded the requirements of mere protocol. The United States
was plainly ‘cultivat[ing] clients among native leaders’. Robert M Owens, Mr
The mode of warfare waged by the United States against Indigenous

Nations in the Southwest Territory was essentially identical to that in the
Northwest.98 So, too, was its approach to treaty making, a matter already
apparent in the 1785–86 Hopewell treaties with the Cherokees, Choctaws and
Chickasaws.99 The Cherokees (Tsalagis), for example, ceded a considerable
portion of their land in exchange for a guarantee that no whites be allowed to
settle in the remainder, although, as the Cherokees pointed out during
negotiations, some 3,000 families had already done so.100 Rather than
removing the squatters, or attempting to curb the influx, the United States
simply convened a new treaty council in 1791 for purposes of convincing the
Cherokees to cede the second illegally settled area as well.101
Again, the United States pledged that whites would be prevented from
settling on the Cherokees’ remaining territory – it was even provided that a
passport would be necessary for any US citizen to enter it102 – although, as
always, thousands already had. The Cherokees were then informed in 1798
that they would have to cede this third area, with the United States guaran-
teeing the remainder of their homeland ‘forever’.103 The duration of eternity
turned out in this instance to be barely more than six years, at which point
they were compelled to cede still more land in the second Tellico Treaty,104
Jefferson’s Hammer (University of Oklahoma Press, 2007) 28; Gregory Evans

Dowd, A Spirited Resistance (Johns Hopkins University Press, 1992) 115.
98 ‘The Cherokees and Southern tribes were foolish enough to listen [to the British]
and take the Hatchet Against us; Upon this our Warriors went into their
Country, burnt their Houses, [and] destroyed their Corn.’ George Washington,
24 December 1776, quoted in Grenier, above n 83, 146, 148–62.
99 Treaty with the Cherokee (26 November 1785); Treaty with the Choctaw (3 January
1786); Treaty with the Chickasaw (10 January 1786) in Kappler, above n 59,
8–16.
100 See Grenier, above n 83, 174–9.
101 Treaty with the Cherokee (2 July 1791), otherwise known as the Treaty of Holston,
reaffirmed by the Treaty with the Cherokee (26 June 1794), in Kappler, above n 59,
29–34.
102 ‘Article IX: No citizen or inhabitant of the United States, shall … go into the
Cherokee country, without a passport first obtained from the Governor of some
one of the United States, or territorial districts, or such other person as the
President of the United States may from time to time authorize to issue the
same.’
103 Treaty with the Cherokees (2 October 1798), otherwise known as the first Tellico
Treaty, wherein the United States claimed in the preamble that encroachments
were due to its failure to properly mark the 1791 boundary, and that ‘for pur-
poses of … remedying any inconveniences arising to citizens of the United States’
(emphasis added) as a result, it was necessary to ‘adjust’ the boundary. A further
cession was required to maintain ‘open and free [transit by] U.S. citizens’ over a
road already opened through Cherokee territory in complete disregard of the
1791 passport requirement. For text, see Kappler, above n 59, 51–5.
104 Treaty with the Cherokees (24 October 1804), in Kappler, above n 59, 73–4.
74 Ward Churchill
and so it went,105 until, via the blatantly fraudulent 1835 Treaty of New
Echota, they were forced to relinquish the balance of their territory east of the
Mississippi.106 Under the 1828 Washington Treaty,107 they had also lost the
supposed ‘replacement lands’ in Arkansas – west of the Mississippi –
and pushed westward still further, into the ‘Permanent Indian Territory’ of
Oklahoma (which was itself dissolved by the 1890 Organic Act).108
The Shawnee and Cherokee experiences with US treaty makers are
emblematic. With only minor variations, they reflect those of every Indigen-
ous Nation with which the United States entered into a treaty from its
inception until the mid-1840s, when its initial goal of rendering the entire
area in the Treaty of Paris ‘Indian free’ had been essentially attained. There-
after, it expanded into a more immense domain stretching from the Mis-
sissippi to the Pacific, through a combination of the 1803 purchase from
France of discovery rights in ‘the Colony or Province of Louisiana’,109 the
acquisition of Britain’s discovery rights in Oregon Territory through
the London Convention of 1818,110 the annexation of Texas in 1846,111 and the
105 The Cherokees were manoeuvred into three separate treaties ceding portions of
their land in 1805, another in 1806, two more in 1816, and another in 1817.
See Kappler, above n 59, 82–4, 90–2, 124–6, 133–4, 140–4.
106 Treaty with the Cherokees (29 December 1835), in Kappler, above n 59, 439–47. For
background, see Theda Perdue and Michael Green, The Cherokee Nation and the Trail
of Tears (Penguin Books, 2007); Russell Thornton, ‘Cherokee Population Losses
During the Trail of Tears: A New Perspective and a New Estimate’ (1984) 31
Ethnohistory 289. More comprehensively – it covers the forced relocations not only of
the Cherokees but of the Choctaws, Chickasaws, Creeks, Seminoles, Senecas, Shaw-
nees, Lenapes and others to areas west of the Mississippi – see Gloria Jahoda, The
Trail of Tears (Holt, Rinehart and Winston, 1975).
107 Treaty with the Western Cherokee (6 May 1828) in Kappler, above n 59, 288–91.
108 The Oklahoma Organic Act, 26 Stat 81 (1890), the Curtis Act, 30 Stat 495, 504
(1898), the Burke Act, 34 Stat 182 (1906) and the Five Civilized Tribes Act, 34
Stat 325 (1906) laid the groundwork for the proclamation of Oklahoma state-
hood on 17 November 1907. For background, see Angie Debo, And Still the
Waters Run (Princeton University Press, 1940) 3–180.
109 As Britain had done in the Treaty of Paris, Spain ceded its right to acquire land
within the 828,000 square mile Louisiana territory to France in the San Ildefonso
Treaty of 1 October 1800. This right, not the land itself, is what the United
States purchased by treaty from the French Republic in 1803. Not only did the
United States agree in the treaty that ‘the inhabitants of the ceded territory
[would be] maintained and protected in the free enjoyment of their liberty [and]
property’ (emphasis added), but also, under Art 6 it was obliged to ‘execute Such
treaties and articles as may have been agreed between Spain and the tribes and
nations of Indians until by mutual consent of the United States and the said
tribes and nations other Suitable articles shall be agreed upon’. Treaty between
the United States of America and the French Republic, 30 April 1803.
110 London Convention, 20 October 1818.
111 In a manner paralleling the procedure employed vis-à-vis Indigenous Nations
east of the Mississippi, US settlers were already moving into Spanish Mexico’s
province of Texas by the time its border with the Americans’ Louisiana Territory
forced cession of the northern half of Mexico under the 1848 Treaty of Gua-
dalupe Hidalgo.112 Its record vis-à-vis the ‘western tribes’ became, if anything,
still worse.
With ‘the west’ foreclosed as a locale into which Indigenous Peoples could
be ‘removed’, the US posture regarding American Indians became more
openly exterminatory, as is attested in the example set by California after it
became a state.113 As both the constancy with which the United States pur-
sued ‘military solutions’ to the ‘Indian problem’ and the methods used to
attain them became more apparent to the peoples of the ‘Great American
Desert’, coercion within the meaning of Art 51 of the Vienna Convention, and
in many instances of Art 52 – intimidation of signatories – as well, became an
inherent, if sometimes implicit, dimension of its negotiations even with
peoples who had not directly experienced the army’s aggression.114
was tentatively formalised in Art 3 of the 1819 Adams-Onis Treaty (about the
same time that Mexico gained independence). The influx steadily increased, even
after Mexico moved to halt it in 1829, and by March 1836 the settlers attained
sufficient mass to declare Texas an independent republic. After repelling Mex-
ico’s attempt to restore control militarily the following month, the Republic of
Texas functioned as such until it could arrange its annexation as a US state
through the so-called Tyler-Texas Treaty. Since Mexico disputed the sovereignty
of Texas, ratification of the latter Treaty in 1845 sparked the war between
Mexico and the United States that was ended by the Treaty of Guadalupe Hidalgo.
For background, see Gene M Brack, Mexico Views Manifest Destiny, 1821–1846
(University of New Mexico Press, 1975) 18–80.
112 The Treaty of Guadalupe Hidalgo (2 February 1848), by which Mexico ceded
529,000 square miles of its territory to the United States, is usually mis-
interpreted as having left Indigenous land rights unsecured. Article 8, however,
stipulates that ‘Mexicans now established in territories previously belonging to
Mexico, and which remain for the future within the limits of the United States,
as defined by the present treaty, shall be free to continue where they presently
reside … retaining the property which they possess in the said territories’ and
may also retain both ‘the character of Mexicans [and] the title and rights of
Mexican citizens’. Typically overlooked is the fact that, under its 1821 Plan de
Iguala, Mexico conferred full citizenship upon all American Indians residing
within its territorial boundaries. The 1848 Treaty secured their right to possess
property within the ceded area in accordance with their own traditions (collect-
ively), and obliged the United States to acquire title to Indian land by means of
negotiation and purchase rather than seizure. This is apart from the issue of pre-
existing grants of land made by Spain and Mexico, secured under Art 10 of the
Treaty, deleted by the United States post hoc but reinstated by the Protocol of
Querétaro (30 May 1848). Texts at ‘Treaty of Guadalupe Hidalgo; February 2,
1848’, Avalon Project <http://avalon.law. yale.edu/19th_century/guadhida.asp>.
See Van Hastings Garner, ‘The Treaty of Guadalupe Hidalgo and the California
Indians’ (1976) 9 The Indian Historian 10; Ernesto Chávez, The US War with
Mexico (Bedford/St Martin’s Press, 2007).
113 See Brendan C Lindsay, Murder State (University of Nebraska Press, 2012); Ben-
jamin Madley, An American Genocide (Yale University Press, 2016).
114 As the matter is framed in a typically sterile academic analysis, a ‘simple
dynamic’ was at work: ‘[T]he threat of defeat in war [was] sufficient to encourage
76 Ward Churchill
Instances of fraud became more blatant, as with the 1861 Treaty of Fort
Wise, the result of a council called by the United States for purposes of sup-
planting the terms of the 1851 Treaty of Laramie with a new arrangement
diminishing the land base of the Cheyennes and Arapahos by about 90 per
cent.115 When the Indians largely boycotted the proceedings,116 US com-
missioners appear to have forged a few signatures and submitted the treaty to
the Senate for ratification.117 The latter body changed the provisions
supposedly agreed to by the Indians, ratified its own version, then (re)pre-
sented it to them as a dictate.118 Cheyennes and Arapahos refusing to abide
parties (specifically Indians) to settle for disadvantageous treaty terms.’ Hence, as

disparities between United States and Indigenous military capacities became ever
more pronounced – and ever clearer to all concerned – the United States was
increasingly able to ‘drive harder and harsher bargains with the tribes’. Arthur
Spirling, ‘US Treaty-Making with American Indians: Institutional Change and
Relative Power, 1784–1911’ (2012) 56 American Journal of Political Science 84.
115 Under Art 5 of the Treaty of Fort Laramie with the Sioux, Etc. (17 September
1851), Cheyenne/Arapaho territory was recognised by the United States as
encompassing all of eastern Colorado and a large portion of western Kansas.
Based on the spurious assertion that the Indians were ‘desirous of promoting
settled habits of industry and enterprise among themselves, by abolishing the
tenure in common by which they now hold their lands [and] assigning [it] in
severalty to the individual members of the respective tribes’, their domain was
reduced to a barren tract in south-eastern Colorado under Art 1 of the Treaty
with the Arapaho and Cheyenne (25 February 1861), known as the Treaty of Fort
Wise. For texts, see Kappler, above n 59, 594–6, 807–11.
116 The Indians were quite aware of what was intended, at least in general terms.
They had no desire to cede land, and most were fighting to staunch a mounting
tide of whites pouring into their 1851 Treaty territory as the result of a gold
discovery near the present-day city of Denver in 1858. When the treaty council
occurred, ‘only a few Cheyenne chiefs had come in [and] they represented only
the peace faction’, a distinct minority. ‘The war faction stayed away, as did the
Cheyenne Dog Soldiers [the Hotamétaneo’o, more literally translated as “Dog
Men”, an élite fighting force later called Hotamémâsêhao’o, or “Crazy Dogs”], who
remained defiant in their camps on the Smoky Hill’ River in western Kansas.
David Fridtjof Halaas and Andrew E Masich, Halfbreed (Da Capo Press, 2004)
152.
117 While the handful of ‘peace chiefs’ attending the council are said to have been
amenable to the treaty terms, ‘they refused to bind their people until the ques-
tion had been put to a vote’ in which the war faction and, perhaps most espe-
cially, the Dog Soldiers were included. Yet, somehow, their signatures – or,
more accurately, their marks – appeared on the document. It is possible that,
rather than outright forgery, the chiefs were tricked by the local Indian agent
into signing the treaty, without knowing that that is what it was, after the treaty
commissioner had already left and the council presumably concluded. There is
evidence that this was so, but, either way, the outcome was plainly fraudulent.
See Stan Hoig, The Sand Creek Massacre (University of Oklahoma Press, 1961) 13;
George Bird Grinnell, The Fighting Cheyennes (University of Oklahoma Press,
1955) 126 n 6.
118 Hoig, ibid 16–17.
by the ‘treaty’ were thereafter deemed ‘hostile’ and targeted for extermination
in a military campaign that culminated in the 1864 Sand Creek Massacre.119
Once again, the example is merely representative. Even confirmed apolo-
gists for the colonial paradigm concede that the entire history of US treaty
making with American Indians is replete with ‘threats, coercion, bribery, and
outright fraud by negotiators for the United States’, and that the army was
commonly employed to create conditions under which ‘treaties were imposed
upon them and they had no choice but to consent’.120 It is thus virtually
impossible to view Truman’s 1946 assertion that the opposite was true as
anything other than a ‘Big Lie’.121
Ultimately, the challenge would be to find a single US treaty with American
Indians that did not violate the Vienna Convention’s prohibitions of fraud,
coercion and corruption. The same is true with regard to the ‘land cession
agreements’, a semantic distinction employed after Congress prohibited further
treaty making with Indians in 1871122 to describe what were, in fact, treaties
that continued to be made until 1911.123 The question thus becomes whether
119 Ibid 129–62. Also see Ward Churchill, A Little Matter of Genocide (City Lights,
1997) 228–35.
120 Charles F Wilkinson and John M Volkman, ‘Judicial Review of Indian Treaty
Abrogation: As Long as the Water Flows, or Grass Grows Upon the Earth –
How Long a Time is That?’ (1975) 63 California Law Review 610, 611; in the
second instance quoting the US Supreme Court’s opinion in Choctaw Nation v
Oklahoma 397 US 620, 630–1 (1970).
121 The term ‘Big Lie’ (Große Lüge) refers to a propaganda technique deriving from
Hitler’s observation in Mein Kampf, above n 7, 231, that ‘the great masses of
people … will more easily fall victim to a big lie than a small one’. As nazi
propaganda minister Goebbels explained in January 1941, ‘when one lies, one
should lie big, and stick to it’. Joseph Goebbels, Die Zeit ohne Beispiel (Zen-
tralverlag der NSDAP, 1941) 367.
122 Further treaty making was prohibited in a rider attached to the Indian Appro-
priations Act, ch 120, 16 Stat 466 (1871). Although the term ‘agreement’ was
formally employed from 1873 onwards, ‘in instructions to federal negotiators in
the field, and in the federal courts, both the process of negotiation and the
documents were called treaties … The major difference between treaties made
before 1871 and those made afterward seems to have been that the later ones
were ratified in statute form by both houses of Congress and that frequently the
terms of the treaty were changed without any kind of hearing or consultation
with the Indians’, as the Senate had done with the Treaty of Fort Wise in 1861.
Deloria and DeMallie, above n 59, vol 1, 249. See also George Rice, ‘25 USC §
71: The End of Indian Sovereignty or a Self-Limitation of Contractual Ability?’
(1977) 5 American Indian Law Review 239.
123 Eg the Agreement with the Sioux, Arapaho, and Northern Cheyenne (23, 26
September, 11, 16, 21, 24, 27 October 1876) by which the Lakota supposedly
ceded the Black Hills and contiguous portions of the ‘Great Sioux Reservation’
encompassing all of present-day South Dakota west of the Missouri River. Having
reduced the Indians to a condition of absolute dependence upon the army for food,
rations were cut off until the ‘agreement’ was signed. Although Art 12 of the still-
binding Fort Laramie Treaty of 1868 specified that no instrument of cession would
78 Ward Churchill
the United States ever acquired legitimate title to any part of North America
beyond the boundaries of the original thirteen states and perhaps a few
enclaves such as New Orleans, St Louis and Detroit. To the extent that it did
not, the land at issue is, to paraphrase President George H W Bush’s 1990
description of Kuwait after the Iraqi invasion, illegally occupied territory, the
legitimate governments of which have been usurped by a foreign aggressor.124
Before the court of history

We must never forget that the record on which we judge these defendants
today is the record on which history will judge us tomorrow.
(US Chief Prosecutor Robert H Jackson, Nuremberg, 1945)
In some ways, Truman’s attempt to deny the obvious had failed within three
decades. By the early 1970s, not only radicals such as Sidney Lens,125 but also
popular historians such as John Toland126 and mainstream academics such as
Norman Rich were matter-of-factly acknowledging that:
Neither Spain nor Britain [provided] the models for German expansion,
but the Nordics of North America, who had ruthlessly pushed aside an
inferior race to win for themselves soil and territory for the future. To
undertake this essential task, sometimes difficult, always cruel – that was
Hitler’s version of the White Man’s Burden.127
Since then, such observations have become quite common in serious historical
analyses of the nazi expansion into Eastern Europe.128 Recently, Carroll
be valid ‘unless executed and signed by three-quarters of all adult male Indians’,
and fewer than 15 per cent of them did so even under the dire circumstances
imposed upon them, Congress declared this to be sufficient and assumed title in
the Act of 28 February 1877 (19 Stat 254), also known as the ‘Starve or Sign Act’.
The Supreme Court confirmed these details in United States v Sioux Nation of
Indians 448 US 371, 339–84 (1980).
124 George H W Bush, ‘Address on the Invasion of Kuwait’, 8 August 1990.
125 Lens contended that American triumphalist Homer Lea, who observed that the
United States had ‘been built up from the spoils of combat and conquest of the
defenseless tribes’ and extolled the virtues of ‘military vigor’ in bringing the country
‘to the zenith of its physical greatness’, was ‘paid the dubious honor of having Adolf
Hitler plagiarise a few paragraphs of his book for Mein Kampf’. Sidney Lens, The
Forging of the American Empire (Thomas Y Crowell, 1971) 13.
126 John Toland, Adolf Hitler (Doubleday, 1976) vol 2, 802.
127 Norman Rich, Hitler’s War Aims (W W Norton, 1973) 8.
128 ‘The vision that inspired the German colonial project in the East had [much] in
common with the American ideology of the frontier’, as Adam Tooze puts it.
‘And the bloody conquest of the American West provided Germany with the
historical warrant it needed to clear the Slavic population.’ Stephen Fritz adds: ‘If
in execution the German plans for the occupied east resembled the last act in the
Kakel, a research historian at Johns Hopkins University, devoted an entire

book to elaborating the connections between ‘the American West and the
Nazi East’,129 while another, by a professor of German studies at the
University of Missouri is titled Germany’s Wild East.130
The premise that the nature and objectives of nazi aggression in Eastern
Europe was based upon the example set by the United States in its ‘Indian
wars’ is no longer ‘controversial’, at least in its broad contours. The focus of
denial has thus been increasingly narrowed, with particular weight placed on
rejecting the idea that Indigenous Nations might be entitled to repossess at
least some of the land taken from them,131 and contending that the genocide
perpetrated against them in the process was not ‘really’ genocide (with all the
onus that would entail). The latter effort has centred in the first instance in a
broader campaign to redefine the term ‘genocide’ by reducing it to a synonym
for direct killing on a massive scale,132 then attributing the Indigenous
bloody history of European colonialism, in inspiration Nazi ideas had more in

common with American Manifest Destiny [with] Hitler … emphasizing that the
bloody conquest of the American West provided both historical precedent and
justification.’ Mazower contends that after Carl Schmitt’s 1939 lecture on why
the United States presented ‘a new model for Germany’, Hitler ‘started using
what sounded very much like Schmittian language’. A number of similar exam-
ples might be cited. See Adam Tooze, Wages of Destruction (Viking Press, 2006)
469; Fritz, above n 23, 93; Mazower, above n 27, 577–8; Alan E Steinweis,
‘Eastern Europe and the Notion of the “Frontier” in Germany to 1945’ (1999)
13 Yearbook of European Studies 56, 57.
129 Carroll P Kakel III, The American West and the Nazi East (Palgrave, 2011).
130 Kristin Kopp, Germany’s Wild East (University of Michigan Press, 2012).
131 This has devolved upon polemics to the effect that ‘too much time has passed’
for any form of restitution to be ‘realistic’, because of the ‘fundamental unfair-
ness’ entailed in displacing the settlers now ensconced in areas from which
Indigenous people were forcibly removed. In its more extreme form, the argu-
ment holds that Indigenous Nations have no rights because they never actually
existed. Those subscribing to the first position have voiced no similar objections
to the Zionist claim that a 2,000-year-old displacement of the Hebraic tribes
(Jews) in Palestine imbued their descendants not only with a ‘right of return’,
but a right to establish the state of Israel, expelling nearly a million Palestinians
in the process. As concerns the second, it is noted that Hitler said the same with
regard to Czechoslovakia, and Israeli Prime Minister Golda Meir with regard to
Palestinians. An example of these polemics is provided in Paul Brodeur, Restitu-
tion (Northeastern University Press, 1985). For an archetypal articulation of the
extreme position, see Allan van Gestel, ‘When Fictions Take Hostages’ in James
A Clifton (ed), The Invented Indian (Transaction, 1990) 291. Hitler asserted that
there was ‘no such thing as a Czechoslovakian nation’ in his 26 September 1938
speech at Berlin’s Sportpalast. Meir’s 1969 assertion that ‘There is no such things
as Palestinians … They do not exist’ is quoted in Rashid Khalidi, Palestinian
Identity (Columbia University Press, 1997) 147.
132 The literature devoted to advancing this argument is voluminous. For a repre-
sentative sample, see the essays collected in George Andreopoulos (ed), Genocide
(University of Pennsylvania Press, 1994). For rebuttal, see Raphaël Lemkin, Axis
80 Ward Churchill
population reduction in North America to ‘natural causes’,133 and arguing in

effect that each instance of mass murder was ‘anomalous’.134
It has become fashionable to seize upon the term ‘ethnic cleansing’, popu-
larised by journalists in 1992,135 to conjure the desired illusion. A prime
example is historian Gary Clayton Anderson’s contention that the ‘indis-
criminate killing’ of American Indians, ‘while common’ and motivated by
‘extreme racial hatred’, added up to ‘the more moderate and well-understood
process of ethnic cleansing … not genocide’.136 Anderson, in peddling this
false distinction, ignores the fact that even the lone authority upon which he
relies concedes that ‘ethnic cleansing and genocide are distinguishable only by
the ultimate intent’ of the perpetrators,137 and grossly misrepresents the 1948
Convention on Prevention and Punishment of the Crime of Genocide to bolster his
argument.138
Rule in Occupied Europe (Carnegie Endowment for World Peace, 1944) 79–80,
wherein the term is both coined and explained.
133 The linchpin of this perpetrator-free ‘explanation’ of Indigenous population loss
is the ‘virgin soil hypothesis’ first advanced in Alfred W Crosby Jr, The Colum-
bian Exchange (Greenwood Press, 1972) 36–8; further developed in Crosby’s
Ecological Imperialism (Cambridge University Press, 1986) 196–9, 215–16;
popularised by Jared Diamond, Guns, Germs, and Steel (W W Norton, 1997)
211–12. Among the problems with the hypothesis – apart from the exculpatory
use to which it has been put by deniers, who embraced it as ‘fact’ while
neglecting to mention that Crosby himself described ‘virgin soil epidemics’ as a
‘dismal genocidal process’ – is that it omits the prospect that settlers and officials
frequently and deliberately infected American Indians with pathogens to which
they had no immunity. See Barbara Alice Mann, The Tainted Gift (Praeger,
2009); David S Jones, Rationalizing Epidemics (Harvard University Press, 2004).
134 Ward Churchill, Perversions of Justice (City Lights, 2003) 313–15.
135 See William Safire, ‘On Language’, New York Times Magazine, 14 March 1993,
23; Roy Gutman, A Witness to Genocide (Macmillan 1993); Norman Cigar,
Genocide in Bosnia (Texas A&M University Press, 1995).
136 Gary Clayton Anderson, The Conquest of Texas (University of Oklahoma Press,
2005) 7, 15, 17.
137 While Anderson claims that the ‘process of ethnic cleansing’ is ‘well-understood’
as being ‘more moderate’ than genocide, the source he cites says precisely the
opposite, ie that the term came into usage as a ‘euphemism for genocide’, and
that it remains exceedingly ‘imprecise’. Even when defined as the forced expul-
sion of undesired populations from particular areas – as opposed to genocide,
falsely defined as ‘the intentional killing of all or part of targeted groups’ – ‘both
literally and figuratively, ethnic cleansing bleeds into genocide, as mass murder
is [often, as in Texas] committed to rid the land of a people’. Norman M Nai-
mark, Fires of Hatred (Harvard University Press, 2002) 3–4.
138 As Anderson has it, ‘In Articles 2 and 3 of the 1948 UN Convention, genocide
is defined as the intentional killing of people because of their “national, ethnical,
racial or religious identity”’ (emphasis added), later adding that such killing
must be ‘an act to destroy an entire ethnic group, as defined by the United
Nations in 1948’ (emphasis added). Article 3 has nothing to do with defining
the crime. The relevant passage in Art 2 reads, ‘In the present Convention,
genocide means any of the following acts committed with intent to destroy, in
No less egregiously, although he repeatedly refers to Yugoslavia in his

explication of how ethnic cleansing and genocide are supposedly demarcated
under the 2000 Rome Statute establishing the International Criminal Court
two years later,139 he neglects to mention that the United Nations formally
declared ‘the abhorrent policy of “ethnic cleansing”’ to be ‘a form of genocide’
in 1992,140 or that, subsequently and repeatedly, it was judicially construed
as such by the International Criminal Tribunal for the Former Yugoslavia.141
Similarly, he offers not the least hint that acknowledged experts in the field
routinely describe ethnic cleansing as ‘implicit genocide’,142 a ‘euphemism for
genocide’,143 ‘genocide’s “territorial” and “spatial” dimension’,144 and a
‘modality of genocidal violence.’145
There has been a mounting push-back against this sort of ‘scholarly’ dis-
honesty over the past thirty years, evidenced by a steadily lengthening roster
whole or in part, a national, ethnical, racial or ethnical group, as such’ (emphasis

added). ‘Killing members of the group’ is only one of the five ‘acts’ listed
thereafter, and it is explicitly stated that intent to destroy the group ‘in part’ is
no less genocidal than intent to ‘destroy an entire ethnic group’. See Gary Clay-
ton Anderson, Ethnic Cleansing and the American Indian (University of Oklahoma
Press, 2014) 3, 9. For clarification of how the convention’s ‘in part’ clause is
actually interpreted vis-à-vis ‘ethnic cleansing’, see Final Report of the Commission of
Experts Established Pursuant to Security Council Resolution 780 (1992), UN Doc S/
1994/674 (1994) esp [94].
139 Anderson, above n 138, 4, 6, 9, 12.
140 The Situation in Bosnia and Herzegovina, UN Doc A/RES/47/121 (18 December
1992). The point was reiterated in at least four subsequent United Nations
General Assembly resolutions.
141 More than seventy individuals were charged with genocide in connection with
‘ethnic cleansing’ operations carried out in the former Yugoslavia during the
early-to-mid 1990s. The cases in which verdicts had been reached before the
publication of Anderson’s book were Prosecutor v Krstić (Case No IT-98-33-T;
judgment, 2 August 2001); Prosecutor v Popović et al (Case No IT-05-88-T;
judgment, 10 June 2010); Prosecutor v Tolimir (Case No IT-05-88/2T; judgment,
12 December 2012). Radovan Karadzić has since been convicted of genocide.
142 Christopher R Browning, Nazi Policy, Jewish Workers, German Killers (Cambridge
University Press, 2000) 25. As is observed elsewhere, ‘by defining genocide as
“deliberately inflicting on members of a group conditions intended to bring
about its destruction in whole or in part [in Art 2c],” the 1948 UN Convention
on Genocide in effect implicitly included ethnic cleansing. (The term itself was
not in use in 1948).’ Alfred A Cave, Lethal Encounters (Praeger, 2011) xi.
143 See Shaw, above n 37, 66–83. Also see the sharp framing offered by Rony Blum
et al, ‘“Ethnic Cleansing” Bleaches the Atrocities of Genocide’ (2007) 18 Euro-
pean Journal of Public Health 204, 204: ‘“[E]thnic cleansing” is … a euphemism
for genocide … [Like] “racial hygiene” in Nazi medicine, it expropriates pseudo-
medical terminology [in a way that] reifies a dehumanized view of the victims as
sources of filth and disease, and propagates the reversed social ethics of the
perpetrators.’
144 Kakel, above n 129, 243 n 1. Also see Shaw, above n 37, 81–2.
145 Carroll P Kakel III, The Holocaust as Colonial Genocide (Palgrave Macmillan, 2013)
188, 189–90, 201.
82 Ward Churchill
of historians and others detailing the reality that the US genocide(s) of

American Indians was indeed genocide.146 Should the trend continue, it will
soon be no more controversial to employ the proper term in characterising the
destruction of North America’s Indigenous Peoples than it has long since
become to acknowledge the conceptual linkages joining US and Hitlerian
policies of expansion. It should be a short step to recognition that, notwith-
standing the ICC’s lengthy sham, much of the United States remains ‘occupied
America’,147 and that the country itself is a ‘colonial settler state’ of the sort
the nazis sought to establish in Eastern Europe.148
In view of the extent to which the officially endorsed orthodoxies of denial
have been eroded over the past seventy years, it is surprising that little
attention has been paid to the relationship between ‘Munich’ and the pre-
existing example set by the United States in its diplomatic relations with the
Indigenous Nations of North America. Every one of the signature character-
istics of Hitlerian diplomacy – the professions of a desire for peace while
preparing for and regularly threatening war, repetitious assurances of enter-
taining ‘no further territorial ambitions’ while pursuing a step-by-step plan to
acquire further vast expanses of Lebensraum, continuous violation of treaty
guarantees and proposals ‘to sanctify treaty-breaking by sealing a new
treaty’149 – was a technique integral to the US approach to treaty making
with American Indians from the first moment of the Republic.
That Hitler was well aware of other aspects of the process through which
‘the Nordics of North America’ had successfully undertaken ‘the winning of
the west’,150 and that he set about adapting them to the markedly different
circumstances in which he was operating, is beyond dispute. There is no
logical reason to assume that he was not equally aware of the diplomatic/
treaty-making dimension as well. On the contrary, since Hitler was instructed
146 See Churchill, A Little Matter, above n 119; Cave, above n 142; Kakel, American
West, above n 129; Kakel, Holocaust, above n 145; Lindsay, above n 113; Mann,
George Washington’s War, above n 93; Madley, above n 113; David E Stannard,
American Holocaust (Oxford University Press, 1992); Lilian Friedberg, ‘Dare to
Compare: Americanizing the Holocaust’ (2000) 24 American Indian Quarterly
353; Andrew Woolford, Jeff Benvento and Alexander Laban Hinton (eds), Colo-
nial Genocide in Indigenous North America (Duke University Press, 2014).
147 The quotation is from the title of Rodolfo Acuña, Occupied America (Canfield
Press, 1972), but is obviously applicable to American Indians.
148 The term in quotation marks was first popularised by Maxine Rodinson’s Israel
(Pathfinder Press, 1973), and has since evolved into the descriptor of an entire
analytic paradigm. See Lorenzo Veracini, Settler Colonialism (Palgrave Macmillan,
2010); Damien Short, Redefining Genocide (Zed Books, 2016).
149 Gollancz et al, above n 36, 42.
150 Among books Hitler is known to have admired is amateur historian cum US
President Theodore Roosevelt’s triumphalist – and deeply racist – The Winning of
the West (G P Putnam’s Sons, 1889–1896). See Klaus P Fischer, Hitler and
America (University of Pennsylvania Press, 2011) 11–12.
in geopolitics by no less than Karl Haushofer151 and read widely on matters

bearing on the history of US–Indian relations,152 it would be astonishing if he
was not.
The United States has long employed a line of legal argumentation closely
paralleling the above-discussed ‘genocide was not really genocide if we com-
mitted it’ mode of denial, to the effect that treaties with Indigenous Nations,
unlike the treaties with European nations entered into and broken by the
nazis, were never ‘really’ treaties in the first place. This dates from Chief Jus-
tice John Marshall’s 1831 opinion in Cherokee v Georgia, holding that US
relations with American Indians were sui generis, ‘marked by peculiar and
cardinal directions which nowhere else exist’, and were uncontemplated in the
law of nations.153 While Marshall’s assertion contradicted US legal doctrine
until that point,154 as emphasised in the dissenting views expressed by other
justices in Cherokee itself,155 it has underpinned the country’s Indian policies
ever since.
The utility of Marshall’s fabrication in lending an aura of legitimation to
the fulfilment of settler ambitions is demonstrated by the fact that, despite
much bitterness accruing from the US wars to win and retain independence
151 See Kershaw, Hitler, 1889–1936, above n 6, 248–9.

152 It may be that ‘Hitler had a magpie mind [and] speed-read books looking for
material he counted as useful – meaning anything that fitted into his mosaic of
misplaced historical analogy and pseudoscience’, but that hardly diminishes the
fact that he was influenced by what he read, or that he apparently read a lot.
Among the 16,000-odd books comprising his personal trove were many ‘well-
thumbed volumes’ – including translations of historical and theoretical works by
Americans – replete with his marginalia and evidence that he was ‘an inveterate
underliner’. See ‘Know a Man by His Books’, The Economist, 2 October 2008;
Timothy W Ryback, Hitler’s Private Library (Alfred A Knopf, 2008).
153 Cherokee v Georgia 30 US (5 Pet) 1, 16 (1831). For further analysis, see Ward
Churchill, Acts of Rebellion: The Ward Churchill Reader (Routledge, 2003) 8–11.
154 As Secretary of State Thomas Jefferson put it in 1793, ‘[T]he Indians [have] full,
undivided and independent sovereignty as long as they choose to keep it, and
that might be forever.’ Or, to quote Attorney General William Wirt in 1828,
insofar as ‘Indians are independent to the purpose of treating, their independence
is to that purpose as absolute as any other nation … Like all other nations, they
have the power of war and peace. Like any other nation, their territories are
inviolable by any other sovereignty … They are entirely self-governed – self-
directed. They treat, or refuse to treat, at their pleasure; and there is no human
power that can rightly control their discretion in this respect.’ Andrew A Lips-
comb (ed), The Writings of Thomas Jefferson (Thomas Jefferson Memorial Associ-
ation, 1903–1904) vol 1, 341; ‘Georgia and the Treaty of Indian Spring [July
28, 1828]’ in Official Opinions of the Attorneys General of the United States (US
Government Printing Office, 1869) vol 11, 110–66; quotations at 133–4.
155 Marshall’s opinion was endorsed by only one justice. Four others lodged strong
dissents on the grounds indicated, but not jointly. Hence, Marshall’s view pre-
vailed. See Jill Norgren, The Cherokee Cases (McGraw-Hill, 1996) 100–9; Echo-
Hawk, above n 61, 87–120.
84 Ward Churchill
from Britain, his ‘trilogy’ of opinions ostensibly defining the legal relationship
between the United States and Indigenous Nations – not only Cherokee, but
the second of the so-called Cherokee Cases, Worcester v Georgia (1832), and the
earlier Johnson v McIntosh (1823)156 – were quickly cited as precedent by the
courts of the three remaining Anglophone settler colonies/states of Canada,157
Australia158 and New Zealand (Aotearoa).159 By the 1840s, they were being
embraced in recommendations on colonial policy advanced by the British
House of Commons.160 The Privy Council was still invoking McIntosh in opi-
nions pertaining to its African colonies well into the twentieth century.161
The most striking example is Canada, where the courts began to invoke
Marshall’s ‘Indian opinions’ almost before the ink was dry on the British
North America Act 1867 (UK) making it self-governing.162 More than a
century later, the Canadian Supreme Court was still extolling McIntosh as
‘the locus classicus of the principles governing aboriginal title’,163 and thus
consistently ruling that ‘an Indian treaty is unique; it is an agreement sui
generis which is neither created nor terminated according to the rule of
international law’.164 In 1990, and again in 1996, it went further, draw-
ing upon the earlier-mentioned – and Cherokee-derivative – Lone Wolf
156 Worcester v Georgia 31 US (6 Pet) 515 (1832); Johnson v McIntosh 21 US (8

Wheat) 543 (1823).
157 See Bruce Clark, Native Liberty, Crown Sovereignty (McGill-Queens University
Press, 1991) 12–28.
158 Since Australia did not engage in treaty making with Indigenous Peoples, the
colony’s early jurists were interested mainly in Marshall’s treatise on discovery
doctrine. See Blake A Watson, ‘The Impact of the American Doctrine of Dis-
covery on Native Land Rights in Australia, Canada, and New Zealand’ (2011)
34 Seattle University Law Review 507, 512–18; Peter H Russell, Recognizing
Aboriginal Title (University of Toronto Press, 2005).
159 Having entered into the Treaty of Waitangi with the islands’ Indigenous Maoris
in 1840, New Zealand’s jurisprudence has from the outset hewed closely to
Marshall’s formulations. See Queen v Symonds (1847) NZPCC 387 [380], [390],
[392]; Watson, ‘Impact of the American Doctrine’, ibid 526–9.
160 During 1840, legal authority Edward Gibbons Wakefield, testifying before a
select committee formulating recommendations regarding colonial policy per-
taining to New Zealand, explained the ‘well-understood principle of law in
America’ in ‘Johnstone v. Mackintosh’. In its report, submitted a year later, the
committee elevated Marshall’s view to ‘a principle of international law’ (emphasis
added) and recommended that it be adopted. See Select Committee on New
Zealand, Report (House of Commons, 1841) vii, ix, 48, 55, quoted in Watson,
‘Impact of the American Doctrine’, above n 158, 523–4.
161 See, eg, In Re Southern Rhodesia (1919) AC 211; Tijani v Sec, Southern Nigeria
(1921) 2 AC 399; Oyekan v Adele (1957) 2 All ER 788.
162 Connelly v Woolrich (1867) 11 LCJ 197.
163 Calder v British Columbia (AG) (1973) SCR 313 [120].
164 Simon v Queen (1985) 2 SCR 387 [404]. Canada cited both McIntosh and Worcester
as well as the more recent US v Santa Fe Railroad 314 US 339 (1941) as pre-
cedents. The passage is repeated in R v Sundown (1999) 1 SCR 393 [24].
opinion to assert Canada’s ‘right’ unilaterally to alter the terms of treaties

with Indigenous Nations.165
The upshot is that, in both the United States and its Canadian appendage,
treaties with Indigenous Nations are accorded the status of being, at most,
‘analogies to … international law’ imbedded within their respective domestic
codes,166 and both countries have taken ‘a reductionist approach to inter-
preting their Treaty obligations, but an expansionist approach to interpreting
the privileges they gained’ therefrom.167 The postures assumed by both
countries are in obvious violation of Art 27 of the Vienna Convention, holding
that ‘a party may not invoke the provisions of its internal law as justification
for its failure to perform a treaty’, as well as Art 37 of the UN’s Declaration on
the Rights of Indigenous Peoples,168 wherein states are obliged to observe and
enforce ‘sui generis’ treaties no less than others. Only Canada has as yet been
called to account on that score by an international body.169
Despite the ubiquitous transgressions of Indigenous rights perpetrated by
countries that internalised Marshall’s fabrications to mask the criminality of
their policies, only the US record served as the template for Hitlerian diplo-
macy. This, added to the doctrinal overlaps between manifest destiny and
Lebensraumpolitik as rationales for expansionism, the racism infusing both
nazism and Euroamerica’s ‘Aryanist’ ideologies,170 the mutual embrace of
165 R v Sioui (1990) 1 SCR 1025; R v Badger (1996) 1 SCR 771. See Ann Laquer
Estin, ‘Lone Wolf v. Hitchcock: The Long Shadow’ in Sandra L Cadwalader and
Vine Deloria Jr (eds), The Aggressions of Civilization (Temple University Press,
1984) 215.
166 John Borrows, ‘Wampum at Niagara: The Royal Proclamation, Canadian Legal
History, and Self-Government’ in Michael Asch (ed), Aboriginal and Treaty Rights
in Canada (University of British Columbia Press, 2011) 169, 171. See also Grace
Li Xiu Woo, Ghost Dancing with Colonialism (University of British Columbia
Press, 2011) 182; Christine A Klein, ‘Treaties of Conquest: Property Rights,
Indian Treaties, and the Treaty of Guadalupe Hidalgo’ (1996) 26 University of
New Mexico Law Review 201, 211.
167 Indigenous Bar Association of Canada, ‘Strengthening Partnerships between
States and Indigenous Peoples: Treaties, Agreements, and Other Constructive
Arrangements’ (16–17 July 2012) 4.
168 United Nations, Declaration on the Rights of Indigenous Peoples, UN Doc A/RES/61/
295 (13 September 2007).
169 Hul’qumi’num Treaty Group v Canada, Inter-American Commission on Human
Rights Case No 12.374, accepted on 30 October 2009. See also Séanna Howard
and Akilah Kinnison, ‘Submission to the U.N. Committee on the Elimination of
Racial Discrimination by Hul’qumi’num Treaty Group in Relation to Canada’s
19th and 20th Periodic Reports’ (20 January 2012) 3–4.
170 It is worth noting that Hitler proclaimed the then much-celebrated American
zoologist – and staunch Aryanist – Madison Grant’s 1916 book, The Passing of
the Great Race, to be his ‘bible’. See Kühl, above n 48, 85. For deeper back-
ground, see Reginald Horsman, Race and Manifest Destiny (Harvard University
Press, 1981).
86 Ward Churchill
eugenics,171 the massive conscription of racially defined ‘inferiors’ as slave

labour,172 genocide and aggressive war completes the picture of how the
United States provided the model upon which Hitler’s intended empire was
to be constructed. Césaire’s ‘discourse on colonialism’ has been validated to an
extent that perhaps not even he could have imagined.
In any contest, including the struggle to effect constructive socioeconomic
and political change, it is imperative, as the Chinese strategist/philosopher
Sun Tzu famously observed more than 2,500 years ago, truly to ‘know your
enemy’.173 Sun went on to say that the key to whatever success one’s opponent
might enjoy will be invariably be ‘based on deception’.174 Placing ever
greater emphasis on and corresponding awareness of the US role as the proto-
type of ‘Hitler’s empire’ will go far towards stripping away the liberal
democratic veneer under which it has sought to conceal the ugly reality,175
exposing it for what it is and has always been. Given the dominance of the
United States in the contemporary world imperial system, this is a worthy
objective, shedding light as it does on the nature of the system as a whole.176
171 Prior to the 1930s, the United States led the world not only in theorising and
teaching eugenics, but in implementing eugenics policies. Both before and after
the nazi assumption of power, the Rockefeller Foundation and other US funders
underwrote the Kaiser Wilhelm Institutes and other centres of ‘racial research’ in
Germany, and as late as 1935 American eugenicists were still accepting honours
for their contributions to ‘racial science’ from German universities. Kühl, above
n 48, 20–1; Edwin Black, War Against the Weak (Four Walls Eight Windows,
2003) 277–312.
172 This applies not only to the antebellum era of formal slavery in the United
States, but to the de facto slavery embodied in the system of ‘convict leasing’ and
penal ‘chain gangs’. By comparison, the nazis’ utilisation of slave labour was far
less extensive and sustained. See Edward E Baptiste, The Half Has Never Been
Told (Basic Books, 2014); Ned Sublette and Constance Sublette, The American
Slave Coast (Lawrence Hill Books, 2016); Douglas A Blackmon, Slavery by Another
Name (Doubleday, 2008). For comparison purposes, see Tooze, above n 128,
513–38; Mazower, above n 27, 307–18.
173 Sun Tzu, The Art of War (Filaquarian, 2007) 49.
174 Ibid 7.
175 The guise itself is deceptive. Despite its image as the preferable alternative to
fascism, liberalism was the source of colonialism in its modern form, and the
horrors described by Césaire. The vaunted ‘liberty’ it purports to enshrine was
from the beginning a benefit accruing exclusively to the colonising population,
racially defined, never to the colonised ‘others’. These dynamics are explored in a
number of sources. For a succinct and elegant handling, see Lisa Lowe, The
Intimacies of Four Continents (Duke University Press, 2015) 101–33.
176 See especially Ellen Meiksins Wood, ‘Democracy as Ideology of Empire’ and
Adam Hanieh, ‘Praising Empire: Neoliberalism under Pax Americana’, both in
Colin Mooers (ed), The New Imperialists (Oneworld, 2006) 9, 167. For additional
perspectives, see James H Mittleman (ed), Globalization (Lynne Rienner, 1997);
Richard Falk, Predatory Globalization: A Critique (Polity, 1999); James Petras and
Henry Veltmeyer, Globalization Unmasked (Zed Books, 2001).
It reveals that those countries seeking to justify their present settler colonial
configurations by espousing legal doctrines arising from the Marshall trilogy, all
of them important players in the system of globalised imperialism, are ultimately
appealing to principles enunciated far more clearly by nazism’s kronjurist (‘crown
jurist’) Carl Schmitt.177 This exposure of the dictatorial core of (neo)liberalism’s
vaunted ‘democratic alternative’ to the totalitarian impulse of modernity in
ways previously unnoticed even by Schmittian scholars can only serve to further
discredit the principle ruse through which the (neo)colonial order is stabilised
and perpetuated.178 Here, not only the domestic legal codes and triumphalist
national discourses of the United States and its imitators are at issue,179 but
177 In his 1922 essay, Politische Theologie (Political Theology), a term he employed to
describe the concept of sovereignty, Schmitt defined ‘the sovereign’ as being ‘he
who decides upon the exception’, ie who is empowered to step beyond the rule of
law ‘in the public interest’. This is precisely the circumstance Marshall sought to
legitimise in McIntosh through the fabrication of new law. His innovation,
refined in the Cherokee Cases, purported to include American Indians under the
umbrella of the US legal system while simultaneously excluding them from it, a
manoeuvre readily encompassed within Schmitt’s concept of ‘the state of excep-
tion’. Marshall argued from a position in which sovereignty was theoretically
vested not in an individual, but in ‘the people’ by way of the state, while
Schmitt argued the opposite. In a 1921 essay, Schmitt demonstrated that the
supposedly unbridgeable distinction is illusory. For the passage quoted, see Carl
Schmitt, Political Theology (MIT Press, 1988). For the implications of Schmitt’s
theory, and its applicability to liberal democratic contexts, see Giorgio Agam-
ben, State of Exception (University of Chicago Press, 2005) esp 35, 54–5. Also see
Georgio Agamben, Homo Sacer (Stanford University Press, 1998) esp 49–50.
178 In Die Diktator (translated as Dictatorship) (1921) he introduced the concept of
‘the state of exception’ crystallised a year later in Political Theology (ibid). Schmitt
pointed out that, while ‘the constitution of a state [may be] democratic’, it will
invariably provide for the declaration of a ‘state of emergency’ (Ausnahmezustand)
by the head of state during which constitution procedures are suspended to one
or another extent, and that ‘every [such] exercise of state power independent of
the approval of the majority can be called dictatorship’. This was the procedure
used by the nazis to gain power in 1933 and to consolidate and sustain it.
Agamben observes that exercise of what might be called ‘the dictatorial option’
has always been routine practice in liberal democracies, and that it has been
uninterruptedly employed since 2001. See Carl Schmitt, Dictatorship (Polity,
2014) 148–79; Agamben, State of Exception, ibid 1–31. For an interesting, mar-
ginally successful, attempt to apply these concepts to Indigenous Nations, see
Mark Rifkin, ‘Indigenizing Agamben: Rethinking Sovereignty in Light of the
“Peculiar” Status of Native Peoples’ in Marcelo Svirsky and Simone Bignall (eds),
Agamben and Colonialism (Edinburgh University Press, 2012) 77. On the ‘“pecu-
liar” status’ itself, see Natsu Taylor Saito, From Chinese Exclusion to Guantánamo
Bay (University Press of Colorado, 2006) 19–22, 28–31.
179 For a broad analytical survey of such discourses in the United States, see Amy
Kaplan and Donald L Pease (eds), Cultures of United States Imperialism (Duke
University Press, 1993). As prime examples of similar swill being expounded on
an even grander scale, see Niall Ferguson, Empire (Basic Books, 2003); Niall
Ferguson, Civilization (Allen Lane, 2011).
88 Ward Churchill
entire vectors of international law concocted since 1945 as a means of uni-

versalising their self-serving juridical fables.180
Marking a path
To know how to get to where you want to go, you have to know where you
are right now. And in order to know that, it’s necessary to know where it was
you were the day before. Past, present, future. They’re all parts of the same
whole. Lose track of any one of them, you’re lost.
(Noble Red Man (Mathew King), Oglala Lakota, 1982)
The reality is that liberalism is simply the less honest face of nazism, and
quite possibly the face nazism itself would have displayed a century or more
after winning its war of extermination in the east.181 This reality necessitates
a fundamental change in the ‘rules of engagement’ observed by those pur-
porting to oppose the status quo and seek its constructive transformation.
From that perspective, placing reliance upon state-sanctioned methods in
hopes of effecting liberal ‘solutions’ to problems at hand is no less patently
absurd than arguing that such an approach might have led to fundamental
alterations of nazism.182
The notion that anything of substance obtains from such purely cosmetic
gestures as the official ‘apologies’ lately offered by the United States to the
Kanaka Maoli (Indigenous Hawaiians) and American Indians for the devasta-
tion of their societies, usurpation of their governments, obliteration of their
economies and expropriation of their homelands – absent any concrete form of
restitution – is ludicrous.183 So too, the idea that state/settler-sponsored ‘truth
180 The issues are brilliantly distilled in Antony Anghie, Imperialism, Sovereignty, and
International Law (Cambridge University Press, 2005) 211.
181 A solid case has been made that the basis of the massive popular support
enjoyed by Hitler until the autumn of 1943 was not that Germans were more
racist than other Europeans, but the petty benefits they gleaned from the nazis
having established a remarkably generous welfare state. The fact that German
living standards were being underwritten though the systematic plunder of
non-Germanic ‘others’ was accepted or simply ignored. See Götz Aly, Hitler’s
Beneficiaries (Metropolitan Books, 2007).
182 Myriad contradictions exist in reliance upon state-sanctioned methods. One
aspect is fruitfully examined in Peter Gelderloos, How Nonviolence Protects the State
(South End Press, 2007).
183 Through a joint resolution effected on 23 November 1993 (PL 103–150), the
103rd Congress formally apologised to the Kanaka Maoli for the US role in
illegally overthrowing their government a century earlier, annexing their home-
land and leaving them destitute as a people. Nothing has been done to reinstate
their government, restore their property or compensate them for the damages
inflicted. In another joint resolution on 20 April 2009 (PL 111–118 § 8113),
the 111th Congress apologised to American Indians ‘on behalf of the United
States’ for the ‘long history of depredations and ill-conceived policies of the
and reconciliation’ processes promoted as ‘healing’ the psychic and other

wounds inflicted on Indigenous individuals by the ongoing reality of geno-
cidal colonisation might, unless attended by a bedrock change in power rela-
tions, be anything other than a means of instilling acquiescence among the
subjugated.184 Finally, the premise that legislative/juridical tweaks and policy
adjustments designed to make the settler-state structure more ‘inclusive’ do
anything other than strengthen the present order is delusional.
To locate genuinely liberatory alternatives to the continuation of business as
usual, it is necessary to look outside the liberal paradigm altogether. Marxism,
which exhibits much the same degree of overlap with liberalism as did nazism,
offers nothing in that regard.185 Anarchism, given its foundational rejection of
the state – separating itself from the eurosupremacist stream of (neo-)Hegelian
mystification as one of the more important common denominators linking
the other three186 – is in many respects far more promising. Its
promise resides mainly in its capacity to intersect with the precolonial modes of
non-authoritarian political organisation still maintained by many Indigenous
societies around the world.187 The latter, as explained by Indigenous legal
Federal Government’, including ‘forced removals [and] bloody … massacres’, to

‘bring healing to this land’ without ‘authoriz[ing] or support[ing] any claim
against the United States’. The United States is not alone. On 11 June 2008,
Canadian Prime Minister Stephen Harper issued an apology to the survivors of
the country’s century-long programme of effecting the forced transfer of Indi-
genous children to residential facilities where they were subjected to systematic
‘deculturation’, but hedged the issue of state liability. In Australia, after a highly
publicised official 1996 report concluded that a programme similarly targeting
Aboriginal children constituted genocide, the Prime Minister simply announced
that there would be no apology. To date, the only country to acknowledge
having perpetrated genocide against Indigenous Peoples, and to officially apolo-
gise for it, has been Germany with regard to the Namas and Hereros of present-
day Namibia in 2004. In 2012, however, when it became apparent that the
victims might be entitled to reparations, the acknowledgement was withdrawn.
For further background, see Brooks, above n 56.
184 This has been the standard ‘remedy’ applied in settler-colonial contexts, from
South Africa to Australia to Canada. For a penetrating critique, see Roland
Chrisjohn and Sherry Young with Michael Maraun, The Circle Game (Theytus
Books, 1997) esp 12–25, 99–114. See also Neil Funk-Unrau and Anna Snyder,
‘Indian Residential School Survivors and State-Designed ADR: A Strategy for
Co-Optation?’ (2007) 24 Conflict Resolution Quarterly 285. More broadly, see
Leigh A Payne, Unsettling Accounts (Duke University Press, 2008).
185 For explication, see Churchill, Acts of Rebellion, above n 153, 247–62. A more
comprehensive critique will be found in Ward Churchill, ‘Unthinking Euro-
centrism: The Indigenist Alternative to Marxian “Anti-Imperialism”’ in Deepa
Naik and Trenton Oldfield (eds), Critical Cities (Middlecourt Press, forthcoming).
186 For a thorough demystification, see Teshale Tibebu, Hegel and the Third World
(Syracuse University Press, 2011).
187 I have explored this prospect more fully in Churchill, Acts of Rebellion, above
n 153, 263–74.
90 Ward Churchill
scholars such as Sharon Venne and Irene Watson,188 are governed by concep-
tions of law radically at odds with that which has defined the malignant history
traced herein, retaining their integrity and viability despite concerted efforts of
the colonisers to extinguish them.
In such resilience can be discerned what Marcuse described as ‘the Archi-
medean point for a larger emancipation’.189 Insofar as they exemplify ways in
which relations not only between humans, but between humans and the rest
of the natural order, can be arranged in a non-statist and sustainable fashion –
thus serving as what, in Marcusian terms, might be described as ‘counter-
models’190 – the successes of a host of desperate, protracted and typically
‘invisible’ struggles of Indigenous Peoples to maintain their societies as living
entities is truly fortunate for the growing segment of the settler population
purporting to embrace one or another variant of anarchism (or ‘anti-
authoritarianism’, as has been the preferred term in some circles since the late
1960s).191
There is little need for the settler opposition to squander its energies theorising
how sustainably egalitarian socio-political/economic relations ‘might work in
practice’ (unless they are as afflicted as those they purportedly oppose with the
188 Sharon Helen Venne, Our Elders Understand Our Rights (Theytus Books, 1999);
Irene Watson, Aboriginal Peoples, Colonialism and International Law (Routledge,
2015).
189 Herbert Marcuse, ‘Repressive Tolerance’ in Robert Paul Wolff, Barrington
Moore Jr and Herbert Marcuse, A Critique of Pure Tolerance (Beacon Press, 1965)
95, 111.
190 In his Essay on Liberation, Marcuse called for ‘a methodological disengagement
from and refusal of the Establishment, aiming at a transvaluation of values’,
observing that: ‘Such practice involves a break with the familiar, the routine
ways of seeing, hearing, feeling, and understanding things so that the organism
may become receptive to the potential forms of a nonaggressive, nonexploitative
world.’ He implies that the best approach might be exploration of what Carl
Boggs termed ‘prefigurative relations’ through actualisation of countermodels –
or ‘counter-institutions’ – serving as ‘the embodiment within the ongoing
political practice of the movement, of those forms of social relations, decision
making, culture, and human experience that are the ultimate goal’. Entirely
Eurocentric, both theorists were oblivious to the possibility that the alternatives
they were seeking might already exist outside the western paradigm. None-
theless, their ideas continue to figure prominently in the thinking of Euro-
american oppositionists. For the passages quoted, see Herbert Marcuse, An Essay
on Liberation (Beacon Press, 1971) 6; Carl Boggs, ‘Marxism, Prefigurative Com-
munism, and the Problem of Workers’ Control’ (1977) 11 Radical America 100.
See also Daniel Murray, ‘Prefiguration or Actualization? Radical Democracy and
Counter-Institution in the Occupy Movement’, Berkeley Journal of Sociology, 3
November 2014 <http://berkeleyjournal.org/2014/11/prefiguration-or-actualiza
tion-radical-democracy-and-counter-institution-in-the-occupy-movement/>.
191 Rudi Dutschke, ‘On Anti-Authoritarianism’ in Carl Oglesby (ed), The New Left
Reader (Grove Press, 1969) 243.
longstanding eurosupremacist compulsion to pretend to have invented what

has been appropriated from other cultures192). What is necessary is for the
settler society’s self-proclaimed oppositionists to overcome the staggering
sense of entitlement that allows them to demand that ‘equality of oppres-
sion’ be acknowledged as a precondition to their participation in alliances.
With all due respect to Audre Lorde, the settler colonial state, being by its
very nature hierarchical, has of course spawned a ‘hierarchy of oppression’.193
Abolishing it requires that a hierarchy of another sort – ‘something like an
order of priorities’194 – be adopted by any movement serious about accom-
plishing the task.
Certain realities present themselves. Absent the land upon which they have
constructed and maintain themselves, every square inch of which has been
expropriated from the peoples Indigenous to it, settler states would not –
indeed, could not – exist. Absent the ongoing dispossession/internal colonisation
of Indigenous Peoples, the oppression by the state upon various sectors of the
settler society, both historically and currently, would have been and remains
impossible. A few of the very real oppressions suffered by the bulk of the non-
Indigenous populace as a consequence of the white supremacist/corporatist/
militarist/authoritarian structures of existing settler/police states might be
diminished without reversing the ‘original sin’ bound up in those states’
creation and consolidation.195 However, pursuing such reformist objectives
192 For a compact survey of the duration and magnitude of Europe’s cultural
imperialism, see Ward Churchill, ‘Indigenous Peoples and Imperialism’ in
Immanuel Ness and Zak Cope (eds), The Palgrave Encyclopedia of Imperialism and
Anti-Imperialism (Palgrave Macmillan, 2016) vol 2, esp 1266–75, 1278–80.
193 See Audre Lorde, ‘There is No Hierarchy of Oppression’ (1983) 14 Homophobia
and Education 9. Recognising that oppression is both layered and differentiated
does nothing to nullify either the obligation to oppose it in all forms or the need
for solidarity among those oppressed in whatever form. It is, however, to insist
that genocide and, say, wage discrimination are by no means equivalent
oppressions.
194 Terry Eagleton, The Illusions of Postmodernism (Blackwell, 1996) 93.
195 It is a commonplace in the United States to refer to slavery – meaning the
enslavement of black people imported as chattel from Africa and subsequently
‘bred’ there for commercial purposes – as having been the country’s ‘original sin’.
It does nothing to diminish the horror or magnitude of criminality embodied in
the US slave system to observe that, but for the genocide already inflicted upon
American Indians in the Atlantic coastal regions – a significant dimension of
which was their large-scale enslavement by English colonisers, both as a
‘domestic’ source of labour and as a lucrative export in trade with the West
Indies – and concomitant seizure of their land, there would have been nowhere
for African chattel to have been imported to. For a classic iteration of the stan-
dard black/white/slavery framing, see Roger Cohen, ‘Beyond America’s Original
Sin’, New York Times, 20 March 2008 <http://www.nytimes.com/2008/03/20/op
inion/20cohen.html>. A fuller rendering will be found in Jim Wallis, America’s
Original Sin (Brazos Press, 2016) (of the book’s 226 pages of text, three are
devoted to ‘Native Americans’). On black chattel slavery in the United States,
92 Ward Churchill
would not only be abysmally self-serving,196 but strategically short-sighted

and self-defeating.
Even if such efforts were successful in the near term, the states would
remain the same genocidal, colonising entities they have been from the outset.
Whatever abatements in the system of racial/class/gender oppression might be
attained, it will have been conceded only as a means of containing/co-opting
‘social unrest’, thereby minimising disruption of business as usual.197 With
nothing fundamentally altered, the systemic oppressions alleviated will simply
including commercial breeding, see the works cited above n 172. On the en-
slavement of Indigenous people in North America that began earlier, lasted into
the nineteenth century, and initially extended northward into New England, see
Alan Gallay, The Indian Slave Trade (Yale University Press, 2002) esp 288–314.
196 The record of ‘the’ feminist movement in the United States – often referred to as
‘the white women’s movement’ by people of colour – is instructive. The impli-
cations of ‘talk[ing about] glass ceilings without making sure that everyone’s in
the building first’ are glaringly obvious. As Marjorie Romeyn-Sanabria con-
cludes, feminism ‘is for white women [and by] “white” I’m not talking exclu-
sively about race. I’m talking about native-English-speaking, upper-middle-class,
educated women. They’re the only group of women for whom feminism has any
relevance or long-term benefit.’ See Sarah Jaffe, ‘Trickle-Down Feminism’, Dis-
sent, Winter 2013 <https://www.dissentmagazine.org/article/trickle-down-fem
inism>; Marjorie Romeyn-Sanabria, ‘Feminism Is for White Women’, Arts.Mic,
12 August 2013 <https://mic.com/articles/60319/feminism-is-for-white-wom
en#.TqCEErdtJ>.
197 Consider the example recently offered by the US version of the so-called Occupy
Movement. While its targeting of the concentrated personal wealth wielded by
the ‘1 per cent’ of the population comprising the true financial/corporate élite
responsible for a plethora of social and economic oppressions was quite appro-
priate, and the juxtaposition reflected in its claim to represent the interests of
‘the other 99 per cent’ made for a spate of catchy slogans, the implications
attending its insistence upon casting the latter as an undifferentiated blob ren-
dered it unsustainable. Occupy’s ‘analysis’, effectively placing corporate execu-
tives receiving ‘compensation’ of a quarter of a million dollars a year ‘in the same
boat’ as homeless people living in utter destitution, was from the outset deeply
repellent to poor communities – especially those of colour – thereby sharply
constraining the movement’s ability to expand and gain momentum. The pro-
verbial death knell was sounded within weeks of the movement’s nominal
inception, as the relatively few organisations of colour willing to explore the
possibility of forming alliances were repeatedly informed by Occupy’s existing
core groups of predominantly young, white, relatively affluent, stylistic anti-
authoritarians that introducing issues of race ‘would be divisive’ (thus was an
Indigenous delegation rebuffed in Albuquerque, New Mexico). Having dis-
sipated only months after claiming the international spotlight, the purportedly
‘radical’ movement’s legacy will consist of a handful of liberal reforms of banking
regulations, tax codes, student loan programmes and perhaps the health care
system. For an effusively self-congratulatory overview advanced in the moment,
see Sarah van Gelder and the Staff of YES! Magazine, This Changes Everything:
Occupy Wall Street and the 99% Movement (Berrett-Koehler, 2011).
re-emerge, likely in a more virulent and intractable form.198 Having under-

gone several major and any number of lesser repetitions over the past century
and a half,199 the cycle is not – or at least should not be – especially mys-
terious. To contend that yet another iteration might finally yield the desired
result is to advocate the political equivalent of alchemy.
Only by attacking the hierarchy at its root, eliminating the base or
foundation upon which the structure of oppression is contingent, can it be
abolished. Only through decolonisation of the Indigenous ‘nations within’
every settler state can the multifaceted non-Indigenous societies hope to free
themselves from the array of oppressions they confront.200 Only resumption of
genuinely self-determining rights by internally colonised Indigenous
Nations – specifically, their ability to ‘freely determine their political status and
freely pursue their economic, social and cultural development’ by controlling
and ‘freely dispos[ing] of their natural wealth and resources’201 – entails the
198 To cite one example, the concessions ending the Jim Crow (apartheid) mode of
racial oppression in the United States during the 1960s had, by the mid-1970s,
effectively quelled the black insurgency. By the early 1980s, such material gains
had been reversed to such an extent that the objective conditions suffered by the
black population had actually worsened, although black political participation
markedly increased. The trend has continued into the present moment, with the
result that while unprecedented numbers of African Americans hold elected
office and state positions, the annual income of black people overall averages 40
per cent less than that of whites, and they are unemployed at more than double
the rate of whites and incarcerated at six times the rate. The median accumulated
wealth of a black family is presently $8,348, while that of a white family is
$111,146. See Manning Marable, Race, Reform, and Rebellion (University of Mis-
sissippi Press, 1984) 168–99; ‘Distribution of Household Income by Race’,
Infoplease (2012) <http://www.infoplease.com/ipa/A0104552.html>; Bruce
Drake, ‘Incarceration Rate Widens between Whites and Blacks’, Fact Tank (Pew
Research Center), 6 September 2013 <http://www.pewresearch.org/fact-tank/
2013/09/06/incarceration-gap-between-whites-and-blacks-widens/>; Laura Shin,
‘The Racial Wealth Gap: Why a Typical White Household Has 16 Times the
Wealth of a Black One’, Forbes, 16 March 2015.
199 The rise and fall of the US labour movement is a prime example. Following the
1935 Roosevelt administration’s package of concessions, previously militant
unions consciously abandoned any broader social or political agenda, becoming
what Steven Fraser has termed ‘private welfare states’. A half-century ago, nearly
a third of the US labour force was unionised; the proportion is now barely 10 per
cent, and many of the benefits for which they traded their integrity – pensions
and subsidised health care – have largely evaporated. See Steven Fraser, The Age
of Acquiescence (Little, Brown, 2015) 202. For a deeper critique, emphasising how
the exclusionary anti-black/anti-Mexican/anti-Asian racism consistently displayed
by the labour movement contributed greatly to its demise, see J Sakai, Settlers
(Morningstar Press, 1989).
200 The phrase in quotation marks is borrowed from Vine Deloria Jr and Clifford M
Lytle, The Nations Within (University of Texas Press, 1984).
201 Article 1(1) and 1(2) of the International Covenant on Economic, Social and Cultural
Rights, 21 UN GAOR, Supp 16, 49, UN Doc A/6316 (1967), reiterated in Art
94 Ward Churchill
physical/jurisdictional deconstruction of the states themselves. Only that

literal sort of dismantlement can provide the space to revitalise traditional and
still-functioning non-statist forms of socio-political organisation while simul-
taneously undermining the states’ internal coherence and material capacity to
wield power.202
A complete reordering of the priorities displayed by the settler opposition
is thus called for. No longer can the rights of Indigenous Peoples be treated as
a peripheral issue, by those purportedly seeking to transform the existing
order.203 Nor will it suffice to simply ‘include’ Indigenous groups within
‘broader’ – namely, settler – coalitions and/or integrate ‘Indigenous planks’
into ‘broader’ oppositional agendas. The liberation of Indigenous Nations
encapsulated within the settler states must be taken as the first priority of the
movement as a whole. This is not to say that it should be the only priority,
simply that it is the essential ingredient without which none of the others can
be met. This priority is fully deserving of the ‘privilege’ it must be accorded,
as are the Indigenous Peoples who have, by every objective standard, suffered
the greatest degree of oppression under settler colonial rule.204
1(1) and 1(2) of the International Covenant on Civil and Political Rights, 21 UN
GAOR Supp 16, 52, UN Doc A/6316 (1967). For critique, see the special issue
of the Griffith Law Review (2011) devoted to the declaration.
202 Returning for a moment to the notion of ‘prefigurative relations’ (Marcuse, above
n 189), the endurance and continuity embodied in Indigenous practice stands in
stark contrast to the ‘immediatism’ reflected in the ‘temporary autonomous
zones’ envisioned by Hakim Bey and others. The tactical utility of this ‘onto-
logical’ approach is as strategically barren as Timothy Leary’s acid-drenched ‘new
age’ commune in Millbrook, New York, during the mid-1960s. See Hakim Bey,
TAZ: The Temporary Autonomous Zone, Ontological Anarchy, Poetic Terrorism
(Autonomedia, 1991); Hakim Bey, Immediatism (AK Press, 1994).
203 An especially disheartening example is that of Black Lives Matter (BLM; now the
Movement for Black Lives), a promising coalition of more than 60 organisations
formed to confront the greatly disproportionate number of unarmed African
Americans, especially young men, killed by police across the United States, and
broadening its scope to address other issues, hoping to ‘rebuild the Black Lib-
eration Movement’. Unfortunately, while BLM has noted that Latinos are also
murdered by the police at a disproportionate rate, it has neglected to mention
that ‘the racial group most likely to be killed by law enforcement is Native
Americans’. See ‘About the Black Lives Matter Network’ (2012) <http://blackli
vesmat–ter.com/about/>; Matt Agorist, ‘Police are Killing Native Americans at a
Higher Rate than Any Race, and Nobody is Talking About It’, Free Thought, 2
August 2015.
204 As with disproportionate rates of police violence (see ibid), the rate and degree of
impoverishment is another area in which American Indians are consistently
excluded from progressive analyses in the United States. A recent overview pro-
duced by the Institute for Policy Studies devotes exactly two sentences of its
thirty pages to ‘Native American Households’, while the situation of ‘Asian-
American and Pacific Islanders’ is addressed in eight sentences. The rest of the
study focuses entirely upon growing wealth disparities between whites and
African Americans and Latinos. American Indians were excluded from the
None of this is to say that placing ‘first peoples first’, as the saying goes,
will make the struggle either quick or painless. Quite the contrary: since it
goes far deeper than anything that has preceded it, it will undoubtedly be
protracted and exceedingly bitter. Each step taken, however, will be a step
towards, rather than away from, Marcuse’s ‘larger emancipation’. In the
alternative, should the various elements of the non-Indigenous population
continue to place a greater priority upon strategies intended mainly – or
solely – to increase their own comfortability within the extant order of settler-
state colonialism, they will simply remain what they claim to oppose, the
steadily evolving system of global domination will complete itself and the
malevolence of the Washingtonian/Hitlerian vision will at last be fulfilled. By
now, the implications are not only genocidal but truly omnicidal. The choice
seems obvious.
comparison. The results turn out rather differently when the rate/depth of
impoverishment suffered by the groups in question is compared to that of the
reservation-based Indigenous population in the United States, where ‘extreme
poverty’ – federally defined as per capita income of less than $3,000 annually –
has run six times the national average since 2000. On the San Carlos Apache
Reservation in Arizona, one in four people try to subsist on that pittance; on the
Tohono O’odam Reservation in Arizona, one in five are forced to do the same.
On the Pine Ridge Sioux Reservation in South Dakota, where two-thirds of the
population fall well below the poverty line, per capita income in the town of
Allen was $1,539 in 2010. Buffalo County, the poorest in the United States, is
on the nearby Crow Creek Sioux Reservation, also in South Dakota. Such data
are indicative. See Dedrick Asante-Muhammed, Chuck Collins, Josh Hoxie and
Emanuel Nieves, The Ever-Growing Gap (Institute for Policy Studies, 2016)
<http://www.ips-dc.org/wp-content/uploads/2016/08/The-Ever-Growing-Gap
-CFED_IPS-Final-2.pdf>; US Bureau of the Census, American Indian and Alaska
Native Census 2000 Data for 539 Tribes <http://www.census.gov/aian/census_
2000/census_2000_data_for_ 59_ tribes.html>; US Bureau of the Census,
American FactFinder <https://factfinder.census.gov/faces/nav/jsf/pages/commu-
nity_facts.xhtml>; Cara Hetland, ‘South Dakota has Country’s Poorest County’,
Minnesota Public Radio, 1 October 2002 <http://news.minnesota.publicradio.org/
features/ 200210/02_het–landc_census-m/>; Ojibwa, ‘Indians 101: Reservation
Poverty’, Daily Kos, 6 December 2012 <http://www.dailykos.com/story/2012/12/
6/1167663/-Indians-101-Reservation-Poverty>. See also Harvard Project on
American Indian Economic Development, The State of the Native Nations (Oxford
University Press, 2007) 238–9.
Chapter 5
First Nations, Indigenous

Peoples: our laws have always
been here
Irene Watson
Introduction
I write this chapter from a critical First Nations centre.1 I honour and
remember my mother who always brought me back to centre – whom I am –
and the Elders. As my mother advised, ‘elders are meant to be the wave makers
and they should make the waves which will bring the change’, so that we can
move from mere survival to living the lives we are here to live. In order to
live beyond the state of bare survival which colonialism would afford us, the
re-centring of First Nations laws, knowledges and relationships to land is
essential. It is essential that we become free ‘in keeping with the original and
independent existence of our ancestors’.2
Meanwhile, in the colonised space which we occupy, our lives are being
harvested for assimilation by the colonial beast – the muldarbi.3 The states
call it ‘development’ and ‘progress’, but the name we give to this absorbing,
colonising process is genocide.4 The gatekeepers of the state and inter-
nationally have realised that they are vulnerable to accusations of genocide,
and they are wide open to them. There is no shortage of evidence. So they are
working hard to disable the avenues that First Nations Peoples could use to
prosecute the crime of genocide. First, a successful prosecution might result in
1 Taking up the idea of Aboriginal Law occupying the centre, see Irene Watson,
Aboriginal Peoples, Colonialism and International Law: Raw Law (Routledge, 2015).
and the Paradigm of Domination’ (2011) 20(3) Griffith Law Review 578, 606.
3 In the language of the Tanganekald, muldarbi means demon spirit. In this con-
text I have applied muldarbi to mean the project of colonialism.
4 For a discussion on the obstacles presented by states against a claim of genocide
made by First Nations, see Irene Watson, ‘Genocide, the State, and Original
First Nations’ in Vincent Negri and Isabelle Schulte-Tenckoff (eds), Towards
International Normativity: Between Mimetism and Dissemination (A Pedone, 2016)
171. See also Tamara Starblanket, Genocide: Indigenous Nations and the State of
Canada (Masters Thesis, University of Saskatchewan, 2014) for a comprehensive
critique of residential schools and the contemporary position of First Nations in
Canada.
First Nations: our laws have always been 97
some remedies; and, second, it might halt the crime from continuing. Well,
that is the idea, but the reality of international law’s complicity with the
colonial project places many obstacles in the way of achieving a successful
prosecution. I maintain that international law is complicit, but in fact the
historic origins of international law are in colonialism.5
So First Nations’ futures remain uncertain. This has been so since the
beginning of colonialism, but even more in these contemporary times: they
are made even more difficult due to this nexus between international law and
colonialism.
By re-centring First Nations we can unsettle the dominant state paradigm,
the ‘mainstream’,6 and the Euro-centred legal systems founded on the violence
of terra nullius.7 First Nations, occupying a critical Indigenous standpoint,
affirm that ‘we were here first’, and we still carry the authority which is
imbued with obligations to care for our worlds, as we have always done. In
the journey to re-centre ourselves we retract from the idea of a mainstream
within which we have no place, to instead become the mainstream, no longer
on the fringes of colonialism and progress. Becoming more independent and
true to whom we are, we occupy and centre our lives as First Nations Peoples.
I have argued8 that the existing colonising ‘mainstream’ models are the
underpinnings of the contemporary body of the colonial project, and because
of this they are conflicted and unable properly to determine the content of
Indigenous Peoples’ futures. Indigenous Peoples’ futures are beyond the con-
temporary assimilationist agendas of the states. The way of the future belongs
to First Nations’ laws to determine, interpret and translate. The colonial story
of power certainly has another take on First Nations’ futures, and this chapter
will tell the story of the conflict between authority and power.9 Authority is
in the hands of First Nations Peoples and is law, while power is held by states
by way of a violent foundation. Violence by way of military force constitutes
the laws of colonial states. Our future lies in following proper lines of
authority that derive from ancient laws, laws which are still carried and
known to First Nations Peoples, our territories and the worlds we occupy.

(Cambridge University Press, 2008); China Miéville, Between Equal Rights: A
Marxist Theory of International Law (Haymarket Books, 2005); see also Watson,
Raw Law, above n l.
6 Sharon Venne brought my awareness to how concepts such as the ‘mainstream’
can be used to embed state dominance over First Nations: Sharon Venne, Our
Elders Understand Our Rights (Theytus Books, 1998).
7 I apply the term terra nullius throughout the chapter, and also acknowledge that
the doctrine of discovery as it was applied to North America over five hundred
years ago intended the same eliminatory results.
8 Watson, Raw Law, above n 1.
9 I acknowledge many conversations with Mary Graham and our interpretations
given to ‘power’ and ‘authority’ when we centre a First Nations vision.
98 Irene Watson
In our journey to de-centre from the domination of the colonial project, we

considered the drafting of the United Nations Declaration on the Rights of
Indigenous Peoples10 (UNDRIP), which began in the early 1980s.11 Our hope
was that it might provide a reprieve from the genocidal impact of colonialism.
However, it has proven a disappointment. Steven Newcomb and Charmaine
White Face among others have queried whether or not the UNDRIP has any
capacity to ‘end the dehumanising paradigm of domination against nations
and peoples termed “Indigenous”’.12 My reading of the UNDRIP is that it is
a bit like states having their cake and eating it too in its approach to the
recognition of First Nations. That is, on the one hand it recognises the right
of First Nations to self-determination and, on the other hand, it limits self-
determination to being exercised in accord with state power.13 Likewise, the
contemporary colonialist approach to recognition of Indigenous Peoples is
that you see it in the one hand, and in the other hand it disappears. So we can
identify inherent blockages within UN processes and the UNDRIP in particular,
and it might be useful to unpack ‘measures of recognition’ further. In doing
this, the purpose would be to consider how the language of international law
is deployed to construct Indigenous Peoples’ laws and lives with both an
historic and contemporary understanding of colonial subjugation and dom-
ination. The processes of drafting the UNDRIP, and the call for its imple-
mentation by the United Nations High Level Plenary Meeting held in New
York in September 2014, illustrates the continuing semantic domination of
the states.14 These international law ‘developments’ do very little if anything
to monitor the domination and subjugation of Indigenous Peoples by colonial
states.15 But while the language and philosophy of empires continue to be
applied in the ongoing domination and subjugation of First Nations Peoples,
the language and philosophies of First Nations continue to centre our lives
and our survival. Drawing on the wisdom of our old people and First Nations
10 United Nations Declaration on the Rights of Indigenous Peoples, GA Res 61/68, UN

Doc A/RES/61/295 (13 September 2007).
11 For a history of the process, see Sharon Venne, ‘NGOs, Indigenous Peoples and
the United Nations’ in Aziz Choudry and Dip Kapoor (eds), NGOization: Com-
plicity, Contradictions and Prospects (Zed Books, 2013) 75, 87–93.
12 Newcomb, ‘UN Declaration’, above n 2, 581; see also Charmaine White Face,
Indigenous Nations’ Rights in the Balance: An Analysis of the Declaration on the Rights
of Indigenous Peoples (Living Justice Press, 2013).
13 White Face, ibid 26–29, 39–41.
14 Newcomb, ‘UN Declaration’, above n 2, 578–607.
15 Ongoing colonialism exists within the Australian government’s Northern Terri-
tory response and intervention, and the continuing plunder of First Nations’
natural resources without (if it could even be obtained and given lawfully) free,
prior and informed consent. China Miéville, ‘Anxiety and the Sidekick State:
British International Law After Iraq’ (2005) 46 Harvard International Law Journal
441 argued that human rights interventions are used as an axis upon which the
abnegation of sovereign borders occurs.
centres, this chapter will talk up the language of the land and the laws of our
ancestors for the future possibilities of good lives for First Nations. And we
challenge those narratives which have worked to marginalise our ancient legal
systems. They have been marginalised almost to the point of juricide, but still
the law lives and it will outlive the lives of humans, for it just is; that is the
law.
Kaldowinyeri, that is the law16

We are ancient peoples who have held relations between our hundreds of First
Nations for thousands of years or forever.17 We are by our names and con-
nections to country evidence of our relations with each other. We are the First
Peoples of place who first realised inter-nation relationships. We are the
first internationals. But come the time of colonial states, our inter-national
co-operation with each other was ignored. The invaders attempted to bury our
laws with their myth of terra nullius, which has been legally construed to
ignore the fact of our existence in any form at all.18
In the time when the law was sung across the lands, our peoples came to
know that the law is everywhere and we are related to ruwe, the land, and
when science discovers us yet again it will find the connection and relation-
ship with land. The evidence is in our DNA. Indigenous Peoples already
know this, just as we always knew the earth was not flat. My mother told the
story of a time in the mid-1980s when she and her cousin19 were visitors to
the Arrernte People’s territories, close to the centre of Australia. My mother
and her cousin were walking the streets of Alice Springs, enjoying the warm
night air when they came across a group of white fellers having a barbecue.
These men turned to them and in what my mother considered to be a
patronising tone, they asked, ‘Can we help you? Are you lost?’ My mother,
not one to be patronised, replied, ‘We are not the ones who are lost, it is you
who are the lost ones’, and she and her cousin continued to walk on. My
16 This term means a long time ago, a time which was translated into English as
the ‘Dreaming’. It is a time we knew as all time, that is time now, in the past
and the present, time as being in cycles, as everywhere and ever-present. There is
no beginning or ending; we are who we are, for we have arrived and we are not
wanting or waiting to progress to an end-point in time.
17 When measured by scientific methods, and forever in Aboriginal time and law.
For further discussion, see Ambelin Kwaymullina and Blaze Kwaymullina,
‘Learning to Read the Signs: Law in an Indigenous Reality’ (2010) 34(2) Journal
of Australian Studies 195.
18 See C Black, ‘Maturing Australia through Australian Aboriginal Narrative Law’
(2011) 110 South Atlantic Quarterly 347 for further discussion on Aboriginal law
and its ancient origins.
19 They were both of the south-east of South Australia of the Tanganekald and
Meintangk Peoples, and while away from their ruwe they were mindful and
respectful of protocols when visiting the country of other First Nations.
100 Irene Watson
mother told me the story as yet another account of white racist patronisation.
Some might struggle to find the racist content in this story – one could argue
that the context was caring, and just helping the lost to find their way. But
by my mother’s way of seeing and knowing, it was a routine attempt to put
the ‘natives’ back within the controlled perimeters of the colonial project.
Russell Means20 and Sharon Venne21 have told a similar but very different
story about why and how they travelled to the United Nations in Geneva in
1977.22 It was not a journey of the lost and ‘backward native’ seeking
recognition, but rather an assertion of First Nations existence across time and
the continuing present. In general, it was a statement about First Nations
Peoples surviving on territories that continue to be stolen and plundered, but
importantly it was a message that was led by the law, as described by Venne:
The main speaker for our Peoples is our sacred pipe given to us by the
Creation. It leads the way. We used our own laws and traditions to enter
that meeting. We were not bound by the protocols of the UN to enter
quietly and without ceremony. Our Nations walked proudly.23
Indigenous Peoples remain connected to country, and we are not going away:
we have nowhere to go, for we are already home. The dialogue between First
Nations and states is usually patronising, for the states generally assume that
we are peoples of limited intelligence and know very little about international
law; that we are lost in the wilderness of international law, and either in need
20 Russell Means was an Oglala Lakota activist and philosopher who attended the
1977 UN Conference: see Russell Means and Bayard Johnson, If You’ve Forgotten
the Names of the Clouds, You’ve Lost Your Way (Treaty Publications, 2012).
21 Venne, ‘NGOs, Indigenous Peoples and the United Nations’, above n 11, 83–6.
22 The International NGO Conference on Discrimination Against Indigenous Popu-
lations in the Americas, held at the United Nations’ offices in Geneva on 20–23
September 1977, was the first UN conference where Indigenous Peoples attended
and spoke with the law for their nations. The following resolution from that
meeting was not a call for recognition but the provision of evidence of the claim of
genocide against First Nations and a call to stop the destruction: ‘The representa-
tives of the indigenous peoples gave evidence to the international community of
the ways in which discrimination, genocide and ethnocide operated. While the
situation may vary from country to country, the roots are common to all: they
include the brutal colonization to open the way for the plunder of their land and
resources by commercial interests seeking maximum profits; the massacres of mil-
lions of native peoples for centuries and the continuous grabbing of their land
which deprives them of the possibility of developing their own resources and
means of livelihood; the denial of self-determination of indigenous nations and
peoples destroying their traditional value system and their social and cultural
fabric. The evidence pointed to the combination of this oppression resulting in the
further destruction of the indigenous nations.’ ‘The Geneva Conference: Official
Report’ in (1977) 1(77) Treaty Council News.
23 Venne, ‘NGOs, Indigenous Peoples and the United Nations’, above n 11, 84.
of training in international diplomacy, or their advice.24 This is a species of

racism which came with the assumptions of the doctrines of discovery and
terra nullius, the idea that we do not exist within our own laws, and that the
best that can be done is to help with a little bit of recognition of our individual
human rights, steering us to eventual assimilation and genocide. Problem
solved. It is assumed that we need help to ‘reconcile’ ourselves to this process,
so we are invited to participate in a dialogue which serves to obliterate us.
We already know and have known forever whom we are, we were here first,
and we already know the land and each other. We have our own stories of
whom we are and how we came to be, but now we are in a dialogue about our
future and survival, about genocide. We do not need help: we need white
fellers to understand and act against their own racism.25 In the place we now
call Australia and before the advent of the lies of terra nullius, we comprised
more than two hundred First Nations. The evidence or knowledge of this is
coded in our languages and songlines crossing Australia, which are also a
record of the agreements with each other entered into by First Nations Peoples.
The songs are the evidence of the agreements between peoples which estab-
lished a way of life we lived for many thousands of years. However, for this
way of knowing we are often stereotyped as being trapped in the past and
incapable of ‘getting over it’ and moving on with project progress.26 My
argument here is not about projecting contemporary notions of international
law onto the past, but rather asserting that we had our relational ways of
being together which enabled respect of each other’s freedom and relationship
with a superordinate authority in law. Our ancient laws survive and are as
valid today as they were at the first song; their value, as always, is to hold our
worlds together for the future generations. We did not have formal writing,
for we are oral peoples, and we had/have song as a record with which we learn
and to follow and live by. Evidence of First Nations’ laws goes beyond writing,
for it is written in the land and the environment which enfolds our lives.
The colonial mapping of international law excludes Indigenous Peoples
from being subjects in colonial international law; only the ‘state’ qualifies as a
subject of international law.27 Accordingly, First Nations are to be absorbed
into and by the state. At a First Nations centre this position is resisted by
24 See letter from Mogens Lykketoft, President of the United Nations General
Assembly, 16 May 2016 <https://www.docip.org/fileadmin/documents/Docip/
Documents_temporaires/pga-consultations-draft-two.pdf>, which included recom-
mendations from advisors on how to improve the participation of Indigenous
Peoples. I have included this reference to provide an example of the control and
direction exercised over Indigenous Peoples when participating in UN forums.
25 Jimmie Durham considers frequent internet references to Indigenous Peoples as
‘being in need of help’. See Jimmie Durham, ‘Against Internationalism’ (2013)
27 Third Text 29.
26 Miéville, Between Equal Rights, above n 5, 159, 165.
27 Ibid 161.
102 Irene Watson
many peoples. We resist the genocide: the assimilation of First Nations into
and by the state. Because we know another way, a way in which song is the
foundation of law and not violence.28 And while our laws were denied, the
colonialists knew of their existence.29
Beginnings or endings, they are all the same. I say beginnings and endings
are all the same because life goes on and returns in cycles. Endings and
narratives of progress30 are constructs of the muldarbi, the colonial powers
which stole our territories and cast our ancient relationships to country by
other names. They called our lands Australia, New South Wales and South
Australia, and they drew straight lines on maps of the body of our ruwe. We
have always been here and are still today carrying our laws and obligations.
There is nothing in our legal systems which denies the continuity of our laws;
they go on, there is no end-point or beginning, for they are the laws.
We are the mainstream

Unlike sovereignty, law is known. It is held in the body and the land; it is
not elusive like sovereignty – a bare and empty space.31 While we know that
there are Western European discourses on sovereignty which were used to justify
colonialism, there are also First Nations discourses on law and sovereignty which
pre-existed colonialism. International law scholar Anghie interrogates existing
ideas of European supremacy:
The question of how order is created among sovereign states, however,

assumes that states are sovereign. This assumption is valid in the case of
European states. Non-European states, however, have been characterized
by international law as non-sovereign for several centuries. Within the
conventional history of the discipline that uses the ‘order among sover-
eign states’ paradigm, then, the history of the non-European states is told
principally in terms of the civilizing mission, the process by which non-
Europeans acquired sovereignty and could then achieve the status of
28 Benjamin argued that the first function of violence is its law-making function.
Violence’s second function, he theorises, is its ‘law preserving function’. Walter
Benjamin, Reflections (Schocken Books, 1986) 284. I am grateful to Jo Bird for
her comments on the work of Benjamin.
29 Miéville, Between Equal Rights, above n 5, 168.
30 See Boaventura de Sousa Santos, Epistemologies of the South: Justice Against Epistem-
icide (Paradigm Publishers, 2014) 48–9 for a discussion of Hegel’s idea of a
universal history and the becoming of what Santos describes as hegemonic glo-
balisation and a ‘normative’ trajectory towards an Americanisation of the world.
31 Peter Fitzpatrick, ‘Surpassing Sovereignty’ in Julie Evans, Ann Genovese, Alex-
ander Reilly and Patrick Wolfe (eds), Sovereignty: Frontiers of Possibility (University
of Hawai’i Press, 2013) 181, 182. Fitzpatrick references the work of Bataille and
Nancy, and their claim that, while sovereignty is nothing, we are doomed to
seek it.
being the equal of European states. Within this framework, furthermore,

imperialism ended with the process of decolonization, which by the
1970s had ensured that virtually all former colonial territories had exercised
their right to self-determination and become sovereign, independent
states. This framework, however, cannot answer the question of how
non-European states were determined to be non-sovereign in the first
place. Who decided this issue? Using what principles? And what is
the relationship between those principles and the major doctrines of
international law?32
The foundational doctrines of international law were formulated to exclude

non-European worlds. Those deemed ‘civilised’ were sovereign while the
‘uncivilised’ were not sovereign. Sovereignty was a result of colonial encounters,
created in order to affirm European power over invaded and colonised terri-
tories.33 Its framework lives on as the measure of the rise and fall of states.
Why then would First Nations Peoples use this framework? We have been
here forever; we are the mainstream (not the other way around). Would First
Nations use it to fit into the international global order? Why would we not
just affirm our own ways: that we were here first and that we are ancient
peoples with ancient laws and identities? We are hundreds of First Nations
that covered the Australian continent, and likewise First Nations covered
other continents also.
But affirmations have been made in the past and we have been massacred
for asserting whom we are. Those of us who have survived continue to resist
and struggle against the powers which would subject us to genocide.
We survive within the same colonising space which intends our demise, while
the imperialist character of international law endures. It has not changed with
the formal decolonisation34 of the twentieth century. We continue to observe
how international law can be used for both good and bad ends, used to con-
strain violence and also to legitimise it.35 We navigate the terrain and assess
the extent to which it might be possible to constrain violence levelled against
First Nations.
In spite of ongoing colonialism, in the spirit of the future cycles, we affirm
again that ‘we have always been here and always will be’, that ‘we are the
mainstream’. These could become mantras for those resisters of genocide and
activists upholding Aboriginal laws, philosophy and knowledge. Our lives
have been ‘normalised’/‘Europeanised’ by the colonial project for more than
five hundred years; we are the poorest of the poor ‘citizens’ of the colonial
32 Antony Anghie, ‘Western Discourses of Sovereignty’ in Julie Evans, Ann Geno-

vese, Alexander Reilly and Patrick Wolfe (eds), Sovereignty: Frontiers of Possibility
(University of Hawai’i Press, 2013) 19, 21.
33 Ibid 22–3.
34 Ibid 32.
35 Miéville, Between Equal Rights, above n 5, 296.
104 Irene Watson
states. Ward Churchill claims that the United States has sought legitimacy
for its ongoing subjugation of First Nations by ‘engineering a normalization
of such relations in universal legal terms’.36 Examples of this are found in its
translation of language in the UNDRIP, where the term ‘internal self-deter-
mination’ indicates from a state perspective no ‘right’ of independence or
permanent sovereignty over natural resources. As the power of states to nor-
malise colonialism continues, we are left to consider the effects of a rights
discourse which is locked into the matrix of coloniality. The UNDRIP is an
example of this. Is it possible to move beyond this point of lockdown? What
will happen if we do not? Colonialism remains even while Indigenous laws,
philosophy and knowledges remain foundational to the lives and laws of First
Nations Peoples, and colonialism denies our existence in the face of them. We
have a face-off which represents the classic colonial knot of impossibility:
impossible to change from a state’s perspective, but impossible to live with
for all species and the natural world. To date, little headway has been made in
progressing a horizontal dialogue between colonialist interests and First
Nations, while much of the literature and discussion concerning Indigenous
Peoples is based upon an anthropocentrically centred, colonially constructed
identity. As a result, a shield has been put up which enables the colonial
states to see only what they want to see. And further, anything which might
look as if it is repugnant to the state agenda, whether it be repugnant to
‘universal human rights’, development or to business as usual, falls outside the
normalisation processes of the colonial project.
While First Nations’ lives and territories are occupied by colonial states, we
have our ancient international law systems which, in our ways, are not just of
the past but are models for our future survival. The languages and philoso-
phies of empires have been and continue to be applied to dominate and sub-
jugate First Nations Peoples, but at the same time the languages and
philosophies of our old people continue to live and to centre First Nations’
futures. Our ancient legal systems challenge the narratives of domination, and
our ways continue to bring a focus to the language of relationality, enabling
us to stand in the face of the ongoing discourses and acts of coloniality.
Relationality was and remains our core way of being, our mainstream way of
life. To see the world as we see and know our lives and our laws opens space
for the possibility of justice. Boaventura de Sousa Santos argues that a world
without cognitive justice is a world without any possibility of justice,37 an idea
Steven Newcomb also raised in his discussion of the language of domination as
representing cognitive injustice.38
36 Ward Churchill, ‘The Law Stood Squarely on Its Head: U.S. Legal Doctrine,
Indigenous Self-Determination and the Question of World Order’ (2002) 81
Oregon Law Review 663, 691–2.
37 Santos, above n 30.
38 Steven Newcomb, Pagans in the Promised Land: Decoding the Doctrine of Christian
Discovery (Fulcrum, 2008).
The spaces and places of injustice are many, and one course of action taken
by First Nations to sustain our survival has been to call upon international law
for remedies. In the short term we seek aid and support, emergency protection
and assistance to survive and transform the spaces and places of genocide, and
in the long term to regain freedom, peace and independence. Calls have been
made to set in motion UN mechanisms, because there is nowhere else to go.
But thus far the UN mechanisms have offered little or no assistance. Often
the offending state, a member of the United Nations, simply refuses to
change or to stop the behaviour which is the subject of a complaint. An
example of the weaknesses in UN processes occurred when a complaint
regarding the 2007 Northern Territory Intervention was made to the Com-
mittee on the Elimination of Racial Discrimination (CERD).39 The complaint
against the Commonwealth government of Australia alleged breaches of the
Convention on the Elimination of all Forms of Racial Discrimination (1969), citing
that the Northern Territory Intervention was racially discriminatory and that the
targeted First Nations were not afforded the principles of free, prior and
informed consent40 when the intervention was being developed.41 However,
39 Request for Urgent Action under ICERD in relation to the Commonwealth

Government of Australia (28 January 2009, updated 11 August 2009) sub-
mitted by a group of First Nations Peoples affected by the Northern Territory
Emergency Response <http://www.hrlrc.org.au/files/E75QFXXYE7/Request_for_
Urgent_Action_Cerd.pdf>, <http://www.hrlrc.org.au/files/Update-to-CERD-ll-Au
gust-2009.pdf>. CERD is a United Nations committee of independent experts
that monitors the implementation of the Convention on the Elimination of All Forms
of Racial Discrimination by its state parties.
40 As outlined in Arts 18 and 19 of UNDRIP.
41 The Commonwealth government of Australia established the Northern Territory
Intervention in response to a report on violence in Aboriginal communities in the
Northern Territory: Rex Wild and Pat Anderson, Ampe Akelyernemane Meke Mekarle
‘Little Children Are Sacred’: Report of the Northern Territory Board of Inquiry into the
Protection of Aboriginal Children from Sexual Abuse (Northern Territory Government,
2007). First Nations and supporters protested the discriminatory nature of the
intervention, the conversion of collective land rights to individual ownership,
removal of power from communities of the right to control entry onto lands, and the
introduction of an income management scheme, among other backward provisions
supported by the following Commonwealth laws: Northern Territory National
Emergency Response Act 2007 (Cth); Family, Community Services, Indigenous Affairs and
Other Legislation Amendment (Northern Territory National Emergency Response and Other
Measures) Act (No 128) 2007 (Cth); Social Security and Other Legislation Amendment
(Welfare Payment Reform) Act (No 130) 2007 (Cth); Families, Community Services and
Indigenous Affairs and Other Legislation Amendment (Northern Territory National Emer-
gency Response and Other Measures) Act 2007 (Cth); Appropriation (Northern Territory
National Emergency Response) Act (No 1) 2007 (Cth); and Appropriation (Northern Ter-
ritory National Emergency Response) Act (No 2) 2007 (Cth). In July 2012 at the con-
clusion of the Northern Territory Intervention, that package of legislation was
replaced with the Stronger Futures in the Northern Territory Act 2012 (Cth); Stronger
Futures in the Northern Territory Act 2013 (Cth); Social Security Legislation Amendment
Act 2012 (Cth). For further critical discussions, see Irene Watson, ‘In the Northern
106 Irene Watson
the Commonwealth chose to ignore the CERD complaint and the responses
from many human rights bodies, all of whom concluded that the Northern
Territory Emergency Response (NTER) was discriminatory.42 In 2016,
almost ten years after the implementation of the intervention, aspects of it
survive and remain embedded in the laws of Australia.43 In ‘liberal’ Australia,
the colonial project survives undiminished by the minimum standards set out
in the UNDRIP, particularly when it comes to the rights set out for free,
prior and informed consent and the standards set by CERD regarding dis-
crimination. None of these had any influence over the discriminatory enact-
ment and application of the NTER.44
Colonial states continue to occupy First Nations’ territories and to harvest
our lands and natural resources without our free, prior and informed consent.
But it is also important to note that the question of consent in many instances
could not be answered in accord with Aboriginal Law; for example, giving
consent to the development of a nuclear waste dump on First Nations’ terri-
tory would be a breach of First Nations laws. In this context, the question of
consent is not the concern; what is important is the authority in First Nations
to say ‘no’, and having the power to enforce ‘no’.
The pressure for development on First Nations territories is high and in
Australia there is very little legal and political restraint of those develop-
ments. In the mid-1990s, the Kupa Piti Kungka Tjuta45 formed an alliance
Territory Intervention, What is Saved or Rescued and at What Cost?’ (2009) 15

Cultural Studies Review 45; Nicole Watson, ‘The Northern Territory Emergency
Response: Has It Really Improved the Lives of Aboriginal Women and Children?’
(2011) 35 Australian Feminist Law Journal 147.
42 The following organisations outlined the discriminatory nature of the NTER:
Human Rights Committee, Concluding Observations: Australia, UN Doc CCPR/C/
AUS/CO/5 (7 May 2009) [14]; Committee on the Elimination of Racial Dis-
crimination, Urgent Action Letters to the Australian Government (13 March
2009 and 28 September 2009) <http://hrlc.org.au/northern-territory-intervention-
request-for-urgent-action-cerd/>; Committee on the Elimination of Racial Dis-
crimination, Concluding Observations: Australia, UN Doc CERD/C/AUS/CO/15–17
(27 August 2010); Committee on Economic, Social and Cultural Rights, Conclud-
ing Observations: Australia, UN Doc E/C 12/AUS/CO/4 (12 June 2009) [15]; James
Anaya, Observations on the Northern Territory Emergency Response in Australia, UN Doc
A/HRC/15/13/Add4 (4 March 2010).
43 See Larissa Behrendt, ‘Back to the Future for Indigenous Australia’ in Nick
Dyrenfurth and Tim Soutphommasane (eds), All That’s Left: What Labor Should
Stand For (University of New South Wales Press, 2010) 113.
44 For further discussion on the impact of the NTER, see Senate Select Committee
on Regional and Remote Indigenous Communities, Third Report (2009) <http://
www.aph.gov.au/binaries/senate/committee/indig_ctte/reports/2009/report3/a01.
pdf>.
45 The Kupa Piti Kungka Tjuta was a group of senior Arabana, Kokatha, Yanku-
nytjatjara and Antikarinya First Nations women formed in the early 1990s. The
Kungkas held authority and the responsibility for caring for the lands that were
being proposed for development of a nuclear waste dump at Billa Kallina near
with Aboriginal and environmentalist groups to prevent the building of a

nuclear waste dump on Billa Kallina in South Australia, a place of importance
to women but also important to the health of many generations’ ongoing
relationships to country.46 Following a long campaign and in the lead-up to
the 2004 federal election, the Kungkas successfully influenced public opinion
and the Commonwealth government decided not to go ahead with the
nuclear waste dump. Following the re-election of the conservative Coalition
and against promises it made not to build a nuclear waste dump, it went
ahead with planning for one in the Northern Territory. So without consult-
ation (let alone free, prior and informed consent, if it could even be given)
with traditional owners the Warlmanpa People, the promise to the electorate
was broken. In 2005, the government enacted the Commonwealth Radioactive
Waste Management Act 2005, legislation that provides exemptions from
Aboriginal heritage protection laws. In 2006, further amendments to the Act
enabled the nomination of sites for the dump, again without consultation or
consent from traditional owners. In 2007, a site at Muckaty, Northern Territory,
was nominated, but as a result of court action initiated by the Warlmanpa
People of Muckaty that nomination was repealed in 2014.47 The Australian
government then advertised nationally for a site for a nuclear waste dump in
2015; they offered one lucky farmer in a suitable area a big bag of money if
he would let them use a hundred acres or so. An agri-business in the Flinders
Ranges of South Australia ‘won’ the prize, and they are very happy. The farm
was not making any money, and now it will. But, again, it is not their land;
it is the territory of the Adnyamathanha People, who are saying ‘no!’ to the
storage of nuclear waste on their territories. So, as I write, many of the
Adnyamathanha are shaping up for a fight once again to resist the develop-
ment of a nuclear waste dump on their lands.48
In respect of the nuclear waste dump and in the short term international
law standards might be an aid. Article 29 of UNDRIP49 requires that First
Coober Pedy in the north of the state of South Australia. In 2004, the Com-
monwealth government abandoned plans to build the dump at this site.
46 The campaign against nuclear waste development on First Nations lands is
documented at ‘Response to Proposed New Muckaty Nuclear Waste Nomin-
ation’, Beyond Nuclear Initiative, 7 November 2014 <http://beyondnuclearinitia
tive.com/2014/11/>.
47 Mark Lane Jangala v Commonwealth, Northern Land Council and Others [2014] FC
(unreported).
48 Jane Norman, ‘Nuclear Dump: Barndioota Station in SA Earmarked as Site of
Waste Facility’, ABC News, 29 April 2016 <http://www.abc.net.au/news/
2016-04-29/nuclear-waste-dump-expected-south-australian-cattle-station/
7369346>.
49 Article 29 of UNDRIP: ‘(1) Indigenous peoples have the right to the conserva-
tion and protection of the environment and the productive capacity of their lands
or territories and resources. States shall establish and implement assistance pro-
grammes for indigenous peoples for such conservation and protection, without
108 Irene Watson
Nations Peoples be fully consulted, but it does not enable or empower peoples
to say ‘no’. Moreover, the extent to which states will acknowledge and respect
the standards of the UNDRIP is yet to be seen. There is no mechanism that
could bring the state to account for any action which was taken in conflict
with Art 29. Currently, all possibilities are in the hands of the economic and
political will of states. Similarly, when our natural environments are threat-
ened by fracking, uranium mining50 and coal mining,51 developments which
pose wide-scale threats to the territories of First Nations across Australia, UN
processes provide no mechanism to mitigate the power and colonial attitudes
of the states; that is, they continue to dominate and subordinate First
Nations’ interests to those of powerful corporate bodies.
First Nations across Australia all have their own stories to tell, stories about
having authority but no power to uphold the obligations we carry from our
laws. We have responsibilities to care for country, and our laws continue,
post-invasion and the almost complete decimation of our peoples. Up until
the late 1960s and the early 1970s in Queensland we were subject to the
Aborigines Acts,52 but our peoples continued whenever and wherever they
could to care for country. When, in the 1980s, my mother held the authority
discrimination. (2) States shall take effective measures to ensure that no storage
or disposal of hazardous materials shall take place in the lands or territories of
indigenous peoples without their free, prior and informed consent. (3) States
shall also take effective measures to ensure, as needed, that programmes for
monitoring, maintaining and restoring the health of indigenous peoples, as
developed and implemented by the peoples affected by such materials, are duly
implemented.’
50 The largest uranium mine in the world, Roxby Downs mine and processing
plant, has impacted on the surrounding natural environment and the artesian
basin underground waters around Lake Eyre, the land of the Arabana People.
While the state advises they have obtained consent, Arabana Elder Kevin Buz-
zacott has protested the development since the 1980s. The processing plant uses
millions of litres of water per day. The water is drawn from ancient underground
water ways which connect us all in our future needs and dependencies, and
should not be squandered on concentrating heavy metal ores. A new mine is
being proposed on the lands of the Martu Peoples in Western Australia. Many of
the Martu First Nation claim they have not agreed to the process. In June 2016,
the Martu continued their protest against the mine being developed by Canadian
company Cameco: Angus Sargent, ‘Martu People Leave on 110km March in
Protest Against Pilbara Uranium Mine’, ABC News, 5 June 2016 <http://www.
abc.net.au/news/2016-06-04/martu-people-in-the-pilbara-protest-a-uranium
-mine/7476440>.
51 The Queensland government’s approval of the Adani coal mine has to date been
the subject of eight legal challenges.
52 Colonial states controlled First Nations through the following laws known as the
‘Aborigines Acts’: Aboriginals Protection and Restriction of the Sale of Opium Act 1897
(Qld); Aborigines Protection Act 1886 (Vic); Aborigines Act 1890 (Vic); Aborigines
Protection Act 1890 (WA); Aborigines Protection Act 1909 (NSW); Northern Territory
Aboriginals Act 1910 (SA); Aborigines Act 1911 (SA).
to persuade the local council of Kingston in the south-east of South Australia

to move the district rubbish dump from the ruwe in which our ancestors lived
and buried our old people, they did so. She was able to lead the restoration of
the site. Our ancestors’ bodies face the nearby sea and after their burial their
spirits passed on to Kangaroo Island and then later travelled further on, to the
south. My mother’s authority came from our ruwe, and it was her obligation
to ensure that a cynical colonial dispossession and deliberate destruction was
corrected.
But to each generation new obligations fall, and it is now our responsibility
to protect the country of our ancestors at Nora Creina Bay, ruwe on the coast
near Robe in the south-east of South Australia. Another of our ancestors’
resting places is earmarked for ‘development’ – a golf course and ‘high-end’
tourist resort. This development will ruin the ruwe and endanger our
ngaitje,53 some of whom are on the brink of extinction. And the beautiful,
bountiful lands of the South Australian south-east, now mainly held by
wealthy farmers, are going to be fracked for natural gas. The farmers chafe
uncomfortably if we mention that the land they do so well on is actually
stolen, but they do not want it to be fracked either. So we join them and say
no to the fracking, for fracking might ruin the water which we still share.
Our challenges are immense, but although we have the authority to say ‘no!’
we have no power to uphold it. These are the same challenges facing the
territories of hundreds of First Nations Peoples across this continent. They are
many and onerous. We have no law which can agree to the destruction and
the extinguishment of the law, for that is law.54
The Elders have inspired our obligation and commitment for caring for
country; that obligation is core to our understandings of whom we are and
what we do. That is, it is what those of us who are still standing do, those not
imprisoned, stolen by the state ‘welfare’ and/or just prostrated by inter-
generational traumas, the effects of a violent coloniality. The current political
and legal frameworks both domestic and international enable the language
and philosophy of empire to continue to be applied, but the laws of original
First Nations continue to centre our lives and our survival. And, drawing on
the centres of knowledge and philosophy and the language of the speaking
land, the laws of our ancestors will become louder so as to challenge those
narratives which have worked to marginalise our ancient legal systems.
Recognition – but the state cannot see the laws and

bodies of First Nations
The ‘advancement’ of ‘rights recognition’ through standards set by the
UNDRIP is considered a high water mark of international law. The
53 Ngaitje means our relation, and could be animal, plant or natural landscape.
54 Watson, Raw Law, above n 1.
110 Irene Watson
declaration takes a human rights approach to our struggles to survive geno-

cide, but how does this approach translate into First Nations’ epistemologies
and ontologies? Is this approach more about assimilating First Nations into
the vocabulary of colonialism and the narratives and rhetoric of states?55 In
the context of UN states founded on colonialism, what is to be recognised?
What frameworks are deployed to determine rights? Are the only human
rights those determined by the colonial settler state, which holds power to
determine what they are? Or could they be determined by First Nations?
We have been here forever; why would we seek recognition from the
colonisers? What does it mean to be recognised by the one who has been
responsible for land theft and genocide? On recognition, do we become like
the settler colonial society? Will we be no longer native and related to the
land, instead separated and civilised? What, other than genocide and ecocide,
could be recognised? Is there a will within the state to recognise our being
beyond that of peoples who can only ever be absorbed and assimilated? Our
ancestors responded at the time of the invasion; they stated repeatedly, ‘We
have always been here!’ There is nothing to recognise, we have always been
and we will always be Aboriginal peoples on Aboriginal land. We have
already arrived.56
While there are many questions about processes and the effectiveness of ‘rights
recognition’, are there possibilities for monitoring – beyond the words and symbols
of recognition? If First Nations had power, as we had before colonialism and inva-
sion, we would determine all things in our lives and would not be appealing for
human rights protection, because we would have it. So what is it we have now in
this place of an ongoing coloniality – more of the same, coloniality? Article 3 of the
declaration declares that Indigenous Peoples have the right to self-determination,57
55 At the time the UNDRIP was voted on in the United Nations General Assem-
bly in September 2007, a handful of Indigenous ‘leaders’ participated, claiming
to be ‘representing’ millions of First Nations Peoples. Without a poll, and we
lack the resources to hold one, I would confidently bet that less than 10 per cent
of the global Indigenous population even knew the process was taking place. The
question of mandate lies at the feet of the states and their Indigenous ‘repre-
sentatives’. The question to ask is: where does their mandate to speak and give
their consent on behalf of global populations of Indigenous Peoples originate?
56 Martii Koskenniemi, ‘Human Rights – So 90’s’ (Public lecture delivered at the
University of Oxford, 4 March 2014) <https://www.youtube.com/watch?v=
9hFdZRYZhkg>.
57 UNDRIP Preamble: ‘Acknowledging that the Charter of the United Nations, the
International Covenant on Economic, Social and Cultural Rights and the Inter-
national Covenant on Civil and Political Rights as well as the Vienna Declar-
ation and Programme of Action, affirm the fundamental importance of the right
to self-determination of all peoples, by virtue of which they freely determine
their political status and freely pursue their economic, social and cultural devel-
opment. Bearing in mind that nothing in this Declaration may be used to deny
any peoples their right to self-determination, exercised in conformity with
international law.’
but the limits made to self-determination render the principle rhetorical and
practically inoperable.58
We know our own names and who we are

Many First Nations have belonged to our lands from the time of the first
sunrise,59 and we had our own names for the land.60 Now, post-invasion and
dispossession, our natural world is known by other, colonial names: Australia,
Canada, the United States of America and New Zealand. We might ask, who
drew up the map of the world, with the north at the top and the south at the
bottom? We know that, not very long ago, a Eurocentric knowledge had the
world as flat; meanwhile, our old people always knew planet Earth for what it
really was, a round, cyclical body of law and motion. Some see their world as
normative and other ways of knowing as strange. Our old people watched the
hawks carrying the fire stick to light the bush to flush out game, and this is
where we learnt fire stick farming, from our relations the hawks, for we are
one in our sharing of life and knowledges. Stories of hawks carrying fire are
known in European history but are considered myth, and do not tell of connec-
tion or relationship between hawks and other beings including those who call
themselves human. In September 2001 (just days after the 9/11 event in the
United States), The Australian newspaper reported that Northern Territorians
claimed that ancient fire-stick farming practices of local First Nations were
akin to acts of terrorism. What is demonstrated here is that colonial settler
society has lost the possibility of knowing the story of the hawk and its lessons
in how to live with one another. Instead, fire stick-farming is reinscribed as an
act of terrorism.61
The politics of recognition works to contain First Nations within the con-
fines of settler colonial society’s rules and regulations and this is one
Article 3: ‘Indigenous peoples have the right of self-determination. By virtue

of that right they freely determine their political status and freely pursue their
economic, social and cultural development.’
Article 4: ‘Indigenous peoples, in exercising their right to self-determination,
have the right to autonomy or self-government in matters relating to their
internal and local affairs, as well as ways and means for financing their autono-
mous functions.’
58 White Face, above n 12, 72.
59 Our story of the first sunrise is sung by the magpies, and still today their song is
heard just at the sun rising, a song that is sung again and again, will always be
sung; while the magpie still sings that is law.
60 Evidence of our philosophy is found in our languages. As Russell Means writes,
the Lakota had over fifty words for the naming of clouds, and the English have
many words for torture. You would struggle to find one word to translate the
concept of torture in Indigenous languages. Means and Johnson, above n 20, 6.
61 Paul Toohey, ‘Scheming Blacks Behind Fires: Farmers’, The Australian, Weekend
Australian Magazine, 22 September 2001, 18.
112 Irene Watson
interpretation of Art 46 of UNDRIP. Article 46 ensures that it will remain

within the power of UN states to determine what Indigenous Peoples’ terri-
tories and laws are. On that analysis very little would shift at all. At a
domestic level, the colonial states have constructed regimes of recognition,
and at the end of the 1990s the Australian government came out with ‘native
title’ which was greeted with some enthusiasm by both Indigenous and non-
Indigenous people. Native title recognition of rights to land was a hollow
victory emanating from the High Court decision in Mabo (No 2),62 and was
further limited by the Native Title Act 1993 (Cth). Native title created a right
recognised by Australian property law, but it was a lesser right than freehold,
a beneficial right to the land. And it did not enable us to take care of country,
protecting it from invasive and destructive developments. Voices criticising it
in the 1990s were dismissed for being ‘too way out’, or too naive and dumb
to understand the process. Now, decades later, a more critical approach is
slowly developing. We belong to ruwe, the land, and reject a colonialist per-
spective which positions our lands as a commodity or a property right. Some
of us have pointed out that native title created a lucrative industry for law-
yers, indeed created a ‘native title gravy train’. It has certainly created a
hierarchy of those who are eating and those who remain starved – literally
starved for food, but also starved for the health which country enables.
The academy has been well fed: many academic careers have been made
aboard the native title gravy train, and many law firms have grown fat from
native title work. The Australian government saved face after the 1992 High
Court Mabo decision by enacting the Native Title Act 1993, which effectively
diverted international condemnation from falling on its racist colonial
foundation – terra nullius. These same illusions of recognition were manu-
factured in the body of Aboriginal title and treaty negotiations across the
United States in the 1800s.63
Prior to the Mabo (No 2) decision, international condemnation of Australia
had been building. Paul Coe and others worked for more than a decade to
gain an international opinion on terra nullius and its ongoing application to
Australia.64 This work followed in light of the Western Sahara (Advisory
Opinion)65 and international condemnation of terra nullius as a founding prin-
ciple of colonial empire. However, these efforts were washed away by the
62 Mabo v Queensland (No 2) (1992) 175 CLR 1.

63 See Churchill, above n 36, 674–6, a discussion which reveals similarities with
the Australian High Court decision in Mabo (No 2). Discovery gave exclusive
rights to the discoverer, a power that cannot be questioned. A similar conclusion
as to the application of terra nullius was reached by the High Court in Mabo v
Queensland (No 2) (1992) 175 CLR 1, 31–5, 78; for a further discussion, see
Watson, Raw Law, above n 1, 131–2.
64 Paul Coe, ‘Mabo: Confirming Dispossession’, Broadside, 10 February 1993.
65 Western Sahara (Advisory Opinion) [1975] ICJ 12.
spirit of reconciliation and recognition,66 which the government had fostered

after Mabo (No 2), and today we are still bedevilled by the legacy of terra
nullius. Terra nullius still has life post-Mabo and post-Western Sahara. There
was no glitch or pause in the colonial machine; the only change was the
assimilation of some ‘successful’ native title applicants’ entré into the Aus-
tralian law of property. Our continuing effort to care for country remains a
struggle and native title does little to relieve that struggle: its main effect is
to enable participation in the (from an Aboriginal law perspective) un-lawful
activity of wheeling and dealing and selling the land, and to assimilate into
the colonial games of ‘foundation’ and ‘recognition’.67 At the time of writing,
the lands of my old people the Tanganekald, Meintangk and Boandik First
Nations, our territories now named the south-east of the state of ‘South Aus-
tralia’, are being mapped for unconventional gas production (fracking). We
have no native title claim over our lands, yet, but the state is working on it.
My old people would say ‘no’ and our obligations to the land mean that we
say ‘no’ to fracking of our ruwe. We have no power under colonial law to veto
mining, but native title now opens a space of ‘recognition’ in which native
title holders can wheel and deal; within the native title process they still have
no power to say ‘no’, but native title deals might offer them baubles if they
say ‘yes’. Under our laws, they have no authority at all to say ‘yes’. It is the
classic colonial knot.
The reason we would say ‘no’ in any case is because we are of the land, it is
our relation; the land is our future. We have an obligation to our lands and
our laws; we know that the quality of our air, water and earth soils cannot be
compromised. We know that we cannot go anywhere else; that the land is
whom we are and our survival as peoples is wholly connected to it. Without
the land we are nothing; we become empty shells and peoples who become
disconnected from our being. So while we understand that the colonial project
66 The Council for Aboriginal Reconciliation was established in 1991 by the

Commonwealth government to build a united Australia. The council ended in
2001. A united Australia remains a project of assimilation.
67 Here I am referring to negotiations pursuant to the Native Title Act 1993 (Cth) s 24BA
through Indigenous Land Usage Agreements (ILUA). Developments on native title
lands are frequently negotiated within an ILUA framework. For example, most large-
scale developments, including the Roxby Downs uranium mine, involved an ILUA;
note the confidential character of this agreement: Barry FitzGerald and Sarah Martin,
‘$900m Olympic Dam Windfall to Indigenous Groups’, The Australian, 5 May 2012
<http://www.theaustralian.com.au/business/m-olympic-dam-windfall-to-indigenous-
groups/story-e6frg8zx-1226347243652>. The recent developments of the Cameco
Corporation uranium mine at Kintyre in the Pilbara region of WA on the lands of the
Martu People was also negotiated as an ILUA in 2012: ‘Kintyre’, Cameco Australia
<https://www.camecoaustralia.com/projects/kintyre>. Many of these agreements have
resulted in conflict over who has a mandate for representation and signing off on
agreements. As I write, the Martu People are walking the country to bring awareness
to their opposition to the uranium mine: Sargent, above n 50.
114 Irene Watson
is ongoing, our resistance to it is also ongoing. There is no end to conflict

within the colonial matrix, for we must resist if we are to have a future as the
First Nations Peoples.
Resistance across Australia is rising again; we are resisting the pressures of
assimilation as it shifts and takes different forms. The politics of recognition
are about assimilation, for to be recognised we must assume the poses desired
by the colonialists. Many First Nations Peoples live in extreme poverty and
this is part of a largely deliberate end game of removal from our homes, the
ruwe, and assimilation. It is how the colonial project closes in on its next
harvest, developing, progressing and commodifying. The removal of First
Nations children has been identified as a historical national scandal, but in
the contemporary sphere continues to occur in numbers greater than at any
previous time in the colonial history of Australia.68 Today our children are
removed in acts of the state deemed to be in their ‘best interest’; or for punish-
ment of minor offences;69 they are ‘humanitarian interventions’, contemporary
missions for ‘recognition of our humanity’ and the reformists’ need to rescue,
placate, civilise and whiten us up. This is the modern face of assimilation and
genocide. All across Australia, First Nations communities are being starved of
resources, and the Commonwealth and state governments threaten to withdraw
funding for social services, education, and housing and health services. Our
land and labour provides the resources, but the colonists cannot afford us.70
These are our homes and we have nowhere else to go. Of course, there are always
standing offers for us to get aboard the assimilationist agenda of the states. Apart
from having nowhere else to go, we have an obligation to care for the country
we are born to, to ensure that there is a future for our grandchildren.
Another angle the states pursue is our incarceration. Incarceration rates of
First Nations peoples in Australia are higher than ever before. We could, as
we have done for most of the years after 1788, claim the award for the most
imprisoned peoples in the world. When the Aborigines Acts were in force, the
68 Ronald Wilson, Bringing Them Home: Report on the National Inquiry into the
Separation of Aboriginal and Torres Strait Islander Children from Their Families
(HREOC, 1997). A national movement of senior First Nations women, Grand-
mothers Against Removal, campaigns to stop the removal of Indigenous
children.
69 In detention, First Nations children have been treated in a cruel and inhumane
way; recent evidence of this treatment has been exposed by Caro Meldrum-
Hanna, ‘Australia’s Shame’, ABC 4 Corners, 25 July 2016, <http://www.abc.net.
au/4corners/stories/2016/07/25/4504895.htm>
70 A growing debt is owed. In the 1970s First Nations made the claim for ‘paying
the rent’ arguing it was owed for stolen Aboriginal lands. Debt owed to First
Nations could also be measured by the displacement of First Nations governance:
Stewart Motha, ‘The Debt Crisis as Crisis of Democracy’ (2012) 8 Law, Culture
and the Humanities 390–7. On debt characterised as a foundational sovereign
debt, see Maria Giannacopoulos, ‘Sovereign Debts: Global Colonialism, Austerity
and Neo-Liberal Assimilation’ (2015) 19 Law Text Culture 166–93.
states used reserves and missions (and prisons) to detain us. The prisons alone
perform that function today.
In these post-Mabo, post-native title, post-reconciliation, post-Rudd-apology71
times, there is much discussion around the promise of constitutional recog-
nition.72 This will no doubt fall in a heap, but contemporaneously there is
also further talk of a treaty. All this while the colonial project is working on
its final grab and theft of our lands and resources: closure of communities.
These communities, often old missions and reserves, occupy the remnant
scraps of land set aside for us when the bulk of the land was taken.
It should be clear that there are no remedies in the recognition game; it is
like the game of snakes and ladders, which goes up and down, but leads to
only one ending, our assimilation into the white Australian nation. Genocide:
there is currently no other alternative on offer. And this is perhaps why we
get no mileage in our arguments that assimilation is genocide; genocide is a
powerful word all about the muldarbi power, but the truth is that if assimi-
lation is the only option for First Nations futures, then it is the death of First
Nations.
First Nations Peoples have not sought recognition of whom we are; we
know who we are. First Nations’ dialogue with colonial states, the United
Nations and other international institutions has been a process of seeking
avenues for peace and survival and relief from the genocidal effects of the
colonial project still grinding on.73 We continue to seek mechanisms which
will provide relief from the processes of the colonial states, but the talk of
recognition remains just that – talk, and talk which seems to provide no
avenue to anywhere but back into the corridors of assimilation into the colonial
state. The idea of First Nations seeking ‘recognition’ from the colonial states
negates the truth: we have always been on our territories, and we were here
first. First Nations have our own names, our own languages, and our own
territories, laws, peoples and ways of being in the world. But this alternative
narrative, this ‘truth’ of the coloniser, continues to be constructed: the
71 On 13 February 2008, the Prime Minister of Australia, Kevin Rudd, apologised

for the forcible removal of Aboriginal children, also known as the ‘Stolen
Generation’.
72 Recognition of First Nations has been an ongoing discussion, from exclusion – as
captives of colonial state jurisdiction – to inclusion within Commonwealth con-
stitutional power to make laws for Aboriginal peoples. Evidence of those Com-
monwealth powers over Aboriginal Peoples has been identified in the NTER. In
2016, at a meeting in Victoria, over five hundred First Nations Peoples voted
‘no’, almost unanimously, to the Commonwealth government’s constitutional
recognition campaign. See Hamish Fitzsimmons, ‘The Victorian Government
Will Enter Talks to Draft Australia’s First Treaty with Aboriginal People’, ABC
Lateline, 26 February 2016 <http://www.abc.net.au/lateline/content/2015/
s4414840.htm>.
73 Sharon Venne, ‘NGOs, Indigenous Peoples and the United Nations’, above n 11,
75–101.
116 Irene Watson
‘natives’ are seeking recognition. Recognition of what? Of our humanity? We

know we are human, but we also know that the human is only one part of
life; the simple ‘rights of the human’ cannot exist in isolation. Our ways of
thinking are different to those who have led and maintain the colonial pro-
ject. Why would we appeal for recognition, just to enable a better fit into the
assimilatory project of the state?
We are ancient peoples who have shared relations with hundreds of other
First Nations and our names and connections to country are evidence of those
relations with each other. We are the First Peoples and we originated inter-
nation relationships. We are the first internationals – but different from those
whom we know now as international states. And again, the evidence of our
inter-national cooperation with each other is unacknowledged, buried by the
myths of terra nullius, another part of ignoring the fact of our existence as
subjects in international law.
But we resist, and First Nations’ resistance takes many forms. One form is
to challenge the idea that the centre of our world is Europe and European
epistemologies. This resistance challenges the idea that there is no horizon
other than the European colonial matrix which still dominates the human
rights agenda. It is also a challenge to the idea of a Eurocentric universal –
which is all there is, that is, the only horizon or possibility.
Much of the literature and discussion concerning the recognition of Indi-
genous rights is anthropocentric and also centred on colonially constructed
identities. Our First Nations – before they were enclosed by that which is
now called Australia – were bound by songlines. The songs held the peace
and the boundaries between the nations, and were respected and upheld: that
was the law. But, as we know, at the invasion our laws were translated dif-
ferently, lumped into ‘terra nullius’ and deemed non-sovereign. And the
natives were deemed sub-human, and thus fell completely outside colonial
frameworks of recognition. Anghie notes: ‘the history of the non-European
states is told principally in terms of the civilizing mission’74 and colonial
states are still in the business of initiating and controlling discourses on the
subject of Indigenous recognition. The current discussion in Australia about
possible constitutional recognition of First Nations is out there for public
consumption, in an electorate noted for its conservatism. What it means
beyond the terra nullius narrative is yet unknown, but there is little to suggest
that it means much more than the continuation of that same narrative: the
terra nullius body dressed in the costume of ‘recognition’.
Current debates on ‘recognition’ within the colonists’ circles have no inter-
est in acknowledging that the lands stolen – the vast continents stolen – did
not belong to peoples in a proprietorial enslaved way, but that we belonged to
them, in our ancient relationships with them. There is no interest in
acknowledging that discredited doctrines of discovery and terra nullius
74 Anghie, ‘Western Discourses of Sovereignty’, above n 32, 21.

underpin the foundations of all these contemporary settler states. The subject
of First Nations’ laws still falls outside colonial state discourses of recognition,
because it has the potential to unsettle and fracture the states’ foundations. So
it is avoided.75
There are many obstacles to freedom in international relations and law, and
recent developments in the discourses of ‘Indigenous recognition’ are further
obstacles, aimed to disempower First Nations’ struggles for freedom. For
within current recognition frameworks there is no opportunity of freedom
which we could take up to decolonise on our terms, languages and frameworks.
The only opportunities involve continuing to work inside the frameworks of
the colonial state. ‘Recognition’ is imploding on the ground, but even so
recognition is being constructed for the profit of states. The illusion of
recognition enables them to appear as if they have given something back, or acted
to deconstruct the embedded colonial relationships, to decolonise. Of course,
nothing will really have shifted. Illusions of recognition will not impede the
dreary, ongoing rhetoric in the racist, patronising discourses on ‘our abori-
gines’ as if we were the domestic objects of state colonial desires. Evidently,
that is what the eyes of the states still see.
It appears then that the only possibility is assimilation and, while from a
First Nations perspective that can only translate as genocide, is there a way
out for us? If another way can be mapped, then it would be critical to maintain
and centre First Nations’ epistemologies. This challenges the idea that there is
no horizon other than that set by the colonial matrix. It also challenges the
idea of a Eurocentric universal and the trajectory of progress at any cost. We
would not be alone with this: most credible evidence indicates that current
western models of progress are working at an unsustainable cost to our natural
world and a lot of people know this.
Conclusion: why not get over it and assimilate?

While I think this is a dumb question, it continues to be asked on a regular
basis. It is still seen by many (as in the eighteenth, nineteenth and twentieth
centuries) that realistically no option other than to assimilate exists, and to
seriously consider alternatives is seen as irrational. The colonialist view of
‘native savagery’ was similarly seen as irrational, in much the same way as
opposition to assimilation is depicted as irrational. It is as if we are treading
water – still under pressure to be absorbed by the invading colonial settler
society, the same one which has dispossessed us from the beginning. Always
there has been this demand to assimilate; however, to do this would be to
relinquish our laws and lives and also the obligations we carry as First
Nations Peoples. And where, in the end, would it get us? Say, for example, if
we were to simply join the treadmill of rights recognition, for a meagre native
75 Mabo v Queensland (No 2) (1992) 175 CLR 1, 30 (Brennan J).

118 Irene Watson
title right ‘handout’ this would absorb us into Australian property law, and
further the commodification of our lands and waters, but it would be an
unlawful act from an Aboriginal law perspective. In gaining ‘rights’ from the
processes of colonialism, we would breach the laws of our nations.
Carrying out the obligations to our laws means opposition and resistance to
the invaders, a resistance that requires understanding of where the enemy lies.
Where does the pressure to make us disappear originate from? Obviously, it is
still to rid the settlers of ‘troublesome natives’ and to secure their flocks and
mining leases once and for all, but we are still here, and still a trouble to the
colonial state. And it looks as if it could go on for hundreds of years more. So
perhaps another way is called for – that is, to unpack, decolonise and continue
to be the peoples we have always been.76 But colonial attitudes are so heavily
set that to do this is seen as impossible, and the colonists revert to the ques-
tion: what about the rule of law? (That is the same rule of law which stole
Aboriginal lands from under our feet and fenced our lives in.77)
But if we could imagine a world in which the colonial states were really
decolonised, that they could relinquish power over First Nations’ territories
and laws, this could be the spot or the place from where we turn away from
the trajectory of progress and its dire prospect of an ending, and move
towards a positive transformation of the global status quo.78 It could be a
transformative process which enables the transformation of the United
Nations statist system, and decentring the United States from performing at
its core.79 The dominant counter argument is fuelled by the fear of a loss of
the rule of law, but this does not necessarily follow.80 It is more likely to be a
liberation for everyone. Fear and greed are certainly behind a system which
continues to commit genocide across the globe, with a body count estimated
to lie at millions of corpses and growing daily from wars alone over the past
fifty years.81
The fear of a loss of the ‘rule of law’ implies there is nothing else other than
the violent colonial foundations which have constituted colonial legal systems.
In the colonial context, the rule of law is an assertion of power without
authority, as authority is with First Nations Peoples. It is a fear that negates
76 Churchill, above n 36, 696, discusses how we might liberate ourselves from the
endless knot of colonialism, and unpack or untie ourselves from an unlawful
foundation.
77 Natsu Taylor Saito, Meeting the Enemy (New York University Press, 2012) 42: the
rule of law, having the ‘force of law’ with its inherent colonial violence, holds the
power to include or exclude non-Christian peoples entirely on the terms of
the invading colonial body. And it is also paramount: ibid 82–3.
78 Churchill, above n 36, 697.
79 Ibid 702–6.
80 See Miéville, Between Equal Rights, above n 5, 304–8, on the need to critically
evaluate the tensions of humanitarian intervention and its underpinning of a
liberal-cosmopolitan defence of the rule of law.
81 Churchill, above n 36, 704.
the fact of First Nations laws. Our nations had laws to provide a remedy for
greed and power; our ancient ancestors managed to settle the drought and
release the water so as to replenish the land and all life forms. This was done
without violence; the law led the way. The frog who grew and grew, out-
growing all other life forms, was encouraged to laugh and let go of the all the
Earth’s water. The community of animals brought the giant frog to laugh,
and in laughing the frog let go of all the world’s water, filling those dry
depleted spaces, so we could all drink again. It was also decided the one big
frog would become many, and the many shared and accessed the world’s
waters. No wars, no violence, a laugh and a letting go. That is the law.
Whether we come to it sooner or later, the law just is.82
82 I have reflected on the frog across a number of works and most recently in
Watson, Raw Law, above n 1, 16–17, 87.
Chapter 6
Law and politics of Indigenous

self-determination: the
meaning of the right to
prior consultation1
Roger Merino
Introduction
In June 2009, the town of Bagua in the Peruvian Amazon was the scene of
one of the most important political events in recent Peruvian history. Amazonian
Indigenous Peoples blocked the Curva del Diablo highway for two months,
protesting against a governmental package of decrees approved by President
García which favoured the exploitation of natural resources in the Amazon. As
a result of police repression, hundreds of people were wounded and 33 people
died.
After this political event, known as the Baguazo, a social consensus
emerged that Peru needed to launch new intercultural policies that recognised
and valued Indigenous cultures and, in this way, would reduce social conflict.
Law No 29785 of September 2011, the Law of the Right of Prior Consultation of
Indigenous Peoples, Recognized in the ILO Convention 169,2 best known as the
‘Prior Consultation Law’ (Ley de Consulta Previa), was the legal mechanism
that supposedly would achieve these aims. This law was based on the Indi-
genous and Tribal Peoples Convention No 169 (ILO Convention No 1693), which
establishes the obligation to consult Indigenous Peoples before approving any
administrative or legal norm that can affect their collective rights. This Prior
1 I am very grateful for comments on earlier drafts of this chapter to Ana Diner-
stein (University of Bath), Sara Motta (University of Newcastle, Australia) and
Irene Watson (University of South Australia). Thanks too to the colleagues who
participated in the Annual Conference of the Society of Latin American Studies,
University of Sheffield (Sheffield, 18–20 April 2012); the Postgraduates in Latin
American Studies Annual Conference, Department of International Develop-
ment, University of Oxford (Oxford, 25–27 June 2012); and the Institute for
Global Law and Policy Workshop, Harvard Law School (Doha, January 2013) for
their generous comments. I especially thank the University of Bath for financial
support through a University Research Scholarship.
2 Ley No 29785, Ley del derecho a la consulta previa a los pueblos indígenas u originarios,
reconocido en el convenio 169 de la organización internacional del trabajo (OIT).
3 International Labour Organization, Indigenous and Tribal Peoples Convention 1989
(No 169) (entered into force 5 September 1991).
Indigenous self-determination 121
Consultation Law is the first of its kind in Latin America. Although it did not
fully follow the higher standards of the Declaration on the Rights of Indigenous
Peoples of 2007 (UNDRIP) and the Inter-American Court of Human Rights
jurisprudence, it was considered an advance in the protection of Indigenous
rights in Peru by politicians, international organisations, civil society organ-
isations and the business sector.
In this chapter, I argue that the Prior Consultation Law is embedded in
‘coloniality’ because it does not properly recognise Indigenous Peoples’ self-
determination.4 Coloniality denotes that, even though colonial rule has ended
in formal legal and political terms, power remains distributed according to a
colonial ontology and epistemology. This explains why social, legal and economic
relationships regarding Indigenous Peoples still respond to an inclusion–
exclusion paradox. After colonisation, the political and economic elites con-
structed states under European models according to which the state was the
legal and political expression of a homogeneous social collective (a ‘nation’).
Therefore, Indigenous Peoples have to be either included within these new
nation-states (denying their different social, political and economic arrangements)
or excluded from them (which meant in some contexts the legal and material
elimination of these peoples). Thus, in the new state model ‘Indigenous
Nations’ were not accepted.
This political tension rooted in colonisation is a paradox that continues
today. Thus, when Latin American constitutions recognise the right of self-
determination or autonomy for Indigenous Peoples, they actually refer to the
right of each Indigenous community to govern themselves within a specific
space legally protected with property entitlements. There is no recognition of
the self-determination of a whole Indigenous Nation with territorial rights,
only the recognition of specific communities of individuals ‘included’ in the
political and economic logic of the nation-state.
The inclusion–exclusion paradox responds to the colonial denial of two key
aspects of Indigenous law and politics: the denial of their territories and the
denial of their character as nations. Thus, juridical innovations to recognise
Indigenous rights have always relied on western standards. According to the
dominant liberal theory, Indigenous Peoples must be integrated, included,
assimilated or accommodated within the liberal framework as ethnic minor-
ities with proprietary entitlements, so they can ‘participate’ in the benefits of
‘development’, instead of seeing Indigenous Peoples as nations with territorial
rights that pursue their own models of development.
4 Although the concept of ‘self-determination’ is rooted in the project of modern-

ity and political liberalism, from a decolonial perspective (which I will expose in
the next section), it is possible to understand this and other political concepts
from different ontologies and epistemologies, giving new meanings and political
potentials.
122 Roger Merino
For this reason, Indigenous Peoples maintain a tense and ambiguous relation
with liberal legal systems: they use private property, human rights and con-
sultation law for territorial defence, but at the same time they criticise the
limitations of this legislation to grant complete self-determination. Thus,
Indigenous Peoples struggle for social emancipation by appropriating and
‘going beyond’ liberal law, and in this way they dispute the state logic of
either inclusion or exclusion. In other words, they reject the logic by which
the state either deploys legal and institutional mechanisms to assimilate Indi-
genous Peoples (compulsory use of Spanish, aggressive diffusion of Christianity
and economic arrangements) or exclude them (the requirement that voters
must be able to read, the prohibition of use of their language and culture,
amongst other things).
In this chapter, I explore these issues by engaging with the implementation
of the Prior Consultation Law in Peru. First, I analyse the meaning of self-
determination as an essential concept to understand the potential and limita-
tions of the right to prior consultation and its differences from the right to
provide free prior and informed consent. Then, I analyse the legal and political
foundations of this right and its relation to coloniality, and unpack the Prior
Consultation Law in order to show its dark side. Lastly, I explain the tensions
between Indigenous territorial rights, self-determination and the ‘national
interest’.
Indigenous self-determination and the

inclusion–exclusion paradox
The relation between Indigenous rights and the state’s laws has always been
ambiguous, because for Indigenous Peoples the state system has meant both
domination and resistance. Thus, Silvia Rivera explains how domination over
Indigenous Peoples did not mean a lack of agency since they have strategic-
ally appropriated the liberal legal system to defend their rights.5 Thus, after
the process of independence in Bolivia (1810–25), some Indigenous Peoples
used colonial legislation6 that recognised some special rights for Indians to
challenge the liberal state. This strategic use of the law is part of the long
memory of Indigenous resistance that continues today in the different struggles
for territorial rights.
The legal system, then, has always been an instrument to mediate Indi-
genous politics of self-determination, understood as the collective freedom
from colonial powers. However, liberal laws have never been able to express
5 S Rivera Cusicanqui, ‘The Notion of “Rights” and the Paradoxes of Postcolonial

Modernity: Indigenous Peoples and Women in Bolivia’ (2010) 18(2) Qui Parle:
Critical Humanities and Social Sciences 29.
6 By ‘colonial legislation’ I mean the Indian Law or Leyes de Indias, a body of laws
and decrees issued by the Spanish Crown in order to regulate the interactions
between the settlers and natives in its American and Philippine colonies.
Indigenous reality completely because, by imposing Eurocentric conceptions

of ‘nation’7 and individual rights, they have always subjected Indigenous
Peoples to the inclusion–exclusion paradox.
This paradox means that, by constructing ‘one nation’ and making the
Indigenous Nations in former Latin American colonies invisible, the Indi-
genous population was subjected to two options: to be included in the new
nation-state under European liberal laws, which meant losing territorial and
self-determination rights but gaining property entitlements and citizen
rights; or to be excluded from the new nation-state logic, which meant being
subjected to practices of slavery, deprivation and genocide.
The dividing line between inclusion and exclusion is complex because in
many contexts practices of recognition of rights for assimilation (inclusion)
and denial of rights (exclusion) were applied simultaneously or consecutively.
Thus, in the past if Indigenous Peoples rebelled against assimilatory practices
such as forced conversion to Christianity or abusive taxation, they were objects of
exclusion through military repression of the revolts.8 (Today, if Indigenous
Peoples oppose the extractive industries that express the ‘inclusion’ to a specific
development model, they are also objects of repression.) Inclusion and exclu-
sion were simultaneously applied, for example, when Indigenous Peoples were
recognised as citizens but under conditions that in practice deny the exercise
of rights (for example, the requirement to read to be able to vote).9
In order to understand the conceptual boundaries of the inclusion–exclusion
paradox fully, it is important to review the meaning of ‘statehood’. The literature
on international law defines the state as composed by substantial and formal
aspects.10 The substantial aspect refers to a political community that shares
cultural features, a territorial space, political aims and an identity, whereas the
formal aspect refers to its legal configuration and recognition by the inter-
national community. The first aspect expresses the self-determination of peo-
ples or the ‘nation’ that is the material basis of the state, and the second
aspect expresses state sovereignty as a capacity to rule within a territorial
space and to be protected by, and given obligations under, international law.
The state and the nation are then two different concepts although deeply
7 For discussions of the European concept of ‘nation’, see Benedict Anderson,

Imagined Communities: Reflections on the Origin and Spread of Nationalism (Verso, rev
edn, 1991); Partha Chatterjee, The Nation and its Fragments: Colonial and Post-
colonial Histories (Princeton University Press, 1993); Homi Bhabha, Nation and
Narration (Routledge, 1990).
8 D Sanders, ‘The UN Working Group on Indigenous Populations’ (1989) 11(3)
Human Rights Quarterly 406.
9 This requirement was eliminated in Peru just four decades ago with the Political
Constitution of 1979.
10 See references in M Craven, ‘Statehood, Self-Determination and Recognition’ in
Malcolm Evans (ed), International Law (Oxford University Press, 3rd edn, 2010)
203.
124 Roger Merino
related. The state is the juridical-political expression of the ‘nation’ (a socio-

cultural concept) and the European model of the ‘nation-state’ expresses this
relation.
However, Indigenous Peoples were not considered ‘nations’ in these terms.
In some contexts they were considered a second category of nations subjected
to an imperial power (in North America) or as simple tribes (in Central
America). Therefore, they were not allowed to be states and subjects of
international law. The consequence of this is that, even though they could be
recognised as political communities, their lack of statehood made them legally
vulnerable to the imperial powers’ domination.
After independence from the British, Spanish and Portuguese empires in
the eighteenth and nineteenth centuries, the new political units in America
obtained the formal aspects of statehood, and the substantial aspect of self-
determination had to entail the construction of a ‘nation’ in which the Indigen-
ous Nations had to be either included or excluded.11 The new nation-states were
constructed as European, Catholic and white countries with no place for
autonomous Indigenous Peoples.12 The political dynamics have obliged a
rethink of the notion of self-determination and a re-elaboration of legal and
political arrangements.
The notion of Indigenous self-determination has a rich genealogy that
began with the imperial history of colonisation,13 but an important milestone
was the discussions around the decolonisation of Africa.14 Thus, around the
First World War, self-determination became a powerful political discourse
from which notions of statehood were derived.15 When the United Nations
was created, ‘the self-determination of peoples’ was included in the founding
principles of the UN Charter.16 In 1960, the United Nations General
Assembly adopted the Declaration on the Granting of Independence to Colonial
Countries and Peoples, referring to self-determination in relation to formal
11 J Galindo, ‘Cultural Diversity in Bolivia: From Liberal Interculturalism to Indi-

genous Modernity’ in M Janssens (ed), The Sustainability of Cultural Diversity:
Nations, Cities and Organizations (Edward Elgar Publishing, 2010) 80.
12 F Arocena, ‘Multiculturalism in Brazil, Bolivia and Peru’ (2008) 49(4) Race &
Class 1.
13 See P Fitzpatrick, ‘Necessary Fictions: Indigenous Claims and the Humanity of
Rights’ (2010) 46(5) Journal of Postcolonial Writing 446; A Pratt, ‘Treaties vs.
Terra Nullius: “Reconciliation”, Treaty Making and Indigenous Sovereignty in
Australia and Canada’ (2004) 3 Indigenous Law Journal 43.
14 Craven, above n 10.
15 D Philpott, ‘In Defense of Self-Determination’ (1995) 105(2) Ethics 352; C Fromherz,
‘Indigenous Peoples’ Courts: Egalitarian Juridical Pluralism, Self-Determination, and
the United Nations Declaration on the Rights of Indigenous Peoples’ (2008) 156(5)
University of Pennsylvania Law Review 1341; A Peang-meth, ‘The Rights of Indigenous
Peoples and Their Fight for Self-Determination’ (2002) 174(3) World Affairs 101.
16 V Napoleon, ‘Aboriginal Self Determination: Individual Self and Collective
Selves’ (2005) 29(2) Atlantis 1.
colonial rule.17 The ‘peoples’ in this declaration were colonised peoples

dominated by foreign powers. For them, self-determination meant independence
from the colonial authority.
However, to derive statehood from self-determination was problematic
because not all states in the world had the two aspects of statehood (the sub-
stantial and formal aspects previously mentioned) in the same way. Although
all states alleged international political recognition and sovereignty, inside
many ‘postcolonial’ states lived different Indigenous Nations. In this context,
international scholars differentiated between ‘external self-determination’ and
‘internal self-determination’.18 The former refers to a situation in which a
specific nation has the right to be an independent republic in front of the
international community, and the latter refers to a situation in which different
nations coexist within a specific state and maintain some degree of political
autonomy, however, under a unitary legal and political framework.
When international legal instruments and most scholars refer to Indigenous
self-determination, they are referring to ‘internal self-determination’ as the right
to maintain their ancestral territory and their specific cultural and social norms
as Indigenous Peoples within a specific state.19 This version of self-determin-
ation has been recognised in the International Covenant on Economic, Social and
Cultural Rights and the International Covenant on Civil and Political Rights, adop-
ted by the United Nations General Assembly in 1966. These are the sources of
Art 3 of UNDRIP, which recognises the ‘right of self-determination’, although
respecting the principle of political unity of the sovereign state.20
17 United Nations Declaration on the Granting of Independence to Colonial Countries and

Peoples, GA Res 1514/15, UN Doc A/RES/1514(15) (adopted 14 December
1960). See A Muehlebach, ‘What Self in Self-Determination? Notes from the
Frontiers of Transnational Indigenous Activism’ (2003) 10(2) Identities: Global
Studies in Culture and Power 241.
18 The conceptual origins of the right of self-determination for Indigenous Peoples can
be found in the imperial history of colonisation. In North America, the British
Royal Declaration of 1763 established that the only authority that could negotiate
with Indigenous Peoples (considered as nations) and secure property to the settlers
was the Crown. After independence, Chief Justice Marshall in Worcester v State of
Georgia 31 US 515 (1832) alleged that Indigenous property and government were
legally recognised, though under the imperium of the settler nation. Thus, although
Marshall recognised American Indian nations as sovereign, this recognition applied
only to the relationship between Indian nations and other states, not with the federal
government. Therefore, even though some celebrate the Royal Declaration and the
Marshall jurisprudence as the basis of Indigenous self-determination, in practice the
common law has aimed to eliminate Indigenous territorial rights. See Fromherz,
above n 15; S Dodds, ‘Justice and Indigenous Land Rights’ (1998) 41(2) Inquiry: An
Interdisciplinary Journal of Philosophy 187.
19 S Errico, ‘The Draft UN Declaration on the Rights of Indigenous Peoples: An
Overview’ (2007) 7(4) Human Rights Law Review 741.
20 E Daes, ‘An Overview of the History of Indigenous Peoples: Self-Determination
and the United Nations’ (2008) 21(1) Cambridge Review of International Affairs 7;
Peang-meth, above n 15; Muehlebach, above n 17.
126 Roger Merino
The legal recognition of internal self-determination has been celebrated by

some scholars21 because it would make Indigenous Peoples subjects rather
than objects of international law. In that sense, Anaya argues that the recog-
nition of Indigenous ‘self-determination’ has been central to their demands at
an international level: self-determination is a foundational principle that
encompasses the constellation of Indigenous rights; for him this means that,
under the human rights approach, Indigenous Peoples, with their own social
and political institutions, must be equal participants in all the levels of the
government under which they live.22
However, in practice the recognition of ‘internal self-determination’ has
meant the reinforcement of state power over Indigenous territory in exchange
for some degree of autonomy. The reason for this is that, in order to negotiate
‘self-determination’ successfully with the states at UN forums, Indigenous
Peoples had to accept the human rights framework under the paradigm of the
unitary nation-state, instead of the decolonial framework in which ‘self-
determination’ was born, namely, as a specific collective political right rooted
in the resistance against colonisation.23
But it seems problematic to accept that self-determination can only be
understood in terms of a liberal conception of the nation-state and human
rights, and that it must be detached from decolonial struggles. On the contrary,
‘self-determination’ must be understood from Indigenous perspectives through a
conceptual turn that in decolonial theory is called ‘border thinking’.24
According to this view, decolonial epistemology does not mean a fundamentalist
rejection of all western categories, but the acknowledgement that there are
non-western theoretical frameworks that must be grasped on their own terms;
only then is it possible to start a dialogue and exchange. Thus, it does not
reject the use of western categories but invites us to rethink those categories
from non-western epistemologies.25 Border thinking, therefore, allows a
21 P Keal, European Conquest and the Rights of Indigenous Peoples: The Moral Backwardness of
International Society (Cambridge University of Press, 2003); J Gilbert, ‘Indigenous
Rights in the Making: The United Nations Declaration on the Rights of Indigenous
Peoples’ (2007) 14 International Journal on Minority and Group Rights 207.
22 J Anaya, ‘Derecho de los pueblos indígenas a la libre determinación tras la
adopción de la Declaración’ in Claire Charters and Rodolfo Stavenhagen (eds), El
desafío de la declaración: Historia y futuro de la declaración de la ONU sobre pueblos
indígenas (IWGIA, 2009) 194.
23 K Engle, ‘On Fragile Architecture: The UN Declaration on the Rights of Indi-
genous Peoples in the Context of Human Rights’ (2011) 22(1) European Journal
of International Law 141.
24 R Grosfoguel, ‘A Decolonial Approach to Political-Economy: Transmodernity,
Border Thinking and Global Coloniality’ (2009) 6 Kult 10.
25 W Mignolo and M Tlostanova, ‘Theorizing from the Borders: Shifting to Geo-
and Body-Politics of Knowledge’ (2006) 9 European Journal of Social Theory 205;
R Grosfoguel, ‘World-Systems Analysis in the Context of Transmodernity,
Border Thinking, and Global Coloniality’ (2006) 29(2) Review of the Fernand
Braudel Center 167.
redefinition of western concepts and devices such as democracy, human rights

and self-determination.
In that sense, Indigenous self-determination from a decolonial perspective
entails two options for Indigenous Peoples: integrating state political and
economic institutions or enacting their own political and economic arrange-
ments in relation to the state (which can mean the re-emergence or reinvention
of pre-colonial legal and political frameworks). Thus, it can entail a variety of
institutional arrangements, from decentralisation and social participation to
total independence and autonomy. Its implementation depends on the polit-
ical and social context of each situation. Nonetheless, in all cases Indigenous
self-determination must be conceived in legal-political and ontological/
epistemological terms as a foundational right: the right to transcend the
inclusion–exclusion paradox.26
This right has never been fully recognised. Indigenous Peoples’ rights in
Latin American countries have been enacted through top-down legal recog-
nition of specific ‘Indigenous communities’ in the case of Peru or ‘Indigenous
resguardos’ in the case of Colombia.27 These spatial units of colonial legacy are
composed by segments of Indigenous Peoples that were organised in specific
areas during the colonial era. When Latin American multicultural constitu-
tions recognise the right of self-determination or autonomy, what they are
recognising is the right of each community to govern themselves within that
specific space (in political, economic and juridical terms). They are not
recognising the self-determination of a whole Indigenous Nation, but the
‘pluriculturalism’ by which Indigenous Peoples are autonomous units within
the national political community.28 The difference between plurinationalism and
pluriculturalism is relevant here. Plurinationalism recognises the existence of
different nations under a state legal and political framework, whereas pluri-
culturalism only celebrates the ‘cultural diversity’ of a country without
recognising Indigenous Peoples as nations.
Another institutional arrangement suggests that Indigenous Peoples
have the inherent right to be recognised not as units within a nation but
as different nations. This does not mean denying state sovereignty but recog-
nises the fact that they are not going to be assimilated into a dominant
nation. The models of federal Indigenous Nations proposed by Tully29
and the recent plurinationality implemented in Bolivia express this kind of
26 On the notion of ‘foundational rights’, see R Merino, ‘Critical Human Rights

and Liberal Legality: Struggling for “The Right to Have Communal Rights”’
(2013) 3(3) Philosophy Study 246.
27 These are recognised in the current political constitutions: Political Constitution
of Peru (1993) and Political Constitution of Colombia (1991).
28 D Van Cott, The Friendly Liquidation of the Past: The Politics of Diversity in Latin
America (University of Pittsburgh Press, 2000).
29 J Tully, Strange Multiplicity: Constitutionalism in an Age of Diversity (Cambridge
128 Roger Merino
self-determination.30 It is important to note that these different political

arrangements entail different degrees of self-determination. The anthro-
pologist Richard Smith has accompanied Indigenous movements for decades
and has found that self-determination refers to the right of a people to choose
the type of relationship it wants to maintain with a dominant state.31 There
are, of course, some radical proposals such as Ward Churchill’s claim for the
constitution of an Indian nation independent from the United States.32
However, most academic and political proposals range from some degree of
autonomy through decentralisation within a dominant nation such as the
liberal multiculturalism in Latin America, to political projects that recognise
Indian nations within the state.
However, even in decolonial projects or any other project in which there is
a dominant nation-state, Indigenous self-determination is affected by norms of
exception and national interest that allow the reconstitution of liberal law and
the political economy of extraction. For example, the recognition of Indigen-
ous collective property is limited because the state (or transnational corpor-
ations with concession rights) can always exploit the natural resources located
under Indigenous land on behalf of the ‘national interest’.33 Therefore, the
liberal legal system must be decolonised. Indigenous Peoples appropriate legal
tools which accord to their own political agendas but at the same time move
beyond legal boundaries towards the recognition of more profound Indigen-
ous rights: territory, nationality and consent are the final aims of the struggles
for property, communality and consultation.
Prior consultation: between inclusion and exclusion

The recognition of Indigenous rights is not new in Peruvian history. President
Leguia (1908–12 and 1919–30) promoted the legal recognition of ‘Indigenous
communities’ in the Constitution of 192034 and pro-Indigenous legislation for
their integration into the national society. President Velasco (1968–75) enacted
laws to recognise Indigenous communities as peasant and native communities and
promoted a project of Indian modernisation through a co-operative agrarian
model.35 Indigenous Peoples have been treated as subjects to be modernised and
30 B Santos, ‘La reinvención del Estado y el Estado plurinacional’ (2007) 8(22) OSAL 25.
31 R C Smith, ‘Los indígenas amazónicos suben al escenario internacional: Reflex-
iones sobre el accidentado camino recorrido’ in F Morin and R Santana (eds), Lo
transnacional: Instrumento y desafío para los pueblos indígenas (Abya-Yala, 2003) 203.
32 W Churchill, Struggle for the Land: Native North American Resistance to Genocide,
Ecocide, and Colonization (City Lights Books, 2002).
33 Eg Art 21b of Law No 26834, 1997; Art 5c of Law No 28736, 2006.
34 Constitution of the Republic of Peru of 1920, approved by the National
Assembly in December 1919.
35 See L Del Castillo, ‘¿Tienen futuro las comunidades campesinas?’ (1992) 14
Debate Agrario 39; J Matos, ‘Comunidades indígenas del área andina’ in J Matos
each legal device that has recognised their rights has been accompanied by norms
that reinforce the state’s power in their territory on behalf of the ‘national interest’.
The Prior Consultation Law is a new legal innovation for the recognition of
Indigenous rights in the context of multiculturalism, which was inaugurated
by Fujimori’s government (1990–2000). During the 1990s the multicultural
trend led to the constitutional recognition of Peru as a multi-ethnic society,
but at the same time the weakening of Indigenous rights: the 1993 Con-
stitution36 removed the remaining norms in favour of Indigenous Peoples
from Velasco’s legislation,37 including the inalienability of Indigenous lands,
and reasserted the state’s absolute control over natural resources, promoting at
the same time the selling, leasing and mortgage of Indigenous land (Decree
No 65338). The recognition of multiculturalism included formal recognition
of Indigenous activism in a space allocated to political and economic elites
(they become indios permitidos), and some important achievements related to
cultural recognition, but undermined the possibility of articulating other
fundamental claims.39 Therefore, multiculturalism is an instrument to ensure
the power of neo-liberal governments, rather than a real commitment to
Indigenous Peoples’ rights to territory and self-determination.40
The right to free, informed and prior consultation fits within this logic.
This right was first recognised by the ILO Convention No 169 (1989) as a
right of Indigenous Peoples to be consulted before the approval of any meas-
ure that affects their collective rights.41 According to the convention, in
general it is only necessary to consult and not to obtain consent (with the
exception of displacements42).
(ed), Hacienda, comunidad y campesinado en el Perú (Instituto de Estudios Peruanos,

1976) 179.
36 Articles 88 and 89 of the Political Constitution of Peru, Title 3 ‘Economic
Regimen’, Chapter 6 ‘Agrarian Regimen of Peasant and Native Communities’.
37 The main Indigenous legislation of Velasco’s government was Decree 17716,
Law of Agrarian Reform (1969) and Decree 20653, Law of Native Communities and
Agricultural Promotion of the Amazonian and Low Amazonian Regions (1974).
38 D Leg No 653, Law of Promotion of Investment in the Agrarian Sector.
39 C Hale, ‘Neoliberal Multiculturalism: The Remaking of Cultural Rights and
Racial Dominance in Central America’ (2005) 28(1) Political and Legal Anthro-
pology Review 10.
40 R Sieder, ‘“Emancipation” or “Regulation”? Law, Globalization and Indigenous
Peoples’ Rights in Post-war Guatemala’ (2011) 40(2) Economy and Society 239; L
Horton, ‘Contesting State Multiculturalisms: Indigenous Land Struggles in
Eastern Panama’ (2006) 38(4) Journal of Latin American Studies 829.
41 Article 6(1) of the ILO Indigenous and Tribal Peoples Convention No 169 (1989): ‘In
applying the provisions of this Convention, governments shall: (a) consult the
peoples concerned, through appropriate procedures and in particular through
their representative institutions, whenever consideration is being given to legis-
lative or administrative measures which may affect them directly.’
42 Ibid Art 16(2): ‘Where the relocation of these peoples is considered necessary as
an exceptional measure, such relocation shall take place only with their free and
130 Roger Merino
Scholars have criticised the notion of consultation because it becomes a busi-

ness device for companies to achieve the status of social responsibility.43 It has
been appropriated and repackaged by public and private global institutions such
as the World Bank, the Inter-American Development Bank and the International
Council on Mining and Metals, amongst others, which inserted it into a global
political economy that recognises the right of consultation but not the right of
Indigenous Peoples to provide consent.44 Others criticise the idea that prior
consultations prevent and resolve social conflicts when in reality they generate
tensions between local visions of development and state economic goals.45
The UNDRIP46 went further by emphasising that the processes of con-
sultation should be directed to obtain the ‘free, prior and informed consent’ of
Indigenous Peoples,47 and expressly recognising the necessity of consent in
cases of displacement, storage or disposal of hazardous materials in Indigenous
territory, and the use or occupation of Indigenous material and immaterial
property and territory.48 However, the right to consent in the declaration is
informed consent. Where their consent cannot be obtained, such relocation shall
take place only following appropriate procedures established by national laws
and regulations, including public inquiries where appropriate, which provide the
opportunity for effective representation of the peoples concerned.’
43 C Rodríguez-Garavito, ‘Ethnicity.gov: Global Governance, Indigenous Peoples,
and the Right to Prior Consultation in Social Minefields’ (2011) 18(1) Indiana
Journal of Global Legal Studies 263.
44 D Szablowski, ‘Re-empaquetando el CLPI: las conexiones globales y el debate
sobre el consentimiento indígena para la extracción industrial de recursos’ (2010)
28 Anthopologica 217.
45 Almut Schilling-Vacaflor, ‘Rethinking the Link between Consultation and Con-
flict: Lessons from Bolivia’s Gas Sector’ (2014) 35(4) Canadian Journal of Devel-
opment Studies/Revue canadienne d’études du développement 503.
46 United Nations Declaration on the Rights of Indigenous Peoples, GA Res 61/295, UN
Doc A/RES/61/295 (adopted 13 September 2007).
47 Ibid Art 19: ‘States shall consult and cooperate in good faith with the indigen-
ous peoples concerned through their own representative institutions in order to
obtain their free, prior and informed consent before adopting and implementing
legislative or administrative measures that may affect them.’
Article 32(2): ‘States shall consult and cooperate in good faith with the indigen-
ous peoples concerned through their own representative institutions in order to
obtain their free and informed consent prior to the approval of any project affecting their
lands or territories and other resources, particularly in connection with the devel-
opment, utilization or exploitation of mineral, water or other resources.’
48 Ibid Art 10: ‘Indigenous peoples shall not be forcibly removed from their lands
or territories. No relocation shall take place without the free, prior and informed
consent of the indigenous peoples concerned and after agreement on just and fair
compensation and, where possible, with the option of return.’
Article 11(2): ‘States shall provide redress through effective mechanisms,
which may include restitution, developed in conjunction with indigenous peo-
ples, with respect to their cultural, intellectual, religious and spiritual property
taken without their free, prior and informed consent or in violation of their laws,
traditions and customs.’
not yet fully recognised because, apart from these situations, the state has the
power to decide in cases when an agreement between the government
and Indigenous Peoples is not reached. As full consent is an expression of full
self-determination, the lack of recognition of the latter affects the former.
In the judicial arena there have not been enough achievements. In the most
important decision on the right of consent (Saramaka v Suriname49), the Inter-
American Court of Human Rights asserted that consent is necessary in cases
of ‘large-scale development or investment projects’ that would have a ‘major
impact’ on ‘a large part of their territory’, whereas the UNDRIP establishes
that the states shall consult in order to obtain free and informed consent prior
to the approval of any project affecting their lands or territories and other resources.
The argument of the Court is less protective than the UNDRIP because,
according to it, if extractive industries do not affect a significant area of
Indigenous territory, it is enough to undertake processes of consultation, not of
consent.50 The Court’s most recent decision on the issue (Sarayaku v Ecuador51)
does not go any further in the recognition of the right of consent.
Therefore, it is important to distinguish between the current consultation
standard, the consent standard and consent as an expression of Indigenous self-
determination. The two former are expressly recognised by international law
whereas the latter is rooted in the historical struggles for decolonisation
although not yet completely recognised by national and international standards.
Article 28(1): ‘Indigenous peoples have the right to redress, by means that can
include restitution or, when this is not possible, just, fair and equitable com-
pensation, for the lands, territories and resources which they have traditionally
owned or otherwise occupied or used, and which have been confiscated, taken,
occupied, used or damaged without their free, prior and informed consent.’
Article 29(2): ‘States shall take effective measures to ensure that no storage or
disposal of hazardous materials shall take place in the lands or territories of
indigenous peoples without their free, prior and informed consent.’
49 Case of the Saramaka People v Suriname (Inter-American Court of Human Rights, 28
November 2007). In the 1990s, Suriname granted logging and mining concessions
to private companies within the traditional Saramaka People’s territory without
their consent. In 2000, the petitioners complained to the Inter-American Commis-
sion of Human Rights and argued that, despite the fact that they were not in pos-
session of a title for the territory, they had the right to use and possess the territory
for their cultural, religious and economic activities. The case went to the Inter-
American Court of Human Rights in 2006. The Court decided that the Saramaka
People did not need a title in order to own the lands and asked the Suriname gov-
ernment to ‘delimit, demarcate and grant a collective title over the territory of the
members of the Saramaka people, in accordance with their customary laws, and
through previous, effective and fully informed consultations’.
50 J Pasqualucci, ‘International Indigenous Land Rights: A Critique of the Jur-
isprudence of the Inter-American Court of Human Rights in Light of the United
Nations Declaration on the Rights of Indigenous Peoples’ (2009) 27(1) Wisconsin
International Law Journal 51, 90.
51 Case of the Kichwa Indigenous People of Sarayaku v Ecuador (Inter-American Court of
Human Rights, 27 June 2012).
132 Roger Merino
Consultation and the limited application of consent are not only trapped in
the logic of multicultural liberalism; they also explain the permanence of the
inclusion–exclusion paradox. In spite of consultation processes, Indigenous
Peoples’ territory is still subjected to extractive exploitation on ‘behalf of the
national interest’, with the argument that it will bring modernisation and
development to Indigenous communities and the whole country. Namely,
Indigenous Peoples are included into the extractivist political economy in
order to exclude their own model of development that may be different from
extractive exploitation.
Thus, the promotion of extractive projects requires a legal framework that
recognises Indigenous rights as only being related to social and economic
participation in the project,52 and not rights of self-determination and terri-
toriality expressed in their right to provide consent. The economic policies are
implicitly based on the premise that Indigenous Peoples do not have the
capacity to manage their own territory properly according to the ‘national
interest’. In sum, the extractivist economic policies and laws embody the
prejudices of colonial governments which saw Indigenous Peoples as primitives
who should be civilised and eventually incorporated into western culture.53
Critiques of the Prior Consultation Law

The Prior Consultation Law is the legal implementation of ILO Convention
No 169, which was ratified by the Peruvian state in 1994. Since then, a few
state agencies such as the Ministry of Energy and Mines have implemented a
weak version of consultation under the name of ‘informative workshops’. That
is why in the last decade civil society and Indigenous organisations have
strongly requested the correct implementation of consultation processes,
reverting to court action and political activism.54
In the social arena, this law was the outcome of the Baguazo and other
protests against national policies that ignored the ways in which Indigenous
Peoples are affected by extractive industries. Ollanta Humala became Presi-
dent in 2011 under a ‘social inclusion’ banner, and the Prior Consultation
Law was one of his first measures passed by the Congress. As the legislators
felt compelled to implement ILO Convention No 169 and not the declaration
(which is seen as a symbolic document rather than a normative one), they
emphasised ‘consultation’ more than ‘consent’. Thus, partially taking
52 M Satterthwaite and D Hurwitz, ‘The Right of Indigenous Peoples to Mean-

ingful Consent in Extractive Industry Projects’ (2005) 22(1) Arizona Journal of
International & Comparative Law 1.
53 S Davis and A Wali, ‘Indigenous Land Tenure and Tropical Forest Management
in Latin America’ (1994) 23(8) Journal of the Royal Swedish Academy of Sciences
485.
54 See J Ruiz, La implementación del derecho a la consulta previa de los pueblos indígenas:
Una mirada constitucional (IDL, 2011).
international standards into account, the law regulated the right to ‘prior, free
and informed consultation’ instead of the right to prior, free and informed
consent (as established in the declaration).
The original enthusiasm about the law was quickly abandoned in favour of
criticism of its process of implementation through regulation (Reglamento),55
which established very polemical rules, such as the exemption from consultation
of infrastructure projects to provide health, education and ‘public services’ in
general (this norm is very dangerous because these projects usually have major
impacts on the Indigenous population), or the limited recognition of the right
to provide consent. Indigenous Peoples only hold the right to provide consent
when the state seeks to displace them to other territories, and when there is
an attempt to keep dangerous materials on Indigenous land.56 In any other
cases the state only has to consult, and if there is a disagreement it is solved
unilaterally by the state.
These limitations of the right to consultation have been exposed by activists
who have formulated legal interpretations that enlarge the right to consult-
ation;57 however, to focus on consultation as a key element of Indigenous
Peoples’ legal status and political agenda is misleading. Even more, a deep
analysis of the Prior Consultation Law and its regulations leads us to question
its very foundations. Let us start by observing the structure of the consultation
process. It is a process of ‘dialogue’ between the state and the peoples (with no
intervention from companies); it is led by the public entity that enacted a law
or administrative norm (including licences for extractive activities) that would
affect Indigenous collective rights. Then, the process may have six stages (Arts
14–23 of the regulation): identification (of the people affected and the norm
enacted); publicity (about the norm); information (the state informs Indigenous
Peoples about the measure); internal evaluation (the community will evaluate
the convenience of the measure); intercultural dialogue (which emerges only if
there is no agreement after the internal evaluation); and decision. This process
has a very short duration of 120 days.
As can be observed, the whole process is designed as a mechanism to inform
and convince Indigenous Peoples of a decision already made; the ‘intercultural
dialogue’ only appears if Indigenous Peoples are not persuaded. But should it
not be the other way around? An intercultural dialogue should be the first stage
in a state that is respectful of Indigenous Peoples, in order to identify their
priorities and aspirations and undertake a mutually enriching dialogue.
This does not mean that Indigenous Peoples hold a unique position on the
idea of development; indeed, the complexity of the processes of consultation
55 Bylaw (Reglamento) of the Law 29785, Law of the Right of Prior Consultation of
Indigenous Peoples Recognised under Convention 169 of the International Labour Organ-
ization (ILO), approved by Supreme Decree No 001–2012-MC, 3 April 2012.
56 This article is based on Art 29(2) of the UNDRIP.
57 See Ruiz, above n 54.
134 Roger Merino
also responds to the plurality of Indigenous politics. Among the Awajun

people, Indigenous leaders, Indigenous organisations and Indigenous intel-
lectuals usually hold contrasting visions regarding globalisation and extractive
industries.58 For Greene, these tensions must be seen as forms of active
negotiation with the state and market actors.59 Rather than interpret them as
contradictions, these are the diverse paths on which the Awajun construct
their different projects. Indeed, these contrasting visions do not mean the
renunciation of Indigenous self-determination. Themes such as territoriality
and a strong environmental concern are still crucial in the general Indigenous
agenda. Most discussions do not deny those ideals, but aim to define the ways
in which engagement with the capitalist political economy and liberal legal
system would end up affecting them. Therefore, what Indigenous Peoples
want to negotiate in the processes of consultation is not the renunciation of
their self-determination, but how this self-determination will interact with
the market and the state.
However, the current law does not allow a complete exercise of self-
determination because opposition to extractive industries is not an option.
Nonetheless, Indigenous Peoples do not abandon the processes of consulta-
tion and this explains the process of appropriation and ‘going beyond’ the
liberal legal system. Indigenous Peoples are very critical of the Prior Con-
sultation Law; they strongly opposed the exclusion of the right of consent,
but at the same time they are using the judicial system to demand more
processes of consultation.60 This apparent contradiction is in reality an
expression of Indigenous politics: consultation is an available liberal tool to
be used until the complete recognition of Indigenous self-determination is
achieved. This also explains why consultation processes are so complex and
contentious.
For this reason, the different engagements with consultation and other liberal
devices must not be seen from the epistemological position of the West that
usually portrays Indigenous Peoples as ‘liberals’ if they engage with con-
sultation and human rights; as ‘potential entrepreneurs’ if they use property
58 In 2012–13, I did fieldwork with the Awajun people in northern Amazon and
the Interethnic Association for the Development of the Peruvian Amazon
(AIDESEP). The Awajun is one of the 52 Indigenous Peoples officially recog-
nised by the Peruvian state (Official Data Base of the Ministry of Culture, 2014).
According to the Vice Ministry of Intercultural Affairs, the census of Indigenous
communities of the Amazon of 2007 estimated there were 55,366 people self-
identified as Awajun, inhabiting native communities and centros poblados located
mainly in the departments of Loreto, Amazonas, San Martin and Cajamarca.
Most Awajun organisations are part of AIDESEP, the most important Amazon-
ian Indigenous organisation.
59 S Greene, Customizing Indigeneity: Paths to a Visionary Politics in Peru (Stanford
60 See all the cases in J Ruiz, ‘Problemas Jurídicos en la Implementación de la
Consulta Previa en el Perú’ (2014) 42 Derecho & Sociedad 179.
entitlements to defend their territory; and as ‘radical Left terrorists’ if they

oppose extractive activities. Usually, the liberal legal system is a means to
mediate Indigenous politics with the final aim of obtaining more spaces for
self-determination.
Prior to prior consultation: territorial rights and the

politics of Indigenous self-determination
I contend that the Prior Consultation Law’s rationality is rooted in coloniality
because it does not allow the exercise of Indigenous Peoples’ self-determination:
they can participate in the process but not oppose state decisions. Indeed, the
hope of some companies and technocrats was to institutionalise conflicts
within the Prior Consultation Law, and through this process – of passing
information and persuasion – legitimise the policy, ‘If properly obtained pre-
vious consent should allow large extractive industry projects to go forward in
a less conflicted atmosphere’.61 In sum, the law and its regulation is aimed at
freezing Indigenous politics into new extractivist policies.
In addition to this, the expectations and propaganda raised by the Prior
Consultation Law make us forget other important rights that have historically
been part of Indigenous Peoples’ agenda. Thus, academics and activists tend
to conceptualise Indigenous rights around the right of consultation,62 so other
rights are simply treated as emerging rights that someday might be recognised
by the law. However, crucial rights such as territoriality are not emerging
claims; they have a long history of affirmation and resistance embedded in the
politics of Indigenous self-determination.
In Peru, Arts 89 and 149 of the Constitution63 recognise self-determination
as the autonomy of peasant and Indigenous communities (which involves the
right of autonomous organisation, communal work, use and free disposition of
land, and economic, administrative and jurisdictional autonomy within the
‘law’). Nonetheless, as this autonomy does not mean that Indigenous Peoples
hold a complete power of decision making over their land (and they have no
right over the resources of the subsoil), they often direct their claims towards
decolonial projects. A decolonial project, as in the case of Bolivia, would mean
the recognition of Indigenous Peoples not as ‘communities’ but as ‘nations’
and the recognition of their vital spaces not as ‘land rights’ but as ‘territorial
rights’.
61 L Laplante and S Spears, ‘Out of the Conflict Zone: The Case for Community
Consent Processes in the Extractive Sector’ (2008) 11 Yale Human Rights &
Development Law Journal 69, 71.
62 See E Salmón, ‘The Struggle for Laws of Free, Prior, and Informed Consultation
in Peru: Lessons and Ambiguities in the Recognition of Indigenous Peoples’
(2013) 22(2) Pacific Rim Law & Policy Journal 353.
63 Political Constitution of Peru of 1993.
136 Roger Merino
In fact, the key concept of territory has specific features that make it dif-
ferent from property. Economic and political theory obscure the fact that
Europeans imposed systems of property on the colonies, and that Indigenous
Peoples were already there, living with their own tenure systems.64 In fact,
Indigenous Peoples vindicate the concept of territory as a geo-political space
that includes a communal system of land and resources tenure rather than
property.
The literature on Indigenous territory has explained how it consolidates a
singular set of social networks among the different beings that share the
environment;65 since it is a place for identity reproduction it is more than an
economic issue. The territory possesses social, cultural and spiritual dimensions,66
which are preconditions for Indigenous material and cultural survival.67 This
does not mean that Indigenous territories are given or static; indeed, their
constitution responds to internal and external negotiations within the com-
munities and the state.68 That is why a politics of space or cartographic dis-
putes are emerging between Indigenous claims to reinvent their territorialities
and the state reaffirmation of its absolute power over Indigenous vital
spaces.69
As previously mentioned, self-determination must be understood as the main
right for Indigenous Peoples, a foundational right in the sense that it is the
basis of a whole legal, political and economic system rooted in non-western
ontologies and epistemologies.70 Self-determination and territoriality support
the right of consent, wrongly called ‘right to veto’ because it does not derive
from a special power conferred to Indigenous Peoples due to their hegemonic
position in the democratic system (as is the case with the presidential veto
power), but it is an expression of their self-determination as peoples. Self-
determination also supports the right to use and obtain direct benefits from the
64 J Tully, ‘Aboriginal Property and Western Theory: Recovering a Middle

Ground’ (1994) 11 Social Philosophy and Policy 153.
65 P García and A Surrallés, Tierra Adentro: Territorio indígena y percepción del entorno
(A Surrallés and García Hierro eds, IWGIA, 2004).
66 E Daes, ‘An Overview of the History of Indigenous Peoples: Self-determination
and the United Nations’ (2008) 21(1) Cambridge Review of International Affairs 7;
R Roldán, ‘Models for Recognizing Indigenous Land Rights in Latin America’
(Biodiversity Series, Paper No 99, World Bank Environment Department,
2004).
67 L Sweptson and R Plant, ‘International Standards and the Protection of the Land
Rights of Indigenous and Tribal Populations’ (1985) 124(1) International Labor
Review 91; E Stamatopoulou, ‘Indigenous Peoples and the United Nations: Human
Rights as a Developing Dynamic’ (1994) 16(1) Human Rights Quarterly 58.
68 J Erazo, Governing Indigenous Territories: Enacting Sovereignty in the Ecuadorian
Amazon (Duke University Press, 2013).
69 J Wainwright and J Bryan, ‘Cartography, Territory, Property: Postcolonial
Reflections on Indigenous Counter-Mapping in Nicaragua and Belize’ (2009) 16
(2) Cultural Geographies 153.
70 Merino, above n 26.
land or the right of peoples to establish their own views of development, among
other rights that contrast with new Indigenous rights that have been recognised
in the last decades by international standards, such as ILO Convention No 169
and the jurisprudence of the Inter-American Court of Human Rights.
Indeed, many of these new rights are responses to western logic: the right of
consultation (Arts 6(1), 6(2) and 15(2) of ILO Convention No 169), for example,
has as a premise that a state is going to affect Indigenous self-determination and
it needs at least to ask Indigenous Peoples their opinion; the right of Indigenous
Peoples to participate in economic benefits obtained by extractive industries (Art
15(2) of ILO Convention No 169) responds to the fact that companies are
exploiting (or are going to exploit) Indigenous land and resources.
This does not mean that there is no recognition of foundational rights at
international level (indeed, ILO Convention No 169 timidly recognises the
right to territory and the UNDRIP recognises a weak version of the right of
self-determination); or that many Indigenous Peoples, because of their his-
torical process, are closer to the discourse and practice of the new rights (such
as consultation and economic benefits). It does mean rather that the problem
of coloniality is still alive and hidden behind an optimistic discourse of
globalisation of Indigenous rights.
This situation generates practical consequences. After enacting the Prior
Consultation Law, the Peruvian government had to decide which would be
the first process of consultation. The Quichua of Pastaza were elected as the first
communities to be consulted because they had suffered from the environmental
impacts of extractive industries for decades and had received considerable media
attention. The consultation was planned at the commencement of exploitation
activities of the oil concession 1AB located close to the communities. The
Quichua of Pastaza, however, argued that before any process of consultation
they wanted the recognition of their territorial rights and the remediation of
sixty years of environmental impacts on their territory. The government, first,
had to delay the process of consultation, and then undertake a rapid process of
consultation whose results are not recognised by most Indigenous organisa-
tions. This example shows how new rights such as ‘consultation’ can be con-
fronted with foundational rights, such as territoriality.
The problem of focusing on consultation is that it can obscure foundational
rights that are components of today’s Indigenous agenda. The most important
Indigenous organisation in Peru (AIDESEP) and one of the most important
non-governmental organisations that supports Indigenous rights (the Institute
of the Common Good, Instituto del Bien Comun), for example, are promoting
the notion of ‘integral territory’. One of the experts in the institute is an
Awajun who has developed this concept technically and theoretically.71
According to him, the problem is that native communities’ titling covers
small parcels in which they live (as in the Andes) without taking into account
71 Interview with Ermeto Tuesta, Lima, 4 April 2013.

138 Roger Merino
the whole territory that includes spaces for fishing, hunting and collecting.
Then, huge areas become ‘free spaces’ that are given for extractive activities
without consultation. To face this problem, communities are starting to claim
title over territorial habitats instead of specific plots; they are demarking their
territory in a long-term strategy until its comprehensive legal recognition.
Therefore, whereas Indigenous politics could be represented – paraphrasing
Silvia Rivera72 – as a long-term politics which entails the pre-eminence of a
long memory (anticolonial struggles, pre-Hispanic order), many state officials
and technocrats (and some activists as well), in contrast, associate Indigenous
politics with the agrarian reforms of the 1960s and claims for statism and
land redistribution which today would mean underdevelopment. Thus, this
short memory (the fear of state intervention in the market) and short-term
politics (undertaking strong extractivism to obtain fast economic growth)
seems irreconcilable with the long memory (a history of coloniality) and long-
term politics (with strategies such as integral territory).
That is why Indigenous self-determination is still affected by norms of
exception that ensure the inalterability of the political economy and a specific
view of development on behalf of the ‘nation’. Indeed, the application of these
norms has always been connected to the expansion of the extractive industries.
As Orihuela asserts, the rise of the modern extractive industries is connected
to Indigenous exploitation and dispossession, in the mines of the Andes and
the rubber plantations of the Amazon.73 It is therefore natural that in coun-
tries with a colonial past, land rights are not well defined and the state owns
all underground resources: this allows the legal displacement of communities
in the name of the greater public good.
By exception the state can then exploit resources in areas that are protected
because of their environmental fragility (Art 21b of Law No 26834, 1997),
and even in reserves for Indigenous Peoples in voluntary isolation (Art 5c of
Law No 28736, 2006) because the untouchable character of the reserves can
be broken by the state on behalf of the public interest.74 Therefore, by
designing policies from the logic of coloniality, the government completely
controls peoples’ vital spaces and the reduction or violation of Indigenous
rights is a necessary sacrifice given the promise of development.75 This power
72 S Rivera Cusicanqui, Oprimidos pero no vencidos: Luchas del campesinado Aymara y

Qhechwa 1900–1980 (WA-GUI, 4th edn, 2010).
73 J C Orihuela, ‘The Making of Conflict-Prone Development: Trade and Hor-
izontal Inequalities in Peru’ (2012) 24 European Journal of Development Research
688.
74 M Finer, C Jenkins, S Pimm, B Keane and C Ross, ‘Oil and Gas Projects in the
Western Amazon: Threats to Wilderness, Biodiversity, and Indigenous Peoples’
(2008) 3(8) Plos One 1; N Hughes, ‘Indigenous Protest in Peru: The “Orchard
Dog” Bites Back’ (2010) 9(1) Social Movement Studies 85.
75 G Stetson, ‘Oil Politics and Indigenous Resistance in the Peruvian Amazon: The
Rhetoric of Modernity Against the Reality of Coloniality’ (2012) 21(1) Journal of
Environment and Development 76.
over Indigenous Peoples is usually justified as an expression of state sover-

eignty (the argument that Indigenous Peoples cannot have a ‘veto power’ over
the state) or the necessity of economic development and the fulfilment of the
government’s social responsibilities.76
However, there is a historical connection between the political economy of
extraction and the power to exploit Indigenous territories on behalf of the
national interest. This connection expresses the logic of coloniality by which
certain peoples can be exceptionally sacrificed on the ground of the alleged
economic benefits for all (economic argument) and the national cohesion
(sovereignty argument). But what is obscured is that the people sacrificed
usually have been ranked as the less civilised and constructed as those who
urgently need to be integrated into modernisation.
Indeed, these arguments are rooted in the colonial denial of Indigenous self-
determination and territoriality and are expressed in the Prior Consultation
Law. For that reason, the liberal legal system should be understood as a means
to mediate Indigenous politics, not as an end in itself. Indigenous Peoples
criticise and at the same time engage in the processes of consultation with the
aim of pushing for their agenda of self-determination beyond consultation.
The final aim is to transcend the inclusion–exclusion paradox towards the
recognition of different nations with territorial rights and the reconstitution
of the state. The challenges in this are tremendous. It entails not only policy
innovations, but also overcoming the elite’s ideology and the political economy
embedded in coloniality, namely, the view that resource extraction and ‘inte-
gration’ of Indigenous Peoples to this logic is the only path to development.
The politics of Indigenous self-determination obliges us to question these
premises.
Conclusion
In this chapter I have explained one crucial consequence of the colonisation
process that has implications today: the double denial of Indigenous Peoples,
the denial of their territories and communal tenure and the denial of their
character as ‘nations’. These denials mean that Indigenous Peoples are con-
ceived, at best, as landowners (able to hold property rights) and citizens (able
to hold political rights of participation) who belong to ethnic minorities
instead of being conceived as a people with territorial rights who belong to a
specific nation.
The chapter also revealed the meaning of the inclusion–exclusion paradox:
Indigenous Peoples are either included into the logic of the liberal capitalist
state or excluded from it. Indigeneity is tolerated insofar it does not contradict
the political and economic fundamentals of this system. Thus, participatory
and economic rights of Indigenous Peoples are articulated in terms of the
76 Laplante and Spears, above n 61.

140 Roger Merino
political economy of extraction: Indigenous Peoples are consulted about the

way in which an unavoidable extractivism must be undertaken, and they have
the right to obtain economic benefits from extractive activities.
Many Indigenous Peoples seek to transcend the inclusion–exclusion paradox
by proposing a politics of self-determination. I suggest that Indigenous self-
determination means that Indigenous Peoples have the right to enact their
own legal, political and economic systems. This principle does not deny
the interrelation of Indigenous Peoples with the state and the market nor the
plurality of Indigenous politics; it entails that Indigenous Peoples should have
the option to decide about the future of their territory and the way they want
to implement their own view of ‘development’.
That is why I conceive of self-determination as a ‘foundational right’. I
differentiate between Indigenous foundational rights (such as self-determin-
ation and territoriality) that are ontologically located beyond the inclusion–
exclusion paradox and therefore support the whole Indigenous system, and
‘new Indigenous rights’, such as the right of consultation or the right to
obtain economic benefits from extractive activities. Instead of foundational
rights that are rooted in non-western principles, the new Indigenous rights
are situated in the context of the global political economy of extraction and
do not question the two denials of Indigenous Peoples mentioned above.
I have demonstrated that coloniality survives in the Prior Consultation Law
by conceiving of Indigenous Peoples as minorities with proprietary entitlements
that can ‘participate’ in the benefits of ‘development’. This explains why the
liberal legal framework cannot contain the whole Indigenous cosmology and
why Indigenous Peoples use this legal system and move beyond it in a project
of social emancipation that seeks to reinvent the state structure in order to
recognise Indigenous territorial rights and self-determination.
Chapter 7
How governments manufacture

consent and use it against
Indigenous Peoples
Sharon Venne
Introduction
This chapter is not written from the position that the colonisers are the
repositories of knowledge. It is shaped from our Indigenous point of view,
using our own knowledge to analyse issues and respond to the colonisers. Our
Elders teach us that the Creation gave us a beautiful gift: a mind.
Indigenous Peoples have been subjected to the coloniser’s education system
for more than five hundred years. The state and churches took our children
and tried to teach us to be servants of the colonisers. Those institutions did
not even teach basic skills other than cooking, cleaning, taking care of animals
and obedience to their weapons of punishment. The churches instilled
hypocrisy, worship and idleness, and tried to stop our critical thinking so that
we could no longer be inventive. Then, they returned those surviving broken
children to their families. The colonisers wanted our children to be non-
inventive, only to repeat the lies of the colonisers. The colonisers were holding
the pens to write a history that favoured their narrative. Our histories that the
colonisers did not like were suppressed and rewritten to favour them. The
colonisers wanted to be the masters so that they could continue to abuse our
territories and resources. This is not a new invention. It is a repeat. The
colonisers’ repeat is corruption. They construct the story based on their values
and try to construct the narrative to fit their view of created history. This
history is full of myths and lies. Nonetheless, it is used as an effective means
to spread hatred and racism.
This age-old tactic has become very visible in two recent manifestations.
Domestically, legislation in Canada called the First Nations1 Financial
1 During the constitutional discussions in Canada in the late 1970s and early
1980s, the English and French settlers started calling themselves the founding
nations. The Indigenous Peoples in response started to call themselves the First
Nations of Great Turtle Island. Since that time, it is an accepted practice to be
referred to as First Nations Peoples. In this chapter, the term ‘First Nations’ is
interchanged with ‘Nations’ and I use ‘citizen’ rather than ‘member’. I will use
these terms where I am not copying or reproducing source materials.
142 Sharon Venne
Transparency Act2 (known widely across Canada as C27) tried to undermine

our treaty governments. Canada attempted to paint a picture that the citizens
of our Nations did not know what was happening with our finances and
needed the federal government to act to protect the citizens. This was false.
The citizens of the Indigenous Nations have always had access to the audits –
either at the office of the Nation or at the nearest office of the Department of
Indian Affairs and Northern Development (DIAND). At the international
level, a high-level plenary of the United Nations General Assembly (GA) was
branded the ‘World Conference on Indigenous Peoples’. These two examples
will be explored in this chapter.
Canada’s version of transparency was to expose our Peoples to racism and
hatred. There was a perceived idea that our Peoples are not accountable.
Canada’s transparency exposed our Nations to the carpetbaggers who mined
information online to target our Nations while the high-level plenary allowed
only one Indigenous individual to address the GA. Both of these processes
were orchestrated and manipulated by states for specific purposes. There were
lots of collaborators who were more than happy to play along with the games.
What were their rewards? It seems the reward was to get their names in the
media. They had no thought for the seventh generations3 and the effect that
their action would have on the rest of the Creation. Indigenous governments
who were opposed to the process were branded unco-operative and punished
for non-compliance.
Manipulation of Indigenous Peoples continues unabated. Governments of
states have organised their own groups of Indigenous Peoples who have been
recognised by their political masters to make ‘decisions’ for Indigenous Peo-
ples. Controllers have been used by governments to enact regressive domestic
legislation and to push an international agenda.
Canada and ‘real transparency’

Canada is a state created by an Act of the British Parliament in 1867.4 In
relation to the history of Great Turtle Island, it is very new. Canada is a
2 Bill C27 was enacted by the Parliament of Canada and received Royal Assent on
27 March 2013.
3 Within our traditional laws our Peoples are directed to think of the seventh
generation – those that are not yet born. We are asked to consider the implica-
tion of our decisions on them. In this way, we are separating decisions from
ourselves and the immediate future. It gives us a longer view of things rather
than ‘me me’ thinking. The concept of seventh generation is widely held by
Indigenous Peoples and Nations of the Americas.
4 British North America Act 1867, 30 & 31 Vict, c 3 (UK). As part of the colon-
isation process, our island was rebranded North America by the colonisers. Our
Creation stories put us on this floating island called Great Turtle Island. As part
of our decolonisation process, we must take back our names for our island. North
America is Great Turtle Island.
How governments manufacture consent 143
product of colonisation. The British Crown sent representatives across the

oceans to the shore of our island. What they saw, they wanted. There was
only one problem. The lands and resources were being used by our Nations.
The British Crown enacted the Royal Proclamation of 17635 to govern the
subjects of the Crown in accessing Indigenous territories. There are three
important aspects of the Royal Proclamation: (1) in order to access the lands
and territories of ‘Indian Nations or Tribes’, there needed to be an agreement
or a treaty; (2) if the Crown’s subjects were within the territories of the Indian
Nations or Tribes, the Crown was obligated to remove them (they would be
considered squatters); and (3) agreements or treaties would be made if the
Indians ‘so desired’. This makes treaties a prerequisite to the Crown’s subjects
legitimately moving into the territories of Indigenous Nations.
Treaties that were made by the British Crown were passed to Canada to
implement. Treaties have been recognised internationally as a source of rights,
for example by Special Rapporteur Miguel Alfonso Martinez in his ten-year
study of treaties made between Indigenous Nations and states.6 Alfonso
Martinez wrote:
In the case of Indigenous Peoples having concluded treaties or other legal

instruments with the European settlers and/or their continuators in the
colonization process, the Special Rapporteur has not found any sound legal
argument to sustain the position that they have lost their international
juridical status as nations.7
His conclusions were similar to Lord Denning’s in The Indian Association of

Alberta v Foreign and Commonwealth Secretariat8 in 1982.
However, the created state of Canada did not want to recognise the rights
of our Nations. Indigenous Nations govern with our own laws that are dis-
tinct and separate from what the federal government of Canada imposes on us
through its laws, policies and legislation, including the ‘Indian Act’.9 The
Indian Act tries to restrict and limit the way in which Indigenous Nations
govern our affairs in our territories. The territories of the Nations include, but
are not limited to, those territories recognised and designated as ‘reserved’ or
5 Issued by King George III of Great Britain and Ireland on 7 October 1763.
6 United Nations Economic and Social Council, Study on Treaties, Agreements and
Other Constructive Arrangements between States and Indigenous Populations: Final Report
by Miguel Alfonso Martinez, Special Rapporteur, UN Doc E/CN.4/Sub.2/1999/20
(22 June 1999).
7 Ibid [265].
8 R v The Secretary of State for Foreign and Commonwealth Affairs, ex parte The Indian
Association of Alberta, Union of New Brunswick Indians, Union of Nova Scotian
Indians [1982] QB 892 (CA).
9 See Sharon H Venne, Indian Acts and Amendments 1868–1975: An Indexed Collec-
tion (University of Saskatchewan Press, 1981).
144 Sharon Venne
‘reserve’ lands. However, these recognised ‘reserved lands’ are only one small
part of the larger traditional territories of the Nations. It is necessary to
understand the extent to which the state of Canada has attempted to restrict
our movements and use of our territories. Legislation and policies imposed
restrictions such as the pass system, the need for permits to dispose of our
produce, and to cut and sell timber from our lands, and restricting foods to
force our children into residential schools. In Sarah Carter’s book Lost Harvests
she documents the non-Indian farmers who protested the ability of the
Indians to farm collectively and undermined their efforts.10 These protests led
to changes in the Indian Act11 which was a federal law that prohibited Indians
from selling produce without a permit from the federal government’s
DIAND. This practice continued until the 1960s. Now, there is a new pro-
cess to control and monitor the Indians. The latest tool designed to control
and restrict the Indigenous Nations is Contribution Agreements (CAs).12
In the early 1960s, Canada started to make funds available to the Nations
for social assistance. Over time, the number of programs that were offloaded
onto the Nations to administer has increased but the funds have not kept
pace. In the 1980s, Canada unilaterally imposed a 2 per cent cap on funding,
without consulting the Nations.13 This cap is still in place, despite the
statements made by the new Liberal Government that the cap would be
removed. Canada controls the funds voted by the Treasury Board through
CAs. These agreements are wide-ranging and control the use of the funds
through the terms and conditions. The CAs can range from one to five years
depending on the government’s assessment of the ability of the Nation to
manage those funds. The CAs require First Nations to provide detailed
financial information to the government. A failure to provide the necessary
10 Sarah Carter, Lost Harvests (University of McGill Press, 1993). See also Bruce
Dawson, Better than a Few Squirrels: The Greater Productions Campaign on the First
Nations Reserves of the Canadian Prairies (Master’s Thesis, University of Saskatch-
ewan, 2002). In a well-documented thesis, Dawson points out that Indian lands
have been used to enrich the officials of DIAND at the expense of the Indians.
11 The Indian Act was amended in 1880 to ban the selling of produce and to pro-
hibit anyone from purchasing such products from Indians.
12 A complete history of the CAs was filed at the United Nations with the Special
Rapporteur James Anaya in response to questions asked. This document is
available from Ermineskin Cree Nation who prepared and submitted the mater-
ials. Ermineskin had filed a complaint with the Special Rapporteur on the uni-
lateral and arbitrary implementation of terms and conditions that were
considered a violation of the treaty relationship.
13 First imposed by a Liberal government in 1996, the 2 per cent cap was a limit
that DIAND placed on annual increases to First Nations’ budgets. When it was
first announced, the cap was greeted with protest. It meant that, despite inflation
and a fast-growing population, funding for First Nations communities, pro-
grammes and services could only increase by 2 per cent each year. The govern-
ment said that they would lift the cap in the new budget expected in the spring
of 2016, but this had not happened as of February 2017.
information could lead to the cancelling of the agreement or to a manager

being imposed to manage those federal dollars. It is a well-established process.
CAs are governed by onerous reporting requirements spelt out in a reporting
guide that the government changes on a yearly basis without any consultation
with First Nations. These changes spell out in detail the level of reporting
required for the funds allocated from Ottawa. It is a myth that these monies
are not regulated by Ottawa.
There are hundreds of reports due in every calendar year. If there is a failure
to account for the funds properly, then DIAND has many options available,
as spelt out in the CAs, including putting in place a manager of the funds.
During the standing committee discussions on C27, Mrs Carol Hughes
(Algoma-Manitoulin-Kapuskasing, NDP) noted, ‘Auditor General’s report
from December 2006, it basically said the unnecessary reporting burden
placed on first nations communities needed to be reduced, and it noted that
AANDC alone obtains more than 60,000 reports a year from over 600 first
nations.’14
The Reporting Handbook of DIAND was used to implement the legisla-
tion.15 A unilateral amendment to the Reporting Handbook imposed the
criterion that all recent legislation must be respected and honoured. A failure
to comply was a breach of the agreement. In the Reporting Handbook,
the salaries of the Chief and Council16 must be reported as part of the annual
audit done for DIAND. It was another myth that this information was
unknown to members of the community. All audits are available either at the
offices of the Nation or at DIAND. All a member needs to do is make an
appointment and look at the audit. In addition, many Nations have their own
finance laws in place that are much more stringent that anything that applies
to non-Indigenous People across the country. The posting of the consolidated
audits on a ‘public’17 website was designed to expose the Nations to every
carpetbagger from around the world.
There are some examples of auditors targeting Indigenous Peoples because
they could see on the website that they had a source of income outside the
government monies. In addition, I have lost count of the number of lawyers
who have called me offering to work for various Nations. It might be a
14 Report of the Standing Committee, 31 October 2012.

15 The annual Reporting Handbook is available on the DIAND website, <https://
www.aadnc-aandc.gc.ca/eng/1385559716700/1385559777677>.
16 Schedule of Salaries, Honoraria, Travel Expenses and Other Remuneration –
Elected or Appointed Officials.
17 For example, Onion Lake Cree Nation has a website where their audits are
posted for their members to review – all they need to do is log on to the website
and review the audit. However, this website is only open to citizens of Onion
Lake. The Government of Canada wanted to have the audits put on the DIAND
website, which would allow anyone with access to a computer and an internet
connection to view those audits. Onion Lake has always maintained that their
public is their citizens. This was not acceptable to the Government of Canada.
146 Sharon Venne
coincidence that the offers to work are only for Nations with independent
monies. People from other countries have tried to contact the Nations with
offers of business opportunities. In one instance, there was an offer to set up
an embassy for the Nation – of course, the person wanted to act as a paid
advisor to said embassy. There is no end to the schemes and scams that are
being floated, all exposed by the ‘trustee’ of Indians – the government of
Canada.
Only the treaty peoples can change our status – so the states are trying to
manufacture ‘consent’ in order to bring our lands and resources within the
state. This is without the consent of the Indigenous Nations. ‘Individuals’
who are not accountable to the Nations are used to ensure that the voices of
the Nations are pushed aside and not considered. Worse than this, the true
voices of the land are left outside of the process as the state pushes its agenda.
Transparency and the attack on our Nations’ governments mean that our
governments are treated differently to other organisations. For example, pri-
vate sector businesses have accountability to their shareholders, but they do
not necessarily have accountability to the media or have their private accounts
posted on the world wide web. Canada helped the process by giving funds to
individuals who worked with organisations such as the Canadian Taxpayers
Federation (CTF)18 that promoted the legislation. They would not listen to
any discussion on treaty rights. The rallying cry was: these are taxpayers’
dollars and we need to know what you are doing with them.19 Two things
spring to mind: DIAND has a complete accounting of the funds through its
extensive reporting requirements. This leads to the second observation: CTF
do not believe that their own government is capable of creating a process of
accountability. Instead of dealing with their own problems, there was an
attempt to destroy the treaty relationship and undermine the privacy rights of
Indigenous Peoples by publishing confidential financial information. Why?
Bill C27
Bill C27, An Act to Enhance the Financial Accountability and Transparency
of First Nations (short title: the First Nations Financial Transparency Act), was
introduced and received its first reading in the House of Commons on 23
November 2011. On 7 November 2012, Indian Affairs Minister John Duncan
imposed closure on the Bill to stop further discussions. It was passed by the
18 The CTF is a federally incorporated, not-for-profit citizen’s group dedicated to

lower taxes, less waste and accountable government. The CTF was founded in
Saskatchewan in 1990 when the Association of Saskatchewan Taxpayers and the
Resolution One Association of Alberta joined forces to create a national taxpayers
organisation (copied from their website).
19 In the documents filed in a case against Onion Lake, Sawridge, Athabasca Chi-
pewyan, Thunderchild and Ochapowace in the Federal Court of Canada, the
federal government stated that these were not taxpayer dollars.
House of Commons and sent to the Senate. Chief Craig Makinaw on behalf of
the Confederacy of Treaty Six appeared before the Senate asking the Senators to
send the Bill for constitutional review as the Bill was unconstitutional and a
violation of the treaties. Despite the Chief’s appeal, the majority of the Con-
servative Senators approved the Bill. It received Royal Assent on 27 March
2013.
The legislation, which applies to over six hundred First Nations commu-
nities defined as ‘Indian bands’ under the Indian Act, provides a legislative
basis for the preparation and public disclosure of First Nations’ audited con-
solidated financial statements and of remuneration, including salaries and
expenses, that a First Nation or any entity that it controls pays to its elected
officials.20 The legislation also requires the publication of this information on
a website maintained by or for the First Nation, and on the DIAND website.
There are additional provisions in the legislation to allow for the application
of court remedies and administrative measures to enforce compliance with its
requirements. The government of Canada used both measures to try to force
the Nations into legislation that the treaty peoples considered to be a violation
of the treaties.
Anyone who reads the list of reports and other materials that are required
by DIAND will see that the First Nations must disclose their revenues and
funding from all sources including ‘private enterprises’. This has been part of
the Reporting Handbook for many years. It was only the Federal Court of
Canada decision in the Montana21 case that prohibited the federal government
from releasing this ‘private and confidential’ information.
The CTF made a lot of noise about ‘band members’ needing the CTF to
advocate for them. This is untrue. If the CTF wanted to be helpful to their
public, they should have directed those band citizens to go to the nearest
DIAND office and look at the audits that have been available for years for any
member to see.
There are some key elements of the law that are contrary to the rights of
Indigenous Peoples. Under section 2 of the law, consolidated financial state-
ments must include ‘the assets, liabilities, equity, income, expenses and cash
flows of the First Nation and of those entities that are required by those
principles to be included are presented as those of a single economic entity’. If
there is any doubt as to the meaning of entity, there is a definition in the law,
‘a corporation or a partnership, a joint venture or any other unincorporated
association or organization’ (s 2). In other words, all the activities of the
20 All of these components are part of the reporting requirements set out in the
DIAND Reporting Handbook.
21 Montana Band of Indians v Canada (Minister of Indian and Northern Affairs) [1989]
1 SC 143 (TD). In this case a journalist requested a band’s financial information
from DIAND, but was denied on the basis that the information was confidential
for the purposes of para 20(1)(b) of the Access to Information Act because the
journalist’s interests were not consistent with those of the band.
148 Sharon Venne
Nation outside of the federal dollars must be reported to the government.

Failure to report is a violation of the CA.
The consolidated financial statements are to be prepared in accordance with
‘generally accepted accounting principles, the primary sources of which are
the handbooks – including the handbook respecting public sector account-
ing – of the Canadian Institute of Chartered Accountants’ (s 5(1)). As was
identified above, the schedules required in the Reporting Handbook relate to
the salaries and honorarium of Chiefs and Councils. This has been a standard
requirement of DIAND for many years. However, the Federal Court decision
in Montana prohibited the release of the materials to third parties to protect
the privacy rights of Indigenous Peoples. This legislation stripped away those
rights. There was no discussion with the Nations about the loss of their right
of privacy. It was assumed that the government of Canada could deny them
rights that all other people living within the state would automatically enjoy.
This is the nature of the colonial mindset. When Ermineskin Cree made an
access to information request to determine what the Department of Justice
had advised the Department of Indian Affairs on the issue of privacy and First
Nations, the documents sent were whited out – except for one page that had
a note at the bottom, ‘Have a nice weekend’.
The legislation perpetuates the myth that First Nations are corrupt and
incapable of maintaining our own affairs. The legislation erodes our sover-
eignty and our ability to assert our own principles of self-determination as the
legislation undermines our traditional forms of government. In the Senate
debate on this Bill, the Hon Senator Dennis Glen Patterson made the fol-
lowing statements regarding First Nations leaders and governments:
[T]hey work to keep this information hidden, if not from all members,
from those who oppose them. As reported by some witnesses before the
committee considering this bill in the other place, intimidation has
occurred in some communities when a member asked for access to this
basic financial information.22
Senator Patterson’s statement implies that all First Nations governments

utilise corrupt tactics and assumes that First Nations leaders need legislation
to keep them accountable to their members, further eroding our ability to
develop our own governments through our inherent Indigenous rights. The
statement further perpetuates the colonial narrative that First Nations leaders
and governments are corrupt and incapable of maintaining our affairs, a nar-
rative that belittles our ability to implement our own governance structure
through practising self-determination.
22 Canada, Parliamentary Debates, Senate, 4 December 2012 (Dennis Glen Patterson)

<http://www.parl.gc.ca/Content/Sen/Chamber/411/Debates/125db_2012-12-04-e.
htm#37>.
At the hearings in the House of Commons, the majority Conservative

government invited persons who were in favour of the legislation to appear on
the record. The government invited people who had problems with their own
First Nations; Chiefs who wanted to appear were not invited. It was a bit
galling to have the Crown tell Mr Justice Barnes in August 2015 that if the
First Nations objected to the legislation they should have appeared before the
committees. It is hard to appear when not invited. The First Nations members
who did appear supporting the legislation were not told that they could have
gone to the nearest office of DIAND to look at the audit.
Onion Lake Cree Nation from the Treaty Six Territory chose to challenge
the legislation in November 2014. In December 2014, the DIAND Minister
Bernard Valcourt brought a suit against five First Nations: Onion Lake,
Sawridge, Athabasca Chipewyan, Thunderchild and Ochapowace. There was a
sixth named First Nation but they submitted their audit and were subse-
quently dropped from the action. Onion Lake and Sawridge brought an action
for a stay against the Minister’s application. It was heard in August 2015. In
October 2015, the Federal Court granted a stay against the Minister’s appli-
cation. The monies halted by DIAND were returned to the Nation two and a
half months after the decision of the Federal Court. The Ministerial Loan
Guarantee for housing of low income and needy families was not released
until March 2016.
During the court hearing on C27, Canada called an expert witness, a
chartered accountant who made a name for himself during the disputes in
Attawapiskat.23 Allan Mak appeared before the Standing Committee sup-
porting the legislation. Then he was hired by the Department of Justice as an
expert witness on the legislation. His statement before the Standing Com-
mittee that he supported the punitive clauses24 in the legislation did not
garner a challenge to his independence as an expert witness for the Crown. It
might have given him the necessary federal credibility to be called as an
expert. He did not know anything about the DIAND Reporting Handbook
or the reporting that First Nations needed to do under the CAs, but he was
23 CBC News reported: ‘While that may be a big improvement, Deloitte’s findings for
2010–11 are still a “serious problem,” investigative accountant Alan Mak told CBC
News. Mak is with the firm Rosen and Associates in Toronto.’ Daniel Schwartz,
‘Inside Attawapiskat’s Financial Troubles’, CBC News, 9 January 2013 <http://www.
cbc.ca/news/canada/inside-attawapiskat-s-financial-troubles-1.1359658>.
24 While appearing before the Standing Committee as an invited guest who was
reimbursed for his travel and related expenses on 13 February 2013, Mr Mak
said: ‘I believe that it does provide a further obligation to comply simply because
it is a matter of shedding light on the financial affairs of a First Nation. Even
though some might not be inclined to comply, this obligation is now legislated,
and there is the very fact that, if they do not, there are consequences. Being
required to follow GAAP and having to be audited, with the limitations that I
pointed out, still creates a threat, if you will. On that basis, I think it does
improve corporate governance’ (emphasis added).
150 Sharon Venne
given a space at the Standing Committee and paid to appear as an expert

witness before the Federal Court hearing.
It was during the examination of Mr Scott Stevenson that the federal
government’s plans to enforce compliance to the legislation became known.25
As the Associate Deputy Minister, Mr Stevenson was hired by the department
to implement the legislation. He had a team of seven people across the
country to check on compliance. In his examination in mid-July, he was able
to scope out the department’s approach to the legislation. On major issues
such as treaty rights and violation of privacy, he was not able to answer.
Stevenson was in the department for one year and eleven months (October
2013 to August 2015), leaving the department and government shortly after
his examination.26
On 23 October, the Federal Court issued a stay against the legislation, a
request filed by Onion Lake and supported by Sawridge. The other First
Nations were present at the hearing in August 2015. It took the Department
of Indigenous Affairs until the beginning of January 2016 to release the
monies halted by the department. These monies had been part of the CAs but
deemed by the department to be ‘halted’. Mr Stevenson tried to characterise
these monies as halted and not withheld so as to force compliance with the
legislation. This was a new term not used before in relation to these monies.
Stevenson said that Onion Lake could have gone into the marketplace and
borrowed monies against the halted funds. This would have been difficult
considering that the government did not provide any letters to indicate that
these were monies owed to Onion Lake.
The concerns about the legislation are still not resolved. The legislation is
still on the books in Ottawa and has not been repealed. The government has
indicated a review but, at the same time, the Canadian Taxpayers Association
(CTA) and other non-Indigenous ‘think tanks’ are calling for its imple-
mentation as the band members need to know what is happening with their
monies. The CTA declared, ‘Canadians need to know what is happening with
their monies’, despite the documents filed in the Federal Court about the
character of those monies. There is a lull in the battle. There is no such lull at
the United Nations: things are being pushed along without the Indigenous
Nations.
25 In the Federal Court of Canada rules, an affidavit needs to be presented with the
statement of claim to begin a legal action. In the case of Minister Valcourt’s
action, Scott Stevenson signed the affidavit and he could be examined on his
affidavit. This is not a cross-examination as this procedure occurred outside the
courtroom. The examination is based on his sworn affidavit and only on his
affidavit and its contents.
26 At this time, Mr Stevenson was a senior fellow at the University of Ottawa in the
Graduate School of Public and International Affairs. Prior to his work at the
Department of Aboriginal Affairs, he was in the Department of National
Defence and with Finance Canada.
‘World conference’ (so-called)

On 3 March 1995, the Commission on Human Rights27 started to unravel
the right of the Indigenous Nations to speak for ourselves. The Intersessional
Working Group was created to review the Declaration on the Rights of Indigen-
ous Peoples, and in the process removed the ability of the Nations to represent
ourselves. The resolution to elaborate a draft declaration set out the criteria for
the participation of Indigenous Peoples and Nations in the process.28 The
direction of the commission was based on para 5 of GA Resolution 49/214:
Encourages the Commission on Human Rights to consider the draft

United Nations declaration on the rights of indigenous peoples, con-
tained in the annex to resolution 1994/45 of 26 August 1994 of the
Subcommission on Prevention of Discrimination and Protection of
Minorities, with the participation of representatives of indigenous people, on the
basis of and in accordance with appropriate procedures to be determined
by the Commission, with a view to achieving the adoption of a draft
declaration by the General Assembly within the Decade.29
Instead, the commission set out a process for accreditation that limited the
ways in which Indigenous Peoples could participate. The annex to the com-
mission resolution set out the procedures that were to be used solely for the
participation of Indigenous Peoples who did not have consultative status or
non-governmental organisational (NGO) status within the UN system.30 In
1984, the Working Group on Indigenous Populations (Peoples) had adopted
the rule that Indigenous People could speak and contribute to the work
without belonging to a recognised NGO.
The thousands of Indigenous People who came to Geneva to participate in
the drafting of the declaration came representing their Nations. Their voices
and contributions made the declaration a true work of the grassroots. The
members of the working group heard our voices. However, the commission
chose not to follow this lead. It was possible for the commission to allow the
27 The Commission on Human Rights was replaced by the Human Rights Council
in 2006.
28 Commission on Human Rights Res 1995/32 (3 March 1995).
29 GA Resolution 49/214 (23 December 1994) (emphasis added).
30 See Sharon Venne, ‘NGOs, Indigenous Peoples and the United Nations’ in Aziz
Choudry and Dip Kapoor (eds), NGOization, Complicity, Contradictions and Prospects
(Zed Books, 2013) 75. In this chapter, I explore the problems of NGOs and the role
of our Nations in trying to push for decolonisation, which cannot be accomplished
from an NGO position. In the early 1980s, the Nations were allowed to speak for
ourselves. The result was the initial declaration. See also the analysis done by Char-
maine Whiteface in her book Indigenous Nations’ Rights in the Balance: An Analysis of
the Declaration on the Rights of Indigenous Peoples (Living Justice Press, 2013), where
she explores the three different version of the declaration and the changes to the text.
152 Sharon Venne
same process to continue in the review of the declaration, but state govern-
ments did not want Indigenous Peoples and Nations to determine the direc-
tion of the declaration. It was possible for the commission to adopt rules that
would have allowed Indigenous Peoples to participate fully in their own
right. The GA permission to allow for participation of Indigenous Peoples ‘in
accordance with appropriate procedures to be determined by the Commission’
was not followed.
The commission’s decision is set out in greater detail in the annex to their
resolution. The resolution identifies Indigenous People – individuals – not
representatives of their Peoples. The ‘s’ has been removed from the process. In
the many years of drafting the declaration, Indigenous Peoples fought hard to
have the ‘s’ on ‘Peoples’. Peoples have a right of self-determination. Without
the ‘s’, it refers to individuals who do not have a right of self-determination
that relates directly to our lands and territories. In order to participate in the
working group of the commission, an application process was to be followed.
The annex is set out in part below:
3 Organizations of indigenous people not in consultative status wishing to par-

ticipate in the Working Group may apply to the Coordinator of the Interna-
tional Decade of the World’s Indigenous People. Such applications must
include the following information concerning the organization concerned:
(a) The name, headquarters or seat, address and contact person for the
organization;
(b) The aims and purposes of the organization (these should be in con-
formity with the spirit, purposes, and principles of the Charter of the
United Nations);
(c) Information on the programmes and activities of the organization and the
country or countries in which they are carried out or to which they apply;
(d) A description of the membership of the organization, indicating the
total number of members.
4 Upon receipt of applications, the Coordinator of the International Decade
should consult with any State concerned pursuant to Article 71 of the
Charter of the United Nations and paragraph 9 of resolution 1296 (XLIV)
of the Economic and Social Council. The Coordinator should promptly
forward all applications and information received to the Council Committee
on Non-Governmental Organizations for its decision.
5 Authorization to participate shall remain valid for the duration of the
Working Group subject to the relevant provisions of part VIII of resolution
129 (XLIV) of the Economic and Social Council.
6 The activities of organizations of indigenous people authorized to partici-
pate in the Working Group pursuant to these procedures shall be gov-
erned by rules 75 and 76 of the rules of procedure of the functional
commissions of the Economic and Social Council.
7 Organizations of indigenous people authorized to participate in the

Working Group will have the opportunity to address the Working
Group, consistent with the relevant provisions of paragraphs 31 and 33 of
Council resolution 1296 (XLIV), and are encouraged to organize them-
selves into constituencies for this purpose.
8 Organizations of indigenous people may make written presentations
which, however, will not be issued as official documents.
9 States having indigenous populations should take effective measures to
bring the invitation to participate and these procedures to the attention of
organizations of indigenous people potentially interested in contributing
to and participating in the Working Group.
The criteria are not based on our Nations and our governmental structures.
The use of the term ‘organization’ rather than Indigenous governments or
representatives of our Nations carries a predetermined bias. The organisations
need to have the approval of the state – the colonial state that is occupying
our territories and lands must give their approval before the special accredit-
ation can be granted.
In the process, Indigenous People with the specially created accreditation
were allowed into the room for the discussions. However, their written sub-
missions were not added to the official documents. Indigenous People became
silent ghosts in the process. They lacked any real ability to create a written
record of their concerns. Is this a real process that would affect the lives of the
millions of citizens of Indigenous Peoples and Nations? It was the start of the
discounting of Indigenous Peoples and Nations. The special accreditation
process used for the intersessional working group was adopted by the
Permanent Forum on Indigenous Issues31 and the Expert Mechanism.32 Since
3 March 1995, Indigenous Peoples and Nations have had to comply with the
rules of the state governments. In reality, the colonisation process was adopted
by the United Nations. The coloniser states got to pick and choose the
representatives of the state-recognised organisations or groups.33 The state
governments got to manufacture the consent of the ‘Indigenous Peoples and
31 The Permanent Forum is an advisory body to the Economic and Social Council
established by Resolution 2000/22 on 28 July 2000. The forum has the mandate
to discuss Indigenous issues related to economic and social development, culture,
the environment, education, health and human rights.
32 The Expert Mechanism on the Rights of Indigenous Peoples (EMRIP) was
established by the Human Rights Council, the UN’s main human rights body,
in 2007 under Resolution 6/36 as a subsidiary body of the council. The EMRIP
provides the Human Rights Council with thematic advice, in the form of studies
and research, on the rights of Indigenous Peoples as directed by the council. The
EMRIP may also suggest proposals to the council for its consideration and
approval.
33 See Appendix B of this chapter, which sets out the flow chart of the various
bodies associated with the ‘world conference’.
154 Sharon Venne
Nations’ using state-recognised organisations. The real voice that Indigen-

ous Peoples sought by picking and choosing our own representatives and
having those representatives accepted by the United Nations was effectively
finished in 1995. Now, the state governments control and manipulate the
process. The 1995 decision led to the creation of the organisational repre-
sentatives from the state-recognised groups who planned the high-level
meeting in 2014.
What is a world conference?

In examining the international effort on the world conference, we should ask:
what is a real world conference and what goes into the process of convening a
real world conference? Since its inception after the Second World War, the
United Nations has convened many world conferences. Usually, they are at
least a week long and have specific goals and objectives, such as the Fourth
World Conference on Women, held in Beijing, China, in September 1995.
At that world conference, after two weeks of political debate, exchange of
information on good practice and lessons learned, and sharing of experiences,
representatives of 189 governments agreed to commitments that were unpre-
cedented in scope. More than 30,000 people also participated in the NGO
forum. Women had four UN conferences by 1995. Indigenous Peoples have
had none – yet we have been subjected to more than five hundred years of
colonisation. The United Nations is in its fourth decade of combatting racism
without any end in sight. The idea of the world conference was born in the
minds of Indigenous Peoples in the 1980s.
In order to see how Indigenous Peoples were short changed with a high-level
plenary, one needs to ask: What is a high-level plenary within the UN system?
A high-level meeting is the name given to meetings that occur outside the
GA agenda. Usually, the high-level meetings, held over one or two days,
are thematic, for example focusing on refugees, economic matters, climate
change, environmental issues and so on. These meetings usually take place
within the GA hall but are not GA meetings. High-level plenary meetings
usually take place prior to the start of a GA meeting or else the GA meeting
is suspended to allow for a high-level meeting to occur. It is not a world
conference because the rules of participation are set by the president of the
GA. The list of speakers and their length of speeches are predetermined by
the rules of procedure. Allowing Indigenous People to occupy the whole space
and time would require the suspension of the rules of the GA. This did not
occur for the three-hour high-level plenary that took place in the GA hall.
The rest of the day and a half was spent in round table discussions away from
the main hall. The round tables were not part of the official high-level
meeting but a side event with reports to the GA. So, there was no world
conference – no focused ten days of discussion on the rights of Indigenous
Peoples. It was a sideshow, or even a bit of a hoax.
In December 2010, the GA adopted a resolution to convene a high-level

meeting, but to call it a ‘World Conference’. The GA:
Decides to organize a high-level plenary meeting of the General Assembly,

to be known as the World Conference on Indigenous Peoples, to be held
in 2014, in order to share perspectives and best practices on the realiza-
tion of the rights of indigenous peoples, including to pursue the objec-
tives of the United Nations Declaration on the Rights of Indigenous
Peoples, and invites the President of the General Assembly to conduct
open-ended consultations with Member States and with representatives of
indigenous peoples within the framework of the Permanent Forum on
Indigenous Issues, as well as with the Expert Mechanism on the Rights
of Indigenous Peoples and the Special Rapporteur, in order to determine
the modalities for the meeting, including the participation of indigenous
peoples in the Conference.34
So how did the high-level plenary fall short of a process to recognise the
rights of Indigenous Peoples who have been and continue to be colonised?
To understand these moves, we must remember the movement that began
in the 1980s by the Indigenous Peoples who came to the Working Group on
Indigenous Peoples. There was a call to have 1992 set aside within the UN
system as the International Year on the Rights of Indigenous Peoples. The
United Nations regularly sets years to highlight different themes. Indigenous
Peoples wanted to have 1992 set aside to call attention to the five hundred
years of colonisation in the Americas. Their call met with great resistance
from western governments especially the United States and South and Central
American states. The Roman Catholic Church was ‘celebrating’ five hundred
years of evangelism in the Americas. So, the United Nations offered 1993 as
the International Year of Indigenous People – no ‘s’. Indigenous Peoples
soundly condemned the United Nations for pushing the year onto us, and
then for adding insult by removing the ‘s’ off ‘Peoples’. The only thing that
the United Nations managed to do in the year was to create a single-sheet
calendar. We did not even merit a postage stamp, which was a usual procedure
for commemoration of an international year. By contrast, for the International
Year for Old People, Canada created a working body chaired by former Premier
Lougheed to promote it. Canada did nothing to promote the International
Year of Indigenous People. Even the International Year of the Potato garnered
a cookbook on the potato. Indigenous Peoples got a calendar. In order to deal
with the backlash from the hundreds of Indigenous Peoples who were insulted
by the whole international year, there was an attempt to right the wrong. In
1993, the United Nations announced a decade – 1994 to 2004 – on the
rights of Indigenous Peoples. Then the United Nations did absolutely
34 GA Resolution 65/198 (21 December 2010) (emphasis added).

156 Sharon Venne
nothing except move to get rid of the Working Group on Indigenous Peoples.
The working group had a twofold mandate: to receive information on recent
developments within the Indigenous territories and to develop standards on
the rights of Indigenous Peoples. The Declaration on the Rights of Indigenous
Peoples was one standard. There was ongoing work related to intellectual
property, land rights, free, prior and informed consent, rights of Indigenous
Peoples in small island Nations and relocation of Indigenous Peoples as a
result of climate change. A lot of ongoing work was left on the table when
the Working Group was dissolved in 2006. With nothing done in the first
decade, the United Nations decided to have a second decade with a ‘promise’
of a ‘world conference’ at the end, which would fall in 2014.
The United Nations replaced the Working Group on Indigenous Peoples
with the Expert Mechanism on Indigenous Issues, which reports to the
Human Rights Council. The Expert Mechanism does not have any mandate
to develop any new standards or an ability to draft a convention on the rights
of Indigenous Peoples. At present, there is no process within the United
Nations to create a binding convention.
It seems that the ‘high-level’ process was designed to distract people away
from the real issues. It was designed from the beginning to give the appearance
that Indigenous Peoples were giving their consent to the United Nations
agenda. There were no real discussions on the way for our Nations to decolonise.
There was no real discussion on the implementation of self-determination within
our territories. It was manufactured to give the appearance of movement when
none occurred.
How did it get started? There was the resolution passed by the GA in
December 2010.35 The resolution allowed for organisations of Indigenous
People to have a planning meeting. The delegates were selected during the
summer of 2011 at the Expert Mechanism meeting held in Geneva. The
people who had accreditation following the process set out in 1995 were self-
selected as a representative group. There was no regional process to allow for
Indigenous Peoples or Nations to select their own representatives. The GA
resolution limited the process for participation, stating that the:
President of the General Assembly [is] to conduct open-ended consultations

with Member States and with representatives of indigenous peoples within
the framework of the Permanent Forum on Indigenous Issues, as well as with
the Expert Mechanism on the Rights of Indigenous Peoples and the
Special Rapporteur.
On 12–13 January 2012, a brainstorming workshop was organised by the

Greenland Self Rule Representation in Copenhagen, the Saami Parliament of
35 Appendix A of this chapter sets out the GA Resolution.

Norway and the International Work Group for Indigenous Affairs.36 The
two-day meeting held in Copenhagen was to discuss Indigenous Peoples’
participation in the planning of the UN World Conference on Indigenous
Peoples.37 At the brainstorming session (now renamed the Indigenous Global
Coordinating Group) John Henriksen (representative of the Saami Parliament
of Norway) was appointed as co-facilitator. Who set the mandate for a co-
facilitator? Who chose the reporting process for the Indigenous Peoples and
Nations? There was nothing in place. There was no place or space for Indi-
genous Peoples or Nations to participate in the approval. In the end, the self-
selected group appointed a co-facilitator without asking whether Indigenous
Peoples accepted the idea of a high-level meeting rather than having a real
world conference. There was no process from within the regions.
From the meeting in Copenhagen, the Indigenous Global Coordinating
Group had several meetings with the office of the President of the GA and with
some government delegations in New York. Their aim was to promote the
conclusions and recommendations agreed in the Copenhagen meeting. The
group pushed for the appointment of the Indigenous co-facilitator in order to
ensure the full and effective participation of Indigenous Peoples in the
preparatory process towards the UN World Conference on Indigenous Peoples.
The question remained: how do Indigenous Peoples have full and effective
participation in the process when they have been excluded from the outset?
On 5 April 2012, in a letter sent to all Permanent Missions to the United
Nations, the President of the GA announced the appointment of Ambassador
Luis Alfonso de Alba (Mexico) and Mr John Henriksen (Saami Parliament,
Norway) as facilitators for consultations with governmental delegations and
representatives of Indigenous Peoples. There was supposed to be a process to
decide the format, organisational issues and possible outcomes of the World
Conference on Indigenous Peoples.
The decision taken by the President of the GA to appoint an Indigenous
co-facilitator was a response to the demands made by the group. His job
apparently was to ensure the full and effective participation of Indigenous
Peoples working towards the high-level meeting. If it was a real world con-
ference, there would have been regional meetings where Indigenous Peoples
and Nations would be able to participate and make decisions on the outcomes
that they would like to have from a world conference. In the normal course of
36 There was a limited list of invited Indigenous representatives. There were four
from North America – seven regions with four representatives per region. Two
other people, one from Hawaii and one from Alaska, turned up at the meeting
and were met with a cool reception. The final communique contains a single
note that Ronald Barnes from Alaska did not agree with the final wording. A
copy is on file with the author.
37 Leon Sui, Foreign Affairs Minister for the Kingdom of Hawai’i, went to the
meeting without an invitation and filed their objections to the process. His letter
is reproduced in Appendix C.
158 Sharon Venne
events within the UN system, there are regional preparatory meetings well in
advance of a world conference that allow for many voices to contribute to the
outcome documents. In addition, all the specialised agencies of the United
Nations contribute papers and conferences on the theme of the world con-
ference. It would be truly a global initiative, unlike what actually happened.
There was no full and effective participation of Indigenous Peoples because
there was no real attempt to involve the Nations.
Great Turtle Island response

The North America Indigenous Peoples Caucus (NAIPC) from our Great
Turtle Island had problems with the construction of the GA resolution and
the rebranding of the ‘world conference’ as a high-level plenary. The process
for selecting representatives was questioned. At the meeting held in Niagara
Falls in March 2012, there were two representatives38 appointed to attend
meetings, listen and gather information. The appointment of two people did
not mean that the caucus was giving its consent to the process. They were to
act as fact finders to report to the next NAIPC meeting. There were a lot of
discussions at the caucus meetings including the reasons that Indigenous
People from Great Turtle Island went to the United Nations in the first place
in 1977 and to the League of Nations in 1923.39 Strategies for the next steps
were carefully considered and documents prepared for each stage of the
discussions.
After the meeting at Niagara Falls, the NAIPC decided to take a careful
and vigilant approach to the 2014 UN High-Level Plenary Meeting, which
was ‘to be known as a World Conference on Indigenous Peoples’. That stance
by the NAIPC resulted in the following ‘Caucus Strategy’ statement:
It was observed that the word ‘participate’ was dividing the room and a
suggestion was made that ‘participate’ and ‘participation’ be replaced
with the position that NAIPC is going to ‘explore’ or is ‘exploring’ what
the UN HLPM [high-level plenary meeting] is all about. Suggested text
was offered by the North American Representative to the UNPFII
[United Nations Permanent Forum on Indigenous Issues]. After a brief
38 Chief Randy Kapashesit of MoCreebec Council of Cree Nation and Kenneth

Deer of Kanestake, Mohawk Territory. In April 2012, Chief Kapashesit passed
away suddenly leaving Kenneth Deer along with the co-convenors of the
NAIPC – Debra Harry and Art Manuel – as the alternative representatives until
the next gathering of the NAIPC.
39 For a brief outline of the work of Indigenous Peoples in these international
bodies, see Debra Harry and Sharon H Venne, ‘The Road to the United Nations
and Rights of Indigenous Peoples’ (2011) 20(3) Griffith Law Review 557. See also
Sharon H Venne, Our Elders Understand our Rights: Evolving International Law
Regarding Indigenous Peoples (Theytus Press, 1998).
discussion, the word ‘participate’ was removed from two places in the
suggested text, and replaced with the words ‘exploring’ and ‘explore.’
What led to NAIPC’s cautious and vigilant approach, is the expressed
concern that full ‘participation’ in the HLPM process, at this stage, can
be viewed as providing active or tacit consent for states to proceed with
their HLPM and outcome document, which will be controlled by state
governments, and which might well retreat from the successes of our
work as nations and peoples over the past forty years, and might lead to
an erosion of the provisions of the UN Declaration on the Rights of
Indigenous Peoples that advance the rights and protections of Indigenous
Nations and Peoples. Another expressed concern was whether Indigenous
peoples’ ‘participation’ is even possible given the constraints of the
HLPM framework.
The result, arrived at by consensus, is after an outcome document has
been produced at the Indigenous Peoples’ gathering in Alta, Norway,
that document will be reviewed by the NAIPC ‘to explore and assess’ the
possible positive and negative impacts of the HLP/WCIP [high-level
plenary/World Conference on Indigenous Peoples], and, after having
explored and assessed, the NAIPC will decide (‘determine’) at its gath-
ering next year, 2014, its ‘future involvement’ with regard to the HLP/
WCIP.
Having arrived by consensus on a Caucus Strategy with regard to the
HLP/WCIP, a decision was made to attend Indigenous Peoples’ gather-
ing in the Alta, Norway, but to attend as ‘Peoples and Nations with
rights equal to all other Peoples,’ with ‘the inalienable right of and to
self-determination are expressed in various international instruments (the
Universal Declaration of Human Rights, Article 1 of the Human Rights
Covenants, and U.N. Resolution 1514).’
The Alta Conference held on 10–12 June 2013, a planning conference lead-
ing to the high-level meeting known as the ‘world conference’, was hosted by
the Saami Parliament. An outcome document was produced but this was not
a consensus document to mandate going forward with negotiations. As Steve
Newcomb wrote in Indian Country Today on 8 July 2013:
We have to keep our wits about us by staying on top of every detail, and
not see the repeat of an historical pattern. It does not make sense to select
one person to ‘negotiate’ on behalf of 370 million people. To do so would
be the height of folly, no matter how many qualifications that person
might possess.
The North American Caucus delegation arrived at the Alta gathering
with a ceremonially bundled document developed at the NAIPC meeting
at the Sycuan Resort in the Kumeyaay Territory. It states that the Caucus
will attend the Alta gathering on an exploratory basis to see ‘where this
160 Sharon Venne
can go,’ ‘this’ referring to the entire High Level Plenary of the UN
General Assembly to be known as ‘the World Conference on Indigenous
Peoples.’
Additionally, the North American Caucus delegation attended the
Alta gathering based on our original free existence to protect and advance
the right of self-determination in international law, as well as on the
basis of those international treaties that provide the potential means of
liberating our nations and peoples. We have not wavered from that
position.40
From the conference in Alta, there was a lead-up to the conference in New
York in September 2014. The documents from the United Nations did not
get into the hands of the Nations despite the numerous requests. The UN
process kicked into high gear under the rules of the GA, now chaired by John
Ashe. John Henriksen was not able to advance the right of self-determination
and open the process up to the representatives of the Indigenous Nations who
had entered into treaties with Europeans to allow for settlement on Great
Turtle Island.
What happened?
The high-level meeting proceeded according to the rules of the United
Nations. There was an opening at ten as is the custom of the United Nations.
There were addresses by various speakers as prescribed by the rules of the GA,
which allowed one Indigenous person – the Faithkeeper of the Haudenosaunee –
to speak. The rest of the speakers were functionaries within the UN system.
At the end of the day, the process produced a state-adopted paper on the steps
forward. Indigenous Peoples, who do not vote in the UN system, were not
able to exercise any free, prior and informed consent. In that adoption, the
United Nations violated the Declaration on the Rights of Indigenous Peoples
and violated the resolution that set in place the high-level plenary. The GA
resolution called for the full participation of Indigenous Peoples. That did
not occur.
What was the outcome of the high-level meeting? John Ashe, President of
the GA, who could have opened the process to Indigenous Nations and Peoples,
was indicted for:
accepting more than $1.3 million in bribes from Chinese businesspeople

in exchange for advancing their interests in the U.N. Among the interests
was support for a planned U.N. conference center in Macau, a Chinese
40 Steven Newcomb, ‘The Alta Outcome Document and the Issue of Interpreta-
tion’, Indian Country Today, 8 July 2013 <http://indiancountrytodaymedianet
work.com/2013/07/08/alta-outcome-document-and-issue-interpretation>.
special administrative region, and development in the Caribbean,

authorities claim.41
Subsequently, Secretary-General Ban Ki-Moon appointed Wu Hongbo to

coordinate the outcome document’s implementation within the UN system.
Why was Mr Wu appointed to this position? Is there a link between Mr Ashe
and China? Wu’s appointment could not have been coincidental. China has a
lot of interests in the territories of Indigenous Peoples around the world. This is
an unexplained and unexplored area of the ‘world conference’. Were Indigenous
Peoples set up? Were we used?
The resolution from 1995 by the Commission on Human Rights is now
being implemented within the whole UN system. Indigenous representatives
are ensuring that the outcome of the high-level plenary meeting continues to
be advanced in the United Nations. Our old people constantly remind us that
organisations are not rights holders. In Canada, the Assembly of First Nations
(AFN) is told by the Chiefs that they are not a rights-based organisation.
They are an organisation with a limited mandate. The AFN cannot make
decisions that affect the rights of our Nations. Our governments who made
treaties are still in place. The detrimental language in the outcome document that
attempts to create special rules of participation for ‘representative institutions’
of Indigenous Peoples is a violation of our right of self-determination and
contrary to the Charter of the United Nations. These new standards – that
only those who have state recognition and approval will be allowed to speak
at the United Nations – are not acceptable. How can our Nations decolonise
if they must operate within the colonial structures of the colonial state? The
high-level plenary was designed to manufacture ‘consent’ to a process to
undermine our sovereignty. The state governments are using the UN organ-
isation to undermine and discredit our Nations and Peoples and pushing us
back to before the 1977 conference in Geneva, Switzerland. The 1977 con-
ference was meant to deal with the systemic racism directed at the Indigenous
Nations and Peoples of the Americas. It is not a new position. It is the pos-
ition of state governments such as Canada that ‘representative institutions’ are
preferred. They are easier to control.
There was an attempt to use Indigenous organisations and groups to give
some legitimacy to the process of a ‘world conference’. The elements of our
Nations have not been disrupted. Our right of self-determination remains
intact. In the drafting of the declaration, Indigenous Peoples and Nations
pushed the right of self-determination. We are Peoples with our own
41 Rebecca Davis O’Brien, Christopher M Matthews and Farnaz Fassihi, ‘Former

United Nations General Assembly President Charged in Bribery Scheme’, The Wall
Street Journal, 6 October 2015 <http://www.wsj.com/article_email/former-u-n-gen
eral-assembly-president-charged-in-bribery-scheme-1444141619-lMyQjAxMTE1
MjA2NzUwODc5Wj>.
162 Sharon Venne
territories, laws, government and histories. We were in our place when the
colonisers arrived. In the last five hundred years, our Peoples have never
relinquished our responsibility to our territories. Our Peoples continue our
original instructions as given to us by the Creation. The outcome document
never addressed these instructions.
Our territories remain our territories. It does not matter to us that there are
cities on the land – we are still responsible for our territories. The colonisers
do not understand these instructions, but we are raised with the protocols and
obligations. From our territories, we maintain our right to give our free, prior
and informed consent to use our territories. The peace and friendship treaties
made with the British Crown guaranteed our rights in our territories. These
issues were not addressed by the outcome document.
Now what?
What is the role of the United Nations in the process at this point? As Steve
Newcomb wrote in Indian Country Today on the high-level meeting:
a number of conclusions can be drawn from that recent UN meeting.

First, our Nations are not being recognized as Nations at and by the UN.
Second, in its interventions at the UN, the United States is characterizing
our Nations as ‘tribes’ and ‘tribal governments’ that the U.S. deems to be
‘domestic’ to its dominating political system. Third, the US has evidently
begun to interpret ‘indigenous peoples’ to mean merely ‘individuals’ and
‘communities.’ This diverts attention away from our political identity as
originally free and independent Nations, as Nations that began originally
free and independent of the political domination of the United States.42
This has been a goal of states like Canada since 1969. In the 1969 White
Paper, Canada proposed to get rid of the treaties and incorporate Indigenous
Nations and our territories into the fabric of the colonial state of Canada.43
On the last day of the conference, Canada explicitly stated that it would not
support free, prior and informed consent because Canada refuses to relinquish
its presumed supremacy over Indigenous Nations. This goal is not possible if
we remember that we have the right to consent. Indigenous Peoples and
Nations who have been colonised and continue to be colonised cannot have
our rights undermined by manufactured consent. The state governments tried
everything to manufacture consent to the high-level meeting and the outcome
42 Steven Newcomb, ‘The U.S.’s Interpretation of the UN High-Level Outcome

Document’, Indian Country Today, 12 October 2014 <http://indiancountrytodaym
edianetwork.com/2014/10/12/uss-interpretation-un-high-level-outcome-document>.
43 Statement of the Government of Canada on Indian Policy (The White Paper, 1969), Indi-
genous and Northern Affairs <http://www.aadnc-aandc.gc.ca/eng/1100100010189/
1100100010191>.
document. A self-selected group from the ‘recognised organisations’ under the

state process established in 1995 became the gatekeepers for the colonisers.
The Indigenous Nations and Peoples who did not go along with the pro-
gramme were marginalised. There were meetings held without inviting them
to participate, or if the representatives managed to get to the meetings they
were not invited to eat with the rest of the people. What was not understood
by the self-selected group was this fact: our representatives were selected by
our Nations to represent our position. They did not create their own position.
They had a mandate, unlike most of the people who were in the room. In the
NAIPC caucus, there was a real attempt to be inclusive. Long days were spent
in discussion and debate on the merits of the proposals related to the United
Nations. At one time, I was told by a senior official of the United Nations
that ‘if you want to come into our house, know the rules’. It was a simple fact
that most of the people leading the process had not studied the rules and
procedures and allowed themselves to be led along the path.
Glen Morris observed:
As it became clear that the indigenous gatekeepers could not achieve a

global consensus for indigenous peoples’ collaboration in the HLPM
plan, the UN simply began to exclude and silence the opposition. When
the North American Indigenous Peoples’ Caucus (NAIPC) decided that
it was not going to accept subordination and inequality in the ‘world
conference’ design, NAIPC representatives (both adult and youth) were
systematically excluded from any debates or decisions regarding the
meeting.44
Our NAIPC representative45 from the northern part of Great Turtle Island
witnessed first-hand the exclusion and the silencing that was taking place.
Conclusion
The 524 struggle to be decolonised and have our Nations recognised remains
a goal of our Peoples. It is our inherent authority in our territories and our
responsibility to future generations to analyse these processes so that future
generations can learn the tricks of the colonisers. They use divide and conquer
tactics – within and outside the state. In a way, nothing has changed.
The colonisers still want access to our lands and resources and will do
44 Glen Morris, ‘Invader-States Hijacked UN World Conference on Indigenous

Peoples’, Indian Country Today, 16 October 2014 <http://indiancountrytodaym
edianetwork.com/2014/10/16/invader-states-hijacked-un-world-conference-indig
enous-peoples>.
45 Janice Makosis, Cree, Saddle Lake Cree Nation.
164 Sharon Venne
anything to manufacture ‘consent’ to get at our lands and resources.

Indigenous Peoples continue to follow our ancestors’ teachings. All my
relations.46
Appendix A
Resolution adopted by the General Assembly on 21 December 2010
[on the report of the Third Committee (A/65/453)]
65/198. Indigenous issues
The General Assembly,
Recalling all relevant resolutions of the General Assembly, the Human
Rights Council and the Economic and Social Council relating to the rights of
indigenous peoples,
Recalling also its resolution 59/174 of 20 December 2004 on the Second
International Decade of the World’s Indigenous People (2005–2014),
Recalling further the 2007 United Nations Declaration on the Rights of
Indigenous Peoples,47 which addresses their individual and collective rights,
Recalling the 2005 World Summit Outcome48 and the outcome document
of the High‑level Plenary Meeting of the General Assembly on the Millen-
nium Development Goals,49
Recalling also Human Rights Council resolution 15/14 of 30 September
2010,50 by which the Council decided to extend the mandate of the Special
Rapporteur on the rights of indigenous peoples, and resolution 15/7 of 30
September 2010 on human rights and indigenous peoples,51
Noting the first Peoples’ World Conference on Climate Change and the
Rights of Mother Earth, hosted by the Plurinational State of Bolivia in
Cochabamba from 20 to 22 April 2010,
Concerned about the extreme disadvantages that indigenous peoples have
typically faced across a range of social and economic indicators and about the
impediments to their full enjoyment of their rights,
46 This is a reference to all of the Creation. The Creation is the responsibility of

those born on Great Turtle Island, and it is the law amongst Indigenous Peoples
around the world, which became well known in the process of drafting the
declaration.
47 Resolution 61/295, annex.
48 See Resolution 60/1.
49 See Resolution 65/1.
50 See UN GAOR, 65th sess, Supp No 53A, UN Doc A/65/53/Add.1, ch 2.
51 Ibid ch 1.
1. Welcomes the work of the Special Rapporteur on the rights of indigenous

peoples, and takes note with appreciation of his report on the situation of
human rights and fundamental freedoms of indigenous people52 and his
report on the Second International Decade of the World’s Indigenous
People;53
2. Also welcomes the report of the United Nations High Commissioner for
Human Rights on the status of the United Nations Voluntary Fund for
Indigenous Populations;54
3. Decides to expand the mandate of the United Nations Voluntary Fund for
Indigenous Populations so that it can assist representatives of indigenous
peoples’ organizations and communities to participate in sessions of the
Human Rights Council and of human rights treaty bodies, based on diverse
and renewed participation and in accordance with relevant rules and regula-
tions, including Economic and Social Council resolution 1996/31 of 25 July
1996;
4. Urges Governments and intergovernmental and non‑governmental orga-
nizations to continue to contribute to the United Nations Voluntary Fund for
Indigenous Populations and the Trust Fund for the Second International
Decade of the World’s Indigenous People, and invites indigenous organiza-
tions and private institutions and individuals to do likewise;
5. Encourages those States that have not yet ratified or acceded to the Inter-
national Labour Organization Indigenous and Tribal Peoples Convention,
1989 (No. 169) to consider doing so and to consider supporting the United
Nations Declaration on the Rights of Indigenous Peoples, and welcomes the
increased support by States for the Declaration;
6. Takes note of the report of the Secretary‑General on the midterm assess-
ment of the progress made in the achievement of the goal and objectives of
the Second International Decade;55
7. Calls upon States to consider the recommendations contained in the
midterm assessment of the implementation of the Second International
Decade and to enhance national and international efforts, including inter-
national cooperation for the solution of problems faced by indigenous peoples
in such areas as culture, education, health, human rights, the environment
and social and economic development by means of action‑oriented pro-
grammes and specific projects, increased technical assistance and relevant
standard‑setting activities;
52 See A/65/264.
53 See A/64/338.
54 See A/65/163.
55 A/65/166.
166 Sharon Venne
8. Decides to organize a high‑level plenary meeting of the General Assem-

bly, to be known as the World Conference on Indigenous Peoples, to be held
in 2014, in order to share perspectives and best practices on the realization of
the rights of indigenous peoples, including to pursue the objectives of the
United Nations Declaration on the Rights of Indigenous Peoples, and invites
the President of the General Assembly to conduct open‑ended consultations
with Member States and with representatives of indigenous peoples within
the framework of the Permanent Forum on Indigenous Issues, as well as with
the Expert Mechanism on the Rights of Indigenous Peoples and the Special
Rapporteur, in order to determine the modalities for the meeting, including
the participation of indigenous peoples in the Conference;
9. Requests the Secretary‑General, in consultation with Member States,
relevant United Nations organizations and mechanisms and other stake-
holders, including organizations representing indigenous peoples, to submit
to the General Assembly at its sixty‑seventh session a report that evaluates the
progress made in the achievement of the goal and objectives of the Second
International Decade and its impact on the achievement of the Millennium
Development Goals;
10. Decides to continue consideration of the question at its sixty‑sixth ses-
sion under an item entitled ‘Rights of indigenous peoples’.
71st plenary meeting
21 December 2010
General Resolution
Assembly (2010)
President of
Appendix B
the General Co-Facilitator

Assembly
Human Rights
ECOSOC WGIP
Council
Indigenous
Permanent Forum
Expert Global
on Indigenous self-selected from
Mechanism Coordinating
Issues
Group
Special Special
7 Regions
Accreditation Accreditation
Procedures Procedures
self-selected from
Figure 7.1 How ‘consent’ was manufactured within the UN system

How governments manufacture consent
167
168 Sharon Venne
Appendix C
23 January 2012
TO: Participants
Open-Ended Indigenous Peoples’
Brainstorming Meeting on the
World Conference on Indigenous People
RE: Comments on the Resolution
Aloha kakou,
Mahalo nui loa for including us in the Open-Ended Indigenous Peoples’
Brainstorming Meeting on the World Conference on Indigenous Peoples
2014 in Copenhagen, Denmark, 13–14 January 2012.
We have reviewed the Resolution that was adopted and want to clarify our
opposition and dissent so that it can be properly registered.
During the closing summary of the Rapporteur for the Copenhagen meet-
ing, we requested that the minutes show that we dissented. Specifically our
dissent concerned 1) the inordinate rush to adopt the resolution, allowing no
time for consultation with our Elders and people, and 2) the failure to fully
discuss and properly reconcile conflicting answers to questions raised pertain-
ing to the powers that this group would vest the ‘co-facilitator’ and the
‘coordinating group’. (The answers went from ‘only logistical’ to ‘everything’.)
While we agree that we must make the best use of this WCIP
opportunity to make the urgency of Indigenous Peoples’ conditions known
to the members of the UN General Assembly, let us have no delusions that
this is still the sandbox of the member states. They have the final say as to
the rules of engagement. Indigenous Peoples are at a serious disadvantage in
having to make all the concessions to conform to the terms dictated by the
UN and its member states. Therefore, for us to rush headlong into creating
the two critical liaison/modalities positions, the ‘co-facilitator’ and the
‘coordinating group’, without careful, prayerful counsel and negotiating
strategies from our Elders almost guarantees there will be no provisions for a
level playing field at WCIP.
Further comments on item 1. As much as the ‘co-facilitator’ may
demand for Indigenous Peoples to have an equal voice, there is no equal
footing when one side completely controls the playing field and the rules. The
Indigenous co-facilitator can express our concerns to the UN bureaucracy as
loudly, eloquently and passionately as possible, but simply has no authority or
mechanism to compel the UN or its Member States to listen to, much less
satisfy, any of our requests. Experience has abundantly demonstrated that
states will allow certain concessions to Indigenous Peoples only if it suits the
interests of the state and only from within the internal mechanisms provided
by the state.
Further comments on item 2. The nine members of the coordinating

group would be too few to represent the full spectrum of Indigenous Peoples’
concerns. A small ‘coordinating group’ consisting of members picked because
they are adept at working the UN and state systems are (like it or not) biased
by those systems. Tunnel-vision, grass-roots advocates should be included in
order to stay focused on the issues and not be distracted by the mechanics.
Also, a small ‘coordinating group’ will not have what is necessary to represent
Indigenous Peoples and their wide range of issues and desired outcomes. For
instance, among Hawaiians, there is strong disagreement on what redress and
remedies should be sought from the U.S. for violations of the right to self-
determination and for the human rights abuses committed against Hawaiians.
While many Hawaiians are satisfied with the present political arrangement
and are simply seeking better treatment from within the existing system,
there are many of us who are advocating for self-determination in the form of
full independence so that we, the people, can be the arbiters of our own
future.
Even more so, a single regional representative from the Pacific is simply not
going to effectively advocate for both ends of the spectrum for Hawaii, not to
mention the many diverse areas of the Pacific region. This will be especially
problematical if the representative does not personally subscribe to, or is
strongly opposed to, or even not well-enough acquainted to the varied pos-
itions. In such a situation, there will be some constituencies that will not be
fairly and vigorously represented.
Just for the sake of manageability, the regional coordinator will be inevit-
ably put into the position of having to screen the myriad issues and recom-
mendations to determine which ones are more likely to succeed at the WCIP.
Thus, many worthy but too controversial or non-viable issues will fall by the
wayside during this self-actuating screening process. Will there be another
way for those that don’t fit the criteria to have access to the WCIP? Or will
this ‘coordinating group’ be the only vehicle to approach the WCIP? Will
those with ‘dissenting opinions’ have to go it alone or form another group to
develop access to the WCIP?
With regard to native rights, we are all too familiar with the insincerity
and deceptiveness of the states and their mutual admiration clubs. Some of us
have been commissioned by our Elders and our people to speak in clear,
uncompromising terms to call to task the offending states, the UN and other
international bodies. Would our message be deemed too strong or abrasive or
controversial and thus fall outside the parameters of what this Copenhagen
group may be willing to support?
Regarding item 3. This is a good objective to pursue as over the past few
years, member states have used the UN to block access by certain Indigenous
Peoples to the Permanent Forum and other UN organs. In fact, perhaps the
co-facilitator could start immediately by unblocking the Permanent Forum.
170 Sharon Venne
Regarding item 4. This is a good objective to pursue. This would go

a long way to showing that the UN is willing to welcome participation by
non-UN-member, unrepresented peoples.
Regarding item 5. This is a good objective. Official recognition of pre-
paratory steps and funding would show commitment on the part of the UN
to treat the WCIP seriously and not just a token act of good public relations
and image enhancement.
I hope you take these comments in the spirit from which they are being
offered … with Aloha. And I hope we can dialog to ameliorate these
concerns.
Malama pono,
Leon Siu
The Koani Foundation
Ke Aupuni o Hawaii
Chapter 8
‘Kill the Indian in the child’:

genocide in international law
Tamara Starblanket
The way the Creator put us here on this continent, so that we could live in
peace and harmony and be able to raise our children in a good way, and follow our
Indian way of life.
(Elder Peter Waskahat, Frog Lake, Treaty Six Territory)1
Introduction
This critical and timely compilation aptly affirms that we were here first. What
does a statement like this convey? Our national identities are integral to our
oral histories of Creation on our ‘Great Turtle Island’.2 Our responsibility as
the ‘Original Nations’3 and Peoples is to defend and honour the land so that
the future generations can benefit from our Mother Earth.4 The continent
now commonly known as North America belongs to the Anishinaabe, Dene,
Haida Gwaii, Kanai, Lenape, Nehiyaw, Nuxalk, Oneida and Shawnee among
many other Original Nations. Absent from the global dialogue is the
acknowledgement of the past and present destruction caused by colonialism.
Settler and colonial states claim that we are non-existent as nations in inter-
national law.5 James Crawford in the foreword to Antony Anghie’s Imperialism,
Sovereignty and the Making of International Law writes that the development
1 ‘Treaty Six First International Meeting, 17–20 July 1989 Onion Lake First
Nation, Treaty Six Territory’ in Sharon Venne (ed), Honour Bound: Onion Lake and
the Spirit of Treaty Six: The International Validity of Treaties with Indigenous Peoples
(International Working Group for Indigenous Affairs, 1997) 68.
2 Sharon Venne, ‘Treaties Made in Good Faith’ in Paul W DePasquale (ed),
Natives and Settlers Now and Then: Historical Issues and Current Perspectives on Trea-
ties and Land Claims in Canada (University of Alberta Press, 2007) 1, 3.
3 Steven Newcomb, Pagans in the Promised Land: Decoding the Christian Doctrine of
Discovery (Fulcrum Publishing, 2008) 131. Newcomb coined the term ‘Original
Nations’.
4 Venne, ‘Treaties Made in Good Faith’, above n 2, 2.
5 See especially Antony Anghie, Imperialism, Sovereignty and the Making of Inter-
national Law (Cambridge University Press, 2005) 32–100. Anghie examines the
domination of Indigenous Peoples in international law.
172 Tamara Starblanket
of international law was framed under ‘pattern[s] of domination and sub-

ordination’.6 Illusions of ‘invisibility’7 or non-existence are solidified by the
myth of the benevolent colonial society. Settler states and scholars invoke the
sham that colonialism is ‘benevolent’8 and this dodges the implication that
colonialism is a genocidal process. Genocide denial conceals the dark colonial
laws and policies of the past and present.9
It is an oppressive experience for peoples that have physically survived
colonial invasion. ‘Domination’10 and ‘dehumanisation’11 are maintained
6 James Crawford, ‘Foreword’ in Anghie, above n 5, xi.

7 Sharon Venne, ‘Introduction’ in Ward Churchill, Perversions of Justice (City Lights
Books, 2003) xiii.
8 See, eg, Arthur J Ray, Jim Miller and Frank Tough, Bounty and Benevolence: A
History of Saskatchewan Treaties (McGill Queen’s University Press, 2000). See also
Helen Gilbert and Chris Tiffins (eds), Burden or Benefit? Imperialism Benevolence and
its Legacies (Indiana University Press, 2008) for a review of the rhetoric of
benevolence.
9 See Ottawa, Statement of Apology to Former Students of the Indian Residential Schools,
11 June 2008; see especially Tamara Starblanket, Suffer the Little Children: Geno-
cide, Indigenous Nations and the Canadian State (Clarity Press, forthcoming); see also
Tamara A Starblanket, Genocide: Indigenous Nations and the State of Canada (LLM
Thesis, University of Saskatchewan, 2014). This chapter is based on my Master
of Laws thesis and forthcoming book, and the legal question of Canadian state
culpability for crimes of genocide. In my thesis, I claimed that the government
violates customary laws on genocide as well as being criminally culpable for
crimes of genocide into present times. It is based on a legal examination of
residential schools and the child welfare system.
10 On domination, see especially Newcomb, Pagans, above n 3. The analysis of
domination and dehumanisation originates from Newcomb’s work on decon-
structing the domination code in the colonial language. His domination cogni-
tive model (cognitive legal theory) explains that language and law is a system or
framework of domination and dehumanisation by analysing the doctrine of dis-
covery. This domination code is embedded into the legal framework of the
United States. The same analysis can be applied to Canadian jurisprudence. The
case of St Catherine’s Milling and Lumber Co v R (1886) CanLII 30 (ON CA) cites
Johnson & Graham’s Lessee v M’Intosh 21 US (8 Wheat) 543 (1823) from the
United States. The domination is encoded in the language. See also Steven
Newcomb and Birgil Kills Straight, The Doctrine of Discovery and the Protocol of
Domination: A Short Essay for the North American Indigenous Caucus Preparatory
Meeting for the UN Permanent Forum on Indigenous Issues (Indigenous Law Institute,
2012). Newcomb and Kills Straight refer to the law and language as a protocol
of domination that is maintained by dehumanising descriptors.
11 On dehumanisation, see especially Newcomb, Pagans, above n 3, 1–36; Steven
Newcomb, ‘On Historical Narratives and Dehumanization’, Indian Country
Today, 20 June 2012 <http://indiancountrytodaymedianetwork.com/2012/06/20/
historical-narratives-and-dehumanization>. See generally Robert Williams Jr,
Savage Anxieties: The Invention of Western Civilization (Palgrave Macmillan, 2012);
Frantz Fanon, The Wretched of the Earth (Grove Press, 1963); Ward Churchill, A
Little Matter of Genocide: Holocaust and Denial in the Americas 1492 to the Present
(Arbiter Ring Publishing, 1998); David Stannard, American Holocaust (Oxford
Genocide: kill the Indian in the child 173
through various methods, such as the forced indoctrination of the Original

Peoples and Nations’ children. Shawnee and Lenape scholar Steven Newcomb
in his work on cognitive legal theory refers to the ‘paradigm of domination’.12
He writes:
The fact remains however, that the ideas used to construct and maintain
such patterns of domination are not a physical container, nor a physical
object; they are nothing more than mental processes. The paradigm of
domination is more and foremost, a product of the mind.13
Patterns of forced indoctrination have caused the paradigm of domination.

The colonial mission could not have been accomplished without the widespread
destruction experienced by Indigenous Peoples’ children in government-con-
trolled residential schools and child welfare systems.
The crime of genocide – the forcible transferring of Indigenous Peoples’
children into colonial residential institutions – continues unrelenting and with-
out redress in international law. The Convention on the Prevention and Punishment of
the Crime of Genocide (UNGC) holds the following in art 2:
In the present Convention, genocide means any of the following acts

committed with intent to destroy in whole or in part, a national, ethnical,
racial or religious group, as such:
a Killing members of the group;

b Causing serious or bodily mental harm to members of the group;
c Deliberately inflicting on the group conditions of life calculated to
bring about its physical destruction in whole or in part;
d Imposing measures intended to prevent births within the group;
e Forcibly transferring children of the group to another group.14
In this chapter, I will review the drafting of the crime of genocide in inter-
national law from an Indigenous Peoples standpoint, and reveal the domin-
ation of state interests and the exclusion of the Indigenous experience of
‘cultural genocide’ or ‘forced assimilation’. As Cree international lawyer and
scholar Sharon Venne writes, ‘genocide is genocide no matter what form it

and the Paradigm of Domination’ (2011) 20(3) Griffith University Law Review
578, 580. Newcomb argues that patterns of domination are maintained through
a conceptual framework of domination.
13 Ibid.
14 Convention on the Prevention and Punishment of the Crime of Genocide, opened for
signature 9 December 1948, 78 UNTS 277 (entered into force 12 January 1951,
accession by Canada 3 September 1952).
takes and no matter what you call it’.15 I will show the connection between
genocide and colonisation and reveal that the Canadian state violates the
UNGC. The forcible removals that began in the residential schools are
ongoing as Indigenous children are now removed by the state into child
welfare foster homes. Under the guise of the ‘best interests of the child’ the
state justifies the removals by referring to the conditions that were created in
the residential school system. The genocide continues unabated.
A note on the language is crucial as it is foundational to the genocidal
experience of our Nations. The colonial language requires us to submit to the
domination of settler states. Many examples abound such as ‘land claims’,
‘reconciliation’ and ‘self-government’. An example is the recent change by the
former Harper Canadian government of the title of the Department of Indian
and Northern Affairs to Aboriginal Affairs and Northern Development. With
the recent change in colonial government, it is now termed Indigenous and
Northern Affairs. This is in line with Newcomb’s contention that the term
Indigenous Peoples means dominated peoples.16 Given this important point, in
this chapter I identify the term ‘Indigenous Peoples’ to mean the Original
Nations and Peoples with capital letters from an international legal standpoint.
Peace and friendship in international law

The Elders affirm that our inherent obligations and responsibilities as the
Original Nations are granted by the Creation.17 In Our Elders Understand Our
Rights: Evolving International Law Regarding Indigenous Peoples Venne contends
that Indigenous Peoples and Nations are subjects of international law.18 The
peace and friendship treaties made between Indigenous Nations and the
Crown of Great Britain early in the colonial invasion of Great Turtle Island
affirm and secure the international legal status of the Original Nations.19
15 Sharon H Venne, ‘Opening Line’ in Ward Churchill, Kill the Indian Save the
Man: The Genocidal Impact of American Indian Residential Schools (City Lights
Books, 2004) xiii, xiii.
16 Newcomb, ‘The UN Declaration’, above n 12.
17 See especially Venne, Honour Bound, above n 1.
18 Sharon H Venne, Our Elders Understand Our Rights: Evolving International Law
Regarding Indigenous Peoples (Theytus Books, 1998).
19 See especially Miguel Alfonso-Martinez (Special Rapporteur), Final Report:
Human Rights of Indigenous People Study on Treaties, Agreements and Other Constructive
Arrangements between States and Indigenous Populations, UN Commission on Human
Rights, E/CN4/Sub 2/1999/20 (1999). For a review of treaties as international,
see especially Venne, Honour Bound, above n 1; see also Sharon Venne, ‘Under-
standing Treaty Six: An Indigenous Perspective’ in Michael Asch (ed), Aboriginal
and Treaty Rights in Canada: Essays on Law, Equality and Respect for Difference
(UBC Press, 1997) 173; Isabelle Schulte-Tenckhoff, ‘Reassessing the Paradigm of
Domestication: The Problematic of Indigenous Treaties’ (1994) 5 Review of Con-
stitutional Studies 239.
Miguel Alfonso Martínez, Special Rapporteur on the Study on Treaties, stipulates

that Indigenous Peoples are ‘subjects’20 of international law.
Canada as a colony of Great Britain inherited the legal obligation to imple-
ment the treaties according to the original spirit and intent.21 The treaties
affirm the inherent authority granted by the Creation to our land, nationalities,
laws and governments. Elder Peter Waskahat of Frog Lake stated the case at an
international meeting on treaties: ‘In the past, before the whiteman came to
this continent, this island, the Indian People were able to determine for them-
selves their daily lives and were also able to govern themselves.’22 Venne
described the laws of the Cree when Treaty Six was negotiated, and concluded:
When Indigenous Peoples talk about the land and the making of treaty, we
are talking about our life and the life of the future generations. Land is central
to the process. We have a relationship with our Creation based on a legal
system designed to protect and honour the land. These are the laws that
guided Cree Peoples when the chiefs negotiated and concluded Treaty Six in
1876.23
The authority to protect the land or underlying title and their children was never
relinquished or surrendered by Indigenous Nations.24 Instead, the state has vio-
lated the treaties through several means, the most important being the forcible
transferring of Indigenous Peoples’ children from our Nations to the coloniser’s
people and society. As Nations we depend on our future generations. The ability to
protect our children was terminated by the imposition of colonial laws and policies
and the intent to destroy our Peoples was evidenced by the forcible removals.
Colonial framework
Civilising missions
The residential school system was designed by the government of Canada to
civilise or ‘absorb’25 Indigenous Peoples’ children into Canadian society or the
20 Alfonso Martinez, above n 19, [112], [189]. ‘In the case of indigenous peoples who
concluded treaties or other legal instruments with the European settlers and/or their
continuators in the colonisation process, the Special Rapporteur has not found any
sound legal argument to sustain the argument that they have lost their international
juridical status as nations/peoples’: ibid [265].
21 The Queen v The Secretary of State for Foreign and Commonwealth Affairs, ex parte The
Indian Association of Alberta, Union of New Brunswick Indians, Union of Nova Scotian
Indians [1984] 4 CNLR 86; see Alfonso Martinez, above n 19; Venne, Honour
Bound, above n 1, 57–119.
22 In Venne, Honour Bound, above n 1, 115.
24 See especially Venne, Honour Bound, above n 1.
25 E Brian Titley, A Narrow Vision: Duncan Campbell Scott and the Administration of
Indian Affairs in Canada (University of British Columbia Press, 1986) 50: ‘our
colonial ‘body politic’.26 This is genocide, despite attempts to conceal the

atrocity of the forced civilisation of our children. International legal scholar
Martti Koskenniemi in The Gentle Civilizer of Nations: The Rise and Fall of
International Law writes, ‘No word is more vague and has permitted the
commission of more crimes than that of civilization.’27 Koskenniemi supports
the contention that the forced civilisation of Indigenous Peoples is criminal
conduct. Koskenniemi, citing Charles Salomon, affirms that ‘the history of all
colonies begins with violence, injustice and the shedding of blood: the result
is everywhere the same; the disappearance of the native races (des races sau-
vages) coming into a contact with civilized races’.28 Anghie supports the
contention of this chapter by his argument that:
colonialism was central to the constitution of international law in that

many of the basic doctrines of international law – including most
importantly the sovereignty doctrine – were forged out of the attempt to
create a legal system that could account for relations between the European
and non-European worlds in the colonial confrontation.29
Anghie’s contention is evidenced by the drafting of the prohibition on genocide

in international law. He further examines:
the relationship between international law and colonialism by focusing

on the civilizing mission, the grand object that justified colonialism as a
means of redeeming the backward, aberrant, violent, oppressed under-
developed people of the non-European world by incorporating them into
the universal civilization of Europe.30
Dehumanisation of Original Peoples and Nations gives the dominating colonial

state the licence to destroy with impunity with no qualms or afterthought.
The residential school system provides an excellent example that portrays this
destructive civilising mission that continued into the 1990s.
objective is to continue until there is not a single Indian in Canada that has not
been absorbed into the body politic …’. See especially Canada, Royal Commission
on Aboriginal Peoples, Report of the Royal Commission on Aboriginal Peoples, Vol 1:
Looking Forward, Looking Back (Canada Communications Group, 1996) ch 10 for a
review of the early policy statements made by the government about civilising
Indigenous Peoples by force.
26 Titley, above n 25, 50; see especially Newcomb, Pagans, above n 4, 15–16.
Newcomb refers to the colonial ‘body politic’ as a predator.
27 Martti Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of Inter-
national Law 1870–1960 (Cambridge University Press, 2001) 106.
28 Ibid.
30 Ibid.
Webster’s Third New International Dictionary provides the following definition

under ‘civilization’: ‘the act of civilizing; esp the forcing of a particular cultural
pattern on a population to whom it is foreign’.31 From this perspective, forcing
a cultural pattern onto an Original Nation is genocide in the context of
colonisation. Raphael Lemkin, international lawyer, created the term by
combining the ‘Greek word genos (race, tribe) and the Latin cide (killing)’.32
More importantly, Lemkin’s analysis explained that colonial invasion is integral
to the crime of genocide.33 According to Lemkin, genocide means the
‘destruction of a nation or of an ethnic group’.34 Samantha Power in A Problem
From Hell clearly articulates that Lemkin understood that genocide is directed
against national group identities.35 Power writes, ‘In Axis Rule he wrote that
“genocide” meant a “coordinated plan of different actions aiming at the
destruction of essential foundations of the life of national groups, with the
aim of annihilating the group themselves”.’36 She continues:
The perpetrators of genocide would attempt to destroy the political and

social institutions, the culture, language, national feelings, religion, and
economic existence of national groups. They would hope to eradicate the
personal security, liberty, health, dignity, and lives of individual members
of the targeted group.37
In this regard, the emphasis is on national identities and the attack is against
the individuals of those Original Nations in the colonial invasion of Indi-
genous Peoples and Nations’ lands and territories. Lemkin explained that
genocide was accomplished when two phases of genocide were implemented
by the perpetrator invading state:
one, the destruction of the national pattern of the oppressed group; the
other, the imposition of the national pattern of the oppressor. This
imposition, in turn, may be made upon the oppressed population which
is allowed to remain, or upon the territory alone, after removal of the
population and the colonization of the area by the oppressor’s own
nationals.38
31 Webster’s Third New International Dictionary of the English Language Unabridged, sub
verbo ‘civilization’; see Newcomb, ‘UN Declaration’, above n 12, 581 for the
original citation.
32 Raphael Lemkin, Axis Rule in Occupied Europe: Laws of Occupation, Analysis of
Government, Proposals for Redress (Lawbook Exchange, 2nd edn, 2008) 79.
33 Ibid 79–90.
34 Ibid 79.
35 Samantha Power, ‘A Problem from Hell’: America and the Age of Genocide (Harper
Perennial, 2002) 43.
36 Ibid.
37 Ibid.
38 Lemkin, above n 32, 79.
Certainly, the forced civilisation of the Indigenous Peoples of Great Turtle

Island constitutes genocide by the forced imposition of a cultural pattern over
the Original Nations’ national identities. So, based on Lemkin’s view of
genocide, the civilising mission matches the definition of the crime as
understood by the man who coined the term.
The destructive and genocidal nature of the civilisation process, or the for-
cing of a cultural pattern by a dominating colonial state over another national
identity, has been concealed by the removal of ‘cultural genocide’39 from the
crime of genocide in international law. To be clear, forced civilisation is a
process of colonialism. Newcomb is articulate on this point: ‘what is referred
to as civilization may involve a process of colonization, which is a process by
which an empire expands in land, population, wealth and power’.40 Of
course, the removal of cultural genocide as a crime does not lessen its
destructive effects on the victims of colonisation.
The civilising process justifies colonial violence and the illegitimate claiming
of Indigenous Peoples’ lands with the use of descriptors designed to dehuman-
ise. Colonial law and policy is rampant with destructive language. The effect is
brutal. Birgil Kills Straight and Steven Newcomb refer to the doctrine of dis-
covery as a ‘protocol of domination’, as they examine the dehumanisation code
embedded in the colonial language: ‘wild, barbarous, savage, heathen, pagan,
infidel, wandering (around free of domination), roaming (free of domination),
uncivilized, domesticated, conquered, uncivilized (not yet dominated), minors,
tribes, tribal, aborigines, aboriginal, ethnic groups, rude, primitive, ignorant,
dirty and so forth’.41 This violent categorisation is used to justify the genocide.
Newcomb and Kills Straight continue, ‘These terms have been used in a sub-
humanizing and dehumanizing manner in colonizing law and policy to ratio-
nalize [and] justify’42 the theft of the Original Nations and Peoples’ lands and
territories. These derogatory terms are encoded in the framework of the state to
the detriment of the Original Nations. The subhumanising codification into
settler-state laws is the cornerstone of colonisation and genocide. Lemkin
explains that the ‘laws of occupation’43 are indispensable to colonial invasion.
Laws of occupation
The mandate to civilise is evidenced in colonial laws and policy statements by
government officials. John A MacDonald expressed to the Canadian House of
39 See especially Hirad Abtahi and Philippa Webb, The Genocide Convention: The
Travaux Préparatoires (Martinus Nijhoff Publishers, 2008) vols 1–2.
40 Newcomb, Pagans, above n 3, 14.
41 Newcomb and Kills Straight, above n 10, 3; see also Robert Williams Jr, The
American Indian in Western Legal Thought: The Discourses of Conquest (Oxford Uni-
versity Press, 1990).
42 Newcomb and Kills Straight, above n 10, 3.
43 Lemkin, above n 32, ix.
Commons in 1883 that the government intended to change the ‘uncivilised’

condition of the ‘savage’ Indian child to a child who would speak, think and
write like a white person. MacDonald openly stated in parliament:
the first object is to make them better men, and, if possible, good
Christian men by applying proper moral restraints, and appealing to the
instincts for worship which is to be found in all nations, whether civilized
or uncivilized … When the school is on the Reserve the child lives with
its parents, who are savages; he is surrounded by savages, and though he
may learn to read and write his habits, and training and mode of thought
are Indian. He is simply a savage who can read and write … Indian
children should be withdrawn as much as possible from the parental
influence, and the only way to do that would be to put them in central
training industrial schools where they will acquire the habits, modes and
thought of white men.44
Constitutional scholar Kent McNeil contends that early conceptions of colonial

Aboriginal law and policy were based on theories of racial superiority or what
he terms ‘social Darwinism’.45 Racist and dehumanising descriptors were
encoded into the framework of the oppressor state. McNeil finds that the case
of St Catherine’s Milling and Lumber Co v The Queen46 of the 1880s reveals
the racist attitudes that guided the judiciary in its determination of Abori-
ginal title. The Ontario Court of Appeal in 1886 in the St Catharine’s Milling
case cited the Marshall Trilogy of the United States and invoked the discovery
doctrine and dehumanising descriptors to claim Indigenous Peoples’ lands
and territories.47 McNeil writes:
44 Canada, Parliamentary Debates, House of Commons, 9 May 1883, 14: 1107–8

(MacDonald) (emphasis added); see also Canada, Royal Commission on Abori-
ginal Peoples, above n 25; Titley, above n 25.
45 Kent McNeil, ‘Social Darwinism and Judicial Conceptions of Indian Title in
Canada in the 1880s’ (1999) 38 Journal of the West 68.
46 (1885) 10 OR 196 (Chancery). The court determined that ‘Indian Peoples were
found scattered wide cast over the continent having as a characteristic, no fixed
abodes, but moving as the exigencies of living demanded. As heathens and bar-
barians it was not thought that they had any proprietary title to the soil’: [206].
47 St Catherine’s Milling and Lumber Co v R (1886) CanLII 30 (ON CA) <http://ca
nlii.ca/t/1vpsp>. ‘The whole discussion and judgment in that case are very
interesting and instructive. Counsel referred to the practice of all civilized
nations to deny the right of the Indians to be considered as independent com-
munities having a permanent property in the soil. And it was said in argument
that the North American Indians could have acquired no proprietary interest in
the vast tract of territory which they wandered over, and their right to the lands
on which they hunted, could not be considered as superior to that which is
acquired to the sea by fishing in it; the use in the one case as in the other, is not
exclusive. According to every theory of property the Indians had no individual
right to the land; nor had they any collectively, or in their national capacity, for
There can be no doubt that the evolutionary theories of human societies

prevalent in the latter half of the 19th century influenced government
policy toward Indians in the United States and Canada. For example,
allotment of tribal lands to individuals in the United States, and the
residential school system in both countries, which were actively pursued
in the 1880s, were primarily designed to bridge the supposed gap
between Indian savagery or barbarism and Euro-based civilization, so that
Indians could be raised to the level of Whites through a process of
education and assimilation.48
The basis of the forcible removal of children to the residential school system
in Canada was theories of racial superiority and the civilisation framework.
The intent of the colonial framework for the forcible transferral of children
was to ‘kill the Indian in the child’.49 In this regard, genocide is integral to
colonialism. The Canadian government legislated the forcible transferral
through its Indian Act.50
Drafting of the crime of genocide

Colonial clause and cultural genocide
The Genocide Convention: The Travaux Préparatoires51 details the discussions and
debates among states at the United Nations. The ‘colonial clause’ was a sig-
nificant discussion during the drafting of the crime.52 The colonial clause
gives a contracting state the freedom of designating to which ‘colonial terri-
tories’ the Genocide Convention will apply.53 The colonial clause sheds light on
the lands used by each tribe were not used by them in such manner as to prevent
their being appropriated by settlers’: [50].
48 McNeil, above n 45, 70.
49 See Ottawa, Statement of Apology, above n 9.
50 See An Act to Amend and Consolidate the Laws Respecting Indians, SC 1880, c 28; ss
137(2) and 138 of the Indian Advancement Act, RSC 1886, c 44; s 11 of An Act
Further to Amend the Indian Act, 1894, c 32, 57–58 Victoria; ss 9 and 10 of An
Act to Amend the Indian Act, SC 1920, c 50.
51 Abtahi and Webb, above n 39.
52 United Nations General Assembly, 6th Comm, 93rd mtg, UN Doc A/C6/SR93
(6 November 1948), cited in Abtahi and Webb, ibid 1609. The issue came up
in the discussion on state responsibility and the amendment was raised again in
the context of the ‘colonial clause in the following discussion’: United Nations
General Assembly, 6th Comm, 107th mtg, UN Doc A/C6/SR107 (15 Novem-
ber 1948), cited in Abtahi and Webb, ibid 1812. The colonial clause concerned
issues of protection under the Genocide Convention being extended to non-self-
governing territories.
53 See Marko Milanović, ‘Territorial Application of the Convention and State Suc-
cession’ in Paola Gaeta (ed), The UN Genocide Convention: A Commentary (Oxford
University Press, 2009) 473, 473: ‘In essence, these clauses give the contracting
the connection between colonialism and genocide. The USSR’s push to have
cultural genocide retained in the convention directly related to its concern
that ‘[c]olonial policy had been a dark page in history’.54 In fact, there was
contention between the USSR and the United Kingdom on this ‘dark his-
tory’, as the United Kingdom delegation ‘denied the moral authority of the
Soviet Union Government to make any such statement, or to set itself up as a
model of conduct before the world’.55 The USSR’s strong opposition to the
deletion of cultural genocide reflected its position that ‘fascism, Nazism and
doctrines of racial superiority’56 were at the root of genocide.
On the concept of cultural genocide, the Ukraine stated:
It was generally recognized that genocide is aimed at the extermination

of a group of people. That aim could be attained by exterminating all the
members of the group or by destroying its characteristics. In the opinion
of the Ukrainian delegation, no country which was genuinely anxious to
combat the crime of genocide and to prevent it as well as punish it,
could oppose the inclusion of cultural genocide among the acts to which
the convention applied.57
The USSR’s arguments against the deletion of cultural genocide during the
Sixth Committee debates show that genocide is an end product of colonial-
ism.58 The issue came to a head in the debate on the USSR’s proposed
amendment.59 The USSR was concerned about loopholes which ‘might pre-
vent the punishment of those who perpetrated the crime of genocide or
states the freedom of designating those parts of their territories to which the
treaty will apply, thereby avoiding the customary the customary presumption in
favour of territorial application to all of the territories of a state party, now
codified in Article 29 of the 1969 Vienna Convention on the Law of Treaties’.
54 UN Doc A/C6/SR107, cited in Abtahi and Webb, above n 39, 1817. The
committee did not wish to see those dark pages prolonged by a failure to extend
the provisions of the convention on genocide to the colonial territories. See Jean-
Paul Sartre and Arlette El Kaim-Sartre, On Genocide and the Summary of the Evi-
dence and Judgments of the International War Crimes Tribunal (Beacon Press, 1968)
63: colonialism ‘is by its very nature an act of cultural genocide. Colonization
cannot take place without systematically liquidating all the characteristics of the
native society.’
55 UN Doc A/C6/SR107, cited in Abtahi and Webb, ibid 1822. The United
Kingdom denied many of the assertions made by the USSR and the denial is
important to the overall question of its colonial history globally.
56 United Nations General Assembly, 6th Comm, 179th mtg, UN Doc A/PV179
(9 December 1948), cited in Abtahi and Webb, ibid 2082–3.
57 United Nations General Assembly, 6th Comm, 65th mtg, UN Doc A/C6/SR65
(2 October 1948), cited in Abtahi and Webb, ibid 1319.
58 United Nations General Assembly, 6th Comm, 82nd mtg, UN Doc A/C6/SR83
(25 October 1948), cited in Abtahi and Webb, ibid 1501–19.
59 A/766, cited in Abtahi and Webb, ibid 2039.
incited others to do so’.60 The USSR was concerned that Nazism and theories
of racial superiority were not included in the preamble of the UNGC and ‘[t]o
say that the crime had no connexion with racial theories amounted, in fact, to
a re-instatement of such theories’.61 It was also concerned that cultural geno-
cide had been removed and the delegation ‘of the USSR could not agree with
that view, for it regarded cultural genocide as an aspect of genocide’.62 The
USSR further argued that:
Article XII gave the colonial Powers discretion to extend or not to extend
the provisions of the convention to their colonies. The rejection of the
USSR amendment providing for the extension of the convention to all
Non-Self-Governing Territories diminished the value of the present
text.63
Yugoslavia and Poland supported the position taken by the USSR because of
the genocidal experience they encountered at the hands of the Nazi state.
The significance to Indigenous Peoples under domination is that the doctrine
of discovery is founded on western ideals of civilisation and theories of racial
superiority. Doctrines of racial superiority are what led to the demonisation,
isolation and destruction of Original Nations on Great Turtle Island and the
world over. Genocide followed:
racial theories intended to develop racial and national hatreds, the dom-
ination of the so-called ‘higher races’ and the extermination of the so-
called ‘lower races.’ The crime of genocide formed an integral part of the
plan for world domination of the supporters of racial ideologies.64
The destruction of Indigenous Peoples and Nations is guided by dehumanis-

ing terminology that is deeply imbedded into the framework of the colonial
settler-state systems. The discussion raised by the USSR and the rebuttal by
the United Kingdom over the colonial clause and the dark history of coloni-
sation is instructive. The Polish delegate stated, ‘Genocide had often been
committed in the colonies; the colonial peoples were always in danger from
the metropolitan States in that respect, whether in the direct physical form or
in the form of cultural genocide.’65 The amendment by the USSR was rejec-
ted by the United Nations General Assembly; however, it supports my con-
tention that genocide is linked to theories of the so-called higher races and
60 UN Doc A/PV179, cited in Abtahi and Webb, ibid 2082.

61 United Nations General Assembly, 6th Comm, 178th mtg, UN Doc A/PV178
(9 December 1948), cited in Abtahi and Webb, ibid 2044.
62 Ibid 2045, citing UN Doc A/PV178.
the lower races. The USSR’s comment is informative, ‘unless some provision
regarding cultural genocide is included in the convention’66 states may use
this to ‘justify crimes of genocide’.67 From the USSR’s position, the colonial
powers ‘intended to have a free hand to ensure that colonial territories were
maintained in a position of inferiority’.68
Canada is a settler69 state comprised of many different immigrants that
have come here from abroad. The French and English are two of the many
immigrant cultures. The French are from France and the English are from the
United Kingdom. Is it any wonder that Canada vociferously opposed cultural
genocide? In fact, it was the only point they objected to:
His delegation was not, therefore, opposed to the idea of cultural geno-
cide, but only to the inclusion in the convention of measures to suppress
it. His delegation did not wish to limit the scope of the convention in
any way, as was shown by the fact that it had voted in favour of the
inclusion of the protection of the political group, but it felt that the idea
of genocide should be limited to the mass physical destruction of human
groups.70
Instead, the solution Canada proposed was to recommend the ‘protection of

language, religion and culture within the framework of the international
declaration on human rights’.71 The effect of considering issues of colonialism
under a human rights framework was to conceal the destruction caused by
settler-state laws, policies and programmes. State concerns centred on whether
the treatment of Indigenous Peoples would be construed as genocide.
According to Mathew Lippman, ‘The United States did not want to risk
international recrimination for the country’s continued practice of racial seg-
regation and mistreatment of Native Americans.’72 The standard argument
against including cultural genocide was that the protections in the convention
‘went too far’.73 The Travaux Préparatoires provides compelling evidence that

67 Ibid, citing UN Doc A/PV178.
69 See, eg, Grenfell Price, White Settlers and Native Peoples: An Historical Study of
Racial Contacts between English-Speaking Whites and Aboriginal Peoples in the United
States, Canada, Australia, and New Zealand (Cambridge University Press, 1950)
for a review of the term ‘settler’.
70 UN Doc A/C6/SR83, cited in Abtahi and Webb, above n 39, 1510.
71 Ibid.
72 Matthew Lippman, ‘The Drafting and Development of the 1948 Convention on
Genocide and the Politics of International Law’ in H G van der Wilt, J Vervliet,
G K Sluiter and J T M Houwink ten Cate (eds) The Genocide Convention: The
Legacy of 60 Years (Martinus Nijhoff, 2012) 15, 19.
73 United Nations General Assembly, 6th Comm, 64th mtg, UN Doc A/C6/SR64
(1 October 1948), cited in Abtahi and Webb, above n 39, 1301.
the United Kingdom resisted the implication that its colonial policy globally
was genocidal. This is supported by the Canadian delegate’s vehement oppo-
sition to the inclusion of cultural genocide and its threatened ‘reservation’.74
Removing cultural genocide from the convention maintains ongoing
destruction by preventing Original Nations and Peoples making claims in
international law for crimes of genocide in the colonisation of their lands and
territories.
The deletion of cultural genocide gives the colonial settler state the licence
to destroy with impunity. It allows genocide to go unchecked and is a con-
tinuation of the colonial objective. The discussion of the colonial clause
affirms that Indigenous Peoples have not entered into a ‘post-colonial era’.75
The removal of cultural genocide as a legal concept in international law ren-
ders the Original Nations invisible.76 It masks the destruction caused by
colonialism. According to the USSR, the removal:
might be utilized by those who wished to carry out [genocide] against

national, cultural and racial [human groups/nations]. Such [destruction]
did exist at the present time and prevailed in certain territories and
colonies administered by countries who prided themselves on their
civilization.77
The USSR’s point is instructive in that cultural genocide is linked to the

civilisation process. The ‘civilising missions’78 with the use of dehumanising
inferior classifications such as ‘pagans’ or ‘savages’ and the use of those descriptors
as a basis for claiming Indigenous Peoples and Nations were not sovereign79
were the justifications for the legislated state removal of Indigenous Peoples’
children away from loving families and, ultimately, their Nations.
Forcible transferral of children

The Travaux Préparatoires provides clarity about the forcible transferral of
children. It was acknowledged during the drafting of the convention that
74 Ibid 1510, citing UN Doc A/C6/SR83.

75 Venne, ‘Introduction’, above n 7, xiii.
76 Ibid.
77 UN Doc A/PV179, cited in Abtahi and Webb, above n 39, 2083.
78 Anghie, above n 5, inside cover (The project of governing non-European
peoples).
79 Ibid 29: ‘the one distinction which Vitoria insists upon and which he elaborates
in considerable detail is the distinction between the sovereign Spanish and the
non-sovereign Indians. Vitoria bases his conclusion that the Indians are not
sovereign on the simple assertion that they are pagans. In doing so he resorts to
exactly the same crude reasoning which he had previously refuted when denying
the validity of the Church’s claim that the Indians lack right under divine law
because they are heathens’.
human groups depend on their children for the continuance of their distinct
national identities. The French delegate acknowledged, ‘The forced transfer of
children had not only cultural, but also physical and biological effects since it
imposed on young persons conditions of life likely to cause them serious harm
or even death.’80 The forcible removal would lead to the eventual dis-
appearance of the targeted nationality because as nations they depend on their
children.81 The Greek delegate Mr Vallindas held:
There could be no doubt that a forced transfer of children, committed with

the intention of destroying a human group, in whole, or at least in part,
constituted genocide. The forced transfer of children could be as effective a
means of destroying a group as that of imposing measures intended to
prevent births, or inflicting conditions of life likely to cause death.82
Greece emphasised the importance of including the ‘“forced transfer of children”,

a means of committing genocide, which had not only been used in the past
but was still being used’.83 The representative from Uruguay, Mr Maniniy
Rios, held that ‘there was reason also to condemn measures intended to
destroy a new generation through abducting infants, forcing them to change
their religion and educating them to become enemies of their own people’.84
More importantly, the Greek delegate determined that the forcible removal of
children was not ‘primarily an act of cultural genocide. Although it could in
certain cases be considered as such, it could be perpetrated rather with the
intent to destroy or to cause serious physical harm to members of a group.’85
According to Art 32 of the Vienna Convention on the Law of Treaties the Travaux
Préparatoires may be used as a ‘supplementary means of interpretation’:
Recourse may be had to supplementary means of interpretation, including

the preparatory work of the treaty and the circumstances of its conclu-
sion, in order to confirm the meaning resulting from the application of
article 31, or to determine the meaning when the interpretation according
to article 31:
a leaves the meaning ambiguous or obscure; or

b leads to a result which is manifestly absurd or unreasonable.86
80 United Nations General Assembly, 6th Comm, 83rd mtg, UN Doc A/C6/SR82
(23 October 1948), cited in Abtahi and Webb, above n 39, 1492.
81 Ibid 1492–5, 1504.
82 Ibid 1493.
83 Ibid.
84 Ibid 1494.
85 Ibid 1495.
86 Vienna Convention on the Law of Treaties, opened for signature May 23 1969, 1155
UNTS 331 (entered into force 27 January 1980).
Given this important point, the Travaux Préparatoires is utilised as a source of

clarity with respect to the crime of forcibly transferring children away from
Indigenous Peoples and Nations to the colonial society. The deliberate
removal by colonial member states of the legal concept of ‘cultural genocide’
and the ‘loopholes’87 put in place to avoid international recrimination in
international law can be challenged by reframing the legal issue another way.
Despite the attempted block by colonial governments and the ‘greatly
truncated’88 version of genocide adopted by the United Nations General
Assembly, there is enough latitude to determine when a crime occurs.
Genocide Convention
Model of domination and dehumanisation
In my Master of Laws thesis entitled Genocide: Indigenous Nations and the State
of Canada89 and my book entitled Suffer the Little Children: Genocide, Indigenous
Nations and the Canadian State,90 the tables are turned on the colonial state or
western reader. Newcomb’s groundbreaking work in Pagans in the Promised
Land: Decoding the Christian Doctrine of Discovery provided the cognition that I
had developed a metaphor to explain our collective experience of colonial
invasion and genocide. It is an alternative way of viewing the forcible trans-
ferring of Indigenous Peoples’ children. In the study of law, I learned colonial
language is paramount to the entrapment that Indigenous Peoples and
Nations encounter when bringing their issues before colonial courts or pro-
cesses. An example is the ‘land claims’ policy in Canada. The term is a con-
tradiction to our existence on Great Turtle Island since the beginning of time.
Why do we ‘claim’ the land that has been gifted to our Original Peoples and
Nations by Creation? Given this line of reasoning, a challenge from the outset
is the language. Newcomb articulates, ‘Words have a history. Words from the
past have the ability to colonize the present. Words shape and create
reality.’91 From an Indigenous legal standpoint, ‘language’ is foundational to
the rhetorical manoeuvres that entrench state domination. An example is the
apology by the Canadian government in which Prime Minister Harper
invoked words such as ‘abuse’, ‘neglect’ and ‘mistreatment’ to explain the
harm experienced by Indigenous children in state-controlled residential
87 UN Doc E/794, E/794/Corr 1 and E/AC 27/1, cited in Abtahi and Webb, above
n 39. The diminishment of the crime has allowed for what Poland referred to as
‘loopholes of escape for perpetrators of the crime’: 710.
88 Ward Churchill, Perversions of Justice (City Lights Books, 2003) 250.
89 See Starblanket, Genocide, above n 9.
90 Starblanket, Suffer the Little Children, above n 9.
91 Steven Newcomb, ‘A Critique of a Doctrine of Reconciliation’, Indian Country
Today, 15 June 2011 <http://indiancountrytodaymedianetwork.com/2011/06/15/
critique-doctrine-reconciliation>.
institutions.92 It is difficult to convey a genocidal experience with euphemistic

words.93
In the practice of law, attorneys invoke the use of models and metaphors to
prove a case. Metaphorical explanation can be a useful tool to deconstruct
colonialism, as is clearly demonstrated by Newcomb’s cognitive legal theory
on decoding the domination and dehumanisation in international and
domestic law. In this regard, the model explains the process and the result.
The process is colonialism and the result is genocide. The model challenges
the state government, scholarly and societal denial about the crime of genocide
that ensues from colonial invasion. The colonial state and society demonises,
isolates and destroys Indigenous Peoples and Nations in the colonisation pro-
cess.94 The model entitled ‘the domination and dehumanization of Original
Nations and Peoples’95 unpacks the colonial experience, namely the forcible
transferral of Indigenous Peoples’ children into the colonial body politic.
Newcomb describes this colonising ‘body politic’:96
[a] collective body (composed of individual humans interacting in their

social and cultural lives) arrives to a ‘new’ continent with a colonizing,
ravenous ‘hunger’ (desire) for land. From an indigenous perspective, this
collective colonizing body can be metaphorically thought of as predator
that pursues its indigenous spoil and prey; it sets out to catch, devour,
and consume everything in sight (this correlates with the common
expressions ‘this is a consumer society’ and ‘we’re in the belly of the
beast’).97
Duncan Campbell Scott (Superintendent of Indian Affairs) also referred to this

colonial body politic in 1920 in his statement that ‘our objective is to con-
tinue until there is not a single Indian in Canada that has not been absorbed
into the body politic, and there is no Indian question, and no Indian depart-
ment and that is the whole object of the Bill’.98 The model invokes the
metaphor of the machine or engine that is the tool of the colonial body that
prepares its prey for consumption into the predatory colonial ‘body politic’ or
92 Ottawa, Statement of Apology, above n 9. For a review of the euphemisms, see John
S Milloy, A National Crime: The Canadian Government and the Residential School
System, 1879 to 1986 (University of Manitoba Press, 1999).
93 See especially Roland Chrisjohn, Sherri Young and Michael Maruan, The Circle
Game: Shadows and Substance in the Indian Residential School Experience in Canada
(Theytus Books, 2006) for a review of the rhetoric concerning residential schools.
94 See especially Starblanket, Suffer the Little Children, above n 9; Starblanket,
Genocide, above n 9.
95 See especially Newcomb, Pagans, above n 3; Starblanket, Suffer the Little Children,
above n 9.
97 Ibid 16.
98 Canada, Royal Commission on Aboriginal Peoples, above n 25, 577.
Canadian state and society. From an Indigenous standpoint, the metaphor of

the machine compels the western reader to view the reality that is concealed
in present-day discussions about residential schools and the child welfare
system. Consider the definition in the Canadian Oxford Dictionary that an
engine is ‘a thing that is an agent or instrument of a desired end or achieve-
ment (drive the engine of progress faster)’.99 This same colonising body (from
the US side) in the words of Theodore Roosevelt said that state law and policy
was to be a ‘mighty pulverizing engine to break up the tribal mass’.100 The
metaphor of the ‘pulverizing engine’ conveys that the prey are being prepared
for consumption into the colonial body.
The metaphor of the machine is supported by the classification of the harm
experienced in Roland Chrisjohn, Sherry Young and Michael Maraun’s book
The Circle Game in their analysis of the residential school as a ‘total institu-
tion’.101 The total institution ‘unmakes[s]’102 and then remakes Indigenous
Peoples’ children into the government’s intended ‘vision’103 of a civilised
person with the ‘modes and thoughts of white men’.104 The Oxford Dictionary
defines ‘dehumanise’ as ‘deprive of human characteristics [or] make impersonal
or machine-like’.105 ‘Indoctrination’ is defined as ‘to teach (a person or a
group of people) to systematically accept doctrines, esp. uncritically’.106 The
synonym for indoctrination is ‘brainwashing’.107 Total institutions serve as
modes of forced indoctrination or brainwashing. Brainwashing is defined
as ‘to effect a radical change in the ideas and beliefs (of a person) esp. by
methods based on isolation, sleeplessness, hunger, extreme discomfort, pain,
and the alternation of kindness and cruelty’.108 Ward Churchill in his com-
pelling analysis in Kill the Indian Save the Man describes the children’s
experiences of torture, sexually predatory acts, forced starvation, forced labour,
99 The Canadian Oxford Dictionary, 2nd edn, sub verbo ‘engine’.

100 Theodore Roosevelt, ‘The Struggle for Self-Determination’ (1901), in Digital
History, <http://www.digitalhistory.uh.edu/disp_textbook.cfm?smtid=3&psid=
720>.
101 Chrisjohn, Young and Maruan, above n 93; see also Erving Goffman, Asylums:
Essays on the Social Situation of Mental Patients and Other Inmates (Anchor Books,
1961) for a review of the total institution as a process that unmakes human
beings.
102 Chrisjohn, Young and Maruan, ibid 91.
103 Canada, Royal Commission on Aboriginal Peoples, above n 25, 313: ‘The gov-
ernment looked to the young for a complete change of condition.’
104 Canada, Parliamentary Debates, above n 44.
105 The Concise Oxford Dictionary, 9th edn, sub verbo ‘dehumanise’
106 Collins English Dictionary, 2nd edn, sub verbo ‘indoctrination’.
107 Webster’s New Dictionary and Thesaurus, sub verbo ‘brainwashing’.
108 Collins English Dictionary, 2nd edn, sub verbo, ‘brainwashing’; see also Naomi
Klein, The Shock Doctrine: The Rise of Disaster Capitalism (Knopf, 2007) 25–48.
Klein quotes George Orwell’s book Nineteen Eighty-Four: ‘We shall squeeze you
empty, and then we shall fill you with ourselves.’
and death by disease and dilapidated living conditions.109 Viewed from this
reality, the metaphor of the brainwashing machine matches the violent and
brutal colonial destruction experienced by the young ones.
For clarification, the use of the terms ‘machine’ or ‘engine’ metaphorically
explains the process of forced indoctrination or the serious bodily and mental
harm that occurred as a result of the forcible transfer. Clarification is necessary
because genocide is a human decision. The model explains the process Indi-
genous Nations collectively have undergone by the forcible transferral of their
children from one group (family, community and nations) to another group
(residential institutions and ultimately Canadian society).110 The use of the
word ‘machine’ is by no means an attempt to downgrade the human decision
of genocide. Human beings plan, create and drive the machines and tools they
construct. The model explains not just the act but the colonising ‘state of
mind’ behind the act. Most importantly, the description of the brainwashing
machine is not meant to dehumanise the experience of Indigenous Peoples’
children’s collective terror and violence. The term conveys the reality of the
forced indoctrination by colonial violence through imposition of the dominant
cultural pattern onto the children and the methods used to dehumanise the
innocent. The forced indoctrination process brutally conditioned children to
think, speak and write like the so-called civilised society they were being
forcibly transferred to away from their loving families and Nations. The
model explains the sadistic process of conditioning innocent children into a
Christian western world view.
The forced imposition of the colonial English language dehumanises Indi-
genous Peoples and Nations’ world view. The forcible transferral severs the
child’s relationship with her land and territory and ultimately her identity as
a ‘Nehiyaw’ because she has been trained to become an ‘enemy’ of her own
people.111 The child views her people as inferior. Churchill recounts one stu-
dent’s experience at Oblate’s St Phillips School in Ontario: ‘Long before she
completed her schooling, she learned to hate, not simply the people who
oppressed her, but herself and her race as well.’112 This process turns the child
against her national identity, spirituality, culture, language, original laws and
instructions, parents and families. The worst effect is the disconnection of her
identity from the land or Mother Earth and from her responsibility to ‘protect
and honour the land’.113
The spiritual relationship embodied in Creation’s laws with Mother Earth
(Great Turtle Island) becomes severed in the residential school.114 An example
109 Ward Churchill, Kill the Indian Save the Man: The Genocidal Impact of American
Indian Residential Schools (City Lights Books, 2004).
110 Article 2(b) and (e) of the Genocide Convention.
112 Churchill, Kill the Indian, above n 109, 24.
114 Sharon Venne, interview, 4 January 2013.
is the Indigenous language (name) designated to identify a territory.115 The

Nehiyaw language exemplifies spiritual laws that embody how people are to
relate in a beneficial way to that land or territory. Spiritual laws are encoded
into Indigenous Peoples’ languages.116 The dominating society forces another
language (for example, English) onto scores of children, and the result is those
children were never taught or do not remember why they have a relationship
with their land (Mother Earth).117 It becomes a deliberate process to isolate
children from their land. Newcomb writes:
From a cognitive science perspective [the dominating conceptual system

has] become part of the neural circuitry and structuring of our brains. As
a result, non-Indian strands of meaning have become interwoven into our
social and cultural lives as Indian people, thereby making the constraints
of [the dominating system] an integral part of the fabric of our own
imaginations and an integral part of the daily interactions of Indian
people in Indian communities.118
As a result, Indigenous children who have undergone forcible indoctrination

will not have been raised Nehiyaw and so in what way can the children claim
to be reared by their families, communities and Nations? The spiritual laws
embedded in the language become severed by not being passed on to new
generations.119 The young ones are now a product of the dominating society’s
language and culture and not their own. The fall-out for successive gener-
ations of Indigenous children is catastrophic.120 Indigenous children become
dominated and dehumanised through the methods employed in the total
institutions. The isolation from loving families, communities and Nations
renders children vulnerable to the forced indoctrination. The end product is
destruction in the name of ‘civilisation’.121
In other words, the forcible transferral of Indigenous Peoples’ children
causes serious bodily or mental harm. Dehumanising denigrations against a
child’s spirituality, nationality, history, people, culture and way of life cause
great destruction. Tell a child his or her people are worthless and savages
115 Ibid.
116 Ibid.
117 Ibid; see also Venne, Honour Bound, above n 1, 90–4. Elder Alex Twinn of Louis
Bull First Nation explains that a residential school severed the teachings that
should have been passed onto him. Elder Alex Bonais of Little Pine First Nation
refers to the white man ‘destroy[ing] us tak[ing] away our children’.
120 Churchill, Kill the Indian, above n 109, 68–76; see also Chrisjohn, Young and
Maruan, above n 93.
121 See Aimé Césaire, Discourse on Colonialism (Monthly Review Press, 1972). Césaire
explains that the civilisation process is a disease. See also Starblanket, Genocide,
above n 9; Starblanket, Suffer the Little Children, above n 9.
and it is likely that the child will come to see herself or himself through the
eyes of the coloniser.122 The situation is exacerbated by torture such as poking
needles through tongues, whippings and beating children into submission.123
As an example, the ‘insertion of a needle’124 into or ‘dry ice’125 on the tongue
to force an Indigenous child not to speak her own language, but to speak the
coloniser’s language instead, will cause serious bodily and mental harm and
compel that child to speak and think in the language being forcibly imposed
on him or her. Add the experiences of starvation, forced labour and death by
disease and other methods, and the oppressor society creates a child that has
been conditioned and unmade into something that is ‘unrecognizable’126 or
severely traumatised. Take the situation further and sexually prey upon a
child and that child becomes utterly destroyed in the process. The effect is
catastrophic as collectively the trauma and dysfunction is transmitted from
generation to generation.127 Collective trauma and dysfunction brought about
by the residential school phase is then used by the very dominating society
that created it to justify the child welfare system phase of the process.128 The
state uses its imposed standards of judgement to create the institutions that
create the destructive conditions, and then uses its standards of judgement to
take away another generation of children by force. It is well acknowledged in
scholarship and government reports that the child welfare system is a direct
122 See Agnes Grant, No End of Grief: Indian Residential Schools in Canada (Pemmican
Publications, 1996) 225–7; Churchill, Kill the Indian, above n 109, 19–24.
123 See Churchill, Kill the Indian, above n 109, 51–60; Chrisjohn, Young and
Maruan, above n 93, 49–51.
124 Chrisjohn, Young and Maruan, above n 93, 49, 255.
125 Steven Newcomb, interview, 2 December 2012.
126 Chrisjohn, Young and Maruan, above n 93, 91.
127 See Ernie Crey and Suzanne Fournier, Stolen From Our Embrace: The Abduction of
First Nations Children and the Restoration of Aboriginal Communities (Douglas and
McIntyre, 1997); Churchill, Kill the Indian, above n 109, 68–76; Chrisjohn,
Young and Maruan, above n 93.
128 See Leroy Little Bear, ‘Section 88 of the Indian Act and the Application of Pro-
vincial Laws to Indians’ in Anthony Long and Menno Boldt (eds), Governments in
Conflict? Provinces and Indian Nations in Canada (University of Toronto Press,
1992) 175. With the amendments to the Indian Act, s 88 authorises the removal
of Indigenous children by the provinces. See Marilyn Bennett, First Nations Fact
Sheet: A General Profile on First Nations Child Welfare in Canada First Nations Child
and Family Caring Society <http://www.fncfcs.com/docs/FirstNationsFS1.pdf>.
Bennett writes: ‘As there is no explicit reference to child welfare in either the
Indian Act or the Constitutional Act, 1867, 1982, it has subsequently been
deemed to be the responsibility of the provinces’ at 2. Bennett refers to the
Supreme Court of Canada case in which it was ‘confirmed in 1976 that the
legal jurisdiction of the Provinces’ ability to extend child welfare services onto
reserve, regardless of the provincial incursion into a federal sphere of responsi-
bility (Natural Parents v Superintendent of Child Welfare, (1976) 60 D.L.R. 3rd
148 S.C.C.)’ at 2.
effect of the residential school system.129 The rates of removal are catastrophic
in the child welfare system.130 It is reported that in some provinces 80 per
cent of children in care are Aboriginal, yet they make up only 5 per cent of
the total population of Canada.131 The massive and widespread trauma and
dysfunction destroys entire Original Peoples and Nations on Great Turtle
Island because Indigenous Peoples depend on their children to transmit
healthy identities to future generations.
Turning the tables

Indigenous Nations’ ability to protect the rights of our children are limited
under current international and national laws. It is a challenge to protect our
children from forcible state removals when the framework under which this
occurs is oppressive. Given the deliberate exclusion from international law of
cultural genocide and forced assimilation measures by colonial settler states, it
is nearly impossible to articulate a claim of this nature in international law.
Anghie supports this contention through his analysis of the development of
colonialism in international law to the detriment of the Original Peoples and
Nations of the world.132
The domination of settler-state interests is evidenced by the limited defin-
ition of the crime of genocide in the Canadian Criminal Code. Upon accession
to the UNGC, state governments have an obligation to ratify the convention
into domestic laws. Canada implemented a hate propaganda law that gutted
out critical components of the UNGC.133 The omission of the international
129 See Aboriginal Justice Implementation Commission, Report of the Aboriginal Justice
Inquiry of Manitoba (1999) vol 1, ch 14 <http://www.ajic.mb.ca/volume.html>;
Andrew Armitage, Comparing the Policy of Aboriginal Assimilation: Australia, Canada
and New Zealand (University of British Columbia Press, 1995); Jacqueline Marie
Maurice, Despiriting Aboriginal Children: Aboriginal Children During the 1960s and
1970s Child Welfare Era (PhD Thesis, University of Toronto, 2003).
130 See National Collaborating Centre for Aboriginal Health, Aboriginal and Non-
Aboriginal Children in Child Protection Services (National Collaborating Centre for
Aboriginal Health, 2009–2010) <http://nccah.netedit.info/docs/fact%20sheets/
child%20and%20youth/NCCAH_fs_childhealth_EN.pdf>.
131 See Cindy Blackstock et al, ‘Pathways to the Overrepresentation of Aboriginal
Children in Canada’s Child Welfare System’ (2004) 78 Social Service Review 577.
132 Anghie, above n 5, 1–12.
133 Section 318 of the Criminal Code, An Act Respecting the Criminal Law, RS 1985,
c C-46; 2004, c 14, s 1. Section 318 is as follows:
(1) Everyone who advocates or promotes genocide is guilty of an indictable
offence and liable to imprisonment for a term not exceeding five years.
(2) In this section, ‘genocide’ means any of the following acts committed with
intent to destroy in whole or in part any identifiable group, namely,
(a) killing members of the group; or
(b) deliberately inflicting on the group conditions of life calculated to
bring about its physical destruction.
definition of genocide in the penal code has ‘had important ramifications for
what [Indigenous] peoples can claim as genocide in Canadian courts’.134
Responsibility under customary international law creates an obligation on
states to refrain from acts of genocide.135 The significance is that a state
cannot pardon itself of criminal conduct by creating loopholes, internationally
and domestically. The state of Canada does not include Arts 2(b), (d) and (e)
of the UNGC in its Criminal Code.136 The fact that its penal laws exclude
crimes it is actively engaged in calls into question the ability of the UNGC to
protect Indigenous Peoples and Nations from genocide.
The model of domination and dehumanisation turns the actions of the
Canadian state on their face by compelling the western reader to view the
destructive colonial framework under which the removals occurred into
present times. After the euphemistic language is revealed to the reader, the
sources that exist, including the government apology, support the contention
that the government is criminally culpable for genocide. The genocidal
experience is evidenced in many reports, books and academic articles in
Canada.137 Despite the challenges, there is enough leeway to demonstrate
genocide in the colonisation of our lands and territories. Articles 2(b) and (e)
of the Genocide Convention stipulate it is genocide to forcibly transfer children
(3) No proceeding for an offence under this section shall be instituted without
the consent of the Attorney General.
(4) In this section, ‘identifiable group’ means any section of the public dis-
tinguished by colour, race, religion, ethnic origin or sexual orientation.
See Churchill, Perversions of Justice, above n 88, 249–51.
134 David B MacDonald and Graham Hudson, ‘The Genocide Question and Indian
Residential Schools in Canada’ (2012) 45 Canadian Journal of Political Science 427,
435.
135 John Quigley, The Genocide Convention: An International Law Analysis (Ashgate,
2006) 80.
136 See Starblanket, Suffer the Little Children, above n 9 for further in-depth analysis.
137 On the transfer of children causing serious bodily and mental harm, see Chris-
john, Young and Maruan, above n 93; Canada, Royal Commission on Aboriginal
Peoples, above n 25; Ottawa, Statement of Apology, above n 9; Grant, above n 122;
Crey and Fournier, above n 127; Milloy, above n 92; Elizabeth Furniss, Victims of
Benevolence: The Dark Legacy of the Williams Lake Residential School (Arsenal Pulp
Press, 1995); Constance Deiter, From Our Mother’s Arms: The Intergenerational
Impact of the Residential Schools in Saskatchewan (United Church Publishing House,
1999); P H Bryce, The Story of a National Crime Being an Appeal for Justice to the
Indians of Canada (James Hope and Sons, 1922); Agnes Jack (ed), Behind Closed
Doors: Stories from the Kamloops Indian Residential School (Theytus Books, 2006);
Carl Urion, ‘Introduction: The Experience of Indian Residential Schooling’
(1991) 18S Canadian Journal of Native Education i; Celia Haig-Brown, Resistance
and Renewal: Surviving the Indian Residential School (Tillacum Library, 1988); Isa-
belle Knockwood, Out of the Depths: The Experiences of Mi’kmaw Children at the
Indian Residential School at Shubenacadie, Nova Scotia (Roseway Publishing, 1992);
JR Miller, Shingwauk’s Vision: A History of the Native Residential Schools (University
of Toronto Press, 1996). This list of sources is not exhaustive.
from one group to another group and to cause serious bodily or mental harm
to members of the group. William Schabas in Genocide in International Law
explains that to demonstrate genocide material facts along with intent or
‘guilty mind’ must be proven.138 The chapeau in Art 2 establishes the mens
rea, which is the ‘intent to destroy, in whole or in part, a national, ethnical,
racial or religious group’. Article 2 establishes the actus reus or the criminal
acts of the offence in Arts 2(a)–(e). The legal application of the convention is
outside the scope of this chapter; however, I will briefly summarise it. Inter-
national jurisprudence supports the claim that the Canadian state is guilty of
genocide.139
The apology by the Canadian government expresses the requisite standard
required to show the specific intent to destroy a group. The phrase ‘kill the
Indian in the child’ conveys the intent to destroy the national identity of
Indigenous children. The specific intent to destroy the national identity is
satisfied by the admission of the intent to destroy that which is distinctly
‘Indian’. The policy objectives and the legislation that forced the transfer of
Indigenous Peoples’ children conveys specific intent because of the effort the
government undertook in designing colonial laws that compelled the massive
forced transfer of children.140 The International Criminal Tribunal for the Former
Yugoslavia in Karadzić determined that intent can be satisfied by the general
political doctrine and patterns of conduct.141 The massive and widespread
collective serious bodily and mental harm also supports the intention of
destroying a group in whole or in part.142 Children were subjected to wide-scale
torture, sexual abuse, starvation and forced labour.143 At a basic standard,
specific intent is satisfied to show a case of genocide.
138 William A Schabas, Genocide in International Law: The Crime of Crimes (Cambridge
University Press, 2nd edn, 2009) 172: ‘Criminal law analysis of an offence pro-
ceeds from a basic distinction between the physical element (actus reus) and the
mental element (mens rea). The prosecution must prove specific material facts, but
must also establish the accused’s criminal intent or guilty mind.’
139 See especially Starblanket, Suffer the Little Children, above n 9 for an explanation
of the jurisprudence that supports Canada’s culpability; see also Starblanket,
Genocide, above n 9.
140 See An Act to Amend and Consolidate the Laws Respecting Indians, SC 1880, c 28;
s 137(2) and 138 of the Indian Advancement Act, RSC 1886, c 44; s 11 of An Act
Further to Amend the Indian Act, 1894, c 32, 57–58 Victoria; ss 9 and 10 of An
Act to Amend the Indian Act, SC 1920, c 50. For a review of the legislation, see
especially Canada, Royal Commission on Aboriginal Peoples, above n 25. For a
review of the policy objectives, see Titley, above n 25.
141 International Criminal Tribunal for the Former Yugoslavia, Decision of Trial
Chamber 1, Radovan Karadzic, Ratko Mladic case (Case Nos IT-95-5-R61 and IT-
95-18-R61), Consideration of the Indictment within the Framework of Rule 61
of the Rules of Procedure and Evidence, [94].
142 See Prosecutor v Akayesu (Case No ICTR-96-4-T), Judgment, 2 September 1998.
143 See above n 137.
Forcibly transferring Indigenous children and causing serious bodily and

mental harm will affect the ability of Indigenous Peoples and Nations to
survive because of their dependence on their future generations.144 The
system-wide serious bodily and mental harm shows patterns of conduct and
this combined with the massive nature of the harm suffices to show specific
intent. The colonial brutality and horror has certainly impeded the ability of
Indigenous Peoples to transmit their national identities onto further gener-
ations. The forcible removal to residential institutions has contributed to the
destruction of the national group identity.
The Venezuelan delegate to the Genocide Convention discussions articulated
that:
the forced transfer of children to a group where they would be given an

education different from that of their own group, and would have new
customs, a new religion and probably a new language, was in practice
tantamount to the destruction of their group, whose future depended on
that generation of children.145
The children were not just assimilated; they were forcibly indoctrinated or
brainwashed by the massive and widespread colonial abominations.
The success of the colonial enterprise depends on the degree of brainwashing
or indoctrination of oppressed peoples.146 As a result of the widespread forced
indoctrination, Indigenous children have come to self-loath their identity and
their Peoples and Nations. It has been demonstrated that forcibly removing
children can make them enemies of their own people.147 The children do not
remember why they should have a mutual beneficial relationship with Mother
Earth. Indigenous Peoples’ original languages are fundamental to the national
identities on Great Turtle Island. The young ones are forcibly ‘civilised’ and
consumed into the ‘predatory colonial body politic’ and come to identify with
the colonising language rather than their own languages. An effect is that
Indigenous Peoples enter into colonial processes that terminate their national
identity.
The large-scale termination of land claims processes requires Original
Nations and Peoples to submit to a destructive framework that cedes and
surrenders the land to the settler state. Indigenous Peoples depend on our
Mother Earth and protect and honour our lands and territories for our future
144 Abtahi and Webb, above n 39, 235, 1493, 1494, 1504; see also Shauna Tro-
niak, ‘Addressing the Legacy of Residential Schools’ (Background Paper No
2011–76-E, Library of Parliament, 2011) 2 <http://publications.gc.ca/collec
tions/collection_2011/bdp-lop/bp/2011-76-eng.pdf>.
145 UN Doc A/6/SR83, cited in Abtahi and Webb, ibid 1504.
146 Rarihowkwats, speech delivered at the Sixth Annual National Treaties 1–11
Gathering, Regina, Saskatchewan, 12–15 October 2010.
generations. It is difficult to accomplish this spiritual law when children are

collectively indoctrinated in the language that dominates and dehumanises
their very existence. The severing of the child’s relationship with the land by
wiping out the language and ‘spiritual laws encoded in the language’148
contributes to the destruction of the group as a whole or in part. Indigenous
children were targeted for forced removal because they are the children of
Indigenous Peoples and Nations. According to the chamber in Krstić, intent
means that ‘the perpetrators of genocide need not seek to destroy the entire
group protected by the Convention, they must view the part of the group
they wish to destroy as a distinct identity which must be eliminated as such’.149
A potential criticism is that the colonial government did not intend to
harm the children; however, the government was aware of the harms and
never corrected the large-scale atrocities and the revolting acts of violence
against the young ones. Many autobiographical stories, books and government
reports support this contention.150 One example is the report made by the
chief physician of the Department of Indian Affairs in 1907. Dr P H Bryce
publicly criticised the atrocious and dilapidated living conditions that children
were forced to live under in the residential institutions.151 Milloy writes that
Dr Bryce condemned the ‘[d]epartment for its failure to act in the face of the
white plague, tuberculosis’.152 The disease and death created by unsanitary
living conditions were well known to staff and officials in the schools and the
government apparatus.153 Duncan Campbell Scott asserted that, system wide,
‘fifty percent of children who passed through these schools did not live to
benefit from the education which they received therein’.154 Did the govern-
ment stop the system in its tracks and return the children to their parents and
nations? Did the government rectify the harm that had already taken place up
to that point in the early 1900s? The inaction by the government aggravated,
and did not mitigate, its conduct. The enrolment rates went up with the
1920 amendment to the Indian Act155 and this legislated action exacerbated
the government’s conduct and supports the specific intent required under
international law. Given these were children who endured years of inhumane
suffering and dehumanisation from an early age of human development, there

149 Prosecutor v Krstić (Case No IT-98-33-T), Judgment, 2 August 2001, [590].
150 See especially all references cited above n 137; see also P H Bryce, Report on the
Indian Schools of Manitoba and the Northwest Territories (Government Printing
Bureau, 1907); Canada, Royal Commission on Aboriginal Peoples, above n 25,
349–59.
151 Bryce, ibid.
152 Milloy, above n 92, 51.
153 See Canada, Royal Commission on Aboriginal Peoples, above n 25, 353–65;
Milloy, above n 92, 51–107.
154 Canada, Royal Commission on Aboriginal Peoples, above n 25, 330–1.
155 Sections 9 and 10 of An Act to Amend the Indian Act, SC 1920, c 50.
is no doubt that these children were traumatised and forcibly conditioned.

Chrisjohn, Young and Maruan write:
If inmates become available at a young enough age, the tactics of total

institutions won’t merely ‘disrupt or defile’ selves, but hinder their
development in the first place. By not allowing the formation of ‘adult
executive competency,’ the inmates are prevented from being or becoming
persons at all.156
Given that these forcible removals occurred over several generations, the
effects would be catastrophic. The international jurisprudence supports the
contention that there are long-term effects of genocide.157
Shauna Troniak, researcher for the Canadian Parliament, writes:
The traumas of physical and sexual abuse, social and emotional dislocation,
and cultural loss have manifested, for many survivors and their commu-
nities, in after effects such as substance abuse, violence, and family
breakdown. Many survivors’ descendants have experienced and continue
to experience inter-generational traumas as a result of this unresolved
trauma.158
The result is the possible disappearance of our distinct national identities as

each generation passes off the massive patterns of trauma and dysfunction. The
greatest effect is the dislocation from our territories. Collectively, as a result,
Indigenous Peoples do not understand that we have a relationship of protection
and care for our Mother Earth. Children indoctrinated in the English language
through acts of colonial violence will not remember that Indigenous laws are
codified into the languages of our Original Nations. The long-term impacts
exhibited by Indigenous Peoples and Nations today are the extensive and
immense social issues that are rampant. Suicides, drug and alcohol addictions,
poverty (to name a few) are the direct result of the residential school era. The
result is that, over time, Indigenous Peoples are collectively and forcibly
indoctrinated (assimilated) into Canadian society. The worst effect is the dys-
functional parenting patterns exhibited by the survivors.159 In this regard, the
genocide has not ceased and continues into the present day.
156 Chrisjohn, Young and Maruan, above n 93, 91 (emphasis in original).

157 Prosecutor v Krajisnik (Case No IT-9-3-T), Judgment, 27 September 2006, [862]
158 Troniak, above n 144, 2–3.
159 See Patrick J Morrissette, ‘The Holocaust of First Nations People: Residual
Effects on Parenting and Treatment Implications’ (1994) 16 Contemporary Family
Therapy 381; Rosalind Ing, ‘The Effects of Residential Schooling on Native
Child-Rearing Practices’ (1991) 18 Canadian Journal of Native Education 65;
Linda Bull, ‘Indian Residential Schooling: A Native Perspective’ (1991) 18S
Canadian Journal of Native Education 1.
Child welfare system

The ‘sixties scoop’160 as coined by Patrick Johnston is the mass removal of
Indigenous children into the 2000s.161 Provincial legislation compels the
forcible transferral of Indigenous Peoples’ children at appalling rates.162 This
is genocide and it is ongoing. This is the face of colonisation that continues to
this day. Venne states:
The child welfare system is worse than the residential school system
because unlike the children who had each other to comfort one another
in the boarding schools, a child in the child welfare system is isolated
and alone from his or her people and Nation.163
Ernie Crey of the Sto’lo Nation writes:
children stayed in an aboriginal peer group; they always knew their First
Nation of origin and who their parents were, and they knew that even-
tually they were going home. In the foster and adoptive care system,
aboriginal children typically vanished with scarcely a trace, the vast
majority placed until they were adults in non-aboriginal homes where
their cultural identity, their legal Indian status, their knowledge of their
own First Nation and even their birth names were erased, often
forever.164
The collective trauma and dysfunction brought about by the residential school
phase is then used by the very dominating society that created that trauma to
justify the child welfare system phase of the process.165
The government invokes the traumatic parenting patterns it created that
lead to the massive and widespread removals in the child welfare system. The
concept of the ‘best interests of the child’ is a coloniser value-based judgement.
It is a concept that was created to continue the domination and dehumanisa-
tion of our nations. The violence that children endured in the residential
160 Patrick Johnston, Native Children and the Child Welfare System (James Lorimer and
the Canadian Council on Social Development, 1983).
161 See Crey and Fournier, above n 127; Erin Hanson, ‘Sixties Scoop: The Sixties
Scoop and Aboriginal Child Welfare’, Indigenous Foundations <http://indigen
ousfoundations.arts.ubc.ca/home/government-policy/sixties-scoop.html>.
162 See all references above n 128; Emily Alston-O’Connor, ‘The Sixties Scoop:
Implications for Social Workers and Social Work Education’ (2010) 11 Critical
Social Work 1.
163 Sharon Venne, interview, 4 January 2013; see also Andrew Armitage, ‘Family
and Child Welfare in First Nations Communities’ in B Wharf (ed), Rethinking
Child Welfare in Canada (Oxford University Press, 1993) 131.
164 Crey and Fournier, above n 127, 81.
165 See Aboriginal Justice Implementation Commission, above n 129.
school system is experienced by our children in the system today.166 The

collective serious bodily and mental harm has not ceased. The death rates
of children in the system are evidenced by recent media reports.167 In the
worst-case scenario, the forcible removals in the residential school system and
their effects in the child welfare system destroy our nations as our children do
not relate to our original laws and instructions, languages, spirituality, cul-
tures, families, and most importantly an identity that embodies a healthy
relationship with Mother Earth.
Children have been forcibly transferred and deprived of the socialisation and
enculturation process within their own nations that enable them to become an
integral part of their nation or people’s distinct national identity. This is a
genocidal process. In other words, children have not been raised Anishnaabe or
Nehiyaw or Lil’wat or Nuxalk and so in what way can the children claim to be
socialised or raised within their families, communities and Nations? They
cannot because they are now a product of the dominating society’s language,
culture and society and not their own. This time around, the Canadian state
cannot claim they do not know that this is the end result because the govern-
ment has already apologised for having done this with residential schools. Now
the target destination is the non-Indigenous residence, or child welfare home.
Moving beyond colonialism

Perhaps the most vital aspect of this chapter is the solution offered as a way to
move out of the domination of colonial state oppression. Decolonised critical
analysis is necessary to enable a true movement towards healing on a global
level. Self-determination is the road home and the way we re-centre our
Nations as subjects in international law. It is the way we re-humanise ourselves
as Original Nations and begin to heal from the dehumanising experience of
colonial domination. It is time for the settler state of Canada and other settler
states such as Australia and the United States to acknowledge the atrocities
they have engaged in and to be accountable and responsible for their crimes of
genocide in the colonisation of our Great Turtle Island and other parts of the
world.
Our Nations on Great Turtle Island and the globe were given ‘laws set by
the Creator’168 to live according to in our relationship with all of Creation
(Mother Earth). Those laws were severed with the forcible transferral of
166 See especially Crey and Fournier, above n 127.

167 Jason Proctor, ‘Death of BC Aboriginal Teen Paige under RCMP Investigation’,
CBC News British Columbia, 18 September 2015 <http://www.cbc.ca/news/canada/
british-columbia/death-of-b-c-aboriginal-teen-paige-under-rcmp-investigation-1.
3234158>; ‘Paige’s story: Death of troubled teen prompts action from BC govern-
ment’, CBC News British Columbia, 20 October 2015 <http://www.cbc.ca/news/cana
da/british-columbia/paige-death-government-release-report-1.3280603>.
168 Venne, Honour Bound, above n 1, 9.
Indigenous Peoples’ children into residential institutions. Our Peoples are

forced to enter into destructive processes from a perspective or reality that
denigrates our Nations and future generations. We depend on our Mother
Earth for life and the life of our future generations. Indigenous Peoples and
Nations are collectively forced to:
utilize the language and conceptual system of the dominating society as a

means of thinking, speaking, and writing about our own existence while
challenging certain negative, oppressive and dominating concepts that
have been mentally and, from an indigenous perspective, illegitimately
imposed on our existence.169
Churchill writes:
We shoulder the burden, whatever it may entail, of ensuring that the

order of colonialism at last is shattered, never to be restored. Most
importantly, we owe it, all of us, to our coming generations … to
bequeath unto them lives free of the nightmarish reality in which ourselves
remain so mired.170
So for the survivors of genocide, the road home is the international right of
self-determination and our status as ‘subjects’ in international law. The
colonisers must come to grips with the destruction they have engaged in to
dominate our lands and territories the world over. They must acknowledge
the genocide and admit their crimes in the colonisation of our lands, and
cease and desist the genocidal practices. It is our inalienable right and
responsibility to live according to Creation’s laws. It is a most fundamental
aspect of the healing that is necessary for our Original Nations and Peoples.
In fact, it is the only solution for true justice. This is integral for world peace
and the good health of our Mother Earth and ultimately humankind because
we depend on the earth for our very survival. Most importantly, it is necessary
that Original Nations and Peoples understand the genocidal effects so that we
can protect our Mother Earth for our future generations of Creation.

170 Churchill, Kill the Indian, above n 109, 82.
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Cases
A-G Israel v Eichmann (1968) 36 ILR 5 (District Court, Jerusalem)
Calder v British Columbia (AG) (1973) SCR 313
Case Concerning the Application of the Convention on the Prevention and Punishment of the
Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), 26 February 2007
Cherokee Nation v Georgia 30 US (5 Pet) 1 (1831)
Choctaw Nation v Oklahoma 397 US 620 (1970)
Coe v Commonwealth (1979) 53 ALJR 403
Coe v Commonwealth (No 2) (1993) 68 ALRJ 110
Connelly v Woolrich (1867) 11 LCJ 197
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In Re Southern Rhodesia (1919) AC 211
Johnson & Graham’s Lessee v M’Intosh 21 US (8 Wheat) 543 (1823)
Lone Wolf v Hitchcock 187 US 553 (1903)
Mabo v Queensland (No 2) (1992) 175 CLR 1
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(unreported)
Montana Band of Indians v Canada (Minister of Indian and Northern Affairs) [1989] 1 SC
143 (TD)
Natural Parents v Superintendent of Child Welfare (1976) 60 DLR 3rd 148 SCC
Northwest Band of Shoshone Indians v US 324 US 335 (1945)
Oyekan v Adele (1957) 2 All ER 788
Prosecutor v Akayesu (Case No ICTR-96-94-T), 2 September 1998
Prosecutor v Blagojević (Case No IT-02-60-T), 17 January 2005
Prosecutor v Krajisnik (Case No IT-9-3-T), 27 September 2006
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Prosecutor v Tolimir (Case No IT-05-88/2T), 12 December 2012
Queen, The v Symonds (1847) NZPCC 387
Queen, The v The Secretary of State for Foreign and Commonwealth Affairs, ex parte The
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R v Badger (1996) 1 SCR 771
R v Murrell (1836) 1 Legge 72
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Simon v The Queen (1985) 2 SCR 387
St Catherine’s Milling and Lumber Co v The Queen (1885) 10 OR 196 (Ch D)
St Catherine’s Milling and Lumber Co v R (1886) CanLII 30 (ON CA)
Tijani v Sec, Southern Nigeria (1921) 2 AC 399
United States v Sioux Nation of Indians 448 US 371 (1980)
US ex rel Standing Bear v George Crook 25 Fed Cas 695 (CCD, Nebraska, 1879)
Western Sahara (Advisory Opinion) [1975] ICJ 12
Worcester v Georgia 31 US (6 Pet) 515 (1832)
Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422
Legislation
Aboriginals Protection and Restriction of the Sale of Opium Act 1897 (Qld)
Aborigines Act 1890 (Vic)
Aborigines Act 1911 (SA)
Aborigines Protection Act 1886 (Vic)
Aborigines Protection Act 1890 (WA)
Aborigines Protection Act 1909 (NSW)
An Act to Amend the Indian Act, SC (1920)
Appropriation (Northern Territory National Emergency Response) Act (No 1) 2007 (Cth)
Appropriation (Northern Territory National Emergency Response) Act (No 2) 2007 (Cth)
Burke Act, 34 Stat 182 (1906)
Curtis Act, 30 Stat 495 (1898)
Family, Community Services, Indigenous Affairs and Other Legislation Amendment (Northern
Territory National Emergency Response and Other Measures) Act 2007 (Cth)
Five Civilized Tribes Act, 34 Stat 325 (1906)
Indian Advancement Act, RSC (1886)
Native Title Act 1993 (Cth)
Northern Territory Aboriginals Act 1910 (SA)
Northern Territory National Emergency Response Act 2007 (Cth)
Oklahoma Organic Act, 26 Stat 81 (1890)
Social Security and Other Legislation Amendment (Welfare Payment Reform) Act 2007 (Cth)
Social Security Legislation Amendment Act 2012 (Cth)
Stronger Futures in the Northern Territory Act 2012 (Cth)
Stronger Futures in the Northern Territory Act 2013 (Cth)
Treaties and United Nations Documents

Anaya, James, Observations on the Northern Territory Emergency Response in Australia, UN
Doc A/HRC/15/13/Add4 (4 March 2010)
Cobo, Jose Martinez, Study of the Problem of Discrimination against Indigenous Populations,
UN Doc E/CN4/Sub2/1986/7/Add 4 (1 March 1987)
Committee on Economic, Social and Cultural Rights, Concluding Observations: Australia,
UN Doc E/C12/AUS/CO/4 (12 June 2009)
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UN Doc CERD/C/AUS/CO/15-17 (27 August 2010)
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9 December 1948, 78 UNTS 277 (entered into force 12 January 1951)
Declaration on the Rights of Indigenous Peoples, adopted by the General Assembly 2
October 2007, UN Doc A/RES/61/295
Department of Economic and Social Affairs, UN Secretariat, State of the World’s Indigenous
Peoples, UN Doc ST/ESA/328 (2009)
Final Report of the Commission of Experts Established Pursuant to Security Council Resolution
780 (1992), UN Doc S/1994/674 (1994)
General Treaty for Renunciation of War as an Instrument of National Policy, 94 LNTS
(entered into force 24 July 1929)
International Covenant on Civil and Political Rights, adopted by the General Assembly 19
December 1966, UN Doc A/6316 (entered into force 23 March 1976)
International Covenant on Economic, Social and Cultural Rights, opened for signature 16
December 1966, 993 UNTS 3 (entered into force 3 January 1976)
United Nations Economic and Social Council, Study on Treaties, Agreements and Other
Constructive Arrangements between States and Indigenous Populations: Final Report by Miguel
Alfonso Martinez, Special Rapporteur, UN Doc E/CN.4/Sub.2/1999/20 (22 June 1999)
United Nations General Assembly, The Situation in Bosnia and Herzegovina, UN Doc A/
RES/47/121 (18 December 1992)
United Nations Permanent Forum on Indigenous Issues, State of the World’s Indigenous
Peoples, UN Doc ST/ESA/328 (2009)
United Nations Permanent Forum on Indigenous Peoples, Report on the Eleventh Session,
E/2012/43-E/C 19/2012/13 (7–18 May 2012)
US Statement to UN ECOSOC (1987), E/CN4/Gr1987/7/Add12 (30 September 1987)
Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155
UNTS 331 (entered into force 27 January 1980)
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First Treaty with Aboriginal People’, ABC Lateline, 26 February 2016
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1 October 2002
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Newcomb, Steven, ‘The Alta Outcome Document and the Issue of Interpretation’,
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(Programa Social Indígena, Lima, Derecho, Ambiente y Recursos Naturales, 2010)
Toohey, Paul, ‘Scheming Blacks behind Fires: Farmers’, The Australian/Weekend Australian
Magazine, 22 September 2001
Index
Aboriginal law see Indigenous Peoples’ Billa Killina 107

laws biodiversity 8–9, 200
Aborigines Acts 108, 114–15 Bolivia 122, 127, 135
Adnyamathanha People 107 border thinking 126–7
Alba, Luis Alfonso de 157 Bowers, Chet 20
Alfonso Martinez, Miguel 143 Britain 181–2, 184; colonial policies 78,
anarchism 89–90 84, 143; London Convention of 1818 74;
Anaya, James 126 treaties with Canadian peoples 143,
ancestors 7, 13–15, 99, 109–10, 119, 162, 174–5; Treaty of Paris 67, 69–70,
164 74; wartime policies 54–6, 60
Anderson, Gary Clayton 80–1; see also Bryce, P H 196
ethnic cleansing Bush, George H W 78
Anghie, Antony 22–4, 38, 43, 52, 102,
116, 176, 192 Canada 33, 142–3, 155, 161–2, 183–4,
apologies for past injustices 88–9, 115, 192; Assembly of First Nations 161;
186–7, 193–4, 199 Canadian Taxpayers Federation 146,
Arapaho 76–7 150; colonial policies 175–6, 179–80,
Aristotle 44 187, 189; Contribution Agreements
Ashe, John 160–1 144–5, 148–50; Department of Indian
assimilation 3, 96–7, 101–2, 114–15, Affairs and Northern Development
117, 122–3, 187, 192 142, 144–50, 174; financial
Atkinson, Judy 7–8, 10 transparency of First Nations 141–2,
Australia 5, 13–14, 99, 105–9, 111, 144–50; genocide 173–4, 176, 178,
113–15; British invasion of 7, 102; 180, 183–4, 189, 192–7; Indian Acts
constitution 11, 115–16; law 10, 12, 143–4, 147, 180, 196; Montana Band
15, 48n72, 84, 112–13, 118; Stolen of Indians v Canada 147–8; removal of
Generations 114; treaty debate 11, First Nations Children 173–6,
115; see also Mabo, native title, 179–80, 186–92, 194–9; St Catherine’s
terra nullius Milling and Lumber Co v The Queen
Austria 55–6 179; treaties with First Nations 84–5,
Awajun People 134, 137 143, 147, 162, 174–5; Truth and
Reconciliation Commission 30
Baker, Donald 7 Carter, Sarah 144
Ban Ki-Moon 161 Césaire, Aimé 60–1, 86
Barnes, Robert 149 Chamberlain, Neville 54–6
Belgium 57 Cherokee (Tsalagi) 73–4
Berger, Thomas R 24 Cheyenne 76–7
Besserab, Dawn 13 Chickasaw 73
222 Index
children see Indigenous children Cook, James 11–12

China 86, 154, 160–1 Country 7, 14, 100, 107; and story 10,
Choctaw 73 12; network of relationships 13–14,
Chrisjohn, Roland 188, 197 116; protocol when visiting 13–14,
Christianity: forced conversion 122–3, 99n19; responsibility to care for 9, 16,
179, 189; legal concepts based on 108–9, 112–14, 162
European Christian norms 42–8, Crawford, James 22–3, 172
52–3; non-Christians disqualified from Crey, Ernie 198
sovereignty 23, 32–3, 35, 43, 45–6; Czechoslovakia 54–6, 58
see also discovery doctrine
Churchill, Ward 104, 128, 188–9, 200 Daladier, Édouard 54
citizenship 5, 13–15, 103, 123, 139, dance 7, 10
142 Declaration on the Granting of
civilised–uncivilised dichotomy 2, 26, Independence to Colonial Countries
38, 47, 103, 177, 179–80, 184 and Peoples 124
Coe, Paul 112 Declaration on the Rights of Indigenous
Collard, Len 9 Peoples 8, 12, 15, 28–31, 34, 85,
Colombia 127 109–10; designed to maintain
colonialism 6, 8, 10–11, 24–7, 41, 86, domination of states 29–31, 36–7, 98,
97, 104, 110; and the ‘civilising 110–12, 125; enforceability 108;
mission’ 27, 116, 178; colonial history 151–3; right to consent
violence 7–8, 10, 12, 41, 71–2, 75, 130–3, 160
77, 80, 97, 189; continuation of 104, decolonial project 93, 103, 117–18,
106, 114, 121, 137, 153, 184; 124–8, 131, 135, 163, 199
displacement and genocide of Deloria Jr, Vine 66–7
Indigenous Peoples 88, 98, 171–2, Denmark 57
180–1, 183–4, 187; legal fictions Denning, Alfred 143
behind 10–11; nazi practice in Europe development 93, 96, 106, 109, 121,
61–3, 78–9, 82, 85–6; nexus between 130–3, 137–40
international law and colonialism 11, discovery doctrine 10, 32–3, 41–2,
23, 38–9, 47, 53, 102, 110, 176, 67n81, 101, 116, 178–9, 182
192; origins of international law 4, diversity and colonialism 8, 11
87–8, 97, 103, 176; resistance to 1, domination: and colonialism 19, 21, 24,
96, 103, 114, 120, 126, 200; settler 26, 172–3; in international law 21,
colonialism 3, 87, 91, 94–5, 117, 23, 29–31, 34–7; metaphors of
182–3, 192 domination 20, 25, 178
Committee on the Elimination of Racial Dreaming 6–9; ancestors 7, 13–15
Discrimination 105–6 Duncan, John 146
consent, right to 105–7, 122, 129–34,
136, 162 Eckert, Allan 68–9
constitutional recognition of Aboriginal Elders 13, 96, 109, 141, 174
and Torres Strait Islander Peoples 11, Ermineskin Cree People 148
115–16 ethnic cleansing 80–1; see also genocide
Consultation Law (Peru) 120–1, eugenics 85–6
129–30, 132–3, 137; as a denial of extractive industries 108, 113, 118, 123,
self-determination 121–2, 131–2, 131–5, 137–40
134–5, 137, 139–40
Convention on the Prevention and Punishment Fitzpatrick, Peter 46, 50
of the Crime of Genocide 80, 173–4, Foucault, Michel 53
180–6, 192–6 fracking 108–9, 113
Convention on the Elimination of all Forms of France 54, 56, 60, 74, 185
Racial Discrimination 105–6 Fujimori, Alberto 129
Index 223
genocide 59, 193–4; and colonialism imperialism see colonialism

89, 96, 172, 177–8, 181–4, 187; Indian Claims Commission 64–7, 82
cultural genocide 178, 181–4; Indigenous and Tribal Peoples Convention
denial of 63, 79, 81–2; and ‘ethnic (ILO Convention No 169) 120, 129,
cleansing’ 80–1; forcible transfer of 132, 137, 165
children 114, 173, 176, 184–5, 189, Indigenous children: assimilation 141,
193–5; forced assimilation 102, 173, 179–80, 188–90; ‘best interests
114–15, 176; see also Convention on the of the child’ 114, 174, 198; bodily
Prevention and Punishment of the Crime of and mental harm 188–91, 196; forced
Genocide removal as genocide 173, 184–5, 189,
Germany: following the US example 195; indoctrination 173, 188–90,
62–3, 78–9, 82, 85–6; violations of 196–7; intergenerational transmission
Hague Convention 57–8; wartime of trauma 191, 197–8; national
agreements 54, 57; wartime ambitions identity 189–90, 194–5, 197–9;
55, 58, 62; wartime invasions 54–8; relationship with Mother Earth
see also Hitler, Adolf 189–90, 195, 197, 199; removal by
Göring, Hermann 63 child welfare system 114, 191–2,
Great Turtle Island 142, 160, 171, 174, 198–9; residential school system 144,
186, 195, 199 173–6, 180, 186–92, 196–200;
Greece 185 Stolen Generations 114
Greene, Shane 134 Indigenous identity 104, 136, 162 189,
Grotius, Hugo 38–9, 43–9, 53; doctrine 194–6, 198–9; see also assimilation
of discovery 41–2; just wars 51–2; Indigenous Peoples, international law
natural law 44; see also Christianity; definitions of 18n1, 25–7, 29, 36n91
sovereignty Indigenous Peoples’ laws 5, 15–16,
89–90, 97, 99, 101–4, 109,
Hague Convention on the Laws of War 118–19, 190
57–8 Indigenous rights 8, 34–6, 85, 116,
Harper, Stephen 186 121–2, 126, 128–9, 137–8: collective
Haudenosaunee (Iroquois Confederation) rights 15, 120, 122, 126, 128–9;
71, 160 property rights 12, 43, 46, 112, 128;
Haushofer, Karl 83 right to benefit from extractive
Havercroft, Jonathon 23 activities 132, 137, 140; right to
Hegel, Georg Wilhelm Friedrich 89 consent 105–7, 122, 129–34, 136,
Henriksen, John 157, 160 162; right of consultation 130, 135,
High Court of Australia 10–12, 112 137, 140; right of territoriality 132,
Hitler, Adolf: and colonialism 61, 78; 134–7, 140; see also Declaration on the
diplomacy 54, 57–60, 82; influence of Rights of Indigenous Peoples;
US continental expansion 62, 78–9, self-determination
82, 85–6; Lebensraum 58, 62, 82, 85; Indigenous world views 5–7, 189; see also
Mein Kampf 58, 62; Munich Country; Indigenous Peoples’ laws
Agreement 54; territorial ambitions Inter-American Court of Human Rights
54–8, 82 131, 137
Horsman, Reginald 69 International Covenant on Civil and Political
Hughes, Carol 145 Rights 125
Humala, Ollanta 132 International Covenant on Economic, Social
human rights: colonial versus Indigenous and Cultural Rights 125
perspectives 5, 16, 104, 110, 116, International Criminal Court 81
122, 126–7, 134; individual versus International Criminal Tribunal for the
collective 15–16, 151, 183; violations Former Yugoslavia 81, 194, 196
against Indigenous Peoples 8, 11–12, international law: Aboriginal law
101, 106, 131, 169 between nations as international law
224 Index
5, 99, 116; as a means of domination Lens, Sidney 78

and oppression 21, 23–4, 27; liberalism/neoliberalism 86–9, 106,
complicity in the colonial project 11, 121–3, 126, 128–9, 132, 134–5, 139
50, 97; and conquest 22, 26; ‘crimes Lippman, Matthew 183
against humanity’ 59; ‘crimes against Lithuania 58
peace’ 59; delicti juris gentium 59; Little Bear, Leroy 8
exclusion of Indigenous Peoples as Lorde, Audre 91
subjects 11, 23, 32–3, 49–50, 53, Luxembourg 57
103; inclusion of Indigenous Peoples
as subjects 42–3, 45–7, 70, 174–5; Mabo v Queensland (No 2) 10, 112–13
‘just war’ 41–2, 49–53, 72; origins of MacDonald, John A 178–9
48–50, 97; state-centred 2, 101; see McNeil, Kent 179–80
also human rights; law of treaties; Mak, Allan 149
Convention on the Prevention and Makinaw, Craig 147
Punishment of the Crime of Maraun, Michael 188
Genocide; Vienna Convention on the Marcuse, Herbert 90, 95
Law of Treaties Marshall, John 10, 31–2, 83–5; see also
International Military Tribunal at US Supreme Court
Nuremberg 58–9, 63, 72 Marxism 89
Iraq 78 Means, Russell 1–2, 66, 100
Iroquois Confederation see Haudensaunee Mexico 75
Italy 54, 57 Milloy, John S 196
Morison, Samuel Eliot 26
Jackson, Robert H 59, 65, 78 Morris, Glenn 19, 163
Japan 57 Mueller, Claus 26
Johnson, Patrick 198 multiculturalism 127–9, 132
Munich Agreement 54, 56, 60, 82
Kakel, Carroll P III 78–9
Kanaka Maoli (Indigenous Hawaiians) 88 nationhood 5, 12, 31–4, 38, 101, 121,
Kills Straight, Birgil 178 123–5, 127–8, 162; see also
King, Mathew (Noble Red Man) 88 sovereignty
kinship systems 13–16; see also Ancestors Native Title Act 1993 (Cth) 112
Koskenniemi, Martti 176 native title 12, 15, 112–13, 117–8
Kuwait 78 natural law 38, 42–5, 49, 53
Kwaymullina, Blaze 15 nazi party/nazis 58–61, 87–9, 181–2;
parallels with US colonial policy
Lakota (‘Sioux’) 60, 88 60–5, 78–9, 82, 85–6; see also Hitler,
language: of conquest and domination Adolf; Schmitt, Carl
19–20, 25, 104, 178, 186, 193; Netherlands, German invasion 57
imposition of colonial languages 20, Newcomb, Steven 98, 104, 159, 162,
104, 122, 174, 186, 189–91, 195–7, 172–4, 178, 186–7, 190
200; Indigenous languages 98, 101, New Zealand (Aotearoa) 84
104, 111n60, 190, 195–7; of Nock, Albert J 19
international law 18–19, 31, 34, 98, No Fixed Address (band) 1
109, 174, 193; naming Indigenous North America Indigenous Peoples
Peoples 1–2, 111, 116 Caucus 158–60, 163
law of nations see international law Northern Territory Emergency Response
laws of war see Hague Convention, 105–6
International Military Tribunal at Norway 57, 157, 159–60
Nuremberg nuclear waste dumps 106–7
Leguia, Augusto 128 Nuremberg trials see International
Lemkin, Raphael 177–8 Military Tribunal
Index 225
Onion Lake Cree People 149–50 Sioux see Lakota

Oppenheimer, Franz 19–20, 22, 30–1 slavery 51, 86, 91n195, 123
Orihuela, José Carlos 138 Smith, Adam 26
Smith, Richard 128
Pact of Paris (‘Kellogg–Briand Pact’) 57 society, Eurocentric concept of 38–9,
Pagden, Anthony 41 43–5, 52–3
Palyku People 6–7, 9, 14 song 1, 10, 101–2, 111n59, 116
Patterson, Glen 148 songlines 14, 101, 116
Peru: Prior Consultation Law 120–1, sovereignty 38, 43–8, 53, 102–3, 123;
129, 132–4, 137–8; recognition of denial of Indigenous Peoples’ rights
Indigenous Peoples’ rights 120, 11, 23, 32, 35, 43–8, 53, 139;
127–9, 135 denial of self-determination 29, 31,
Poland 55–8, 182 124–8; European versus Indigenous
Portugal 40–1 concepts 9, 102–3; founded in
Power, Samantha 177 colonialism 23–4, 38, 47, 103,
property: European concept of 21, 39, 176; Indigenous sovereignty 9–10,
43–4, 112, 118, 121–3, 136; Indi- 12, 14, 17, 70, 83n154, 125n18,
genous property rights 12, 43, 46, 63, 148; see also Vitoria, Francisco de;
70, 112, 128, 134–8; versus knowing Grotius, Hugo
the land’s stories 10; see also Spain 40–1, 46, 52
native title Stevenson, Scott 150
Story, Joseph 32, 35
Quichua People 137 Sun Tzu 86
survival of First Nations Peoples 96,
racism 2, 32, 85–6, 100–1, 117, 141, 101, 103–5, 113, 136; see also
161, 179–82; see also Convention on the genocide
Elimination of All Forms of Racial
Discrimination terra nullius 10–11, 97, 99, 101,
reconciliation 30, 89, 113 112–13, 116
Red Cloud (Mapíya Lúta) 60 territorial rights 132, 134–7, 140
residential school system 144, 173–6, terrorism 111, 135
180, 186–92, 196–200; see also time, Indigenous conception of 6,
genocide; Indigenous children 99n16, 102
Ribbentrop, Joachim von 57, 63 Toland, John 78
Rich, Norman 78 treaty: Australian debates 11, 115; see
Rios, Manini 185 also Canada: treaties with first nations;
Rivera, Silvia 122, 138 US treaties
Roosevelt, Theodore 188 treaty law 59–60, 67, 70, 72, 83–5,
143, 185; see also Vienna Convention on
Salomon, Charles 176 the Law of Treaties
Santos, Boaventura de Sousa 104 Treaty of Versailles 54–5, 58
Sawridge People 149–50 Troniak, Shauna 197
Schabas, William 194 Truman, Harry 63–5, 70, 77–8
Schmitt, Carl 61, 87 Tuck, Richard 52
Scott, Duncan Campbell 187, 196 Tully, James 127
self-determination 93, 121–5, 128, 131,
134–40, 148, 161, 169, 199–200; Ukraine 181
‘internal self-determination’ 104, 121, United Nations 21, 26–7, 33–4, 81,
125–8; under the UN declaration 98, 100, 105, 124, 153–8, 160–3; see also
104, 110–11, 125, 152 Convention on the Prevention and
settler states see colonialism Punishment of the Crime of Genocide;
Shawnee 71–2, 74, 173 Declaration on the Rights of Indigenous
226 Index
Peoples; United Nations High-Level US treaties with other nations: London

Plenary Meeting Convention of 1818 74; Treaty of
United Nations Commission on Human Guadalupe Hidalgo 75; Treaty of Paris
Rights/Human Rights Council 151–2, 57, 67, 70, 74
156, 161 USSR 57–8, 181–4
United Nations Expert Mechanism on
Indigenous Issues 153, 155–6, 166 Valcourt, Bernard 149
United Nations High-Level Plenary Vallindas, Petros 185
Meeting 98, 142, 154–6, 158–61 Velasco, Juan 128–9
United Nations Working Group on Venezuela 195
Indigenous Populations 151, 155–6 Venne, Sharon 90, 100, 173–5, 198
United States 1–2, 61, 104, 118, 128, Vienna Convention on the Law of Treaties
155; apology to First Nations 88; 67, 70, 72, 75, 77, 85, 185
denial of past injustice/genocide 62, Vitoria, Francisco de 23, 32, 38–53;
64, 77, 79–83, 183; law 31–3, 35, theory of ‘just’ war 41, 49–52
64, 83–5, 179; model for nazis in
Europe 63–5, 78–9, 82, 85–6; policy Wabash Confederation 71–2
towards first nations 32–3, 64–6, 70, Warlmanpa People 107
75, 162, 180; recognition of First Washington, George 68–71
Nations as nations 33; seizure of Waskahat, Peter 175
Indigenous Nations’ lands 66–75, 77; Watson, Irene 16, 39, 90
see also US Supreme Court; US treaties Wayne, Anthony 71–2
Universal Declaration of Human Rights Weber, Max 31
5, 159 Western Sahara (Advisory Opinion) 112
‘universality’ of law and justice 38, 43, White Face, Charmaine 98
45, 52–3, 88, 104, 116–17, 176 Williams Jr, Robert, 10, 39, 43
Uruguay 185 Willoughby, Bart 1
US Supreme Court: Cherokee v Georgia Winter, Steven L 20
83–4; Church v Hubbart 31; Johnson v World Bank 130
McIntosh 32, 35, 84; Lone Wolf v Wu Hongbo 161
Hitchcock 64, 84; Worcester v Georgia 84
US treaties with First Nations 66–9, Yugoslavia 57, 81, 182, 194
82–5, 112; validity of 67, 70, 72, Youngblood Henderson, James (Sakej) 39
75–8; violations of 64, 71–4 Young, Sherry 188

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What is the purpose of the book series?

What is the purpose of the book series?

What issues does the book series aim to provide a comprehensive survey of?

What issues does the book series aim to provide a comprehensive survey of?

Indigenous Peoples as Subjects of

Irene Watson belongs to the Tanganekald, Meintangk and Boandik First

Titles in this series:

Aboriginal Peoples, Colonialism and International Law: Raw Law

Indigeneity – Before and Beyond the Law

The Literary and Legal Genealogy of Native American

Indigenous Peoples as Subjects of International Law

Forthcoming titles in this series:

Human Rights, the Rule of Law and Exploitation: Blood Minerals

Scales of Governance and Indigenous Peoples: New Rights or

ISBN: 978-1-138-64515-8 (hbk)

1 Aboriginal Nations, the Australian nation-state and Indigenous

2 Domination in relation to Indigenous (‘dominated’) Peoples in

3 The ‘natural’ law of nations: society and the exclusion of First

4 Long before Munich: the American template for

6 Law and politics of Indigenous self-determination: the meaning of

7 How governments manufacture consent and use it against

8 ‘Kill the Indian in the child’: genocide in international law 171

Marcelle Burns is a Kamilaroi woman and a pre-doctoral fellow at the School of

of Indigenous People, and worked to secure a UN Study on Treaties which

I abhor the term Native American. It is a generic government term used

the American Samoans, the Micronesians, the Aleutes, the original

1 Russell Means, ‘Opening Plenary Session’ in The Geneva Conference, Ofﬁcial

Aboriginal Nations, the

Australia is a continent, not a country.

holistic, non-linear and relationships-focused.1 However, my analysis is only

The world(s), the Dreaming(s) and the apocalypse(s)

1 In this I am informed by the work of Indigenous thinkers in the area of Indigenous

5 I have previously written of this in Ambellin Kwaymullina, ‘Seeing the Light:

legislation, reserves and removals); and psycho-social domination (cultural and

Aboriginal Nations of ‘Australia’ and an international

As each generation of Nyungar passes through, it is our duty to listen to,

15 For a discussion of the operation of the doctrine of discovery in English terri-

Native title is something of a ‘leftover’ of a property right, a scrap from the

Growing up in my family and learning from my Elders, I was told that

It is also a fundamental rule, common to all Aboriginal legal systems of

29 See, eg, Reconciliation Australia, Welcome to and Acknowledgement of Country <http

through central institutions. This is why, writing with Blaze Kwaymullina, I

The right to be human

is to be part of a collective. It is also to be responsible to the collective,

Western: what is the meaning of life?

34 Graham, above n 1, 181.

In this emergence, Indigenous Peoples of Australia offer pathways into the

35 Watson, above n 10, 164.

This chapter is an effort to make explicit an underlying feature of the

1 Steven Newcomb, ‘The UN Declaration on the Rights of Indigenous Peoples

metaphorical pattern of domination3 and subordination,4 which generally

The historical operation of a system of legal norms and standards,

[Franz] Oppenheimer deﬁnes the State, in respect to its origin, as an

3 Claus Mueller, The Politics of Communication: A Study in the Political Sociology of

between ‘the state’ and ‘Indigenous Peoples’ in international law, which is a

Metaphors of domination and international law

The metaphor and concept of ‘conquest’ is generally associated with the

Dominated peoples and international law

20 The Compact Edition of the Oxford English Dictionary (1971) vol 1.